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.