I am so upset by last nights result (and hoarse from shouting obscenities at the Barcelona fans) that I am forced to do what lawyers HATE doing – giving some free advice. Set out below is a guide which might prove helpful should you ever find yourself being cross-examined:
“How to Bear Your Cross”
Your job and your lawyer’s job
1. When giving evidence your one job is to tell the truth. It is not your job to win the case. That is the lawyers’ job – they get paid for it, you do not.
2. Remember, because the lawyers will forget, that they are there to help you and not vice versa. If there are things you want to raise with them prior to the hearing, do so. Don’t wait to be asked.
3. The help that your lawyer is able to give you does not stretch to telling you what you should say. If your lawyer asks you about an aspect of your evidence and you respond by asking them what they would like you to say, your lawyer will become twitchy and start thinking of jail.
Your statement; your friend
4. In the run up to your tribunal case, your lawyer will want to waste your valuable time “taking instructionsâ€. You will be bombarded with draft witness statements that get in the way of doing the things that “really matterâ€. You will only truly appreciate how much it matters to have a properly prepared witness statement when you are sat being cross-questioned about its minutiae. In the meantime, take your lawyer’s word for it.
5. Early enthusiastic involvement in the preparation of your statement will ensure:
(1) Your story is straight long before it is subject to challenge;
(2) You have had a real opportunity to think about the events you are describing and your evidence is presented in a clear and logical fashion;
(3) You have had a chance to look through the documents referred to in your statement so that nothing takes you by surprise on the day;
(4) You can be sure that the words are your own and that your lawyer is not committing you to saying something that you don’t really mean; and
(5) Areas of difficulty or concern are identified at an early stage so that you are properly prepared to deal with them at the hearing.
6. Once your statement is prepared, the pair of you should spend time together getting to know one another. Read it and re-read it. Read it twice the night before the hearing and twice more before the hearing starts. This avoids two situations that commonly make witnesses look foolish and damage their credibility:
(1) The witness reads out the statement in a faltering fashion thereby indicating that the words on the page are unfamiliar to him. The Tribunal concludes that the words have been forced into the witness’ mouth by scheming underhand lawyers. The overall effect is like a forced confession at a Russian show trial; and
(2) Asked why he has said one thing in answer to a question and quite another in his statement, the witness answers “I don’t know why that’s in my statement – you’d better ask my solicitorâ€. The lawyer then repeatedly bumps his own forehead on the desk in front of him.
Pre-match nerves
Laugh in the face of danger / opposing Counsel
7. In every TV court drama there is a moment where the defence counsel stares a witness in the eye and says something like:
“It was you who killed your wife, wasn’t it Mr Stifflebeem?â€
Stifflebeem looks sweaty and fidgets, pauses for a moment and then says:
“Yes, yes, damn you, I did and I would have got away with it too if it hadn’t been for those meddling kidsâ€.
8. This does not happen in real life. Witnesses do not break down and confess. Irrefutable proof is not carried through the door of the court at the last moment by an unshaven private detective.
9. A witness who remains calm and sticks patiently to their evidence is very difficult for even a skilled cross-examiner to make headway with. Cross-examiners thrive on what you give them to work with.
10. You have a real advantage over the person asking you questions. Remember, you know what you are talking about. The person asking you questions is like a computer; he only has the information programmed into him by his client. He will know the documents and will know the contents of your statement well (which is why you should too), but his knowledge will only go so deep. He is living in fear that you will have a straightforward answer to his snide questions.
Too cocky by half
11. Very few witnesses find themselves transfixed by fear throughout cross-examination. There is nothing like being called a liar to really perk you up. The real trouble starts when a witness decides that maybe they can turn the tables and make the cross-examiner look stupid. I will return to this subject in greater detail below. For now, it is worth reminding yourself that you may not be as clever as you think you are and the cross-examiner may not be as stupid as he looks. Deciding to “take him on†is pretty well invariably a bad idea.
Hiding behind the lawyer
12. Witnesses very often ask for reassurance that their lawyer will “object†to any question that the witness would prefer not to answer. Generally-speaking your lawyer will be anxious to object as little as he can. Someone who objects whenever he thinks his client is looking uncomfortable:
(1) Communicates to tribunal that he has no faith in his own client; and
(2) Wears the tribunal’s patience through, so that well-founded objections get rejected along with the ill-founded ones.
How to give evidence effectively
13. It is very simple: do what the oath requires of you. Tell the truth, the whole truth and nothing but the truth.
Telling the truth
14. What this means in practice is only telling the Tribunal things you know for fact. Set out below are a number of examples of what can happen when a witness strays from the path of truth and righteousness.
The Infintesimal Possibility
15. One common cross-examiner’s trick is to ask you to speculate about whether it is “possible†that a particular event occurred. Contrary to what is commonly assumed one cannot refuse to answer a question merely because it is “hypotheticalâ€. The issues commonly considered Tribunals often involve the consideration of hypothetical matters.
