EP 921- Unpacking the Cardi B Jury Trial

Episode Notes

Transcript

Announcer:

Welcome to Heels in the Courtroom, where the trial lawyers of the Simon Law Firm break down what it takes to win in the courtroom and in life.

Katie St. John:

Hello, and welcome back to another episode of Heals in the Courtroom. This is Katie St. John, and today I am joined by Liz Lenivy and Elizabeth McNulty. Hi guys.

Elizabeth Lenivy:

Hello. Hey.

Katie St. John:

I am so very excited for our discussion today. So without further ado, I present to you inside the Cardi B jury trial.

Elizabeth McNulty:

Hey.

Katie St. John:

I want to rewind to 2018. Cardi B, this is the background facts of the case. So Cardi B was about four months pregnant and heading to a doctor’s appointment in Beverly Hills. At that appointment, she had an encounter with building security guard, Amani Ellis. Ellis claimed Cardi scratched her face with her long fingernails, spit on her and used racial slurs. Cardi B denied all of this. She insisted the confrontation was verbal only and that Ellis actually followed her and tried to film her. So two years later, Ellis filed a lawsuit seeking $24 million in damages. She alleged physical injury, emotional distress, and reputational harm. So that set the stage for a civil jury trial in Los Angeles Superior Court in late August of 2025. So honestly, I feel like I could talk about this trial for quite some time. I want to focus on a few key points that may be of relevance for our listeners, but before I do that, I just have one confession for you all.

And it’s to know that I don’t watch a whole lot of TV or movies or anything like that, but I am a sucker for court TV or law and crime televised trials.

Elizabeth McNulty:

Did they televise this?

Katie St. John:

Yes.

Elizabeth McNulty:

Okay. And

Katie St. John:

I watched it. So my husband and I subscribed to YouTube TV. And back when I was pregnant with my first on my maternity leave, I watched the entire Johnny Depp verse Amber Heard trial.

Elizabeth McNulty:

And

Katie St. John:

That is where my love for court TV started. And then every single time I’d go over to my parents’ house on maternity leave, my stepdad would be like, “Let me put on court TV for you. ” That’s so

Elizabeth Lenivy:

Sweet.

Katie St. John:

Anyways.

Elizabeth Lenivy:

It’s crazy that you’re a trial lawyer who loves court TV. It is. It’s

Katie St. John:

So sick. It is. It’s messed up. I love trials. Yeah.

Elizabeth Lenivy:

What a great example to all.

Katie St. John:

Yes.

Elizabeth Lenivy:

Even in your free time, learning.

Katie St. John:

Yes. Okay. So the first thing I want to talk about is fashion in the courtroom. I will be honest, as a female trial lawyer, this is not something I gave much thought about until I was about to try my first case. And I specifically remember a trial meeting, like the trial team had a meeting and the lead trial lawyer was very specific about the suits, the color scheme everyone was going to wear, things of that nature. Now, Cardi B allegedly wore a $10,000 Valentino polka dot suit. Some other suits cost around $7,000 and there’s another one for $3,000. Cardi B and I are not wearing similar suits at all, but …

Elizabeth Lenivy:

Yours are more expensive.

Katie St. John:

Extravagant. Yes. But her wardrobe choices, that’s a whole nother discussion. But I mean, I think it brings up kind of just a … And I know we’re joking, but a little bit of something to talk about for us ladies. What about our fashion choices can make a difference as a trial lawyer? Or even when you have a client and they’re preparing for a deposition, it’s just one of those things where it is something we have to think about and talk about. And so, I mean, what do you guys think? Does it matter? Why does it matter?

Elizabeth Lenivy:

I think it absolutely matters. Unfortunately or fortunately, maybe. I was reading something the other day in some lawyer magazine and it was about jurors and just kind of goofy stuff they do. And it was a case where the plaintiff’s lawyer and the plaintiff got dumped and one of the jurors said after that it was because he didn’t like the lawyer’s brown shoes. What? And that’s not something that we can account for. You can’t be like, “I need to pick an outfit that all the jurors were will like. ” But it’s something that I always thought was kind of like an exclusively female problem. We have to worry about what we’re wearing. But I mean, men can dress really ugly too. So I think male lawyers need to be just as cautious about what they wear in the courtroom. I don’t know how heinous these brown shoes were or maybe I would like them.

I don’t know. But I think it’s like one of the more annoying parts of trial prep is that I also have to lay out all of my outfits for five, 10 business days. And it’s really exhausting. And you have to think about the venue that you’re in and if your outfits are too flashy and is this not enough? But I want to stand out from the defense lawyers who will probably just be wearing black suits. And it’s just on and on and on top of all the actual substantive work you have to do in trial prep. But it is one of those things that can be fun. It can be a plus to kind of wear something fun to court if you want to. Maybe not in polka dot suit, but I wouldn’t hate it.

Elizabeth McNulty:

I have so many thoughts starting with men can be ugly too or dress ugly too. But sometimes I do wonder if it’s intentional, and I’m sure I’ve told this story before on this podcast, but there was an older male defense lawyer who would wear the same suit, I swear, every day during trial, and it was a suit that had a hole in the pocket. So when he would put his hand through, you could kind of see his fingers coming out of it. And I was like, “I know you have enough money to either buy a new suit or at least get that hemmed, get it fixed.” But I think it was an intentional decision of like he looked, he wasn’t too flashy and it kind of fit his vibe of he was a softer spoken guy and he really simplified things. And I’ll say, he was a hell of a trial lawyer.

He did a great job of taking really complicated materials and making it easily understandable and digestible for the attorney. And he kind of fit the part too. As far as what we wear, I think that the balance that we always try to strike is we want to dress up a little bit, like you said, Elizabeth, to differentiate ourselves from defense attorneys and also just the boys in general. I think as women, we get to play a little bit more with color or fabrics or between pantsuits or dresses. I think we get a little bit more freedom and expression in our clothes, but it’s also a really delicate balance of not overshadowing the case. I could have a really cute outfit that is totally court appropriate, but if I have a really somber med mal or wrongful death case or something like that, maybe I keep the colors at home, like trying to fit the mood a little bit.

I’ve never had anyone insult me or say that they voted against me. At least not to your face. At least not to my face.That’s very important. They’ve never said anything to my face. But I have had jurors come up and say, “That thing you wore on Tuesday, I remembered it. I had a male juror come up one time and compliment my earrings.”

Katie St. John:

Attention to detail on that, man.

Elizabeth McNulty:

So I mean, it is astounding the things that jurors will lock in on and remember. And it is a little bit of an art. It’s knowing who your audience is and also just I think trying to find things that you feel comfortable and feel yourself in. There’s some women I know that they are most comfortable in a navy blue pantsuit, and that is what they feel is their uniform, and that’s what they want to wear, and they don’t want to have to think about anything else. And while I personally have a different approach to fashion in the courtroom, if that’s what you’re comfortable with and that’s what you know you’re going to feel the best doing your job in, then that’s what you should go with. That’s what you should wear and sort of random, mean fashion police jurors be damned. But sort of going to the second part of your question about what clients wear, that’s always a really interesting discussion.

And obviously Cardi B is not the typical litigant being a public figure and also someone who I think she’s very well known for fashion choices. If I’m her attorney and she shows up wearing a $10,000 Valentino suit, I don’t know if I’m going to necessarily bat an eye at that. Is she going to show up with a suit that she got at Anne Taylor? No, I don’t expect that from Cardi B. The jury doesn’t expect that from Cardi B. But if I have just a regular person off the street, even if they may come from a lot of money, you should take the opportunity to talk to the client about not being too flashy. And I’m thinking about, this was not my client, it was another attorney I know. They had a client who wanted to wear big jewelry, all the diamonds that they had, that’s what they wanted to wear to court.

Well, it’s tough to say that you are out a bunch of money because it wasn’t a personal injury case. It was a contract issue. And if you’re going in and saying, “I’ve been irreparably financially harmed. By the way, I just crawled out of a diamond mine.” I think that’s a hard argument to make and the jury’s going to notice, especially you’ve got jurors who, if you’re making minimum wage or you’re unemployed and you’re getting that little pittance that you make for jury duty, and then someone shows up wearing enough jewelry to cover your rent for the next four years, and then they’re asking you for a lot of money, that’s really out of touch. So I think that when we talk about client overdressing or being too much, it depends on the client and it depends on the case too.

