travis eiva otla guardian - eivalaw.com
TRANSCRIPT
Travis Eiva
By Travis Eiva OTLA Guardian
The best evidence in a case against the
defendant often comes from the
mouths of irs employees, officers and
ORCP 39 C(G) witnesses. Those wit
nesses ofrcn are in the best position to
observe firsthand the acts of rhe defen
dant's wrongdoing, particularly in a case
involving a corporate defendant. Know
ing this, we spend countless hours pre
paring for the depositions of these wit
nesses so that we can obtain critical ad
miSSIOns.
Once those admissions are obtained,
you may be able to play the deposition
excerpts at trial, but sometimes rhe live
witness is preferable or even necessary. ln
those circumstances, you could wait for
rhe defense to call the wimess in its case
in-chief and rhen cross-exam the witness
into each admission already obtained
through deposition. Bur that is a luxury
you may nor have because there is no
guarantee that the defendant will even
call rhe witness in its case. If you need
rhe admissions from the witness, your
best choice may be to call the adverse
witness in your case-in-chief.
When you call an employee, officer,
or ORCP 39 C (G) witness of a defendant
in your case-in-chief, many skilled de
fense anorneys will uy to convince the
trial judge to disrupt your examination
by objecting to any leading questions,
arguing that such questions are only
available if rhe witness is openly hostile
ro you. That objection is based on obso
lete case law that has been overruled by
statute. It is your job to provide the trial
judge the appropriate authority to navi
gate the objection and allow you to lead
the witness as a maner of righr.
The problem
Leading questions suggest the answer
to the witness that the examiner wants
to hear. When asked of a friendly or
purely uninterested witness, often the
witness will just affirm the suggested
answer out of a desire to "say the right
thing" or to please the authoritative fig
ure asking the question. In those circum
stances, the examination more reflects an
exercise in blatant witness coaching
rather than impartial inquiry. Ultimate
ly, such questioning may place in doubt
the credibility of any affirmative re
sponses, because the testimony is little
more than the lawyer speaking through
the witness's mouth.
The same is not uue, however, when
an attorney uses leading questions with
a witness aligned with the opposmg
parry. There, rhe leading question format
does nor diminish the credibility of an
affirmative response, because such a wit
ness is presumed to be on guard against
adopting the obvious admissions sug
gested by the question. So the opposite
is rrue. An affirmative response to a
leading question by a witness aligned
with the other parry disti nctly carries
greater credibility, because such a wimess
would only adopt the suggested answer
if he or she had no other choice. Indeed,
often all of our cross-examination is
based on leading questions without any
concern that the question format will
diminish the credibility of affirmative
responses.
Even though the use ofleading ques
tions for witnesses aligned with the op
posing party do not create significant
credibility concerns, many defense law
yers will tell the judge rhar plaintiffs
cannot use such questions in their case
in-chief unless the witness displays a
palpable feeling of hostility toward the
examiner. That position is incorrect and
has been expressly disavowed by the
Oregon Legislature and courts across the
country.
The old rule
The objection against leading ques
tions on direct exam is based on Sinclair v. Barker; 236 Or 599 (1964). In that
case, the plaintiff was injured when he
was a passenger in the defendants car.
The plaintiff called rhe defendant to
testify in his case-in-chief and the trial
courr allowed rhe plaintiff to exan1ine the
defendant with leading questions. The
Oregon Supreme Court explained that
such questioning was not permissible:
The trial courr took rhe position
that when an adverse parry is called
as a witness he may be examined by
leading questions as in cross-exam
ination . The privilege is not quire
that broad. Leading questions may
he allowed upon rhe direct exami
nation of an adverse party if he
appears ro be hostile to the exam
iner. Usually he is; sometimes he is
not ... Whether such witness is
host ile and the extent to which
leading questions may be put ro
him are within the sound discretion
of the trial court.
!d. at 607-08. Under the Sinclair rule, it
did not matter how adverse the interests
of the witness may have been with the
examining party. Unless the trial court
could glean that rhe witness's demeanor
"appear[ ed] hostile ro the examiner,"
leading questions were impermissible on
direct exam.
