How to Ask Leading Questions in Small Claims Court - dummies

How to Ask Leading Questions in Small Claims Court

By Judge Philip Straniere

A leading question is a question in a small claims trial that contains the answer in it so that the witness only has to answer “yes” or “no.” For example, in a landlord-tenant case asking the tenant, “the rent was $500 a month and you stopped paying it in June because the roof was leaking?” A proper question makes the witness provide the information.

Generally, you can’t ask leading questions when you’re presenting your direct case. During direct examination, the testimony is supposed to come from the witness testifying and not the person asking the questions.

However, courts permit leading questions to be used during direct examination in certain situations:

  • When the information isn’t in dispute and using leading questions will save time.

  • To help jog the memory of the witness without putting words in his mouth.

  • If the witness is a child or someone with a disability who may have trouble expressing himself.

  • If the witness is hostile, meaning the witness is reluctant to testify. (Fortunately, this isn’t the hostile that means “I’m going to punch your lights out next time I see you.”)

Also, because this is small claims court, the strict rules of evidence aren’t necessarily applied, and the court may permit more leading questions than it would in a civil trial. This is done to expedite matters, and because there is no jury, the judge can better control the pace of the trial and the information he wants to get from the witnesses.

But the general rule is that leading questions can’t be used on a direct case to prove your case or the defendant’s defense.

An example of a leading question that is permitted on direct examination would be something like this where all of the information in the question isn’t in dispute:

Question: “Are you the owner of a 2010 Toyota Camry, New York license plate number 123-ABC and were you driving that car on May 1, 2012, at 8:00 a.m. easterly on Main Street, in Springfield, when you were involved in an accident with the defendant who was driving a 1999 Chevy Malibu bearing New York license plate number 789-XYZ westerly on Main Street?

Answer: “Yes.”

If the court didn’t permit leading questions, the testimony would have to be given as follows:

Q: Do you own a car?

A: Yes.

Q: What kind of car?

A: A 2010 Toyota Camry.

Q: Is that vehicle registered?

A: Yes.

Q: In what state is it registered?

A: New York.

Q: Do know the license plate number?

A: Yes.

Q: And what is that plate number?

A: 123-ABC.

Q: Were you driving that car on May 1, 2012?

A: Yes.

Q: Where were you driving?

A: I was on Main Street in Springfield.

Q: In what direction were you going?

A: I was heading easterly on Main Street.

Q: Did anything happen on Main Street while you were driving your car?

A: I was involved in an accident.

Q: At what time was the accident?

A: 8:00 a.m.

Get the idea? There are probably another half dozen questions to ask before all of the information in the leading question has been elicited from the witness. Pretty boring, right? This is why the court often allows leading questions to establish information not in dispute.

Because your case is in small claims court, you probably won’t have to figure out how not to ask a leading question, because you can almost always ask leading questions in small claims court.

However, if the judge doesn’t allow you to ask a leading question and you don’t know how to ask a non-leading question, then you have a problem. You have to be prepared to ask the questions so that the information you need comes from the witness. Which is why you should write down the questions you want to ask and the order in which you want to ask them.

If your opponent has a lawyer, there’s a good chance the lawyer will object to your questions as being leading. In all likelihood, the judge will overrule the objection and let you ask the question because he wants the case to be over in his lifetime. The lawyer knows this, but will make the objection in an attempt to throw you off your game.

If you call the defendant as your witness, the court presumes that the defendant is not going to volunteer information that can hurt him, and he is considered a hostile witness, so you’re permitted to ask leading questions.