Sworn Oaths for Witnesses

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ON SWEARING TO TELL THE “WHOLE TRUTH”

Michael Sean Quinn,  PhD, JD,  

512-656-0503

I’ve been bothered about this idea forever. I am also bothered by being bothered. No body else worries about it, I tell my self.  But if I’m swearing to tell the whole truth in my testimony, then I am swearing not to leave anything out.  

Two problems: (1) the witness (W) won’t remember everything relevant, or simply won’t know it, and (2) lawyers tell their clients to answer only the questions asked.  

I finally discovered my problem.  I have been taking the idea of “whole truth” too broadly, as if the idea applied to a witness’s whole testimony. What if it applies only to each question separately.  Thus W will have told to whole truth to Q#1 if he tells the whole truth as it, and similarly as to Q#2 if she says everything relevant to it.  On this model, W will have met the requirements of the oath if the whole truth is said for each separate question.  

There’s is still a problem, however. W is sworn to tell the whole truth but there are lots of truths s/he will not remember or know.  How can the oath cover all those truths, even when thought about Q by Q and not when looking at the testimony as a whole.  

Trouble still abounds.  The swearing-not-to reads more this way, “I swear to tell truths I think I know in response to Q; I will tell no lies in response to Q, nor will I err in my answers to Q; and I assert all the propositions I think are truth with respect to each different question.”  Perhaps “nor will I err” should be “and I will try hard not to make any mistakes managing to say something false.” One of the problems with this revision of the Oath is that it lacks brevity, majesty, and nobility. 

One thing to keep in mind is that the swearing to tell the whole truth, should be understood on a question by question basis and not as to the all the questions, taken all at once. The same point can be made about telling the whole truth as to the facts of a case. That too should be assessed on a question by question basis.  If this principle is not correct, then every witness would have a duty to lay out all s/he knows (or thinks s/he knows) at the end of a deposition, say, even though no question even close to that topic has been asked. 

 I wonder if the following question is a good one at the end of a deposition: 

L: Is there anything else you can think of that is important to this case that we haven’t talked about here today? If W’s answer is “Yes,” then L should ask about it.  If W’s answer is “No,” then if W comes up with something important at trial L has never heard of, then W might be impeachable. Then again, maybe not, since the question may well be objectionable.  (Special lesson for L who is watching over the deposition: Object to that question.) 

Michael Sean Quinn, PHD, JD, 

Austin Texas, 

mquinn@msqlaw.com

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Deposition Techniques: Basic and Sophisticated

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SOME EFFECTIVE DEPOSITION TECHNIQUES:

Attached is a set of lecture notes for a CLE presentation for the University of Texas Law School on how to take depositions well.  Veronica Czuchna  and I prepared, “published,”  and used  it in 2002. It was used in several University of Texas CLEs during the next few years.  See Quinn’s Long Resume at or near the last page.

It’s as good now as it was then,  I think, with the possible the discussion of objections. Veronica may think otherwise; if she does, she has been kind enough not to say. I’ll leave it to the reader to determine what all that means.

View PDF (4.5MB)

Michael Sean Quinn

Attorney at Law

mquinn@msqlaw.com
(512) 656-0503

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Old Lawyers With New Practices

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JUST DO IT AND PRAY

MICHAEL SEAN QUINN*

Suppose you, the Aging Lawyer, have had a good practice until recently. But you got dropped from your firm, say, you were eased out, say, the firm broke up and you didn’t get carried along, or something of the sort. And what you’ve done all these years is no longer available. Perhaps, you were not the principal “rainmaker.” Perhaps your are now 70, or so, but you can’t and/or don’t want to retire. Perhaps you were or are–or someone you love or loved in the past was and/or still is–a big spender.  Or it might be, or have been, you. 

In other words, you’ve been “aged out.”

What are going to do? You know your good enough to practice reasonably well, but times have changed, and most of the people you knew well or with whom you had regular “jurisprudential dialogue” are “gone” in one way or another. Many “customers”–sources of law biz, potential clients, etc.–feel like they or “theirs” need younger lawyers.  

Business is thin. You get some referrals here and there. But nobody can help you find an “Of Counsel” position? What’s next, particularly if marketing has never been your gig, and you are not gifted or even very current in the cyber world, i.e.,, your a digital dork.  

Articles in popular places advising younger lawyers interested in creating new solo practices say that advertising doesn’t work well and that a main source of business is from people who know you.  Obviously,  that isn’t going to help much for someone your age.  

