Dealing with the Evasive Witness
lawyerminds.com
lawyerminds.com
Ty Beard: Look at all these pages, are these all your tweets?
Ron Toye: I don't recall making them, but that's my twitter handle yeah
TB: Are those your tweets?
RT: It looks like it, yes
TB: Yes? Is that a "yes"?
RT: It looks like it, yes
TB: I need you to say yes or no [1]
RT: ... or it looks like it
So this goes on for pages, the frustrated lawyer (who appears to be pretty poorly equipped to handle the situation) being given the runaround by just A Guy. There is a really funny discussion of this - including more of the deposition transcript - in the ALAB podcast's episode "Weeb Wars Pt 2" @ https://soundcloud.com/alabpodcast/episode-5-weeb-wars-pt-2 (deposition chat starts 28 minutes in, lasts 10 minutes). It even escalates, it's great :D
edit: to be clear, I think the person being stupid in this scenario is Ty Beard, not Ron Toye :D
[0] - arguably Vic Mignona's own general creepiness caused this, but these guys tweeted about that
[1] - he really doesn't
The New York Times did an amazing reenactment from transcripts of the legal deposition
The person refusing to acknowledge what a photocopier is, was Lawrence Patterson. He was head of information technology for the recorder's office, and even after the loss of the case was still working for the county on a salary of $65,000(!).
The lawyer questioning him was David Marburger. He pointed out afterwards that if the recorder's office had just accepted the more reasonable sum of $50 per CD, which the companies suing the recorder's office had offered, they would have made $25,000 -- instead they lost $55,000.
Marburger has said of the video that the emotions were all wrong: "I actually wanted [Patterson] to keep up what I perceived as a charade. Once he chose the path that he took, I didn't want a straight answer; I wanted him to keep it going. That was why I kept pushing over the course of 10 pages of transcript. To me, the testimony became too good to be true. It was perfect."
He also said that Patterson wasn't the slightest bit intimidated in real life.
Marburger used the absurd testimony to win the case, and the court unanimously agreed that they only charge $1 per CD moving forward. -- thunderpeel2001
I remember when it came out, I felt like the Verbatim series was really well done, but it was surprising coming from the NY Times since it was so outside their wheelhouse. It seems like they abandoned it pretty quickly but I wish someone more like Funny or Die would pick up the idea.
I'm sure this attitude would piss off a lot of lawyers, but lucky for you I'm not a white collar criminal, so you don't need to worry about meeting me in a courtroom.
Ditto for verbal communications. I had a call with a lawyer at a vendor once asking me about a conversation I had with a reporter. (Not a deposition.) As I recall :-), my answer was along the lines of I know the journalist in question and have spoken to them many times and I vaguely remember being briefed at some point by the $VENDOR in question on $TOPIC but I have no idea who I spoke with or exactly when it was.
I'd sometimes Google an issue and end up back on my own website reading an article I forgot I already wrote.
All the things that article describes as "evasiveness" are what I'd describe as taking into account the messiness of the world. I mean, I might remember being at a restaurant with people and deciding to go to a show with them. Did I actually go to the show? I don't know, maybe I changed my mind on the way if I have no memory of the show or maybe I did go.
A lot of the article seems about ways to bully people into making "obvious" conclusions, stating things definitely when they are not, in fact sure of their answers and so-forth. And a lot of tactics are about the common sense of language. "Surely you'd remember X if you in fact did it" "Come on, either the situation had X quality or it didn't" etc. In contrast to this intuition, I think there are quite a few studies on memory and language having some inherent fuzziness to them.
Edit: in defense of the parent article, it's writing in an assumed context of professionals operating according to standards. In this context, people have both an obligation and a series of reminders to be exact in their memory of events and the events themselves should be more cut-and-dried. The real problem is someone expects this standard of exactness to carry over to casual human activity (writing, tweeting or socializing).
That's the thing, after all: the guy is obligated to give true answers, not answers that would be convenient for the lawyers. There's no requirement that you make their job easy.
In more adversarial situations such as pitching your manager on a raise, I can see how using many short and closed questions will steer the conversation much more effectively by closing down options for the counterparty to evade. It's very similar to the "yes ladder" used in some sales courses.
