Depositions and Rationality

post by Pablo Repetto (pablo-repetto-1) · 2021-11-04T00:10:21.908Z · LW · GW · 13 comments

Contents

  Applicability
  Summary of techniques
  Points of coincidence with the CFAR Handbook
  Points of disagreement with the CFAR Handbook
None
13 comments

Reading this guide on deposition strategy I was impressed by how many of the techniques lawyers use on uncooperative witnesses seem like good rationality techniques (a deposition is a sworn oral testimony taken out of court without a supervising judge).

Searching LessWrong, nobody seems to have noticed the parallel. Searching the CFAR participant handbook, a number of these techniques are fitting and novel.

Applicability

These techniques are designed to pull out answers from uncooperative witnesses that are legally compelled to answer truthfully. Uncooperative witnesses are often coached by a defense team in avoidance techniques.

Avoiding difficult or unpleasant questions is a common self-defeating impulse. This is true both individually, and in social interactions. Hesitation is always easy, rarely useful. Legal repercussions are normally absent, so social and group truth-seeking are not fully identical to a deposition, but the formal commitment to finding a truthful answer may be a sufficient common factor.

Summary of techniques

0. Technique zero is to recognize that it is likely that you will face an evasive witness, and commit explicitly to generate a written plan to deal with them.
1. "Marshal the facts and standards that you can use to build toward your ultimate question". Before requesting a conclusion ("did the motor carrier you represent violate Federal Motor Carrier Safety Regulations?") request individual facts that build up to your conclusion ("does FMCSR apply to your company?", "does FMCSR requires that your company ensure compiance by drivers?", "do you provide training and testing for your drivers on the contents of the FMCSR?", "does FMCSR requires that drivers keep accurate logs of their trips?", etc).
2. Exhaustion. Make the witness commit to their answer by asking "what else?", "is that all?", "is there any material you need to fully answer the question?".
3. Avoiding rabbit trails. The correct response is to let go or write down the tempting line of questioning and proceed with exhaustion.
   • Example: "Q. Give me all the reasons you believe Dr. Smith conformed to the standard of care. A. He identified the median nerve at the time of the surgery which was abnormally small and congenitally demyelinated, he protected the median nerve with [...]."
     • Incorrect response: "Q. What do you mean abnormally small?"
     • Correct response: "Q. Is there any other reason you believe Dr. Smith confirmed to standard of care?"
4. Restate and summarize. "Exhaustion of a particular topic may require many questions and many pages in a transcript. If left in its raw form, the testimony maybe unmanageable and unusable with a jury or court."
5. Boxing in, by bracketing^[1]. People who claim to have no idea about a quantity will often give surprisingly tight ranges when explicitly interrogated.
   • Example: "Q. How far apart were your truck and Mrs. Agan's car? A. I don't know. Q. Could it have been at least 5 feet, say the distance between you and me? A. No, that is to close. Q. Could it have been 15 feet, say the distance between yourself and that wall? A. No, that is too far. Q. So it is fair to say that Mrs. Agan's car was between 5 and 15 feet from your truck? A. Correct."

6. Boxing in, facts-witnesses-documents. "A technique that forces the witness to commit to testimony and/or describe any and all possible circumstances that might allow their future testimony to change. Witnesses explain their change in testimony by using one or more of three broad categories of information that a witness didn't have or consider during their deposition. These three broad categories are: facts they did not know or recollect, witnesses/individuals they had not spoken to at the time of the deposition, and/or documents they had not seen, recollected or considered. If none of those things exist, there is no basis for the witness' testimony changing."
7. Creating commitments from witnesses. Overlaps significantly with 1 ("marshall the facts"), focused on establishing the witness is/should be able to answer the questions. This is done by establishing that they are the person with most knowledge about the matter of the questions, that they are bound to answer and aware of this, that they do not need further preparation to provide answers. This line of questioning may reveal that the witness is not able to answer your questions to satisfaction, and you should be questioning someone else.
8. Dealing with "I don't know". Two broad strategies are outlined:
   1. "Nail down the fact that this witness doesn’t know something of importance" using facts-witness-documents box-in.
   2. "Convince the witness that while he/she 'may not know' or they are 'not sure', there is a plausible explanation/definition/standard that they will (inevititably) accept as true."
9. Setting a timeout to think of answers ("Having thought about it for over a minute can you think of any other safety reasons for the 'No Left Turn Rule' for truck drivers?"). Arguably part of exahustion.
10. Dealing with witnesses that want you to define your terms. Three broad strategies are outlined:
    1. "Ask for and Adopt the definition used by the witness"
    2. "Use the person’s life experiences to create a reasonable, fair definition"
    3. Use a regulation/dictionary/thesaurus to establish common use
11. Dealing with witnesses that want to avoid responsibility by quibbling with word choice ("That’s just a guideline, not a rule"). The response is to establish that the norm is expected of them, that they expect them of others, and for good reason.
12. Dealing with hedging answers ("for the most part", "mostly", "not necessarily"). Call out that the answer leaves room for doubt and interpretation, and ask the witness to make exceptions explicit until exhaustion ("that is all").
13. Demolishing rationalizations. This is not explored in detail. An example is given. (see after "When a witness has obviously manufactured some bogus rationale").
14. Interrupt witness rants.
15. Do not allow witnesses to interrupt your questions.

Points of coincidence with the CFAR Handbook

• "Marshalling the facts" is similar in spirit to identifying cruxes, in that any disagreement is supposed to be reduced to an explicit minimal argument.
• "Convincing a witness to accept a standard" uses the framework of policy level decisionmaking: making a witness accept that a norm applies to them is easier by having them endorse it first; it then becomes blatantly hypocritical for them to reject it.
• Setting apart some time for a witness to actually try recalling further information is almost exactly the same as resolve cycles.

Points of disagreement with the CFAR Handbook

• "False beliefs feel the same as true ones" means that witnesses are probably too willing to nail down their testimony and end up accidentally perjuring themselves ("Q. If you were provided facts about the position and description of the other cars, would that make a difference? A. No Q. If you had a conversation with one of your passengers about what they remember [...]? A. No").
• "Boxing in by bracketing" or "calibrated estimation" is missing from the handbook

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1. This technique appears almost verbatim under "calibrated estimation" in Douglas Hubbard's How to measure anything. ↩︎

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