Strategically permitting objectionable leading questions

Posted Wednesday, November 11th, 2015 by Gregory Forman
Filed under Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Leading questions are questions that suggest their own answer. Typically they are statements masquerading as questions, such as: “You and your spouse separated on March 14, 2013?” The ability to ask leading questions is governed by Rule 611(c) of the South Carolina Rules of Evidence, which reads:

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

As the rule indicates, ordinarily leading questions can be used in cross-examination or when calling the opposing party or a hostile witness. Leading questions are typically objectionable when used on direct examination or when questioning one’s own client. However merely because one can object to a leading question doesn’t mean one must or even should.

I will often ask leading questions of my own witnesses to establish uncontested facts. The example above–“You and your spouse separated on March 14, 2013?”–is something I might well ask my client when seeking to obtain a no fault divorce. Asking such leading questions merely saves time in establishing basic uncontested facts. Objecting to leading questions on uncontested facts is a behavior I associate with new attorneys–who learned they could object to leading questions in their trial advocacy classes but haven’t enough experience to develop a theory of why one might want to object.

It is better strategy to limit one’s objections to leading questions intended to establish contested facts. Even with such questions, I tend not to uniformly object. In deciding whether to object it is useful to think of leading questions as a method of allowing an attorney to actually testify through the witness. The attorney asking a leading question is attempting to state a “truth” and merely asking the witness to affirm that “truth.” Some testimony is much less damaging if it comes from the attorney instead of the witness. For such questions an objection as leading, while allowable, is counterproductive.

A frequent example of testimony that is less damaging coming from the attorney rather than the witness is testimony that is harmful to one’s own position but not controverted by the opposing party. An illustration of this might occur during allegations of marital fault. While one’s client may deny he or she is an alcoholic, abusive, adulterer, one rarely goes to trial unaware that the other party is making these allegations. In that circumstance I’d rather have the opposing attorney lead his or her witnesses, and have these witnesses merely saying “yes” or “no,” than have these witnesses give direct testimony to my client’s misbehavior.

That these witnesses appear to need to be led to give damaging testimony lessens the impact of that testimony. Further the leading question, by its very nature, generates a narrow and limited answer. An attorney who asks the witness, “You’ve observed [the opposing party] passed out from excessive alcohol use” is going to get “yes” as the answer. If that attorney instead asks, “Describe your observations of [the opposing party’s] excessive alcohol use,” that answer is likely to be more detailed–and damaging.

When an attorney attempts to lead an adverse witness into saying something damaging that this witness might not otherwise say, an objection to the question as “leading” is advisable. Otherwise you might as well let the opposing attorney lead. Objecting will likely result in the question being rephrased to generate a more harmful response.

4 thoughts on Strategically permitting objectionable leading questions

  1. Warren Moise says:

    Well put, Greg.

  2. Jessica Birt says:

    Great points, Greg. I coach many of the trial ad teams at CSOL and often suggest the students object strategically. Unfortunately with law students (and new lawyers), they still see the world in black and white, so when they see anything that checks the box as “objectionable” they go for it. There is much strategy involved in objecting, though, and I believe your blog does a great job illustrating that point.

    One counterpoint to your example on leading questions on direct with dicey subject matters is that often I would rather the witness testify in their own words even at the risk of a harmful response purely to be able to hold them to their own word. Although an attorney’s response may be controlled and less messy, having the witness express their position often allows me to catch them in exaggerations, misstatements, or giving inconsistent statements. Of course, knowing the witness and weighing that risk is all part of the overall strategy.

    Thanks for this blog and all the others! I look forward to reading them each time a new blog is posted.

  3. MJ Goodwin says:

    I see many lawyers, especially inexperienced ones, who object to leading questions for no good reason. It makes trials take longer and is irritating to the judge. Your point here is well made.

  4. Megan Dell says:

    I totally agree. I have also had some success allowing the opposing attorney to lead his client through a series of dishonest answers, knowing that I had evidence of the truth that I could use on cross. The opposing party looked like he would say absolutely anything to get what he wanted.

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