By Dr. Ken Broda Bahm:
For an attorney taking a deposition or conducting a cross-examination in trial, there is one key word that describes that attorney’s strategy: control. The questioning attorney wants, maybe needs, to control the witness in order to build useful testimony in a deposition or to highlight useful testimony in trial cross-examination. The more the witness is talking, the less control the attorney has. So there is a preference for leading questions that just call for a “Yes” or a “No.” After all, the attorney has a lot more control when the witness is just affirming or denying the lawyer’s word choice and focus, rather than choosing the words and the focus on their own. From a control perspective, the question, “Then you finalized your differential diagnosis, without including DVT, correct?” is a whole lot better than, “What did you do then?”
Of course, that is “Examinations 101.” But what witnesses need to understand is that, at its extremes, this preference for yes/no leading questions can lead to an insistence, “Please, just answer the question ‘Yes’ or ‘No.‘” Sometimes, for dramatic effect (or intimidation), the attorney will add in a measure of condescension: “It is a simple question. You understand it, don’t you? Let me repeat it slowly, and you listen carefully, then tell me if it is ‘Yes’ or ‘No.'” Rather than being a sign that a witness is messing up, that insistence often appears when a witness is doing particularly well in offering good explanations and framing the answers in favorable terms. So the questioning attorney’s efforts to limit the answers to the single word is an attempt to take back a bit of power from the witness. Some witnesses give in and just be led at that point, because it is easier than fighting counsel. The prepared witness, however, will try to fight back. Politely and respectfully, she will try to break out of that ‘Yes’ or ‘No’ control trap in order to get back to phrasing the answer on her own terms. So how does she do that? In this post, I will share seven ways of answering the ‘Yes’ or ‘No’ question without backing down.
1. “Not Necessarily…”
Questioners take advantage of the fact that we tend to treat generally true statements as true statements. Do bears…relieve themselves… in the woods? Yes, but not those who live in the arctic or the Manhattan zoo. When the question poses an absolute that is not really an absolute, then “Not necessarily” is the right response. And remember that opposing counsel won’t let that answer stand on its own, but will instead want to know when that general principle does not apply.
Q: Are the medical records going to be the best indications of what medications a patient was on?
A: Not necessarily. It will record the medications that I have prescribed, but not always those that other doctors have prescribed.
2. “It Depends…”
Closely related to the “Not necessarily,” the “It depends” applies when the principle perhaps isn’t even generally true, but is in fact only true under certain conditions that the question has not specified. Here as well, if you say, “It depends,” then be prepared for the next question to be, “Depends on what?”
Q: Isn’t it true that if a headache persists for more than a day, that is a reason to revise your diagnosis and consider a vascular cause?
A: No, it depends on the nature of the headache, how it started, whether it is constant or intermittent, and it depends on the patient’s overall medical history.
3. “I Would Need to Know More…”
A common tactic in questioning is to try to secure agreement at the level of principle, and then apply that principle to the case at hand. The agreement, in principle, is generally phrased as a hypothetical, like a question about “a patient” rather than “the patient.” The problem with hypotheticals is that they are often incomplete descriptions, and in that case, the right answer is that you would need to know more.
Q: If you have a patient who is a smoker and on birth control medication, she is going to be at greater risk of heart disease, correct?
A: I would need to know more about this patient — her age, ethnicity, family history, her overall medical picture — all of it contributes to her risk profile for heart disease.
4. “Yes (or No), And…”
Sometimes there really is a “Yes” or “No” answer, but it does not stand on its own. There are two parts to these questions: what is being literally asked and what is being implied. Just answering “Correct” to that question leaves any listener or reader of the testimony with an implication that is incomplete. In response, witnesses need to fill in what is missing as part of their answer.
Q: Nothing in your chart indicates that she was given a physical examination, correct?
A: Correct, and that is typically not charted unless there is a remarkable or atypical finding.
5. “Yes (or No), Because…”
Sometimes the answer the other side is calling for is accurate and not misleading, but it still requires a justification. In a deposition, you don’t necessarily want to supply that justification if it isn’t sought: If they don’t ask “Why” or “Why not,” you are still free to provide those explanations in trial testimony. But in trial cross-examination, just acknowledging without justifying can sound too weak. Even if it is repaired later in direct or redirect examination, the impression has already been made. For those questions, try to get in a short reason.
Q: The condition that killed Ms. Jones wasn’t even on your differential diagnosis, correct?
A: That is correct, the differential was focused on diagnoses that were all far more consistent with the symptoms she presented.
6. Yes (or No), But there’s an Explanation.
I believe that, as long as they’re answering questions and not filibustering, witnesses should have the right to their own words. However, I have seen it happen where counsel will successfully limit a witness to just the “Yes” or the “No,” sometimes with a judge’s help. Tagging, “Can I explain?” to the end of that answer often doesn’t work at that moment because it just invites the response, “Yes, you’ll have time to explain when your own attorney is examining you.” However, even if you can’t give the explanation, you should still indicate that there is actually an explanation.
Q: You still prescribed the drug despite it being contraindicated, right? We just need a Yes or a No.
A: Yes, but there is an important explanation.
In trial, that puts your questioner in a tough spot. Either they move on and leave the jury wondering about that explanation, or they give in and say, “Okay, what is the explanation?”
7. I Don’t Know.
Sometimes the three strongest words in response to a question are “I don’t know.” When that is the real answer, then that answer is always going to be safer than any alternative. If the questioner has framed it in a way that prevents you from knowing whether it would be a “Yes” or a “No” answer, then say so.
Q: So based on what you’ve said, the other treating physician made the wrong call?
A: I don’t know that. I don’t know the full picture that the patient presented when she saw the other physician.
For the attorney, examinations are about control. So for a good witness, they’re about taking back at least some of that power. To do that, you’ll have to frequently break out of the “Yes or no” trap.
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Other Posts on Witness Answers:
- Don’t Be Led (in Deposition)
- Bottom Line Your Deposition Advice: Four Rules
- Be Realistic About Hypothetical Questions: Four Ways to Answer
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Image credit: 123rf.com, used under license, edited