Artur Davis . . . Linguistic Badass

by publius

I didn’t watch the entire Goodling hearing (about 60%), but I had two quick impressions. First, Monica Goodling pretty much handed the House Judiciary members their asses. She was impressive, frankly. Second, the preparation of the Democratic committee members was disgraceful. They were woefully unprepared, and apparently unaware of those strange little creatures sometimes called follow-up questions. With one exception – Artur Davis (D-AL) (Orin Kerr noticed him too).

I can’t take credit for catching this -- a friend (commenter kovarsky) directed me to both Davis’s questioning and his resume. And it’s impressive stuff. Davis is a Democrat from Alabama – double Harvard, and a former Assistant US Attorney. And it shows. It wasn’t just that Davis efficiently obtained the most damaging testimony, it was the way in which he did so. Looking closely at the mechanics of his examination illustrates that he is a skilled, experienced questioner (and a master of linguistics). More below the flip.

First, one important skill for lawyers is the ability to ask questions that translate into clean written text. Very often, the entire point of a deposition is to get the witness to say something that will support an argument in a future written pleading, such as a brief or motion. For instance, if you want to make the argument “Person X didn’t tell the truth,” you have to cite factual support for that argument. And that’s where deposition (or trial) testimony comes in. You can often use that testimony as factual support for your written argument.

But as an examiner, the way in which you ask the questions will determine how effectively that testimony can be used down the road. For instance, if you ask a bunch of questions like “and what then?”, it doesn’t lend itself to clean citations or quotations. Instead, this style of questioning leads to citing a bunch of scattered transcript citations (e.g., - “Gonzales is a liar and a thief. [I’m anemic royalty]. See Goodling Tr., 47:12, 54:12-16, 61:11-18”). This style forces the judge (or clerk) to piece it all together like a puzzle.

The better approach (when possible) is to ask questions that (1) clearly and unambiguously establish your point; and (2) lend themselves to clean block quotes. That’s why lawyers’ questions are often so wordy. Things that sound long and boring in person often translate very well on to the written page.

Keep that in mind as you consider this exchange between Davis and Goodling (YouTube link here – starting about 00:45):

DAVIS: General Gonzales testified that he never saw the US attorneys list – the list of terminated US attorneys. Is that accurate knowledge, Ms. Goodling?

GOODLING: I believe he did see a list.

DAVIS: So if General Gonzales testified that he did see the list, you believe that would be inaccurate testimony, don’t you?

GOODLING: I believe he saw a list.

DAVIS: So therefore you believe it would be inaccurate testimony?

GOODLING: Yes.

DAVIS: If General Gonzales testified that he had never been briefed about the list, do you believe that would be accurate or inaccurate testimony.

GOODLING: I believe it would be inaccurate.

That’s good stuff. Look how clean it is. If there is an eventual legal proceeding, this makes for an excellent block quote that is easy to read. He also – again, efficiently and clearly – didn’t stop until he had unambiguously established his point. In doing so, note that he didn’t say “is that a yes or a no?” or “what about the briefing testimony?” He repeated his substantive point verbatim – “so . . . that would be inaccurate testimony” – in the follow-up questions. That phrasing is no accident.

But there’s more. Good lawyers are masters of linguistics, whether they know it or not. More specifically, good lawyers are masters of linguistic control in that they have the ability to either limit or expand a witness’s linguistic freedom to suit their needs.

Let’s take, for instance, yes or no questions. When someone asks you a yes or no question, you are essentially limited to two answers. The questioner has put you in a “linguistic cage” by limiting the range of your potential responses. Other questions, however, are intended to maximize linguistic freedom – e.g., “describe your recollection of this event.” These open-ended questions invite the witness to roam if they want to, roam around the world.

With that in mind, consider this exchange (YouTube link here – starting at beginning):

DAVIS: Do you have a good memory of that conversation [with Gonzales]?

GOODLING: I have a memory of some of it.

DAVIS: Was there any part of that conversation that made you feel uncomfortable?

GOODLING: Yes.

