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Is There a Difference Between Leading Questions and Open Ended Questions at Trial?

There sure is.

Here, let me show you the difference...

"Dr. Jones, you are an obstetrician, correct?"

That's a leading question.

Put another way, "Dr. Jones, what type of medical doctor are you?"

That's an open-ended question.

The first question only requires a yes or no answer.

The second question requires the doctor to answer, in his own words.

There are huge differences between these two types of questions.

When I cross-examine a witness at trial, I ONLY want to ask leading questions.

When I question a friendly witness, I usually will ask ONLY open-ended questions.

There are different strategies and reasons for why.

Let's say this is a medical malpractice trial here in New York.

I am now questioning your doctor whom you believe was careless and casued you harm.

He is hostile to our position.

He disagarees with us.

He does not believe he did anything wrong.

Nor does he believe anything he did caused or contributed to your injuries.

He also does not believe your injuries are significant or permanent.

Since his position is opposite ours, I am permitted to cross-examine him.

As a side note, you should know that in a malpractice case, I will typically call your doctor whom you have sued as our first witness.

When an attorney calls a witness to testify, he typically vouches for his credibility.

In years past, most judges would not allow you to cross-examine a witness whom you called to the witness stand even if he was the one you sued. 

That has fallen out of favor.

Instead, when I call an opposing witness, such as the doctor whom you sued, I will be allowed to cross examine this witness.

That means I have a set of goals I need to achieve when questioning your doctor.

The ONLY way I can accomplish that is if I control the type of questions I ask.

I need to control the topic.

I need to get the doctor to agree or disagree with my questions and statements.

The only way I can do that is with leading questions.

Questions that only call for a yes or no answer.

Questions that can only be answered yes, no, I don't know or I can't answer that question.

That's it.

I do not want the doctor explaining ANYTHING.

He has his own attorney who will ask him open-ended questions.

His own lawyer will ask him to explain endlessly.

That's not what I want or need.

Here's an example...

We're back in our medical malpractice trial.

It's a case where a surgeon failed to recognize he perforated the patient's bowel during surgery.

The patient needed emergency surgery days later and had half her colon removed because of his carelessness.

Now she has a colostomy bag she must use for 3 months.

That means the contents of her bowel are pouring out into a plastic bag from a hole in her belly.

She must change this bag 4-5 times a day.

She'll then need another surgery to reverse this three months later.

We're at trial.

I have called Dr. Clumsy Surgeon to the witness stand as my first witness.

During my questioning, I will ONLY ask him leading questions.

"Doctor, you graduated from this medical school?"

"You then went on to do a surgical residency?"

"You then went into practice with Dr. Magoo?"

"You see and treat patients at the Careless Doctors Hospital?"

Later on, I need to get the doctor to admit that he violated the basic standards of medical care.

I need him to voluntarily admit it.

In his own words.

There's a way to do it.

A way to do it ethically.

It starts by getting the doctor to admit what the standard of care is.

Then, when I get him to agree what the standard of care is, I can ask questions about this patient.

You should know that by the time we get to trial, I will have already asked your doctor these questions during his pretrial question and answer session.

Legally, that's known as a deposition.

It's done in the defense lawyer's conference room.

In his office.

There's no judge present.

There's no jury present.

There is a court reporter there to record all of my questions and all the doctor's answers.

Those answers form the basis of his sworn testimony.

That pretrial testimony carries the same exact weight as if he was testifying at trial.

Now, back to your trial...

"Doctor, would you agree that when doing the surgery you performed, it's important to explore the surrounding organs to make sure there's no surgical injury before closing the patient?"

"Would you agree that the standard of care requires you to look around the abdomen to make sure there are no adjacent injuries?"

"Woud you agree that a physician who fails to check the abdomen for any injury or perforation before the end of surgery would be a violation from the standard of care?"

"The reason you want to check the abdomen before closing the patient is to make sure there are no lacerations or perforations, correct?"

Remember, with these leading questions, I ONLY want yes or no answers.

I do not want the doctor explaining anything.

If I accidentally ask the doctor "Why?" or "Tell me more," the doctor then takes over and gives the jury a lecture on why what he did was right.

The more he explains, the more credibility he gains with the jury.

It also means I lose total control over this witness.

That's bad for my client.

Trial attorneys like to say that you must keep a medical expert on a very short leash during cross-examination.

Meaning that you never want to ask a question that gives them the chance to explain anything.

If you do, they doctor will squeeze out an answer that you will not like.

"Doctor, I want you to assume that Mrs. Alvarez complained of pain in her belly on post-op day 2"

"She called your office. She spoke to your partner, Dr. Hard of Hearing. He told her this belly pain was normal."

"Would you agree that some level of belly pain after this surgery is expected?"

"Would you agree that it would be important for you to know if one of your surgical patients was experiencing post-op belly pain?"

"I also want you to assume that on post-op day 3, Mrs. Alvarez again called your office."

"She spoke to Dr. I Cannot Hear You. She again complained of worsening abdominal pain and vomiting twice that morning."

"Would you agree that good medical practice requires you to bring the patient into your office or send them to the emergency room at that point?"

"Those symptoms may suggest something more sinister than normal, expected post-op belly pain, correct?"

"I want you to assume that Mrs. Alvarez told Dr. I Cannot Hear You that when she vomited, there was blood in her vomit and also what looked like black coffee beans."

"You're aware Mrs. Alvarez doesn't drink coffee, right?"

"You would agree that the bleeding and the observation of black coffee beans suggests some type of internal bleeding?"

"You'd agree that requires immediate evaluation?"

"You would agree that a physician who fails to recognize the signficiance of those observations in light of her recent surgery would be a departure from good medical practice, correct?"

*Comment*

Do you notice throughout this sequence of questions, I do not give the doctor any chance to explain anything?

Instead, I am telling my client's story.

I'm telling her story through my questions.

Questions supported by our experts.

Questions supported by the medical records and facts that our witnesses will be testifying about.

Let's change this up now.

Let's look at what happens when I ask open-ended questions.

You'll notice the difference immediately.

Let's say I call my medical expert to testify.

"Your honor, I call Dr. Golden Hands to the witness stand."

"Hello Doctor. Did I ask you to review the medical records in this case?"

"Tell us what other records I sent you to review."

"After reviewing the medical records and the pretrial testimony did your form any conclusions about the treatment that was given to Mrs. Alvarez?"

"What conclusion did you reach about whether Dr. Clumsy Hands treated her appropriately?"

"Tell the jury why you came to that conclusion."

"What should the good doctor have done before closing up Mrs. Alvarez' belly?"

"Had he done that, what would he have seen?"

"Had he seen the bowel perforation at that time, what should he have done to fix the problem?"

"As a result of Dr. Clumsy Hands not realizing he perforated her bowel, what problems or injuries did Mrs. Alvarez suffer because of his carelessness?"

*Comment*

Do you notice that I'm now allowing my expert to talk?

I'm giving my expert every opportunity to teach and explain.

I want my expert to explain to the jury why.

I want my expert to show the jury why Clumsy Hands was wrong.

I want them to see that Clumsy Hands should have done it differently.

I need them to see how this patient suffered endlessly all because this doctor was careless at this one point during her surgery.

You should know that when the defense lawyer gets up to question Dr. Golden Hands, he will use the same strategy I've described above.

He too will likely only ask leading questions.

He too has an agenda.

He too does not want my expert to explain anything when he's asking questions.

To learn about the best cross examination I ever did during pretrial testimony, I invite you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer