CBA Record July-August 2025

Objectionable Objections in Civil Litigation: Three Big Ones, and Why They Don’t Work By Richard Lee Stavins

T hree objections often encountered in civil litigation are: • “ That yes-or-no question is leading.” • “ I have the right to put the plaintiff to their proof.” • “The document speaks for itself.” Is there any merit to these objections? We sometimes wish there were, but sadly (or joyfully, depending on your viewpoint), there is not. Is a yes-or-no question leading? Absolutely not. Betts v. Manville Personal Injury Settlement Trust , 225 Ill.App.3d 882, 905 (4th Dist. 1992). The folklore is that yes-or-no questions are inherently leading, but the folklore is wrong. In Betts, a retained medical witness testified on direct exami nation that he had no recollection of a particular matter. The attorney offering the witness’s testimony then asked the wit ness: “Well, would defendant’s exhibit No. 3 correspond to your normal practice that you follow that you just described?” The inquiry was a classic yes-or-no question, and the attorney asking it wanted a particular answer, in this case, a “yes.” Oppos ing counsel objected because the yes-or-no question was leading. The court overruled the objection, and not surprisingly, the wit ness answered “yes.” On appeal, the objecting party argued that the failure to sustain the objection was reversible error. The Appellate Court acknowledged that leading questions are not allowed by the party calling the witness but held: “The

question was not leading. The witness could answer yes or no. The question did not suggest the answer.” The lawyer undoubt edly wanted the witness to answer yes, but that did not make the question leading. After all, at trial every competent lawyer always wants a particular answer to every question they ask; otherwise, the lawyer wouldn’t ask the question. But that does not make the question leading, so long as “the question did not suggest the answer.” Had the lawyer in Betts asked the witness, “Would you agree with me that exhibit 3 corresponds to your normal practice that you follow that you just described,” that most surely would have suggested a “yes” answer [“would you agree with me that...”] and therefore likely would have been deemed leading and the objec tion sustained. In a civil case, does the defendant have the right to put the plaintiff to their proof? Absolutely not. Hernandez v. Williams , 258 Ill.App.3d 318,322 (3d Dist. 1994). In Hernandez , the defendant opposed plaintiffs small claims action but did not present a defense. Consequently, the defense lawyer was sanctioned by the trial judge. On appeal from the sanction order, the lawyer contended that he did not have to present a defense because the defendant “had a right to put the plaintiff to his proof,” and therefore the defendant’s conduct allegedly was proper.

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