What the other Swifties say about Kerry; and another type of "war story" about Beldar's courtroom cross-examination of one of those Swifties

[ed: Newer, related posts re the so-called "Elliott retraction" are here, here, and here.]

Those favorably influenced by the glowing tributes to former Navy Lt. John F. Kerry at last week's Democratic National Convention may also wish to hear from some of the other veterans who served with him on the Swift Boats in Vietnam.  This video, which is drawing lots of notice in the blogosphere{note1}, is harsh stuff — but very, very simple, and very, very powerful.   So's the text of the Swift Boat Veterans for Truth  website.

On the subject of Sen. Kerry's military record, I've written on my own blog and elsewhere that I don't doubt Kerry's patriotism, and that I genuinely honor his service to his country.  I continue to do so.  I also think it would be a tactical mistake, politically, for President Bush's campaign to attack Sen. Kerry's military record directly. 

However, as I wrote recently in a comment on another blog, there is no logical inconsistency between the proposition that Kerry performed bravely in combat, and the proposition that at least some of his motivations for doing so were selfish, cynical, calculating, and craven.  Personally, everything I've read on the subject — which has been everything I could find on the internet, on both sides of both propositions, including both statements of objective fact and powerful but subjective statements of opinion — has left me inclined to accept both of these propositions.

So, yes, Sen. Kerry served in combat, and yes, he was brave.  But just how brave?  And how does the entire context of his military record, and his leadership as a war protester thereafter, reflect on his qualifications to be our country's Commander-in-Chief?

There's obviously a large chasm between the portrayals of Sen. Kerry at last week's Democratic National Convention and those on the Swift Boat Veterans for Truth website and in its video.  I don't have a military background myself.  I lack the bona fides to offer any unique evaluation, and I certainly don't have the first-hand experience that either the men who were onstage with Sen. Kerry or who are in the above-linked video clip are drawing on. 

So like most Americans, I'm left having to decide — Which among these knowledgeable sets of witnesses do I believe?

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As it happens, I am more than passingly familiar with one of the principal spokesmen for Swift Boat Veterans for Truth, Houston lawyer John E. O'Neill. 

Mr. O'Neill, a Naval Academy graduate, served in Coastal Division 11 in Vietnam and took command of PCF 94 — John Kerry's own Swift Boat — after Kerry's departure.  Mr. O'Neill famously debated Kerry on The Dick Cavett Show in 1971 — the era when Kerry was calling his brother veterans "war criminals" in sworn Congressional testimony.  (Mr. O'Neill, whose swift boat service began after Kerry had already left, is not one of the vets in the video — I presume because the SwiftVets wanted to highlight instead the statements from their members who did have first-hand exposure to Kerry.  He was one of the broad class of soldiers and sailors indicted by Kerry's accusations, however, and while he has long taken issue with Kerry's claims and been a spokesman for veterans who were profoundly offended by them, Mr. O'Neill has never pretended to have personal knowledge of Kerry's actions in combat.)

After his combat service in Vietnam, Mr. O'Neill went on to graduate with highest honors from my own alma mater, Texas Law School, where he'd served on the Texas Law Review and earned the highest grades in his class.  ("Grand Chancellor," that's called at UT; I was also on the TLR and was a "mere" Chancellor, but it was seven years later, so our law school tenures didn't overlap).  Mr. O'Neill was a law clerk to Justice William H. Rehnquist on the United States Supreme Court.  His legal career has been every bit as sterling as his military and academic records would have predicted, and he's now a name partner in one of Houston's best law firms.  By hard-earned and universal reputation in our local legal circles, John O'Neill is not only a damned fine trial lawyer{note2} but also as straight an arrow as you'll ever find.

In fact, I had the unenviable task of cross-examining John O'Neill in December 1992 when he was a witness — not in a political campaign, but from the witness stand of the 152nd District Court of Harris County, Texas, whence he gave expert testimony to support my opposing counsel's claim for "reasonable and necessary attorneys' fees" in a huge securities fraud jury trial.{note3}  I'd never met him before, and I don't think I've met him since, but I was certainly familiar with his background and reputation from many, many sources in the Houston legal community.

Although I could have taken Mr. O'Neill's deposition before the trial, I purposely declined to do so, for I was pretty confident I already knew what he'd say on the witness stand.  Indeed, at the trial, I was entirely unsurprised.  As I'd fully expected, Mr. O'Neill was an extremely credible and formidable witness before the jury.  His testimony — both on direct examination by my opponents and in response to my cross-examination — was absolutely truthful, candid, and fair.  Moreover, he unquestionably was well qualified to give expert opinion testimony regarding attorneys' fees in complex civil litigation.  (These were, of course, precisely the reasons my opposing counsel had asked Mr. O'Neill to be their expert witness on attorneys' fees.)