Katie St. John:

It’s just a whole nother part of being a trial attorney that I can honestly say in law school and shortly after graduating law school, never, ever thought I would have to give much thought of. And I don’t know why, if it’s just like you, until you’re in this situation, you don’t think about it. But I think Liz, what you were saying where there was the defense attorney who wore the same suit when I was talking about the first trial team that I was on and that the head attorney of the team said he went between two suits, it was going to be a four week trial and he was only going to wear two different suits. I mean, maybe he has multiple of the same suits, I’m not really sure, but he didn’t change that. And it was like because he felt like he didn’t want it to be, he didn’t want the jury thinking like, “Oh, what am I going to wear this next day or for it to be a distraction?” And I think that that’s also where you’re saying the juror study that the brown shoes were heinous.

It’s so interesting because I feel like as lawyers, when we’re trying the case, we assume that everybody is engaged as we are on the granular details of what’s coming out of our mouth or the witness’s mouth. But in reality, maybe they’re so distracted by your ugly shoes. They’re not listening to anything you’re saying, so that’s why you lose. I mean, of course, with Cardi B being on trial, there was a lot of buzz around what she was wearing. I think that’s to be expected. But kind of shifting gears a little bit. So this trial lasted nearly two weeks. I know that does sound like a really long time, but when it was time for jury deliberations, the jury took less than an hour to come back. And in this case, all 12 jurors voted in Cardi B’s favor. So she was found not liable for any of the claims against her.

So I kind of want to dive into the specifics of the trial a little bit. And the first one I wanted to just kind of discuss, there was a few evidentiary issues that the Cardi B trial really highlighted. And I feel like as plaintiff’s lawyers, this is something that we have to pay particular attention to as we carry the burden of proof. So for example, in this case, the plaintiff who was claiming her face was scratched so badly that she had a scar, she didn’t really have any photographic evidence of this injury. And I feel like in this case, after doing my research and watching some of it, it could have been ultimately detrimental to her case. And I can understand this critique, especially for those serving on this jury. If you’re going to award someone money for a physical injury, you kind of want to be able to see it.

But as we all know that that’s not always possible. And so how have you guys had this come up in your cases? And if so, how have you handled it?

Elizabeth McNulty:

Can I ask a question about the scar first? Yeah. Because that may affect this photographic evidence, but she said that she was scratched so badly that she had a scar on her face.

Katie St. John:

Yeah.

Elizabeth McNulty:

I mean, I’m assuming she’s sitting in the courtroom for two weeks.

Katie St. John:

Could not see it.

Elizabeth McNulty:

You can’t see it.

Katie St. John:

I mean, I wasn’t there, but of all the videos I’ve seen, I’ve not even seen like, “Oh, I can kind of tell it used to be right there.” I mean, and some of this is this scratch, it happened in 2018 and now it’s 2025, and we’re going to talk about potential time lapse with preserving evidence, but you would think, especially because it was on her face, that you would be like-

Elizabeth Lenivy:

Yeah, I mean, it’s probably why you wouldn’t pursue a case over a scratch in the face generally. I’m not sure if this was against a regular person, if this is a case you would take because what are the damages?

Katie St. John:

Well, if it was a really big scar on your face-

Elizabeth Lenivy:

You would hope you’d still be able to see it, right?

Katie St. John:

Yeah, yeah, yeah.

Elizabeth Lenivy:

And if you can see it at the time, you need to take some photos.

Katie St. John:

Yeah. But I think that kind of gets into, right, sometimes clients come to us and when a situation happened or an injury happened, they never intended for this to end up in the court of law. They never intended that they were going to have to prove how this injured them. And so that’s where I feel like as plaintiff’s lawyers, you get someone, they come to your office and they are, it was shortly after the incident happened, then you’re able to kind of guide them through that. But sometimes that’s not the case. Sometimes you get a case and they’re like, “My statute blows in six months. Can you help?” And then there was a year and a half where nothing was documented.

