Lessons for Litigators from Claudine Gay

For want of a nail the shoe was lost.

For want of a shoe the horse was lost.

For want of a horse the rider was lost.

For want of a rider the message was lost

For want of a message the battle was lost.

For want of a battle the kingdom was lost.

—Anonymous

For want of a nail, the kingdom was lost. For want of the right answer, the Harvard presidency was lost.

Answers are hugely consequential. All it takes to lose a case, a career, a reputation, or anything else, is one bad answer.

After Claudine Gay gave her poor answer to Representative Elise Stefanik about whether calling for the genocide of Jews violated Harvard’s code of conduct, many were quick to blame her lawyers for that answer. Critics theorized that she was overprepared or over-lawyered. A New York Times article reported critiques from law professors: The college presidents were “prepared to give answers in the court—and not a public forum,” and once they started to focus on whether conduct would violate the First Amendment, “they stuck with their preparation,” which was “why they came across so wooden.”

From the armchair on Monday morning, it may be easy to blame Gay’s lawyers. After all, there was no surprise about what the hearing would cover. The notice for the hearing gave it this title: “Holding campus leaders accountable and confronting anti-Semitism.” The House committee even issued a press release the week before:

College and university presidents have a responsibility to foster and uphold a safe learning environment for their students and staff. Now is not a time for indecision or milquetoast statements. By holding this hearing, we are shining the spotlight on these campus leaders and demanding they take the appropriate action to stand strong against anti-Semitism.

So, it seems, the lawyers should have anticipated the tough questions and prepared those college presidents to give truthful testimony in a way that would not harm them or their institutions. And if the answers came out badly, then it should come as no surprise that people blame the lawyers, right?

Maybe, but perhaps not. Let’s analyze the testimony and see what it shows:

Stefanik: Dr. Gay, does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

Gay: The rules around bullying and harassment are quite specific. And if the context in which that language is used amounts to bullying and harassment, then we take—we take action against it.

A few minutes later, this:

Stefanik: And, Dr. Gay, at Harvard, does calling for the genocide of Jews violate Harvard’s rules of bullying and harassment, yes or no?

Gay: It can be. Depending on the context.

Stefanik: What’s the context?

Gay: Targeted as an individual, targeted as—at an individual, severe, pervasive.

Those answers were inaccurate, if not downright wrong. Harvard’s official bullying policy is lengthy but leans more to the broad side than to the “quite specific.” It says that “bullying, hostile and abusive behavior, and power-based harassment . . . are prohibited at Harvard.” It defines bullying as “harmful interpersonal aggression by words or actions that humiliate, degrade, demean, intimidate, or threaten an individual or individuals.” It gives non-exhaustive examples of what would fall on one side or the other of the bullying line. The first example is this:

Abusive expression directed at . . . individuals, such as derogatory remarks, epithets, or ad hominem attacks that are outside the range of commonly accepted expressions of disagreement, disapproval, or critique in an academic community and professional setting that respects free expression. The Policy encompasses abusive expression or ad hominem attacks that are verbal or nonverbal, spoken or written.

Under this policy, would calling for the genocide of Jews be bullying? It’s hard to argue that it would not be. Calling for the genocide of anyone—like calling for the lynching of former slaves—involves using harmful words of interpersonal aggression that intimidate and threaten individuals. Is it possible to imagine scenarios in which calling for genocide would not be bullying? Yes, say, if it were done in a forest and no one hears it. But nothing in the question suggested such a remote scenario.

Harvard’s bullying policy had some mitigating language. It cautioned that it was not intended to prevent discussion of “controversial matters” or participation “in political protest.” And it explained what would violate the policy:

[S]uch aggression must be sufficiently severe or pervasive, and objectively offensive, that it creates a work, educational, or living environment that a reasonable person would consider intimidating, hostile, or abusive and denies the individual an equal opportunity to participate in the benefits of the workplace or the institution’s programs and activities. Unless sufficiently severe or pervasive, a single act typically would not constitute bullying.

Harvard’s policy was intended to grapple with competing interests in an academic community. Universities are incubators for knowledge and discovery. They require protections for broad expressions of, and debate on, diverse ideas, but not so broad as to harm the university’s mission or its constituents.

Fifty years ago, Yale famously tested this ethos of intellectual discourse. A student group had invited William Shockley, the Nobel prize–winning inventor of the semiconductor, to debate eugenics with the publisher of the National Review. Shockley ardently believed that Caucasians were genetically superior to Blacks. On the night of the debate, the students wanted to hear none of it. They booed and drowned him out, exercising the heckler’s veto.

Yale responded with a commission to study the role and limits of free expression. The commission’s report came down strongly in favor of protecting speech in its broadest form:

The primary function of a university is to discover and disseminate knowledge. . . . To fulfill this function a free interchange of ideas is necessary. . . . It follows that the university must do everything possible to ensure within it the fullest degree of intellectual freedom. The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.

Thirty years later at an alumni meeting, Yale College’s dean Richard Brodhead questioned those lofty principles. He asked whether universities should really want to be a place where people think the unthinkable and discuss things that are truly unmentionable.

Harvard’s policy on bullying bends in Brodhead’s direction by drawing limits—the line is crossed when a reasonable person would consider the speech intimidating, hostile, or abusive. Still, the policy’s tension between free expression and bullying could well have created a quandary for Gay and the lawyers who prepared her. Similar to statutes and contracts that have some wiggle room or legal standards that turn on what is reasonable, Harvard’s policy had just enough in it to create a potentially litigable issue. The issue might have been strong enough for a smart litigator, representing someone who called for genocide, to make what could be viewed as a non-frivolous argument: Does calling for genocide one time violate Harvard’s policy if it was at a political protest and denied no one the equal opportunity to participate in Harvard’s programs or activities?

