How to Detect Non-Answers

How to Detect Non-Answers

Over the past week or so, I’ve touched on the theme of lying.  First, I posted about an interesting question raised over at the Winning Trial Advocacy Tips blog: Should A Lawyer Call a Witness a “Liar” on the Stand? Second, over at my personal blog (Random Thoughts), I posted yesterday about a link at The Art of Manliness blog titled How to Become a Human Lie Detector.

Well, today I wanted to point you to yet another great blog post over at the Winning Trial Advocacy Tips blog: How to Detect “Non-Answers” During Cross-Examination — although these principles work equally well outside the courtroom in everyday life as well.

Here are the “non-answers” as categorized and demonstrated over at the Winning Trial Advocacy Tips blog:

Non-Answer #1: Completely Avoiding the Issue

Q: Does this skirt make me look fat?
A: I love you.

Non-Answer #2: Describing Expected Procedures

Q: Did you request a CAT-scan?
A: It’s normal procedure to request a CAT-scan in those circumstances.

Non-Answer #3: Saying What You Will Do or Hope to Do

Q: How soon will you have the weaponized virus contained?
A: We’re doing everything we can.

Non-Answer #4: Answering a Question with a Question

Q: Did you lock the store before you left that evening?
A: Why wouldn’t I?

Non-Answer #5: Telling What They’d Normally Do in the Situation

Q: Did you check for tire wear patterns?
A: Normally, I would do that.

Non-Answer #6: Describing What Others Did

Q: Did you find any drugs in the car?
A: We found several packages of cocaine in the center console.
Q: No, what did you find?

Non-Answer #7: Guessing or Supposing

Q: Did you read the warning label?
A: I’m pretty sure I would have.

Non-Answer #8: The Speech or the Argument

Q: I’ll ask for the fourth time. You ordered –
A: You want answers?
Q: I think I’m entitled to them.
A: You want answers?
Q: I want the truth!
A: You can’t handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives…You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty…we use these words as the backbone to a life spent defending something. You use ‘em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I’d rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to!

Non-Answer #9: Half-Truths or Half-Answers

Q: Did you have a conversation with Moff Tarkin about his plans for the Alderran System?
A: I spoke with Moff Tarkin on numerous occasions.

Q: Did you order the Code Red?
A: I did the job you sent me to do.

The Consequences of Crime and Punishment

The Consequences of Crime and Punishment

There was a good article in the April 2010 edition of the Tennessee Bar Journal by Nashville attorney Vincent P. Wyatt titled Crime and Punishment…and Punishment.

While none of the lawyers at Patterson Bray practice in the area of criminal law, the article is nonetheless pertinent to many civil lawyers (as well as the public at large) in that it focuses not on criminal law per se, but rather on the various civil consequences of having a conviction on your record.

For example, there are apparently tons of jobs in Tennessee that require licensure that be jeopardized or denied based on a relatively minor conviction — many of them you would dream of!  Things like being a private investigator, midwife, barber, locksmith, real estate appraiser, lottery retailer, or land surveyor.

Other possible consequences can include the loss of state pension eligibility, loss of voting rights, inability to carry a firearm (per federal law), revocation or ineligibility for a passport, and loss of eligibility for public housing, student loans, and/or food stamps.  Conviction is also grounds for divorce under the law.

Perspectives — Should You Call a Witness a ‘Liar’?

Should You Call a Witness a ‘Liar’?

I follow the Winning Trial Advocacy Tips blog, and recently there was a gem of a post titled Should You Call a Witness a ‘Liar’?  It was particularly interesting because it combined two of my favorite topics: trial practice and Star Wars.

You’ll have to click the link to see the Star Wars connection (I can’t give it all away, now can I?), but here’s the takeaway idea for lawyers, and for those clients who are waiting for the ever-elusive “Perry Mason moment” during trial:

Just because the witness says something that you can prove is false, does that mean the witness is lying? Maybe, maybe not. But even if he is, before you bring out the heavy ammunition, ask yourself if you really want to drop the “L” word on your jury.

You don’t necessarily need the jurors to think the witness is lying, do you? All you really need is for them to disregard his testimony, right? It doesn’t matter why they disregard it, just so long as they do. So why take on an extra burden for yourself? And that’s why Obi Wan’s statement is so valuable. If you can come up with a comfortable way for them to disbelieve his testimony, that’s all you need to do.

What Obi Wan is saying is that you don’t need to prove that the witness lied to the jurors, all you need to do is show that the witness was mistaken. If you can show the jurors that this witness’s “truth” is based on his own point of view, and his point of view differs from what really happened, the jurors can disregard the witness’s testimony, without being put in the uncomfortable position of having to call him a “liar.”

