No doubt everyone has experienced the moment in a deposition where a question presents itself — a question which is relevant, meaningful, and on the borderline of being "out-of-bounds." In the heat of the moment, you can feel trapped by the dichotomy of the white hat and the black hat. Do you take the high road, don your white hat and move on or do you pull your black hat down over your eyes, buckle up, and charge forward with question come what may?
For those who have been following the bizarre story of Notre Dame football player Manti Te'o and the girlfriend that never was, it is clear that many in the press, I think understandably, failed to ask some relevant questions to Te'o who now asserts, contrary to the Deadspin story that broke the scandal, that he was hoaxed rather than being the hoaxer. I don't think there will ever be a definitive answer for either Manti detractors or supports, but might be a little further along the road to certainty had Sports Illustrated reporter Pete Thamel not been afraid to probe more with his questions.
Thamel had written a "puff piece" about Te'o suffering the loss of his girlfriend Lannay Kekua in the October 1st edition of SI. As the scandal broke, Thamel released the full interview transcript from his encounter with Te'o. Thamel relates how he faced a black hat moment in the interview and opted for the white hat: "The only time he didn't speak with confidence was when I asked how they met. I didn't press him, as it was clearly something he didn't want to share. I suspected they may have met online, understood he wouldn't have wanted that public and moved on."
In the court of public opinion, the camp that views Manti as a hoaxer has latched on to statements that imply he had personally met Kekua on occasion. By choosing to beg off the question, Thamel let slide a pre-scandal Te'o statements which would have gone a long way in clearing or damning the football star. Thamel allowed himself to get caught in the trap of thinking the tough question had to be a rude question. It does not.
Anyone who has ever been to a social gathering where it comes out that a person is in a long-distance relationship, the question inevitably gets asked: How often do you get to see him/her? That question invites scads of information but in a sympathetic way. As a journalist, Thamel had a duty to ferret out facts about, not a private relationship, but a relationship that was front and center in his article. Like many of us have done at deposition, he also self-limited by assuming that (1) the couple had met online, and (2) that meeting online is embarrassing despite the fact that the relationship seems to have been primarily phone and Twitter based. In short, he gave himself a justification for not asking what he knew he should ask.
Lawyers need to learn from Thamel's mistake. Tough probing questions are not always a Hobson's choice. You don't have to be a bad guy to get the information you need (or may need down the road). If something seems off in the testimony, don't be afraid to probe in a gentle circuitous way. As the story of Manti Te’o show, you never know when the details of a story will become paramount.
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