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4th February 2020-Aman: How To Frame Leading and Non-Leading Questions? Leading Questions Are Those That
4th February 2020-Aman: How To Frame Leading and Non-Leading Questions? Leading Questions Are Those That
How to frame leading and non-leading questions? Leading questions are those that
contain the answer. Eg. if I state a fact and the witness is supposed to deny or confirm it. A
non-leading question is where the witness or person asked can say whatever they want to
say. Shweta sitting on the hot seat.
Examination in Chief- when you examine your own witness. This is to substantiate and
prove what you have stated in your pleadings. If the lawyer tutors or gives hints to the
witness, the story is not believable. This is why you need to ask non leading questions, so
that the witness has a platform to say things in their own words. Leading questions can be
asked to introduce a topic or state a fact, like ‘this occured on new year’s eve’ because
there is a fixed date for new years eve. Cross examination- leading questions can be asked
to break the case of the opposite side.
The most important skill that you require is case analysis. Case theory is a result of
case analysis by which you can create a clear situation where the relief you asked
for is a clear result from the circumstances presented.
Case analysis exercise-
Take four sheets of papers
● Paper 1- take out the law on the point in the cases involved. Identify the legal
ingredients independent of the facts.
● Paper 2- Facts which you feel are in your favour from every angle. Co-relate
the good facts with the legal elements. Prioritise your facts, so that it can be
your first argument.
● Paper 3- Bad facts. Facts which the other side is bound to use against you.
● Paper 4- facts to nullify the bad facts. These can be used when the opp.
Brings the bad facts and you need to explain away the bad facts.
This is in addition to the classification of facts as given in the evidence act, which
must be kept in mind.
After this exercise, you can formulate a case theory that translates as your oral
argument to the judge. You cannot argue beyond the evidence, the case theory
dictates your evidence, who to call as a witness, what to ask in the examinations
etc. Pleadings are the foundation of the case and you must have a case theory
before you start drafting.
A good case theory must be consistent with the law. It should not require the court
to disbelieve a credible witness from the other side, while choosing a case theory
you must factor in what the credible witness is going to say against you. The case
theory must be such that it makes the testimony of the credible witness irrelevant.
There must be consistency b/w what you are arguing and what the witness is
saying, just that it is irrelevant. Similarly, factor in every document that is credible
from the other side.
There must be a sub case theory and everything must be simplified to demystify the
case and appear reasonable. Do not highlight the case but simplify it to ensure that
the case theory is logical (not contradictory or inconsistent). A case theory must
also be ethical (not based on overruled judgments or on suppression of the facts). A
lawyer must not fabricate documents or mislead the court.
5th February
Second class- take the first from someone.
Re-examination- without the permission of the court, the scope of re-examination
is to clarify any ambiguities that arose in the cross examination but if any new
matter is introduced with the permission of the court then the other side can again
cross examination them.
Presentation- communication with the judge needs to be clear and precise, you
can’t be a prisoner of your notes and should not be verbatim read from them. A
lawyer must be good at putting the point across and you must answer questions
then and there and not say that they will be answered later because that will create
a block in the mind of the judge. You usually do not cite in the court, cases are won
on facts.
If you need to cite, say why you are citing it, take the court to the page, para and
sentence and then correlate the principle to the facts of the case. Then you should
close your papers and explain the significance of the principle in your argument.
Evidence must also be handled in the same way. The simpler your arguments are
the more effective they are, you should not data dump or use multiple latin phrases
to sound smart.
Always start you pleadings by saying which side you are appearing for and then
start. No need to say your name and other irrelevant things. Then you should
inform the court what if the purpose of the day, injunction, argument etc. So that
they know why they are listening to things. Then indicate the question to be
considered, do not state the facts first. The most important part is the issues that
are framed- always formulate the issue that is in line with your case theory. Do not
frame mutual issues. Eg. In State v. Monty khanna- the prosecution would say that
the question would be considered is whether the 40 yr old married accused has
taken steps to outrage the modesty of a 19 yr old new employee. This captures the
case theory and also paints the opp side black. The defence would say that the
question is whether the 19 yr old over ambitious girl knowing fully well the good
reputation of the accused to rise extraneously in the office.
After stating each issue, you have to state all the facts, completely and ensure that
the good facts nullify the bad facts (Narration of Facts). Then start the
submissions, this way you can repeat the good facts and hammer them in. The case
theory should be such that the bad fact is not first revealed by the other side. If you
cannot nullify the fact, try to dilute it or apologise to the court for it and express
regret. The submissions are in the form, issue 1- good facts, issue 2 - good facts and
then relief.
The defence can repeat their good facts if they want, then move on to the
submissions and relief. You need not repeat what is listed or the charges framed as
they have already been presented by the petitioner.
Exercise-
● Examination in chief/cross examination from the first or second exercise.
● Witness handling from case 3.
Petitioner-
1. Who you are appearing for and which side
2. Purpose of listing
3. Question to be considered
4. Complete narration of facts
5. Submission stitching together your facts, arguments and case law.
6. Relief.
Defendant-
1. Who you are appearing for and which side
2. issue from your case theory
3. Narrate facts that are relevant, not necessary to repeat.
4. Submissions
5. Relief.
Any one case be a witness. Take