Daniel I. Small, The Daily Record Newswire
Could have/could be, should have/should be, would have/would be — ahh, guessing, we love it so.
We judge ourselves, and each other, on how well we do it — on our “insights.” Yet in the unnatural world of a witness, it is an invitation to disaster. There are three basic kinds of guessing: factual details, inferences and hypotheticals.
1) Factual details
The first form of guessing involves factual details, like dates, times, names, numbers and so on. Guessing at even the most minor factual details is an easy way for a witness to get into trouble.
Tell your witness: If you’re not absolutely sure, or do not know with complete precision, say so. Just say, “I don’t know” or “I don’t want to guess,” and stop.
It’s unnatural, but critical. In our everyday conversations, we guess, estimate or do whatever seems reasonable to keep the conversation going, knowing that we will never be cross-examined or held to our precise statement.
The problem is that whenever you guess there is always a chance you’ll guess wrong. That’s OK in a casual setting. Everything changes when you become a witness. What we think of casually as being “wrong” really means false, and when false is under oath and on the record, or anything close to it, you have a serious problem. As a witness, you can only be as precise as you are precisely and absolutely certain.
I talked previously about how random and piecemeal memory can be. When we remember only part of something, we feel uncomfortable not remembering the whole thing. That discomfort can tempt us to try too hard and guess at the missing details.
Then, when the questioner looks at a document or asks someone else for the same details and he gives a different answer, the witness has created the worst kind of conflict: an unnecessary one.
There will always be some natural conflict when two or more people are asked about the same matters. Perceptions and memories will always lead to some honest differences. Don’t make things worse by creating unnecessary conflicts by guessing, when you could and should just say, “I don’t know.”
What happens if the questioner persists? Sometimes a questioner will want you to guess and will push you to do it. He may think he can push you to say more, leading to other questions or giving him something that he can then use in questioning other witnesses. Whatever the motive, your job is the difficult one of making clear not just what you know, but what you do not know.
That means:
• Making it clear that you don’t know;
• Making it clear that you don’t want to guess; and
• If you’re still pushed, giving yourself (and others) plenty of extra room and making it explicit that you are guessing.
How is that done? Like everything else a witness does: one question at a time. Suppose you’re being asked about a meeting that you think took place last April but you’re not sure. For whatever reason, the questioner has decided to try to use you to pin down the date. Think about how you might respond truthfully while still giving yourself a generous “margin of error.” For example:
Q: When did this meeting take place?
A: I don’t recall.
Q: Well, it was last year, wasn’t it?
A: I believe so.
Q: When last year?
A: I don’t recall.
Q: Well, you were at this meeting; give us your best memory of the month.
A: I don’t want to guess.
Q: What is your best recollection?
A: I could only guess that it was sometime in the spring.
You have answered each question to the best of your ability, without locking yourself in to greater precision than you are truly comfortable with. It gives you and anyone else who may be asked the same question plenty of room to avoid unnecessary conflicts. Having given a range, do not let anyone narrow it unless you are absolutely certain.
2) Inferences
Every day, every hour, in virtually every conversation we have, we draw inferences from what is around us. Not only is it common and natural, it’s part of what we pride ourselves on as intelligent beings. We may call it different names: conclusions, inferences, opinions, presumptions, deductions.
Generally, however it may be phrased, it is in some way an answer to a “why” question. Why did someone do/say/write something? What did they mean by it? Why did something happen or not happen?
If we are talking about a subject with which we are familiar, we take pride in the fact that our inferences are often correct. Many times, if we could figure the odds, we would take comfort in the chances being 90 percent, perhaps even 95, that we are right. Therein lays the problem.
By congratulating ourselves on the high chance that we are right, we recognize that what we are really doing is guessing, and acknowledging the real possibility, however small, that we are wrong. “Inference” is really only a fancy way of saying “guess.”
In a casual conversation, the chances that our inferences are wrong are understood and accepted by all. As a witness, under oath and on the record, it is not acceptable. It means that there is a real chance (if even 5 percent) that you are making a false statement — a serious matter in all witness situations and a potential criminal act in many.
As a witness, 95 percent simply is not good enough. Either you are 100 percent sure, or you are guessing. Don’t do it. Just say, “I don’t want to guess” and stop.
Remember, you can really only testify to what you clearly remember that you saw, heard or did, not what’s in someone else’s mind. So, if you are asked, “Why did Mr. X say this?” (or, “What did Mr. X mean when he said this?”) you have only two choices:
• If Mr. X told you what he meant when he said that, you can testify because that is something you heard. Understand that you are still not saying what he was really thinking, just what he said about it (after all, he could have been lying to you).
• If Mr. X did not explain himself to you, your opinion of what he meant, however good you may be at giving such opinions, is still just a guess.
Avoiding that kind of guessing can be one of the most difficult tasks facing a witness.
3) Hypotheticals
Look up the word “hypothetical” in a thesaurus and the synonyms include “guessed,” “assumed” and “imaginary.” Lawyers are used to hypotheticals as a teaching device. The old Socratic method involved endless, succeedingly tougher hypotheticals to explore legal principles.
However, this is not an academic environment. As a witness, hypotheticals can be a dangerous trap. More important, they are the worst form of guessing: using uncertain hindsight and foresight, in either the “attack hypothetical” or the “meteor hypothetical.”
“Attack hypothetical”
The most common type of hypothetical in many cases is the “attack.” This involves the questioner putting forward some assumed facts, and then asking what the witness — or someone else — would, should or could have done.
It’s an attack because it is not being asked out of curiosity; it is being asked to use the witness’s answer to attack someone else — to criticize what that person did or did not do under those facts.
Of course, the witness was not there, not involved and not aware of everything on which the reality of the situation depended at the time. It is guessing, and it is often inappropriate.
The best way for the witness to think about attack hypotheticals is to remember the Golden Rule: Do unto others as you would have others do unto you. What if the situation was reversed? What if the questioner was asking someone else a hypothetical to try to use that person to attack you?
Wouldn’t you want that person to know a lot more than any questioner can put into a hypothetical? He or she didn’t know what you know or see what you saw. Wouldn’t you want that person not to guess or pass judgment on you in hindsight?
A truthful answer would depend on far more information and input than even the best questioner can squeeze into a short, clear and fair question.
“Meteor hypothetical”
With the meteor hypothetical, the questioner tries to make a point of some kind by asking a question about something that has never happened.
Often, he is trying to create some rule or standard by which other people, or other events, should be judged, or use the hypothetical to demonstrate relationships, hierarchies and the like. “If the CEO of the company called you and said he wanted everyone outside for jumping jacks at 7 a.m., what would happen?”
But if it never happened, and there is no hard and fast rule anticipating it, any answer to the question is pure speculation, pure guessing. In slightly more dramatic terms, it’s a meteor hypothetical question: “If tomorrow a meteor came crashing through the roof of your building, what are the first three things Bob Smith should do?”
Who knows? It’s never happened, it never will, there are no clear rules for it, and it would depend on the circumstances. It’s the worst kind of guessing. Don’t do it. Just say, “It’s never happened, and I don’t want to guess!”
We all want to look smart in front of others. It’s natural. But in the very unnatural environment of the witness box, trying too hard to look smart is a dangerous luxury. Don’t do it. Don’t guess.
—————
Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3d Edition, 2009). He can be contacted at dan.small@hklaw.com.
