Monday, May 01, 2023

“I Awoke Today And Found…”

"Woke Jonathan Swift."

What Tacopina is doing here is not exactly asking for a mistrial. He knows he’s not going to get it. Hell, he knows he’s lost the case. He’s looking straight on to the appeal. He’s trying to preserve error.

For some reason fiction writers love for trial lawyers to shout “objection!” in fake trials. I guess it makes it seem more like combat. But an objection serves two purposes: it can block testimony that is, basically, a violation of the rules of evidence; and it preserves error.

An appeal is something else everyone knows about but no one but lawyers understand. To appeal a case you have to be able to show there was error in the trial court and you pointed that out but the trial court failed to correct itself. That’s called “preserving error.”
This is instructive because, if I remember correctly, Vinny was such an incompetent trial lawyer he never thought to preserve any error for a possible appeal. So Tacopina isn’t quite a fake lawyer, but he’s certainly walking the line. It’s the footnote I’m interested in.
After Carroll testified that the above-referenced notion of disposing and retraining of all men was a satire, the Court interjected in a manner that corroborated such testimony by stating such notion derived from Swift’s A Modest Proposal. Rather than addressing the subject of men, Swift’s “proposal [was] to ‘solve’ the problem of Irish poverty by killing and eating Irish children. See Jonathan Swift, A Modest Proposal (1729).” Farah v. Esquire Mag., 736 F 3d 528, 536 (D.C. Cir. 2013). That said, if Plaintiff wished to elicit testimony about a three-hundred year old book that did not address the subject matter of her own book, she could have done so on re-direct. It was not for the Court to provide evidence from the Bench to corroborate Plaintiff’s position in a way that suggested to the Jury favoritism of any one party.

Tacopina’s argument is that Swift’s essay was not on “all fours” (another legal doctrine) with Carroll’s book, therefor the judge should have allowed Tacopina to continue to exhibit his ignorance and make his bad argument in cross-examination. Yeah, that doesn’t help, either.

Tacopina is flailing. You almost want to throw the man a lifeline. Almost.

Essentially he’s arguing that he did a terrible job in cross-examination by arguing with the plaintiff about how she behaved during and after the rape, but he should be allowed to fail miserably without interference from the court.

Tacopina has been trying this case as if it were the 1950’s and the primary defense to a rape charge is “she didn’t scream loud enough.”  I’m not sure that’s the error he wants to preserve, but he court record will do it for him.

Meanwhile , his client has abandoned ship and scarpered off to Ireland. Tacopina knew he was going to win or lose this case on his cross-examination of Carroll. He lost it. Now he’s just trying to shore up the fragments against his ruin. And he can’t even seem to do that.
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