Terrence MacCarthy and Milton Erickson

 Posted on May 09, 2007 in Uncategorized

Here I mentioned "Yes Mode," which is what master cross-examination teacher (and Chicago Federal Public Defender) Terry MacCarthy calls it when, on cross-examination, the lawyer asks only questions that he knows will lead to a "yes answer;" Terry would say that once a person is in "yes mode" it's difficult for her to say "no."

When teaching cross-examination to students, I used to describe "Yes Mode" as building a pyramid - you start with a broad base of irrefutable facts, build up in progressively smaller layers of facts that follow logically from the facts that the witness has previously agreed to, until you get to the ultimate fact that you want the witness to agree to, and she has the choice of agreeing or appearing unreasonable. As it turns out, there's more to it than just logic.

In my blog post, I described the witness's state of mind, in which he continues truthfully saying "yes" even though she would rather deny, argue, or quibble, as an "altered state of consciousness."

I learned recently that Terry's "Yes Mode" closely resembles a hypnotic trance-induction technique called the "Yes Set," discovered in the hypnosis field by Milton Erickson. Here's an excerpt from Erickson, Rossi & Rossi's 1976 book "Hypnotic Realities: The Induction of Clinical Hypnosis and Forms of Indirect Suggestion":

The "yes set" is another basic hypnotic form for coping with the limitations of a patient's rigid and negativistic conscious attitudes. Much initial effort in every trance induction is to evoke a set or framework of associations that will facilitate the work that is to be accomplished....

One of Erickson's favorite anecdotes is about a beginning student who discovered the usefulness of the "yes set" in hypnotic induction. The student found himself confronted by a hostile subject who adamantly refused to accept the possibility that he could experience trance. The student, acting on a creative hunch, then simply proceeded to ask the resistant subject a series of 20 or 30 questions all of which would elicit an obvious answer of "yes." All sorts of simple and boring questions such as the following could be used:Are you living at x address?Do you work at x?Is today Tuesday?Is it 10:00 a.m.?Are you seated in that chair?Without realizing it the subject develops a "yes set" and also becomes a bit bored with the situation. At this point the student finally asked again if the subject would like to experience trance. The subject then acquiesced simply because of the "yes set" and his desire to escape the dull circumstance of simply saying "yes" to obvious questions.

I've talked to Terry, and he hadn't heard of Erickson. This appears to be a case of two creative minds independently coming up with the same solution to different problems.

(Terry's "Look Good" Cross-Examination method stands in stark contrast to the typical prosecutorial "cross," which involves hurling questions rapidfire at the witness with a sarcastic sneer, and then ignoring the answers. Terry's seven-CD set of cross-examination lectures is available from HCCLA. Email sales at hccla dot org.)

UPDATE: Listen to the first track of the Terry MacCarthy CDs here. Download the order form here.

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