Dave Dolkas
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The Art And Science Of Investigative Questions: Part 4 (The Sawatsky Method)

In the previous article in this five-part series on investigative questioning, we contrasted tough questions with tough-sounding questions and discussed which were likely to elicit more information from a source or witness. In this article, we'll discuss a method of asking investigative questions taught by John Sawatsky.

An award-winning journalist and ESPN's senior director of talent development, Sawatsky has taught investigative journalism and interview techniques for over 30 years. We should use Sawatsky’s method when the quest is to find out information we don’t already know and we need the source or the witness to tell us that information through answers to our questions. The focus here is on obtaining — not supplying — information. Think input from the source or witness, not output by you, the lawyer. Lots of lawyers get this backward, which explains why they don’t get useful information in response to their questions.

The Five Ws and One H

Who? What? When? Where? Why? And how? These questions have been taught as part of Journalism 101 courses for over a hundred years. To be a skilled examiner, you must know how to exploit their power.

The five Ws and one H are powerful because they efficiently gather and reveal information from a source. Questions starting with "what" ask about causes. (What happened?) Questions starting with "how" ask about process or events. (How did it happen? How do you explain?) Questions starting with "why" ask about motivation. (Why did it happen? Why did you do X, not Y?) Then you follow up with the other W questions: Who? When? Where?

Most important, and the key teaching point I’m trying to make, the five Ws and one H are foundational to asking investigative questions. You must build the five Ws and one H into your Level One and Level Two questions. (Level One and Level Two questions are explained in the final part of this series.)

The Power of Why

In your arsenal of questions, one stands out as the most effective: Why?

Lawyers hesitate to ask the why question — especially when questioning a sophisticated or prepared witness. Lawyers fear they’ll receive the poised, propaganda-dump answer. But "why" is a very effective question to ask whenever you’re trying to get to the bottom of an issue.

Here’s a technique you can use:

  1. Confirm what’s not contested. Confirm the status quo.
  2. Follow up with multiple why questions.
  3. Ask other W and H questions.

Let’s look at an example of this technique in action. Assume these questions are posed to a party witness in a contract dispute where there was a written notice to terminate requirement in the contract and the party did not give written notice. The examining lawyer is trying to get to the bottom of why that party failed to give written notice and wants to learn information not yet known.

Q: You didn’t provide my client with written notice of your intention to terminate the contract, correct?

A: That’s correct.

That’s a declarative question, not an investigative question. It’s asked to confirm what is so — the status quo. Now the lawyer follows up with the why questions.

Q: Why not?

A: Because I didn’t believe written notice was required.

Q: Why didn’t you believe that?

A: Because your client never asked me for a written notice.

Q: Why did you believe my client was required to ask you to give written notice?

A: Because he said if I wanted to terminate, just let him know. He never said I had to tell him in writing.

Q: Why did you rely on what my client said to you, rather than the terms of the contract you’d signed?

A: He said: “Don’t worry about the contract terms — we’ll just have this understanding.”

Q: Why did you believe what he said overrode the terms of the written contract?

At some point, you’ll exhaust the why questions. Then, switch and use the other W and H questions:

  • What exactly do you recall my client said?
  • When did he say it?
  • Where were you and my client when he said it?
  • Who else was present?
  • How do you explain that you have nothing in writing confirming what my client told you?

The Sawatsky Method

Sawatsky’s method can be distilled to four Do’s and Don’ts.

No. 1 — Do: Ask lean, clean and open-ended questions. Don’t: Ask long, loaded or close-ended questions.

"Lean" means asking short, single-topic questions rather than long, compound questions. Shorter questions yield longer answers; longer questions yield shorter answers. "Clean" means asking questions that are not loaded with opinions, trigger words or hyperbole. Loaded questions usually don’t get meaningful answers. "Open-ended questions" employ the five Ws and one H. They can’t be answered with a yes or no like close-ended questions.

The following is some Q&A from a deposition of Bill Gates taken several years ago in the U.S. Department of Justice's antitrust case against Microsoft Corp. Gates was questioned about a memo he’d written that contained inflammatory language helpful to the government’s case:

Q: Assume a neutral trier of fact is going to look at this memo in a fair and balanced way. Would you say to that neutral trier of fact: "I shouldn’t have written this because it really doesn’t reflect my views. I made a mistake." Or would you say: "If you read the whole thing and read it fairly, that’s what I believe."

