Guttman, Buschner & Brooks

Reuben A. Guttman

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How BigLaw Executive Orders May Affect Smaller Firms

I represent the little guy — civil rights plaintiffs, whistleblowers, consumers and inmates, to name a few.

My opposition is often BigLaw firms, the ones with hundreds, if not thousands, of lawyers.

On a normal day, I have my disputes with these firms over pleading standards, compulsory arbitration and deference to administrative agencies. We battle it out within the legal system. It’s an imperfect system, no doubt, affected by politics and bias.

I didn’t think I’d ever advocate on behalf of these firms. But today, I feel compelled to do so, because of an issue that affects us both — the executive orders targeting some of the nation’s largest law firms.

This isn’t just about BigLaw, and it’s not just about the BigLaw firms named in executive
orders. It’s also about the small firms, the solo practitioners and the public interest lawyers who see what is happening to these big firms and are wondering what they will do if and when they, too, are targeted.

Make no mistake: If BigLaw firms can be targeted, so too can midsize law firms, boutiques, solo practitioners, prosecutors and public defenders. Though I litigate against BigLaw, on this day and on this matter, we are kindred spirits.

The legal system only works if lawyers can represent clients without retribution or fear of retribution. Once in court, advocacy is regulated by the tribunal itself.

Ethical, procedural and evidentiary rules govern the lawyer and the process. It is a laboratory environment where, on a good day, a case will sink or swim on the merits, and the lawyers will move on to the next matter untainted by their advocacy on behalf of an entity or person whose position did not prevail or whose conduct was deemed unsavory.

In addition to the orders targeting specific law firms, the president signed a memorandum on March 22 making it clear that none of this is limited to just a few large firms. That memo directs the attorney general to be more aggressive in the use of sanctions motions and ethical charges against those who litigate against the government. The memo states:

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend … additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.1

The March 22 memo is noteworthy not only for what it says but for what it does not say. It provides for a referral for “additional steps,” including the loss of contracts or the loss of security clearance, not after a court determines that sanctions are warranted, but after the attorney general makes such a determination. That referral can occur without a motion for sanctions being filed, or before the court has ruled on a motion for sanctions. Under this memo, the referral and additional steps can be taken even if the court denies the motion for sanctions.

It is, in sum, a memo that provides a litigant — indeed the defense counsel for the government and the government itself — the sole right to sanction counsel. In this way, the memo effectively removes the judge from the sanctions calculus.

The sanction of having security clearance withdrawn is of course not an abstract proposition. A lawyer needs security clearance to represent, for instance, employees of the CIA, the FBI and the intelligence community who have lost their jobs through Department of Government Efficiency cutbacks. And a number of the firms representing plaintiffs in these cases are boutique or midsize litigation firms, or public interest nonprofits.

By eliminating the security clearance of lawyers or maintaining a threat to do so, a defendant — in this case the government — may essentially curtail opposing counsel’s ability to represent such clients, or influence their advocacy.

It was in Marbury v. Madison that Chief Justice John Marshall in 1803 famously said that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

Fundamental to that protection is the ability to secure counsel. There is no question that the March 22 memo will cause all lawyers — but especially public interest lawyers and solo practitioners — to think twice about whether to take on cases they would ordinarily assume.

Yes, the big firms have their pro bono practices, but it is the smaller firms and the boutique practices that tend do the everyday work of challenging government action. It is the small firms and public interest organizations whose institutional missions focus primarily on things like representing immigrants facing deportation or inmates of for-profit prisons who seek proper medical care, or bringing suits under the Freedom of Information Act to make government more transparent.

But these firms simply do not have the resources or cash flow of the big firms. Unlike Perkins Coie LLP, WilmerHale and Jenner & Block LLP, which have all challenged these executive orders, small firms may be unable to tap the expertise of the best constitutional lawyers in the land to defend themselves against ruin.

Imagine a scenario where a solo practitioner represents a student who is in this country under a student visa, but who has been detained and subject to deportation because of the content of an article they authored in the student newspaper. How might that practitioner react when the government lawyer takes him aside and says that a potential lawsuit is sanctionable? A gutsy lawyer might say, “I’ll see you in court.” But of course, under the March 22 memo, the government may secure sanctions absent a court determination.

The sanctions might include loss of security clearance and/or loss of government contracts. For the lawyer who represents members of the intelligence community or the public interest group that benefits from government grants, the threat is significant. But these are only examples as the memo’s use of the phrase “additional steps that maybe taken, including” makes clear that potential recriminations are boundless.

A big firm may have lobbyists or insiders who can negotiate a resolution with the president. But the average solo practitioner does not have such access or leverage.

In the end, solo practitioners, small law firms and public interest attorneys may find themselves more dramatically affected by the collective impact of these executive orders and memoranda than even the BigLaw firms that have been directly targeted.

Absent the resources and revenue of their BigLaw counterparts, these firms may just temper their advocacy or curtail client relationships. When this happens, there will be no headlines or banner story on the nightly news. Public interest advocacy will have been curtailed — perhaps forever — in ways that will not be easy to quantify.

______________________________________
Reuben A. Guttman is a senior founding partner at Guttman Buschner & Brooks PLLC. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

1. https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/.

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Undoing An American Ideal Of Fairness

In his first week in office, President Donald Trump issued orders purporting to eliminate birthright citizenship, which is enshrined in the 14th Amendment to the U.S. Constitution, end diversity, equity and inclusion programs at federal agencies, and halt the work of the U.S. Department of Justice, Civil Rights Division. On Jan. 29, he issued an order regarding what schools can teach students about our nation’s civil rights history.[1]

In his second week in office, the president also fired two commissioners of the U.S. Equal Employment Opportunity Commission, an agency empowered to enforce provisions of the nation’s civil rights laws.

That same week, before black box data had been analyzed, let alone a U.S. National Transportation Safety Board report issued, the president blamed an airplane crash in Washington, D.C., on the Federal Aviation Administration’s DEI efforts. In effect, he pinned the cause of an air disaster on minorities, women and the disabled.

These events must be juxtaposed against decades of painstaking and incremental efforts to achieve equality in our country by eliminating overt discrimination — and by addressing biases caused by government-sanctioned conduct that separated people based on their immutable characteristics. No doubt this is the history that our president does not want schools to teach.

While laws have been enacted and judicial opinions issued to prevent ongoing discrimination, the matter of bridging gaps in equality that are embedded in the law has been left to voluntary efforts ostensibly known as DEI.

The Lessons of Brown v. Board of Education

With the end of the Civil War, the nation adopted the 13th Amendment abolishing slavery, the 14th Amendment, designed in part to create equality, and the 15th Amendment, which proscribed the denial of voting rights based on race.

Despite the protections and proscriptions of those amendments, the states promulgated laws that separated the races and denied people rights based on their race. Judicial opinions that sustained such laws further embedded such bias.

In Plessy v. Ferguson, the U.S. Supreme Court’s 1896 opinion affirmed the doctrine of separate but equal, declaring that “if one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane.”[2]

Although Plessy involved a Louisiana law requiring separate railroad cars for the races, its logic was used to justify school segregation. Following Plessy, the NAACP Legal Defense Fund, or LDF, filed cases against public educational institutions for failing to provide separate but equal educational opportunities, facilities and teacher pay.

However, it was not until the 1950s — when five cases, each against a state or federal entity, made their way to the Supreme Court — that the LDF was positioned to wage a direct attack on Plessy by arguing that the rule of separate but equal, standing alone, violated the 14th Amendment.[3]

In 1954, Chief Justice Earl Warren penned his opinion in Brown v. Board of Educaton, which held that segregation in public education violated the 14th Amendment’s equal protection clause.[4] The Brown opinion addressed four of the five cases in which a state entity was subject to the 14th Amendment.

