Some months ago, I was in court for a motion. Since I was early, I sat down and watched the hearing before mine.
As you’ve heard older lawyers say before, any time you get the chance, I recommend watching other lawyers in action. If they’re better than you are, you’ll discover new skills or techniques you can apply to your practice. If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat. No matter what happens, you’re almost guaranteed to learn something.
This was one of the cases where I was being reminded about mistakes one shouldn’t repeat.
Counsel was questioning her witness, and I quickly saw that things weren’t going very well. Although she was an experienced criminal defence lawyer and probably very accomplished in the art of cross-examination, her skills in examination-in-chief were awful. She was desperately trying to get her witness to tell his story, but she couldn’t formulate a non-leading question to save her life.
Here’s a brief example of how things were going:
DEFENCE:
You were submitting to the authority of the police, weren’t you?
PROSECUTOR:
Objection. Leading.
JUDGE:
Sustained.
DEFENCE:
The police surrounded you, right?
PROSECUTOR:
Objection. Leading.
JUDGE:
Sustained.
DEFENCE:
You didn’t have any choice but to do what they said, did you?
PROSECUTOR:
Objection. Leading.
JUDGE:
Sustained!
DEFENCE:
Didn’t you feel obligated to do what the police told you?
PROSECUTOR:
Objection. Leading!
JUDGE:
Sustained. Counsel could you please stop suggesting the answers to your witness and ask a non-leading question!!
Her case was falling apart before our very eyes. The witness was becoming disoriented, because he wasn’t allowed to answer any of the questions. The prosecutor was successfully objecting to every question. The judge was losing patience with counsel’s inability to ask a proper question. Counsel was getting exasperated because she simply didn’t know what else to do. It was painful to watch.
If you ever find yourself trapped in the same spot, you’ll need to break out of the rut and start asking proper questions.
A question is “Leading” when it suggests the answer to the witness or contains the information that you’re looking for.
The best way to avoid asking leading questions during direct examination is ensure your questions start with one of the following words:
What
Why
When
How
Where
Who
Explain
Describe
Tell us
Remember, your goal on examination-in-chief is to make the witness the star of the show. Whenever you ask leading questions, you shift the focus away from the witness and towards yourself. You aren’t the one testifying. The judge doesn’t want to hear from you – they want to hear from the witness. Make sure that you start each of your questions with any of these “magic” words, and you’ll avoid 99% of all “Leading” objections.
