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Natural Born Leaders

by Elliott Wilcox

"You ignored the warning labels, didn't you?"
"The posted speed limit was 35 MPH, wasn't it?"
"You told him you would have the contract signed by Thursday, right?"

Leading questions.

When it comes to cross-examination, leading questions are the best types of questions to ask, because they suggest the desired answer to the witness.  Used effectively, leading questions reduce the witness's responses to a mere "Yes" or "No."  The real power of leading questions is that they allow you, the examiner, to control the witness using short, single-fact "questions" (statements, actually) to tell the jury your client's story and show the jurors why your client deserves to win.

Used properly, leading questions can be very effective.  That may be why so many trial lawyers want to ask leading questions during direct examination, too.  Even though you've been told, "Don't lead on direct," if you've tried a fair number of cases, you've probably either seen other lawyers ask leading questions during direct examination, or asked them yourself. 

Not that asking leading questions is always improper during direct examination.  It's perfectly appropriate to ask leading questions on preliminary issues, or matters not in contention.  If we weren't allowed to ask some leading questions, trials would drag on forever:

Attorney #1:  "Sir, please introduce yourself to the jury by telling them your name and what you do for a living."

Attorney #2:  "Objection!  Leading!  By addressing the witness as 'Sir,' Counsel has suggested to the witness that the witness is a male.  Furthermore, counsel is suggesting that this witness has a name and evidently is supposed to work somewhere.  I request that this blatantly leading question be stricken from the record!"

Court: "Sustained.  Counsel is admonished to refrain from leading the witness."

Without some amount of leading, you'd never get to try the case.  But the danger doesn't arise from leading through those preliminary matters.  The danger arises when attorneys ask leading questions about the most important issues in the case.  Take a look at this example:

Attorney: "So, Mr. Hill, as you approached the intersection, you were looking at the traffic light, weren't you?"

Witness: "Yes."

Attorney: "You saw that the light for traffic heading in your direction of travel was green, wasn't it?"

Witness: "Yes."

Attorney: "You could see that the light for traffic on Kaley Avenue was red, correct?"

Witness: "Yes."

Attorney: "But the garnet and gold Humvee traveling westbound on Kaley Avenue didn't stop for the red light, did it?"

Witness: "No."

Attorney: "It didn't even slow down for the red light.  It darted right into the intersection, didn't it?"

Witness: "Yes."

Attorney: "Driving at more than twice the posted speed limit of 25 MPH in that school zone, right?"

Witness: "Yes."

Attorney: "Plowing into the driver's door of your Mini Cooper, sending glass everywhere, and pushing your car into a telephone pole on the northwest corner of the intersection, right?"

Witness: "Yes."

At this point, you should have a pretty good image of what happened to the witness.  You can probably close your eyes and replay the entire scene.  That's because the attorney did a very good job of telling the story through leading questions.  When he realized that his opponent wasn't objecting to the leading nature of the questions, the attorney piled it on, and lead through the entire direct examination.

Here's the problem with that.  The lawyer isn't the one who's supposed to be testifying.  He's not the one who took the oath and promised to tell "the truth, the whole truth, and nothing but the truth."  The jurors need to evaluate the testimony, demeanor, and character of the person who witnessed the events.  That person is supposed to be the "witness."  But by leading through every important detail, the jurors never heard from the real witness.  The only testimony the jurors can really evaluate are those single word "Yes" and "No" responses.  How are they supposed to evaluate that?

The problem will be compounded during closing arguments, when the opposing attorney asks the jurors, "Didn't the attorney trust the witness to tell us what happened?  Maybe it's because the witness doesn't know what really happened.  After all, he had to be led by the nose and told what to say every step of the way.  Plaintiff's counsel could have put a parrot or a bobble head doll in the witness stand and gotten the exact same testimony..."

What should have been a slam-dunk case and a five-minute liability verdict becomes a quagmire of extended deliberations, because the lawyer couldn't resist the desire the lead. 

Why?  Where does this desire to lead during direct examination come from?  It probably comes from every trial lawyer's desire to exercise control over his or her surroundings.  Many trial lawyers are natural born leaders.  They're convinced that they can testify better than their witnesses can, and so they (subconsciously, perhaps) switch to leading questions during the most important issues in their case.

Don't make the same mistake during your next direct examination.  Remember, it's the witness who's under oath, not you.  If you want the jurors to believe that your witness really experienced what he's testifying about, don't succumb to the desire to lead.  Ask the witness questions that start with "Who," "What," "Where," "How," "When," or "Why,"  and you'll guarantee that your witness tells the story, not you.

WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter, a free weekly e-zine for trial lawyers that reveals simple, effective, and persuasive techniques to help you win more trials, guaranteed.  Sign up today for your free special report: “How to Become the Best Trial Lawyer in Your Courthouse – The Top Ten Tips for Trial Lawyers,” at

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