Depositions 102 - Leading the Witness
ave you ever watched those legal shows and heard the objection "leading question" or "he's leading the witness" Have you wondered just what that means, and why it might be improper?
You're not alone. As I recently learned in an administrative hearing, many lawyers don't understand leading questions, how to use them, and when to use them.
A "leading question" is a question that suggests the answer. "You're a nurse?" Here the witness needs only say yes. Because the question suggests its answer, it is considered a leading question. Using leading questions, a lawyer can essentially testify for a witness and thereby avoid the problems that come with more open-ended questions.
Because there is some mischief that comes from letting lawyers do the testifying court, the rule is that during a person's direct examination they must be asked questions, and may not be examined using leading questions. A direct examination is where a witness is called by a party for the purpose of testifying for that party. When a witness has testified for a party, and another party examines them, that is considered cross examination.
A direct exam looks like this:
Can you please state your name?
John Doe
And where do you work?
Our Lady of Perpetual Billing Hospital
And what do you do there?
I'm a nurse
And on what nursing unit are you a nurse?
Medical-Surgical 4th Floor....
The witness must be asked a series of open-ended questions and asked to testify from memory about what happened. If a questioner starts to lead his witness with specific questions, in most cases the other attorney will object.
What's interesting, however, is that once the witness has finished testifying by direct examination, the cross-examiner can use leading questions, and usually does so to great effect. For example:
You testified that you never saw Mr. Jones fall?
That's right
You weren't with him all night, were you?
No, I wasn't.
And in fact, you were off the floor on your meal break when he fell?
Yeah.
So you left this vulernable patient, to go off the floor, and while you were gone off the floor, that's when he fell?
I guess
When being deposed, or questioned by an attorney before trial, it is important to remember that you have a voice and can do something other than say yes or no if a leading question is asked. Although the lawyers job is to object, your job is to answer the question by listening to the question, thinking about the answer, and then giving an answer that corrects any improprieties in the question.
Suppose that you came in and found a patient on the floor. You assessed the patient, found that the leg appeared to be displaced, and concluded that there was a likely hip fracture. You took all appropriate steps to treat the patient and provide them with pain relief. In a deposition, a lawyer might try something like this:
You're a good nurse
I think so
You've taken care of lots of patients
Sure
You take pride in your nursing
Absolutely.
So, you came into the room
Yeah
You saw the patient
Yeah
And you knew right away the hip was broken, didn't you.
Now, the temptation at this point is to say "yes," because that's what you've been doing. The whole purpose of asking about what a great nurse you are (a subject the questioner knows you'll agree with him on), is to get you thinking about answering the questions with yes. It's easy. You fall into the habit, and then, when you maybe should analyze the question more carefully, you simply say yes.
In the example above, you can't "know" that the hip is broken unless you have x-ray vision. The only way to make that evaluation is radiographically. And so, the answer to the question is really "I saw what appeared to be displacement, but I do not make diagnoses of fractures, that's a doctor's job."
Nevertheless, nine out of ten nurses will say "yes," to the question, or will say something like "that's pretty much what I was thinking."
The problem with agreeing with the questioner during an examination before trial is not that you'll agree on the easy stuff like whether you are a competent nurse, but rather, whether you'll just get so comfortable talking to the lawyer that you forget that you're the one testifying.