So it would have been foolish of me to attack his credibility, either directly or indirectly — and I didn't.  Indeed, at the end of my cross-examination, he readily agreed that I hadn't mistreated him.  I believe we shook hands as he stepped down from the witness stand. 

But this kind of witness also presents unique cross-examination opportunities.  Since this was a witness who would tell the truth as he saw it, regardless of where the chips flew, I had the opportunity to point out the chips that, so to speak, flew into my opponents' faces. 

Mr. O'Neill ungrudgingly conceded, for example, that the number of different timekeepers from my opposing counsel's very eminent law firm who'd billed time to this file — I don't recall the exact number, but it was over a dozen different lawyers, and with paralegals included the total was somewhere between twenty-five and thirty — certainly represented adequate, and perhaps even abundant, staffing.  He likewise conceded that although he'd been shown the many banks of file cabinets containing their collective pretrial work product, he'd made no effort to examine those files in detail, and that he wasn't attempting to vouch for the reasonableness or necessity of every task that had been done, every memo that had been written, or every rock that had been turned over and looked under.  After Mr. O'Neill had opined, again truthfully, that for a case of this nature it was not unusual to have — as my opponents did — three senior partners at one counsel table, backed up by a troop of associates, paralegals, and consultants, I asked him whether such a case could also be effectively tried by just one partner, one associate, and a paralegal.  He allowed that yes, he supposed it could — and smiled politely at me, my one young associate, and my one paralegal at our counsel table. 

And finally and most importantly, Mr. O'Neill readily agreed with me that from what he knew of the case, there were plenty of excellent firms in town, including his own, that were well capable of handling this sort of case, and who'd gladly have taken it for the plaintiffs on a pure contingent-fee basis — meaning their actual fee, if the case were ultimately lost, would turn out to be zero.  Because I was well satisfied with Mr. O'Neill's testimony, I chose not to call a controverting expert (i.e., another lawyer) to rebut it. 

And thus, as things turned out, when the jury came back with a defense verdict for my client, it was John O'Neill's own testimony that had formed the factual basis for the jury's answer to the attorneys' fee question submitted as part of that verdict — which was indeed zero, rather than the seven-figure fee award the plaintiffs' counsel had requested.{note4} 

*******

O'Neill and his fellow Swift Boat veterans insist that they're not shilling for Dubya, Rove & Co. — but rather that they're speaking out as veterans, some of them Democrats and some of them Republicans and some of them independents, who are offended by what they perceive as untruths and distortions from Candidate Kerry.  The Kerry campaign and its supporters are already desperately trying to spin the  SwiftVets' video as being partisan, unreliable, or otherwise incredible.{note5}    

But from my own first-hand experience cross-examining John O'Neill under oath, I can say that I fully believe that John O'Neill fully believes what he's saying — and that he's a damned credible witness in my opinion.

I've already ordered Mr. O'Neill's new book (co-written with Harvard PhD Jerome R. Corsi), "Unfit for Command:  Swift Boat Veterans Speak Out Against John Kerry" — which has zoomed to the No. 1 sales ranking on Amazon.com even though it's not yet been released! — and I look forward to reading it when it ships on or about August 15th.  (A free preview chapter is available by email here, although my spam blocker delayed my receiving it.)

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Update (Thurs Aug 5 @ 10:40am):  A blogger whose work I read on a daily basis, Dr. James Joyner of Outside the Beltway, writes (to my considerable surprise) that he thinks the SwiftVets "sound increasingly like lunatics."  I only have personal experience with John O'Neill to go on, having never met any other of the SwiftVets, but "lunatic" is about the least apt description I can imagine for him.  Dr. Joyner, and perhaps others, may be influenced by the fact that Matt Drudge "is continuing to flak" for the Swifties.  Well, whatever you think of Drudge, even a blind pig can sometimes find an acorn — and there was that matter a few years ago when Drudge was first with the story of the blue dress.

Other new links:  Rusty at mypetjawa; Backcountry Conservative; Wizbang; A Time for Choosing; and The Key Monk.  See also the Trackbacks to this post; I thank the bloggers who were kind enough to link to this one.

Update (Thurs Aug 5 @ 2:00pm):  In response to a comment I'd left on Dr. Joyner's blog, another commenter (quoting me only in part) had this to say:

I practice law in Houston, and graduated from the same law school as John ONeill albeit seven years later and without quite the same record he had.