I love that this quote sits in the middle of the first section of this lengthy article. The section that says to specifically use more questions rather than fewer (some of the questions are for some reason phrased as statements). The section that is followed by an intro that basically defined what an uncooperative witness is at least three times but in more or less the same words. The irony is so strong I don’t think I need to take my supplements today.
Hmm, avoids the truth, or avoids the answer you wanted?
"The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts."
Witnesses are notoriously unreliable. It's possible these are valid, truthful answers.
"... a curious investigator that's trying to maximize their own knowledge of the truth."
Do we actually have anything like this in the 'justice' system? Lawyers are on sides. Police only investigate to prove guilt, not innocence (most of the time). Judges are basically referees. Juries don't get to investigate, only view what the court allows them to (and society in general has a bias against defendants). In my experience, nobody is interested in the truth.
When your goal is to "discover truth" as Chief Truth Discoverer of the DOJ the only way to audit you is with grander truth discoery.
You could use things like transparency and metrics released to the public. Right now complaints against the judiciary and many other positions in the system are considered so secret that they wont even release them if the contain exculpatory evidence. The reasoning is that the secrecy is necessary to preserve public trust of the system, and the system itself is more important than any individual's rights or justice. We could evaluate the complaints, wrongful convictions, etc to create better procedures and policies to find the truth.
The adversarial system is supposed to produce the truth in a fair fight. In my opinion, the system does not allow for a fair fight. Usually the party with the most money can win. There is a lot bias that exists as well. The people in the system continue to grant themselves more privileges that those not part of the system.
The system even situates itself to where it costs more to defend ones innocence than to just plead and pay a fine. One cannot say that our system provides truth or justice when it allows this to occur.
I used your comment as a jumping-off point for what I thought was an interesting question about whether this adversarial approach should be extended to other areas.
I don't blame you for assuming I was trying to say you're wrong about something -- usually people are trying to argue! I just wanted to shift focus because your comment made me think about something related, yet on the other end.
Even in the more inquisitive role, they aren't actually investigating anything - like finding new info or evidence.
Aren't there things like children's advocates in family court? Review boards at every level who check up on accusations against lawyers/judges/etc.?
I'd venture to guess there are dozens of such entities sprinkled throughout the legal system.
"Review boards at every level who check up on accusations against lawyers/judges/etc.?"
Do they? Do they actually do anything? I have experiences with these and they were mind blowing if you come in thinking they're about justice. Don't forget, they keep these secret because they want to protect the system, even if it means sending an innocent person to prison (no requirement to turn over exculpatory evidence even if subpoenaed). The Bar won't even investigate misconduct by prosecutors unless the court has already declared that misconduct occurred.
I would really love to hear about one of the dozen or so boards or whatever that could help me right some past wrongs. Because I've gotten nowhere.
Ask me when I first discussed $TOPIC with someone or when I was briefed about $TOPIC or when I talked to a reporter about $TOPIC, I may have a date-stamped note, scrawl in my paper calendar, or an entry in an electronic calendar (assuming I'm still with the same company). But I may also have a vague recollection which no amount of prodding is going to crystallize or just no memory at all.
There's a huge difference between someone saying "yeah, i got no idea", and passive aggressively doing the same constantly becuase they want to be cute.
This is not talking about the person who occasionally forgets something. This is talking about a deposition where everything is a struggle because the witness is being passive aggressive.
The difference is pretty obvious (in most cases) live.
Doesn't help that most witnesses are ambushed by circumstances. They're muddling through life when something untoward came out of left field. And so weren't forming long term memories.
That would be me. I honestly can't ever remember any date / phone number / time / etc without writing it down. FFS I can't even recall license plate of my car.
>"Q. How far apart were your truck and Mrs. Agan’s car apart the accident?
A. I don’t know.
... and it goes on and on"
Yes I do not remember the distance. I can tell that it is probably between 5 and 15 feet. There is no fucking evasion here. Learn to ask correct question instead.
>"Effective exhaustion is the use of simple follow-up questions like the following after each answer:
...
