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QUESTIONS IN LEGAL PRACTICE: PART 1 - TRIALS

We recently (January & February 2021) did a series on question formation [1] in relation to improving your legal writing in English. In this short series, we will look at some aspects of ‘questions’ in a practical legal context.


When we think of how and when lawyers use questions, we might think about trials and the questioning of witnesses. Most people have seen, and enjoyed, courtroom dramas such as ‘Suits’ or films such as ‘The Rainmaker’, where much of the drama and enjoyment is in seeing witnesses lose their credibility under cross-examination.


Of course, there are rules – and many of them – in relation to how witnesses in trials may be questioned, and what about. However, as an advocate you also quickly learn that there might be questions you are allowed to ask, but it is best that you do not ask them.


We will look at trial procedure a little more during a series we will be doing during the spring and summer of 2021 on Civil/Commercial Litigation. At the moment, there are perhaps two main types of questioning that are involved in the trial process. These are:


· examination-in-chief (sometimes called ‘direct examination’ in the United States), and

· cross-examination.


We will look at each of these, briefly, in turn.


Examination-in-chief

Examination-in-chief is the process where a lawyer asks questions to his or her own witnesses during a trial. In both civil and criminal proceedings, there are rules about how this is done. One particular rule is that during examination-in-chief you must not ask ‘leading questions’.

Very simply, leading questions are questions which suggest or contain their own answer. For example, imagine a criminal trial where the prosecuting lawyer is questioning the alleged victim of an assault by the defendant. The question:


“Did the defendant punch you in the face?”


is clearly a leading question. Not only does it introduce information that should be given by the witness but it also suggests the answer


“Yes, he did.”

“And was it a hard punch?”


This question too, during examination-in-chief, would not be allowed because it is, again, a leading question. It suggests the answer the lawyer wants the witness to give, namely ‘yes’.

The two examples are, of course, examples of ‘closed questions’ – questions that can only be answered with ‘yes’ or ‘no’. Closed questions are often asked in order to ‘control’ the response and avoid detail. Closed questions often invite a particular answer and therefore create the overwhelming danger of being labelled ‘leading’.


Open questions, as we saw, are generally questions which invite a more open discussion and the provision of information about something. However, you must be careful here, also, as open questions can be leading. For example:


“Which fist did the defendant use to punch you in the face?”


This kind of question is suggesting information that the witness has not given yet.


The main purpose of examination-in-chief is to prove your case and this must be done by those witnesses telling their own story. Your questions must be designed to achieve that purpose and they must not be ‘leading’.


Cross-examination

Cross-examination is the process where the lawyer for the other side (or opposite party) questions a witness who has just been examined-in-chief. The main purpose of cross-examination is to undermine the credibility or reliability of the witness. This is done by asking questions which are carefully designed to do that as far as possible.


You may remember that in the introduction to the first part of the question formation series, we gave a quote from the author Rowena Cherry: “Never ask a question if you don’t know the answer.” This is a vital rule for any lawyer, but particularly for lawyers during cross-examination. Undermining the credibility or reliability of a witness takes skilful questioning.

When cross-examining, there is no rule against asking leading questions. In fact, one advantage of asking leading questions is that a witness’s answers, and indeed the witness, can be ‘controlled’ much better using them.


However, when cross-examining, it is always a good idea never to ask ‘one question too many’. There is a story about Abraham Lincoln, when he was a defence attorney, defending a man who was alleged to have bitten someone’s nose. Lincoln questioned someone who claimed to have been a witness to this incident. The questioning went something like this:


Lincoln: So, you were birdwatching when this alleged incident happened.

Witness: Yes.

Lincoln: And your attention was focused on the trees while it happened?

Witness: Yes.

Lincoln: So, you didn’t see the incident happen?

Witness: No

At that point, Mr Lincoln should have stopped questioning. However, he didn’t.

Lincoln: So, if you didn’t see my client bite the other man’s nose, how do you know he did it?

Witness: Because I saw your client spit his nose out, Mr Lincoln.




Notes:

[1] The three-part series is here:

https://www.cambridgelegalenglish.com/post/improving-your-legal-writing-question-formation-introduction


https://www.cambridgelegalenglish.com/post/improving-your-legal-writing-question-formation-1-b1


https://www.cambridgelegalenglish.com/post/improving-your-legal-writing-question-formation-2-b1



© Cambridge Legal English Academy 2021


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