Wow, sounds as if you’re about as qualified to comment on O’Neill as O’Neill is qualified to comment on Kerry.

I think the selective quote was intended to be snarky; at least it was taken that way by another commenter.  But as I tried to make very clear in my original post here, I'm not one of John O'Neill's close friends or partners; he doesn't refer business to me; I owe him no favors.  If we ever do meet again, it will almost certainly be as professional adversaries.  My post described O'Neill's reputation because it was very relevant to my one rather extended and unusual first-hand experience with him.  I would agree that report of my first-hand experience with him is more reliable and meaningful than my report on O'Neill's general reputation in the local trial bar; but both are entirely consistent. 

But it occurs to me that I may have failed to make something else clear in my original post.  Sometimes when people ask me what I do for a living, I only half-jokingly tell them, "I'm a corporate assassin."  On a daily basis, my trade requires me to discredit witnesses, to impeach their credibility, to make them into laughingstocks in front of a jury, if I can.  Unlike, say, Mr. Conason, I can only do so using sworn evidence; and I have to follow the canons of ethics, the rules of evidence, and the rules of procedure.

In the specific trial in which I cross-examined Mr. O'Neill, the parties who had designated him as an expert witness and called him to the witness stand were trying to win an eight-figure judgment against my client.  Mr. O'Neill's testimony in particular was what they hoped would be the basis for a seven-figure award of attorneys' fees.  Had they won the lawsuit, my client would have been bankrupted; it was a "bet the company" case.  Accordingly, on that day, John O'Neill was my professional enemy.  It was my professional responsibility to my client to do everything I could, as a zealous advocate acting within the bounds of the law and the canons of ethics, to discredit John O'Neill's testimony.  Failing that, my duty was to make the best of his testimony that I could.

One means of doing so would have been to attack his general credibility.  If he had been an ambulance chaser, a professional testifier, a scoundrel, then I would have brought evidence of that to the jury.  But he wasn't.  If he were a tax lawyer or a politico who'd never tried a complex civil lawsuit and couldn't speak knowledgeably about attorneys' fees involved in such lawsuits, I'd have brought evidence of that to the jury.  But he wasn't.  If he had gone to a third-rate law school and had flunked the bar twice, I'd have brought evidence of that to the jury.  But he didn't. 

I had first learned of O'Neill's reputation and background when I was at Texas Law School precisely because he had been a star there and had landed a Supreme Court clerkship.  I too had aspirations of clerking for a Supreme Court Justice, and made a point to find out who from my school had done so during the past several years.  (I have a nice collection of nine signatures on polite letters telling me "thanks but no thanks."  One of my fellow TLR editors from the class of 1980 did, however, also clerk for Rehnquist; funny how he's now a partner in a prominent Texas-based firm that's a major fundraiser for Kerry and other Democrats.  I'll have to get Joe Conason to explain that to me, I guess.)  I learned more of O'Neill when I began practicing civil trial work in Houston.  I saw his name on reports of verdicts; I tried cases against lawyers who are now his partners; I tried to find out who the movers and shakers in my town and my profession were so I could become one of them myself.  Again, although I've moved in the same professional circles, I can't claim to have had nearly the success that O'Neill has had; but I could not have helped but have heard about him and his, from people whose judgments I trust implicitly.

Another means of impeaching his testimony would have been to expose any exaggerations or lies that he might have told about the specifics of that particular case.  Here I had a considerable advantage over him, because I'd been working on the case for over four years before it went to trial, and I knew in considerable detail what work my opposing counsel had done.  I was prepared to pounce if O'Neill strayed from the paths of honesty and fairness; but he didn't.

The main point I was trying to make, however, was that I was able to use John O'Neill's credentials and his expertise and most of all, his honesty to score points for my client.  A morally squishy lawyer could easily have evaded my questions or quibbled with me.  A greedy or overambitious one would have seen a clear incentive to do just that — for the law firm who'd named him as their expert witness is among the largest and most powerful in Texas, and it hands out hundreds of thousands, perhaps millions, of dollars in referrals every year. 

But O'Neill played it straight, even though the end result allowed me, in effect, to turn him into an expert witness for my client. 

I had every incentive to discredit O'Neill, but I couldn't.  He had every incentive to fudge his testimony in order to sink my client, but he didn't. 

Does that clear it up?

