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Is It Ok to Ask My Client Open-Ended Questions When I Question Her at Trial?

It most certainly is.

The alternative is to ask leading questions.

That's where I make a statement and simply want the witness to either agree or disagree.

With a leading question, I control what the witness is discussing.

I control the topic.

I control where the next topic goes.

But for my own client, that's not how I want it to go.

Instead, I want my client to talk.

I want her to explain.

I want the jury to hear, in her own words, what happened.

I want the jury to get to know her.

I want the jury to begin to understand her.

The only way that will happen is if I ask open-ended questions.

"Mrs. Jones, tell us what happened that day..."

"Tell us more..."

"Explain what happened next..."

"How did that happen?"

"Why did you do that?"

Those open-ended questions allow my client the ability to explain.

They allow my client to tell the jury what happened and why.

Plus, if I were to ask my client leading questions, the defense attorney would object and argue that I was putting words in my clients' mouth.

You see, when an attorney gets up to cross-examine a witness, let's say it's an opposing medical expert, I don't ever want to give the expert a chance to explain anything.

The moment I open the door and ask him an open-ended question such as Who, What, Where, When, How or Why, the expert will take over my questioning, turn to the jury and explain at length why our claim does not have merit.

On the other hand, if I ask short, tight, leading questions, the expert can only answer yes, no, I don't know or I can't answer the question.

That's it.

That's what I want when I cross examine a doctor at trial.

Let me show you...

"Doctor, my client came to see you on January 1, correct?"
"Yes."

"At that time she complained of a breast lump in her right breast, correct?"
"Yes."

"It's important to perform a physical examination of her breast when she complains of a breast lump, correct?"
"Yes."

"In fact, good medical practice requires that you perform a physical examination of both her breasts, right?"
"Yes."

"Good medical practice requires that you perform a breast exam while she is sitting up and also while lying down, right?"
"Yes."

"Failure to perform a breast examination while sitting up, in this instance, would be a violation from the basic standards of medical care, correct?"
"Yes."

Notice the difference here?

I am making a statement.

I am asking the doctor if he agrees or disagrees.

That's it.

I determine what I want to focus on, not the witness.

Let's now look at some open-ended questions of this same injured patient...

"Mrs. Jones, tell us why you went to see Dr. Careless..."

"When you saw Dr. Careless in his office, explain what he did and what he said..."

"Describe the physical examination he did on that first visit..."

"Tell us why you were worried about that new breast lump..."

These questions allow Mrs. Jones to explain, in her own words, detailed reasons and explanations.

The jury needs to hear this.

They need to understand the context.

They want to hear the story.

They want to learn where's the legal issue.

What's the dispute?

When it comes to asking my own client questions, I always want to ask open-ended questions.

When it comes to conducting cross examination, I always want to ask tight leading questions that never call for explanations.

To learn more about direct examination and open-ended questions at trial, I inivte you to watch the quick video below...


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer