Skippers Warning Advisory Notice
The following paragraphs contain hard core gamesmanship material of an adult
I was involved in two full-on protests at the recent UK IOM National Championship. In the first, there was me, the other protester, and his witness; and it turned out there were thus three versions of the incident. In the second, there was me, the other protester, his two witnesses, and two official race observers; yup, you guessed it, there were six versions of that incident. My witnesses? They turned out not to be eligible, since they were neither sailing in the race concerned, nor were they members of the Race Committee. I was DSQ'd in each hearing, and what struck me most forcefully was that it came down in the end to a majority situation. The jury, quite reasonably really, had to go with the "majority" of the evidence; 'cos I didn't have any witnesses, that favoured the other guy.
As I've always told my disbelieving students, there is no such thing as a "fact" or "the truth". A lot of research has shown that eye-witness testimony is extraordinarily unreliable (and that's me and you, never mind the known lunatics out there). The classic demonstration of this takes place in early Psychology 101 classes the length of the land, when a stooge armed with a banana bursts into the class and hustles the professor off the podium yelling "Gimme your money". 89% of the students in the class later state categorically the mugger held a gun, and gun-knowledgeable witnesses find they can state make, model, and calibre as well. Yes Sir, I saw it clearly, it was a dark grey .45 Magnum banana...
So there are really just three things you need to know about protesting:
1. Have more eligible witnesses who support your case than the other guy.
You are not meant to prime, question, agree a story, or coach witnesses. But in the real world, you want your witnesses to support your version of events, not the other guy's. So how do you find this out? Did you read the "Skippers Warning Advisory Notice"? Yes? Read it again; things are about to turn nasty. Now you'll need to tread the gamesmanship line rather carefully, of course; go too far, and you'll be out of the event for gross breach of sportsmanship, and quite right too. Here we go then.
The most valuable eligible witnesses are the two skippers sailing nearest to the incident: the guy one place in front, and the guy one place behind. Approach them immediately. Don't wait until the race is over. Find them, ease up next to them, and ask each of them, as soon as possible, straight out, if they will be your witness. You must do this before the other guy gets to them. Emphasise the "my" in "Will you be my witness?" very clearly, and they'll understand what you are asking. They will then generally say one of two things: "Sure", or "Naw, I didn't see anything". Sometimes they will say "Naw" and give some other excuse. Both of these responses are good for you.
If the skipper says "Sure", he'd have to be a psychopath if he then goes against you in the hearing. Psychopaths are relatively rare, but not unheard of at sailing regattas. Make sure you confirm his agreement to be your witness by saying something, like, "Thanks, I do appreciate it". It puts some subtle pressure on him to keep to his understanding of the incident. Confirm again with him when you are all ashore.
If the skipper says "Naw" with an excuse, and then turns up as a witness for the other guy, you can have his evidence discounted by asking "But didn't you tell me right after the incident you hadn't seen it?", or in some other way by making clear that he said he couldn't give evidence earlier and is now saying something else. Phrase it right, and you can also call into question the actions of both the witness and the other guy who must have asked him to be a witness and imply that some pressure was brought to bear. Remember that, in the protest hearing, you are only allowed to question witnesses, not to make statements to them. So instead of saying "But you said you didn't see it, you idiot!", be ready to rephrase it as "Why did you tell me earlier you hadn't seen it, but now you say you can recall it all perfectly clearly?"
Be careful of the very rare skipper who didn't give either of these two responses. He's wise to you, he's been around the block a couple of times, and he thinks it's your fault. We'll take care of him later.
Now it's time to line up other witnesses. The other guy may have one or two witnesses himself, and you absolutely must have more witnesses than him. Remember that the "facts" are a voting matter at the hearing; just make sure you have more votes. You'll need help on this and on other things from your buddy who was watching you and the race from the bank.
You do have a buddy watching your every race from the bank, don't you? No? Get one. A buddy is as essential a tool for the skilful skipper as is the radio transmitter. Better still, get two. Don't even dream of going to an important regatta without one. Get the best buddy you can, and look after it, er, him, with proper care and attention. He'll earn his weight in gold very quickly, because a good one will always be able to tell you when to quit your silly nonsense, er, retire, rather than chance a full-on protest.