And if that argument could be made, then how could Gay give anything but a qualified answer to Stefanik’s question? Had she answered with an unqualified “yes,” that the call for genocide violated Harvard’s policy, she might well have faced criticism for prejudging an issue likely to come before Harvard’s disciplinary body.

If her lawyers counseled her to answer as she did, then they saved her from criticism for tainting a possible future disciplinary proceeding. But that came at a steep price. She missed the opportunity to tell the world that neither she nor Harvard has any tolerance for hate speech, much less for speech advocating genocide.

What’s more, her qualified answers sounded overly technical and evasive. And they were not even correct. She stated that a violation of the policy required that the speech be targeted at an individual. Not so. Under the policy, bullying could be directed at individuals, plural, which would include groups such as Jews.

And in another part of her testimony, she said this:

Stefanik: Can you say yes to that question of, does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?

Gay: Calling for the genocide of Jews is anti-Semitism.

Stefanik: So yes?

Gay: And that is anti-Semitic speech. And as I have said, when speech—

Stefanik: And it’s a yes?

Gay: —crosses into conduct—

Stefanik: And it’s a yes. I’ve asked the witnesses—

Gay: When speech crosses—when speech crosses into conduct, we take action.

It may be true that Harvard only acts when speech crosses into conduct. But under the policy, speech does not need to cross into conduct to be a violation. The policy is primarily aimed at expression. Her answer was a self-inflicted wound. She did not need to raise the bar that high to answer the question yes. If her lawyers told her to think in those terms, then that was a preparation error.

Of course, we’ll never know. Did her lawyers prepare her correctly and Gay simply fail to heed their advice? Or was her testimony the outcome of improper preparation? It’s easy to fault the lawyers for the testimonial sins of the witness. But no critic can justifiably blame the lawyers for the witness’s preparation if the critic was not in the room to witness the preparation. That said, Gay’s testimony still offers many valuable witness preparation lessons. Here are four.

Lesson No. 1: Understand the theme of the case. The theme of the case is the bite-sized conclusion that the lawyer and witness should want everyone in the room to draw when the entire proceeding is over. Every important question needs to be answered with that case theme in mind. Apparently, Gay thought her case theme was “Universities must have some tolerance for hateful ideas in order to protect the expression of valuable ones.” But that was the wrong theme. Knowing the purpose of the hearing, the lawyers should have told Gay—and maybe they did tell her—that the theme of her case is “Harvard does not tolerate hate speech of any kind—full stop.”

Of course, that theme might have prompted questions about why Harvard had not expelled people who called for the genocide of Jews. That question could have been answered easily: “Stay tuned. We’re thoroughly investigating, and those who have violated Harvard’s policy on bullying will be appropriately disciplined, which could include suspension or expulsion.”

Lesson No. 2: Be likable. Likability is so important in testifying because those who sit in judgment of the answers are also sitting in judgment of the witness. If the witness is likable, the listener is more likely to believe the witness, trust the witness, and side with the witness.

How does a witness become likable? On top of all the interpersonal techniques that are commonly known—such as eye contact, having a pleasant and cooperative demeanor, showing confidence but not hubris—the witness must be responsive, not evasive. When Stefanik asked, “Does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?” and Gay answered, “Calling for the genocide of Jews is anti-Semitism,” that answer came off as evasive, as if Gay were afraid of the true answer, so she gave another one instead. The question was a softball. Gay could have hit a home run if she had said: “Yes, it does.” Or if she wanted to be just a tad less definitive, she might have said, “Yes, as far as I’m concerned, it does. We have no tolerance at Harvard for anyone who calls for genocide.”

Lesson No. 3: Answer yes-or-no questions advantageously. Sometimes questioners will try to get witnesses to shoehorn their answers into a simple yes or no when the question is not suitable for such a binary answer. In format, a question might sound like it ought to be answerable with a yes or no. But the question might imply something that the witness does not agree with. A mere yes or no could thus allow the fact finder to draw an improper inference or wrong conclusion based on how the question is worded.

These somewhat complicated yes-or-no questions should be answered with an explanation that leaves no misleading impression. The easiest way is to answer, “Yes, because____” or “No, because____.” But a subtler way to answer is to give a soft yes or no. Examples might be “Not always,” “Only if . . . ,” “Mostly,” “With some assistance,” or other modifiers like those.

Gay tried that, but when asked about calls for genocide violating Harvard’s policy, she used the wrong modifier on the wrong question. She answered, “It depends on the context,” with no appreciation for how bad that answer sounded. If Gay truly but mistakenly believed that the policy was context-dependent, then she might have considered a different response: “Not specifically, but yes, it violates the principles embedded in the policy.”

Lesson No. 4: Know your documents. ’Nuff said.

The most important lessons: An unprepared or incorrectly prepared witness is a danger to herself and to those who depend on her. The preparing attorney and the witness must understand what’s at stake and where the vulnerabilities lie. No matter how skillful the witness is in other realms, the witness must be properly trained not simply on how to avoid bad answers but also on how to give good, truthful ones that fortify the case. Equivocation in the face of hate is never the right answer. And it takes only one bad answer to lose the kingdom.

Kenneth R. Berman can be reached at [email protected].