Wednesday, November 24, 2010

The Knowing I Don't Know

My kids can tell you that I categorically reject the "I don't know."  In my experience that response often means the person is being either lazy -- "My brain is resting. I don't want to think.  Go away." -- or deceptive -- "That's a good question and I know exactly why you're asking it and what the answer is, but I'm not going to answer you."  There is, of course, a third possibility:  the IDK response of true ignorance, but I have found that to be a rare creature especially in the examinations under oath I conduct because most of my questions will always be about things the deponent should have some knowledge of.  I know why I'm asking what I'm asking and usually the deponent does too.

I refer to the deceptive IDK as the verbal middle finger response.  Nothing says eff you like an IDK response to a question the person being questioned most certainly knows the answer to.  "I don't recall" is a mere "get lost" to an IDK eff you.

Attentive and compliant claims professionals whom I've prepped for depositions and trial learn to follow my five-finger verbatim answer choice method of responding to questions (open each finger one at a time on your left hand as you read this for a visual imprinting):
"Yes." -- the thumb
"No." -- the forefinger
"I don't know." -- coincidentally, the middle finger
"I don't recall." -- the ring finger, with or without the circular, precious metal and gemstone memory aid
[Shortest possible answer] -- like the pinky, the shortest finger on most everyone's hands
I've sometimes wondered whether lawyers tell their clients to answer "I don't know" or "I don't recall" to difficult questions.  Or whether people prone to prevarication have themselves figured out that it's nearly impossible to prove that an IDK or IDR response is a lie.  Not until IBM perfects that mind reading machine they've been working on, at least.  

I've had plenty of people flip me the IDK bird over the years.  God knows I've irritated my share of witnesses and representing counsel (and my kids and spouse) in my day by refusing to accept the initial IDK response.  Doggedly but often unsuccessfully I press for confirmation of the deponent's true ignorance.  Like yesterday.  Here's the riveting Q&A:
Q:  How many televisions were in your home at the time of the fire?
A:  I don't know.
Q:  Who cleaned your home?
A:  I did.
Q:  Every room?
A:  Yes.
Q:  Regularly?
A:  Yes.
Q:  Over the entire six-year period you lived there?
A:  Yes.
Q:  Did the home have a basement?
A:  Yes.
Q:  Name the rooms on the first floor.
A:  Kitchen, living room, laundry room.
Q:  Name the rooms on the second floor.
A:  Our daughter's bedroom, the master bedroom, the spare bedroom, and the bathroom.
Q:  Was there a television in the basement?
A:  No.
Q:  Was there a television in the kitchen?
A:  No.
Q:  Was there a television in the living room?
A:  Yes.
Q:  Was there a television in the laundry room?
A:  Yes.
Q:  Was there a television in your daughter's bedroom?
A:  No.
Q:  Was there a television in the master bedroom?
A:  Yes.
Q:  Was there a television in the spare bedroom?
A:  No. 
Q:  Was there a television in the bathroom?
A:  No.
Q:  So there were three TVs in the house at the time of the fire?
A:  Yes.
Q:  So you did know how many televisions there were in your home?
A:  I guess.
Q:  I told you I didn't want you to guess.  You did know, right?
A:  Right. 
Q:  Do you also know then why there are seven televisions listed on the contents inventory that you submitted to ABC Insurance Company?
A:  I don't know.
Information that should have taken five seconds to obtain took 60.  So please folks, we'll be done much sooner if you don't tell me you don't know unless actually you don't know.  And representing counsel, please don't tell me that your clients don't know something.  Unless you were a fact witness to the subject matter of my question, you can't possibly know what they know and don't know.  And yes, my hearing works fine; I heard your client say "I don't know."  I just don't necessary believe that.  Not at first, at least.  Let me show you why.

Next week's discourse:  facilitating the recollection of the assertedly unrecalled.

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