By Randy Johnston
Ah, we lawyers love our cross-examination. Cross-examination has sex appeal and drama. It pits the lawyer against the witness in a battle of words and wits – a battle that we as lawyers believe will undoubtedly decide the case. Truth is laid bare, lies are revealed and I did it! Cross-examination is so important that we have specific performance-rules for it, arising from decades of legal lore and war stories. Like the rule, never ask a question you don’t know the answer to.
Well sir, if you didn’t see him bite my client’s ear off, then how do you know he bit it?
But here is a little truth that only the most successful lawyers learn: you may get to show off on cross-examination, but you win your case on direct examination. That is where the story gets told. And if you cannot tell a good story, you lose.
There are two barriers to a lawyer becoming good at storytelling on direct examination: the rule against leading questions and the lawyer’s attitude. Until the lawyer’s attitude is adjusted, it really doesn’t matter whether she knows how to ask a non-leading question. The attitude problem lawyers have to overcome is rooted in our love of cross examination. It trains us to have the attention focused on us, the skilled cross examiner. And direct examination is all about the witness. The lawyer must fade into the background, surrender center stage. I tell my witnesses that, while cross examination is a judo match, direct examination is a dance – I lead, you follow and react to my subtle gestures. I raise my hand, you twirl. I disappear and you shine. And like when Ginger Rogers allowed herself to be led in the dance by Fred Astaire, all eyes will be on you.
Until lawyers understand that their job on direct is to make the witness the star, they cannot do effective direct. And without effective direct examination, the client’s story does not get told in a persuasive manner. Once you are ready to surrender the spotlight to the witness, you are ready to be a good direct examiner.
So, the second barrier to effective direct examination–you cannot ask a question that suggests or “leads to” the answer. Here is the example Wikipedia uses to explain the rule:
Were you at KC’s bar on the night of July 15?
The question suggests both the location of the witness and the date the witness was there. The same question in a non-leading form would be:
Where were you on the night of July 15?
To avoid leading questions, start with the answer or the information you want the jury to hear. Then, craft a question that starts with “who,” “what,” “where,” “when,” “why,” or “how” that will elicit the desired answer. Never ask a question that can be answered with “yes” or “no.” It is true that not all yes-no questions suggest an answer. But a lot of judges think they do, and you don’t want to further interrupt your smooth storytelling by arguing with the judge about whether your particular yes-no question suggests an answer.
You should also know the general exceptions to the prohibition on leading questions.
- Where the witness is hostile to the examiner, or reluctant or unwilling to testify.
- To bring out preliminary or background or undisputed matters (You were there alone, right? You had a clear view, right? Tell the jury what you saw.).
- Where the memory of the witness has been exhausted and there is still information to be elicited, which the witness will ratify when given the chance.
- To help the witness avoid answering on a subject that is prejudicial or improper – dancing up to the edge of a privilege without waiving it.
- Where the witness has trouble answering the question asked and tends to ramble onto other matters.
You may have to educate the judge the first time an objection is made, but you should have smooth going after that, so long as your leading questions are solidly within the exceptions.
Good luck. Go forth and enjoy the dance.