By Dr. Ken Broda Bahm:
“Looking back at this situation, what if anything would you do differently?” Witnesses can be asked that question in a variety of case types: medical malpractice, products liability, contract, fraud, and really anything that involves a conceivably questionable past decision. And this question can be tricky to answer. For the witness who begins listing their own lessons learned and the alternate paths they could’ve taken, it sounds like a confession on the inadequacy or the error of what they actually did. On the other hand, when the witness more confidently says they wouldn’t change a thing, they’re playing into the theme that they’re oblivious, arrogant, or even a continuing danger to the community.
The problem is in the construction of the question itself. While the issue of what you would do differently might sound simple and reasonable on its face, there lacks a clear and stable meaning to it. In this post, I will discuss two very different meanings the question can carry, why only one of those meanings is legally relevant and, most importantly, how the careful witness should practically respond.
Two Possible Meanings
Beneath the apparent simplicity of the question, “What would you have done differently?” there is some complexity in what is being asked. It is important to keep in mind that there are two possible versions of what it might mean.
Version One: The Time Machine
In this scenario, we know what ultimately happened — the product caused injuries, the deal went bad, the patient died — and, armed with that knowledge, we are now placing ourselves back in time in order to entertain the question of what alternative course we could have taken to avoid that known outcome. I call this the “time machine” meaning, because it assumes something that is never true in the real world: advance knowledge of the outcome. When a witness answers the question with the hindsight-driven goal of mitigating the end of the story as we now know it, they are climbing into that time machine.
Version Two: The Parallel Situation
In this scenario, we more realistically do not know what will ultimately happen. Instead, we are facing a parallel situation with the same knowledge — the same red flags or lack of red flags that we had before — in the situation that the case is based on. So the question more specifically is, “If you faced the same situation today, and you only know what you know at the time — the facts you are able to observe, not the ultimate outcome — would you do the same thing, or would you do something different?” That is speculative, and it might be vague, as well (after all, how “close” is this situation to the actual facts?). But the question differs in avoiding conscious hindsight.
Only One Meaning Is Legally Appropriate
Attorneys have wide latitude to ask questions during discovery, but I cannot think of a situation where it is rational and relevant to ask for speculation on our ability to apply present knowledge to the past. The “time machine” version of the question will always be nothing more than an invitation for the witness to second-guess themselves based on hindsight and regret.
Here’s How to Answer It
When the “done differently” question is asked, it often isn’t clear which of the two versions are intended. That is often by design. I suspect that for many questioners, the question is just a kind of “Hail Mary” attempt to see what they might get.
For the witness, the best course is to answer in two steps. First, clarify which question you are answering:
If I saw a patient reporting these same systems, and I just have that information…
And second, answer that question if you can:
…I believe that I would make the same diagnosis based on the patient’s presentation at the time.
But, there are also situations where you may not be able to answer straightforwardly:
But every patient and every presentation is unique. And before I could diagnose your hypothetical patient, I would need to take their full history and conduct a complete examination. My diagnosis would depend on that.
Note that the answers have nothing to do with knowledge of the eventual outcome, and that is as it should be. You will never be in the position of evaluating past events using present knowledge. That is to say, you’ll never have a time machine.
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Other Posts on Tricky Questions:
- Safely Handle the “Safety Rule” Question
- Be Realistic About Hypothetical Questions: Four Ways to Answer
- Train Your Witness to Combat Simplistic Equivalence
Image credit: 123rf.com, used under license