Podcast - Cross-Examination: Asking the Right Leading Questions

Dan Small: Cross-examination: leading questions. Nowhere is the contrast between direct and cross as clear as in the use of leading questions. Leading really has no place in most of a direct examination. After all, it's the witness' story that we're trying to get the jury to hear. But in cross-examination, leading is where you live. Just about every question should be leading. But too many lawyers think that because they're allowed to lead, they should ask long and convoluted questions. To the contrary, your questions should be as short as possible, and let's be clear about what we mean by "short." Generally speaking, if a question on cross-examination is more than four to six words long — think about how short that is — it's too long and convoluted. Don't ask it that way. Break it up into the three or four questions that you should have asked, and ask them one at a time.

A short question is almost always clearer than a long question. A long question also poses obvious risks of confusion, and a somewhat less obvious risk is that a long question is hard to listen to. If jury members have to strain to follow the questions, they're going to get tired of it and simply stop listening. A long question also tends to give the witness too much wiggle room. The longer the question, the longer the answer can be. For example, if a question has four parts, the witness can disagree with one of the parts that leads to a loss of control, and all too often to some petty squabbling between the lawyer and witness. Don't do it. A simple question — X is true? — is more likely to result in the answer you want. Better yet, the simpler the question, the more obvious it will be when the witness is evading the question.

There are two typical ways in which questions are unnecessarily long. First, too many topics. Sometimes lawyers cram too many points into a single question. Think about this one.

            So, madam, witnesses say you flew to Boston on March 17 and then rented a car at the airport and drove to Worcester, and then you met with John Smith at the Holiday Inn, which is on Main Street, and you met with him to discuss the proposed deal?

            Correct.

That's over 40 words. Over 40 words for the jury to keep track of. Don't do it. Don't make them do it. Instead, break it down into multiple short questions.

            You flew to Boston?

            That was on March 17?

            You rented a car?

            You drove out to Worcester?

            You met there with John Smith?

            That meeting was at the Holiday Inn?

            It's the Holiday Inn on Main Street?

            At that meeting, you discussed the proposed deal?

Be patient if the point is worth making. Take your time and do it right. This may be particularly important if you're emphasizing a series of related points. For example, instead of saying, "You had time to do X, Y and Z before the police arrived, right?" You say, "You had time to do X before the police arrived? And you had time to do Y before the police arrived? And you had time to do Z before the police arrived?"

The second common problem is too many extraneous words and phrases. Sometimes lawyers stuff their questions full of unnecessary words. How about this?

So, Madam Witness, there came a time, did there not, when you had occasion to travel to Worcester, Massachusetts, in order to engage in a series of meetings and discussions regarding a possible business transaction?

This is just noise that detracts from the question and causes jurors to time out. Strip all of that out. You went to Worcester to discuss a deal, that's all.

There are lots of different styles of leading questions, all of which suggests the answer to the witness. But nearly all of the time, the core of the question ought to be a single and relatively simple statement of fact. A simple statement of fact is often enough, with voice inflection indicating that you're asking a question. Sometimes even a single word will suffice. For example, suppose an eyewitness' ability to see is a critical issue, and it was foggy on the day in question. Of course, don't ask an open-ended question on cross: "What was the weather like that day?" You could ask the obvious leading question: "Was it foggy that day?" But the unadorned statement, "It was foggy that day," is more likely to be effective.

So, for example:

            It was foggy that day?

            Yes.

            Drizzly?

            Yes.

            Cold?

            Yes.

            Had to keep the windshield wipers on to see anything?

            Yes.

Even though you generally want the witness to answer yes or no to your questions on cross, there is some danger that your presentation can feel unduly rushed or monochromatic if every question is asked in the same way, and every question ends up in the same answer. So don't be afraid to mix things up a bit, especially on matters that are less significant.

Cross-examination is an art, and a subtle one at that, but some things about it are nonetheless true. A short question is almost always better than a long question, and a simple question is better than a complex one.