Elizabeth McNulty:

Yeah. I think that that’s a situation where maybe, and it’s hard to put it in terms of this particular case, but even if you don’t have photographic proof, you will probably still at least have some sort of medical record. My thought on it is you got to have something in writing, something in a photograph, something visual to show the jury. And I think that that’s why it’s so important. When we talk about photographs, again, I’m kind of taking it away from this particular person and I certainly have thoughts on her alleged disfigurement, but sometimes the use of photographs is important to show the loss. So for example, in wrongful death cases, I feel like it’s really important to show who this person was. Or if let’s say you have traumatic injury that has had a catastrophic impact on someone’s life showing what their life was like before.

And then that’s what photographs are used for. And that drives the point home of this negligence, whatever this harm was, has taken this person’s life away or greatly affected this person. And I think kind of bringing it back now to this particular case, if you’re alleging a disfigurement, especially a disfigurement on a part of the body that the jury is going to be staring at your face for multiple days, you better have something that supports that if it’s not literally … If your face isn’t at Exhibit A, you better have something else to support it. And maybe again, I’m commenting a little bit on Ms. Ellis’s case, but clients with legitimate cases almost always come to me with photographs or videos. They know something’s wrong and they have taken it upon themselves, especially with smartphones. We all have a camera in our pocket. There’s no reason to not document that.

So I think it speaks a lot to what the legitimacy of this case was if she had no photographic evidence. And again, as a plaintiff’s lawyer, that is a case that regardless of who the defendant is, I don’t know if I’m going to be taking that. If you can’t show me something, a medical record, a photograph, a video,

Literally your own presence, that’s just not something that I think is worth pursuing.

Katie St. John:

So if we just, for hypothetical sake to bring us all back to our law school days, I think like you’re saying your face, if you’re going to allege an injury to your face, you would hope that the jury would be able to see it. But if it wasn’t to your face or if it was a physical injury, like a broken leg and there’s not a whole lot, you’re not taking a ton of pictures of just your broken leg because just maybe not that catastrophic. I mean, do you think in order to present a case to a jury, you want physical evidence, like photographs every single time if you’re alleging a personal injury case?

Elizabeth McNulty:

I don’t think you need it necessarily every single time, but I think it certainly helps. And your example of a broken leg, you got an x-ray, throw up an x-ray and we can see, maybe we can’t see it from the outside, but once we get that x-ray up there, I can see where that complex fracture happened or whatever. But I’m also thinking now about the importance of physical visual evidence. And I had a case a couple months ago, Elizabeth and I tried a slip and fall a couple of months ago where our client suffered a really horrific break in her ankle. She had a pretty significant surgery. There were rods sticking out of her leg to basically hold it in place while she was healing because she had undergone such a huge orthopedic surgery. And we showed those pictures and that got a reaction out of the jury because it is really difficult to see.

But obviously now, several years later when we’re finally getting to trial, she’s walking. She doesn’t have those rods sticking out of her leg, but what she does have now is a really noticeable difference in her ankles. And so I had her, with the judge’s permission, get up and show the jury. She lifted up her pant legs and she was like, “This is my uninjured ankle. And then this monster over here is my injured ankle.” So even though I’m walking, you can see how swollen and still disfigured it is. She hides it, but I thought it was really important and the jurors notice.

Katie St. John:

I think that’s a risk you always run though. I mean, no matter how great your evidence is, it might just not sit well with all your jurors.

Elizabeth Lenivy:

I think it’s especially helpful to have treating physicians give testimony in instances like that. I think jurors find them more impartial and so we’ll believe what they’re saying if they don’t love your client or maybe don’t want to believe what they’re saying, they’ll listen to a doctor that treated them, performed surgery on them, whatever. And that goes a long way, especially in the absence of maybe some more physical evidence.

Katie St. John:

And I also think that something I’ve learned regarding photographs or videos is as soon as I meet with a potential client, it’s one of the first things I discuss just so that I understand what may already exist in terms of their photos or videos and make sure that I help them take the necessary steps to preserve those and whether it’s putting them on a flash drive or in a specific album on their phone or what have you. Like you said, Liz, I mean, we all have a camera in our pocket, but to that same extent, not everybody, maybe their iCloud crashes or whatever it may be. So you’ve got to help navigate that detail with them because sometimes they’re not thinking about how to preserve evidence when they’re trying to heal from whatever happened to them. So something else that we kind of touched on is this whole time lapse.