DAVIS: Would you tell the committee about it?

Note the different levels of “control” that Davis is exerting. First, he establishes clearly that Gonzales made her uncomfortable by asking a highly-restricted yes or no question that limited her potential responses. After that fact was established, he then asked an open-ended question, inviting her to ramble. You can see the strategy here – once she had conceded that she was uncomfortable, Davis was inviting her to talk and keep talking in the hopes she would say something helpful. It’s all very well done. And that’s the lesson -- sometimes you want the witness to say very little. Other times, you want to invite the witness to ramble.

On an aside, Davis looks impressive – he’s worth keeping an eye on.

Comments

[Christopher M]

Posts like this are why I love blogs.

[Lou Delgado]

Great post!

[Bruce Baugh]

Agreed with the others, publius - these are matters that I'm seldom explicitly and consciously aware of, and I love knowing more.

[von]

DAVIS: Was there any part of that conversation that made you feel uncomfortable?

GOODLING: Yes.

I generally agree with Publius, but there's something more to note in the exchange above. Davis immediately, and quite unexpectedly, asks about whether "any part of that conversation that made you feel uncomfortable". The question looks like it came out of the blue, but it almost certainly didn't. Davis already knows that some part of the Goodling-Gonzales conversation made Goodling uncomfortable, or he wouldn't have asked the question in that way. Likely, Davis has a document (or some testimony from another witness) which already has Goodling stating that the conversation made her feel "uncomfortable" -- "uncomfortable" would have been Goodling's choice of phrase, not Davis'. A good cross-examiner -- and Davis is one -- only asks questions that (1) he or she already knows the answer to or (2) he or she doesn't care what the answer is, because any answer is helpful.

[bernard Yomtov]

Interesting post, publius.

[Nell]

In the interests of wasting as little precious time as possible, Conyers in his position as the House Judiciary Committee chair should immediately put Artur Davis (joined, if necessary, by another experienced prosecutor) in charge of training and organizing questioning of future witnesses.

I know that's not how things usually work, but the group result is so much more important than the opportunity for individual grandstanding that just this once the not-easily-herded cats have to work as a team.

This isn't a game, but an effort to unravel the corruption of the entire Department of Justice for political ends.

Getting that kind of organization on the Senate side is much, much harder -- but in the case of the Sen. Judiciary committee, there's the saving grace that several members are former prosecutors. Whitehouse is the best at the process Publius helpfully analyzes here.

[hairshirthedonist]

I just don't get a post like this one. How is the comment thread supposed to devolve into an abortion argument? This simply will not work.

All kidding aside, ditto on the praise.

[hairshirthedonist]

I just don't get a post like this one. How is the comment thread supposed to devolve into an abortion argument? This simply will not work.

All kidding aside, ditto on the praise.

[cleek]

i had been singing 'Dumb' for the past 24 hours, but now i get to switch to 'Pennyroyal Tea'. thanks, publius !

[norbizness]

It's been years since I took anything any Continuing Legal Education related to trial work, but I remember the first two rules of cross-examination (Mr. Davis' questioning wasn't exactly C-X, but it was somewhere in between that and direct):

(1) Never ask a question unless you know the answer beforehand.

(2) If someone is hedging, ask the question over and over again. If somebody objects on the basis of something being "asked and answered," you get to read back the testimony to show how it wasn't.

I haven't seen the video, but I assume that the aimlessness of most of the other committee members was due to their not being prepared, which generally comes from actually reading the material that's been subpoenaed beforehand.

[femdem]

This is why I love me my Publius. I learn stuff.

[farmgirl]

von -- apparently Davis was tipped off by Goodling's lawyer that she had felt "uncomfortable" during a conversation with Gonzales. (via Carpetbagger Report)

Interesting.

[Andy Vance]

Hmmm.

So, just how did Rep. Artur Davis (D-Ala.) know to ask all those probing, dramatic questions about the mid-March meeting between Attorney General Alberto R. Gonzales and Monica Goodling?

Her lawyer told him to ask, that's how.