Direct Examinations Preparation #5 - Inoculation

Like a vaccination, but without needles.

By now, readers of this feed will recognize that we preach both offence and defence as we prepare for interviews. This tenet holds equally true for direct examinations, which are highly structured interviews. Now, we put a name to the technique of defence. Inoculation is the technique of allowing the witness to provide a full explanation of the ‘bad facts’. The witness will likely have little opportunity to explain during the cross-examination that will follow the direct.

Bad facts don’t disappear if you ignore them. Even where those facts are not part of the theory of your case, you should deal with them as part of each scene where the opposition might spin the facts against your position. This discussion highlights the importance of breaking the theory of your case into its component elements and then into scenes. It may not be obvious what your opponent will do with a specific element, but once broken into scenes, you should consider your opponent’s strategy.

There are two ways to present the witness with the chance to explain. The better way is to weave the subject into your questions. This technique allows a natural explanation as if this were simply a part of the story. The less subtle way is to present the bad fact as an accusation the opposition will make and request an explanation. The inoculation technique works equally in interviews as in direct examinations.

The direct method goes like this:  You tell the witness that the next lawyer up will suggest (insert the bad fact as neutrally as possible, but fairly). What do you say about that? Or how do you explain that? Follow up the answer with anything that gets the best position out there. This technique ‘inoculates’ the witness against the cross-examination to come. While the cross-examiner may insinuate that the witness’ explanation is inadequate, at least it’s on the table for you to rely on for the balance of the trial. The best-case scenario is that the cross leaves the subject alone. The worst case is that the explanation leaves you in a bad position, which the cross then compounds. Pick your poison, Counsellor!

Inoculation covers three related strategies.

1.     Try to have the witness explain in a way that makes the point seem favourable.

2.     Try to have the witness show that the point is neutral (so what?)

3.     Try to have the witness minimize the point, so it doesn’t seem so very harmful.

During preparation with the witness in advance of the direct examination, it is important that you explore the bad facts thoroughly. This practice will assist you in choosing which of the three strategies works best. We have listed these in descending order, as you will prefer to use #1 over #2 and both over #3.

Goldilocks v. The Three Bears gives us the raw material to demonstrate the three strategies.

The element is that the Bears return home to find their sanctuary has been invaded. The scene is the return from the sojourn, but before the Bears re-enter the house. Picture three cartoon characters studying the house’s exterior and sniffing to find the tell-tale scent of a human.

As you envision this scene on behalf of your clients, consider how Goldilocks may present the scene. With Papa Bear as the witness, you face these ‘bad facts’:

1.     Papa Bear leads the Three Bears, a formidable force.

2.     Just as the ‘invader’ may be dangerous, it may be benign, as is the case.

3.     The Bears could stay outside and raise a ruckus to flush out the ‘invader’.

What will be your positions on these, in descending order of strategies?

1.     Papa Bear leads the Three Bears, a formidable force.

o   Yes, he, and as such, he has the duty to protect his family.

o   Sure, but so what? The Bears have to go home, right? So they do what they would have done without him in charge.

o   OK, but this battle group acts with restraint, causing little damage.

2.     Just as the ‘invader’ may be dangerous, it may be benign, as is the case.

o   Yes, this ‘unknown’ has to be handled as if it were the worst possibility, not the best.

o   Sure, but so what? The Bears have to face the danger somehow. They chose their tactics in good faith.

o   OK, but hindsight is 20/20. Maybe they would act differently in light of what the facts were.

3.     The Bears could stay outside and raise a ruckus to flush out the ‘invader’.

o   Sure, but the fact that Papa Bear takes positive steps to rid his home of danger stands in his favor, reflecting good character and decision-making.

o   OK, but who would sit around while their house is in peril? Really?

o   Yes, but Papa Bear has to make a choice, and he did so. You weren’t there, were you?

So you have the strategy for each of the possible attacks. Let’s see how the first one might play out, #1.

HL1: Now, I want to discuss what choices your family faced.

1.     FU1: What did you suspect was in your house?

2.     FU2: What were the chances it was bigger and stronger than the three of you were?

3.     FU3: Why did you assume the invader was bigger and stronger than you three were?

Discussion: We chose to work the questions into the witness’s evidence. Note that we did not use a Broad Open Question for this sequence. The reason is that we are directing the witness to explain specific suggestions we anticipate from the opposition.

Exercise: Create the question sequences to inoculate Papa Bear concerning the other two points made above. Try both techniques – weaving it into the testimony and presenting it as an accusation.

If you want more detail and exercises, consider Examinations in Civil Trials – the Formula for Success, available from Irwin Law here, or the self-published handbook, Outlining: How to structure Examinations in Civil Litigation, available from Amazon here.