By Dr. Ken Broda Bahm:
When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination before a jury in trial, less isn’t more…it is less. That is, if you limit yourself to simple “yes” answers, then you have less control (with your adversary choosing all the words) less power (since you’re just confirming the facts that opposing counsel has selected), and less overall usefulness to the jury (since you aren’t saying much). In a courtroom cross-examination, there is a need to find ways to talk more so that you appear to be credible and, in some ways at least, so you function as a teacher for your jury. So, how do you do that if all opposing counsel is doing is giving you statements that are turned into questions by adding, “Wouldn’t you agree…” at the start, or, “Right?” at the end?
What you need to do is mentally convert the language of those questions so they’re no longer leading questions. They may be asking you, “You never tested the product with actual consumers, did you?” but the question you want to answer is more like, “What did you do to test the product?” The broader version is better for ensuring that you aren’t just a rubber-stamp for your adversary’s selective claims, but instead get to share your side of the story. So the answer should be, “No, we tested using computer simulations and human subject volunteers, not with actual customers.” Importantly, you are still answering their narrow question, but you are placing it in context by adding additional information. In knowing what to add, I think this mental step of implicitly converting a leading question into a more open-ended question is a helpful step in focusing the witness’ answer. In this post, I will share a few examples of this concept in action.
Let’s take the example of a company witness testifying in a breach of contract case. In order to convey strength, the witness wants to get her side of the story out, at least partially, during cross-examination. Here are a few examples showing where she could do that by converting the closed-ended question that’s been asked into a more open-ended target for response.
In each of these examples, the witness could give the answer indicated, instead of simply saying “yes” to the cross-examination version of the question.
Topic 1: The Meaning of a Contract
The Question Asked (Leading, cross-examination style):
You understand, don’t you, that business contracts are meant to be binding?
The Question You Want to Address Instead (Open-ended, direct-examination style):
What is your interpretation of what business contracts require?
The Answer (Responding to the ‘leading’ version, but in a way that accounts for the open-ended version):
Yes, contracts are meant to be binding, but in business, they are also meant to cover a wide variety of situations, so it is not a simple matter.
Topic 2: Reason for Non-Performance
The Question Asked (Leading, cross-examination style):
Your company did not perform your side of the contract because you didn’t think it applied to you, correct?
The Question You Want to Address Instead (Open-ended, direct-examination style):
Why didn’t your company perform your side of the contract?
The Answer (Responding to the ‘leading’ version, but in a way that accounts for the open-ended version):
The contract contained seven conditions that all needed to be met, and only four of them were met, so my company was not required to perform anything additional in this contract.
Topic 3: Communication With Business Partner
The Question Asked (Leading, cross-examination style):
As of November, you still had not shared with your partner that you thought they had breached, had you?
The Question You Want to Address Instead (Open-ended, direct-examination style):
When did you communicate to your business partner that you thought they were in breach.
The Answer (Responding to the ‘leading’ version, but in a way that accounts for the open-ended version):
We communicated that they were in breach as soon as we had solid information showing their non-performance. That wasn’t in November, it was the following April.
Like some other strategies, this is one that requires some sophistication. For that reason, it is not for all witnesses. But for a witness who is prepared and savvy enough to stay nimble during cross-examination, the tactic of treating closed-ended questions as if they were actually open-ended questions presents a good way of frustrating the goals of opposing counsel and presenting a strong front during cross-examination.
The tactic is also not a license to simply answer a different question than the one asked. The questioner deserves an answer to their question. But the witness deserves a right to place that answer in context, and that can mean addressing a subject that is purposefully broader than the narrow leading question that they’re given. Un-leading a question by mentally converting it to its open-ended form is a technique to avoid being boxed in by a narrow cross. If the witness is familiar with the distinction between open- versus closed-ended questions, and able to be a bit “bilingual” in mentally moving between the two, then they have a practical and effective way of getting their side out during what would otherwise be the other side’s moment.
Other Posts on Leading Questions:
- Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap
- Witnesses, Know When to Use Your Own Words
- Think Twice About Leading Your Mock Jurors