Leading Questions

Author(s): JAMES W. McELHANEY

Source: ABA Journal, Vol. 75, No. 10 (OCTOBER 1989), p. 104, 106, 108
Published by: American Bar Association
Stable URL: http://www.jstor.org/stable/20760713
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 Litigation

BY JAMES W. McELHANEY
Leading Questions JOHN FIGLER

The direct examiner was strug

gling to make the accountant's back
ground interesting to the jury. The
trouble was, the lawyer did not quite
understand what all of the witness's
qualifications meant, and the wit
ness did not quite understand where
the lawyer was going.
Anthony Barker, a barrister from
Birmingham, England, leaned over
and whispered in my ear, "We would
lead through all this, wouldn't you?"
"We should, but we usually
don't," I whispered back.
Then, only two or three ques
tions later, the frustrated direct ex
aminer asked a leading question. His
opponent objected, the direct exam
iner did not respond, and the judge
sustained the objection.
It took place last summer at a
session on expert witnesses at the
Advanced Program of the National
Institute for Trial Advocacy in Boul
der, Colo. There were a number of
valuable lessons to be drawn, includ
ing: It is essential to know exactly
what you want to develop on direct anything," is not necessary to make Leading is permitted with wit
examination, and you must be able a question non-leading. nesses who have temporary memory
to defend your line of questioning. The basic rule is that leading is lapses and need to be reminded of
But perhaps the most important not permitted on direct examination, something before they can go on.
lesson is the one that is most often but there are lots of exceptions to the Leading is permitted with wit
overlooked, precisely because it runs rule. nesses who have been shown to be
counter to some basic trial instincts: Leading is permitted on prelim hostile in fact.
Sometimes the best thing to do on di inary matters that are not in dispute. Leading is permitted with ad
rect examination is to ask leading The real test of what is preliminary verse parties or witnesses who are
questions. is not whether it comes at the begin identified with adverse parties.
The place to start is the law of ning of the witness's testimony, but Leading is permitted on cross
leading. For the most part, the rules what function the information serves examination until it goes outside the
are pretty straightforward: during the examination. scope of direct examination. Then the
A leading question is one that Often, a questioner asks for witness must be questioned "as if on
suggests the answer to the witness. background information for each new direct examination." (Rule 611(b) of
Its vice is that it tells the witness what direct-examination topic. If this the Federal Rules of Evidence.) *
to say. If it does not do that, it is not background is undisputed, then it is Understand that going outside
leading. Despite what some trial preliminary, even if it is introduced the scope of direct examination does
judges seem to think, there is no other during the middle or the end of the not mean you cannot lead?it only
magic formula. A question is not examination. means you cannot lead because it is
leading just because it calls for a yes But there is a better way to look cross-examination. If the witness is
or no answer, and inserting the pros at it. If the information is not dis hostile or an adverse party, for ex
ecutors' favorite phrase, "what, if puted, then leading questions should ample, then you still can lead on
be permitted. This approach protects cross-examination even though you
James W. McElhaney, the Jo every legitimate interest guarded by are going outside the scope of direct
seph C. Hostetler Professor of Trial the rule against leading questions, but examination.
Practice and Advocacy at Case do not expect every trial judge to un Leading is sometimes permit
Western Reserve University School derstand that. ted on re-direct examination. Here the
of Law, is a senior editor and col Leading is permitted with very law is not as well developed as in
umnist for Litigation, the journal of young or very old witnesses, to keep some other areas. The Federal Rules
the ABA Section of Litigation. them on track. do not even address the issue.

