NYT: Swift cross-examination even more disastrous than first thought

The attorney facing off against Taylor Swift in court appears not to have learned rule #1 in cross-examinations and/or hostile direct interrogation: Don’t ask questions without already knowing the answersYesterday morning, it appeared that the lawsuit filed by a DJ against Taylor Swift would backfire. The cross-examination from David Mueller’s attorney, reported by the New York Times, removes all doubt. At least from this telling, it appears to be an object lesson in everything that can go wrong for an unprepared attorney in open court.


“I’m not going to allow you or your client to make me feel like this was my fault, because it isn’t,” Ms. Swift told Mr. Mueller’s lawyer, Gabriel McFarland, testifying with confidence, irritation and flashes of humor during an hour on the stand. …

At one point, for example, Mr. McFarland asked why, in the photograph she took with Mr. Mueller, the hem of her skirt does not appear to be pushed up in the front.

“Because my ass is located on the back of my body,” Ms. Swift said, earning smiles from several jurors.

Ouch. Did McFarland think that Swift would show up unprepared to answer that question? Perhaps he has a demonstration in mind for later with the dress that would make the hem on the front relevant, but Swift’s answer probably won’t help him make that case — assuming McFarland has that in mind at all. The photograph doesn’t show a dress that would necessarily react in front to a grab from underneath its skirt in the back, which is, y’know, the whole issue in the lawsuit which McFarland’s client initiated.

McFarland asked a series of leading questions that almost seemed designed to bolster Swift’s case. He tried to get Swift to take some blame for the incident, asking her what she could have done differently, and responded by telling McFarland that his client “could have taken a normal photo with me.” McFarland questioned her delayed response, which is a fair point, but that allowed Swift to (a) reiterate the emotional impact that the alleged assault had on her, and (b) point out that she did react within minutes of the incident. It went so well for Swift that her attorney decided not to press his luck, declining to ask her any questions. That, Donna Bryson reports, surprised McFarland so much that he had to ask for a delay to get his next witness ready, which earned him a rebuke from the judge for his lack of preparation.


Not only did he allow for Swift to testify to her emotional damage, but McFarland compounded the problem when he did get around to his next witnesses. He tried to get Swift’s aides to say that they hadn’t seen the actual grope, which was true, but they then corroborated Swift’s contemporaneous reaction and identification of Mueller as the culprit:

In the afternoon, Mr. McFarland called Ms. Swift’s photographer and road manager, who were in the room during the photo session, in an attempt to show that no one saw what Ms. Swift had earlier described. But Ms. Swift’s aides were adamant on the stand that, while they may not have seen any groping, they believed it had occurred based on what was seen in the photograph and how Ms. Swift reacted.

The photographer, Stephanie Simbeck, who shot the image of her boss, Mr. Mueller and his girlfriend at the time, told the court she has taken some 20,000 photographs of Ms. Swift with fans at meet-and-greets. In all that time, she said, she had never seen Ms. Swift react the way she did when the photo with Mr. Mueller as taken. She saw Ms. Swift move to get away from Mr. Mueller with an uncomfortable look on her face. Because of that, when Ms. Swift said she had been groped, Ms. Simbeck thought immediately of him and found the photo to show Ms. Swift, who confirmed he was the man she was talking about.

And it didn’t get any better today either:


Pop star Taylor Swift’s former bodyguard told a U.S. jury on Friday that a former disc jockey the singer-songwriter accuses of groping her bottom had been drinking and that he saw the man’s hand go under her skirt during a photo shoot.

Under questioning from the former disc jockey’s attorney, Gabriel McFarland, Dent told the court he witnessed the incident.

“I saw his hand under her skirt. … Her skirt went up. … She jumped,” Dent testified, adding that Swift then moved closer to Mueller’s girlfriend, who was standing on the other side of the singer for the photograph.

“I was definitely sure that he had been drinking,” Dent said of Mueller. “I don’t know what level. He wasn’t staggering or falling down.”

The point of cross-examination and/or hostile direct is to both prove one’s own case and disprove the opponent’s claims, or so I’ve been told. Shouldn’t McFarland have learned all this prior to the trial in depositions? They certainly had the opportunity for discovery and deposing of witnesses; Swift herself was deposed late last year. If this is the best line of questioning McFarland could muster with these witnesses months after knowing what their testimony would be, it’s clear that Mueller’s lawsuit was a very badly conceived bluff, and they should have defaulted and paid Swift the dollar she demanded.


On the other hand, this may qualify as the most entertaining cross-examination fail since My Cousin Vinny. This is a low-quality capture, but you’ll get the drift.

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