Open Questions #5 - The Five-and-Out Technique

Putting it all together

We have now covered four basic techniques for interviewing witnesses. By now, it should be apparent how this applies to more than just interviews in your office. 

We call this sequence the Five-and-Out Technique.

·        Headline

·        Broad open question

·        A few open follow-up questions

·        Move on to the next headline

Why bother? There are many advantages and no disadvantages. Consider these reasons to use the technique:

·        Your preparation becomes a breeze. Think of all the topics you want to cover, and then break them into bite-sized chunks. You have your outline!

·        Your witness is always on the same page as you are.

·        If you find a sequence is going nowhere, you can ditch it mid-stream.

·        You can always return to where you strayed and restart if you lose your way.

·        If you were to read a transcript later (as lawyers often do in depositions or oral discovery), you could readily identify the subject under discussion. 

·        It allows – almost forces – you to pause as you complete a sequence. This technique lets you regroup and also lets your witness catch up as you do so. 

Say that you want to discuss what the witness thought after seeing that awful house. A sequence might be:

Headline and Broad open question

·        I will now ask you about the house on Elm Street.

·        Tell me about your impressions of it.

Targeted follow-ups:

·        How long did you stay there?

·        What about the exterior?

·        Who else saw it with you?

·        When did you see it?

·        Where was that hideous tree?

 Next Headline and Broad open question

·        I will now ask what you planned to do next. Tell me about that.

Why only a few targeted questions? The technique’s name is “Five-and-Out”, but the number five is approximate, not a hard rule. The idea is that you want the witness to recall your subject and to stay on message. If you drag on with twenty questions, it is increasingly possible that your witness and you lose the trail during the sequence. If you have an observer (maybe a judge is watching you examine the witness in Court?), it is easy for the observer to lose track, too.

Exercise: using the Five-and-Out Technique, interview May Donoghue about her story. Be selective when choosing to loop on a word or phrase from the previous answer.

Apply this technique to a case in your own practice or, if in law school, to a court case you are studying. Note how your skills improve with practice.

If you want more detail and exercises, consider The Art of the Interview - How Lawyers Talk with Clients, available from Irwin Law here.