104 ABA JOURNAL / OCTOBER 1989

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 Litigation

Some judges insist that re-direct
examination be conducted like direct
examination.
But other judges are more leni
ent about leading on re-direct exam
ination, because re-direct is in
response to cross-examination, and
therefore can never be fully antici
pated. They believe that leading, as
long as it is not too blatant, helps
things move more quickly.
Certainly, there is a good argu
ment for permitting leading during
re-direct examination that touches on
issues that were "new matters" on
cross-examination.
By local custom in some courts,
leading is often permitted during di
rect examination in questions that are
intended to clarify. Interestingly,
these questions are often multiple and
cumulative in addition to being lead
ing. For example:
Q. Let me see if I understand this.
You were sitting at the corner in the
yellow VW convertible at about 3:30
in the afternoon, when you saw the
white Corvette coming around the
corner, is that right?
How can a court permit so many
rules of evidence to be broken at one
time without sustaining an objec
tion? The idea seems to be that a little
creative leading is all right when its
real function is to help the jury un
derstand what is already in evidence.
Those courts that permit leading in
these circumstances instinctively im
pose two limitations:
First, the question has to start
with a phrase that suggests confu
sion on the part of the lawyer, such
as "Let me see if I've got this straight,"
or "Let me see if I understand this."
If you say you are going over some
thing again for the benefit of the jury,
an objection is almost guaranteed.
Second, no matter how the ques
tion is put, the technique cannot be
overworked.
If you ask a clarifying question
more frequently than every five or 10
minutes, an objection will be sus
tained, unless something really needs
clarification.
Calming a nervous witness
Leading on preliminaries is just
the ticket to help witnesses overcome
their initial nervousness. In addition
to putting the witness at ease, it is a
lot more civilized to say:
Q. You are Marsha Adams, aren't
you?
A. Yes.
Q. And your last name is spelled
A-d-a-m-s?
A. That's right.
This is preferable to asking the
witness:
Q. Would you state your full
name and address, spelling your last
name for the record?
This question implies that you
hardly care what the witness's name
is, and you certainly would not bother
to get it spelled correctly if it were
not for the record.

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106 ABA JOURNAL / OCTOBER 1989

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Leading an expert
Leading also is an excellent way
to cover most of an expert witness's
qualifications, especially education,
awards and professional achieve
ments.
The reason is important. The
more impressive the witness's back
ground, the more he sounds like he is
blowing his own horn when you have
him recite the details.
When you lead the witness on his
qualifications, he does not sound
nearly so pretentious as he does when
he goes through all his degrees and
honors by himself.
That is why you never want to
develop your expert's qualifications
by turning him loose with a narra
tive: When you put him on autopilot,
it looks like he enjoys the flight more
than anyone else.
And another point. Leading on
an expert's qualifications lets you hit
just the high points, asking only about
what is particularly relevant to the
case. It is the kind of touch that spells
the difference between a deft and a
ponderous examination.
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108 ABA JOURNAL / OCTOBER 1989
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Litigation
Helping the witness
When a witness is in trouble,
leading is often the easiest way out.
Say the witness is confused or has a
temporary memory lapse. Of course,
you can refresh the witness's recol
lection or lay the foundation for past
recollection recorded.
But before that you should re
member to do two things:
First, take the blame for the wit
ness's confusion. Second, restate the
question so it leads the witness out of
trouble.
The cest
After all this, you might think
that leading is a good way to ap
proach direct examination, at least
until there is an objection.
Wrong.
There is a price to pay for lead
ing, even when there is no objection.
Too much leading, especially on dis
puted matters, gives the jury the idea
that you do not trust your own wit
ness and must tell him what to say.
And that is the perfect introduc
tion to how to object to leading when
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you are on the other side.
First, do not object just because
your opponent is leading. If he is
making the witness look bad by ask
ing only leading questions, you may
actually help him by putting a stop
to it.
Second, pay attention to how you
state your objection. Remember there
is no rule that says you must phrase
objections so they are incomprehen
sible to the jury. The simple phrase,
"Objection, leading," may get a fa
vorable ruling, but leaves the jury
unenlightened.
"Objection, your honor, oppos
ing counsel has not taken the oath
and is not entitled to testify," may
strike the jury more like a gratuitous
attack on the other lawyer than an
objection they understand.
On the other hand, "Objection,
your honor, he's putting words in the
witness's mouth," or "Objection. He's
telling the witness what to say,"
shows the jury you have a good rea
son for objecting and are not simply
trying to keep them from hearing
something important.
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