I know my husband makes comments all the time like, “When did that happen?” And I’ll be like, “Oh, that was in 2020.” And he’s like, “It’s 2025. Why is the case just now getting tried?” The time lapse and when we get a case or when somebody was injured, that’s just not something that we can necessarily control. But what do you all feel like is helpful as a trial lawyer to kind of deal with the timelapse of when an injury happened and when a case gets to trial or what should we not do? Any tips for our listeners on this?

Elizabeth McNulty:

I mean, I think partially we have to recognize that some situations are out of our control. We’ve got a five-year statute of limitations for non-med malpersonal injury matters in Missouri. And I have had occasion where someone comes to me and the statute of limitation is about to run and I have no choice but to file it, but we’re almost five years out and then it’s going to have to run its usual course of two years or whatever to get to trial. And at that point, now we’re seven years out. So partially recognizing that sometimes it’s a situation of circumstance. But the thing that I am a firm believer in, and I think we have all been trained to treat cases like this, is to get a scheduling order as soon as possible. And as I tell clients when I explain what a scheduling order is and why I’m pushing for one early in a case, it’s to hold everyone’s feet to the fire, otherwise people are going to be dragging their feet.

And when I was a young lawyer, I noticed that sometimes there are defense attorneys who will take advantage of that and just let things drag, let things drag. For plaintiff’s lawyers in particular, I think it’s important to get those scheduling orders in. And the thing that I tell judges that I think really resonates with, because sometimes I’ve gotten some pushback from judges about, “Well, we’re so early. Why do we need to have this? ” And I go, “Judge, again, I just want to make sure that everyone’s on the same page about when things are due. We are just keeping this case moving. I want to make sure we’re not stalling out. ” And then sometimes if I really have to pull out the big guns, I love the phrase justice delayed is justice denied. And so the further we delay this, the only person who was harmed by it is my client, and it is my responsibility to try to get this thing moving.

And I feel like judges hear that and they’re like, “Okay, all right. Even if I can’t give you a trial setting, here are some deadlines to make sure you’re getting discovery, you’re getting depositions, you’re getting experts taken care of. “

Katie St. John:

I had that happen in a case recently where I had asked for a trial date and then so that I could work backwards to put together a case management order and have those deadlines. And the judge told me that she would prefer if I wait to come back until the next status after all of the basically fact witnesses had done, were done with their deposition.

And I get that, of course, because I think it’s also a situation where sometimes we have lawyers who, for whatever reason, maybe pick a trial date that’s not a legitimate date, or you pick a trial date and things happen in the middle that you weren’t expecting, and so things get delayed. So I get that, so that you’re not canceling or giving up trial days for cases that aren’t ready. But the only thing I said to her, I said, “I totally understand. I’m happy to do that. All I ask is that when I come back for a trial setting and the defense wants to say, well, we need a year and a half, I’m going to say a good chunk of our discovery and depos are already done. We’ve pretty much got experts and we should be well on our way. And so I’m going to ask for just a tighter trial schedule.” And she was like, “Absolutely.” And so sure enough, I came back and I asked for my trial date and that’s exactly what happened.

The defense attorneys tried to ask for another year and a half out and she was like, “Nope, that’s not going to happen.” And she gave me the date that I asked for and that was what it was ultimately set. But that’s a really good point.

Elizabeth Lenivy:

Yeah. So more rural counties in Missouri, you can’t get a trial setting unless everything’s done, which is really frustrating because the defense lawyers know to just continue to delay and it just makes our jobs harder. So I wish they didn’t do that, but it is just kind of something that we’re up against. And you can at least try to get a scheduling order in place without a trial date in those situations, but it’s annoying for sure.

Elizabeth McNulty:

I think judges like scheduling orders too, because then that means that we’re not running back up and bothering them every time we can’t get a deposition taken or every time we can’t get discovery responded to, there’s deadlines in place. This court entered these deadlines in place to keep everyone accountable and keep everyone fair. And so I’ve never had a problem getting a scheduling order where I run into issues sometimes as getting trial setting. But I’m thinking about one judge in particular, and this was not in Missouri, it was out of state, but in a rural venue. And every 90 days, he made us come back and do a conference with him because he wanted to check in on us. And every 90 days at the conference, I would ask for a trial setting and he never gave me one. He goes, “Well, we’ll see you at the next conference.