The fifth case, Bolling v. Sharpe, challenged segregated public schools in the District of Columbia, which is subject to the Fifth Amendment, rather than the 14th Amendment.[5] Unlike the 14th Amendment, the Fifth Amendment does not include an equal protection clause.

The challenge Bolling posed was how to capture the logic of Brown — decided on equal protection grounds — and apply it within the due process clause of the Fifth Amendment.[6] Justice Warren’s words in his 1954 Bolling opinion were profound: The “concepts of equal protection and due process both [stem] from our American ideal of fairness.”[7]

Was the chief justice doing more than calling balls and strikes, as Chief Justice John Roberts once described the role of the judiciary?[8]

No. Justice Warren was stating the obvious. With a constitution that begins with the words “We the People,” and amendments that use the terms “due process” and “equal protection,” how could our rule of law not encompass an American ideal of fairness?

The Brown and Bolling opinions were issued at the height of the Cold War. They demonstrated to the world how our rule of law allowed individuals — albeit those who had been oppressed for ages — to invoke the legal system to successfully challenge the law itself.

Eradicating Embedded Inequality in all Sectors

Brown and Bolling were landmark decisions that only applied to the government. These cases did not eradicate private segregated lunch counters or hotels, or eradicate segregation in private education.

The Civil Rights Act was passed in 1964 to prohibit discrimination based on race, color, religion, sex or national origin. It was a significant step toward addressing private-sector discrimination. After its passage, the nation began the long arduous process of Civil Rights Act enforcement.

In 1971, Griggs v. Duke Power Co. came before the Supreme Court.[9] At its Dan River facility, Duke Power had implemented employment tests and a high school graduation requirement as prerequisites for most positions, which adversely affected black job applicants.

The trial court, and later the U.S. Court of Appeals for the Fourth Circuit, had held that these job requirements were facially neutral and thus not discriminatory.

The Supreme Court reversed, holding that facially neutral employment practices that have a disparate impact on protected classes can implicate liability under Title VII of the 1964 Civil Rights Act.[10] Specifically, the court noted that such employment requirements had to be job-related.

The court in Griggs acknowledged two historic points. First, prior to 1964, Duke Power had discriminated in hiring at its Dan River facility.[11] Second, the North Carolina public education system had historically failed to afford black students an equal education.[12]

That discrimination was baked into the workplace, the education system and even the law was nothing new. Yet, what was becoming apparent was that even laws like the Civil Rights Act could not address a bigger problem: how to achieve equality without accounting for decades of past discrimination.

Suppose, for example, that the testing at issue in Griggs was job-related? Would a black applicant who had been subject to an inferior education system have been able to compete for a position? Under this scenario, Griggs would not necessarily have violated the law by denying employment, but the applicant would still have suffered from the blight of inequity.

None of this can be fully understood without really digging into how the government — the courts and the legislatures — have created inequality. Yet, on Jan. 29 Trump issued an executive order titled “Ending Radical Indoctrination in K-12-Schooling,” which may prevent students from reading or learning about the very laws and court decisions that explain the history of inequity — knowledge of which history is essential for navigating the path forward.[13]

To be clear, after the passage of the 1964 Civil Rights Act, the challenge was not just about enforcement and addressing schemes to evade enforcement. The challenge was also about addressing the long-term impact of decades of inequality, a matter that can only be understood through a study of unvarnished history.

Some of that history is buried in cases addressing mundane matters — for example, real estate transactions. In 1926, the Supreme Court in Corrigan v. Buckley, affirmed the right to enforce racially restrictive housing covenants that created and guaranteed segregated neighborhoods.[14]

Twenty-two years later, the Supreme Court’s 1948 decision in Shelly v. Kramer, found that using the courts to enforce such agreements violated of the 14th Amendment.[15] Yet the court in Shelly issued an opinion explaining how to discriminate without implicating the 14th Amendment:

We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated.

By the time Brown was argued, schools in this nation were segregated because of housing discrimination the created, in effect, whites-only and blacks-only neighborhoods, and hence blacks-only and whites-only local schools.[16]

In his oral argument before the court in Brown, Thurgood Marshall noted that the impact of any decision for the plaintiffs would be blunted by historic housing discrimination, which reduced the likelihood that a black child could walk to a neighborhood white school. The ultimate solution to the problem would come in later cases that addressed forced integration.

The Corrigan and Shelly opinions placed the imprimatur of government on the separation of the races. These cases are part of our history and need to be taught. They explain the existence of segregated neighborhoods, local schools that lack diversity, why red-lining is possible, and what makes it easy for government officials to channel education and other dollars along racial lines.

If there is bright spot in our history, it is the heroic dissenting opinions of jurists who spoke out when doing so was not popular. Consider, for example, the 1908 Supreme Court decision in Berea College v. Kentucky,[17] which upheld a Kentucky law precluding private colleges from teaching both black and white students on the same campus.

Justice John Marshall Harlan — dissenting as he did in Plessy — framed the issue as the government embedding discrimination:

If pupils of whatever race — certainly if they be citizens — choose, with the consent of their parents or voluntarily, to sit together in a private institution of learning while receiving instruction which is not in its nature harmful or dangerous to the public, no government, whether federal or state, can legally forbid their coming together, or being together temporarily, for such an innocent purpose.

I fear that the president’s Jan. 25 order will deter educators from teaching these cases — and the words of the justices who used their dissents and concurrences to set the record straight.

In 1968, in Jones v. Alfred H. Mayer Co., the Supreme Court finally upheld an age-old reconstruction-era statute that addressed housing discrimination.

In his concurrence, former Justice William Douglas wrote:

The true curse of slavery is not what it did to the black man, but what it has done to the white man. For the existence of the institution produced the notion that the white man was of superior character, intelligence, and morality. The blacks were little more than livestock — to be fed and fattened for the economic benefits they could bestow through their labors, and to be subjected to authority, often with cruelty, to make clear who was master and who slave. Some badges of slavery remain today. While the institution has been outlawed, it has remained in the minds and hearts of many white men. Cases which have come to this Court depict a spectacle of slavery unwilling to die.[18]

Broader Implications of the Attack on Birthright Citizenship

While legislation and case law have institutionalized discrimination, the painstaking efforts of noted civil rights lawyers, like former Justice Thurgood Marshall and former NAACP first special counsel Charles Hamilton Houston, used the legal process to dismantle discriminatory law and precedent brick by brick.

Their tool in doing so has been the 14th Amendment. That this amendment may be vulnerable to an executive order regarding birthright citizenship is a chilling proposition.

The words at issue are clear: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”

Those words were written to address the Supreme Court’s 1857 decision in Dred Scott v. Sanford, which denied Scott the right to assert diversity of citizenship jurisdiction in a federal court because he was not — in the first instance — a citizen.

These words are so clear that when a challenge to the president’s executive order came before a U.S. District Judge John Coughenour in the U.S. District Court for the District of Washington, issued a temporary restraining order against its enforcement.[19]

At oral argument on Jan. 25, Coughenour, who was appointed by former Republican President Ronald Reagan, said to government counsel: “I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order.”[20]

Addressing the Taint of Inequality

The president’s actions have no doubt caused discomfort, causing some to wonder, “Am I going to be OK?” There is reason to be concerned and to ask this question.

How this nation addresses biases that were baked into law, creating generations of inequality, is a complicated matter.

If life is analogous to a 100-yard dash, then DEI is about creating equality in the middle of the race, after some runners started the dash at a deficit.

This is a problem that our laws really do not address. And, unfortunately, courts cannot eradicate bias that has descended through generations and at times tempers the behavior of individuals in ways that are not obvious — even to the biased.

On the other hand, there is no doubt that DEI programs have become a hotbed for consultants and seemingly formulaic rules. There is also concern that some groups are not protected by DEI programs.[21] And there controversy — and indeed litigation — over whether such efforts are themselves discriminatory. These are legitimate matters for discussion.

