Phase II: Theory Development Questioning

Overview of theory development questioning when interviewing witnesses:
Theory Development Questioning

  1. Why do we needTheory Development Questioning?
    1. Although the simple narrative above might satisfy your witness’ battle- buddy, the level of detail is woefully insufficient for trial. It would never satisfy the elements of a charge, counter adversaries’ versions of events, support your witness’ credibility, etc.
    2. We need to use the timeline as the reference point for questions that help us explore the specific events and details that will explain why things happen, and why the witness’ story is credible.
    3. Stories that emerge through time line questioning should be viewed as tentative until you have explored the specific details that elicit the fullest level of memory, and resolve potential chronology errors. Lawyers as Counselors , at 120.
  1. When do we use “Theory Development Questioning?”
    1. Once we have a reasonably well-developed time line from which to explore specific events and details.
    2. Develop the timeline and then unpack events in that timeline that you are interested in. You should have a list of information that you want to explore with this witness that you developed during your case analysis.
  2. What are the Characteristics of Theory Development Questioning? Id. at 150.
    1. Pursuing helpful evidence. Asking questions that connect concrete time line story events to the legal elements, defenses, and rules of the case.
    2. Seeking to bolster credibility. Discovering facts that tend to support helpful evidence and witnesses.
    3. Exploring potentially damaging evidence. Asking questions to fully appreciate the existence and scope of bad facts, and then explore avenues that minimize the impact.
    4. Seeking to undermine adversaries’ legal contentions. Fleshing-out portions of the time line that reveal evidence tending to support your arguments and refute the relevant legal contentions of your opponent.
  3. How to do it. Open confession is good for the soul. – Old Scottish Proverb

When do we use “Theory Development Questioning?”

Exploring potentially damaging evidence