Episode 168: Examination Methods: The Pozner-Dodd Technique

0:00This is the 10,000 depositions later podcast episode 168. I'm Jim Guirity. Today's topic, examination techniques, the Posner Dodd method. Hey everybody, thank you as always for listening. Beginning with this episode and for the next few, we're going to look at several different styles and methods of cross-examination. Not because there's just one right way to do it, but because there are several. Because skilled trial lawyers often reach the same destination by different routes. I gave an example years ago about the many different ways that a litigator can achieve success in depositions that got a lot of positive comments. And the example I gave involved the two most deadly predators in the jungle, the Cheetah and the Python. I pointed out that one has the fastest legs in the

1:03world and the other has no legs at all. And the question was, how can they both possibly be so successful? And the answer is it's all about method. Each has a method that works for them. Same with depositions and today with examination styles. The purpose of this series over the next few episodes is to simply expose you to alternative ways of achieving the same successful goal, namely controlling the witness, developing useful admissions, and presenting your point clearly and persuasively. As you listen to these episodes, the idea isn't that you must adopt any single method wholesale, simply that you begin to recognize the underlying principles, compare approaches, and then decide which techniques best fit your own style, your case, and the witness in front of you. And who knows after the series is over, you may decide to combine or blend some

2:06of these different methods. So today we're talking about the Posner Dodd method. This refers to a cross-examination method or system associated with Larry Posner and Roger Dodd's book cross-examination science and techniques, which is specifically about planning and executing cross-examinations. Larry Posner is a veteran trial lawyer and legal educator best known for teaching a highly structured approach to cross-examination. And co-author Roger Dodd is also a veteran trial lawyer and teacher best known as well alongside Posner as co-creator of the Posner Dodd cross-examination method. At bottom, their method is about control and it posits that cross isn't a conversation but a sequence of tightly controlled admissions. One of the most notable rules of the Posner Dodd method is simple and that's that each question should add only one new fact. You can

3:14repeat facts that the witness has already admitted but each additional question should introduce just one new point. Repeating facts that the witness has already admitted in the new question is called looping. So admitted facts plus one new point in the next question. And here's what looping sounds like in a set of leading or leading questions or declarative statements in a case where a witness claims to have observed a suspect commit a crime under questionable circumstances. It was nighttime correct and it was raining correct and at night while it was raining you were about 150 feet away and at night in the rain from 150 feet away you could not make out facial details. That's the technique in its simplest form. Each answer sets the foundation for the next question. You keep control, you build momentum and you make the point one step at a time. Again

4:16a loop is simply taking a fact that the witness has already admitted and including it in the next question with an additional new fact. That's how this method reinforces key facts and keeps the witness tied to the last answer. The idea is to control the witnesses output, organize the facts in a way that the jury can store them and essentially earn a closing argument right out of the witness's mouth. And again the chief tools for this method are leading questions only or declarative statements only and one new fact per question. The broad principle behind Posner Dodd is about breaking your case down into manageable methodical chunks. So let's dig in to prepare for the depositions using this method. You'll one articulate the broad theory of your case. Two identify the specific topics that you'll ask witnesses about to prove up to

5:17theory and the specific goal you have in mind for each topic. And then you'll identify the individual facts that you'll pose to witnesses in each topics. So let's walk through this. First you're going to start with a theory sentence. A theory sentence according to Posner Dodd is the broad overall point or theory of your case. And the easiest way to think about it is as a sentence that you might start your closing arguments with in front of a jury. In the example of a case where a witness couldn't possibly have made a reliable identification of the suspect because it was nighttime it was raining and they were 150 feet away. Your theory sentence might sound like this. The witness's identification is unreliable because conditions made accurate perception and memory impossible. Next you'll break this broad theory statement down into categories of proof that will help

6:21you get where you need to go. Posner Dodd calls them chapters instead of categories but you get the points just another way of saying dividing your broad theory into evidentiary subtopics. And then as to each category or chapter as they call it, you'll then write a short sentence identifying the goal of the questions that you're going to ask in that category. What you want to accomplish from witness admissions by the time you finished with each category. So in our example of questioning and alleged eyewitness, the categories might be lighting invisibility. Number one, number two, the duration of the incident. Number three, obstructions between the alleged eyewitness and the alleged suspect and bias or interest. So these would be the categories that you're going to break your examination down into again what Posner Dodd calls chapters. So for lighting

7:23invisibility, let's take that as the first category or chapter. Your goal sentence to help you clarify might be by the time I end my examination in the category of lighting and visibility, the witness will have admitted the lighting was too poor in the rain too heavy for her to clearly see. In the category or chapter of duration of incident, your goal sentence might be by the time I end my examination in this category, the witness will have admitted that the incident was too fleeting, too fast, too short, for her to fully absorb the events that unfolded and that she claims to have seen. And the same thing for the category or chapter of obstructions or stress, your goal sentence for that category might be by the time I end my examination in this category, the witness will have admitted that there were street lights or utility poles in front of her, cars passing by, even other people walking near the alleged

8:25suspect across the street. The simple purpose of the goal sentence for each category is to help you further sharpen the individual leading questions or declarative statements that you'll ask in each category. Now you'll want your examination in each category to achieve specific factual admissions relating to that category only. Now you might only have five or ten questions in each category or you may have many more, it's just going to depend on the case. But the key to this method is that each question in each category will have a single fact that only pertains to that category. Now let's run through some sample leading questions or declarative statements in that same criminal case, all in the first category or chapter of lighting and visibility. So here's a sample run through it. It was nighttime, correct? It was raining, correct? At night in

9:25the rain, the only lighting was street lights, correct? And those street lights created shadows, right? You were across the street, correct? And across the street, you were about 150 feet away. And from 150 feet away, at night in the rain, you could not see eye color. At 150 feet away, at night in the rain, you could not see scars or distinctive marks. And at 150 feet away, at night, in the dark and in the rain, you could not describe the hairstyle. And then assuming those were all of the questions you had for that category, the closing question might be as follows. So your identification was based on what you saw from 150 feet away in the dark and in the rain. Although you could not see eye color, hairstyle or any distinctive marks, correct? So that's a sample

10:25examination, starting with the single fact of nighttime and continuing to loop each fact into additional questions that each added one additional new fact. In the minute you get the admissions you want in each category, you stop and move on to the next one. The structure here then, the key, is to limit the witness's testimony to stop them from freewheeling and to move on. In this style of examination, according to Posner and Dodd, there are a few notable distinct features. And let's talk about those. First, we don't ask any witness why anything, why they were there, why they claimed this, why they claimed that nothing of the kind. Posner Dodd says, we're not going to hand the deponent a microphone. We're going to pin them down with very specific facts and move on. Second, critical to their method is no more than one new fact per question. Along

11:28with additional facts, the witness has already admitted. But never more than one new fact in the question. Third, we never argue with the witness. Fourth, we never let the witness define the terms or use ambiguous terms. We use concrete words like 60 feet, raining, streetlights. And fifth, we never detour from the category that we're working on at the moment. We stick with the category and the specific facts we need to establish in each category. All right, that's it in a nutshell. Now, once you get the hang of this, it's a very easy examination style to develop. It is very efficient and effective because it forces you to prepare a very tightly choreographed symphony in effect of theme topics and facts. Again, the steps are number one, write the first sentence of your closing argument.

12:29That's your theory sentence. Two, write the list of categories or chapters as they call it, topics, categories, whatever you want to call it, that you need to ask the witness about in order to prove your theory. Third, write a short goal sentence for each topic. What you want the witness to have admitted in general terms by the time you finish covering a topic. Again, that can be something like by the end of my questions on this topic, the witness will have admitted dot dot dot and then fourth, write the micro facts, the individual facts that you want the witness to admit one by one. That's Posner Dodd in a nutshell. Interesting, huh? It's an amazing system for conducting a very tight examination of deponents and when conducted as they recommend, it leaves witnesses almost no room to wiggle. It eliminates a lot of ambiguity, arguing and waffling because the facts posed to

13:34the witness are concrete and presented one at a time. Now, we've put a link to the most recent edition of their book in the show notes and encourage you to take a peek. I do want to mention in the same breath, as I've said many times before, that we don't receive payment for our recommendations and we run no ads. When we recommend something, we want you to know we recommend it to you because we think you'll benefit from it, not because we have a sponsor and ad or some other financial arrangement. We don't do that. All right, that's it for today. In the next episode in this series, we'll cover another method for questioning witnesses. As always, thank you for listening and be sure to check out the book on which this podcast is based 10,000 depositions later, the premier litigation guide for superior deposition practice, subtitled a user's guide and handbook on deposition tips, tactics and strategies for civil, criminal, administrative,

14:36and arbitrative litigation available on Amazon and everywhere else you buy your books. We'll talk to you again soon.