Witnesses evade questions.
Sometimes, this is entirely accidental. When people talk, you frequently ask a question, and the other person answers some other question. You don’t really care, and the conversation goes on.
Sometimes, the evasion is intentional. You ask the adverse expert witness a pointed question, and the expert starts to filibuster. You have to stop the filibuster and get an answer to your question.
There are many, many ways to do this.
But Susan Page, the moderator of the vice-presidential debate, used none of them.
There were a ton of evasions last Wednesday night — on both sides of the aisle.
Pence ducked questions about why the United States has more per capita deaths from COVID-19 than any other industrialized country; the state of Trump’s health; what course Indiana should take if Roe v. Wade is overruled; and a host of others.
Harris ducked questions about whether she and Biden would expand the Supreme Court if the Democrats won both the Presidency and the Senate; the Green New Deal; plans if Biden dies in office; and a host of others.
What would a trial lawyer have done?
For many trial lawyers, this is the drill:
Ask a question.
Evasion.
“I must have misspoken, and, if so, I apologize. What I meant to ask was [and repeat the question, word-for-word as you asked it the first time, and a little more slowly].”
Evasion.
“I’m sorry. What I meant to ask was [and repeat the question again, word-for-word as you asked it the first and second times, and a little more slowly].”
Evasion.
“I’m sorry. Are you able to answer the question? The question is [and do the drill again]?”
In a jury trial, this is all great for you. The jury sees that the witness is evading. (And for heaven’s sake, don’t get upset that the witness isn’t giving you what you want; you’re scoring points, which is all that matters.) Eventually, when you’re certain that the court will rule your way, you could ask the court for help: “Your Honor, would you please instruct the witness to answer the question?”
At a debate, of course, there’s no judge to help.
So simply ask the candidate: “I’ve posed the question several times now, and you’ve evaded it each time. Do you prefer not to answer that question?”
You’ll get some gibberish in response: “I’ve already answered that question several times. … Blah, blah, blah.”
It’s time to move on. The audience will see what happened, and the point has been made.
A debater, too, could make use of an opponent’s refusal to answer a question: “Vice President Pence, you were asked why COVID-19 killed more people in the United States than any other industrialized country. You then talked for two minutes about cutting off travel from China and building ventilators. Despite cutting off travel from China and building ventilators, more people died in the United States than died in any other industrialized country. The question is why all those people died. Could you answer that question?”
Or, of course, you could put the shoe on the other foot: “Senator Harris, you were asked about whether you planned to pack the Supreme Court, and you talked about Trump’s judicial appointees. Could you answer the question you were asked — whether you intend to pack the court?”
Finally, a stray thought: I understand that moderators are trying to remain invisible, and I understand that Harris didn’t want to make headlines in this debate (because Democrats are now ahead in the polls, and there’s no reason to upset the apple cart). But couldn’t either Susan Page or Kamala Harris have innocently asked: “Vice President Pence, do you always interrupt women, or are you just doing that tonight?”
I’m not sure if that would have prompted Pence to be more careful or caused the interrogator to look too aggressive, but it might have been worth a try.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.