At the Maryland State Bar Association convention this past June, I taught a class on cross examination along with Nina Basu, Al Llosa and Judge John Maloney of the Circuit Court for Montgomery County, Maryland. The issue of direct and cross-examination e.g. non-leading v. leading questions came up. I stated, the only true non-leading question is: “tell me something about something” which got its intended laughs but it is actually true.
Direct examination also is an art form – and using something called “looping” is a great way to end run this rule and impact what and how many times a jury hears an important fact. is very important. Looping basically means you can use a portion of the prior non-leading question in your next question:
Q. What was the weather like that day
A. It was raining heavily.
So your next question could use that as a foundational building block of your next question
Q. So it was raining heavily, how about the wind?
You have now “lead” in your direct and repeated a fact that should be repeated only if it is important to your case. It also helps in my mind to provide context and a better story telling aspect to what can otherwise me mundane directs. Each new question “loops” the last important piece so that the jury hears it twice—once from the witness and once from the lawyer—without it sounding like leading. I think young lawyers get trapped in the weeds and failed to understand the reasons and purpose of the rules. If they do, they will then understand what they can and cannot do in court.
It is difficult to win at if you do not fully understand the rules of the game.