Concede What Is Possible

I had a question from an FHO reader this week: if there was only one piece of advice I could give a newly minted forensic nurse about cross-examination, what would it be? That’s easy.

Concede what is possible.

It’s funny because we were working on a testimony project last week and this issue actually played itself out in front of us in a very real way, so the timing of the question is perfect, really.

I’ve watched more clinicians get themselves into trouble on cross by failing to simply concede things that could be possible are, in fact, possible. Often times it comes from a place of wanting to be helpful to “their” side (pro tip: it’s not helpful). Other times it is because people confuse possible with probable (possible is any chance at all that a thing could be; probable is more than 50% likely. Even when I don’t believe something is probable, there’s a good chance I would have to admit it’s still possible.)

If a clinician digs their heels in on the question of whether something is possible, the resulting questions can leave them looking biased or argumentative. Ultimately, it can undermine the most well-intended testimony.

Concede what is possible. We don’t take the stand to make an attorney’s case. We take the stand to educate judges and juries about what we know, what we saw, what we did, and sometimes, what we believe, based on science and our clinical experience. Simple as that.

 

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Comments

  1. August 09, 2018 | 1:16 am

    Leslie Doerfler

    Yes that is a great question and I do agree but if you are prepared for a case and can prepare with prosecution or defense if that is who is requesting your testimony you can educate all what is possible but why in a certain case it is not really possible, such as age differences, consent laws for state, or how the injury is said to have occurred. Of course I know you have always been prepared and thank you so much for caring to educate others.

  2. August 21, 2018 | 9:06 am

    John Nerges

    When I get something right, answer a test question correctly, get an attaboy for a job well done, I learn a little bit. I get an answer really wrong and it causes all kinds of grief, thats when I learn a lot. And I learned a lot from a similar situation, as a matter of fact, an exact replica. Getting things wrong in training is great, because it helps me get things right in the real world. Here is what I learned from that mistake: There is a big difference in possible and probable, lots of things are possible, be ready for it because it might feel unpleasant. Next, don’t pick a side on the stand, pick the testimony and the evidence, lastly, if somebody asks me “Do you know what time it is?” My answer is YES, not 9:45. In other words, answer the question thats asked, and in my particular case, “talk less.” Thanks for all you do, FHO.

  3. August 21, 2018 | 9:48 am

    Jen

    John, you will remain one of my very favorites because of your willingness to learn every step of the way. Your patients are lucky to have you!