Overcoming the "leading objection"

 Posted By: je froilan m. clerigo
14-Apr-2008

 "Objection, leading!" This is perhaps the most oft-repeated objection of all during direct examination. While most lawyers (and judges) gauge if a question leads or not by the standard "if it is answerable by yes or no, then it is leading," the rule-book definition of a leading question, however, is that it is a question which suggests the answer that the questioner desires.

 

Of course, one way of avoiding this objection is not to ask a leading question at all. However, this may not be practical; in fact, it is not even advisable. There will always be occasions when you need to make your questions pointed and unequivocal to get maximum effect, or even just to avoid confusing your witness. This is why I noticed that seasoned trial lawyers lead one time or another.

For instance, to emphasize a scene, you may have to use short and pointed questions to make it more vivid, such as when you want the witness to describe the scene of a robbery he witnessed while it was in progress. You'd want to convey fast-paced, heart-pounding action. Open-ended questions with long-winded answers simply will not do the trick; on the contrary, they'll just lose the impact that you'd have wanted. You want short questions; and you want equally short and crisp answers, moving the testimony forward in a fast cadence.

You also may want to "lead" to dispel any probable "unresponsive" answers - those answers that you do not really intend - from your witness; otherwise, you may have to repeat your question to get what you want, and this just distracts the judge from the testimony.

Consider the question "describe the door when you arrived at the apartment". While you may have simply wanted your witness to say that the door was already open when he arrived, he may get confused and start describing the door as "wooden, painted white, with brass knobs."

One way of beating this objection is to watch your tone: be conscious of it. It cannot be described here accurately, but your tone of voice when you ask the question alerts the judge and other lawyer of the nature of the question. For instance, I once asked the witness on direct, "what were you doing at that house?" The witness answered, "we were there to fetch our friend on our way to the party." Then I followed up, in a matter-of-fact tone of voice, "so, you went by your friend's house first before you went to the party?" This last question could be objected to as leading, but because of the tone of the voice, it slipped by without the other lawyer noticing it.

My next question was, "At what point did you take your first drink of beer that night?" Answer: "when we were already at the party." And then I asked, again in a matter-of-fact tone, "so, you were not yet drunk before you went to the party?" Again, this last question could have been objected to as leading were it for the tone of voice. Make the tone sound like you are just following up the answer with a question.

Another way of overcoming this objection is to give the witness choices, so that it will not appear that you are suggesting the answer to him.

If you want the witness to say that he was still sober when he arrived at the party, and it was only after that he got drunk, you'd have to go a round-about way of extracting these answers (unless of course, you and him have already memorized a script along these lines):

Q: Upon arriving at the party, describe your state of mind. or,

Q: How were you feeling when you arrived at the party?

With these kinds of questions, who knows how the witness will answer?

The better way is to suggest it to the witness without appearing to do so. Consider:

Q: When you arrived at the party, were you drunk or still sober? or,

 Q: When you left the party, were you still able to walk, or did somebody have to carry you out?

In time, with enough practice, you would not even notice anymore that your direct examinations did not draw a single "objection, Your Honor, leading".