Witness the confusion - trade secrets of a cross examination
Some words are music to the ears of a hardpressed barrister: others perhaps less so. 'You are in the Court of Appeal tomorrow, ' for example, is not good news, conjuring up images of a night spent mastering some knotty matter, where either events, or the Judge, went horribly wrong, and now, at short notice, the responsibility of persuading a demanding tribunal to put the whole thing back on the rails rests on your rather tense shoulders.
The words 'I thought you might take this witness', can be a bit of shock, coming from your leader who, up until now, has given the impression that they will be, as it were, running the show.
If you are lucky, they will share their plan with you in plenty of time for you to prepare the cross examination, think about the killer question and cross reference all the documents you might refer to.
It would be more shocking still to be landed with the witness with no warning at all, as some veteran practitioners would have you believe their unhelpful leaders have done. But these tales are usually only told in lawyers' drinking dens, well into the second bottle, and it is doubtful whether this has actually ever happened.
Presented with the challenge of cross examining a witness recently, and playing a small part in a much larger drama, I sat down with the witness' statement, with our side's comments on it and the documents referred to and reminded myself of the object of cross examination. Contrary to popular belief, the idea is not to reduce the witness to tears or to a gibbering heap, although that sometimes happens. The idea is to persuade the witness to agree with your version of events, and if they won't, to show that their version is at least unreliable, probably wrong or even a tissue of lies. How you do this is, of course, a trade secret, but here are some tips.
The 'killer question'. It is a good tactic to start with a question that goes to the heart of the matter and puts the witness into something of a cleft stick. If the witness denies throwing a punch, for example, you could ask: 'Are you pugnacious?' If they said yes, you would be half way there. If they said no you could produce, with a flourish, details of their previous convictions for assault.
The 'trick question'. The trick question has nothing to do with the case but unsettles the witness and is sometimes used with experts. An expert giving evidence on concrete, for example, could be asked whether they had read the rather bulky volume brandished by the advocate who describes it as the 'the latest government guidelines on the use of concrete in the built environment'. The expert admits not having read it.
The advocate expresses surprise, puts the book to one side and continues with more predictable questions. At unexpected moments, however, the advocate discreetly consults the text as if checking the expert's answers against the contents. The expert becomes increasingly uneasy about what they perceive to be a highly relevant work which they have somehow overlooked, little realising that it is nothing of the sort and has simply been invented by the advocate for the purposes of the cross examination.
The 'easy question'. Even easy questions can yield surprising results. When defending the quality and construction of a conservatory built on the south coast, I asked the claimant's expert whether the garden room had done rather well to withstand the storms of the late 1980s. The witness replied frankly that they could not say, because they were not an expert on conservatories.
My witness was a site manager who was said to have organised the works in a bizarre and erratic fashion. Surrounded by an array of charts demonstrating the sequence of works and armed with various coloured markers with which to crack the code, I was pondering the killer question, when I heard those words which really are music to the ears of a hard pressed barrister: 'The case has settled. '