We’ll see how the next conference.” I think I went to three or four different conferences where I said, “Judge, how about now? How about this time? Please, please?” And every time he told me no. And luckily we ended up getting that case resolved, so maybe the judge knew that, maybe he was predicting it. I don’t know. It worked out, but it was really frustrating. And it was even more frustrating when I had to go back to the managing partner and say, “I still don’t have a trial setting.” She goes, “Did you ask?” I go, “I am on my knees. I am begging for a trial setting. He won’t budge and there’s not much else I can do. ” So that is frustrating. But again, we live and die by scheduling orders as far as I’m concerned. Deadlines, attorneys love deadlines.

Katie St. John:

Or asking for an extension to the deadline. They love that too.

Elizabeth McNulty:

Yeah. Yeah. Look, it’s a goal.

Katie St. John:

It’s an aspiration.

Elizabeth McNulty:

Right.

Katie St. John:

But I mean, something that as lawyers, we understand the real potential problems that may arise when we have a case that happened many years before the trial occurs. But from a juror’s perspective, they’re not all savvy to the litigation process. Maybe they’ve never been involved in that. So I guess my husband always says, “Why does this take so long?” Have you guys ever … I mean, whether it’s in an opening and you talk about this happened a long time ago, I mean, is that something that you try to get ahead of? Have you ever dealt with that issue so that the jury understands … I mean, maybe they don’t understand all the ins and outs, but why there is a delay and maybe that explains why there’s not photographs or …

Elizabeth McNulty:

I don’t know if I’ve ever used it to explain why there isn’t a photograph. I think it’s more just sort of explaining that this can be a long process because the problem is, again, from our side, is the further away you get from an injury, the more remote that injury becomes, the more normalized your plaintiff becomes your client. We say this all the time, it’s their new normal. And when someone’s gone back to live a completely normal life, that sometimes that’s all the jury can focus in on and they’re ignoring all of the years and hard work and hours and tears and frustration that went into trying to get back to some base level of normal. And sometimes clients a little bit, I think they can forget because it’s kind of a coping mechanism for them. So is it something that I address that the litigation process can take a while?

It’s more so in terms of saying, “Hey, I’ve lived to this case, my client’s lived at this case for years. Obviously you all are new to it, so we’re going to try to get you caught up.” I try to frame it more of that way, but I think that there is a general public understanding typically that the wheels of litigation and justice are slow.

Katie St. John:

All right. So for the real fun of this Cardi B trial, which I’m sure a lot of clips that you have watched was the cross-examination of Cardi B. And for those that have not seen it, I would strongly encourage you just to watch a clip or two. You might find yourself hooked to live trials like myself, maybe not though, but this cross-examination was on display for the whole world to see if they wanted to. And I’m pretty confident that both attorneys in the courtroom were aware that the trial was being televised, but given some of their conduct and the comments that they made, maybe they forgot. So as an attorney, We’ve talked about this plenty of times. Your credibility, your reputation is everything. And so I want to just focus in on a specific interaction that happened in this trial and then I’d like to open up the conversation with you all to get your thoughts.

So during the Cardi B trial, while Cardi B was on the stand … Let me backtrack for a second. I felt like, and Liz, you touched on this earlier, your clients, you’re not asking them to change who they are or what they stand for to come to this trial. Maybe we navigate certain parts of it, but you don’t want them to change who they are. And I felt like Cardi B watching her on the stand is exactly what I would expect of her. I don’t feel like she was trying to be anything more or less because she was on trial. I just feel like it is who she is. Cardi B’s on the stand. Amani Ellis’s lawyer is doing cross-examination and he says to her, “Yesterday you had black short hair. Today it is a blonde and long. Which one is your real hair or are they both real?” I believe there was an objection lodged to relevance, which fair.

Cardi B responds though, “They’re wigs.” And the plaintiff’s lawyer says, “It’s a good wig today then.”

Elizabeth McNulty:

The implication yesterday’s was a bad wig. Okay.

