Detecting Non-Answers During Cross-Examination

Elliott Wilcox shares another great post from his Winning Trial Advocacy Tips blog.  I know I rant and rave about how wonderful this blog is and I fear I may be accused of a man-crush on Elliott, a gentleman I have never spoken with, much less met.  But there is so much crap spread by those who think that they know something about trial preparation and trial advocacy that when someone actually shares something of value I feel compelled to applaud it – loud and often.  Elliott gets it and, more importantly, he shares it.

The latest cheer goes out for a post titled "How to Detect Non-Answers During Cross-Examination."  Here is an excerpt:

To become a quality cross-examiner, you must master the ability to critically listen to  witness’s answers and identify the weaknesses, fallacies, and evasions in their responses. 

One of the more common evasions you’ll need to recognize is the “non-answer.”  Expert witnesses and well-prepped witnesses are the best masters of the “non-answer.”  At their finest, their responses don’t even appear to be evasive.  They’ll make it sound like they’ve answered your question, but in fact, they’re completely side-stepping it.  They do this by telling you something that you hope to hear or giving you a response that sounds like what you need to hear.

Elliott goes on to list nine examples of non-answers to questions.  Here are two of them:

Non-Answer #1:   Completely Avoiding the Issue

Q: Does this skirt make me look fat?
I love you.  (Or you can try Dave Barry’s response: Sticking a fork in one or both eyes to avoid answering… it’s much less painful!)

Non-Answer #2:   Describing Expected Procedures

Q: Did you request a CAT-scan?
It’s normal procedure to request a CAT-scan in those circumstances. 

Q: When was the President informed of your decision?
A: Protocol demands that the chief executive be immediately apprised of matters like this.

This is good stuff.  A review of this post will bring back memories of errors you have made during depositions, errors only discovered after you picked up the transcript to prepare a response to a motion for summary judgment or a cross-exam at trial.  And it will help you make sure you don’t make those mistakes again.

Thanks, Elliott.


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