Rule 7: Don't Guess

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 113-118

The Danger of Guessing

Could have/could be, should have/should be, would have/would be. Ahh,

guessing—we love it so. We judge ourselves, and each other, on how well

we do it. Yet in the unnatural world of a witness, it is an invitation to

disaster. There are three basic kinds of guessing: guessing about factual

details, guessing about inferences, and guessing about hypotheticals. Con-

sider each in turn.

1. Guessing about Factual Details

The rst form of guessing involves factual details like dates, times, names,

numbers, and so on. Guessing at even the most minor factual details is an

easy way for a witness to get into trouble. If you are not absolutely sure,

or do not know with complete precision, say so. Just say “I don’t know”

or “I don’t want to guess” and stop. This again is unnatural but critical.

In our everyday conversations, we guess, estimate, or do whatever seems

reasonable to keep the conversation going, knowing that we will never be

cross-examined or held to our precise statement.

The problem is that whenever you guess, there is always a chance you

will guess wrong. That’s usually OK in a casual setting. Everything changes

when you become a witness. What we think of casually as being “wrong”

really means false, and when false is under oath and on the record, or any-

thing close to it, you have a serious problem. As a witness, you can be only

as precise as you are precisely and absolutely certain.

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Chapter 20

Rule 7: Don’t Guess

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