The Art And Science Of Investigative Questions: Part 1 (Introduction)
This five-part article discusses the art and science of asking investigative questions. It offers ideas and instruction on how to ask better questions in any investigative context where lawyers must elicit information from a source or a witness — an interview, a deposition or a trial examination.
I was a litigator and trial attorney for 34 years. I tried over 30 jury and judge trials all over the country, focusing mostly on complex patent- infringement cases for the last third of my career. I questioned well over a thousand witnesses and sources during that time. I learned how to ask investigative questions by watching and trying to mimic what senior, experienced lawyers did (and from what I watched on television). Today I believe that a lot of what I observed and did in practice when I asked investigative questions was mostly wrong.
I became interested in this topic — the art and science of asking questions — a few years ago when I began researching how our brains function when we make decisions. That led me to consider how the research applied to the process of answering tough questions. What I learned is that the answer coming from a source or witness is the result of a decision made by that source or witness. That’s not too surprising. What is surprising is that the type of question asked often determines the result — i.e., the answer chosen by the source/witness.
I begin by discussing an interview conducted by the iconic and legendary television reporter, Mike Wallace, of former pitching ace Roger Clemens. The interview aired on "60 Minutes" in 2008. We can learn about the art and science of asking investigative questions by considering how famous interviewers/examiners, like Wallace, asked questions.
At the time of this interview, Clemens was accused in a soon-to-be-released Major League Baseball investigation report of taking banned performance-enhancing drugs — steroids. The steroids were allegedly administered to Clemens by his longtime trainer Brian McNamee.
Before Wallace interviewed Clemens, another star pitcher and close friend of Clemens, Andy Pettitte, admitted that McNamee had given him steroids to help his recovery from an injury.
For those of you who are not baseball fans, let me tell you a bit about Roger Clemens.
- Clemens was one of the most successful pitchers ever in baseball, winning 354 games, receiving seven Cy Young Awards in 24 seasons, and ranking third in the all-time strikeout list.
- While Clemens never tested positive for steroid use, his name was referenced 82 times in the Mitchell Report, the report summarizing the independent investigation of illegal steroid use in Major League Baseball.
- To this day, Clemens continues to deny ever taking steroids.
- Despite his amazing record of achievements in baseball, Clemens hasn’t been inducted into Baseball's Hall of Fame because of the taint associated with his alleged steroid use.
The Wallace/Clemens interview aired on "60 Minutes" a few days before the release of the Mitchell Report. Wallace asked Clemens these questions:
Q: [Wallace] Did your former trainer, Brian McNamee, ever inject you with anything?
A: [Clemens] Yes, he did.
A: Lidocaine and B12.
Q: Never, never a human-growth hormone? A: Never.
Q: Never testosterone?
A: Never. Never.
Wallace asked Clemens close-ended, tough-sounding questions. Clemens answered with denials (never) to all of the important questions Wallace asked. As I’ll explain, and assuming the evidence of Clemens’ steroid use was valid, Clemens' "red brain" would not allow him to give an answer admitting to taking steroids, even though Clemens’ "blue brain" was spinning like a top. I’ll further explain these terms — red brain and blue brain — in part 2. For now, understand that the red and blue brains are the parts of our brains involved in every decision we make, including how we choose to answer a question.
You can argue that this exchange between Wallace and Clemens was tough investigative questioning. (At least it made for good television.) Wallace asked the ultimate question of Clemens (Never, never a human-growth hormone?) and got an answer: a denial (Never). But did Clemens' answers reveal anything surprising? Going into the interview, did the segment's producers and Mike Wallace believe Clemens would admit to the world in a "60 Minutes" broadcast that he had taken banned steroids? Doing so would surely have ended any chance of his getting into the Hall of Fame.
Questions like "Have you ever taken steroids?" and " Do you swear you’ve never taken steroids?" or "Did you lie to my client about ... ?" and "Were you telling the truth when you said ... ?" — these questions may sound tough, however they are binary, black-and-white, easy to knock down with denials.
Because these types of questions are yes-no questions, they merely ask for a confirmation or denial. They give the source two options: One is good (a denial: I never took steroids) and one is bad (an admission: I took steroids). Which option will the source select? The source will usually choose an answer that makes him/her look good. Because this is so ingrained, we can often predict the answer before the question is answered.
