Some Thoughts on Interrogation and Questioning

I was an interrogator for the U.S. Army for 7 years and taught interrogation for 3 years. I learned a lot. Some of the things I learned that can be applied to being a trial lawyer:

  • Proper Questioning: Ask the question you want the answer to. We speak in a lexical shorthand and are not as precise as we need to be. Common speaking habits allow for ambiguity between the question being asked and the question being answered. Good questioning techniques can eliminate this.
  • Control Questions: We always checked the answers for external and internal consistency. Internal consistency was whether the story was consistent with what the person being questioned had told us earlier and external consistency was whether it matched with known facts.
  • Control of a Witness: When a witness’ story did not match, bringing them back in line, simply and easily.

These were good skills to learn and helpful in depositions and cross examination. I used to tell people that interrrogation was much more psychology and good questioning techniques, than the torture you saw in Rambo movies. I used to tell people that the United States followed the Geneva Conventions and the Hage Laws of Land Warfare. Unfortunately, I can’t say that anymore.

But the questioning skills that I learned as an interrogator have been invaluable.

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Once You Have the Answer You Want. Leave it Alone.

Some excellent advice from Evan Schaeffer at the Illinois Trial Practice Blog:

Once you get good testimony at a deposition, you're best to leave the testimony alone. Take the good answer from the witness and move on.

It seems like obvious advice, but some lawyers can't wait to read the good answer in the printed transcript. Perhaps not believing their good fortune, or perhaps wanting to relive the excitement of the five minutes when everything was going their way, they return to the question again a little later in the deposition. They ask the question to which they got a good answer a second time.

Why give the witness a chance to change or explain his answer? I can think of only a couple of reasons, neither of them very good: (1) You're not sure whether you've pinned the witness down or (2) you can't remember what the witness said.

I have to say that I’ve seen this more than once. When you get good testimony, don’t give the witness a chance to rehabilitate himself.

For more information on depositions, check out Evan’s excellent book: Deposition Checklists & Strategies.

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Taking the Jury With You

WeeblesIn the current issue of SCTLA’s Bulletin, Vernon Glenn of Charleston, writes an article of what works for him. There’s a lot of good stuff in there, but one tip particularly struck home with me.

Vernon suggests getting an empty egg carton and filling it up with Weebles. Getting 12 Weebles (or other generic characters) to fill up the carton. Some old, some young, some with differing ethnic characteristics and a diverse background.

When doing trial prep, have the egg carton with your little jury on it front and center and think about how the arguments would sound to various members of your jury.

When not doing trial prep, Vernon keeps his egg carton jury sitting on his desk, so that they will ‘see’ all of his decisions and he will keep their deliberations in mind. What a great idea!

Vernon also writes the fabulous Vernon Holds Court. A well written, but intermittent on-line newsletter. I’ve begged him to put in an RSS feed, but he’s not quite there yet. Hopefully, we’ll get him in the rank of bloggers soon.

12 eggs in a carton. 12 jurors in a jury. Coincidence? I think not.

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Mistakes Made by Trial Lawyers

As I mentioned before, at the Fall Retreat of the Southern Trial Lawyers we did an unconference. One of the topics put forth was ‘Screw Ups We Have Made’. First off, it’s hard to get trial lawyers to admit to any type of mistake, but it was a very interesting and useful discussion. The conversation was very frank and open, but I only took generic notes. Here are the top mistakes made:

  • Accepted a Case that they Shouldn’t.  – A case with bad facts or an extremely difficult client.
  • Overtried a Case.  – They believed too much in the case. What was a good small case, trying to make it a good big case didn’t work.
  • Letting their Caseload Manage Them Instead of Vice Versa.  – I think we’ve all had this problem at one point in our career.
  • Didn’t Take Into Account the Client When Accepting the Case – The jury is going to award money to the client and not the attorney. It doesn’t matter how good the case looks on paper, if the jury really, really won’t like the Client be careful in accepting the case.
  • Didn’t Manage Client Expectations – When the lawyer got twice as much money as they ever thought that they would get on the case and it wasn’t nearly enough for the client.
  • Didn’t Listen to Gut Feelings – When there was a bad feeling about the liability, damages or client and ignored it because the gut feeling because it was a high dollar case
  • Got Sidetracked by Side Issues – Got caught up in the litigation and didn’t focus like a laser on what the defendant did wrong.
  • Sued the Mayo Clinic in Minnesota – Everyone in town worked there, had a relative that worked there or made their living directly or indirectly from the clinic. The attorney got a defense verdict.

