Dave Dolkas
Dave Dolkas


The Art And Science Of Investigative Questions: Part 3 (Tough-Sounding v. Tough Questions)

In the first two articles of this five-part series, we discussed the different types of questions often used in investigative interviews, as well as how interviewers can target their questions to either the "red brain" or the "blue brain." In part three, let’s now consider how sources and witnesses respond to tough-sounding questions. I’m covering this topic before sharing the investigative-questioning technique because asking tough-sounding questions — rather than tough questions — seems to be the default mode for many examiners. In this article I’ll give you a few examples featuring famous investigative reporters. Then we'll look at the answers those reporters received and you can decide for yourself how effective the questions were.

John Sawatsky

John Sawatsky is an award-winning Canadian journalist and ESPN’s senior director of talent development. Since the early 1990s, he has taught investigative journalists his method of asking investigative questions, and in 2004 he began helping ESPN reporters improve their investigative- questioning skills to get the most out of their interviews. Sawatsky’s approach applies the discipline touted in "The Elements of Style," William Strunk and E.B. White’s famous book on writing: "Make every word tell."

Sawatsky teaches that the interview approach of famous investigative journalists like Mike Wallace, Dan Rather and Oriana Fallaci is based on asking tough-sounding questions. While many journalists and lawyers have adopted this prosecutorial, combative approach, Sawatsky rejects it. He says that it may make for entertaining television shows, magazine articles, depositions and courtroom examinations, but it doesn’t reveal information.

There are three key principles to Sawatsky’s method of asking investigative questions. First, the examiner can’t blow and suck information at the same time. This is true for many lawyers asking investigative questions: too much blowing out of information, too little taking in of information.

Second, the examiner should be dialed to input from the source, not output from herself. Input from the source is obtained by asking neutral, open-ended questions. Output occurs each time the examiner makes a statement, interjects a value or voices an opinion.

Third, while it’s fine for the questions to sound conversational, we must realize that investigative questioning is not a conversation. A conversation results when both sides freely exchange information. The goal of investigative questioning is to receive information — usually from fearful, reluctant or well-trained sources and witnesses.

Mike Wallace's Interview Style

In a 1989 interview with Nancy Reagan, after President Reagan had left office, Mike Wallace asked the former First Lady the following questions about an upcoming speaking tour in Japan where the Reagans would receive a $2 million speaking fee:

[Wallace] You’re going to be in Japan and I’m told it’s a $2 million two weeks.

[Reagan] They’re getting two of us and they’re working us like crazy.

[Wallace] But it’s going to be a well-recompensed two weeks.

[Reagan] It is for everybody who goes there, which you probably know. And you really didn’t need that question.

In a 1979 interview during the height of the Iranian hostage crisis, Wallace posed to the Ayatollah Khomeini, the supreme leader of Iran, the following statement as a question:

President Sadat of Egypt, a devotedly religious man, says what you are doing now is, quote, a disgrace to Islam. And he calls you, Imam — forgive me, his words, not mine — a lunatic.

The translator initially refused to translate Wallace’s statement. The "60 Minutes" broadcast did not show the Ayatollah’s response. After he understood what Wallace had conveyed, the Ayatollah promptly called for the assassination of President Sadat. And Sadat was, indeed, assassinated on Oct. 6, 1981.

Notice how in each of these exchanges — between Wallace and Reagan and Wallace and Khomeini — where the tough-sounding statement was made, Wallace never asked a question. He posed declarative statements to elicit a response.

The Hanging Question

The technique Wallace used is called the hanging question. A statement is made, dangled like bait on a hook, for the source to bite. Yet most of the time the source doesn’t bite — especially a politician, executive or professional expert trained to avoid these types of questions. And while the technique may liven up an interview by making the subject uncomfortable, it usually yields little or no information — as we saw in Wallace's interview with Nancy Reagan.

A few years ago in a CNN interview, reporter Jeff Greenfield interviewed the late Sam Donaldson. Donaldson was a veteran television reporter who covered the White House for years. Greenfield accused Donaldson and other White House reporters of succumbing to “Perry Mason syndrome.” (For non-baby boomers, Perry Mason was a fictional lawyer in a 1950s television drama. Every episode culminated with a trial where Mason asked the one question that caused the witness on the stand to cough up the truth, allowing Mason to win the case for his client.)

Greenfield said to Donaldson, “You guys [White House correspondents] think that if you ask the right question in the right way, they’ll crumble, they’ll admit to something.”[1] Donaldson responded: “They’re not going to crumble. The point is to ask a pointed question that hangs in the air ...”[2] Donaldson went on to add: “You ask a pointed question and the audience can ask itself, ‘Why didn’t he answer the question?' Or they ask, ‘Why did he ask that question?’ But the point is, it’s there even if he doesn’t answer it.”[3]

Perhaps the most famous hanging question was the one Wallace asked John Ehrlichman in a 1973 interview broadcast on "60 Minutes." Ehrlichman was a top Nixon aide during the Watergate era. At the time of the interview, Ehrlichman had just been fired from Nixon’s White House staff. Ehrlichman later went to prison for conspiracy and obstruction of justice, among other crimes. As the camera moved in to a tight close-up of Ehrlichman’s perspiring face, Wallace posed this hanging question:

Plans to audit tax returns for political retaliation. Theft of psychiatric records. Spying by undercover agents. Bogus opinion polls. Plans to fire-bomb a building. Conspiracy to obstruct justice. All of this by the law and order of the administration of Richard Nixon.

