Short Questions

Writing at the always interesting PrawfsBlawg, Howard Wasserman links to this Slate article in which Will Oremus explains why reporters should stop asking complex, mulit-part questions at political press conferences.  Says Oremus, "this journalistic bad habit is undermining the media's efforts to hold the Trump administration to account."  The problem is not limited to questions for Pres. Trump, press secretary Sean Spicer, or anyone in particular.  Run-on questions are going to get selective and ambiguous answers from politicians of  both parties.

Howard adds an important observation.  He compares Oremus's advice to "what we try to do in law school," and explains that "effective cross-examination involves single, pointed questions."  Howard is right, of course, but let me suggest that the more apt comparison is to discovery deposition questioning, rather than cross examination.

The point of a short question on cross-examination is to confine the witness's answer, preferably to "yes" or "no."  There is ideally no attempt to generate new information, but rather to confirm something that is already known.  Thus, the question posed by a German reporter at the recent Trump/Merkel press conference -- and much praised by Oremus and others -- would never be asked by a cross-examiner: "Why do you keep saying things you know are not true?" (Translations vary.)

Not only is it easily avoidable -- Answer: "I don't" -- but it is also a dread "Why" question, which cedes control by inviting the witness to explain.

In contrast, the goal at a discovery deposition is not to confine the witness's answers, but rather to get the witness talking, in the hope that he or she will say something useful or revealing.  Thus, "Why" questions are ideal at depositions, as they have the potential to unearth the witness's motivations, explanations, and defenses.  Even so, deposition questions need to be pointed and short.  A long, rambling question is unlikely to evoke a well defined answer, and it is even less likely to be usable for impeachment at trial, which requires close correspondence between the question and the testimony to be impeached.

Finally, in an era of deposition time limits, it is well to remember this advice:  whenever you are talking, the deponent isn't.

Comments

[Andy Wright]

Good points. In private practice depositions, I was a fan of the "funnel" approach: start with open ended (but not compound) "why" or "tell me about" questions to be followed up by pointed leading questions or questions seeking short factual responses that confirm or nail down points raised in the open ended answer. That created brief-friendly transcripts. Later, in prepping questions for a congressional committee, we knew there are severe time constraints (often 5 minute rounds) but there is the ability to follow up. Prepping Q&As at the White House, you start with a steadfast rule to speak truth to the facts as you know them. That said, we definitely might look for opportunities to use a compound question to our advantage by answering the part we want to first and more fully, with full recognition there would be limited opportunity for follow-up by that questioner. Therefore, there really is a premium on well crafted, single part questions that are darts rather than fusillades.

[John Steele]

my two cents is that asking questions well is one of the most important skills that law schools can impart -- but all too rarely do.

i'd also add that "ask leading questions like at a trial cross" and "no, ask questions like at a depo" are both too limiting. a senator could have a variety of purposes and could need to use all three standard types of questions (open, closed, leading).

elizabeth warren is adept at the use of leading and closed questions at hearings, but notice that those question are, in effect, testimony by the senator and not by the witness.

depo-style open ended questions have their purpose but given the time constraints -- senators get 18 minutes, not 7 hours -- those questions can turn all control over to a well-prepared and articulate witness (e.g., Gorsuch). at a depo, after a series of open-ended questions, the lawyer has time to succinctly recapitulate the testimony in useful nuggets by using follow up leading and closed questions. senators don't.

if you want to see effective questioning by senators, go back and watch how Specter and Feingold questioned Alito.