"Tell me more"
... "
I am sorry Mr. Lawyer. I am not here to create stories possibly endangering sides without merit. Ask fucking particular questions.
> I am not here to create stories
Exactly, which is why your response to "tell me more" is to say there is no more to tell. The lawyer needs to know you're on the same page about not creating stories. That way if "more" suddenly comes up in trial, the judge or jury can fairly weigh why you are all of a sudden willing to create stories at trial.
Not my problem. I am not here do the guesswork and tell semi-facts that could be further twisted to advance someone's goal. Learn to ask proper questions. That is one of the things you get paid for.
What better question than the one that directly asks for specific the information that's needed?
Also, depositions are by law conducted the same way testimony at a trial would be, so the lawyer can't herself testify–asking a whole lot of questions is mandatory.
Are you saying you think the lawyer should say "The distance from you to me is about five feet. The distance to the wall is about fifteen feet. The distance to that building you see through the window is about eighty feet. How far away would you say <thing> was?" Because that seems unnecessary when an appropriate answer would be "I don't know how many feet, but about the distance to that wall."
I indeed assumed that from reading the type and style of questions in the article. I do see you point though.
"Can I just tell you anything I like, or is there something in particular that you'd like me to tell you?"
That's part of his boxing-in strategy, I think. As a juror, I think I'd be unimpressed by an examiner asking such an open non-question. As a witness, it would make me angry (which someone up-thread has noted would mean I've lost that hand).
Also, if I'm not sure, then I'm not going to testify under oath that I am sure. Asking me repeatedly is badgering, and it won't change my answer.
https://en.wikipedia.org/wiki/Deposition_(law)#Australia,_En...
As I was beginning to suspect, I didn't understand what a deposition is; we don't have it here. Witnesses make a statement, but they can't be questioned by the opposition pre-trial.
For cross-examination (IE in the presence of a jury), you might ask it differently.
For deposition, you wouldn't.
Deposition is entered into evidence, but when it comes to a jury hearing them, they are usually excerpts.
A. Is this room 25 feet long?
Don't agree to something you have not verified.
Q. If someone showed you photos of the scene would that possibly allow you recollect something about seeing Mr. Smith’s car? (asking if reviewing a document might change recollection)
A. It might implant a false impression that I remember more than I do.
Alternatively,
A. I very much doubt it, but if you think there are pictures that will, show them to me.
If a lawyer took that bait, she might be setting herself up for an "if the glove doesn't fit" moment, where the witness denies that any evidence presented makes a difference to her recall.
An actual perjury charge is extremely unlikely, but the judge the case is assigned to could hold a witness in contempt for persistently refusing to play ball. In reality, though, what the deposing side needs is to know what facts the witness will testify to, or alternatively, to be able to show that the witness can't be trusted. So if they can prove that the witness lied, it's likely sufficient for their purposes to just show that at trial and thereby discredit the witness.
It would be probably more elaborate questions, but you get the idea
"Colonel Jessup, did you order the code red?"
That said, this was really excellent and concise advice. I hope it might be obvious how much preparation time this takes, which is just one of the many reasons litigation is so incredibly expensive on non-corporate financial scales.
As someone on the receiving end of this, it destroyed any trust I had with my parents and teachers. The problem was that I wasn’t lying, but that I couldn’t tell a story in a coherent and linear order on the first attempt.
You need to have good social skills to even pull that off… in that case, why do you need them?
People can "end up" unintentionally evasive(aka confusing) and having a structure and strategy for keeping them on track is key.
I mean, yes if you take it very literally - but why limit yourself? Here's an example of using the "one question one fact" technique for a non-hostile "interrogation" that's almost verbatim from last week:
Colleague (super irate): everyone who works here is a fucking incompetent idiot! We need to fire half our team!
Me: Was there a production problem last night?
Colleague: Yes
Me: did we roll out some bad logic?
Colleague: Yes
Me: Was the logic obviously bad?
Colleague: Yes!!!!
Me: was there a code review that missed it?
Colleague: Yeah
Me: who reviewed it?
Colleague: Bob.
Me: wasn't Bob the reviewer the last time something obvious broke?
