Lawyers take evidence. It is a required class and every state tests evidence as part of the bar exam. FRE 611(c) sets out the general lay of the leading question problem:
(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
So you have problems with small print?
The claimant affirms that leading question. The representative cross-examines the vocational expert about near vision (should have used the vocational term of near acuity). The ALJ interrupts, "where did you get that from?" Aside from acting as an interruption, the claimant is allowed to explore the underpinnings of the witness's testimony. In this case, the medical expert testified to difficulty with small objects. The occupations identified all require at least occasional near acuity per the SCO. In this case, the representative had a clear and reasonable factual basis for the question.
The ALJ denies the case. The ALJ writes that the claimant did not identify small objects, just small print, as a potential problem with work. That's a problem with leading questions.
The ALJ asked about small print. Small print is a subset of small objects. If a person has difficulty in seeing small objects as a class and the ALJ asks if that person has difficulty with small print, the only truthful answer is "yes." But it is clear in the nature of how people communicate that affirming an example does not exclude the broader class of the subject.
Let's imagine a witness says that a crowd gathered. On cross-examination, the defense attorney asks if the witness saw women. The witness affirms that statement. The testimony on cross-examination does not exclude men because no one asked that question. The closing argument that the male defendant was not there as shown by the statement that there were women is frivolous. The ALJ in our case asking about small print and then concluding that the claimant excluded threading a needle fails to present a logical and rational basis for decision-making.
If the representative asked that leading question about small print, that creates a different problem. The claimant has the burden of proof and the case in chief is now suggesting small print as the scope of limitation without taking into account the medical opinion evidence. The diligent examination goes something like this:
Q. Can you describe for the ALJ your ability to see clearly at 20 inches or less, near acuity?
A. I don't see things close up very well. I really struggle to read.
Q. Do you have any other examples of difficulty seeing things close up?
A. I can't see small objects ...
By allowing the client to list reading and then clarifying that this is an example, we avoid the box that the ALJ put around this case. Suggesting answers implies lists, not examples. My personal favorite method of asking yes/no questions seeks a "no" so that the claimant can disabuse me of the wrong idea.
Q. Do you seek small objects clearly?
A. No.
Q. Can you describe examples of that for the ALJ?
A. [let the claimant give some examples].
We don't need to ask leading questions except in very limited circumstances. Leading questions dampen the persuasive value of the claimant's testimony. Leading questions on direct or re-direct (since the ALJ asked questions first) has dangers of turning examples into lists. Reject the Nike slogan on leading questions. Don't do it.
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Suggested Citation:
Lawrence Rohlfing, Why We Should Not Ask Leading Questions, California Social Security Attorney (October 30, 2021) https://californiasocialsecurityattorney.blogspot.com
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