> Much wisdom often goes with fewer words.” –Sophocles
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.
I would just like to remind folks that depositions are a hostile form of communication. As many other lawyers can tell you, choosing to adopt these techniques with friends and loved ones will generally be perceived quite poorly. And without an actual judge to force both parties to be there and a fact finder and standard to apply, everyone involved will lose.
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.
It depends on your goal. Depositions are not taken with a judge. It’s great as a method for asking specific, exhaustive, exploratory questions and not letting the “witness” word herself out without at least making it obvious to you. I’ve used it a lot with sneaky suppliers and in general as a method to find truth. With friends a loved ones you should make it much softer and know when to stop. But the underlying conceptual framework is the same.
Interrogating family and friends in these way is inherently hostile because the goal here is to catch people lying. By doing this, you’re telling the other person you don’t trust them.
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.
Like I said, it doesn't have to be hostile. For example, the one fact one question pattern is useful when someone is throwing a messy ball of information at you. They may not be doing it to be intentionally evasive, but it's simply ineffective for helping you understand what they know, so you need to help them along.
People can "end up" unintentionally evasive(aka confusing) and having a structure and strategy for keeping them on track is key.
These techniques only really make sense if you want to make someone say something specific you already know, I strongly assume they even prevent actually finding out what someone really is thinking about or means.
> These techniques only really make sense if you want to make someone say something specific you already know
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.
Here’s what I’m seeing, a coworker makes a statement out of frustration and your decision is to “correct” them. This escalates things because your trying to hammer your point of view through.
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.
Yeah... deposition seems to be for constructing an argument or proving a position. If you don't have a position to prove, I think it's better to work through the emotions and issues a colleague is facing so work can be done more smoothly, since they probably know something you don't.
> Here’s what I’m seeing, a coworker makes a statement out of frustration and your decision is to “correct” them.
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?
Thank you for checking out my website. I’m quite proud of it. :)
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 coworker is a professional and the manager isn’t a psychotherapist.
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.
Acknowledging someone feels legitimate frustration or anger at something that needs to be fixed is not the same as validating what they said.
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.”
You could also have just let your colleague vent and gotten the same basic result unless your colleague is the one in charge of hiring/firing. Personally, you sound tedious to talk with.
This kind of works okay when the other person is agreeing to being coached, but sometimes you want to express something without it being something to be immediately fixed. Because it sounds like you're not hearing the frustration, and skipping a few steps ahead.
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 kind of works okay when the other person is agreeing to being coached
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.
I am working in Business Intelligence/ reporting and this type of questioning is absolutely amazing to give out to juniors. Not because stakeholders would intentionally obfuscate something from us, but because juniors are doing too many assumptions.
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.
So this reminds me of an amazing situation during a deposition for a case involving voice actor Vic Mignona suing some people because their tweets and calls[0] caused him to lose work. So a guy called Ron Toye is being questioned over some tweets and Ty Beard (the lawyer conducting the deposition) just needs to get him to authenticate that some tweets are his:
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
Here's the fuller story: The Cuyahoga's Recorder's Office charged $2 per page... even when it was simply a CD full of documents. That literally meant they were charging over $200,000 for a single CD of publicly available documents. The companies that needed these documents were understandably frustrated. That's why they sued. The recorder's office spent $55,000 of taxpayer's money defending themselves... and they lost.
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 knew exactly what "jargon" the IT worker was going to use, and I've never worked in an office like that. Of course, I assumed he was being pedantic at first. If a lawyer only needs to find a government office worker that has lost his mind to win a case, it's just not fair.
I loved that scene. It features the fantastic but tragically underused John Ennis, most famous for his work on Mr. Show.
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 worked in a place that had two very different machines with two very different functions that used the same colloquial name “Photocopy Machine” and “Photo Copy Machine”. I have to say, I would have been obstinate about which was being referred to in that case if disposed.
Oh come on. If you were any bit cooperative you’d say “yes” or “yes, we have two machine we call photo copy machines, but we use them for different things”
I didn't listen to the podcast, but let me play devil's advocate for a second. For most people, tweets are fire and forget, and they can't remember everything they've ever posted. If a lawyer hands me a binder with 38 pages of tweets, I don't know where he got them. If it turns out a tweet on page 15 was doctored, and I say "yes these tweets are mine", then I just confessed under oath to something I didn't do. In that position I would answer questions in good faith, but I would also never confirm anything under oath unless I was damn sure it was the truth.
