What To Do When a Judge Won’t Allow Your Leading Questions
8.2.2021
Every trial attorney faces critical decisions as to which witness or witnesses will best tell his client’s story. Calling an adverse party or a person identified with an adverse party in one’s case can be incredibly effective because one can often, through leading questions, force the other side to tell your story. Like every critical decision at trial, however, this strategy is risky. One risk, emanating from the language of the Federal Rules of Evidence itself, is that the court may not allow you to ask leading questions.
Attorneys have been, and continue to be, surprised when courts do not allow them to ask leading questions of witnesses identified with an adverse party. Hopefully, by reading this article, you will not be among those poor unfortunate souls. Instead, you will enhance the likelihood of a successful appeal by being prepared to provide a proffer of what information you would have elicited if you had been allowed to ask leading questions
In federal court, attorneys generally can ask leading questions to adverse parties and those identified with adverse parties. Rule 611, which governs the “Mode and Order of Examining Witnesses and Presenting Evidence,” states as follows:
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.[1]
The Rule does not specify what constitutes “ordinary” circumstances such that a court will, in fact, allow one to ask leading questions. The only point that seems to be expressed with clarity in Rule 611(c), through use of the word “ordinarily” and “should,” is that the court may not always allow attorneys to ask leading questions to adverse parties or witnesses identified with adverse parties. While the Rule itself does not provide any guidance as to when a court should deny an attorney the opportunity to ask leading questions to an adverse party or a witness identified with an adverse party, the Advisory Committee Notes state that it included the word “ordinarily” to “furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact.”[2] Despite this note, courts have sometimes denied an attorney the opportunity to ask leading questions to an adverse witness when the cross-examination would be in fact. Even worse, appellate courts have refused to reverse district courts as a result of this error.
A Brief Analysis of Federal Rule of Evidence 611
On its face, Federal Rule of Evidence 611(c) generally can be relied upon for the proposition that an attorney can ask adverse witnesses leading questions. This subdivision allows a party’s attorney to ask leading questions to an adverse witness both on cross-examination, under Rule 611(c)(1), and on direct examination, under Rule 611(c)(2). As the Notes to the Advisory Committee on the Proposed Rules state, “[t]he final sentence deals with categories of witnesses automatically regarded and treated as hostile.”[3] As stated, the inclusion of the word “ordinarily” in the rule indicates that there are exceptions to when leading questions should be used against adverse parties or witnesses identified with adverse parties. Again, the Advisory Committee Notes provide the rationale for this limitation:
The purpose of the qualification “ordinarily” is to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the
“cross-examination” of a party by his own counsel after being called by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff.[4]
Thus, Rule 611(c) was intended to ensure that counsel can ask leading questions against adverse witnesses unless the cross-examination is in form only and not in fact.
The history of Rule 611 comports with the conclusion that attorneys should be allowed to ask leading questions to truly adverse witnesses. Rule 611(c) did not always exist. Before Rule 611(c) came into being, leading questions were only allowed on direct examination if counsel could demonstrate that the witness was hostile or that there was “a determination that the witness being examined was an adverse party, or an officer, director, or managing agent of such an adverse party.”[5] “The drafters of Rule 611(c), however, determined that these limitations represented ‘an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.’”[6] As a result, the Rules Committee created Rule 611(c)(2) to ensure that attorneys could ask leading questions to adverse parties and witnesses identified with adverse parties without the witness demonstrating any actual hostility.[7]
Courts’ Interpretation of Federal Rule of Evidence 611
Despite the plain language and history of Rule 611(c), courts sometimes have denied attorneys the opportunity to ask leading questions to adverse parties or witnesses identified with adverse parties. For example, in Rosa-Rivera v. Dorado Health, Inc., plaintiffs sued the doctor who delivered their child and the hospital at which he was born because, they alleged, their child suffered trauma, shoulder dystocia, and Erb’s palsy as a result of the doctor’s negligence during delivery.[8] Plaintiffs called a nurse who worked at the defendant’s hospital at trial.[9] The judge refused to allow plaintiffs’ counsel to ask leading questions because she was not hostile.[10] When counsel noted that she was identified with the adverse party, the judge stated, “I don’t agree . . . If she becomes hostile, you can lead all the way.”[11] The 1st Circuit held that “it seems likely that the judge’s ruling [that counsel could not ask leading questions] was based on an error of law and therefore an abuse of discretion.”[12] Nevertheless, the 1st Circuit did not reverse the judgment because, it held, “[p]rejudice is required for a party to prevail on a claim of improper exclusion of leading questions. For starters, this would require a proffer on Plaintiffs’ part, in other words, a showing of some specific information that counsel might have elicited if permitted the use of leading questions.”[13] The court did not reverse despite the error because plaintiffs did not provide such a proffer.
Courts have also seemingly ignored the principle provided for under Rule 611(c) by reference to the fact that Rule 611(a) says that the court should exercise reasonable care over the examination of witnesses. Rule 611(a) states “[t]he court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.” Fed. R. Evid. 611(a). Occasionally, courts have used Rule 611(a) as a basis for refusing to allow leading questions against a truly adverse witness.
