![]() ![]() People seem to understand this.Īccording to the rules of evidence, you are typically required to use only non-leading questions when questioning your own witness. This is the example I use to explain the difference between leading and non-leading questions when preparing a witness to testify. It basically tells the witness what his answer should be. Compare that with “Your name is John Smith, isn’t it?” That would be leading. You might not get every answer you want, but you will start to make progress toward your goal.“What is your name?” That is a non-leading question. Don’t just ask one or two leading questions, then go right back to “What happened next?” So that’s why you need to dig, keep pushing. You take charge of the deposition, because you’re the one who’s asserting what’s happening.Ī lot of times this won’t work, perhaps the witness will baulk, or push back about what you’re saying or how you’re saying it.If the witness agrees with you, then they’re agreeing with YOUR version, YOUR phrasing, YOUR characterization of facts.But when you’ve set your target up properly beforehand, and you know already what you want the witness to say, if you ask the leading question, you have a few benefits: Maybe you truly don’t know where the deponent went after work every day. ![]() Of course at times open ended questions are necessary, because you might really need to know what happened. This is another benefit to the leading questions: it forces you to follow up and get specific Yes/No responses to specific details, which is much more valuable than generalities like “just a few” and “not much”įinally, the answer to the last question was the same, but the assertion made in the leading version is more forceful and it subtly implies facts that were not implied in the open-ended version. (Q: You took boxes of supplies out of the office, right? ) A good lawyer would repeat the question again to attempt to get the witness to agree with the assertion in the leading question. The value was minimal.) In the leading example the same answer was much less responsive because it isn’t clear if the witness agreed or disagreed with the assertion in the question. What kinds of things would you take out of the office? A: Just a few supplies. Third, in the open-ended example the witness’s answer to the penultimate question was generally responsive (Q. Second, when the witness is unsure they are more likely to agree with your assertion when the question is leading and the witness perceives you to know the facts in detail. ![]() “Frequently” is ambiguous and leaves room for interpretation and debate. The question “You took supplies from the office at least once per week every week for the last 3 months didn’t you” is preferable to “You took supplies frequently”. There are a few other points to note here:įirst, when you ask leading questions be sure to give details and avoid “wiggle words”. Q: You knew that your company expressly prohibited taking supplies outside of the workplace, right? Q: You took boxes of supplies out of the office, right? Q: You took supplies from the office at least once per week every week for the last 3 months didn’t you? Q: But you also took the supplies outside of the office? Q: You used these supplies for your office work, correct? ![]() Q: You had access to the supply cabinet didn’t you? This technique will give you a much better transcript. Many witnesses will agree with facts that you state if you phrase the questions as leading questions. The witness could always disagree with the questions, but leading questions are more forceful, and they suggest to the witness you know the facts. Now let’s look at the same line of questioning with leading questions. Q: Did you know that taking these supplies was prohibited? Q: What kinds of things would you take out of the office?Ī: Just a few supplies. Q: Did you take any of the supplies outside of the office? Q: Did you have access to the supply cabinet?Ī: Sure. The first questions are not very heavy hitting, but notice how this line of questioning gives the witness more control over the responses. Here is an example transcript with open ended questions. An open ended question does not suggest the answer.Īssume that you are trying to establish that the deponent was stealing office supplies and that he knew that he should not have been taking those supplies. Leading questions suggest the answer that you expect to get and literally “lead” the witness. A lot of time in depositions, since there’s no jury there, the deposing lawyer gets out of the habit of asking leading questions, and just asks open ended questions. One of the most important things you must do is to ask leading questions. How do you get the witness to say exactly what you want them to say? Something that’s perfectly quotable? Something that makes your brief sing? ![]()
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