The rule reflected an archaic and
formalistic view of trial practice and did
nor serve any important poli cy purpose.
As explained ahove, the witness's affirma
tive answers to the leading questions
would nor suffer from the same doubtful
cred ibili ty as if rhe questions were asked
of a friendly witness.
Moreover, the "hostile appearance"
rest was inherently problematic, because
it was based on each trial judge's subjec
tive gauge of what constitutes a hostile
appearance. The rest made trial prepara
tion unpredictable, at best. l n any given
case, would rhe tes r rurn on witness
politeness, body language, voice modula
tion or something else? Would the rrial
judge recognize rhar the wirness appears
host ile one question into the testimony?
Ten questions? Fifry questions? Five
hundred questions? 1 ever?
Defense counsel also \Yas free to create
additional barriers ro a "hostile appear
mce" finding. Counsel could coach rhe
,-i messes pretrial on demeanor and ex-
plain rhe need to always respond wirh a
polite and soft voice and make ir harder
for rhe judge to identify the requisite
hostility.
The rule also interfered wirh rhe truth
seeking fu nction of trial. Witnesses
aligned with the defendant often are the
very witnesses with first hand observa
tions of rhe defendant's wrongful con
duct. Leading questions are rhe most
efficient way to ger to rhe truth of rhose
observations. On the other side of rhe
coin, and as we all know, a witness
aligned with rhe opposing party will
often respond ro open-ended, non
leading questions with hyper technicali
ties, vague responses, excessive qualifica
tions and other techniques in order to
avoid providing a clean admission of fault
or wrongdoing. If the trial court refused
leading questions, a simple admission
that was once read ily available could get
lost in a meandering interrogation that
unduly attaches so much complexity to
the admission that its value hecomes
unfairly diminished in the eyes of the
jury. The rrurh seeking function of trial
is far better served if the jury can receive
such admissions efficiently and concisely
without the fog of an elusive witness,
leaving the witness's inserted complexi
ties robe explored on cross-examination.
The current rule
Due to the unnecessary limitations of
rhe "hostile appearance" rule, in 1981
the Oregon Legislaru re promulgated
OEC 611 (C) to allow leading questions
CHUCK CORRIGAN
Mediation, Arbitration
Exclusively Alternative Dispute Resolution
503.241.0677 1000 SW Broadway, Portland
www.corrigan-law.com
during direct exam in the above circum
stances. The new rule provided:
When a party calls a hostile witness,
an adverse party, or a wimess iden
tified with an adverse party, inter
rogation may be by leading ques
nons.
The text plainly allows leading ques
tions on direct examination, norwich
standing witness hostility, as long as the
wirness is an "adverse parry" or is " iden
tified wirh" that party. With that change,
the legislature intended to overrule Sin
clair.
In Sinclair ... , the court said: "The
trial court rook rhe position that
when an adverse parry is called as a
witness lrhe party] may be exam
ined by leading questions as in
cross-examination. The privilege is
nor quite rhar broad. Leading ques
tions may be allowed upon the di
rect examinat ion of an adve rse
parry if [the parry] appears ro be
hostile to the examiner." ... The rule
in Oregon rhus appears to have been
rhar a witness must be both adverse
and hostile hefore leading questions
may be used on direct examination.
Subsection (3) of Rule 611 permits
leading quest;uns to any adverse
party or whness identified with an
adverse prtrf)$ regardless ofhostilil)( To this extent, it overrules Sinclair v.
Barker and changes Oregotl law.
Legislative Commentary to OEC 6 11
(emphasis added).
SeC' Leading rhe \~y p 32
Leading the \~y Cominuedftom p 31
In the end, the text of the rule broad
ly allows fo r direct examination of a
witness "identified with an adverse par
ty," which will necessarily include many
folks affiliated with a defendant. Profes
sor Kirkpatrick explains:
Ordinarily, an employee, officer,
direcror, or managing agent of a
parry, or a relative, partner, or close
associate, should be considered a
witness identified with the adverse
parry and rhus subject ro leading
q uestwns.