So what might one do? One problem is that most ad campaigns, e.g., on the “net” don’t work very well. More comes from friends and other lawyers than any where else. 

A half century ago, and earlier, unemployed lawyers used to stand around on the court house steps, as it were, and pick up small cases. But that’s now bureaucratized, and one has be be on appointment lists where counties, etc., pick lawyers in rotation, and all of them tend to be younger.

I have a couple of ideas. 

First, think about doing so called “elder law.” Lots of people do this. but old people often like old people to help them.  The fees may be lower than the your used to, but if you want the work, you have to settle. There are modes of marketing, but I don’t know what works. 

Second, go in house with a lesser company that needs help.  The fees will be low, probably, but it can be satisfying.  Consider start-ups if you have right sort of history. Think about helping adventuresome  old people who know something about business and who like risk. 

On this for sure, litigation as a branch of the law is not friendly to old people.  The processes simply take too long. There needs to be a separate branch of litigation law for senior citizens: smaller claims are resolved quickly, fairly, and in the interest of justice. Of course, that would take a whole new jurisprudence and political philosophy. Don’t bet on it. 

Michael Sean Quinn, Ph.D. J.D. C.P.C.U,. Etc. 

Austin, Texas

mquinn@msqlaw.com

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A Representation Declination Letter: Good, Bad, Both?

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A “No Thank You” Email

Michael Sean Quinn*

I friend of me uses various versions of this form-ish letter. I rather like it. Another friend of ours didn’t like it much. I guess that is what being controversial means.

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I am deeply honored that you would consider hiring me to represent you in such an important case as this one. However, legal malpractice suits are usually handled on contingency fees. I no longer take many contingency fee cases. I usually charge an hourly fee.  This is especially true in legal malpractice cases which are difficult to win, often lengthy in time, and almost always expensive. 

Although my fees are quite low in comparison with the market, I require a rolling retainer, prompt payment, and the client paying the expenses as they are incurred, though perhaps through the existing retainer. It must be agreed that if I am not paid in accordance with the attorney-client contract, I have a right to withdraw immediately, at least under most circumstances. 

Litigation for a real person (as opposed to corporate-type entity) is often seen as a contest for the wealthy, and there is often truth in this idea. It is also seen as a a “game” by people. Often, individuals should think twice or more times about entering a lawsuit unless they  can live easily with sustained, anxiety-producing stress. Many people find this torturous, while others love it. It is important to keep in mind that often lawsuits take a long time. 

Those for whom anxiety, depression, rage, depression, or headaches, are often not cut out for litigation, and they need to keep in mind that the possibility of achieving a degree of  justice is not always worth the internal price. Often it is better for many people to sustain losses than to subject themselves to litigation. Justice is expensive.  

Potential clients also need to compare and contrast  factors. (1) The amounts of money at stake. (2) The amount likely to be recovered. (3) The probability of success. (4) The size of the fees. (5) Whether you have any fault in the matter or can be made to appear to have fault. 

Nevertheless, I am willing discuss with you for a couple of hours to analyze the case and share with you my impressions. This conference would be $[XYZ.00] per hour so long as it is clear that I am not agreeing to go forward after that. 

*********************************************************************

Variations on this type of letter can be made to apply to a large number of different types of cases.

Not proof read. 

Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn

1300 West Lynn #208

Austin, Texas 78703

(o)(c) 512-656-0503

mquinn@msqlaw.com

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WITNESSES AND SWEARING “THE” OATH

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TRUTH, WHOLE TRUTH, NOTHING BUT THE TRUTH

Michael Sean Quinn

In America, and other places, just before they testify, witnesses are required to swear or affirm an oath that looks like this: 

“Do you swear or affirm that you will tell the truth, the whole truth, and nothing but the truth.”* The required answer to the three element conjunction is usually but two words: “I do,” or something very close to it.**

*The earlier disjunctive phrase, a relatively recent alternation of the classic oath quest, “Do you solemnly swear,” I think harkens back to a time when the “oath question” ended with “so help you God?” The religious phrase is gone now: the world “solemn” is still present most of the time, but sometimes not.  It is hardly needed in today’s world. Perhaps the phrase “or affirm” got added for those about-to-be witnesses who see all “swearings” as having a reference to the Divine or who are concerned about keeping church and state separate.  

