Consider this situation. You have a great piece of impeachment material—for example, Mr. Smith, CEO, said in his deposition: “I knew what I told the investors on the Q4 earnings call about our sales projections wasn’t true.” Following the template I outlined in a previous post, you start this section of your questioning as follows:
Q. Mr. Smith, you knew that what you told the investors on the Q4 earning call about sales projections wasn’t true, didn’t you?
Perfect, right? Your question exactly matches the impeachment material. If he says “yes,” you get the admission you want. If he says “no,” you use the deposition to impeach him. All good.
What happens if Mr. Smith answers the question as follows:
A. Well…, here’s the thing with earnings calls, you kinda have to have a sense of what matters to investors, and what I really remember about the Q4 earnings call was that everyone already knew what was going on with our sales projections, and the really key thing was for me to explain where we stood with our merger talks.
In other words, what do you do when Mr. Smith doesn’t give you a “yes” or “no” answer but instead tries to give you a longer answer? In this case, he’s presumably trying to wedge in some materiality defense, but there are other variations. He might try to answer a different question; he might try to argue with a premise of the question, etc. Whatever he does, though, the problem you face is that you really need a clean “yes,” i.e., an admission, or a “no” to set up your impeachment. (You can't launch into an impeachment from the answer he just gave; he hasn't actually contradicted himself.)
So how do you get that clean yes/no answer?
One thing you might be thinking is that you need to discipline the witness. For example, you might try to re-ask the question, but prefacing it with “Sir, I need you to focus on answering the question I just asked – you knew that...” Or, even more bluntly “Mr. Smith, I’m asking you a yes or no question – you knew that…” But honestly, those aren’t great options. If Mr. Smith has gotten out his wordy answer the first time, he’s probably going to push back on this as well – “I think I am answering your question…”; “I’m not sure that is a yes or no question..”, etc.
Another thing you might try is to appeal to the judge—“Your honor, could you ask Mr. Smith to please answer my questions with “yes” or “no?” I don't love that either. It might work; the judge might give you the instruction you want. But you might also get some non-helpful response or one that makes things worse. Judges can be sympathetic to witnesses facing tough questions. What do you do when the judge says: “Well, I’m not sure that yes and no are the only answers to that question” (good luck getting any more yes/no answers), or “Why don’t you try re-phrasing the question” (you can’t; you need it to match your impeachment)?
The point I’m trying to make here is this – when you need a “yes” or “no” answer to a key question on cross, not getting it is bad and there isn’t a reliable way to fix it after the fact. Instead, what you want to do is take steps before you ask the key question in order to maximize the chances of getting a clean “yes” or “no”.
How can you do that? Here’s how I would start this part of the questioning of Mr. Smith. I would not start with the key impeachment question. I’d start with a series of questions like this:
Q. Mr. Smith, you were the CEO of this company, correct?
Q. You held that position from 2010 through 2020, didn’t you?
Q. As CEO, you participated in quarterly earnings call?
Q. Those calls took place around the time of each quarter’s earnings release?
Q. And on those call you would read a statement, correct?
Q. And you would also answer questions from participants on the call?
Q. You participated in those calls in 2020?
Q. You participated in one in Q4 of 2020?
Q. And in the one in Q4, you read a prepared statement to investors, correct?
Q. That statement discussed, among other things, sales projections, right?
Q. But you knew that what you told the investors on the Q4 earning call about sales projections wasn’t true, didn’t you?
The key thing here is to lead up to the key question—the final question above that sets up your impeachment—with a series of completely innocent, innocuous questions to which there can be no other reasonable answer than “yes.”
In other words, rather than just launching into your key question and impeachment, you are giving yourself a “runway” to build up to that question. This dramatically increases your chances of getting a clean yes/no answer to your ultimate question.
Why?
First, people just generally find it much more difficult to switch from giving yes/no answers to giving longer answers than to start off giving longer answers. Try it next time you are doing mock questioning with a witness in prep. Pick a difficult question that the witness should answer with a longer explanation, but preface it with a “runway” like the one above. I’ve prepped hundreds of witnesses, and my experience is that 90% or more are completely unable to switch to a longer answer if they’ve just travelled down a yes/no runway.
Second, this pressure is increased in court. Most witnesses tend to find court intimidating, and they are going to assume (rightly or wrongly) that you as the lawyer know the rules better than they do. Consequently, when you confidently ask a witness a series of questions to which the only reasonable answer is yes, they are going to feel that this must just be how it goes on cross—you have to give yes/no answers. And when you get to your final question, they are going to worry that if they don’t stick with yes/no, they’ll get scolded by the judge or look suspicious to the jury.
Third, if you have a witness who is inclined to try and resist yes/no answers (or has been prepped to do so), you are much more likely to be able to discipline them during the “runaway” then when you are at the key question.
Q. Mr. Smith, you were CEO of this company, correct?
A. Well, I held a lot of positions at the company over the years, and there was a point in time when I was CEO.
Q. So the answer to my question is “yes”?
Do that with three or four dead simple questions and most witnesses give up, realizing how silly they are looking in front of the jury. And if they don’t, then that is the time to ask the judge for an instruction. Judges may have some patience for witnesses giving longer explanations to difficult questions—they have zero patience for witnesses wasting everyone’s time on simple questions.
In the example above, I used a runway to preface an impeachment. But it works in many other places as well. Any time it is important to get a yes/no answer, make sure you have a prepared a runway to get you there. Do this when you write out your cross questions, but also practice in when you are prepping your own witnesses. You will find that eventually it becomes second nature to construct these runways—when you think of an important question you will naturally start to think of the four or five easy questions that would build up to that key question. That’s where you want to be.