Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Flashlight

What do I mean when I say the witness should treat cross-examination questions like a flashlight in a dark room? I mean that the questions are designed to shine a light on some things and to purposefully leave other things in the dark. Imagine, for example, a series of questions designed to show a hotel room is unoccupied: The TV is off, right? The luggage is gone? There’s no one in the chair? And there’s no one in the bed, all true? These may all be true, but what are they leaving out? The bathroom door is closed. The room’s occupant is still there. The claims made in the questions are all true, but they’re purposefully incomplete. They are selected and designed in order to tell the examiner’s story, not your own. I have used this analogy before, in a post focused on the selective nature of memory, but it also applies to the selective nature of questioning. 

A self-protective pattern of responding to these selective questions requires more than just saying ‘Yes’ to what is true, and more than just confirming what opposing counsel happens to be shining a light on at any given moment. A self-protective response requires shining a light on some things your adversary has chosen to leave in the dark. And sometimes it means just turning on the lights to see what’s in the room. I’ve known many witnesses who will say during a prep session, “Well, that’s true. What else can I say other than ‘yes?'” The answer may be ‘Yes,’ but you can and should say more than ‘Yes’ because ‘Yes’ isn’t the whole story. In this post, I’ll use an extended example to highlight the ways a witness can get beyond the flashlight focus of a true but incomplete claim in a question.  

The Scenario

Let’s assume the following. We have a doctor defendant, an emergency room physician. The claim is based on delayed diagnosis of a heart attack. The plaintiffs’ attorney wants to chain together all of the factors supportive of that diagnosis while ignoring all of the signs that were inconsistent with that diagnosis or that point in another direction. A witness focused only on accuracy but not completeness, can end up confirming the plaintiff’s narrative, but a witness who fights back by bringing in the other factors is able to ensure that the testimony is more accurate.  

The Questions

Question

 

Easy Answer

(True but Incomplete)

 

Better Answer

(True and Complete)

 

Ms. Smith was a smoker on birth control, correct?

 

Yes.

 

Yes, she is otherwise in good health, but is a smoker and on birth control.

And both of those, and especially the combination, are risk factors for a heart attack, right?

 

That is correct.

 

Yes, it is a moderate increase in risk, although in a young and healthy woman, that increase would be modest.

Her family history also increased her heart attack risk, correct?

 

Yes, it did.

 

If we had known it, yes, but we did not have access to her complete history in the E.R.

When she presented in the ER, she was reporting pain in her chest?

 

Yes.

 

Yes, she indicated pain but only when coughing; She had a chest cold.

And she reported dizziness and fatigue, also consistent with a heart attack?

 

She did.

 

Yes, and that is also consistent with the cold she was experiencing.

And she was short of breath?

 

Yes.

 

Yes, due to her coughing and chest congestion.

That’s all pretty consistent with a heart attack, isn’t it?

 

Yes, it is.

 

It can be consistent with a heart attack, but it can also be consistent with a variety of other conditions, including the chest cold we knew she already had.

Of course, there is something to be said for the advice, “If the answer is ‘Yes,’ then just say ‘Yes.” However, I’d argue that this tends to be a good practice only for pro forma foundational questions or other questions that are purely attempts to gain information. When the other side has any strategic or argumentative purpose to the question, then it’s best to assume that just giving a “Yes” to what’s in the flashlight’s focus is going to be incomplete. Better to turn on the lights. 

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Other Posts on Witness Answers: 

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