It is apparent, however, that we have not reached the point where bias and discrimination no longer exist. It is hard to imagine that bias can be completely eradicated, and so the effort to create equality will always be an unfinished task.

One thing we cannot do is rewrite or sugar-coat our history. To chart a course forward, it must be fully understood. The question is whether we will be guided by the American ideal of fairness or driven to undo it.

_________________

Reuben A. Guttman is a senior founding partner at Guttman Buschner & Brooks PLLC.

[1] Ending Radical Indoctrination in K-12 Schooling — The White House.

[2] See, Plessy v. Ferguson, 163 U.S. 537 (1896).

[3] Those cases were Brown v. Board of Education, 347 US 483 (1954); Briggs v. Elliott, 163 U.S. 537 (1896); Davis v. County School Board of Prince Edward County, 103 F. Supp. 337 (1952); Gebhart v. Belton, 91 A.2d 137 (1952); and Bolling v. Sharpe, 347 U.S. 497 (1954).

[4] See, 347 U.S. 483 (1954).

[5] See, 347 U.S. 497 (1954).

[6] See, 347 US 497 (1954).

[7] The Court explained:
The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. [citations omitted].

[8] See, Chief Justice Roberts Statement – Nomination Process, https://www.uscourts.gov/about-federal-courts/educational-resources/supreme-court-landmarks/nomination-process/chief-justice-roberts-statement-nomination-process.

[9] See, 401 US 424 (1971).

[10] One could argue that the concept of disparate impact is as old — if not older — than Yick Wo v. Hopkins, 118 U.S. (1886).

[11] Justice Warren Burger noted: “The District Court found that, prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the Company openly discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant.”

[12] Justice Burger explained: “Because they are Negroes, petitioners have long received inferior education in segregated schools, and this Court expressly recognized these differences in Gaston County v. United States, 395 U. S. 285(1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race.”

[13] Ending Radical Indoctrination in K-12 Schooling — The White House.

[14] See, 271 U.S. 323 (1926).

[15] See, 334 U.S. 1 (1948).

[16] Trump is not unfamiliar with both housing discrimination and the work of the Civil Rights Division. In 1973, The Division filed United States of America v. Fred C. Trump, Donald Trump, and Trump Management Inc, in the United States District Court for the Eastern District of New York alleging violation of the Fair Housing Act of 1968. In 1975, the case was concluded with a consent agreement — signed by Donald Trump — that enjoined the Defendants from, among other things, refusing to rent a dwelling “on account of race, color, religion, sex or national origin.”[16]

[17] See, 211 U.S. 45 (1908).

[18] See, 392 U.S. 409 (1968).

[19] See, State of Washington et al. v. Trump et al., case number 2:25-cv-00127, in the U.S. District Court for the Western District of Washington.

[20] Four courts have now blocked this Executive Order. https://www.delawareonline.com/story/news/2025/02/14/federal-judge-sides-with-delaware-blocks-president-donald-trump-birthright-citizenship-order/78542953007/.

[21] See, New York Times January 22, 2025, Does D.E.I Help or Hurt Jewish Students.

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Professionalism Makes Sense

This thing called “professionalism”

Law schools teach professionalism as if it were a code of morality for an elite club called the bar. Newly minted members of the club sometimes (perhaps too often) hear the words “professionalism” or “professional” foisted upon them by more longstanding members. The words are used perhaps as a brush-back pitch to new lawyers, who live in fear that the license they worked so hard to acquire will be expropriated before it is put to productive use.

Professionalism, of course, is a conclusory term, a label, that perhaps has been used so many times and in so many ways it is now a shell of a word that, when used in a critique, often leaves the alleged perpetrator wondering what he or she did wrong.

As lawyers, we manage the resolution of conflict or the avoidance of conflict. Lawsuits are about resolving conflict, while the execution of contract, for example, is about avoiding it. Of course, advocacy is a significant component of what we do; being an advocate can, no doubt, draw a lawyer into the conflict.