16. All witnesses asked whether something is “possible†are struck with a bizarre generosity. They think to themselves “I suppose there is an infinitesimal possibility that it may have happenedâ€. However what they say aloud is “Yes, I suppose it is possibleâ€. A few moments later the witness finds that everyone is now working on the assumption that, rather than being a mere possibility, the event put to him actually happened. The simple way to avoid this is to actually let the tribunal know how likely the event was (e.g. “I suppose it is possible but exceptionally unlikelyâ€). Unless you tell the tribunal how likely you think something is they are left guessing.
Filling the gaps in your memory
17. You are asked about something. You can’t remember. You don’t want to sound stupid, so you cover up by telling the Tribunal what you assume must have happened. If you are going to do this, be explicit about it. It is perfectly acceptable to say “I do not recall whether I typed this minute immediately after the meeting, but I think it likely that I would have done as that is my usual practiceâ€. Resist the temptation simply to say: “I would have typed it up immediately†in the hope that no-one will notice that you can’t remember what actually happened. The phrase “would have†is heard so often in the tribunal that it amounts to an admission that you can’t remember. Be honest. The cross-examiner will otherwise force you to admit you don’t recall and you will look foolish for not having been honest immediately.
Creating gaps in your memory
18. Sometimes you may feel tempted to forget a particular matter. Honesty remains the best policy. Furthermore, with very serious matters, the Tribunal will simply not believe you when you tell them you can’t remember: “I do not recall whether I beat my colleague with a cricket bat, but I think it unlikely that I did as that is not my usual practiceâ€.
Mea culpa
19. One of the risks of lapsing into thinking that it is your job to win the case is that you become worried about ever admitting that you or your organisation were less than perfect in anything you did. For the most part Tribunal proceedings are about persuading the panel that you are a reasonable person who has acted in a reasonable manner throughout. Defending the indefensible will give your cross-examiner the chance to make you look unreasonable.
20. One sneaky trick favoured by cross-examiners is to ask you to say whether a hypothetical course of conduct would have been reasonable. What will be described to you will be eminently reasonable and you will agree that it is. Matters are left there. You then find that you are treated as if you have accepted that what you did was unreasonable; e.g.:
Cross-examiner: “Allowing him 28 days to prepare for the disciplinary hearing would have been a very reasonable thing to do, wouldn’t it?â€
Wrong answer: “Yes†[Cross-examiner grins deviously]
Right Answer: “Indeed it would have been, however, the 27 days I allowed him were perfectly adequate in my opinion†[Cross-examiner bursts into tears].
Telling the whole truth
Opening up the closed question
21. The most popular line of attack for a cross-examiner is the closed question. You will become wearily familiar with the phrase “It’s a yes or no answerâ€. You probably won’t agree.
22. The temptation when faced with an unreasonably restrictive question is not to answer it and to answer, instead, the question you think you should have been asked. That is not the best way to deal with it. You will appear evasive and unhelpful. This will not endear you to the Tribunal.
23. Better is a variation on the following theme:
“The answer is no, but that is not a complete answer. There are other things you have to know in order to be able to understand it.â€
If you say something along these lines one of two things will happen. Either the Tribunal will let you expand your answer there and then or else you will tip off your lawyer that there is something that he should take you back to in re-examination. Either way, the evil cross-examiner’s plans will be thwarted.
Passing the memory test
24. Another common attack is to pose an impossible memory test:
“This isn’t mentioned anywhere in the minutes is it?â€
The temptation is to avoid appearing as if you do not know what the documents say by agreeing with the proposition. Insist instead on being taken to the relevant document and being given an opportunity to read it. If you think that the relevant matter is dealt with in another document, but can’t remember which one, tell the tribunal that you think a relevant document exists and your lawyer will start looking for it.
Nothing but the truth
25. The way to put a song in a cross-examiner’s heart is to decide to try to take him on. There he sits, smugly criticising you about things he knows nothing about. What you wouldn’t give to wipe that smile of his face. He asks you a stupid question … now’s your chance!
26. Once you start fencing with your cross-examiner you will, momentarily, feel wonderful. How fantastic to get off the back foot and land a blow!
27. Unfortunately, you will come across as being deliberately difficult and evasive. Tribunals hate this sort of thing. Do not do it. Let the cross-examiner get worked up.
28. How can you tell when you are fencing? If you hear yourself asking the cross-examiner a question which is anything other than “Sorry can you repeat that?†you are probably getting, metaphorically, into an arm wrestling contest.
The cracked record
29. Finally, the least endearing trait in a witness is looking upon the questions asked as punctuation marks between opportunities to say the same thing over and over again. Answer the questions that you are asked and you cannot go far wrong. Leave the speechifying for the lawyers.
This too shall pass
30. Most witnesses end up enjoying cross-examination (no, really). The danger most frequently lies in over-enthusiasm. Even if you can’t abide it, it does not last forever. The calmer you stay, the more likely the cross-examiner is to think he’d rather move on and try his luck with the next witness.
