February 4, 2020

Podcast - Rule 7: Playing the Guessing Game is a Losing Strategy

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "Playing the Guessing Game is a Losing Strategy," litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. In this episode, he talks about guessing, a normal human instinct that can leave witnesses in a very deep hole. Mr. Small covers three kinds of guessing — factual details, inferences and hypotheticals — and explains why each one is problematic in the witness environment.

Listen to more Powerful Witness Preparation Podcasts here.


Dan Small: Could have, could be, should have, should be, would have, would be. Ah 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.

Factual Details

First, factual details. The first form of guessing involves details like dates, times, names, numbers and so on. Guessing 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 don't 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 it's critical.

In our everyday conversations we guess, estimate or do whatever seems reasonable to keep the conversation going, knowing that we'll never be cross-examined or held to our precise statement. The problem is that whatever you guess, there is always a chance that your guess is wrong. That's OK in a casual setting. Everything changes when you become a witness. What we think of as 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 in an earlier podcast 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 to guess at the missing details. Then when the questioner looks at a document or asks someone else for the same details, and they give a different answer, the witness has created the worst kind of conflict, an unnecessary conflict. There will always be some natural conflict when two or more people are asked about the same thing. 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 the 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 don't 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 giving others plenty of extra room and making it absolutely clear that you're 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,

"Madam Witness. When did this meeting take place?"

Answer: "I don't recall."

"Well, it was last year, wasn't it?"

"I believe so."

"When last year?"

"I don't recall."

"Well, you were at this meeting, give us your best memory of the month."

"I don't want to guess."

"What is your best recollection?"

"I could only guess that it was sometime in the spring."

You've answered each question to the best of your ability without locking yourself into greater precision than you truly are comfortable with. It gives you and gives anyone else who may be asked the same questions plenty of room to avoid unnecessary conflicts. Having given a range, don't let anyone narrow it unless you're absolutely certain.


Second, inferences. Every day, every hour, in virtually every conversation, 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 human 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 or say or write something? What did they mean by it? Why did something happen or not happen? If we're talking about a subject with which we're familiar, we take pride in the fact that our inferences are often correct. Many times, if we could figure the odds, we'd take comfort in the chances of being 90 percent, 95 percent that we are right. Therein lies the problem. By congratulating ourselves on the high chance that we're right, we are recognizing what we're really doing is guessing and acknowledging the real possibility, however small, that we are wrong. Inference is really only one of many fancy ways 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, even if it's only 5 percent, that you're 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 — what you saw, heard or did, not what's in someone else's mind. So if you're asked, "Why did Mr. X say this?" or, "What did Mr. X mean when he said this?" you really have only two choices. First, if Mr. X told you what he meant when he said that, you can testify to it because that's something you heard. Understand that you're still not saying what he was really thinking, just what he said about it. After all, he could have been lying to you. Second, if Mr. X did not explain himself to you, your opinion of what he meant, however good you may be at giving opinions like that, is still just a guess. Avoiding that kind of guessing can be one of the most difficult tasks facing a witness.


Third, hypotheticals. Look up the word "hypothetical" in a dictionary or a thesaurus, and the synonyms include "guessed," "assumed" and "imaginary." Lawyers are used to hypotheticals as a teaching device, the old Socratic method involved using endless, exceedingly tougher hypotheticals to explore legal principles. But 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 to either attack or guess. Let's explore the two principal types of hypotheticals, the attack hypothetical and what I call the meteor hypothetical.

Attack Hypothetical

The most common type of hypothetical is the attack hypothetical. 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's not being asked out of curiosity, it's being asked to use the witness' 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 thing I've ever heard about the attack hypothetical is to remember the golden rule. Remember the old 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, trying 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 knew 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. It would depend on too much, don't guess.

Meteor Hypothetical

The 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 or she 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. For example, if the CEO of the company called you and said he wanted everyone outside for jumping jacks at 7 a.m. tomorrow, what would happen? Well, if it never happened and there's 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. If tomorrow a meteor came crashing through the roof of your building, what are the first three things that 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." Confess, we all want to look smart in front of others. It's natural. But in the very unnatural environment of being a witness, of sitting in that witness chair, trying too hard to look smart is a dangerous luxury. Don't do it. Don't guess.

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