Leading the Way

by Aaron Bundy on Nov. 19, 2016

Accident & Injury Personal Injury Criminal Divorce & Family Law 

Summary: The law and procedural rules allow us to make a strategic decision to call hostile witnesses in our case at trial. With preparation, this strategy can be of great benefit.

Leading the Way

By Aaron D. Bundy and M. Shane Henry

By calling a witness who is hostile, an adverse party or identified with an adverse party, we can tell our client’s story on direct using leading questions. Our job as trial lawyers is to present information to judges and juries that helps them reach a decision. The attention span of our decision-maker is something we must consider in every trial. Judges and juries reasonably expect an efficient presentation of important information to help them reach their conclusion. In today’s society, 30-minute TV shows and 30-second commercials have conditioned our attention spans. Most shows provide seven minutes of content before breaking for a commercial. Seven minutes is generally the maximum time we can plan to hold the attention of the judge or jury on a single topic. Perceived importance of each topic is associated with when the topic is brought up and how much time is devoted to discussion of the topic. With advance preparation, leading questions are a powerful tool for us to efficiently deliver key facts and keep the decision-maker’s attention.

In trial, we ask questions very differently to friendly witnesses than to hostile witnesses, because we have different goals for those witnesses. We ask open-ended questions to friendly witnesses, and we ask leading questions to witnesses against us. 12 O.S. §2611(D) tells us: 

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’s testimony. Leading questions should ordinarily be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, leading questions may be used on direct examination.

This rule helps our witnesses tell their story in response to open-ended questions, and the rule recognizes what we all know, “Cross-examination is the greatest legal engine ever invented for the discovery of truth.”1 The goal with friendly witnesses is for the story to be told, facts to be communicated and a connection to be made between the witness and the factfinder. Open-ended questions are the best method to accomplish these goals. Conversely, with adverse and hostile witnesses, our goals are to establish facts that help our case or hurt theirs, impeach the witness or show bias. These goals are best accomplished through the use of leading questions.

By permitting us to lead hostile witnesses on direct, 12 O.S. §2611(D) gives us a powerful tool for dealing with witnesses who may not want to fully cooperate in telling our client’s story even though the facts of our client’s story are true. The Oklahoma Supreme Court en-dorsed this approach in strong terms in the case of Three M Investments, Inc., v. Ahrend Co.2 Three M was the plaintiff in the lawsuit.3 Three M’s lawyer recognized and took advantage of the benefit of 12 O.S. §2611(D), calling defendant Ahrend on direct in Three M’s case-in-chief.4 Because Ahrend was the defendant, the trial court allowed Three M’s lawyer to use leading questions.5 This made Ahrend’s lawyer very upset because he did not understand the rule or its purpose.6 Once Three M’s lawyers were finished, Ahrend’s lawyer was even more upset when he was not allowed to lead Ahrend’s client on cross-examination.7 Ahrend appealed the issue.

The Oklahoma Supreme Court firmly upheld the trial court and gave a detailed analysis of the purpose and policy behind 12 O.S. §2611(D). Concerning calling the opposing party in direct and leading them, the Oklahoma Supreme Court said we are entitled to do it:

The intent of the statute is that litigants are entitled to call the opposing party as a witness in the former’s case in chief. Inherently, that witness will be adverse to the case the litigant is trying to prove. Thus, the litigant is entitled to use leading questions to elicit the testimony from the witness.8 

The Oklahoma Supreme Court went on to say that when we take the initiative and call the opposing party and use leading questions, the opposing party’s lawyer may not use leading questions of their client.9 “[T]he statute’s intent is not to allow counsel for one litigant to use leading questions to steer that litigant in the direction counsel wants them to go. The Evidence Subcommittee’s Notes clearly indicate that §2611 was not intended to allow such a result.”10  

The rule helps everyone. When we are able to use leading questions, we can deliver facts efficiently rather than in a narrative, open-ended manner. The judge and jury benefit because efficiency means we are not wasting their time. We benefit because we can deliver facts quickly for our decision-makers’ short attentions spans, and our story is told through adverse witnesses with a higher degree of credibility — they wouldn’t admit the fact unless it were true. Finally, we benefit when the opposing party’s lawyer must present their facts in a narrative way, using open-ended questions, rather than the unfair use of leading questions for their client. 

Deciding whether or not to call the opposing party in our case-in-chief is one of many options we may consider before trial. A justifiable fear about doing so is that the opposing party may be able to tell its version of the facts and take over the case. We may use leading questions to minimize that risk and empower us to establish important, favorable facts through adverse witnesses on direct examination.

1. John H. Wigmore quoted in Lilly v. Virginia, 527 U.S. 116 (1999).
2. Three M Investments, Inc., v. Ahrend Co., 827 P.2d 1324, 1992 OK 33.
3. Id. at ¶4.
4. Id. at ¶17.
5. Id.
6. Id. at ¶23.
7. Id. at ¶¶17-18.
8. Ahrend at ¶21.
9. Id. at ¶22.
10. Id.

Aaron D. Bundy is a partner at the firm of Fry & Elder. His practice is focused on contested cases of all kinds both jury and bench. He has completed numerous trial skills institutes including training from Roger Dodd and Trial Lawyers College. He writes and speaks extensively on trial advocacy on a statewide and national basis.

M. Shane Henry is a partner at the firm of Fry & Elder. He is one of the founders and teachers at the OBA Family Law Section Trial Advocacy Institute. He has chaired local and state bar sections focused on litigation, family law and trial advocacy. He tries family, criminal and other types of cases. He teaches and speaks often on the topic of “Trial Techniques.” He received the 2016 Attorney of the Year Award from the OBA Family Law Section.

Originally published in the Oklahoma Bar Journal -- OBJ 87 p. 2325 (Nov. 10, 2016)

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