Let’s pause to examine the question. The question is long and compound. It contains a loaded word: mistake. The question gave Gates two options: one bad — admit to making a mistake; one good — figure out a way to answer that makes him look good.

Now let’s look at Gates’ answer:

A: If they understood what it’s about, I wouldn’t feel any need to amend or change it.

Gates opted for the good answer. He certainly didn’t include the word “mistake” in his response. Then the examiner asked a follow-up question:

Q: You believe the memo is clear, don’t you?

That’s a close-ended question. It called for a yes or no response. It also left room for the witness to challenge the premise of the question.

Gates answered:

A: I don’t know what you mean by that. You made it clear that somebody can misinterpret this memo.

Gates’ choice? He didn’t answer the question. He challenged the question by claiming he didn’t know what the examiner meant because of how the examiner had framed the previous question.

No. 2 — Do: Probe tough issues. Don’t: Ask tough-sounding questions.

Probe tough issues, but don’t ask tough-sounding questions because the source will figure out how to dodge the question. We just saw an example of it with Bill Gates’ answer. Let’s look at another example.

In 1999, Dan Rather’s interview of Mirjana Markovic aired on "60 Minutes." Markovic was the wife of former Yugoslavian President Slobodan Milosevic. In the interview, Rather tried to get Markovic to confirm that her husband’s regime was behind the ethnic cleansing in Kosovo by ordering mass murders. Here’s part of the exchange:

[Rather] Do you know that many Americans consider your husband to be a modern-day Hitler?

[Markovic] That’s a lie. That’s like saying it’s January and snowing, while today is May 1 and it’s spring outside. In order for someone to be a new Hitler, he would have to carry with him hatred against a people ... [long rant here]. My husband is not a threat to anyone.

[Rather] What about the argument that the bombing will stop when you, Serbs, stop killing Kosovar Albanians in Kosovo, stop running them out of their homes?

[Markovic] But they are not killing them. They are not expelling them. This is as if you told me that today is Wednesday, but today is Saturday ...

Let’s look at the characteristics of the questions Rather posed to Markovic. First, both are hanging questions. Rather's questions were statements for the source to respond to. Second, they contained loaded words — "modern-day Hitler" and "killing." Markovic seized on killing and gave a helpful answer: "But they are not killing them." Then she challenged Rather, saying, in essence: "What a stupid question! It assumes a false reality — like saying today is Wednesday when it’s Saturday." It’s the same thing Bill Gates did: "I don’t know what you mean by 'clear.'" Third, the questions gave the power to the source on how to answer them — which usually means no revealing information will be provided.

After this interview with Markovic, on a broadcast of "Larry King Live," Rather lamented the result of his interview with Markovic. He characterized it as “one of the strangest interviews” he’d ever conducted because Markovic gave complete denials to provable facts. Rather’s characterization of the interview typifies how many examiners characterize sources who didn’t fess up and give truthful answers. When this happens, examiners (and I was guilty of this) characterize the source as evasive or sleazy — without stopping to consider whether the examiner’s questions were the cause of the evasiveness.

No. 3 — Do: Ask short, probing questions using the five Ws and one H. Don’t: Ask double- barreled.

In an interview with actor Robert De Niro, we see how this works. If you’ve ever read or heard an interview of De Niro, you know he’s not a particularly chatty guy — usually giving only short, cryptic answers. Here’s one of the questions by Marvin Shanken, editor and publisher of Cigar Aficionado, that drew De Niro out:

[Shanken] How did that role [as Vito Corleone in "The Godfather: Part II"] impact your life?

[De Niro] Getting the part changed my career, or revved it up, if you will. Then winning the Academy Award, you’re kind of guaranteed that you’re going to work again as an actor ... Luckily, Francis wanted me to do it.

As questions go, it was a good one for drawing out a narrative response. The "how" question contained just seven words, and De Niro’s answer comprised 95 words. Let’s contrast this question with another one the interviewer asked.

[Shanken] I was surprised, and I said this to Francis [Coppola] when I spoke to him: I don’t understand. This was an epic movie for him, "The Godfather: Part II," and for you, yet you have never done movies [together] since.

[De Niro] Mmm.

