When conducting direct examination, you generally can’t ask leading questions, i.e., ones that suggest a particular answer. Evid C §§764, 767(a)(2). And, of course, you can’t ask objectionable questions. For inexperienced practitioners, it can be hard to craft acceptable and effective questions while in the stressful moment. Practicing your questions in advance will be a great help, as will reviewing both positive and negative examples.
Here’s a fact situation: The witness is testifying that the light was green for your client at the time of the accident. To get a feel for good or poor questions you might ask on direct examination in this scenario, review these examples—and then stay on the good side!
|Poor Questions||Good Questions|
|Q: You were watching my client’s car as it entered the intersection, correct?
[Leading; jury will think you are testifying instead of witness]
Q: Isn’t it true that the traffic light was red when the car entered the intersection?
Q: Do you know if the car had entered the intersection at the time the light turned red?
[Compound; if witness says yes, jurors do not know if witness means yes the car entered the intersection, yes, the light was red, or both]
Q: Do you think he had enough time to stop his car before it entered the intersection?
[Calls for conclusion and speculation]
Q: Don’t you think the car was speeding when it entered the intersection?
[Calls for conclusion and speculation]
Q: Could the light have been red when the Toyota entered the intersection?
[Calls for speculation]
Q: Would I be correct in saying that the Toyota went through a red light?
Q: The aforesaid vehicle was proceeding from which direction?
[Contains legalese and is not worded simply]
Q: What do you think happened?
[Vague, ambiguous, calls for opinion without proper foundation, calls for a narrative answer, and may call for an answer not based on personal observation]
|Q: Did you observe an automobile collision on August 1, 2015, at about 7:15 p.m.?
Q: Where were you at the time of the collision?
Q: Please take this green pen and mark on the diagram a “W-1” to show where you were standing at that time?
Q: Why were you there?
Q: Was anyone with you?
Q: Do you wear glasses?
Q: Were you wearing them at that time?
Q: Are you color-blind?
Q: Did you see the green 2010 Toyota Corolla that was involved in that collision before it occurred?
Q: What street was it on?
Q: Which direction was it going?
Q: How did you happen to notice the Toyota?
Q: What color was the traffic light as the Toyota was approaching?
Q: Did you see the Toyota enter the intersection?
Q: Will you please mark on this diagram a “W-2” at the point where you saw the Toyota enter the intersection?
Q: Did you see the color of the traffic light facing the Toyota when it entered the intersection?
Q: Why did you notice the color of the traffic light?
Q: What color was the traffic light facing the Toyota when it entered the intersection?
Q: Would you take this green pen and mark on the diagram the words “green signal” at the place the signal was located?
Q: Your Honor, may the record reflect that the witness has marked Plaintiff’s Exhibit No. 1 with a “W-1” for his location at the time he observed the green 2010 Toyota Corolla enter the intersection. He has marked “W-2” for the point where the Toyota entered the intersection. May the record also reflect that the witness has indicated the location of the green light for the Toyota in green ink with the words “green light.”
When reviewing the questions in this chart it may seem very obvious which ones are good and which ones aren’t, but in the moment many attorneys veer into objectionable territory. Advance review and practice can make all the difference.
For more practical advice on how to ask questions on direct examination at trial and depositions, turn to CEB’s Effective Introduction of Evidence in California, chap 1. Also check out CEB’s Effective Direct and Cross-Examination.
Other CEBblog™ posts you may find useful:
- 12 Tips for Direct Examination in Depo or at Trial
- Direct Examination Crisis Control
- When It’s OK to Lead on Direct
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