![]() ![]() “You reviewed the witness statements of plaintiff and defendant, correct?” “And you calculated the force that acted on the plaintiff in this accident at 12 g?” That is, a lawyer could ask an accident reconstruction expert questions like the following on direct examination, without concern that they are objectionable as leading: The idea, presumably, is that experts know their subjects well enough that their testimony is not going to be altered because a lawyer suggests an answer. When calling an expert, then, the California evidence rules do not require that a lawyer refrain from asking leading questions. The comment to Section 767(a) also allows leading questions on direct examination for “refreshing recollection, and examining handicapped witnesses, expert witnesses, and hostile witnesses.” “Preliminary matters” are not the only type of question expressly exempted from the leading question bar. But in my recent trials, I actually have not seen this as a problem more often, I have seen attorneys struggle by refraining from asking a leading question (sometimes due to objections to such questions, even if I’ve overruled one) where the question might be helpful to move the examination along and where I would not see it as improper because there would be little danger of improper suggestion.Ĭonsider further, the questions lawyers ask of their expert witnesses. Indeed, the comment later states that “preliminary matters” are exempt from the bar on leading questions.Īs the examination moves toward contested matters, of course, I would sustain objections to leading questions and even instruct lawyers not to ask them. To my mind, leading questions such as the one above should not be objectionable, as there is little danger of “improper suggestion ” the attorney is simply establishing a background fact that is uncontested. permits leading questions on direct examination where there is little danger of improper suggestion or where such questions are necessary to obtain relevant evidence. The comment to the rule states the following, with emphasis added: ![]() Evidence Code Section 767 contains an introductory clause that operates as an exception to the prohibition on leading questions, stating that such questions are allowed under special circumstances or where the interests of justice require. There is authority for allowing this leading question. But alternatively, could the lawyer instead ask the following leading question?Ĭounsel: And you became a supervisor in the unit in approximately June of 2004? ![]() One answer for an attorney, of course, might be to spend more time preparing the witness. ![]() I have seen this process occur in various contexts recently, and each time it has seemed to me like a direct examination that was humming along smoothly has hit a speed bump in some cases, the jury may have even been made uncomfortable watching a witness struggle to recollect. I think it was about the middle of 2004.Īs the witness ponders her answer with a couple minutes of halting testimony, the jury’s attention may wane or the witness may look unknowledgeable, even if she is simply engaged in the normal human process of attempting to recall when something happened. So, um, I don’t think it was in 2005…well, I know it was before the holidays. Witness: Well, um…it was definitely after 2003, because I know I wasn’t a supervisor yet that fall, but I’m not sure …well, actually, it had to be a good bit before the plaintiff was hired in 2005. Quite a few times I have seen an exchange such as the following, which I have made up but which is based on an employment law trial where the defendant company had called one of its witnesses and was introducing her through her work background:Ĭounsel: And when did you begin as a supervisor in the unit? And they tend to honor the rule.īut, interestingly, I repeatedly have seen lawyers go perhaps further than they need to in observing the rule. Lawyers in my courtroom all seem to know the basic rule that they are not to ask leading questions on direct examination, a rule stated in strong terms in Evidence Code section 767(a)(1). I caution that these are simply my views, some of which concern discretionary matters, and other judges may well see the same matters differently. I simply mean to identify three matters for lawyers’ consideration. I am avoiding obvious tips that most trial lawyers have heard before (“be prepared!”). Nevertheless, I have had a few recurring thoughts during direct examinations that I would like to share in an attempt to help you improve your ability to present your case effectively at trial. In nearly all cases, I have been impressed by the skill and diligence of counsel. In the six months prior to writing this article, I presided over a dozen civil trials in my unlimited civil courtroom, so in that period I’ve seen more than two dozen civil lawyers question witnesses. ![]()
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