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.
Even longer articles/blogs/research notes/etc. I've probably written thousands of them. If someone asks me if I wrote one, especially one that I didn't have final editorial approval over, the best I could probably say in many cases is that I vaguely recall writing something like that and it seems to reflect what I believed to be true at the time.
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 used to run a blog where I just posted helpful articles because my article would be better than whatever else was out there. Think: "Renewing your passport" or the like, but for my country.
I'd sometimes Google an issue and end up back on my own website reading an article I forgot I already wrote.
I used to work for a software company known for it's militant transparency. I'd often come across a technical problem that I wanted to solve so I'd open a public issue on the problem and plan to come back to it a week or two later. Inevitably when I did get around to starting work and ran a search the top hit would be my own public issue.
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.
An interesting style of questioning for adversarial situations. Engineers are usually taught to use very open questions (why/what/who/when/etc) so as to not inadvertently steer the situation to a predetermined conclusions. This is very useful for cooperative situations, such as a team trying to find the root case of some outage so that it can be fixed.
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.
The police and justice system are never your friend irrespective of innocence, anyone with enough money and no infamy can just walk away, get a lawyer always, the justice system is irrevocably broken, don't fight that.
> The advantage of the "one fact – one question" technique is that when a witness "runs", i.e. they try a long non-responsive narrative; the question can be repeated easily again and again.
It's not an absolute principle. It obviously depends on the country, but also on the type of trial (civil, criminal...), down to the particular type of issue being considered and the position of the witness in the dynamic.
In general, in this setting, yes. The English (and thereby American) legal traditions assume a right "to every man's evidence" and depositions are taken under oath.
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.
by other questions that imply that
very simplified example:
have you drove your car from pub? don't remember
were you in a morning at 6 Random street? Yes
5 mins later...
Did you took a taxi? No sir, I came by car
Can anybody confirm that for you? No, I was driving alone
It would be probably more elaborate questions, but you get the idea
>"The witness who “doesn’t remember” or “isn’t sure” about dates, times, distances, or amounts."
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.
The questions are intentionally leading to the conclusion the lawyer wants a jury to reach. It’s intended to be hostile. If you react angrily, that serves the lawyer’s purpose.
"...party you align with." That is a big assumption. I prefer not to align. If for whatever reason I am aligning with party I will of course take that into account.
And lawyers wonder why they are considered lowerer than a subterranean snake's belly when they openly waste vast amounts of people's time to manipulatively build a sophistic self serving narrative....
It doesn't matter why you're doing it. Whether you're deliberately evasive or not, you're not stating facts that answer the question. The purpose of a deposition is to develop a record about the facts the witness can state in testimony. It's a correct question because it demands a specific factual answer.
> 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.
>"you're not stating facts that answer the question"
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.
I'm curious what you think a better question would be, given that in the example, the witness could in fact have said from the outset "I didn't measure, but at least 5 feet, say the distance between you and me, and closer than about 15 feet; say from the wall to the end of the table."
What better question than the one that directly asks for specific the information that's needed?
In this particular distance situation it is simple - tell me approximate distance in familiar way (this is to use size of the room as an example as the person may not actually grok feet) and I will answer accordingly. Do not ask whole bunch of questions instead and call the answers evasive as that lawyer has.
Keep in mind the article is about dealing with evasion. You seem to be assuming that "I don't know" is being seen as evasive, but it's really being assumed because that's what the article is about.
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."
"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.
No, this is a shrewd defense against a witness saying in court "but the opposing lawyer didn't let me speak and only told me to answer their questions, that's why it's not in the deposition".
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.
Q. Okay, then could they have been more than 25 feet apart, say the length of this room?
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.
"Unfortunately, the probability exists that a witness may answer these questions with something other than an unqualified “yes”. The hedging, evasive answer avoids the truth ..."
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.
Exactly. The lawyer/author is presenting themselves in the light of seeking the truth. Maybe they actually believe it themself, but it's not a unbiased view.
