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Monthly Theme: Examinations Part One

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Using Smaller Questions to Make Points Bigger in Direct and Cross Examination

(First of Two-Part Series)

Written by NITA guest blogger, Michael R. Fontham

A common failing of lawyers in trial is the tendency to cede control to witnesses, whether on direct or cross-examination.  Lawyers give up control by asking general rather than specific questions.  It may seem paradoxical, but the best method to make big points in examining witnesses is through small questions, strung together to create mini-themes.  The techniques are different in direct versus cross, but the aims should be the same:  to emphasize the strongest points forming the central message of the attorney’s case.  Many lawyers fail to understand that controlling the testimony is essential to presenting a case theory in the most powerful way, which requires the use of specific questions.  This article will discuss techniques for using this approach in direct and cross-examination.

Part I: DIRECT EXAMINATION

The bugaboo of lawyers on direct examination is the fear of leading.  Because they often have only a vague understanding of what constitutes a leading question, attorneys shy from the specific and resort to the general:  “Tell us what happened that day.”  The problem with this approach is that it places all the responsibility on the witness to provide an understandable portrayal, while emphasizing the points that the constitute the central massage of the case theory.  Most witnesses, even with extensive preparation, have difficulty remembering all the important points, placing them in the proper order, and describing them with the most effective detail.  Usually the witness forgets or jumbles the main points, misstates them altogether, or develops unimportant material.  A good direct examination requires that the attorney assume control of the examination, “leading” the witness through it in a manner that selects the important points for emphasis and directs the witness to develop the related facts.

To deal with the fear of leading, you must first place it in context.  Leading is not a mortal sin.  The objection to a “leading” question is simply an objection to form; the most that the judge can require you to do is restate the question in a non-leading manner.  Leading on direct happens often in every courtroom in America and often produces no objection at all.  So it is not a big deal, and certainly not big enough to drive you to give up control of your case presentation.  That said, it is much better not to lead, because leading shifts the focus from witness to lawyer and reduces the credibility and spontaneity of the factual descriptions.  Thus, the solution is to maintain control and yet avoid leading.

This “leads” to the question:  How do you avoid leading?  First, understand that a leading question is one in which the lawyer, rather than the witness, provides the pertinent information to the record.  Any question that can be answered with a “yes” is a leading question, because it simply asks the witness to affirm what the lawyer just said.  This is true despite the fact that the witness could answer “no”; the objection addresses the question, not the answer.  Conversely, a question that forces the witness to provide the pertinent information is non-leading.  A sure way to avoid leading is to start questions with “the five W’s or H”—”who, what, where, when, why, how.”  If you begin your questions with one of these words, the witness must provide pertinent information beyond what is contained in the question.  It thus is by definition non-leading.  Another form that is generally non-leading, which can be used to introduce a topic, begins with “To what extent….”

Even using the non-leading form, you can be quite specific in your questions.  When you want to emphasize facts, you should use closed-end questions that direct the witness to the specific parts of topics.  Limiting the scope of each individual question provides the best direction to the witness, allowing him or her to understand the exact point to be made in response, and permits the lawyer to direct the examination for the maximum persuasive impact.  The lawyer can control the ordering of points, which ensures that the listeners understand the context in which facts occurred.  Further, the attorney can determine what to emphasize through the development of facts.  Emphasis is generally achieved through development; the lawyer presents the entire “story,” but selects the most compelling points and emphasizes them by providing detail through more questions.  As the witness describes more detail about an important point, it seems to take on greater significance to listeners.  More open-ended questions can be used for unimportant material.

Examples of general versus specific questions:

OPEN-ENDED CLOSE-ENDED
Describe the man’s appearance. How tall was the man?

Describe his build.

What clothes was he wearing?

What color was his hair?

What color were his eyes?

Where was he standing?

[Assume the witness described a man running with a knife.]

What happened next?

In what direction did he run?

How was he holding the knife?

What did he do with the knife as he ran?

What, if anything, did he say as he ran with the knife?

The best way to conceive specific, closed‑end questions is to take your points and break them down.  Ask yourself:  If this happened, what are its necessary parts?  Create questions to ask for the necessary parts.  For example, assume a case in which a franchisee claims he was defrauded when induced to sign a franchise agreement for a computer products store.  A key attribute of the plaintiff’s case would be the representations made to induce the agreement (which were later not honored).  Many lawyers might be inclined to place the burden on the witness to describe the representations, with a question like the following:

Q. What representations did Mr. Jones make at the meeting?

To respond, the witness has to remember each representation, place them in the proper order, and describe their importance.  It is far better to do the work in advance for the witness, by breaking down the representations as follows:

  • What do they represent about training support for your salesmen?
  • What training did they promise for your computer repair person?
  • What did they represent about advertising support?
  • What representations did they make about account software?
  • How promptly did they say they would deliver inventory?

For each of these topics, the lawyer should create additional questions that permit the witness to develop the importance of the representation.   For instance, regarding the last point – delivery of inventory, the lawyer might ask:

Q.                How promptly did they say they would deliver inventory?
A.                They said it would be overnight or faster.
Q.                How did you expect the prompt delivery to affect your own need for a large inventory?
A.                We would not have to have a large inventory.  We could order for same or next day delivery.
Q.                How did you expect the prompt delivery to affect your profitability?
A.                We would avoid a big capital investment and could put money into attracting customers.
Q.                What impact would prompt delivery have on customer satisfaction?
A.                Customers want products right away.  If we didn’t have something in the store, we could get it quickly.

 

There are additional means of achieving emphasis:  showing the jury items from the factual picture, using demonstrative exhibits, and so on.  Using specific questions enhances these methods because the attorney can control exactly when and how they are presented.  They appear at the proper time and enhance the witness’s account.

[Michael R. Fontham is a member of the New Orleans law firm of Stone Pigman Walther Wittman L.L.C., engaging in a litigation practice. Mr. Fontham authored “Trial Technique and Evidence”, a text on trial advocacy and evidence published by NITA. He is also the author (with Michael Vitiello) of “Written and Oral Advocacy in Trial and Appellate Courts”, a treatise on brief writing, oral argument and legal research. He teaches evidence as an adjunct professor at the LSU Law Center and Tulane Law School.]

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