It is worth remembering: The reasons that we have enforceable rules for a courtroom is to avoid the spectacle that Americans witnessed in the first Presidential debate this year. Commentators across the political spectrum variously called the match-up between President Donald Trump and former Vice-President Joe Biden “unwatchable,” a “debacle,” a “train-wreck,” a “dumpster-fire,” a “disaster,” and a “shit-show.”  It was a mess from the beginning: low jabs and questionable facts, all amid crossover-talk. In that context, we should pause a moment to appreciate that the courtroom offers a noble contrast. In trials, we have turn-taking, and not both sides talking over each other constantly. We have a limited ability to interrupt, and when you do, it is only on the basis of an identified objection, not because a thought has suddenly occurred to you. We have an empowered moderator/referee who cannot just call for calm and responsiveness, but can demand it with consequences (contempt of court). We have rules of relevance that prevent “changing the subject” as a response. And we have rules of evidence that prevent loud assertions from masquerading as proof.

These differences are demanded by the courts and, of course, we wouldn’t expect a political debate to fit all the norms of courtroom civility. But, it has to be noted, all of the presidential debates in our history have been a heck of a lot closer to that ideal than Tuesday night’s fight- card. As a result, and unfortunately, that means that the debate poorly served its purpose of informing the public and helping the small number of undecided voters come to a decision. While the Commission on Presidential Debates takes a fresh look at ways to revise the format and reinforce the rules, I think it would be a good time to take a look at the role of format in the legal process. After all, trials are different, and that difference is worth fighting for. As resolving disputes through trial is in peril, based on both a long-term decline as well as a (hopefully) shorter-term pandemic, a moment of appreciation might be in order.

Embrace Procedure

Courtroom procedure is not a nuisance, it is an essential bulwark against the chaos we often see in other forms of political speech. It is a cliche, of course, but when lawyers say they’ve come to “love the law,” they don’t mean any particular policies or rules, they mean that they love the structure, because that structure permits a reasonable search for truth and justice. That might sound naive, but the core of it is essential. While you might not agree with every rule, and should work to change those that should be changed, we should remember that working within a framework of argument is the only thing that prevents a descent into chaos.

Be Sparing with Aggression (and Earn It Before You Use It) 

Sean Lemoine, an attorney I know with Wick Phillips in Dallas, made the following comment at the close of the debate: “The reason why when you cross-examine a witness you don’t come out like a screaming banshee is because the jury empathizes with the witness. You can get permission from a jury to go after a witness, but you need permission.” That is a point that applies beyond cross-examination to overall demeanor: It is not that you can never be aggressive, it is that the right to be aggressive is something that is only sometimes given to you by your audience with justification. If a witness is rude or evasive, for example, then a jury will let you gradually ramp up the aggression. But don’t come out of the gates with it. Employ it sparingly and only after it is earned.

Don’t Cross the Ref 

In most cases, crossing the judge is not something you want to do. If a litigator came even close to the kinds of actions seen in Tuesdays debates — not just dodging the questions, but over-talking and ignoring requests to stop — you would see those lawyers, ala My Cousin Vinny, having a quiet place to work after trial, in jail. Instead of arguing with your judge, overtly or covertly, it is better to analyze, adapt, and persuade. Showing deference, to at least the role if not the person, may not be your first or your most honest reaction, but it is the one that is most likely to succeed.

It’s Hard to Keep the High Ground (but Do It Anyway)

While it is tempting to place responsibility on both sides in a debacle like the Presidential Debate, and there is surely some to be shared, it is also the case that the vast majority of the aggressive interrupting communication was coming from President Trump’s side of the stage. That put Joe Biden in the position of a litigator facing a self-styled “steamroller” on the other side: How do you keep the high ground and avoid getting pulled into the mud? It can be a challenge, but it is an essential challenge. It comes down to remaining calm, taking nothing personally, returning to the substance wherever possible, and picking your battles on when you’re going to engage and when you’re going to let it slide.

I’d like to say, I’m looking forward to the next Presidential debate, but honestly I’m not. I am looking forward to the Veep debate (my opinion is that they’re almost always better — maybe a lesser need to posture makes for a more substantive discussion). And, I am looking forward to my next trial.

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Image credit: DonkeyHotey, Flickr Creative Commons