Sunday, November 8, 2009

How to Ask A Question--Direct

What happened?

What happened, next?

Setting aside preliminary inquiries into the background of the witness--on direct examination of a witness these two questions are the two permissible questions?  Why is this so difficult?

I actually think that by time we get out of law school, lawyers are so loaded with bullshit to think about we lose fundamental skill sets like how to formulate simple questions.   The young lawyer is thinking about "outcomes," "proof of fact," the "burden of proof," objections, hearsay, and God-knows.  A few years ago a magistrate pal of mine who had retired from his administrative judge position hired me to help him prepare a case for trial--the key eyewitness to a car accident that his client was involved in, was moving out of state and my retired magistrate pal wanted to preserve this eyewitness testimony for trial via deposition.  I told my friend that I'd be happy to help but he didn't need me, he needed to ask the two questions: what happened? What happened next?  My retired magistrate pal hired me anyway, I asked the two questions:  the witness supplied the recollection of what he saw--end of story.  The insurance carrier for the defendant driver settled the case within a couple of days. What's amazing to me was that my pal, the administrative law judge who had sat through thousands of hours of legal proceedings had lost touch with "direct examination."

Last week I was traveling--doing the Bad Lawyer-thang on the road--in the courthouse near where Bogie and Bacall tied the knot, I participated in a hearing at which a veteran attorney from that area, that I've had matters with in the past was on this day questioning her client, an employee of my client's company.  In addition to be being an annoying attorney, this lawyer does not know how to ask a direct question.  So you say, Bad Lawyer what kind of questions was she asking?  Uh, if opposing counsel was not asking "direct" questions she must have been asking....that's right, opposing counsel was cross-examining her own client by asking "leading" questions.  Leading questions are those questions which suggest the answer, example:  Isn't it true, Mr. Client that you were repetitively using the vibrating machine over the course of your 8 hour day and you developed pain in your shoulder?  Answer: yes.  Isn't it true Mr. Client you never had pain in this shoulder before?  Answer: yes.

Now you might say, Bad Lawyer, maybe all those things are true and her questions just cut to the chase.  Good point, reader, this is just why my pal the administrative law judge forgot what direct examination is, he put up with this sort of questioning.  Don't you, though, that what the attorney is doing is "testifying" for her client under the guise of questioning?  You see, the lawyer knows what the client has to say in order to "obtain the result or outcome" she wants for her client, and herself.  Money.  The lawyer so mistrusts her client to say the right thing that she instinctively testifies for her client in nearly every detail.  When this technique is done poorly, especially by young attorneys, it makes both the lawyer and the client look untrustworthy.  In a veteran attorney it is annoying and sleazy.

There are exceptions to this rule especially relating to examining expert witnesses.  We will return to the subject.

1 comment:

  1. Sometimes your client is a moron and you must do it....