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Update (Fri Aug 6 @ 4pm):  Kevin Drum posts "A Tale of Two Officers," in which he describes Mr. O'Neill as "the professional Kerry hater who has 'reluctantly' formed a generously-funded 527 accusing John Kerry of being a liar, a coward under fire, and a medal chaser."  In comments on that thread and an earlier one, I've invited Mr. Drum to deal with the facts of Mr. O'Neill's career before assessing his credibility.  I look forward to an answer.

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{note1}Among the bloggers I've noticed commenting on the SwiftVets' video so far, in no particular order, are Mark Levin on NRO's The Corner; Citizen Smash; Blackfive; SondraK; Ace of Spades; Say Anything; AllahPundit; Roger L. Simon; Spoons; PoliPundit; Power Line; Florida Cracker; Ryne McClaren; Little Green Footballs; InstaPundit; Sam Barnes at Redstate; Feddie at Southern Appeal; and Drudge Report.

{note2}As I explained at length in my very first blog post, I do not use the term "trial lawyer" to mean "plaintiffs' personal injury lawyer," but rather a lawyer who actually and regularly takes cases (of whatever sort, from either side) to trial, and then knows what to do there when he gets there.  (The apt if impolite contrasting term used by real trial lawyers is "candy-assed litigator," meaning someone who files or defends lawsuits (personal injury or otherwise), does pretrial discovery, files pretrial motions, postures appropriately — but then inevitably settles before picking a jury.)  Mr. O'Neill is a genuine trial lawyer, and his firm represents both plaintiffs and defendants in civil business litigation.

{note3}I've previously written about other aspects of that same trial here.  If you're insatiably curious for more details about the particular litigants and the issues, email me and I'll send you a link to more information; it's all part of the public record, but just as a matter of taste, I'd rather not put the spotlight on folks who haven't invited it.

{note4}There's some precedent, I acknowledge, to the effect that such an answer from the jury would have been unsustainable on appeal if the plaintiffs had won their underlying case based on the rest of the jury's verdict.  They hadn't, though.  The case was not appealed, and that particular answer ended up being nothing more than, perhaps, a mild rebuke to the esteemed law firm representing the plaintiffs (and a pat on the back for my team) from the jury.  The rebuke doubtless stung considerably less than it otherwise might have because, as I was given to understand, the plaintiffs' law firm had been unsuccessful before the trial in their efforts to convince their very wealthy clients to agree to a contingent fee arrangement — so the firm was paid in full at their regular hourly rates, even though they lost.

{note5}Per my screencap from Google News, the good grey New York Times initially described the video as the SwiftVets' "latest gambit" — but has already toned that down a bit on its website version of the story to read instead "latest tactic."  Heh.  What liberal media?  [ed: the print version, at least as distributed here in Houston, still read "gambit."]

Meantime, I note that someone who enters "swiftboatvets.com" or "swiftboatvets.net" or "swiftboatsvets.org" into his browser — instead of "swiftvets.com" (which is the correct URL) — will find himself redirected to this bit of heavy spin (subscription or annoying commercial req'd to view in full text) by Salon.com's Joe Conason from May 4, 2004.  Gee, now that's a coincidence.  I wonder who paid for those domain-name purchases and redirects.  Obviously someone of high moral integrity.  [ed: corrected URLs per Deb's useful comment below, thanks!]

Mr. Conason's fact-checking skills break down by his third paragraph in the teaser page, where he references "eternal Kerry antagonist and Dallas attorney John E. O'Neill."  Umm, yeah, except he lives in Houston, Joe.  And I think I'd probably be an eternal antagonist of someone who'd called me and the men who served with me in combat "war criminals," pretty much regardless of party affiliation.  If you wade through the advertisements and inuendos, you'll discover another link back to an April 23 article by Conason which manages to distinguish correctly between the state's two largest cities, and then discloses that — oh my God! — Nixon admired O'Neill's willingness to take Kerry on in debate and invited him to the White House!  And even worse, O'Neill has had law partners who are — gasp! — Republicans, and the firm has clients that are big corporations!  Rock solid proof of conspiracy — or could it be ... competency?  Nahhh.

"No doubt it was mere coincidence that O'Neill clerked with William Rehnquist, the controversial conservative who was Nixon's favorite justice and who went on to be appointed chief justice by President Reagan," writes Conason.  Umm, yeah again, Joe, that and maybe the fact that O'Neill was first in his class at Texas Law School (which a few years earlier had refused admittance to young George W. Bush; guess they didn't get the VRWC memo that week).  And you know, I hadn't realized until now that O'Neill's debate on the Cavett show got Rehnquist the CJ spot.   How'd I miss that?  Hey Joe, I think they've got a job waiting for you at the Times!  That should be your next gambit.