Yet, professionalism means behavior that keeps the lawyer from becoming part of the conflict, exacerbating the conflict, or closing channels that might be used to resolve the conflict. Remaining apart from the conflict is, unfortunately, no simple task; consider the tension created by bar rules that require a lawyer to “represent a client zealously and diligently within the bounds of the law.” [1] Consider that clients too often want their lawyer to feel their pain or disdain the opposition and most particularly their counsel. There are those clients who hire their lawyers to be bulldogs ; for their part, these lawyers may play that role to win the client’s continued confidence even when the case is headed south. And for lawyers who don’t go into a case seeking to play the bulldog, their opposition may be so frustrating or obstreperous that the response is bulldog behavior.

The late George Barrett of the Nashville firm of Barrett Johnson Martin & Garrison, LLC was a leading civil rights lawyer of his day and championed causes that, at the time, were unpopular. Barrett once noted, “I was glad to manage protest routes and get Vietnam demonstrators out of jail, but I won’t march with you. I think a lawyer has to decide.”[2] In 2014, when Barrett passed away at the age of 86, Nashville Mayor Karl Dean said, “George Barrett was larger than life and always willing to take up an unpopular cause if he felt it was the right thing to do.”[3] Barrett understood what professionalism meant.

Professionalism means keeping in mind that 99 percent of all cases settle or are resolved before trial and there may be a day—perhaps at the end of a deposition—where you or opposing counsel might say, “Maybe we should talk about whether there is a way to put this dispute to rest.” How do you have that discussion without a relationship with the other side? How do you have that discussion if the entire pretrial process has been consumed with personalized disputes between opposing counsel?

Setting aside the matter of an ultimate resolution, opposing counsel need to work with one other to create efficiencies in the litigation process. Professionalism greases the way for dialogue about document production; stipulations as to admissibility; or shortcuts to resolve disputes, including bifurcation, bellwether trials, and capping or putting floors on damages.

Professionalism also means resisting the temptation to meet your opposition’s bulldog behavior with that of your own. It means lowering the temperature between counsel. Consider a deposition where your opposing counsel is being obstreperous, making speaking objections, and coaching the witness. If the conduct persists, the matter may have to be taken to the judge. But does burdening the record with arguments over the obstruction make the record any clearer for court review? Or will such argument just detract from the goal of the deposition, which is to get information? If you ignore obstreperous counsel, are they more likely cease their conduct? Perhaps so.

And professionalism means acting in a way that makes the judge’s job easier, including giving your opposition an opportunity to complete a full argument, as opposed to interrupting. Using court hearings to personalize attacks on opposing counsel do little to curry favor with the court and only polarize a relationship with the opposing counsel, whose help you will need to resolve the case.

In an era in which we give attention to psychological well-being in the workplace, professionalism is also about lowering stress, which comes from dialing down the temperature between opposing counsel. It means understanding that being a zealous advocate is not inconsistent with being an honest and respectful opponent, a mensch.

Eventually, there will be a client who questions your decency. You might be accused of not being mean enough. Professionalism is also about educating the client on the style you will use to make the case more efficient, avoiding needless battles. The education process starts at the first meeting and continues throughout the retention.

For those teaching professionalism, it is not something that can be taught in a book or tested by written exam. It is something more suited to experiential learning, which may include simulated negotiations over pretrial matters, mock depositions, or oral arguments. However it is taught, students must understand that while professionalism is thematically about ethics, it is also about practice and efficiency.

[1] See, e.g., DC Bar Rule 1,3 Diligence and Zeal.

[2] See Profiles in Justice: A distinguished lawyer and friend – The Global Legal Post.

[3] Id.

Source: National Institute For Trial Advocacy

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The Leading Question: Rethinking How We Teach Direct Examination

Trial instructors across the country implore students not to ask leading questions on direct examination. For their part, students struggle to formulate lines of inquiry devoid of leading questions. Amidst their quandary, students find themselves perplexed when they watch demonstrations or clips from real trials and see leading questions frequently used on direct examination. So what’s the deal?

