When Are Leading Questions Permitted During Federal-Court Depositions?

Can lawyers ask leading questions during federal-court depositions? If so, when?

Under federal rules, the examination and cross-examination of witnesses during depositions proceeds “as permitted at trial.” Fed.R.Civ.P. 30(c). This means that the propriety of leading questions is determined just as it would be at trial.

The issue of leading questions at trial is the subject of Federal Rule of Evidence 611(c)—

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, and adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

To determine whether leading questions are permitted at a federal-court deposition, ask yourself the following questions:

• Is the leading question in direct or cross-examination? The lawyer who noticed the deposition and who starts asking questions first is doing the direct examination; other lawyers are cross-examining. Under Rule 611(c), leading questions are permitted during cross-examination.

• If the leading question is begin asked during direct, is there another permissible reason for it, such as the development of the witness’s testimony or the fact that the witness is adverse to the questioning lawyer? If not, leading questions are impermissible under Rule 611(c).

In real-life practice, of course, lawyers will ask leading questions during depositions even when they aren’t strictly permissible, waiting to see whether you object. When you are the examining lawyer, you can take the same approach—ask leading questions when you want unless and until the other side objects.

An objection to a leading questions is a form objection that is waived unless it is made at the time the question is asked. See Fed.R.Civ.P. 32(d)(3)(A) (“Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time”) (emphasis added).

Originally published 1/18/07

Comments

[William]

I remember a deposition I defended as a young lawyer of the sole shareholder of a defendant corporation where the shareholder was individually noticed (and was not a defendant). I repeatedly objected to leading questions and the opposing counsel was incredulous that I would deign to object to his questions as leading. He may have said something like "In my 30 years of practice I have never had so many 'frivolous' objections."

It probably didn't do any good on the deposition because the judge would have ruled that the deponent could be considered adversarial, but it gave me a chance to toe-to-toe with a 30 year veteran of the bar.

[pretzel]

@ William, cool story bro