Unless Clemens went into the "60 Minutes" interview having already decided to admit to taking steroids (or a witness in a lawsuit proceeds into the deposition ready to admit to lying), what type of response do you think will be given to these kinds of binary questions? You’ll receive the response the witness believes is good for the witness.
Baby Boomers, like me, grew up watching "60 Minutes" and believe that these kinds of questions — that Wallace asked Clemens — are effective investigative questioning. We can trace the adoption of this style of questioning to the groundbreaking reporting that exposed reportorial victories such as Watergate, the Pentagon Papers, and the My Lai massacre. Those victories empowered people like Mike Wallace, with the source becoming the enemy to defeat at any cost. The sources often responded with stonewalling or hostility. That style of combative questioning is often used by lawyers asking questions of sources, employees and witnesses.
The combative approach is premised on the belief that ostensibly hard, tough-sounding questions will yield raw, honest answers exposing the truth. Do they? I don’t think so. In this five-part article, I'll explore the effectiveness of this approach. I'll also discuss how to ask not tough- sounding questions, but rather tough questions.
But let’s begin with something very basic: What’s a question?
Question = Topic + Inquiry
What I’ll focus on here is the inquiry part of this equation. Inquiry is the method, technique or tool to get the information sought by the question. Lawyers have several tools at their disposal to elicit information. And they often select the wrong tool. When they should use a wrench, they use a hammer — meaning when they should ask a pre-planned, well-chosen, open-ended question, they ask a tough-sounding, closed-ended question. Then they’re surprised that they didn’t get the answer they expected. I’ll give you some techniques for asking questions that elicit revealing information.
We have three basic questioning tools:
Investigative = open-ended question. We ask investigative questions when we don’t know the answer. The source or witness has the information and we need to elicit it. What was your reaction to ... ? The question is open-ended. It doesn't give the source a binary choice. The source must provide some form of a narrative response.
Directive = binary. We ask directive questions when we know the source’s answer to the question and we need the source to share it. We direct the answer (that we already know) through the question. Were you satisfied with the response? Or the question Mike Wallace asked Roger Clemens: Never, never a human-growth hormone? This type of question is binary: yes/no, this/that, black/white. It gives the source the power to choose a given response. It doesn't force him/her to create a narrative.
Declarative = closed. We ask declarative questions when we know the answer and we want the source to confirm the truth of the declarative statement framed by the question. It’s what trial lawyers use for cross-examination. You never took human-growth hormones, correct? That's a statement or a declaration, with the word correct added to make it a question. It's output by the examiner of a statement, seeking confirmation by the source. No narrative is sought in the answer. In fact, the examiner doesn’t want a narrative response when using this method.
There may be contexts — like a deposition — requiring the examiner to use all three methods. The examiner uses the investigative method to reveal information from the witness, the directive method to have the witness tell his/her story (so the examiner hears what the witness will say at trial), and the declarative method to pin the witness down to irrefutable points (for later use in cross-examination of the witness at trial). A skillful examiner uses all three methods often without thinking — like a master painter with a brush or an experienced mechanic with a set of tools. Although lawyers use a mix of all three methods when questioning sources and witnesses — even when they are conducting investigation questioning — the predominant method of questioning when conducting an investigation should be the investigative method.
Part 2 of this article discusses the two parts of our brains: the red brain and the blue brain. Why is this important? Because when you question a source or witness, you need to direct your questions to either their red brain or blue brain depending on the context. And you, the examiner, must remain in blue-brain mode. Part 3 will provide examples of tough-sounding vs. tough questions and the effectiveness of both. Part 4 discusses the foundational approach for asking better investigative questions, along with recommended Dos and Don’ts. And Part 5 refines those techniques through a method called Level One and Level Two questions. My approach is adapted from the teachings of John Sawatsky. You may not know who Sawatsky is now, but you'll know him and his method of investigative questioning after reading this article series.
David Dolkas was a litigator and trial lawyer for 34 years, most recently with McDermott Will & Emery LLP. He now trains and coaches lawyers on how to MAP (manage, analyze and present) complex cases and how to map careers.