By Dr. Ken Broda-Bahm:
For an attorney taking a deposition or conducting a cross-examination in trial, there is one key word that describes that attorney's strategy: control. The questioning attorney wants, maybe needs, to control the witness in order to build useful testimony in a deposition or to highlight useful testimony in trial cross-examination. The more the witness is talking, the less control the attorney has. So there is a preference for leading questions that just call for a "Yes" or a "No." After all, the attorney has a lot more control when the witness is just affirming or denying the lawyer's word choice and focus, rather than choosing the words and the focus on their own. From a control perspective, the question, "Then you finalized your differential diagnosis, without including DVT, correct?" is a whole lot better than, "What did you do then?"
Of course, that is "Examinations 101." But what witnesses need to understand is that, at its extremes, this preference for yes/no leading questions can lead to an insistence, "Please, just answer the question 'Yes' or 'No.'" Sometimes, for dramatic effect (or intimidation), the attorney will add in a measure of condescension: "It is a simple question. You understand it, don't you? Let me repeat it slowly, and you listen carefully, then tell me if it is 'Yes' or 'No.'" Rather than being a sign that a witness is messing up, that insistence often appears when a witness is doing particularly well in offering good explanations and framing the answers in favorable terms. So the questioning attorney's efforts to limit the answers to the single word is an attempt to take back a bit of power from the witness. Some witnesses give in and just be led at that point, because it is easier than fighting counsel. The prepared witness, however, will try to fight back. Politely and respectfully, she will try to break out of that 'Yes' or 'No' control trap in order to get back to phrasing the answer on her own terms. So how does she do that? In this post, I will share seven ways of answering the 'Yes' or 'No' question without backing down.