Isn’t it true that…
You previously testified to X – didn’t you…
She did XYZ – isn’t that right…
As a young lawyer, I felt the flush of success when cross examining a witness with leading questions. We were taught the technique in law school. Told it was the best and only way to cross examine a witness. You never wanted to ask an open ended question – oh no. Because terrible things could happen.
Today I sit as a panel arbitrator. Day 2 of a UIM arbitration. Both counsel relying heavily on the use of leading questions. Lead their own witnesses through direct. Lead the witnesses through cross. Lead them through redirect. To the point where the attorneys are speaking longer than the people brought to testify.
I sit there. Paying attention. Because I – along with the other two arbitrators- are fact finders. And this is an important hearing for those involved. But my mind protests. I think about what it must be like for jurors. To have to listen to this lawyer way of talking.
Leading questions are positional. The person asking them is literally and figuratively standing above and over the witness. Attempting to intimidate. Attempting to control. Attempting to avoid surprise or damage. That’s what we are told at least during the training process.
But in reality, these types of questions land like punches from a bully. They transmit the message: we don’t want to hear what you really have to say. Just parrot back what I want.
Once upon a very long time ago lawyers were admired for their verbal prowess. But now, we are not generally trusted. Are viewed with suspicion. So when we indiscriminately shut down a witness and use intimidation tactics, we risk alienating our audience.
There are of course exceptions. Such as when the witness is so disliked that the jury gives us permission to lead that person through the nose.
In my personal opinion, trial lawyers should be more creative and skillful. We should use the full spectrum of persuasion when questioning witnesses. So they can go in a seemingly more graceful and organic fashion exactly where we intend.
Photo: Nala is the exception – she always leads