Wednesday, May 15, 2019 9 a.m.–11:45 a.m.

2.5 General CLE credits

The Perfect Question with David Markowitz

iiThe Perfect Question with David Markowitz

THE PERFECT QUESTION WITH DAVID MARKOWITZ

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iiiThe Perfect Question with David Markowitz

TABLE OF CONTENTS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

The Perfect Question: How to Control the Witness, Reveal Hidden Information, and Persuade the Judge and Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ivThe Perfect Question with David Markowitz

vThe Perfect Question with David Markowitz

SCHEDULE

Presented by David Markowitz, Markowitz Herbold PC, Portland

8:30 Registration

9:00 The Perfect Question

11:45 Adjourn

(One 15-minute break will be taken during the presentation.)

FACULTY

David Markowitz, Markowitz Herbold PC, Portland. Mr. Markowitz is the cofounder of the Markowitz Herbold law firm and considered by his peers to be among the finest trial lawyers in the West. He has received numerous awards and recognition for his outstanding trial work and efforts in mentoring and educating attorneys at all levels. He has been acknowledged by premier legal publications, including Super Lawyers and Best Lawyers in America, and he was recognized by Chambers USA as a top commercial litigator in Oregon and one of only three Oregon litigators to achieve a “Star” ranking. In addition, he is a Fellow and former Oregon State Chair of the American College of Trial Lawyers, a Fellow of the International Academy of Trial Lawyers, and a member of the American Board of Trial Advocates. Mr. Markowitz frequently acts as a mediator and arbitrator to resolve commercial disputes, served as a pro tem judge in Multnomah County, and is an expert on attorney fees.

viThe Perfect Question with David Markowitz

1The Perfect Question with David Markowitz

The Perfect Question

A. Examples of the litigators’ opportunities to ask questions: 1. Depositions 2. Jury selection 3. Witnesses at trial (direct, adverse, and cross exam) B. Why questions are asked (Goals): 1. To learn information (the answer is important) 2. To prove a point (the question and answer are both important) 3. To make a point (the question is important)

- Rhetorical questions: the questioner does not care if there is a response or what it is. They are used to organize thought or to force the audience to draw a conclusion.

C. Questions have two audiences: Audience = who questioner is attempting to

impact, influence, persuade, inform, or motivate. 1) The speaker who will give the answer, and 2) the listeners who we want to persuade or inform by the question and/or answer

1. One person may have both roles:

- prospective jurors - the deponent who will make settlement decisions 2. The perfect question should speak to both audiences: - maximize information or admissions from witness, and - delivered to increase persuasive impact on decision maker.

2The Perfect Question with David Markowitz

D. There are at least four considerations to a perfect question:

1. Form (open or closed)

2. Content (e.g. word selection)

3. How it is spoken (e.g. tone and pace)

4. Timing (e.g. when to ask the important question) E. The form of the question: open v. closed

1. What is a closed (leading) question?

a. Suggests answer or list of answers

b. Capable of yes or no answer, or selection from list

2. When can leading questions be used?

a. Objections to form waived if not asserted

b. Depositions and Trial: Adverse party; and preliminary,

background, or undisputed subject matter

3. Why use closed questions?

a. Control:

• Control the language, control the argument e.g. discarded v. destroyed put it v. hid it

• Limits bad answers

b. Assists witness in remembering correct answer

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c. Witness manipulation:

• Some witnesses will agree to avoid conflict

• Witness assumes questioner knows the answer

d. Easier to ask e. Intuition: experienced professionals develop intuitive skills. They

know how to ask the question without knowing how they know – the very definition of intuition.

4. When to ask open, non-leading questions:

a. Examination of your own witness

b. When goal of question is to learn information

c. At trial, if you don’t know the answer, when there is significant potential gain from the answer and little harm will be caused by a bad answer

d. When the goal is to show that the witness is uninformed

e. When you want the witness to give different answers to the same

question

• Inconsistency is the essence of impeachment

f. When you want a damaging answer to be stated by the witness (rather than just agreed to by the witness)

g. When you want the witness to evade the question

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F. How to ask questions: create “cognitive ease” that promotes easy thought and over confidence; no need to calculate or doublecheck what sounds familiar and accurate

1. Short questions, using simple words, forming apparently easy questions, organized in an orderly series

2. Pace – moderately brisk pace to allow intuitive thought 3. Vivid words – more likely to be believed by witness and decision maker

4. Give the impression that suggested answers are normal and routine

5. Appropriate tone and timbre: for example, to confirm that witness is giving correct, helpful answers. Create a good mood.

6. Argumentative, for distraction or to agitate the witness, for example 7. Ethically – do not lead to false testimony

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8. Frame and organize questions and exhibits to influence witness thought. Kahneman, Thinking, Fast and Slow, see, e.g., p. 79, 101-102, 128

- understanding of ambiguous information is influenced by proximity to other information

- Anchoring

- WYSIATI (what you see is all there is)

- Framing: different ways of presenting the same information often evoke different responses

- Priming: exposure to a word causes immediate changes in the ease

with which related words can be evoked. Exposure to one word primes the idea of the other

EAT SO_P primes SOUP WASH SO_P primes SOAP HOW HAPPY ARE YOU THESE DAYS? HOW MANY DATES DID YOU HAVE LAST MONTH?

“The main moral of priming research is that our thoughts and our behavior are influenced, much more than we know or want, by the environment of the moment.”

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G. Examples of the Perfect Question:

1. Jury selection – primary goal is to learn information about prospective jurors to make intelligent challenges

- Open questions, with follow-up questions that show you listened to

prior answers - Ask Big Questions and why questions - Moderate pace, inquisitive tone

2. Direct exam at trial

- Don’t ask closed end questions – an accurate sign that you have little confidence in your witness

- Questions should allow witness to tell the story, one piece at a time All of the story is communicated by the answers, not the questions

- Moderate pace

3. Cross exam/adverse witness direct exam - Constructive v. destructive cross – constructive cross can use direct

exam techniques

- Destructive cross, technique depends on goal: for example, use open questions to show lack of personal knowledge, poor memory, or learned story

4. Impeachment with inconsistent deposition

- Example: depo - P car 30 mph; trial - P car 45 mph - First goal of impeachment: only the first (deposition) version should

be believed - Second goal of impeachment: witness should not be believed; not

reliable; liar - Select techniques to accomplish goal:

o Open v. closed: first goal – closed questions with no mention of trial testimony; second goal – open questions re deposition and trial testimony

o When: first goal – as soon as possible; second goal, late as possible

o What: first goal – important items; second goal – all significant differences, regardless of apparent materiality