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 Mr. Small focuses on how speculation is a normal human instinct, but it is an instinct that can get a witness into a hole. He explains that there are three basic kinds of guessing.

1) Factual Details - This form of guessing involves factual details, such as 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. It is important to 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.

2) Inference - Every day we draw inferences from what is around us. Inferences are often an answer to a "why" or a "what." Why did someone do/say/write something? What did they mean by it? Why did something happen or not happen? 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 that you are making a false statement which is 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.

3) Hypotheticals - Lawyers are used to hypotheticals as a teaching device. 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 hindsight and foresight, in either the "attack hypothetical" or the "meteor hypothetical." The attack hypothetical is the most common hypothetical. This involves the questioner putting forward some assumed facts and then asking what the witness would, should or could have done. The meteor hypothetical is when the questioner tries to make a point by asking about something that has never happened. For example, "If a meteor were to come crashing through your building tomorrow, what are the three things that Bob Smith should do?" If it never happened, any answer to the question is pure speculation and guessing.

Trying too hard to guess at answers and look smart is a dangerous luxury. Don't let your witnesses do it. When your witness is unsure of how to answer a question they must say, "I don't know" or "I don't want to guess," and stop.

Listen to more Powerful Witness Preparation Podcasts here.

Related Insights