As expected, Fumo's defense has gone on the "offensive," so to speak, and has done much more than merely poke holes in the prosecution's case, though they have done that, too.

They've put Vince himself up there to explain everything. And he's gone down the roads anticipated in that last post. He's proudly (some might say defiantly) admitted the secret settlements behind the PECO and Verizon suits, overworking his staffers and putting them on personal duties, and pulling the strings at Citizens' Alliance.

As predicted, he has directed his efforts at arguing what he did was not criminal, or, if it technically was, that he shouldn't be convicted anyway (an argument only made implicitly by references to the merits of political power and boogeymen like Enron, rather than explicitly, which would earn him and his lawyers a sharp reprimand).

Of course, his testimony isn't really the interesting part -- cross-examination by the US Attorneys, likely to begin tomorrow, is the interesting part.

So what's he need to do? Obviously prepare, prepare, prepare. Get his thoughts in order. A skilled trial lawyer can quickly start dragging an unprepared witness around by the nose.

But there's another, counter-intuitive piece of advice: Fumo needs to refrain from having an explanation for everything.

If there's one thing a jury hates, it's a liar. Some liars are dumb, have bad memories, or otherwise expose themselves to inconsistencies and attack. Those are the easy ones to expose.

The smart ones are harder to deal with -- they rarely offer you inherently contradictory testimony, you have to walk them into it. You have to give them enough rope to hang themselves with.

In general, a trial lawyer has a huge cognitive advantage over a witness. Whereas the witness knows what they're going to say in response to a particular question, the lawyer knows where the questions are going. Let's go back to my third Fumo post:

The two "rules" for cross examination are well-known and taught at every law school. Use leading questions only (i.e., questions with a yes or no answer), so that the witness will not have a chance to tell their story again. Do not ask any questions for which you do not already know the answer.

That is the safe option. Do that as a trial lawyer and you will not be sued for malpractice. No one will blame you when your client loses.

Do that in a difficult case -- Fumo has a very difficult case -- and you will lose.

Jurors want drama. They want a fight. Some lawyers and commentators blame television shows and movies for the jury's expectation that the criminal defense lawyer will assault the prosecution's main witnesses, but I believe the situation inherently demands drama. If the witness is calling your client a criminal, you have no choice but to call them a liar and to prove it.

How do you prove it?

Timing.

If you can understand the difference between Humpty Dumpty and Socrates, you can understand the difference between direct and cross-examination. Cross examination leads, direct examination builds.

Like Dennis Cogan and Edwin Jacobs, Robert Zauzmer and John Pease aren't amateurs, and they're not timid. They're not going to stick to scripted leading questions, not going to only ask Fumo questions to which they already know the answer.

The prosecutors are going to lead Fumo, to get him to talk. And talk, and talk, and talk.

Because they want to force Fumo to do one of three things:

1. Appear to be uncooperative. (Liar!)
2. Stumble into a contradiction and then be called out on it. (Liar!)
3. Become a used-car salesman. (Liar!)

The third is the part that most well-educated witnesses -- whether they're doctors, businessmen, lawyers, or otherwise -- fail to guard against.

Sure, everyone gets cagey and defensive when under hostile questioning, particularly when their liberty is on the line. Jurors know that. And they know he's been preparing for this for years. But at some point, a jury will not accept testimony from a witness who appears to have an answer to everything. Not even a politician.

It's certainly Fumo's biggest weakness -- just consider the tape played from the Michael Smerconish show. He just couldn't help himself. I wouldn't be surprised if the prosecutors played that for him, not just to remind the jury, but to see if they can get Fumo to start explaining it away. His liberty may depend on holding back everything he's been for thirty years and coming clean with each and every answer, the first time around.

Can Fumo do it?