![]() ![]() New York’s CPLR modifies that rule, but only to a limited extent. The problem stems from the antiquated notion that a party calling a witness is vouching for his credibility.3 Thus, at common law, impeachment of such a witness is impermissible under the reasoning that one who vouches for the credibility of a witness cannot then challenge his testimony. Leading questions always allow you to select specific area of inquiry and demand responsive answers to each question.Īt common law, however, limitations exist with regard to impeachment of a hostile witness. Anytime a hostile witness, such as a non-sued employee of a defendant employer who is liable for the witness’ acts of negligence or anyone who demonstrates “hostility” to the party’s case, is called by the opposing party, the questioner is permitted to conduct a direct examination in the same manner as a cross-examination of that witness, using leading questions throughout the examination.Ĭlearly, leading questions allow you as the examiner to both control the witness and limit his answer. The doctrine which permits leading questions on direct examination does not restrict that right to only situations in which a named defendant is on the stand. In civil cases, however, the ability to pose pure leading questions to a witness, even on direct examination, is permissible where that witness is an opposing party, an adverse witness or in some manner hostile to your case.1 This is so for the very sensible and sufficient reason that he is adverse, and that the danger ensuing from such a mode of examination by the party calling a friendly or unbiased witness does not exist.2 ![]() While it goes without saying that one of the most powerful methods for maintaining control of a witness is to ask leading questions, many lawyers think that this technique is limited to cross-examination. If the decision is made to put the defendant on the stand first, then the “direct” examination must be handled in the proper fashion. Moreover, this decision allows you to lay the building blocks needed for the proof to follow, such as your own expert’s testimony, and permits you to set forth the predicate for that expert’s testimony in a manner which is not dependent in any way on guess work. ![]() The advantages to placing a hostile witness on the stand as the first witness in a case are as follows: First, this approach allows you to know, in no uncertain terms, exactly what position the defendants are taking on certain issues in the case. While it may seem to some that the case would be best served by calling the plaintiff himself or other favorable witnesses at the outset of the case to establish the plaintiff’s claims, calling the defendants or those with a hostile interest first is often the best way of proceeding. When a plaintiff’s attorney prepares to present a case, he must give thought not only to which witnesses to call to testify, but also the order in which those witnesses will be called. Richard Steigman, an associate at Gair, Gair, assisted in the preparation of this article. Cardozo School of Law, and is an instructor at the National Institute for Trial Advocacy. He is an adjunct professor of law, teaching trial practice at Benjamin N. Evan Torgan is a member of Torgan & Cooper. Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf.He also is an adjunct professor of law, teaching trial practice at Hofstra University School of Law, and is a team leader at the National Institute for Trial Advocacy. ![]()
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