That question is double-barreled. It covers more than a single topic and injects the interviewer’s comment about his conversation with Coppola. And De Niro didn’t bite. To fans of the Godfather films (and definitely count me in), this is an important topic. Why didn’t De Niro do another film with Francis Coppola? In my fantasy world, here’s how I’d try to draw out a narrative response to that question:

[Me] How do you explain that you’ve never worked again with Coppola?

[Him] I don’t know. You need to ask Francis.

[Me] Have you ever approached Francis about working together again?

[Him] No.

[Me] Why not?

Look at the questions — one begins with how, one is directive and binary, and one begins with why. The first and third questions are intended to draw out a narrative answer.

No. 4 — Do: Ask a question. Don’t: Make statements.

This is the last of the four Do’s and Don’ts. (If you think they all seem related to the first Do — ask lean, clean and open-ended question — you’re right.) In the same interview noted above, De Niro was asked this question and gave this response:

[Shanken] So when I ask people about you, they describe you as humble, shy, uncompromising, a true perfectionist, and most loyal to your old friends. Nice descriptions. Which ones are accurate?

[De Niro] Uh, I’d like to think they’re all accurate. (laughs)

The question is a statement in the form of a list of positive adjectives to describe De Niro. There’s a question at the end of the statement that gave De Niro the choice of selecting which adjective he liked best. How did he answer? With a non-answer. He responded jokingly. The reader learns nothing about De Niro from his answer. John Sawatsky says that sources nearly always counteract overblown questions with a modest response. Just as the negative-loaded question will yield a denial, the positive-loaded question will yield modesty. Ask neutral questions (and make sure they are questions!) to reveal information from the source.

Here’s another approach, again involving my fantasy interview. I want to get De Niro to provide the adjectives that best describe him. I don’t want to supply the adjectives. Then, once the source (De Niro) supplies the adjectives, I’ll follow up on one of the adjectives that will be most interesting for the audience.

[Me] How would you describe yourself?

[Him] What do you mean?

[Me] What words come to mind if you had to describe yourself?

[Him] Probably loyal, uncompromising in a lot of aspects of my life, sometimes too much of a perfectionist.

Then, using the last words he gave, I’d follow with a why question: Why do you consider yourself too much of a perfectionist? Now we would have an interesting dynamic going on. The source gives a revealing answer and the reader learns about him through his own words, not from the examiner’s questions.

In 1972, the Italian journalist Oriana Fallaci interviewed then-Secretary of State Henry Kissinger. Fallaci was a famous journalist known for her aggressive and abrupt manner of asking questions.

In a 2006 article published in The New Yorker shortly before she died, Fallaci was described as asking sources questions “with a thousand feelings of rage.” At the time of Fallaci’s interview of Kissinger, the war continued in Vietnam. Fallaci asked Kissinger this question:

But don’t you find that [Arthur] Schlesinger is right when he says that the war in Vietnam has succeeded only in proving that a million Americans with all their technology have been incapable of defeating poorly armed men dressed in black pajamas?

Kissinger completely dodged Fallaci’s question, beginning his 164-word, nearly indecipherable answer with: "That’s another question. If it is a question ..."

By now you should be able to predict the kind of answer a question like this one will elicit. Do you think when Kissinger heard the trigger words "poorly armed men dressed in black pajamas" he made the decision to give a meaningful response? Not likely.

In depositions, when an examining lawyer poses an argumentative statement masquerading as a question, the defending lawyer typically responds: Is that a question? Then a colloquy between the lawyers ensues, the lawyers debating whether a question had actually been asked. The skillful witness sits back, watches this unfold, and finally responds: "I’m sorry. Could you ask me that question again?" Then the lawyer usually asks an actual question (after telegraphing the information the statement was out to get). That’s why it’s important to ask a question if you want an answer. Don’t make statements. Don’t insert comments or opinions.

One question, however, Fallaci asked caught Kissinger off guard:

[Fallaci] But don’t you find, Dr. Kissinger, that it’s been a useless war?

[Kissinger] On this I can agree.

As questions go, this was a very good one. Although close-ended and directive, it was short and lean. It was low on output and sought input. Kissinger’s answer was a stunning admission. The then-secretary of state admitted a war that took countless lives and cost U.S. taxpayers billions of dollars had been a “useless war.” Kissinger later wrote in his memoir that his answers to Fallaci’s questions — and this one in particular — soured his relationship with President Nixon. As I said previously, skilled examiners use all forms of questioning methods: investigative, directive and declarative.

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.

David Dolkas