By Dr. Ken Broda Bahm:
New York Plaintiff’s attorney Ben Rubinowitz has written and presented over the years on an approach toward cross-examination using what he calls “Voice of Reason” questions. He was recently a guest on a podcast called “Unscripted Direct” (“Episode 48 – Bad Facts”) where he demonstrated the approach, which he describes as having the goal of “walking the witness down to a tight rope so when you finally push, the witness falls in the canyon of doom and there is no escape.” In an earlier article (Rabinowitz & Torgan, 2002) he writes, “The ‘voice of reason’ approach to cross-examination allows you to setup the witness in such a way that he is prevented from wriggling out at a later point in time. Unlike the ‘baseball bat approach,’ where the attorney starts off screaming at a witness saying, in essence, ‘you are a liar,’ the ‘voice of reason’ method allows you to lock the witness into a specific position and then slowly and carefully discredit that witness through his own words at a later point in time.”
Based on the demonstration (which starts about 18 minutes into the “Unscripted Direct” podcast, linked above), the approach involves first getting the witness to agree with a set of simple affirmative obligations (“You agree with me that a background check should be complete, true?”) before shifting into negative questions focused on the consequences of failing those obligations (“And if a background check wasn’t complete, that wouldn’t be fulfilling your responsibilities, correct?”). For plaintiffs’ lawyers that is a bread-and-butter approach, and the style of asking for agreement with very simple and obvious-sounding principles designed to restrict opportunities for credible disagreement seems to follow the same play-book as the Rules of the Road and the Reptile approaches by developing a “safety rule,” and enforcing that rule through the witness’s structured agreement.
In the podcast example, Rubinowitz, in my opinion, stacks the deck a bit, first by picking a case with clear liability (sexual abuse in a school after the school failed to complete a background check on the offender), and second by using pretty ineffectual answers in the illustration. In response to this style of questioning, I believe that the witness needs to follow several principles of their own:
- Get Beyond the Yes or No. The premise of ‘voice of reason’ questions is that the witness has to either agree or look like a fool for disagreeing. You can’t evade the question, of course, but you can answer with more nuance than the black-and-white binary of “yes or no.”
- Use Your Own Words. Your answer should be supplying information from you, the witness, and not just agreeing or disagreeing with the language of the attorney’s question on its own terms.
- Combat Over-Simplification. “Voice of reason” and similar questions work, and hold appeal for jurors, because they are over-simplified. That makes for a nice sound-bite in closing, but the reality on the question’s content area is generally more complicated.
- Get Back to Your Ground. If you have a talking point on the issue (and you should) then pivot back to that point when it is reasonable and responsive. If it helps your case, you can’t expect the other side to bring it up for you.
Example: Better Answers to “Voice of Reason” Questions
In the podcast demonstration, the answers to the Rubinowitz’s questions are generally a simple “Yes,” or a soft “I suppose so” or “that’s fair to say” grudging admission. That approach allows the strategy to work with impunity. A witness who is prepared to apply some basic principles of gently pushing back will do a lot better. So to apply those principles to Rubinowitz’s question, let’s consider the more realistic situation where, perhaps the school completed some background checking (e.g., a criminal background check required by law and policy) but not as much as the plaintiff and their experts would have liked (e.g., not following up with references and past employment). Based on that fact-pattern, and the three principles above, let’s consider better answers to the questions asked in the podcast about the teacher reference checks.
“Can we agree your most important concern is the safety of the students?”
A school exists in order to educate students, and that can’t happen if they aren’t safe. So, yes, safety is certainly among the most important concerns at a school.
“One of the things you do when hiring teachers is you do a background check, true?”
Yes, we have a well-established set of policies that we follow in looking at a potential teacher’s background as part of the hiring process. The most important part of that background check is the legally-mandated check on past criminal activity.
“When you do a background check, can we agree that you do a full check to determine whether the teacher is qualified?”
I don’t know what you mean specifically by a “full check,” but we do fully follow the policy and procedure to do our best to confirm that the teacher is qualified and does not have any known disqualifiers in their background.
“You would do a fair evaluation, true?”
Again, “fair” is a subjective term, but the policies and procedures are designed and implemented so that the evaluation process is thorough, and unbiased, yes.
“It certainly must be complete, am I right?”
It is always possible to have more information, and I don’t know what you mean specifically by “complete,” but we are complete in the sense of following all parts of our policy.
“To the extent that you chose not to fully evaluate a teacher for hire, can we agree that would be inappropriate?”
It would be inappropriate if we did not follow our policies and the law in evaluating a teacher, yes. As long as we are following our policies and the law, that is what we consider to be a full evaluation.
“You realize that there is a trust and reliance placed on you by the parents of the children that attend school, true?”
Of course. Parents do trust and rely on us to educate their children in an environment that is as safe as we can reasonably make it.
“Shortcuts are never appropriate when hiring a teacher, right?”
If a “shortcut” means skipping parts of our policy or the law, then correct, that would not be appropriate.
“If you chose not to call a reference, can we agree that would be inappropriate?”
No. The policy indicates that we ask for references, and sometimes we do call those references, but that is not required. What is required, and what is far better in my view, is a criminal background check like the one that was conducted in this case.
“So you had a choice to make as far as calling the references, true?”
Yes, it is a choice. We can, but we don’t always call references. We have found that because references are self-selected by the applicant, they are not the best means of identifying individuals who are disqualified from being teachers.
“You made a conscious decision not to call the references, true?”
In this case, yes, we felt we had enough information from other sources, including from the mandatory criminal background check. It is always possible to have more information and always possible to ask “what if…” in hindsight. But that is why we have a forward-looking policy, and that policy, as guided by law, is what we followed in this case.
These “voice of reason” questions can work, certainly, but in my view they are really “voice of simplification” questions. Reason can go lots of different directions, particularly in the hands of a skilled and prepared witness, but the strategy behind these questions relies on omitting detail and conditions. And simplicity is a good communication strategy in the sense that juries like it. But it can be a poor way of representing the reality and nuance of a witness’s testimony. So do the preparation, set your own terms, and use your own language. In resisting over-simplification as a witness, you’re also identifying with jurors. They want an argument they can understand, yes, but they also don’t want to be talked down to or told that a situation is less complex than it actually is.
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Other Posts on Cross-Examination:
- Treat Cross-Examination Questions as a Flashlight in a Dark Room
- Follow the 10 Commandments of Cross-Examination
- Witnesses: Protect Yourselves Against the “Just Answer Yes or No” Instruction
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