Looking at the list like this, those are all pretty self explanatory and common mistakes. It’s good to discuss issues that come up and re-evaluate now and then.

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Dan Abrams on the Media and the Law

Dan Abrams was the keynote speaker for our annual Convention. Linda Franklin, our director at the South Carolina Trial Lawyer’s Association has done a fabulous job of getting speakers. Before Dan, we had Tom Mesereau, Mark Geragos, Wolf Blitzer and John Dean. Dan gave is with MSNBC and covered all of the big legal ‘media events’ in the last ten year. Dan made two good points.

If you have a case where there’s a media circus, the lawyer needs to get in front of the media and manage it. Of course, when talking about the media, there is only so much you can ‘manage’ them, but at least you can direct them somewhat. The example Dan gave was the Jon Benet Ramsey case. With their first legal team, the Ramsey’s kept mum and didn’t take a proactive approach to the media.

The second point Dan made was that if you talk to the media, it’s important to talk to the media. Talking to the media and then stonewalling, is much worse than refusing to talk in the first place. The example Dan gave was the Gary Condit case. Gary Condit went on television and did an interview and talked about everything except what people wanted to hear about his relationship with Chandra Levy. Gary kept saying “I don’t want to talk about that out of concern for the Levy family”… That actually makes the situation worse.

Thanks for coming and talking to us Dan.

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15 Key Deposition Techniques in a Medical Malpractice Case

We have a guest post today from Gerry Oginski, a medical malpractice lawyer in Great Neck, New York. This is a great post from Gerry. You can read more from him at his weblog or visit his firm website.


WARNING: Preparation is the entire key to a doctor’s deposition. You must spend countless hours reviewing the entire file, reviewing all the medical records, notes and entries in the chart. You must know and review your theory of liability, causation and damages before you begin to review the file. You must keep track of anything in the chart that will help you in your quest to prove each element of liability, causation and damages.

1. Most lawyers ask the same boring questions at the beginning of every deposition:

a. State your name and address
b. State your qualifications, pedigree, schooling, etc.

Comment: OK, this is fine, but very boring and very expected by defense counsel and the doctor. Mix it up a bit. I advocate never starting a doctor’s deposition this way. Why not go right to the heart of the case with the very first question? Continue Reading Posted inOther / Misc, Trial Techniques |Comments (5) |Permalink

The Case on a Single Page

While in Atlanta for Auto Torts, in addition to my South Carolina buddies and meeting Atlanta friends Richard Jones and Mark Zamora, Gary Hill came out to join us. One of the great things about having a weblog is the people that you meet. Gary is considering starting his own blog, so I was able to con Gary into writing a guest post. Take it away Gary:

Being overwhelmed by a large case can be demoralizing. Reducing the entire case to a single page can add perspective and a sense of control.

Place a single sheet of paper in the landscape position and fold it in half and then in half again. There are now eight sections.

Name each section: PreTrial motions, Voir Dire, Opening Statement, Witnesses, Evidence, Charges, Closing Argument. List only what you need in each category to put up your case.

This exercise will often point to gaps in the case, suggest themes, or trigger changes in the presentation of the witnesses, evidence or argument. You can also keep this summary of the case in the inside pocket of your suit coat as a security blanket at trial.

What a great idea. A very simple way to reduce the case to it’s basics and make certain that you focus on what is important. Thanks for the guest post Gary.

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Meet Your Interrogator: An Untrained Civilian from Lockheed Martin

Another off-topic interrogation story. I left the Army as an interrogation instructor at Ft. Huachuca, Arizona in 1989. During my time in service, I revamped and wrote (along with 2 others) an interrogation course for the Marine reserves. At that time, the interrogation course was eight weeks long and included one month of platform instruction and one months of (ahem) …’hands on’ interrogation, with the instructors roleplaying as the interrogees/prisoners.