Laird C. Kirkpatrick, "Oregon Evidence"
§ 611.05, 572 (6th ed 20 13).
It also should be mentioned that when
adopting the changes ro OEC 611 , rhe
Oregon Legislature was following rhe
lead of the more liberal standard for lead
ing questions found in Federal Rule of
Evidence 611 (C) . See Legislative Com
mentary ro OEC 611 (so explaining).
Accordingly, federal cases can be instruc-
II Tritll Utu.')U • F.d/201-1
rive on the application of the rule.
For example, federal cases recognize
that a plaintiff, as a matter of right, may
use leading questions in the di rect exam
of an employee of the defendant. In
Perleins v. Volkswagen of Am., inc., 596 F2d 68 1 (5th Cir 1979), the federal ap
pellate court explained that a defendant's
em ployee was a wi tness "identi fi ed with
an adverse parry" ro the plaintiff by rea
son of em ployment alone, and a trial
court committed error when it prevented
the plaintiff from using leading questions
with rhar witness on direct examination.
!d. Also, a former employee is a witness
identified wirh an adverse parry if rhe
defendant employed the witness at rhe
rime of the alleged negligence. In Haney
v. MizeLL Mern'L Hosp. , 744 F2d 1467,
1477-78 ( l ith C ir 1984), the federa l
appellate court found that the trial court
erred in a medical malpractice case when
it refused to allow the plaintiff's counsel
to use leading questions for a nurse rhar
was employed by rhe defendant hospital
at the time of the malpractice. The court
explained rhar "an employee of one of
the defendants present when the alleged
malpractice may have occurred ... cer
tainly was identified wi th a party adverse
ro [the plaintiff]" !d. at 1478. See also
e.g. Chonich v. Wttyne County Commu
nity College, 874 F2d 359 (6th Cir 1989)
(witness "identified with" the defendant
for purposes of permitting leading ques
tions on direcr examination due to previ
ous employmenr and an ongoing rela
tionship with the defendant's corporate
representative at erial) .
Federal courts have also found the rule
to go beyond employment relationships
and to also include personal relation
ships. For example, in United States v.
Hicks, 748 F2d 854, 859 (4th Cir 1984)
the Court held that the prosecutor could
use leading questions on direct examina
tion of the girlfriend of the defendant.
This is in line with Professor Ki rkpat
rick's recognition that the rule covers
"close associates" and "relatives."
Find out in limine
Whether you are entitled to ask lead
ing quest ions on direcr exam in ation
often w ill be a fairly simple pre-trial
analysis on your part. ).!onetheless, it is
best to request a ruling from rhe trial
court in Limine. You do not want to find
our that your examination ourline is
useless just as yo u starr direct examina
tion. Likewise, if you can't use leading
questions, you may want to nor call the
witness at all. It is best to know how the
court will rule before the witness rakes
the stand.
In some cases, showing the erial court
that the witness is an adverse parry, iden
tified with the adverse parry, or hostile to
the plaintiff is obvious and rhe ruling
should be simple to obtain once the court
is provided the appropriate authority.
Other rimes, it may nor be so obvious
and you may need to put on an eviden
tiary showing. In those cases, you may
rely on the deposition transcripts of the
wimess . See McCaffrey v. City of New
York, 2013 WL 494025 (SONY 2013)
(relying on a deposition transcript to find
that the witness was adverse).
Conclusion
W hether the plaintiff has a right to
ask leading questions during the direct
examination of an adverse witness is one
of the many little issues that make up our
abi li ty to pur on a persuasive case. De
fense attorneys often will object to the
use of such questions. I hope this article
can provide you a basis for overcoming
those objections.
Travis Eiva is a member of the OTI~A
Guardians at the Guardians Club level and
serves on the OTLA Amicus Committee.
He represents people injured or killed by defective products, industrial injuries,
medical negligence, vehicle collisions and
other accidents. He is an attorney with the
Corson & johnson Law Firm PC, 101 E
Broadway Ste 303, Eugene OR 97401 . He
can be reached at 541-484-2525 or teiva@
corsonjohnsonlaw. com.