An Easy Way to Fix a Leading Question

Before I did my first direct examination of a real witness in a real trial, the partner I was working with gave me a bit of advice about leading questions that turned out to be very helpful. He told me that if the opposing lawyer objected that one of my questions was leading, I could probably fix the problem simply by asking the same question with the phrase "whether or not" tacked onto the beginning.

Here's an example. Say your question is "The light was green, right?" and it gets an "objection, leading" from the opposing counsel. Using the partner's method, the new question becomes "Can you tell me whether or not the light was green?" In some cases, the resulting question will still be deemed leading, but if the lawyer objects again, you're already on the right track to fixing the problem. That's important because in the heat of trial, it's often very difficult to figure out how to rephrase questions when met with repeated objections that are repeatedly sustained.

In my example, if the new question is met with another objection, it won't take much thinking to replace it with this one: "What color was the light?" The "whether or not" method is not only a handy crutch, but it also forces you to automatically think about what is was that made the question leading in the first place. While the leading nature of the questions I used as examples in this post is easy to see, in a real trial, things are often much more complicated.

Comments

[M. Sean Fosmire]

For those unusual cases where you cannot think of a non-leading way to pose the desired question, consider the reverse leading question. It's leading, too, but since it tends to help the opposition, she is not likely to object.

As an example: The witness has testified that he was operating a forklift near a gas pump. You want to establish that he tends to work very carefully in that location, but to ask "Were you trying to be extra careful when you were there?" will likely draw an objection. And how do you phrase a neutral question for this scenario? (The question needs to focus the attention of both the witness and the jury on what you are trying to demonstrate.)

Instead, try this:

"Do you operate the forklift in that location just like you would anywhere else?"

[Ron Miller]

This is really good advice from Sean. Makes perfect sense. I look forward to trying it.

Ron Miller

[barbra Allen Barrett]

I need more info on cross examining - I am doing a mock trial and am a lawyer