**As a witness I once said, “I will certainly try as hard as I can, in that sense, Yes. I am committed to it” Opposing counsel tried to disqualify me on the spot, but the judge refused.  On another occasion I answered this way, “As god is my witness and judge, I am absolutely committed to doing my best.” No one objected 

Tell the Truth. This language does not mean what it says.  There is no prohibition in the oath regarding making an “honest mistake.”  A witness’s testimony (or epistemological reliability) may be undermined or impeached if s/he makes a mistake in testifying, but the oath has not been violated, even if cross examining counsel bullies a witness with that kind of assertion. 

(One way for a witness to avoid some of these type problems is to testify, “Here’s how I remember it, _________, and my memory seems [or is] clear to me.” This statement is true even if what gets filled into the blank is not.)

The first clause of the “epistemic oath” is rather a witness’s commitment (1) not to lie, and (2) to try and tell–maybe, hard) the truth. Witnesses and those trying to teach a witness how to testify (as opposed to what to say) should explain to witnesses to go slowly and thoughtfully, since many mistakes can undermine a case to one extent or another. But the teaching lawyer should do something else.  

There is a distinction between how to testify and what to say. A lawyer can teach the former but not the latter. Sometimes the two ideas abut one another.  “Say this” and “Don’t say that” are forbidden to all lawyers and ethical lawyers know this rule and comply to it. However, “Since you are going to say this, there are several ways–several formulations available–to put that point. Consider the following three and reflect upon which you think best (or chose another one, if you wish).” Each of the three alternatives, of course, must accord with the witnesses actual memory and/or truth intent.” This kind of semantic or rhetorical lesson is permissible, but it can be–and can appear–puzzling.)

Telling the Whole Truth.  This one is hard to understand. It does not mean “Tell everything, i.e., assert every proposition, that is true about the events, processes, or states of affairs in question.” Obviously some propositions about an event, etc., are true but not really pertinent, given the circumstances.”  The concepts of pertinent and relevant seem to me to be the same thing. 

Some lawyer think it means “Assert all but only the propositions needed to answer a lawyer’s question narrowly conceived.” This idea is obviously false, given some of the ways lawyers as kquestions.  

“‘Yes’ or ‘No'” questions–so-called “leading” questions–seem to to me to require not telling the whole truth.  Here, wholeness is controlled by the form and scope of the questions.  How something limited by the rhetoric of a lawyer’s question possible specify what the whole truth is. That strikes me as a fabrication. 

What about broad questions? The idea of a witness having to fully match answers to broad questions is also false at least when the examining lawyer asks a very broad question, and there is no objection. “Professor Quinn, please describe for us the development of insurance law and practice during the Twentieth Century.” Here the witness must think through what the case is about and testify as to whatever he thinks is relevant and about which inquiry is being made. 

The real meaning of the “whole truth” clause in the oath might be this: “Please affirm that you will not leave anything out of your narrative you see–objectively speaking–as relevant.” However, nobody like this idea, and it obviously does not work for leading questions. Also, of course, the idea of objectively speaking is unclear; then again, so is the idea of whole truth. 

Telling Nothing But the Truth. This clause is an emphasis clause, not really a new idea.  It emphasizes the promise “I SHALL NOT LIE!” In addition, in the witness is making the assertion “I SHALL NOT ASSERT  ANY PROPOSITION BUT WHAT I TAKE TO BE  THE TRUTH.” The witness is thereby committing him/herself to trying hard not to make mistakes. Granted: my explication–hermeneutic analysis, as some Biblical scholars put it–of this idea is more speculative than it was for the other two.

Now for the really interesting question. Can a lawyer ethically use my formulation of the meaning of the Oath in teaching a witness how to testify?  One might say, “Well that depends upon whether Quinn’s analyses are correct.” I’m not so sure this is right.  Suppose I have it right, but a witnesses would not understand what I was saying and would misinterpret what I said? 

The trouble is,  the chances are the witness will not understand the actual words of the oath without some sort of explanation and will feel overly threatened while on the stand or while giving the deposition. Thus lawyers must explain and teach–or try to, anyway. 

Michael Sean Quinn, Ph.D, J.D., Etc.
Law Office of Michael Sean Quinn

1300 West Lynn #208

Austin, Texas 78703

(o)(c) 512-656-0503

mquinn@msqlaw.com

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Quinn Quotes

General assertions are like that. Even specific assertions can be like that–situations change.  There is truth in the idea that one cannot look into the same brook twice.  Of course, that idea is ambiguous.~Michael Sean Quinn, PhD, JD, CPCU, Etc.Tweet

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Michael Sean Quinn, PhD, JD, CPCU, Etc*., is available as an expert witness in insurance disputes and other litigation matters. Contact