X is for Cross Examinations

The classic definition of the cross-examination questioning technique is that a witness should be enticed to agree to a series of propositions, the last of which is fatal to his case. In real life, this very rarely happens.

The safest path in cross-examination can often be a slightly prosaic process of inviting agreement to key sentences in documents and correspondence to which there can be no possibility of disagreement. You may be stopped by a tribunal saying “well we can get all this from the documents”, but (if well executed) you are threading a narrative of the key events that will read in the transcript as the simple story you want to tell.

The key contrast to examination in chief is that you yourself want to be largely giving the evidence through the medium of the agreement or disagreement that you invite from the witness. Sometimes, however, (particularly with there having been no evidence in chief) it pays to depart from the classic closed questions and chance some open ones which may enable the tribunal to get a better feel of the witness and you to find your level with him.

It is important not to be fazed by the stickiness and lack of progress you may encounter particularly at the outset of your cross-examination. Cross-examination involves forming a relationship with the person on the stand, and you typically need to do some range-finding before you get comfortable with one another (perhaps deploying the technique of “mirroring”). Some witnesses prefer to be kept close to their witness statement and are unhappy to go off-piste with you; others are the reverse. Different approaches work better or worse with different witnesses, but typically spending some time getting the witness comfortable by having them explain who they are and what their background is to the tribunal allows them to become familiar with you and the process whilst they are reasonably confident that you are not going to be trying to throw any curved balls at them.

Always try to keep the witness and the tribunal oriented in a framework of time and space and context. “Now Mr Soandso, I would like you to talk to the tribunal about the evening when you met Mrs Howsyerfather at the Old Dog and Duck.”

On the rare occasions you succeed in extracting a devastating answer supporting your own case, try to resist the temptation to repeat the question and have the answer jump out of the bag again (see “Questions”).

As a penultimate series of questions it pays to take stock, by way of summary, of all the key areas of agreement you have succeeded in extracting from the witness. When you know you have a strong point with which the witness cannot disagree because you can use their own story to your advantage, repetition can be effective.

“So Mr Toad, when your car mounted the sidewalk, you say that it was travelling at thirty miles an hour or less?”

“Yes, that’s right”.

“And when the vehicle collided through the plate glass window and into the burger bar having mounted the sidewalk, you say it was still travelling at less than thirty miles an hour, is that right?”

“Yes it is”

“And so presumably this was still true when the vehicle emerged again into the car park via the opposite wall of the Burger bar?”

“well yes, of course”

“Tell me Mr Toad, how much more damage do you think might have be done had the car been travelling at more than thirty miles an hour ? - Poop, Poop”

On the odd occasion you may succeed in ending a cross-examination with a memorable forensic flourish, or at least you can plan to do so: my penultimate war story, serves to illustrate.

About three days before the start of what had promised to be a particularly dull merits hearing in which I was to represent the defendant US Corporation, the case suddenly acquired something amounting to a steroid enhanced new level of interest and forensic challenge when a witness statement landed on my desk, served by the other side, but signed by the lady who had been the chief executive officer of my own client company, and responsible for the team instructing me to pursue its defence.

The witness statement began by announcing frankly that the lady had just been dismissed in highly acrimonious circumstances, and that she was disavowing key aspects of the defence (which had been a somewhat sickly creature, even beforehand).

I had managed to navigate a rather delicate cross-examination of the acrimonious lady, somehow seeming to ship surprisingly little more water in the very leaky vessel of my case, and was well into cross-examining the owner of the claimant company ( we shall call him Mr Plumschtock) who had been the lead witness until he discovered his new star turn in the former Chief Exec (who we shall call Mrs Tiddlypush).

I was then informed that Plumschtock had allegedly offered to pay the salesman (who was one of my two witnesses) to give evidence to support Plumschtock’s case. I planned to finish my cross-examination of Plumschtock, by putting this allegation to him, anticipating that he would strenuously deny it, allowing me to finish my cross-examination saying “Well, Mr Plumschtock, I am sure there is one thing we can both agree about, which is that you certainly didn’t have to pay Mrs Tiddlypush a dime to come and give evidence for you, now did you ?” [ cue drumroll - Hell hath no fury etc. etc.].

Here is how it actually went.

Taylor: “Mr Plumschtock, Snodgrass tells me that you suggested to him that if he would come and give evidence for you he could charge you to stay at Claridges, but stay at the Holiday Inn: is that so?”

Plumschtock: “It’s possible.”

Taylor: (hesitating somewhat) “He tells me that you said if he liked he could fly economy and charge Concorde.”

Plumschtock: “Something along those lines, perhaps.”

Taylor: (stumbling amidst mounting doubt and disbelief) “Well I am sure we can agree, um er um... You didn’t have to pay anything to Mrs Tiddlypush though.... did you?”

Plumschtock: “Oh Yes I did!”

Taylor: “How much?”

Plumschtock: “Forty thousand dollars.”

Taylor: “With or without expenses?”

Plumschtock: “Without.”

So wretched were the merits of my case that we still lost resoundingly, which perhaps just goes to show that fact is sometimes a whole load stranger than fiction.