By the time that the students had finished the course they had completed 15 full interrogations and about 5 partial interrogations that focused on specific areas. They were graded on all of the interrogations and tested on three of them. The students would have observed and critiqued 10 interrogations and had a month of classroom instruction on questioning techniques, approaches, mapreading and map tracking, report writing, document exploitation, opposing force battle strategies and order of battle and other topics.

Before teaching at the Intelligence Center and School, I was at the 101st Airborne Division at Fort Campbell, Ky (which oddly enough is in Tennessee). I went on a training exercise working with some reservists at Ft. Bragg. Observing and critiquing one young interrogator was excruciating. He was horrible and didn’t seem to know the first thing about interrogation. I asked him where he got his training. His response? He hadn’t been trained, but he had watched a lot of war movies. Ouch. Continue Reading Posted inMisc, Other / Misc |Comments (14) |Permalink

Question and Answer on the Vioxx Cases with Mark Lanier

The Texas Lawyer has a good article on The Vioxx Verdict: Q & A with Mark Lanier. A sampling:

Q: What was the biggest obstacle you perceived going into the trial?
A: Mark Lanier: Causation. Bob Ernst's autopsy report stated that the cause of death was arrhythmia secondary to coronary atherosclerosis.  While Bob had some type of clot or thromboemboylic event that caused the arrhythmia, Merck was splitting hairs saying that no studies ever linked Vioxx to arrhythmias.  While this assertion was patently wrong, it could have been easily confusing to a jury.

Q: This case was supposed to be "unwinnable" because Ernst died of an arrhythmia, not a heart attack. Do you truly believe Vioxx contributed to his death, or does it only matter that you convinced a jury of such?

 A: Lanier: Not a doubt in my mind. Everyone agreed the arrhythmia was caused by "ischemia" or inadequate oxygen to the heart. Ernst had 50 - 75 percent blocked arteries. Those are open 25-50 percent. They were open enough that he ran marathons, competed in triathlons, rode a 62 mile bike race a week earlier, ran 5 miles that day. His heart got plenty of oxygen for those stresses. So the question is: either he had a clot (our position) or for some unknown reason while sleeping his heart's oxygen requirements exceed the needs while running a marathon. Merck took the absurd position that Ernst's heart was having excessive oxygen requirements while sleeping. They actually had experts say that Ernst must have been having really bad dreams or sleep apnea. What is more likely, a clot?

Q: What piece or pieces of liability evidence did the jury consider most important in their deliberations?
A: Lanier: The sales documents on liability. The medical textbooks on causation.

The entire question and answer session is worth a read. Thanks to John Day of Day on Torts for the heads up on this article.

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Get Needed Corporate Information from the 30(b) (6) Representative

Evan Schaeffer at the Illinois Trial Practice Weblog suggests using corporate designee depositions to minimize wait time for corporate documents and information. Oftentimes, the defense counsel’s primary objective is to slow down the litigation process. Evan reminds us that we can skirt the obstructionists, by obtaining the information directly from the corporate designee that knows the most about the information.

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Medicaid Third Party Liability liens manual

Ken Shigley at the Atlanta Injury Law Blog has a pointer to the Medicaid Third Party Liability liens manual (.pdf warning) from the U.S. Department of Health and Human Services.

Thanks for the  pointer, Ken.

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Harold Swanner Featured in Myrtle Beach Paper

My father, Harold Swanner was just featured in the Myrtle Beach Sun News in an article titled Business-savvy man alternates between sun, suit. A selection from the article:

Start a company here, buy a real estate school there. You know, the typical activities for the retired corporate head honchos who now call the Grand Strand home.

Swanner, 68, is the man who helped turn a small real estate school called Fortune into a statewide academy. When he bought it in 1995, Fortune had one administrator, one instructor and one location. Today, it has six administrators, 70 instructors throughout the state and 14 locations. It grew from three courses a month to 300. …

"If something has been good to you, you need to give back to the community," Swanner said. "Best thing to give back is what you have the best knowledge about."

