You were late yesterday. Is that correct?
Did you call when you knew you were going to be late?
Did you think about the consequences of being late?
I wanted to explore how lawyers apply this yes-no strategy, so I called on
Ted Olson, the great conservative attorney and former solicitor general of the
United States. Olson had argued more than sixty cases before the Supreme Court
—including the famous Bush v. Gore case that decided the presidency in 2000,
which is where I first got to know him. In 2009, Olson surprised many
conservatives and liberals alike when he took on California’s Proposition 8,
which rolled back same-sex marriage in the state before the U.S. Supreme Court
made marriage equality the law of the land.
Olson explained that lawyers like yes-no questions because they establish the
record and draw precise boundaries. They put on the record a definitive response
to a specific action or moment and give the questioner almost complete control
over the witness and the testimony.
“You basically want to channel the witness into one of these box canyons
you used to see in western movies,” Olson told me over lunch in downtown D.C.
The advantage lawyers have going to trial is that they have studied the evidence
and pored over the facts of the case. They have deposed the witnesses and can
anticipate what those witnesses will say.
“It is good to ask the questions you already know the answer to—it’s very
important to do that,” Olson says, “and to put [people] in a frame in which
you’re having a dialogue, getting people somewhat comfortable with the rhythm.
And then go someplace that maybe they haven’t anticipated.”
In the article you published on August 13, did you write these
words…?
Did you believe those words when you wrote them?
Do you still believe those words?
“And the nice thing about yes-no is that the witness puts himself or herself
on the record, and they’re on record categorically. What you don’t want in trial,”
Olson advises, “is a lot of open-ended questions, because then the witness has no
boundaries and may say something that you don’t anticipate and is damaging to
your case. You don’t want to give the witness an opportunity for an exposition.”
Olson observes that a judge may still give the witness an opportunity to
explain because “most things in life are not yes or no.” But asking yes-no
questions conveys a purpose and a strategy.
Yes or no can paint a vivid picture. Oprah Winfrey did not make her name
by grilling people. Confrontation and accountability are not her trademarks. But
when she sat down with disgraced cycling champion Lance Armstrong for his
first interview since he admitted to doping, she launched a series of surgical
strike, yes-no questions that categorically established the facts.
OPRAH: Did you ever take banned substances to enhance your cycling
performance?
ARMSTRONG: Yes.
OPRAH: Was one of those banned substances EPO, which stimulates red
blood cell production?
ARMSTRONG: Yes.
OPRAH: Did you ever blood dope or use blood transfusions to enhance
your cycling performance?
ARMSTRONG: Yes.
OPRAH: Did you ever use any other banned substances such as
testosterone, cortisone, or human growth hormone?
ARMSTRONG: Yes.
OPRAH: In all seven of your Tour de France victories, did you ever take
banned substances or blood dope?
ARMSTRONG: Yes.
Having gotten the fallen hero to acknowledge his guilt, Oprah then took him
through an extended conversation on his motivations and the consequences of
his actions, along with the prevalence of doping in the sport he betrayed.
Armstrong may have hoped the exchange would provide some made-for-
television redemption. It did not. But the interview clearly showed how effective
yes-or-no, guilt-or-innocence questioning can be when the case is airtight, the
prosecutor is disciplined, and the questions are precise and based on information
you can bank on.
“It’s an art, it’s psychology, it’s brains, it’s communication, and it’s theater,”
Olson counseled. For the record.
Blunt Force
It’s not often you get a Lance Armstrong confessing to his sins. Donald Trump
certainly didn’t recant when Jorge Ramos pressed him. Mary Landrieu wouldn’t
assign fault, no matter how many times Anderson Cooper asked. I can’t think of
a single occasion when a politician dropped to his knees after being asked tough
questions to say, “Thank you for grilling me like this … YES, I am a hypocrite.
YES, I lied to the public. OF COURSE, I don’t believe half the stuff I say in
public.”
But we ask these questions to get answers where we can. We use them to
make a case, to say, “What you have said or done is not acceptable and you will
be held accountable.”
Whether you’re taking on your boss or your mayor, your mother-in-law
(which I don’t recommend) or the hapless customer representative at the airline
that just left you stranded midway through your journey, your questions matter
and make a point.
But you don’t want to pick a fight needlessly and you don’t want to be
wrong. Accountability questions cannot be shots in the dark. They must aim at a
real target. When you question and confront, draw from the knowledge you have
and set the agenda. Listen closely to control it. If you hear a speech, stop it. If
you hear dissembling, call it. If you detect weakness, zero in on it. Where you
detect evasion, challenge it. If someone talks in circles or ignores the question,
reassert control and ask again.
Confrontational questions entail risk because they put relationships and
reputations on the line. Before you confront anyone, ask:
Is confrontation called for?
Are the questions clear and compelling?
Am I willing to stake my reputation on them?
After all, if you’re wrong or if you sound ill-informed or like a bully, the
questions will boomerang and hit you, not the person you are trying to hold to
account.
Ask yourself when and where. Is it appropriate to confront a subordinate in a
staff meeting? With others present? Over lunch? Or in a private meeting in the
office? Timing, venue, and atmospherics of this type of questioning define the
dynamic.
Reflect on exactly how you want to frame your questions. Should they come in a
series of short, sharp yes-or-no queries? Or should they be preceded by a
recitation of the evidence to frame the issue and establish the premise? Think of
tone and whether the questions should be served up with sarcasm or delivered
with solemnity, posed in sadness or in anger. The theatrics of confrontational
questioning matters, sometimes as much as the answers you get.
Consider the value of the relationship. I didn’t really care if I angered Yasser
Arafat or if I ever saw him again, though I was keenly aware that my hosts
probably did not want him to storm out. Anderson Cooper isn’t planning on
having lunch with Mary Landrieu, and Donald Trump probably won’t be buying
Jorge Ramos a vanilla milkshake. If you’re going to ask for accountability or
confront someone with accusatory questions, consider the cost and be sure
you’re willing to pay it.
Confrontational questions are the blunt force instruments of inquiry. But they
are necessary if we are to live in a place where everyone respects and plays by
the rules and is accountable for their actions.
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