How to Handle Objections to Leading Questions
If you are an attorney or a party in a lawsuit representing yourself at trial ("pro se" or "pro per") — you'll need to learn how to avoid or minimize leading questions on direct examination — if you want to get the testimony you need to prove your claims or defenses.
Even more importantly, you'll need to learn what to do when the opposing attorney objects to your questions, claiming that you are leading the witness.
Though leading a witness is both permitted and useful in cross-examination, it is generally not allowed on direct examination — and an objection by your opponent is likely to be sustained by the judge.
It is essential to be prepared to overcome objections to leading questions on direct examination. But before you can do that, you have to be able to identify what a leading question is. A legal definition is a great place to start.
Definition of a Leading Question with Examples
Black's Law Dictionary defines a leading question as "a question put or framed in such a form as to suggest the answer sought to be obtained by the person interrogating."
In other words, the examiner has embedded the answer that he is seeking inside the question.
Here are some examples of leading questions:
Example #1
Examiner: “You were at Seagull’s Pub the night of October 31st, right?”
Example #2
Examiner: "Didn't you only drink water all night while the plaintiff had four pints of beer?"
Example #3
Examiner: "You told the bartender that you would follow Jim home, didn't you?"
Do you see the answers embedded in these questions?
According to the examiner, the witness:
- Was at Seagull’s Pub on October 31st;
- Only drank water (but the plaintiff had four beers); and
- Told the bartender that he'd follow Jim home.
Isn't that so?
Objection. Leading the witness.
In all three examples, the opposing attorney should (and probably would) state an objection.
You might be wondering: what is wrong with leading a witness?
Leading questions can be problematic because they allow the examiner to unduly influence or control the witness’ testimony. Non-leading questions provide a more “natural” flow of testimony based on the witness’ personal knowledge and recollection of the events.
Rules of evidence are designed to promote reliability and fairness at trial. When attorneys (or self-represented parties) are allowed to use leading questions to "tell the story" by simply asking the witness confirm or deny statements of fact, the potential for unreliable testimony increases.
If the opposing attorney objects to your question — claiming that you are leading the witness — there is usually a simple fix.
We will show you how to overcome these leading questions with examples.
A Simple Way to Overcome the Objection
One of the easiest ways to overcome the objection is to rephrase the question to get the testimony you need without putting words in the witness's mouth.
Example #1
Original: “You were at Seagull’s Pub the night of October 31st, right?”
Rephrased: "Where were you on the night of October 31st?"
Example #2
Original: "Didn't you only drink water all night while the plaintiff had four pints of beer?"
Rephrased: "What did you drink during your time at the Pub?"
Follow up: "What did the plaintiff drink?"
Example #3
Examiner: "You told the bartender that you would follow Jim home, didn't you?"
Opposing attorney: "Did you say anything to the bartender before you left that night?"
Follow up: "What did you say to the bartender?"
Can you see the difference?
The leading question assumes an answer that the examiner is hoping to confirm. Whereas, the non-leading form allows the witness to offer a range of responses from their own recollection of the events — and is therefore non-leading.
What should you do if your opponent objects to a leading question?
Tips to Rephrase a Leading Question
First and foremost, do not panic!
If the judge sustains an objection to a leading question, focus on rephrasing the question so that it no longer suggests an answer.
In other words, try for a more "open-ended" question.
Often (but not always), it helps to think like a journalist and rephrase the question to begin with one of these “w’ or “h” words:
- What
- When
- Who
- Which
- Why
- Where
- How
Look again at the above examples of leading questions — and their alternatives — to see how we rephrased the questions using these words so they would no longer lead the witness.
To learn more about trial techniques, procedures, and how to be an effective courtroom advocate, take a look at Trial Essentials, where you'll learn all about representing yourself (or your client) at trial — from jury selection through verdict.
Or, if you just want to learn more about objections at trial, take a look at Trial Objections 101: Making and Responding to Objections:
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