Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

God is Love
Love is Blind
Stevie Wonder is Blind
Therefore, Stevie Wonder is God

That’s an exaggerated version of a kind of fallacious thinking that is often used in witness examination. It is a form of the “transitive property” in logic, If A=B, and B=C, then A=C. This idea, however, is rarely successful in making the transition from the absolute terms of mathematics or formal logic to the more relative terms of human language. But that doesn’t stop examining attorneys from trying. For example, a version of this equivocation in a questioning strategy might go as follows:

In an emergency room, you have to treat signs of a heart attack seriously, right? (Yes).

And you have to prioritize a possible heart attack over other illnesses, right? (Usually, yes)

And a headache can be a sign of a heart attack, right? (Yes, it can be)

So when a patient presents with a headache, the priority should be on heart attack treatment, right? (…No, not really)

Answering these question chains can be tricky because each statement might have some truth to it on its own, but when they are strung together with the nuance omitted, it leads to an unjustified conclusion. This is a situation where the witness needs to understand the tactic and to push back. Pushing back means being thoughtful, being precise, drawing distinctions, and — most of all — relying on your words and not theirs. In this post, I will look at how the witness ought to respond.

The solution requires a capable and empowered witness. That won’t be every witness, but in my experience, it will be many witnesses. Anyone who can critically understand the focus of the adversary’s question and can draw some reasonable distinctions in their own words, ought to be able to poke some holes in the oversimplification that this strategy depends on. In looking at the examples, let’s start with Stevie and then move to the more serious example.

For Fun, the Stevie Wonder Example

Q: You would agree with me, wouldn’t you, that God is Love?

A: God as a construct embraces many values and, for most religions, yes, one of those is Love. 

Q: And you would also agree with me that Love is Blind? 

A: Sure, to the extent that a person might be motivated to overlook some things, Love might metaphorically be Blind. 

Q: And Stevie Wonder is Blind?

A: Yes, not in the metaphorical sense I mentioned above, but in the literal sense that he can’t see.

Q: So you agree with me that Stevie Wonder is God? 

A: Yes. But that’s because of a lifetime of creating fantastic music…not because of that weird thing you just did.

More Seriously, the Witness Examination Example

Q: In an emergency room, you have to treat signs of a heart attack seriously, right?

A: Absolutely. We treat many conditions as serious in an emergency room, and one of those conditions is a possible heart attack.

Q: And you have to prioritize a possible heart attack over other illnesses, right?

A: If there are clear signs of a heart attack, yes, that condition would have priority over most other conditions.

Q: And a headache can be a sign of a heart attack, right?

A: It can be, but it is one of the less common signs. When it does accompany a heart attack, it is nearly always accompanied by other signs of a heart attack, such as chest pain and shortness of breath.

Q: So when a patient presents with a headache, the priority should be on heart attack treatment, right?

A: No, not when a headache presents in isolation. If there are other signs of a heart attack, then sure, treat the heart attack. But if it is just pain in the head, then there are multiple alternate diagnoses that are far more likely.

To resist the tactic of linking together a chain of simplistic statements, a witness needs to not just understand but practice a few principles:

  • Use your own words
  • Resist absolutism: It depends, often but not necessarily, etc. 
  • Embrace precision: Break down general statements into more specific meanings.

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now


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Other Posts on Helping Your Witnesses With Trick Questions: 

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Image credit: 123rf.com, used under license