Eight long seconds passed. Ehrlichman then smirked and responded:

Is there a question in there somewhere?

Was this an effective investigative question? It had Ehrlichman sweating literally and figuratively. The long, pre-answer pause suggested that the question had caught Ehrlichman off guard. He needed time to formulate a nonresponse, which he did by challenging whether a question had been asked.

Critique of the Hanging-Question

John Sawatsky disagrees with examiners using these kinds of tough-sounding, hanging questions. The examiner should follow a judo-like approach and use the source’s size, strength and answers to the examiner’s advantage. Instead of asking value-laden, declarative questions, the examiner should use short, neutral questions that repeat the source’s own words. This is Level One and Level Two questioning, explained in Part 5 of this series.

Sawatsky says that journalism is about being direct and clear, and not confusing people. The same is true for lawyers questioning sources and witnesses. According to Sawatsky, “Sam Donaldson is saying: 'Let the audience figure it out. Let them read between the lines.' Basically, he’s saying he can’t do his job. Questions are supposed to get answers. Questions that fail to get answers are not tough enough. We have to redefine what tough is.”[4]

Consider the Source/Witness

In most of the contexts in which lawyers ask investigative questions the sources/witnesses are usually fearful and distrustful of lawyers, heavily coached, or skilled at not answering questions — or some combination of all three. These sources/witnesses are neither primed nor motivated to provide helpful narrative information. Tough-sounding questions cause the source’s red brain to take over and control the answers. The last thing fearful, guarded or trained sources do is open up and provide revealing information through their answers. They’re also not inclined to give up gratuitous information that helps the examiner.

To a “friendly” company witness questioned as part of an investigation, the mere fact that they’ve been asked to answer questions posed by a lawyer (whom they just met) must mean that either their past judgment or a decision they made is being questioned or, worse, they screwed up and their job is in jeopardy. (The assurance by the lawyer that everything said in the interview is protected under the attorney-client privilege gives fearful, worried sources little solace — assuming they even understand the significance of the privilege.)

Opposing-party witnesses are coached on how to answer. We know what lawyers tell clients before a deposition:

  • Answer "Yes," "No" or "I don’t know." Use "I don’t know" whenever possible.
  • If you have to give a response, make it short. No long narrative answers or explanations.
  • Answer only the exact question asked.
  • Make the examiner draw the information out of you by the questions asked, not by you being helpful or explaining anything.
  • Don’t volunteer anything.
  • Don’t be helpful.
  • Don’t explain yourself.

Witness preparation, in most instances, is mostly about coaching the witness on how to avoid giving a revealing and responsive answer to a question. It’s prepping the witness’s red brain to be on alert and poised.

The professional expert witness is experienced and skilled in how to answer questions — actually how not to answer questions. The chances are good that the professional witness you’re questioning has been deposed or given trial testimony dozens of times. The professional witness is comfortable. She operates in blue brain, unless the examiner can get her into red brain. Professional witnesses know a ton more about their areas of expertise than examiners will ever know. They know how to dodge a question by challenging the premise of the question or the data underlying it.

Given these challenges, what should the examiner do?

Choose Shades of Gray, Not Black and White

The investigative questions lawyers ask should require the source or witness to choose between shades of gray, rather than black and white. The investigative questions should change the dynamic between the investigator and the source or witness. They should be designed to prevent the knee-jerk answer — usually either a denial or the answer that makes the source look good.

Assume you’re the attorney for the plaintiff in a wrongful termination case and you’re deposing the head of human resources for the defendant company who fired your client.

You ask these black-and-white questions:

Q: Was the firing of the plaintiff consistent with the company’s mission statement?

Q: Were you satisfied the company conducted a thorough investigation before firing the plaintiff?

Do we know what the answers will be before the answers are given? Of course we do. Unless the head of HR decided to go rogue on the company, the answers will be “yes.” If the goal of the questioning is to cause the head of HR to reveal information that will allow more follow-up questions that will elicit still more information, then the examiner needs to change the questioning strategy. Instead of asking those binary questions, the examiner should ask questions that cause the source to choose shades of gray. Here are those questions reframed:

Q: How did the company’s mission statement — to treat employees like family, let’s say — impact the decision to fire the plaintiff?

Q: Under the company’s policy, what are all of the steps that need to occur in an employee investigation before an employee is fired?

By asking these questions, the examiner will receive far more interesting answers and definitely not a yes or no response. The examiner then uses the answers to these questions to form new questions (using the "Five Ws and One H" discussed in Part 4 of this series). What if the answer to the last question is: "The company doesn’t have a policy that outlines the steps." Then the next question should be: "Why doesn’t the company have a policy?"

In short, if your purpose in asking investigative questions is to obtain substantive and revealing answers from the source, then don’t ask tough-sounding questions. Ask tough questions. Parts 4 and 5 of this series discuss techniques for asking truly tough questions.

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.

[1] Susan Paterno, “The Question Man,” American Journalism Review, October 2000, 6.

[2] Id.

[3] Id.

[4] Id.

David Dolkas