What does a veteran trial judge have to say about . . . everything trial related? On my summer reading list was Litigation in Practice by Judge Curtis E. A. Karnow of the San Francisco Superior Court. It has some of the obvious—be nice to court staff; how to introduce documents into evidence—but also delves deeper into complex litigation, statistical evidence, expert witnesses, and the strategy of timing settlement.
The book doesn’t directly address listening at trial. But it indirectly touches on listening by criticizing lawyers who interrupt the witness or use “body language such as a raised hand.” Judge Karnow advises lawyers to ask the judge for help directing the witness to answer. He points out that “[y]our questions, too, might be part of the problem, in inviting a meandering, narrative response.” And that leads to my favorite section of the book: “Bad Questions.”
I thought the section on bad questions would be good for this blog because I know I’ve heard many of these questions used repeatedly in depositions and at trial. In fact, one of the questions on Judge Karnow’s list was described to me by a senior trial lawyer as his favorite question.
So I’m interested in blog readers’ reactions to whether they agree these are bad questions. or perhaps just in California where Judge Karnow sits. What are other bad questions you’ve heard lawyers try?
“Is it possible that . . . .” Unless the matter is a logical impossibility (is it possible that 2+2=8?) or a factual impossibility (is it possible you saw a unicorn?) the answer to this question is always “yes.” Anything is possible. Accordingly the question is pointless . . .
“Didn’t you testify that . . . .” This is often a squabble about wording. I assume the jury has been paying attention, and testimony on what a witness has testified about poses the risk of a dangerous infinite regress. Find another way to impeach. . . .
“You heard witness X say . . . (or, “Assume witness X said . . . .) . . . are you calling X a liar?” This is either rhetorical flourish, argument to the jury, calls for speculation, or all of the above.
“Would you be surprised to know . . . .” or “Would it surprise you to learn that . . . .” Nobody cares if the witness is surprisable or not. The question obviously is designed to get a fact in front of the jury whose source is the lawyer, not the witness.”
“Is it fair to say that . . . .” What would it mean if the answer were yes? Or no? Fair to whom, exactly? . . .
Judge Karnow also says that “[a]ny question longer than fifteen words” is a bad question.
For cross examination, he agrees with the “common wisdom” of asking short, focused questions that avoid double negatives. His introduction to the whole section on bad questions serves as a conclusion here: “While most of these are ultimately harmless, they confuse the issues and are a waste of time.”
My question to readers is: Do you agree with Judge Karnow that these are bad questions at trial? Have you used these questions with success? Do you have ideas for better questions that do work across contexts?