Trial Magazine

A primary principle of effective deposition and trial practice is understanding that the first response from a witness is often not everything they know. When a witness responds to a potentially important question, we need to find out what else they may think or feel about the subject beyond their initial answer, even when the initial response may be considered acceptable.

Witnesses often provide language that clearly could lead to other and more expansive descriptions of their thoughts, feelings, and observations. More often than not, we are satisfied with their initial response and don’t slow down enough to explore what else they may have to say or the metaphors, adjectives, adverbs, and gestures they use.

This process of follow-up questions is called “exhaustion” and consists of probes such as “What else?”; “Tell me more”; or “And . . .”—often with restating and summarizing the witness’s initial response to make sure we have a useable soundbite. Witnesses coached to be evasive or less than completely truthful in their responses might require more than these typical follow-up probes.

There is a way to probe deeper into what a deponent or witness is saying through a technique called “clean language” questions. Using “clean language” lets you draw subtle attention to the reticent witness’s own metaphorical language to give them an opportunity to deepen their explanation. Using the word “and” followed by the exact metaphor that the witness used will prompt them to focus and expand on their own words.

Clean language teaches us that, even when we have used exhaustion questions and the witness has provided an acceptably complete answer, there still may be meat on the bone. A pattern of simple, follow-up clean questions can provide insights and testimony that would otherwise go undiscovered.

What Is Clean Language?

Clean language is a questioning technique designed to explore metaphorical language. In the 1980s, David Grove, a counseling psychologist, observed that people naturally use metaphors to describe their thoughts, feelings, and experiences.¹ Grove believed that exploring those metaphors could expose rich insights, but that counseling psychologists were either ignoring metaphors or subtly rewording them in a way that made them less meaningful to the person.²

Clean language lets questioners explore the metaphors without contaminating the response with their own metaphors, assumptions, and presuppositions.³ Clean language uses only the responder’s words and their precise arrangement of words, or syntax, as well as the responder’s same vocal inflection and nonverbal behavior.⁴ A question is not clean if the questioner changes the metaphor that the responder used or adds words to the core question.⁵

Clean language questions are designed to direct the responder’s attention, reduce cognitive load, and shift the responder into a state of reflection for the purpose of providing greater perspective and understanding. Use this guide to identify metaphors to facilitate clean language questions in depositions and trials.⁶

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Mining metaphors is the technique of using clean questions to get to the witness’s truth without polluting the information with your interpretation.

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Mining Metaphors With Clean Questions

Mining metaphors is the technique of using clean questions to get to the witness’s truth without polluting the information with your interpretation. Clean questions allow the witness to “discover their information, from their experience, in their own way. The information evolves internally out of the client experience.”⁷ Mining your witness’s metaphors is a two-step process. First, identify the meaningful metaphor. Then, explore that metaphor with clean questions.

Identify meaningful metaphors. Metaphors are everywhere, so you should be purposeful when selecting a metaphor to drill down on by using clean language from the witness. A meaningful metaphor will elicit a greater description of a traumatic event, uncover a bias, reveal a defense, or unearth an opinion on a violation of a standard of care.

Examples of meaningful metaphors include: “it was a scene in a movie”; “these are the types of things we have come to expect”; “I think we did pretty good considering what we had to work with;” or “once you start you never stop—that is the rule.”

Metaphorical language is idiosyncratic. The metaphors a witness uses will have meaning that is significant to their personal experience, expertise, or trauma. There is no way to prepare a witness to strip their testimony of metaphors. There will likely always be a metaphor in every deposition or trial worth exploring.

Explore meaningful metaphors with clean questions. Once you have identified a meaningful metaphor, set up the witness’s metaphor with a clean language question. The setup for mining the metaphor can be as simple as following these three steps:

1. Acknowledge: Start with using the word “and.” “And” is the setup word you will use to focus the witness.
2. Direct attention: After saying the word “and,” choose the metaphor, word, phrase, or gesture that you want to draw to the witness’s attention. It is critical that you use their exact wording. If you alter the wording in any way, you are now interpreting what the witness has said. Any alteration to the original metaphor will render the clean language question ineffective.
3. Ask a clean question: Finally, combine the “and” with the meaningful metaphor to ask a clean question.

There are three core clean questions you should use with the witness:

1. “And what kind of [meaningful metaphor] is that [meaningful metaphor]?” Asking this probes for clarification on the original metaphor.
2. “And is there anything else about that [meaningful metaphor]?” You can stack the attributes of a meaningful metaphor by asking the witness this question. In the same way that you summarize and exhaust in depositions, you can summarize and exhaust the attributes of a metaphor. Repeat the word “and”: “And [meaningful metaphor]. And [attribute]. And [attribute]. And [attribute].” Make the list. This is an excellent setup for asking the third core clean question.
3. “And that [meaningful metaphor] is like what?” This third question prompts the witness to reframe the original metaphor that they used in their initial answer. Using the clean question “Is like what?” after building the attributes of the metaphor can yield amazing insight into why the original metaphor was meaningful to the witness.