For example, in Jaffe v. Bank of America, N.A., the plaintiffs intended to call a former Bank of America employee.[14] The district court did not allow them to ask leading questions to the former Bank of America employee. Id. Plaintiffs appealed. The 11th Circuit agreed with plaintiffs that the former Bank of America employee was a witness identified with adverse party, thus falling under Rule 611(c)(2), even though he no longer worked for the defendant. Id. at 588. However, the 11th Circuit held that Rule 611(c)
does not give the calling party an absolute right to ask leading questions.[15] Instead, “[t]he district court has the discretion to allow or disallow leading questions of a witness identified with an adverse party, and once the district court exercises [its] discretion in that regard, the movant must establish an abuse of discretion to obtain a reversal.”[16]
The court gave three reasons for refusing to reverse and remand the case. First, the court noted that the trial court had “explained that its decision was necessary to keep the trial moving along in an orderly fashion.”[17] This argument is not persuasive, since the trial court always needs to keep the trial moving in an orderly fashion. One would also note that leading questions generally are more time-efficient since, if done well, the witness’s answers are succinct: “Yes” or “No.”
Second, the 11th Circuit held that the district court found that the witness harbored no animosity toward the plaintiffs and testified in a “forthright and direct manner.”[18] This argument is irrelevant since Fed. R. Evid. 611(c)(2) is designed to “deal[] with categories of witnesses automatically regarded and treated as hostile.”[19] The witness is automatically deemed hostile under the rule, so no showing of animosity is required under it. There is nothing in Rule 611 that says that 611(c)(2) does not apply if the witness does not appear to be lying or sidestepping questions.
Third, the court held that it will only reverse on the basis that the court violated Rule 611(c)(2) if the plaintiffs show that they were prejudiced by this error and, in this case, the court held they failed to do so. It is this rationale against which the attorney must protect.
Other decisions comport with the general pattern exemplified by Rosa-Rivera and Jaffe: appellate courts often defer to the district court whether leading questions were appropriate and argue that reversal due to Rule 611(c)(2) is inappropriate unless the aggrieved party can demonstrate what information they would have been able to obtain but for the court’s error.[20] Therefore, the attorney should be prepared to demonstrate what information they would have obtained but for the court’s denying them the opportunity to ask leading questions.
Conclusion
Attorneys should prepare before the trial for the possibility that the court denies them the opportunity to ask leading questions to opposing parties or witnesses identified with opposing parties. If you plan on calling an adverse party or witness identified with an adverse party, you should write down exactly what information you expect to elicit from that witness before the trial and, as you are doing your examination, cross out the information that you have elicited. Then, at the end of your examination, you can make an offer of proof of any information that you were unable to elicit because the court denied you the opportunity to ask leading questions. The information that you did not elicit must be material to a claim or defense in order to demonstrate prejudice. This procedure will put you in the best position to convince an appellate court to reverse and remand the case since you can not only identify the rule that was violated but how that violation prejudiced your client.
In addition, the Rules Committee should consider changing the language in Rule 611(c)(2) to incorporate the Advisory Committee notes regarding that Rule. Thus, the Rule would say:
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. However, unless the Court determines that the cross-examination is cross-examination in form only and not in fact, the Court shall allow leading questions . . . (2) when a party calls . . . an adverse party, or a witness identified with an adverse party.
This change would ensure that the concerns in Advisory Committee Notes for Rule 611 are maintained, clarify that the court should not require a party to demonstrate actual prejudice under Rule 611(c) or use Rule 611(a) to trump the rights created by Rule 611(c), and help ensure that the court allow leading questions when a party calls a truly adverse witness.
Glenn Greenberg is an associate at Mendes & Mount, LLP. He earned his J.D. from the University of Minnesota Law School and his B.A. from Carleton College. The opinions expressed in this article are the author’s alone.
[1]. Fed. R. Evid. 611(c) (emphasis added).
[2]. Fed. R. Evid. 611 Advisory Committee’s Notes.
[3]. Fed. R. Evid. 611 Advisory Committee’s Notes (emphasis added).
[4]. Id.
[5]. Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir. 1981).
[6]. Id., citing Fed. R. Evid. 611(c) Advisory Committee’s Notes.
[7]. Ellis, 667 F.2d at 612–13.
[8]. 787 F. 3d 614, 616 (1st Cir. 2015).
[9]. Id. at 616–17.
[10]. Id. at 617.
[11]. Id.
[12]. Id.
[13]. Id. (citations omitted).
[14] 395 Fed. Appx. 583, 587–88 (11th Cir. 2010).
[15]. See Fed. R. Evid. 611(a) & (c).
[16]. Jaffe, 395 Fed. Appx. at 588.
[17]. Id.
[18]. Id.
[19]. Fed. R. Evid. 611 Advisory Committee’s Notes.
[20]. See, e.g., Ellis, 667 F.2d at 613; Haney v. Mizell Memorial Hosp., 744 F.2d 1467, 1477–78 (11th Cir. 1984); Perkins v. Volkswagen of America, Inc., 596 F.2d 681, 682-83 (5th Cir. 1979); cf. Scenic Holding, LLC v. New Board of Trustees of Tabernacle Missionary Baptist Church, Inc., 506 F.3d 656, 664 (8th Cir. 2007).