"... 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.
I agree, if we are only talking about some official position/office.
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.
I kinda wonder the opposite -- is this "adversarial" approach towards finding the truth, where you've got people assigned to make the best case for different arguments regardless of your personal feelings about it, underutilized in other arenas?
It depends. Maybe I misunderstood you, but you seem to be implying that I am against the adversarial system. I am not.
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.
You're focused on the opposite end. Like, you're talking about the problems of the adversarial approach, but I want to focus on where it could be useful and not used today. Not "you have the opposite position as me."
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.
A number of other developed countries have judges who serve a more inquisitorial role, they're not just neutral referees in the process. Up to you if you think that's better, I'm pretty skeptical of the power of the state so I really don't
I don't know that children advocates are really seeking justice. They are seeking the best outcome for the kids. They also don't do any real investigating or truth seeking.
"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.
Remember that this is geared towards representatives of a corporation, not persons representing themselves. These kinds of answers are almost certainly in a record somewhere.
A record someplace maybe. A record that I have? Often not.
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.
I don't see how this changes much. It's very possible they don't have those details recorded, or if they do they still don't remember them. Then they are just reading off of the notes. The credibly that is often given to notes is alarming. Sure, dated notes in combination with memory is good. But if there is no memory to go with them and no validation process, then it's possible there was a mistake in the notes, yet they treat them as truth.
More times than I care to admit, I'll have some cryptic comment or action item in my calendar notes and I have to go back to the person I was talking with and ask: "What the hell does this mean?"
This person is not saying every person who forgets something is evasive. They are specifically talking about people who are being evasive (IE the facts are known, this person just wants to argue about it).
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.
I was on a Jury for a trial that lasted 2 weeks, dozen witnesses. I came away with the impression that there is what happened, what they saw, what they perceived, and what they remembered. And then memories change over time.
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.
Super duper off topic, but the second period in the second paragraph is in bold and it's surprisingly distracting. Not like "can't bare to read the rest of the article" but it did make me stop and check the source to make sure I wasn't crazy.
Would you agree that one of the standards of safe product design is that the risk of severe injury or death is always unreasonable, and always unacceptable, if it could be prevented or minimized by reasonable safety measures?
That word reasonable is doing an awful lot of heavy lifting here. Reasonable to whom? Seems like it makes the question almost meaningless.
I think this is a fundamental difficulty of depositions: "reasonable" has a really clear and precise legal meaning that does answer "to whom" it must be reasonable, but if I, a non-lawyer, don't know that legal meaning, I am terrified of the consequences of getting it wrong.
Lawyers don't give a hoot about the truth, they care about billable minutes and winning their cases, and if that requires bending, twisting or breaking the truth then so be it. If lawyers cared about the truth then there wouldn't be any lawsuits, just mediation and settlements out of court.
That's the nature of the adversarial system, and the argument (which I agree with) is that it's better to to avoid the idea that there is only one "truth", or at least to defer winnowing down what constitutes "truth" until after all sides have made the case for their own "truth".
I've seen enough lawsuits up close to know for a fact that the truth rarely comes out during a lawsuit. What does happen is that (1) either party's lawyer has incomplete understanding of the case, (2) either party runs out of money before the case concludes, (3) either party folds because the other party can afford to endlessly extend the case and (4) either party settles because the cost of the lawsuit exceeds the settlement. I've seen cases won that should have been lost and vice-versa if it depended on the truth.
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.
Agree that the litigants are a huge part of the problem, but an ethical lawyer would refuse to take an un-ethical case. But the reverse happens, un-ethical laywers goad their customers into suing because they can win the wrong case just as easily as they could lose a right one. For them it's always a plus.
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[ 4.6 ms ] story [ 189 ms ] threadI 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.
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.
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
https://youtu.be/PZbqAMEwtOE
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.
> My friend we....
> lawyer
The police and justice system are never your friend irrespective of innocence, anyone with enough money and no infamy can just walk away, get a lawyer always, the justice system is irrevocably broken, don't fight that.
"Colonel Jessup, did you order the code red?"
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
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.
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 word reasonable is doing an awful lot of heavy lifting here. Reasonable to whom? Seems like it makes the question almost meaningless.
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.