You may think these questions sound clumsy or odd. Don’t change the way they are worded. Do not modify the words the witness uses. Those words are the heart of the technique. A trained clean language practitioner may use eight to 12 clean language questions, but you can start with these three core questions.

The goal for using this technique is to get better, more robust, and more vivid testimony than you might otherwise be able to elicit.

Here are three examples of words a witness might use that clean language can make more powerful:

• “I am the queen of residents’ rights.”
• “It was chaos.”
• “There was a flood of information.”

A fourth example involves what we call a “gestural metaphor”—a body movement that indicates the witness’s response:

• Witness shrugs shoulders.

Example 1: “I am the queen of residents’ rights.”

1. “And what kind of queen of residents’ rights is that queen of residents’ rights?”
2. “And is there anything else about that queen of residents’ rights?” Take the opportunity to stack the attributes: “And [attribute] and [attribute] and [attribute].” Use the rising inflection of your voice to keep the list growing.
3. “And that queen of residents’ rights is like what?” This is a request for the witness to provide a metaphor.

Example 2: “It was chaos.”

1. “And what kind of chaos is that chaos?” 
2. “And is there anything else about that chaos?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].” 
3. “And that chaos is like what?”

Example 3: “There was a flood of information.”

1. “And what kind of flood is that flood?”
2. “And is there anything else about that flood?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].”
3. “And that flood is like what?”

Example 4: Witness shrugs shoulders.

1. “And what kind of [questioner shrugs shoulders] is that [questioner shrugs shoulders]?”
2. “And is there anything else about that [questioner shrugs shoulders]?” Now, stack the attributes: “And [attribute] and [attribute] and [attribute].”
3. “And that [questioner shrugs shoulders] is like what?”

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Phillip Miller is the founder of Miller Law Offices in Nashville and can be reached at pmiller@seriousinjury.com. Robyn Wishart is the founder of Wishart Brain & Spine Law in Vancouver, B.C., and can be reached at rlw@wishlaw.ca.

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Notes

1. Who Was David Grove?, CleanLearning, https://cleanlearning.co.uk/about/faq/who-is-david-grove; Marian Way, Clean Language Questions, CleanLearning, Jan. 10, 2013, https://cleanlearning.co.uk/blog/discuss/clean-language-questions.
2. Id.
3. James Lawley & Penny Tompkins, Metaphors in Mind: Transformation Through Symbolic Modelling (2000).
4. Id.
5. Id.
6. Within the law, Marian Way, a highly skilled facilitator and trainer in clean language, has been instrumental in encouraging lawyers to use clean language in depositions and trials. Learn more in her book, Clean Approaches for Coaches: How to Create the Conditions for Change Using Clean Language and Symbolic Modelling (2013).
7. David J. Grove & B.I. Panzer, Resolving Traumatic Memories: Metaphors and Symbols in Psychotherapy, 18 (1989).

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What Is A Metaphor?

Metaphors can be classified into the following four categories: gestural, overt, embedded, and embodied.

A gestural metaphor is found in body movements. For example, a thumbs-up, a head shake, or a shoulder shrug are all gestural metaphors. If you are not taking video depositions, you are losing the gestural metaphors—be it for the good or the bad.

An overt metaphor is an obvious comparison. Examples of an overt metaphor are statements like: “I am the queen of patient health”; “he is a giant in the industry”; and “the road is paved with good intentions.”

An embedded metaphor is a metaphor woven into the fabric of our speech and is often the most important metaphor to question. Examples of embedded metaphors are “gasping for air”; “he is performing for the doctors”; and “that is an honest mistake.”

An embodied metaphor relates to a body part. Examples of embodied metaphors are “she has a cold heart”; “he is heavy-handed”; and “that is a knee-jerk reaction.”

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Additional Recommended Reading

Stephen J. Flusberg et al., Effects of Communication Modality and Speaker Identity on Metaphor Framing, 35(2) Metaphor & Symbol 136 (2000).

Phillip Miller & Paul J. Scoptur, Advanced Depositions: Strategy and Practice (AAJ Press®/Trial Guides 2013).

Paul H. Thibodeau, Extended Metaphors are the Home Runs of Persuasion: Don’t Fumble the Phrase, 31 Metaphor & Symbol 53 (Apr. 2016).

Gerald Zaltman & Robin A. Coulter, Seeing the Voice of the Customer: Metaphor-Based Advertising Research, 35(4) J. Advert. Res. 33 (Jan. 1995).

Gerald Zaltman, How Customers Think: Essential Insights Into the Mind of the Market (2003).

Gerald Zaltman & Lindsay Zaltman, Marketing Metaphoria: What Deep Metaphors Reveal about the Minds of Consumers (2008).