Depositions, In-House Counsel, Litigators, SCOTUS, Supreme Court, United Kingdom / Great Britain

Inside Straight: Caring About Questions

Sometimes, we care about questions. Sometimes, we care about answers. Sometimes, we care about both.

When you’re reporting on a situation, remember that.

I see many, many interview reports that unnecessarily include questions when the reader cares only about answers. If you’re interviewing a witness, and the witness lived the facts (and you personally know bupkis), then we really don’t care about your questions; we care only about the witness’ answers.

So, when you’re reporting on your interview of the witness, do not assign an abbreviation to your name (Mark Herrmann, hereinafter MH), an abbreviation to the witness’s name (The Witness, hereinafter TW), and then report on your questions as though they mattered:

“MH asked . . . . TW responded . . . . MH followed up by asking . . . .”

We care only about the facts — which the witness knows, and you do not — so report only the facts:

“According to the witness . . . .” Your name should appear no more than once in the entire report, so we know who conducted the interview.

That’s a situation where we care only about answers. But there are other situations where we care only about questions . . . .

Back when I was developing business at a huge law firm, I blogged about developments in drug and device product liability law. When one of those cases went to the Supreme Court, we reported on the argument in a post that predicted how the Court would decide the case. In my report on the argument, I focused on the Court’s questions and said virtually nothing about the answers.

Why?

Because I was trying to read the Court’s mind. If I want insights into what the justices are thinking, then what matters (other than decisions the justices have written or joined in the past) is the questions the justices ask. The lawyers’ answers might occasionally matter — if, for example, the answer was so compelling that no reasonable person could hear it and still hold the opposing belief — but the lawyers’ words tell you nothing about the Court’s predilections.

(Yeah, yeah: I know that the justices could just be setting up straw men in their questions, to let counsel knock them down convincingly. In those situations, the questions say nothing about the justices’ true beliefs. But experience teaches that the lawyer who gets hammered by a court at appellate argument is likely to lose, and “the life of the law has not been logic; it has been experience.” The questions frequently matter.)

Supreme Court arguments are an example of where you care only about questions.

(Okay, okay: Here’s a link to that old post. The case was Warner-Lambert v. Kent. Roberts recused himself, so we needed five votes out of eight for a decision. We counted four, speculated that “we’re picking up either Souter or Thomas,” and prognosticated that industry would win “five to three.” Within a week after I published my prediction, the case came down affirmed by an equally divided court, four to four. So sue me: I didn’t say I was any good at fortune telling; I said only that the questions, not the answers, were what mattered.)

Finally, there are of course times when both questions and answers matter. In a deposition, for example, this question and answer is worth the effort:

Q: At that moment, was the light red?

A: Yes.

And this question and answer mean that it’s time to hire new counsel:

Q: Can you tell us whether or not the light was red?

A: Yes.

In those types of situations, neither a question nor an answer will suffice: The reader needs both to understand what’s happening.

When you’re reporting on an event that involves questions and answers, think about what your reader needs, and provide that. Your report should vary with the situation.

(Speaking of questions, here’s one prompted by life in my new home town of London, England: This place is very far north — the same latitude as Calgary, Canada. So the days are strikingly short in winter and strikingly long in summer. On June 21, for example, the sun will rise at 4:42 a.m. and set at 9:20 p.m., giving us 16 hours of sunlight.

Here’s my question: Why does this country use daylight savings time? If you have 16 hours of sunlight running from before 5 until after 9, why does it matter if you slide those 16 hours to a slightly different part of the day?

At this point, I’ll focus on your answers.)


Mark Herrmann is the Chief Counsel – Litigation and Global Chief Compliance Officer at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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