I always thought that whether a question was leading was a binary proposition: Either a question was leading or it was not.
Blah, blah, blah; is that right? Leading.
Can you explain why … ? Not leading.
On cross-examination, you use only leading questions. Simple enough.
But no.
There are variations. There are very leading questions, slightly leading questions, slightly nonleading questions, and completely open-ended questions. With the hardest witnesses, you must use excruciatingly leading questions.
Here’s an example:
You have a sales chart. The company sold 15 in December 2019, 14 in January, 13 in February, 12 in March, 11 in April, 10 in May, 9 in June, 25 in July, 24 in August, 23 in September, 22 in October, 21 in November, and 20 in December 2020. Thus: The company started with 15 sales per month and ended with 20 per month in the next year, but this was not a consistent increase.
With the toughest expert witness on cross-examination, use the most leading questions:
Q: The company sold 15 in December 2019. Did I read that correctly?
That’s extraordinarily leading. Witnesses quibble with a lot, but it’s hard to quibble with, “Did I read that correctly?”
Next:
Q: The company sold 20 in December 2020. Did I read that correctly?
Same deal. The witness can’t quibble. For very tough witnesses, stop there. You’ve now made the point you need for closing: “As the expert witness conceded, the company sold 15 in December 2019 and 20 in December 2020. Year-over-year, the sales were increasing.”
But you can be more aggressive with your questions, at the cost of more risk about the answers.
Suppose you try a third question:
Q: So you agree that, year-over year, there was an increase in sales, right?
Maybe the witness is cooperative, and you get a “yes.” Eureka!
But maybe the witness is stubborn:
A: Absolutely not. Sales peaked with 25 in July, and sales then decreased every month for half a year until finally bottoming out at 20 in December 2020. That’s not year-over-year sales growth. That’s a declining company. It’s a disaster.
You’re feeling a little stupid for having asked the question, but you show no emotion and battle on:
Q: I’m asking about year-over-year. You’d agree that, on a year-over-year basis, from December to December, sales were increasing, right?”
This sound leading, but it’s an invitation for a counter-punch.
A: It depends of course on where you start the year. I think the last six months are most important, because they’re the most recent. If you focus on the recent months, sales have fallen off the edge of a cliff.
You struggle on, because you’re a fool and don’t know when to stop:
Q: But I’m talking about the end of one year to the end of the next.
A: Yes, you are, but that’s because you’re mistaken about what matters. If you were focused on the correct numbers, blah, blah, blah.
The questions looked so leading when you drafted them last week, but they weren’t leading enough.
Then, of course, there’s the other end of the spectrum — questions that only fools ask:
Q: Can you tell me any reason why the year-over-year numbers don’t matter?
A: Any reason? Now that you mention it, there are 14 reasons. Judge, please don’t interrupt me while I give a soliloquy for the next half hour, because this clown asked for it. Who hired this lawyer, anyway? In any event, reason number one is … .
Leading and nonleading questions. That is not a binary choice. Did I read that correctly?
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.