You probably already know that most jurors don’t like to think that witnesses are lying to them. Most jurors have a difficult time believing that a witness can take the stand, raise his right hand, promise to “tell the truth, the whole truth, and nothing but the truth,” but then look the jurors square in the eye and lie to them.

Because we’re lawyers, we don’t have any problems believing that someone will take the stand and lie to us. But jurors don’t think like that. Maybe they’re more optimistic than we are, or maybe they don’t get lied to as often as we do, but most jurors I’ve met prefer to think that any witness who takes the stand is going to be honest with them. (Yes, they even expect 10x convicted felons to tell the truth.) If you attack a witness’s testimony by calling him a liar, you’re going to need to prove that he lied. If you can’t prove that he lied, you face an uphill battle trying to get the jury to disbelieve his testimony.

Conversation with a Doctor Who Wanted to file Malpractice Suit

Conversation with a Doctor Who Wanted to file Malpractice Suit

John Day is one of the most well-known medical malpractice attorneys in Tennessee.  He is also one of the leaders in our profession when it comes to exploding the myths and misimpressions that underlie much of society’s false assumptions about medical malpractice lawsuits.

In his blog post today over at Day on Torts, John details a conversation he had with a doctor who came in wanting to file a medical malpractice action in connection with the wrongful death of his father.  The conversation (and John’s commentary) is quite enlightening, and it details quite nicely the challenges, risks, and assumptions that must be overcome by lawyers and/or litigants in this arena.  I highly recommend taking a few moments to read it.

The Worst Question for Direct Examination at Trial

The Worst Question for Direct Examination at Trial

In law school, you’re told over and over again in trial advocacy class — “Don’t lead the witness. Let him/her tell the story. The lawyer isn’t supposed to be the one testifying.”

Sounds easy enough, right?  Well, it’s actually harder than it sounds to guide a witness through a story and get a coherent point across, and so most lawyers rely on a old crutch: when all else fails, simply ask your witness “So what happened next?”

The problem is that our crutch may not really be all that “tried and true” according to Elliot Wilcox at the Winning Trial Advocacy Tips Blog. In fact, Mr. Wilcox contends that “What happened next?” might actually be the worst question you can ask.  Specifically, he writes:

It doesn’t give the witness any guidance at all. When you ask the witness to tell you what happened next, you’re not doing anything to narrow his range of responses. Technically, there may have been a million different things that happened “next.” Which one do you want the witness to talk about?

****

“What happened next?” is simply too broad a question. It allows for a whole world of possible responses. If you want to help your witness tell his story more effectively, give him some idea of what he’s supposed to say by focusing his attention toward a narrower range of responses. Instead of asking, “What happened next,” ask something like this:

• “Where did you drive to next?”
• “Who did you speak to after that?”
• “What was the next test you performed on the substance?”
• “How does the man in the white jacket react?”
• “Let’s focus your attention on the operating nurse. What does she do next?”

See how the questions direct the witness towards a limited area?

Read more here.

Chris Patterson quoted in Memphis Daily News

Quoted in Memphis Daily News

Chris serves on the Memphis/Shelby County Charter Commission.  In the most recent Commission meeting, the members were discussing how to handle hiring/firing issues (i.e. civil service protection) in the to-be-proposed consolidated government.

Apparently, the unions were there protesting in an attempt to secure greater protection for employees than what is available in the private sector.  Specifically, a top union official observed that many of his friends ask him for help in getting a government job because they know they can’t fired like they were from their job at a private company.

At which point Chris responded:  “What is it about a government job that deserves more protection than an equal job in the private sector?”

Good question.  I think the union official may have inadverently stumbled upon the problem.

Estate Planning Case Studies — Some Success Stories

Estate Planning Case Studies

Our website contains a host of information where you can learn about estate planning and some of the services and strategies we use to protect our client.

Wiseman Quoted Re: Lincoln Day Gala featuring RNC Chairman Michael Steele

Lincoln Day Gala featuring RNC Chairman Michael Steele

On March 6, 2010, the Shelby County Republican Party is hosting its annual Lincoln Day Dinner/Gala featuring the national chairman of the GOP, Michael Steele.

For ticket information, visit www.shelbygop.org.

Wiseman quoted in Memphis Daily News re: Blockbuster case

Wiseman quoted in Memphis Daily News re: Blockbuster case

The Memphis Daily News regarding the resolution of a lawsuit involving one of the firm’s clients, Blockbuster Inc., following a critical victory in a recent preliminary injunction hearing.  The lawsuit dealt with whether Blockbuster could participate in the burgeoning and crucial market for online delivery of entertainment content.  The lawsuit was ultimately resolved to the satisfaction of both parties.