Colleague: Yeah...
Me: we should help Bob become a stronger reviewer.
Colleague: Agreed!
Did I interrogate my colleague? Sort of. Was it hostile? Not at all. Did the one fact one question form help him get from "we should fire half the team" to "we need to help Bob"? Yup. Was that a vital recognition to make things better? Yup. Could we have gotten there so quickly if I didn't intentionally structure the conversation? Probably not.
You’re addressing the wrong problem. They are frustrated at the situation, not suggesting a course of action. Acknowledge their feelings (because you probably have the same frustration). Then you can work the conversation around on how to fix the problem. Maybe they see something you don’t. But you’ll never know that with your example.
I get the "make sure they are OK" angle - totally the go-to if someone is seriously distraught or vulnerable.
This was a manager annoyed from perceiving themselves drowning in a sea of incompetence. Helping him go from that to "this is something I can help my team with" was empowering to him as is obvious in the actual example.
You really can't imagine a situation where simply helping someone navigate their own understanding is helpful?
While I am an advocate for mental health now, I’ve been doing everything I talked about for the last decade. Maybe two if you include what I picked up from my parents doing marriage counseling.
> You really can't imagine a situation where simply helping someone navigate their own understanding is helpful?
Here’s my way to address that:
“Yeah. That last deployment was rough. I’m sick and tired of this happening too. What we are doing isn’t effective. I’ve been thinking about this and I have a few ideas. When would be a good time to discuss? I’m free now or we could talk after lunch.”
Now I can have a conversation with someone willing to look at solutions instead of venting.
The point is to take the word soup and turn it into an action. As a manager or someone investigating a problem, your goal is to resolve the issue. Reinforcing the state of emotional whatever is a barrier to that goal.
People tend to segment their thinking based on their role. Validation of “everyone is stupid, except me” doesn’t put you on a good path.
Depending on your relationship with the person, you can defuse things any number of ways. The goal is to switch them from thinking emotionally to thinking logically. Humor works well.
I’ve said something like this in the past: “Hold up, let’s see if we can fix this before we start executing volunteers. The paperwork just isn’t worth it.”
It's great when someone wants it, but do it often enough or by default and people will start cutting you out of the loop. Because it's genuinely exhausting.
I've been on both sides of this, especially when I did coaching training and then thought I could use it for everyone.
This is a great point and totally agree. It's a little frustrating to have to spell out the entire context of the relationship in this case but people are for some reason eager to assume a context that puts the conversation in the worst possible light rather than seeing "oh yeah ok sometimes there's room for that kind of thing" and obviously you wield the tool with judgement.
One thing I really do appreciate is that some workplaces seem more geared for coaching and feedback than others. I haven't worked at Amazon for example but I understand that one of the reasons it's considered a hard place to work is that it's "not OK" to not want to improve and grow, so you give implicit consent to be coached by working there (obviously there's still room for empathy and handing it well) whereas other organizations (Google) seem to prioritize in-the-moment happiness so there's potential to be missing out on vital feedback for years - I actually asked about this a lot in my interviews there.
Recent example was "we need that person to fill this info manually, because she is communicating with other department". After deep diving with him by similar method, I discovered that opposite is true.
When you go to court it's alway a crap-shoot, no matter how sure you are of your case going in. This is something people with iron clad faith in the legal system should realize. Courts are at best an amplifier of who has the most money to throw at a particular lawsuit, unless both parties are equally matched and are willing to take it all the way to the highest court the courts are not a fair and level playing field. Rather the opposite.
The question in my mind is what a system would look like where lawyers were legally bound to serve "truth" in some way above and beyond their current ethical obligations. The question immediately arises, who is the arbiter of that "truth"?
What got me on this question was this passage from the root:
> If lawyers cared about the truth then there wouldn't be any lawsuits, just mediation and settlements out of court.
But court system rot doesn't begin from the personal moral failings of individual lawyers (except insofar as they choose to participate). The litigants — primarily powerful commercial entities — create an inexorable demand for an unlevel playing field.
That word reasonable is doing an awful lot of heavy lifting here. Reasonable to whom? Seems like it makes the question almost meaningless.