Are Closed-Ended Questions Leading Questions?

• Author: Jacob Jacoby
• Pages: 261-285

261

12

Are Closed-Ended

Questions Leading

Questions?*

By Jacob Jacoby

INTRODUCTION

Consumersurveys,including thoseconducted toprovide evidence in

litigation, necessarilyrelyon questionsdesigned toelicitprobative

information from pertinentrespondents.The questionsmaybe posed by

an interviewereitherin person oroverthe telephone, theymaybe self-

administered via amailed questionnaire, or,withincreasing frequency,

theymaybe administered via the Internet.

Regardless of theirmode of administration, all surveyquestions

come in twobasic forms—eitheropen-ended orclosed-ended—and

questionnairesaredeveloped using one orbothforms.The essential

distinction between open- and closed-ended questionsisthatthe former

relyon respondents togenerate an answertothe question and provide it

in theirownwords,whereasthe latterrelyon respondents toselect an

answerfrom responseoptionsprovided along withthe question.

Asdiscussed elsewhereinthisbook, each formhasits merits and

demerits.Because, however,closed-ended questionsaresometimes

unfairlycriticized bycourts,counsel, and pundits as“strongly”

*The presentchapterisbased in part upon Sections9.30 through 9.32.7of chapter9,

Questionnaires,appearing in Jacob Jacoby,TrademarkSurveys (Vol. 1) tobepublished

in 2012byThompson West underthe auspicesof the American BarAssociation. The

authoracknowledgeswithappreciation the helpfulcommentsof ShariDiamondand Jerre

Swann on thischapter.

Section V

262

suggestive 1and even leading, theirusesand the meansbywhich criticismsof closed-

ended questionsmaybe alleviated arethe particularfocus of thischapter.

OPEN-ENDED QUESTIONS

The open-ended question, “Whatisyour opinion of Justice Ginsberg?,”directs the

respondent’s attention tothe topic of the question. If notpreceded byan instruction

informing the respondentthat“don’t know:and “no opinion”areacceptable answers,

italsorests on the assumption thatthe respondentshould be able togiveananswer.

Astheydo notmake selecting one responsemorelikelythan another,neitherof these

characteristicsmakesopen-ended questionsleading questions.However,withthe

insertion of an adjective, an open-ended question maybe transformed intoaleading

question: “Whatisyour opinion of activist Justice Ginsberg?” Properlyframed,

however,anopen-ended question directs attention onlytothe topic of the question,

and anysuggestion thatthe respondentshould haveananswercan be softened (e.g.,

What,ifanything, isyour opinion of Justice Ginsberg?). Asthe question neither

providesnorsuggests an answer,itisnotaleading question.

CLOSED-ENDED QUESTIONS

The closed-ended question, “Which, if any,ofthe following isthe name of someone

who currentlyisasitting memberof the United StatesSupreme Court? Thurgood

Marshall;Samuel Alito;David Souter; SylvesterStallone;RichardPosner; none of the

above;ordon’t know,”directs the respondent’s attention toconsiderasetof response

options(which includes“none of the above”)and impliesthatone of theseresponse

optionsiscorrect.However,asitdoesnotlead the respondents toselectone response

option overthe others,itisnotaleading question.

Aclosed-ended question may,ofcourse, be transformed intoaleading question.

“To the best of your knowledge, wasthe DonkeyKong game made withthe approval

orunderthe authority of the people who produce the King Kong movies?,” 2contains

multiple flaws:(a) itspotlights onlytwostimuli;3(b) itimpermissiblypresents them

side byside (when theydo notsoappearin the marketplace);and (c) itprovidesonly

1. See, e.g., R. BradleyBoal, Techniques for Ascertaining Likelihood of Confusion and the

Meaning of Advertising Communications, 73 TR. 405, 422 (1983)(the same company/

differentcompaniesSquirt question “stronglysuggests apossibility thatmightnothaveoccurred tothe

interviewees—the products aremade bythe same company.”). Asdiscussed in thischapter,thisview

contrasts withthosearticulated byauthoritieson legal evidence aswell asbyauthoritieson questionnaire

construction.

2.Universal City Studios,Inc. v.Nintendo Co., Ltd., 746F.2d112,118 (2dCir.1984).

3.See Tokidoki, LLC v.Fortune Dynamic, Inc., 2009U.S. Dist.LEXIS 65665, *21–22 (C.D. Cal.

2009).