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Professional Development

How to Handle the Testimony of the Bad-Faith Actor

Hon. Roy Ferguson

Summary

  • “Sealioning” is a form of malicious obstructionism in legal proceedings, where individuals feign ignorance and repeatedly ask questions to frustrate, derail, and create chaos. This behavior exhausts the patience and communication efforts of the target, who may ultimately push back, leading the sea lion to play the victim.
  • The author’s dos and don’ts for dealing with sea lions emphasize the importance of maintaining control, not engaging in their game, and requesting the judge’s intervention if necessary. The key message is to avoid participating in their disruptive tactics.
How to Handle the Testimony of the Bad-Faith Actor
Philip Thurston via iStock

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We Texans have a saying: “Never mud wrestle with a pig. You get dirty, and the pig just has a good time.”

Pigs are an easy target, but the logic also works with sea lions.

(Did he just say sea lions?)

Yes, I did. Odds are good you’ve met one in the courtroom—and if you haven’t, you will.

The Polite but Malicious Actor

Sealioning describes a method of polite but malicious bad-faith obstructionism commonly used by hostile witnesses and self-represented litigants. Sea lions feign ignorance of basic facts by asking simple questions with obvious answers for the purpose of preventing the advancement of the proceedings. It is disguised as a sincere attempt to learn but is actually a form of verbal abuse.

It’s performative, not informative. The purpose is to frustrate the other person until they erupt, give up, or both. It consists of mercilessly pursuing someone with repeated questions or requests for “proof” while maintaining a pretense of civility. The phases are confrontation, escalation, frustration, and termination.

What Is Sealioning?

The Berkman Klein Center for Internet & Society at Harvard University published a collection of essays entitled Perspectives on Harmful Speech Online. In her essay “The Multiple Harms of Sea Lions,” Amy Johnson writes:

Rhetorically, sealioning fuses persistent questioning—often about basic information, information easily found elsewhere, or unrelated or tangential points—with a loudly-insisted-upon commitment to reasonable debate. [. . .] Sealioning thus works both to exhaust a target’s patience, attention, and communicative effort, and to portray the target as unreasonable.

In the end, they push you into a corner that doesn’t exist and then declare themselves the victim when you push back.

The Sea Lion’s Trap

Think of it as in-person trolling. Here’s how it typically unfolds:

The judge or attorney asks the sea lion a legitimate question. Rather than answering, the sea lion responds with an unrelated, basic, and usually rhetorical question of their own. It’s often prefaced with a disarming phrase, like, “Before we begin, may I respectfully ask—” or “I’m happy to answer that, but first . . .”

The other person, believing it to be a simple, good-faith inquiry and wanting to seem reasonable, answers the sea lion’s question. The trap is sprung. The sea lion is in control.

The sea lion then politely asks for proof supporting the answer. No response can escape the loop. The sea lion flatly rejects whatever proof is offered as unsatisfactory or inadequate and repeats the demand.

That’s the trap.

There can be no satisfactory proof because the goal isn’t to learn; it’s to inflame.

The Endless Sealioning Cycle

The person may attempt to offer further explanation, always generating the same response. When, patience exhausted, the person finally refuses to try again, the sea lion backtracks, declares you never answered their original question, and asks it again, verbatim.

If the person refuses to repeat their answer, the sea lion accuses them of bad-faith obstructionism and feigns offense. (They almost always comment on the emotion of the other person.) But if the person answers it again, the sea lion calmly repeats the demand for proof. And around and around it goes.

Should you be lucky enough to escape the trap, the sea lion abruptly changes focus (often through whataboutisms) and then, at the first opportunity, circles back to their original question and starts the process again.

As you might imagine, this infuriates most people, much less judges, who aren’t accustomed to being cross-examined by litigants. When the victim’s frustration approaches anger, the sea lion recoils, feigning offense and painting himself as the victim.

They ask why the other person is being abusive when they are just asking “simple questions.” Then, they dig in their heels and doggedly refuse to answer questions or follow proper procedure until their demands are met, completely derailing the proceeding.

Sooner or later, the person in charge angrily puts a stop to it, seemingly giving the sea lion the moral high ground. Seal lions will always declare victory or victimhood. Chaos inevitably ensues.

Dos and Don’ts with Sea Lions

But don’t worry. You can thwart the sea lion and minimize disruption by following a few simple rules. Remember the following dos and don’ts.

Don’ts

  • Don’t play their game. If you engage, you lose.
  • Don’t assume they’re stupid when they ask stupid questions. (They aren’t.)
  • Don’t answer their questions. No answer will suffice.
  • Don’t repeat yourself.
  • Don’t argue with them; argue with the court.
  • Don’t rush, and don’t get mad.
  • Don’t try to have the last word.

Dos

  • Discern good-faith inquiries from rhetorical questions. Engage the former; shut down the latter.
  • Object as “nonresponsive” if they respond with a question.
  • Maintain control of the questioning.
  • Never repeat yourself or revisit issues previously addressed.
  • Calmly ask for the judge to admonish the witness.
  • Remain calm and be gracious.

Above all else, don’t sacrifice your ethics. Sea lions are happy to file grievances against you and recusals against the judge—anything to cause further delay.

The bottom line is this: the only way to win is not to play their game. If you try, you’ll get dirty, and the pig’ll just have a good time.