So, your buddy can tell you the names of the other skippers in the race who were near your incident. Approach them and ask if they'll be your witness if the protest committee needs a witness. (You don't need to tell them you already have other witnesses.) Do this in the same way you asked the more important witnesses earlier, and do it before the other guy does. One way to get the jump is not to wait until after you've written out your protest, but to do it beforehand. Although you only have, strictly speaking, 5 minutes (or whatever) to submit your written protest, you needn't hurry. One, the other guy will be writing his protest; and two, if neither of you get a written protest in on time, the Race Committee will have to protest you both and do that work for you. (I am of course assuming here that your protest involves a contact with another boat or mark; if it doesn't, then you do need to do your own written version.)
You have to be confident that your witnesses will give evidence consistent with your own. A clever way to do this is to check that you and they are talking about the same incident. So you should say to your witnesses (individually, you dummy, not collectively): "Just to confirm, do you remember, it was the incident where I was approaching the windward mark on starboard..." etc. You get the picture. You might want to do this out loud and up front, always being careful not to question or obviously prime the witness, or discuss the incident in any way. It would be most unfortunate if anyone were to get the wrong idea and think that, despite your upright reputation, you were trying to subvert justice. You? Never!
You might want to get really cute, and vary some of the peripheral details about the incident as you are checking with your prospective witness that it is the right one, so that he is forced to disagree and say, "No, I don't think it was exactly like that, I think it was like this...". Excellent. You say immediately, "Uh, OK, I guess that must be the way you saw it, no problem." As long as we are talking about peripheral facts, it is indeed no problem. Anyone overhearing your conversation will be satisfied that the witness is being perfectly independent and was not being coached in any way. You will of course present the right facts in the hearing. Remember that the witnesses are not present when you outline your case to the jury. Should anything come to light, it was just a minor detail, and you must have been momentarily confused...
Now is the time to deal with any smart skippers who said they couldn't be a witness, but who didn't offer an excuse as to why not. Discuss the incident with them, taking the view that, if they are not going to be a witness, debating the case and getting their opinion is not a problem. You could say that you're not sure whether to press the protest. You never know, you might learn something of value, and may indeed decide not to go ahead. If they subsequently turn up as a witness for the other guy, you know what to say: "Hey, that skipper said he wasn't going to be a witness and so I've discussed the whole thing fully with him! It's a trick!"
You also want to deal with any known witnesses for the other guy. Well, it's actually your buddy who'll have to deal with them, unless you can act very innocent indeed like you don't know they are witnesses. Either way, get them to discuss the whole thing. If it's you, and they're a little green, you'll compromise their independence without difficulty. If they've been there before, they'll say they are witnesses for the other guy, so withdraw and hand over to your buddy. If it's your buddy, he can feed back the key points of their prospective testimony. You or your buddy can get cute, and sow doubt and confusion by varying the key features of the incident during the discussion. Pay attention: we are talking "key facts" here with the other guy's witnesses; "peripheral" details was earlier with your witnesses. Sheesh, you don't want your own witnesses confused... Grab some skippers standing around nearby and involve them in the debate; what they saw will almost certainly be different and make matters muddier.
The only other eligible witnesses are the official race observers, who are acting for the Race Committee at this point, and who generally know not to discuss an incident with the skipper(s) involved, so it is probably counter-productive to try. Give it a little push, of course, by saying "Whoa, that's not on, is it chaps?". If they say "Well, you were on starboard", the door is wide open for you to discuss the whole thing fully with them. They should say "We can't comment", so send in your buddy instead. Hey, if you and your buddy work together as a team for any length of time, he has already snuck up to the observers at the time of the incident, watched them making notes on their pad, and innocently asked "Geez, what was that all about?". If your buddy is a good one, he'll also have made sure that the key facts of the incident are properly clarified with the observers, either directly or by discussing it loudly right next to them with some innocent (and bemused) bystander.
Only the most hardened skipper will try and tell a witness what they should say. You may not be that hard, but you should at least be smart. In the nicest possible way, be sure to ask the other guy's witnesses during the hearing if they discussed the incident with him earlier. If they did, ask about exactly what was said, and you know to exploit that for all it's worth.
So what is the bottom line on protesting? You know the stuff above is humorous, right? Right? Aw, c'mon guys, you know it's funniest when it's right down to the bone...
DON'T. A protest hearing remains a coin toss. 50:50. Do your penalty turn instead. Oh, you didn't do a turn, and now you don't have more eligible witnesses who support your case than the other guy? OK, that is a message: in this situation, stop right there, retire, and get on with the rest of the event without wasting any more time.
©2011 Lester Gilbert