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May 21, 2005

Trial Question Peccadillos

I got to watch an interesting jury trial yesterday. Voir dire (jury selection) was especially fascinating and I may say more about that later. But one thing I noticed as the trial went on was that the prosecutor tended to greatly overuse the phrases “Did you have occasion to...” or “Did there come a point in time when...” For example, she'd ask a witness: “On or about May 25th, 2005, did you have occasion to look inside your closet?” Or: “Did there come a point in time when you spoke with Joe Smith?”

Why would an attorney ever want to frame questions this way? It just sounds stupid when instead you could just say “On or about May 25th did you look inside your closet?” and “Did you speak with Joe Smith around that time?”

I wonder how many cliche phrases like this lawyers end up using without thinking about it and just because they've heard other lawyers speak this way and think it makes them sound more lawyerly.

Here's a little related lesson from my private book of language peccadillos: “point in time” is almost always a useless and redundant construction. Next time you're tempted to use it (either when writing or speaking), see if dropping two of the three words would really change the meaning of what you're saying or make it less clear. Chances are, simply saying “point” or “time” alone will say everything you want to say. Thus: Did you look in your closet at that point in time? becomes, either: Did you look in your closet at that point? or Did you look in your closet at that time?

Simpler and more concise is almost always better.

(We all have our little hangups, ok?)

Posted May 21, 2005 11:28 AM | 2L summer

To be even more nitpicky, "did you have occasion to" is imprecise -- in theory, the person could answer, "Yes, I had occasion to look in my closet, but I did not look in my closet."

Posted by: CM at May 21, 2005 12:12 PM

Or even worse, they could answer the "did you have occasion to" question in the affirmative without clarifying whether or not any looking in the closet actually occurred. It's always better to ask questions which can only be answered unambiguosly, but the "did you have occassion to" seems to be greatly overused by lawyers in questioning... Is there any reason other than "trying to sound lawyerly" to ask this question in this way?

Posted by: Chris at May 21, 2005 01:45 PM

Most of it, I believe, is to lead without "leading" the witness. If most of your questions could be answered with a nod, then you're leading (and, for the most part testifying).

Even if you can get away with it (the other party isn't objecting), leading is still poor form because it takes some credibility away from your witness ("She didn't know what she was talking about, that lawyer had to tell her everything to say.")

But by asking "Did you have the occasion to look inside your closet?" You're cueing your witness "Now we're going to talk about what happened when you looked in the closet." It's not the only way to avoid lead without being objecting to, but it's one way, and since most lawyers have heard it enough, it's an easy way. And it's still no excuse for not being concise.

I personally think it would just be easiest for the D.A. and the witness if they just stood there saying "What happened next? And then what happened?" instead of "Did you have an occasion to...?" It would avoid these clunky phrases and allow the witness to more naturally tell their story, but that would require PREPARATION of your witness so that they know what things you want them to mention, and what things they can leave out.

I could be wrong, but I thought D.A.'s spoke like "at that point in time" because it makes them sound more official to the untrained juror, but I think it sounds dumb. Just like the police officers who testify "I subsequently exited the vehicle." You mean you got out of the car? Then say that!

Posted by: blondie at May 21, 2005 03:47 PM

Or it could be that things weren't headed in the right direction and s/he was trying to put the witness back on track. Things I never meant to say came out whenever I would question witnesses. You start lapsing into bad habits like ending every question with "Isn't that right?" or "Isn't that correct?" when cross-examining and "Good" or "All right" when it's your own witness. Of course, I'm just a law student (or barely removed) so I still have the excuse of being inexperienced. You can be sure I will use it for as long as possible.

Posted by: E. McPan at May 22, 2005 11:17 AM

Thanks blondie. I'm sure you're right, but really is "did you have occasion to look in the closet?" any less leading than "did you look in the closet?" It kind of seems like a court and opposing attorney must weigh the cost/benefit of challenging every leading question and we just have to accept that most questioning in pretty damned leading when you come right down to it. And in that respect your plan to just let witnesses narrrate is more honest. I actually have seen a lot of narrative in court so maybe your approach is catching on, even if the rules donn't reflect it.

EMP: Yeah, when you're up there on the spot you're not really thinking about the grammatical appropriateness of what you're saying. It's always a lot easier to criticize from the cheap seats and that just happens to be where I always sit. ;-)

Posted by: ambimb at May 24, 2005 06:57 AM

It reminds me of the time my doctor asked me during a yearly physical: "do you have an opportunity to workout?" I said "oh sure. I have plenty of opportunities. I just don't take them very often."

I agree that prosecutor probably did it (if she thought about it at all) because it gives the impression that you are not leading the witness, when you really are. I guess there is less likely to be an objection if you ask the question that way. it's silly, really.

Posted by: Lawgirl at May 24, 2005 09:38 AM

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