Stop Leading Your Witness!!!

Earlier this week I was in court for a motion hearing.  Since I was early, I sat down and watched the hearing before mine.  As you’ve heard me say before, any time you get the chance, I recommend watching other lawyers in action.  If they’re better than you are, you’ll discover new skills or techniques you can apply to your practice.  If they’re worse than you are, you’ll be reminded about mistakes that you shouldn’t repeat.  No matter what happens, you’re almost guaranteed to learn something.

This was one of the cases where I was being reminded about mistakes you shouldn’t repeat…

The attorney was questioning her client, and I quickly saw that things weren’t going very well.  Although she was an experienced criminal defense attorney and probably very accomplished in the art of cross-examination, her direct examination skills were awful. She was desperately trying to get her client to tell his story, but she couldn’t formulate a non-leading question to save her life.  Here’s a brief example of how things were going:

Defense: You were submitting to the authority of the police, weren’t you?

Prosecutor: Objection.  Leading.

Judge: Sustained.

Defense: The police surrounded you, right?

Prosecutor: Objection.  Leading.

Judge: Sustained.

Defense: You didn’t have any choice but to do what they said, did you?

Prosecutor: Objection.  Leading.

Judge: Sustained!

Defense: Didn’t you feel obligated to do what the police told you?

Prosecutor: Objection.  Leading.

Judge: Sustained.  Counselor, stop suggesting the answers to your witness and ask a non-leading question!

Her case was falling apart before our very eyes.  The witness was becoming disoriented, because he wasn’t allowed to answer any of the questions.  The prosecutor was successfully objecting to every question.  The judge was losing patience with the attorney’s inability (or unwillingness) to ask a proper question.   The attorney was getting exasperated because she simply didn’t know what else to do.  It was painful to watch.

If you ever find yourself trapped in the same spot, you’ll need to break out of the rut and start asking proper questions.  A question is “Leading” when it suggests the answer to the witness or contains the information that you’re looking for.  The best way to avoid asking leading questions during direct examination is ensure your questions start with one of Rudyard Kipling’s “honest serving men:”

I keep six honest serving men,
(they taught me all I knew)
Their names are What and Why and When,
and How and Where and Who.

– Rudyard Kipling
The Elephant’s Child,
(1902)

(In addition to these six magic words, you can also use the words “Explain” or “Describe.”)

Remember, your goal on direct examination is to make the witness the star of the show.  Whenever you ask leading questions, you shift the focus away from the witness and towards yourself.  You aren’t the one testifying.  The jury doesn’t want to hear from you — they want to hear from the witness.  Make sure that you start each of your questions with any of these “magic” words, and you’ll avoid 99% of all “Leading” objections.

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5 thoughts on “Stop Leading Your Witness!!!

  1. Hi Sherman Texas Atny:
    actually the judge just smiled at me like “you sneaky lil bugger” and moved on…

    But as always, every tactic move must be assessed according to the judge we are in front of.

  2. Great reminder… basically do everything in direct which you should never do in cross & vice versa.

    Yes, our Prof. Paul Millich [@GSU] says it leads to a dis-credible witness. Jury doesn’t believe the testimony because most of it is coming from the lawyer’s mouth… in fact Prof. Millich suggests that when the opposing counsel is doing that, let them — it hurts their own credibility. But I learned from Attorney David L. Wolfe to do something like this:


    Q: Isn’t it rare for a fingerprint to stay on the coin for a long period of time?
    ME: Objection thats a leading Q… But its ok, thats fine…

    That tells the jury that attorney is not playing by the rules, and re-emphasizes the dis-credibility of what is being said while making you look like you have nothing to hide.

  3. Do you find that it can be annoying if a witness were to parrot the attorney? As in using the phrasing from the question to begin the answer? Does it help in real life (I’m doing college mock trial) to tag or signpost your questioning for the benefit of the jury and the witness? Does leading your witness ultimately lead to credibility issues for your case, you and your witness(es)? Thanks for the help. Nice post.

  4. Elliott, I to was in court this week let me ask you a question does this still apply to a situation that has to many hands in the pot as they say? With the Who, What, When, Where, Why? Please explain like you said.
    The case I was watching the attorney was doing a great job in controling the witness but, I did not hear those words nor did it seem the witness was allowed. This situation in learning was a property damage case and alot happened to witness in the blame game from the opposing counsel (SF) and the judge stated it sounds like more like bad faith to him. As this witness talked I felt for the guy but, I felt he left things unsaid. During this case, it was learning experience because this guy did everything the opposing counsel requested openly and freely and only to be used against him. To my understanding the vehicle was not repaired correctly after many attempts until finally it was surrendered. It could not pass safety inspection. With the blame game like this, isn’t best not to say who, what, where, when, why, because it involves so many hands.