As a trial lawyer, you need to be concerned with your safety during trial. One of the most dangerous areas of trial seems to be the area of cross-examination. As the old legal maxim says, “More cross-examinations are suicidal than homicidal.” Luckily, someone developed a set of rules to keep you safe during this dangerous activity. These rules were first presented at the American Bar Association's 1975 annual meeting by Prof. Irving Younger, who titled them “The 10 Commandments of Cross-Examination:”
- Be Brief
- Use Plain Words
- Use Only Leading Questions
- Be Prepared
- Listen
- Do Not Quarrel
- Avoid Repetition
- Disallow Witness Explanation
- Limit Questioning
- Save the Ultimate Point for Summation
Much like the rules of the gun range, however, one of these commandments is far more important than all of the others. If you follow this single commandment, you will control witnesses, streamline your cross, and avoid the majority of pitfalls most lawyers encounter during cross-examination. Which one is it? “
Commandment #3: Use Only Leading Questions.”
Notice that it doesn't say, “Use Only Leading Questions (Most of the Time).” It doesn't say, “Use Only Leading Questions (Unless You Don't Feel Like It).” It doesn't even say, “Use Only Leading Questions (Except When You Think the Witness Can't Give You a Bad Answer).”
No, the commandment is simple and direct: “Use ONLY Leading Questions.”
In the past few weeks, I've had the opportunity to watch several attorneys cross-examine witnesses. Overall, most of their cross-examinations were effective, but there were still a few times when the witness, rather than the lawyer, seemed to be in control of the examination. Here are a few of the problems I saw:
- Witnesses getting out of control
- Witnesses volunteering damaging information that the jury shouldn't hear
- Lawyers arguing with witnesses
Without fail, every time that there was a problem, it was after the lawyer asked a non-leading question. Every time that the lawyer stopped asking leading questions, the witness attempted to exert control and re-tell their story.
Why would you ever abandon leading questions? Leading questions are one of the few tools that you're given to level the playing field during cross-examination, so why wouldn't you want to use them? Whenever you ask open ended questions, you give the witness the opportunity to re-tell their story. Let's face it -- if you really liked their story, you would have called them during your case-in-chief. You don't want to hear their story again during cross-examination... You want to tell your client's story.
To make sure that happens, every question that you ask during cross-examination must be a leading question. To ensure that your questions are all leading questions, you must eliminate these deadly words from your vocabulary during cross:
Who?
What?
Where?
When?
Did...
How?
Why?
Explain...
Tell us...
What?
Where?
When?
Did...
How?
Why?
Explain...
Tell us...
These are wonderful words when you're conducting a direct examination, but they can wreak havoc during your cross. Whenever you ask a question that starts with one of these words, you give the witness permission to explain their story. The worst words in the entire list are the last two: “Why?” and “Explain...” When you start your question with either of these words, you give the witness carte blancheto explain why they did what they did. (Trust me, you won't like the answer.) Just like at the shooting range, if you want to be safe, you need to follow the safety rules without exception. Make sure thatevery question you ask is a leading question, and you'll ensure that your time on the firing line is a safe and enjoyable experience.1
source;www.TrialTheater.com
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