Wednesday, October 1, 2008

Follow-Up Questions

I’ve found it harder to write about criminal defense or other legal issues lately as I’m a little mesmerized by the election and the financial bailout. But in watching Katie Couric interview Sarah Palin, it seems her technique has something to teach lawyers about cross examination. I don’t mean to imply that Katie is cross examining Sarah the way a lawyer would “cross” a witness in court, but maybe her technique would work for us.

Katie’s best weapon is the follow up question. Palin, much like an expert witness, can say nothing very well and has memorized the talking points well. But she can’t deal with a simple follow up question that forces her to get into specifics beyond the platitudes.

For example, in this exchange, Couric has just asked Palin why, in her view, is Roe v Wade a bad decision and Palin has replied that it “should be a states' issue.” Watch how Couric asks a simple follow up to delve into her understanding of the foundations of the decision;

COURIC (to Palin): Do you think there's an inherent right to privacy in the Constitution?
PALIN: I do. Yeah, I do.
COURIC: the cornerstone of Roe v Wade
PALIN: I do. And I believe that...individual states can handle what the people within the different constituencies in the 50 states would like to see their will ushered in in an issue like that.
COURIC: What other Supreme Court decisions do you disagree with?
PALIN: Well, let's see. There's..of the great history of America rulings there have been rulings, that's never going to be absolute consensus by every American. And there are..those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know..going through the history of America, there would be others but..
COURIC: Can you think of any?
PALIN: Well, I could think of...of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I'm so privileged to serve, wouldn't be in a position of changing those things but in supporting the law of the land as it reads today.

Couric certainly could have pressed her harder, asked again if she could, please, just name one decision or at least admit that she doesn’t know one. But she, probably wisely, moves on, knowing that it will be a long “cross” and that the truth about Palin’s knowledge on Supreme Court decisions has been sufficiently uncovered.
It’s easy to build a “house” that looks pretty solid when you can build it using a candidate who reads from teleprompters and then is interviewed by people like Hugh Hewitt who asks such tough questions "Now Governor, the Gibson and the Couric interview struck many as sort of pop quizzes designed to embarrass you as opposed to interviews. Do you share that opinion? 

Hewitt later (seemingly on redirect after cross by Couric) asks her if she and her husband “ever faced tough economic times where [they] had to sit around a kitchen table and make tough choices?” Palin, being thrown a softball, says that she “know[s] what Americans are going through.”
But then, in what must have made Hugh cringe, made an admission that won’t sit well with McCain. She said:

[T]here’s been a lot of times that Todd and I have had to figure out how we were going to pay for health insurance. We’ve gone through periods of our life here with paying out of pocket for health coverage until Todd and I both landed a couple of good union jobs. Early on in our marriage, we didn’t have health insurance, and we had to either make the choice of paying out of pocket for catastrophic coverage or just crossing our fingers, hoping that nobody would get hurt, nobody would get sick.

Ouch. She did just fine until she admitted it was a “union” job that pulled them up.
To return to the “House” analogy, it’s easy to build one that appears strong when its strength is only tested by people like Hewitt and by speeches in front of screened augiences with a teleprompter clearly showing what another person previously wrote and that your candidate has practiced.
But Couric “blew the house down” with simple follow up questions. Remember the question about which publications Palin reads? Watch how the follow up question dooms her and shows the audience that the person being questioned, who eloquently spouts generalities, cannot survive being asked about specifics:
COURIC: And when it comes to establishing your world view, I was curious, what newspapers and magazines did you regularly read before you were tapped for this — to stay informed and to understand the world?
PALIN: I’ve read most of them again with a great appreciation for the press, for the media —
COURIC: But what ones specifically? I’m curious.
PALIN: Um, all of them, any of them that have been in front of me over all these years.
COURIC: Can you name any of them?
PALIN: I have a vast variety of sources where we get our news.

Once again, ouch. The seemingly solid “house” gets blown down when asked for simple specifics.
It will be interesting to see how Palin does tomorrow night and the stakes for her career will be incredibly high. She will likely either turn into a footnote (if she performs like she did in these Couric interviews) or perhaps create a future for herself even if McCain loses if she can prepare and perform on a national level so quickly after such a shaky start.

Of course, hardcore supporters and detractors will see what they expect to see, but if Palin can somehow win over those who aren’t so polarized, she might pick McCain, and perhaps herself, up off the canvas the Couric interviews clearly put her on.
Couric also deserves credit for effective use of the “soft cross,” or at least the journalistic version of it. I saw Couric, before this interview, perhaps as Palin’s handlers likely characterized her, as a sweet, competent, but not hard-hitting reporter. I expected a friendly chat, with no real cross examination, but Couric showed that she can use these personality traits to her advantage. She, softly and nicely, kept asking follow up questions, not being afraid of the silent, awkward moments between question and answer. Couric brought out the truth about the person she was interviewing without resorting to the type of confrontation that would have turned the audience against the interviewer and towards feeling sympathy for the “questionee.”
Gerry Spence describes a moment when a jury member approached him, obviously upset at having just denied justice for his client. The woman asked Spence “Why did you make us hate you so?” He learned that he’d gone too far in tearing up the witnesses on cross, his anger having not only skewered the witnesses but alienated his audience. His hatred spread throughout the courtroom and doomed his client’s case.
Having seen how competent and effective Couric was in bringing out the truth about Palin without once raising her voice, I am reminded of another of Spence’s phrases: “Love is always the winning argument.”
I don’t mean to imply that Katie showed love to Palin, only that she didn’t show hate, didn’t go too far, knew when to stop, and seemed to sense when to simply let her “witness” hang herself.
Couric’s “soft cross” of Palin might be the breath that blew her house down, revealing it to be a mere facade that couldn’t withstand even a simple follow up question.

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