Perhaps students are taught a practice without an appreciation for the source of the practice. Federal Rule of Evidence 611 outlines the “Mode and Order of Examining Witnesses and Presenting Evidence.” It is a short and easily understood rule. It is also a rule that is probably not taught in law school evidence classes. Yet FRE 611 is a gold mine of information because, among other things, it specifically addresses the use of leading questions. FRE 611(c) states:

(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.

The rules of evidence do not categorically proscribe leading questions on direct; they may be used “as necessary to develop the witness’s testimony.” Questions that are foundational or involve matters that are not in dispute are the types of questions that can be posed as leading questions. Doing so creates efficiencies; it moves the case along. Interposing leading questions under these circumstances also makes the dialogue we call “direct examination” more natural and less formulaic. Think about a recent conversation with a friend or relative: it is human nature to cut to the chase with a leading question. And with court systems burdened with litigation—especially as we emerge from the pandemic—cutting to the chase is an efficiency that moves dockets.

For a new lawyer or one learning litigation skills, FRE 611 is empowering. Consider this line of questioning:

Q: Officer Smith, you were riding in the police cruiser with Officer Jones when Officer Jones pulled over my client’s vehicle?

Opposing Counsel: Objection: leading.

Counsel: Your Honor, I am just trying to move this proceeding along; this is foundational, and this is not a matter in dispute.

Judge: Overruled.

None of this is to say that students should not be taught how to ask non-leading questions or how to develop the skill of using prompts that turn the witness on direct examination into the storyteller. Learning how to use words like “who,” “what,” “when,” “where,” and “how,” or similar words that place the witness in the driver’s seat as the storyteller, is an important skill. Yet it is also important to learn where to use leading questions to move the testimony along. Moving it along empowers the decision-maker—judge or jury—to focus on the witness when important questions, such as those dealing with matters in dispute, are asked.

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Remembering the Man Who Taught Us How to Interview a Witness

Larry KingHe was not a judge, a lawyer, or an FBI agent but he questioned more witnesses to history – from all walks of life –  than any lawyer I can think of.

Larry King died last month; he was 87 when he succumbed to COVID-19.

If you want to learn how to question someone, Larry King was the master. His interviews – stored for posterity on the internet – are a fabulous resource.

Larry King was naturally curious; every answer to a question only egged on his curiosity, often prompting one word follow-ups like “why ” which he would ask with his head propped on his wrist waiting in anticipation for the answer.  

King was also a master at creating narratives, sometimes punctuating an interview with a question laced with a bit of his own personal knowledge. He understood how to collect facts and he appreciated the absence of fact.  When interviewing Hank Aaron, who also died last month, King drew from his prior interviews with the “Home Run King” noting that in those interviews that Aaron had refrained from discussing racial issues. With laser sharp simplicity, King asked simply “why now?”

Larry King grew up in the Bronx; born with street smarts; he understood people.

He did not have an advanced  degree in psychology; he did not learn his skills in school; indeed, studying was not his cup of tea –as he often admitted. Yet, King was capable of examining “experts” whose CV’s spanned pages and included multiple degrees.

There is the legendary story about his interview of Edward Teller, the father of the hydrogen bomb. How does one prepare for such an interview? Read Teller’s works? Retain an expert to help prepare questions? Not King!

Shortly before his interview, Teller learned that King had not read Teller’s recent book, a sign that he was unprepared for the interview. An irritated Teller threatened not to submit to the interview but King made a deal; if Teller did not like the first few moments of the interview, he could get up and leave. King’s first question: “why do high school students find physics so intimidating?” Teller went into a monologue and the interview was off to the races.

Maybe it was just that King understood that beneath the titles and degrees, people are just human; they have basic emotions and instincts. King also had instinct and he understood human emotion; he knew how to make the interrogated feel comfortable; he knew how to get them to talk.

Larry King left us with a treasure trove of interviews which shed light on history and expose the inner emotions and perspective of those who witnessed or made history. And for trial lawyers and investigators – those who are in the business of uncorking the truth by getting people to talk, King has left us with a library of techniques.