Katie St. John:

It is so bizarre. And also it’s kind of awkward. I got secondhand embarrassment watching him. I’m like, “What? Where are we going with this? ” But I think I can just go out on a limb here and say generally insulting the physical appearance of whoever you’re examining on the stand is probably a no, just a no-go.

Elizabeth McNulty:

Yeah.

Katie St. John:

But cross-examination can be crucial and you can win a lot of really good points in your case. So again, it’s just a fine line. So I mean, in cross-examination, I know nobody in this room is insulting anybody’s physical appearance, but how do you best handle some of your adverse witnesses and what kind of points do you draw on during a cross?

Elizabeth Lenivy:

I think you have to read the room and kind of take the witness with what they’re giving you. If it’s a real, nice, soft-spoken person and you’re crossing them, you can’t be all antagonistic or you’re going to look like the bad guy. But if it’s someone who is antagonizing you, I think that is the area where you can get a little bit more, I don’t know, what’s the word, adversarial and still get your point across that way and be a little bit more aggressive. But I really think it’s important to read the room, read the reaction of the jury if you can. I mean, if it’s a party, I think you should maybe already have a feel for how they feel about that person and don’t make any enemies.

Elizabeth McNulty:

Couple of thoughts, starting with the question itself. And the thing that struck me or what my immediate thought was when I saw that line of questioning and cross-examination was, this is why it’s so important to have women on your team. Yeah. Because I think if he had run that question by any woman, she would’ve immediately said, “They’re wigs. She’s wearing a wig. Oftentimes women will wear wigs.” I mean, it’s hair extensions. Women can change their appearance pretty easily. We’re notoriously good at it. So that is, I think, an example of that’s a man who asked a question probably thinking he was being clever, but had he talked to someone of a different background than him being a woman, he would’ve known not to ask that question. So that’s one. But the other thing you brought up, Katie, was this idea of attacking someone for appearance.

And it made me think of a story where I was quasi accused of attacking someone on their appearance, specifically their weight. It was a case involving a slide a couple years ago. And what was very important that I thought was that the people that were being injured on this slide were, it was two women and they were approximately, they had both been injured in very similar manners on this slide and they were approximately the same height and the same weight. And the defendant had argued, “Well, no, the slide is safe. And we know that because I tested it, one guy tested it, and then the designer of the slide tested it. ” But what I thought was critical was that these guys were both about the same height, same weight, much taller, much bigger than these women. And I was cross-examining one of the corporate representatives for the company who had tested the slide and I had asked him, “What’s your height and your weight, sir?” And he made a joke about, I was calling him fat and it got a good chuckle out of the jury, which I hate.

I hate it when I’ve given the witness, I’m cross-examining an opportunity to be funny. That was the other thing I think this particular plaintiff’s lawyer really screwed up with is that he gave Cardi B tons of opportunities to make the jury laugh to get them on her side. And she is a very funny person and she’s really good in front of crowds. So you kind of got to know who you’re up against a little bit there. Ask short, tight questions, keep it professional. This is not the haha comedy hour. But that aside, the witness in my particular case, after he made a self-deprecating fat joke that the jury was yucking it up with him, and I didn’t laugh. I made it an intentional decision when I was closing to say, “Hey guys, I know that Mr. So- and-so, when he was up on the stand and I was cross-examining him, he thought I was making fun of him for his weight.” And I know a couple of you laughed and I just want to be clear because the other thing too is you don’t know who’s going to be sensitive about it.

Katie St. John:

Yeah.

Elizabeth McNulty:

And I got to imagine in this Cardi B case, if there are women, especially women who wear wigs, are you saying that I’m deceptive and a liar because I wear wigs or are you calling my mom or my wife or my sister for maybe the male jurors, they’re deceptive or liars because they wear wigs? You got to be very cognizant of that. So in my trial, I was very clear during closing, I’m not making fun of him because of his weight. I’m not trying to mock him. What I was trying to do is explain why he could not take his body and say that because he could safely navigate this slide, that my client who is eight inches shorter and a hundred pounds lighter, that she could safely navigate the slide. That was the point I was trying to make. And luckily it worked out in my favor there, but it’s something that when you ask the question about not attacking someone’s physical appearance, absolutely, you never attack someone’s physical appearance, but their physical appearance could be relevant in another way.

And I think you have to be so sensitive and make sure the jury understands that you’re not being a bully about it. You are being a smart advocate about it.

Katie St. John:

So Elizabeth, I think that you also made a point earlier about if somebody is soft spoken, maybe you change the way you go about your questioning to kind of match their tone. But I think it’s an interesting dynamic that has come up for me as a female trial lawyer. Whenever we are making strategic decisions about what type of witnesses I might handle versus my male counterpart in a trial, that is something that we can take into consideration and make decisions about. But it’s something that you can use to your benefit and as a part of your strategy. But like you said, this attorney that was questioning Cardi B maybe failed miserably at realizing who he was examining because I think part of the problem with this wig questioning it, as funny as it is, it’s like what you said, it’s kind of rude. You’re a man.

Maybe you don’t know what that is. I don’t know if that was a genuine question or if you were mocking her or what, but it came off as just like he was kind of tone deaf to who he was talking to.

Elizabeth McNulty:

At best, it was stupid. At worst, it was bullying and rude and probably sexist and probably a little bit racist too, if we’re being honest. So it was a dumb question. It was an unnecessary question and you really run the risk of offending the jury when you ask something like that.

Katie St. John:

And the other thing that was in this cross-examination was a plethora of objections. I tried to count how many times Cardi B’s attorney objected during her cross-examination. A lot of them were sustained a lot. I don’t have a number, but I didn’t get there. But I think that’s also another strategy point in terms of choosing when you object and choosing when not to object that this attorney … I mean, it’s kind of annoying, right? Cardi B was clearly handling herself on the stand. So that’s another point if you all decide to take me up and watch the whole trial.

Elizabeth McNulty:

I know what you’re talking about, because I saw some clips of that as well. And I think objections are an art when you make them and if you make them, because there are some times where you might just let an objection go, especially I noticed when we’re trying to get through someone’s background, we ask a lot of leading questions because we just want to get through it. We want to establish who they are and then move on to the thing that actually matters in the trial. So there’s a lot of leading questions. You could object, but we often don’t. Part of the strategy in not objecting is because you don’t want to piss the jury off. Even if your objection is correct, you’re going to have the jury being like, “Oh my God, just stop talking. Just let us get through this. ” But the other side of it, which I think Cardi B’s attorney handled correctly, and I would say that I would handle it the same way, which is when someone is asking bad questions and you know you are legally correct, you know the court is going to sustain your objection, then objecting and cutting off the other attorney.

And then when the court sustains it, now the jury’s getting pissed at the attorney who’s asking legally bad questions. I think it also shows that you’re standing up for your client, and it’s also a signal to your client of like, “I’ve got your back too.” So I don’t think there’s any hard or fast rule on objections. You kind of have to play it based on what’s the vibe of the courtroom, what’s the energy in the courtroom, how is the jury responding, how is the court responding? But I mean, when I was listening to the … I felt maybe I’m reading into it too much because I’m a trial lawyer, but I felt like I could hear the exasperation in the court’s voice when they would say sustained. I think the defense attorney handled that the correct way, if there is such a correct right or wrong way.

But I do think that he did the right thing there. And again, it kind of goes back to just cross-examination 101, which is you should … Not that you can’t ask any potentially objectional question, but you want to make your cross-examination hopefully objection proof and also you want to know the answers. You’re there to make short declaratory statements, get in, get out, sit down, stop talking. And I think that that cross-examination is probably … I mean, this is not a hot take, but that cross-examination is an example of what not to do.

Katie St. John:

I agree. Cardi B, I said it, jury verdict in her favor. And I said this earlier too, but being a trial lawyer is great. I love it. It’s so fun. And also watching live televised trial is fun. So maybe more of my conversations will be about televised trials. Who knows what’s to come. All jokes aside, there are always things that we can learn from and important discussions to have, and that includes making sure that you are not bullying your witnesses. So with that, thank you so much for joining us today. Remember, new episodes drop every other Wednesday. If you would like to contact us, you can reach out to us at heelsinthecourtroom.waw. Thanks so much.

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