How to Ask a Question
It ought to be the simplest thing in the world to ask a question. Odds are, you've been speaking since you were roughly twelve months old and asking people for information for essentially the entire time. But if you've ever watched someone question a witness at trial, particularly if they are trying to do it on the fly without a control document like a deposition, it quickly becomes clear that asking questions is not simple, even for experienced lawyers. Often what comes out of an attorney’s mouth, whether at deposition or trial, only barely resembles coherent English.
So why is it so hard to ask a question? And how can you ask a better one?
The first thing to realize is that lawyer questions are not really normal questions. A normal question is a request that the listener voluntarily offer information that the questioner doesn't already know. The request can be very specific (“what's your phone number?”) or very general (“so how have you been?”) but either way the listener has great freedom with respect to whether and how to answer. They can answer specifically (“871-3121”), generally (“ok”) or not at all (“no, buzz off”). And their answer can range from a single word to a long narrative depending both on context and their own personality (“oh things have been crazy, let me tell you, just yesterday...”).
Lawyer questions are very different. In deposition you are trying to pin someone down to a story, ideally one that's good for you, but in a pinch any single story that you can dissect on summary judgment or at trial. In direct examination, you're trying to get the witness to tell a very specific story, a sentence or two at a time, without just telling the story yourself. And in cross, you're trying to either force someone to admit something that they don't want to admit to or make them look like a liar for denying it.
The common thread here is that the person answering the question is not supposed to have a lot of freedom in how to answer it. This is obvious in deposition and cross where controlling a hostile witness is part of the exercise but is equally true for different reasons in direct. A friendly witness is happy to answer your questions, but if those questions do not effectively telegraph exactly where to go, their story will be a rambling mess.
You feel this very quickly when questioning a witness under oath. If your questions are vague or open-ended the answers that you get back will be messy and not terribly useful. And your first instinct will be to add a pile of additional words to your question. This is how a human question (“what did you see?”) turns into lawyer gobbledygook (“after you arrived but before the police showed up, did you see the blue car strike the green car from behind and to the right or did it impact from the left?”).
How can you do better? The first way, which applies to all forms of lawyer questioning, is to prepare at least some of your questions in advance. If the question is a tough one, the first thing out of your mouth is probably going to be long and confusing. But if you write it down, you'll often find that you can cross off or condense a third or more of the words, turning a nightmarish monstrosity into a clear question. You can’t prepare everything, but you should prepare what you can.
The second trick is to remember that you can ask as many questions as you like. If your question runs more than ten words, you probably should split it into two or more smaller questions. If there were three people in a melee, don't ask what everyone did, unless you want a rambling narrative. Establish who was there first and then ask about each person individually. If you want a witness to admit five things in a cross, that should be at least five questions, not some paragraph long nonsense with subparts.
Third, remember that foundation is your friend. Many lawyers view the prohibition against leading questions on direct as just some annoying rule to be circumvented in the crudest way possible. But done properly, a few foundation questions can guide a witness as precisely as any leading question without drawing an objection or confusing the jury.
What's a foundation question? A foundation question is one that establishes whether a witness knows something about a topic and how precisely they know. Foundation questions aren't leading because they don't suggest an answer. “Do you know anything about X?” or “Are you familiar with Y?” aren’t leading and could just as easily be answered yes or no. Similarly, “How do you know that?” is about as open-ended as you get. But if you're struggling to get a witness to tell a chronological story and tripping over bad memory-quiz questions like “Do you remember what happened on August 3rd?” or clearly-leading nonsense like “Do you recall seeing the plaintiff driving his car into the intersection that night?” asking a few simple foundation questions can make things a lot easier on both you and the witness. For example,
Are you familiar with the car crash at issue in this case?
How are you familiar with it?
When did it happen?
Where were you?
And what did you see?
And the same techniques can apply whether the case is about broken bones or broken contracts. For example, the clearly-leading franken-question:
Did you send the e-mail because you thought the defendant was defaulting or for some other reason?
can be reconfigured as:
Who sent this e-mail?
What was going through your head at the time?
Why did you send this message?
Fourth, ask all of the improper questions you want on cross. But you should purge your vocabulary of turns of phrase that signal to the court or the witness that you're doing something tricky or improper. If you are fool enough to say: “what did he mean when he wrote that?” you deserve the sustained objection that even the dumbest trial lawyer will rouse from slumber to make. And while not improper as an evidentiary matter, beginning your question with “wouldn't you agree that…” adds literally nothing except to suggest to the witness that they should think hard to find a reason to disagree. You don't need it, nor its close cousin “isn't it true that…” The ideal cross question is a short, declarative sentence with either an implied question mark—or if you must— a “correct?” at the end.
Last, remember that you have control over your speed, volume, and the emphasis that you place on specific words. It is very natural to speed up when you get nervous or when you read from a document. But just because it's natural doesn't mean that you have to do it. The words that you say are pointless if the jury can't follow them. It is a rare lawyer, at least in the northeast, who would not benefit from a slower rate of speech. And if court reporters are complaining about your speed, then you need to make an affirmative effort to slow down. Slow and loud beats fast and soft every day of the week.
Asking good questions is a skill and not something that you can pick up on all at once. But like many skills if you understand the theory and practice the fundamentals you will become drastically better over time.