This article is totally off topic, I just wanted to share some of my father’s success.

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Great Motion in Limine and a New Blog from Mark Zamora

Mark Zamora has started a new weblog, A Georgia Lawyer. Mark’s got a great post about filing a Motion in Limine early in the case to keep the defense attorney honest. Mark has the full text of his motion in his post. The topics Mark covers in the first installment are:

  1. Approach The Bench
  2. Inform Witnesses
  3. Collateral Source Payments/benefits
  4. Other Compensation
  5. Attacks on Plaintiff's Trial Counsel by Defense Attorneys
  6. Advertisement by Plaintiff's Attorney
  7. Financial Status of Attorney or Medical Provider
  8. American Tort System or Plaintiff's Lawyers in General
  9. Unrelated Claims
  10. Unrelated Accidents and Injuries

I’m going to convert the cases and law from Georgia cites to South Carolina cites and start using this on a regular basis. I can’t wait for the next two installments.

Thanks for the good stuff Mark, and welcome to the blogosphere.

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Why People Don't Like Lawyers

I went to a damages seminar conducted by David Ball in October, 2004. David was talking about why people don’t like lawyers. He said a lot of it was in the way lawyers talk about cases. Here are some of the tips he suggested:

When a lawyer talks about money, it makes people hate them more.

A serious Injury is not a "Great Case". It is a serious injury.

Lawyers don’t get verdicts. Verdicts belong to the client. The clients get the verdicts to compensate for terrible and catastrophic injuries. The lawyers did not get verdicts because they ‘kicked ass’.

David Ball says to always make the conversation about the client and their losses. The case is about someone who is hurt and needs help. People that want to help are balancing the scales. Anytime the lawyer focuses on himself or his fees it leads to people thinking they are greedy.

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Put New Tires on the Back

I’m still wading through my materials from the Southern Trial Lawyers convention and will post some of the tidbits/highlights. Rob Ammons gave a presentation about a wrongful death case they handled where the decedent was a teenaged boy who’s car fishtailed out of control, spun across the median and was slammed into by a truck going the opposite direction. Several law firms turned the case down before it came to Rob.

When researching the case, they found that the car had four bald tires and the young man had gone to Wal-Mart the day before to buy two new tires. The new tires had been put on the front of the car. Brand new tires with good gripping traction on the front with bald tires on the rear made the car extremely susceptible to fishtailing and spinning out of control. Even at low speeds.

Whenever you get new tires and can’t afford to buy four at a time, put the tires on the back of the car. Apparently there is a lot of research to support this, but it’s not getting down to the mechanics in the shops.  

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Memo to ATLA: We're Losing the War

Evan Schaeffer from Notes from the Legal Underground reviews an article from the Washington Post concerning the failure of ATLA to address the public concerning corporate welfare, or as they title it tort reform. Evan writes:

Meanwhile, the tort-reform lobby has spent millions at the grassroots levels--buying TV commercials and print ads, setting up booths at county fairs, and starting newspapers and weblogs--in order to spread its message of "greedy lawyers" and "frivolous lawsuits." The aim of the tort-reform lobby is not only to pave the way for legislation, but to poison potential jurors with its pro-business mindset. Speaking as a lawyer who's been involved in jury selection recently, these efforts of the tort-reform lobby have been a smashing success.

I refuse to use the term tort reform. We’ve allowed the corporate world to frame the issue about the legal system. The real problem is that corporations won’t stand up and take responsibility for their actions. It’s really corporate welfare. Let’s call it what it is.


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Keeping an Eye on What Defense Attorneys Learn

“Know your enemies” – Sun Tsu 2,000 BC

“Keep your friends close and your enemies closer.” Michael Corleone. Godfather II.

For The Defense  is a monthly magazine distributed to all members of the Defense Research Institute and other subscribers. It is DRI' s flagship publication, containing original writings on topics of professional interest to lawyers and others concerned with the defense of civil actions. A subscription for non-members is $50 a year.

Also of interest is Trial Practice Handbook for a Successful Defense  a book published by the Defense Research Institute that offers practical guidance to their fellow defense lawyers on trial preparation and trial tactics and techniques for $80.

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