Practice Direction 57AC – Do you really know how to avoid asking leading questions?

In 1998, the comedian Caroline Ahern (in her alter ego ‘Mrs Merton’) invited Debbie McGee onto her chat show. Debbie McGee had just married the wildly successful BBC magician Paul Daniels. She had been his assistant in his ‘old school’ magic tricks. Mrs Merton then asked her this memorable question: ‘What first attracted you to the millionaire Paul Daniels?’ The laughter lasted for minutes. Half a million people have watched this question again on YouTube. It was more than a question. It was a question and an answer.

This question would have failed to comply with the new PD57AC. The Practice Direction forbids leading on contentious matters when interviewing a witness for the purposes of a trial witness statement in a business and property court case. It defines a leading question as, “a question that expressly or by implication suggests a desired answer or puts words into the mouth, or information into the mind, of a witness”.

You clearly spotted that the ‘millionaire’ question as leading; but can you spot more subtle versions? At speed? And can you reframe leading questions without missing a beat. You will need to.

Some firms are planning on recording interviews to demonstrate compliance with PD57AC. Are you confident that your technique is up to scrutiny?

Let’s do a quick audit of your skills.

How to avoid asking leading questions

You are interviewing a CFO about a procurement procedure relevant to a controversial transaction. The procedure was a good one, and suggests that the company has a good, robust, and systematic approach. So you ask: and is that your normal procedure?” It is good for you if it is.

Is that leading? You have 1 second to decide. Can you reframe it in a non-leading way instantaneously? If ‘yes’, then stop reading and do something else useful. If not; keep going.

This was a leading question: albeit a subtle example. Why? The question limits the witness’s perspective to a single proposition of ‘normalcy’. The procurement procedure could be described in several other ways. It might be her invariable practice to follow it. Or her usual practice but in given situations, or an occasional practice. Or maybe this was the first time she had followed the practice. Offering just one option of ‘normal’ influences the witness and removes the full choice that she should have. It is easier to accept the single proposition than to negotiate a better phrasing with the interviewer. Do we know if the witness simply acquiesced to the proposition in the question in spite of a slight sense of unease? What word would she have picked if offered a truly free choice?

Can you think right away of a better alternative?

The simple convention is that you will do better with a ‘how’ ‘what’ ‘why’ question. Here, you might need 2 questions to get you there. How about have you followed that process before?’ If ‘no’, we have an exact answer, and if ‘yes’, the next open question is now easy. How often have you done so?’ The evidence has now been elicited without circumscription, pressure or influence.

Click on this link if you would like to learn more about how to avoid asking leading questions: Trial witness statements under PD57AC.

About the Author

James Welsh is a Barrister, Professor of Legal Education and Consultant with Kinch Robinson Limited.