By Dr. Ken Broda-Bahm:
As they enter a deposition room, or approach the lectern for cross-examination at trial, opposing counsel is looking for an opportunity to make a few memorable points at your witness’s expense. Often that opportunity can be achieved by asking the witness to embrace an oversimplified version or their duties and obligations. For that, one of the handiest tools in their toolbox is the idea of an absolute. The goal is to get the witness to agree with some kind of universal concept, principle, or rule that is stripped of necessary context and detail. “Do you agree that, to be reasonable, a contract has to protect both parties?” Hearing an absolute framing like that, some witnesses are tempted to say, “Yes, I suppose so” while at the same time wondering to themselves, “but what does that mean?”
The problem in that question is not that there’s no truth to it, it is that it’s an absolute statement that is also simplistic and abstract. On its own, it might seem reasonable enough, but applied to the facts of your case — as it inevitably will be — it lacks the background information that would make it meaningful. One of the important steps in preparing a witness is helping the witness understand what they’re likely to face from opposing counsel, and a prepared witness should be taught to be suspicious of absolutes. In this post, I’ll consider a few types of absolutes witnesses should watch out for and share some examples of ways to answer them effectively.
Absolute Scenarios
The examining counsel will sometimes construct hypotheticals to get an answer, one that boils down to a simple logic of “if A, then B.” The solution to these kinds of questions is generally to note the incompleteness of the descriptions and to frame a response as realistically depending on other factors.
Question: Do you agree with me that if a contract is based on a false representation, then the contract is not valid?
Bad Answers: That’s correct, that would mean the contract is fraudulently induced.
Better Answer: I think it would depend on what is considered false and why. If it is false, it would also need to be material to the contract and would need to be reasonably relied upon in order to make the contract invalid. I would need to know more about what you mean.
Absolute Language
A second way examiners can leverage absolutes is through language. By using terms that connote an “either/or” meaning, they hope to show jurors that the witness agrees with a principle that was not fully followed in this case. Terms like “safety,” “security,” “fairness,” or even “legality” might suggest an absolute meaning, and it also pays to look out for absolute adjectives and adverbs like “all,” “every,” “never,” “always,” “everyone,” or “no one.”
Question: Do you agree with me that all products should be safe, and that every product design decision should be guided by safety?
Bad Answers: Yes. Of course. It is one hundred percent about safety.
Better Answer: I agree that safety — which I understand as minimizing risks — is one of the important considerations. The user experience as well as the product’s effectiveness and durability are important as well.
Absolute Reptile
One approach from the plaintiff’s bar that often employs absolutes is the Reptile perspective. The Reptile is based on a combination of absolute language and absolute situations, offering the jury the idea that protection depends on defendants following a simple and absolute “rule” for responsible conduct. If a witness accepts that rule, then plaintiff’s lawyers hope that simple and absolute principle will replace the more subjective and judgement-based “standard of care.”
Question: You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger a patient, right?
Bad Answers: Yes, that’s correct. I agree that is never reasonable.
Better Answer: I agree that minimizing patient risk is important, and that is balanced against the goals of achieving effective treatment and good outcomes. How that balance is achieved will vary based on the individual patient, their presentation, and the full diagnosis.
The battle over unrealistic absolutes is just one part of the larger struggle that takes place in cross-examination. That struggle is over the terms of the testimony itself. A good cross-examiner will often try to put words into the witness’s mouth, and a less confident witness will too often accept what they’re offered. But a good witness will take responsibility for their own language, and that often means offering a realistic “not necessarily” or “it depends” in response to an unrealistically absolute question.
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Other Posts on Testifying Effectively:
- Witnesses: Be Tough to Cross
- Witnesses, Know What You Don’t Know: Six Principles for Your “I Don’t Recall” Answer
- Witnesses, Make This Your North Star: The Best Answer the Facts Allow
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