In the latest instalment of a continuing series, the Solicitors Association of Higher Court Advocates offers advice on the issues that face solicitor-advocates


Q Can you give me any guidance about preparing cross-examination of witnesses?



A Cross-examination is the part of advocacy that usually worries advocates the most. It is seen as something almost mystical, where the right answers appear by an uncanny combination of luck and magic. They rarely do.



In fact, it is a skill and, like any other skill, you can acquire it and become good at it with practice. The basic principles are not difficult. Cross-examination requires a tactical appreciation of the case and an understanding of the techniques for it to be effective. Getting both right at the same time marks out the cross-examiner who is in control. It is the most challenging of the skills that an advocate has to develop.



Be absolutely clear as to your case theory. It is essential that you know how to form a case theory. You cannot begin even to prepare for cross-examination unless you have a focus as to why your client will win. This takes the dedication and tenacity to do the work beforehand to a level that is accomplished. Your cross-examination will be aimed at establishing that theory in the mind of the person you are trying to persuade, namely the judge (and maybe jury).



With that in mind, your case analysis should tell you exactly which pieces of your opponent's evidence you need to challenge or explore.



If the witness has given evidence on a matter that you materially dispute, you must challenge the witness on that piece of evidence in order for the dispute over that evidence to be raised with the court in your closing speech.



A theory of a case is the cogent statement of an advocate's position that justifies the result that is sought. William Twining, the renowned professor of jurisprudence, described it as 'an explanation, on the evidence available, logically showing why your client will win'.



A successful case theory must be consistent with both the law and the facts. Thus a case theory will be a mix of fact and law. The theory must be more than a general hypothesis. Regard it instead as an extremely concise closing argument.



Q What are the main reasons for cross-examination?



A Firstly, to elicit information from the witness that supports your case. Secondly, to attack the credibility of the opponent's case. In many of the old tomes on cross-examination, the third reason was to destroy the opposition. This rarely happens. Stick to the facts and prepare well for better technique. Remember the maxim, 'If you know it, tell it'.



The form of questioning here has to be leading. The witness is invited to answer with merely yes or no.



Every advocate knows the thrill of control. To be an effective advocate, you must always have that control. Do not give the witness a second bite at the cherry. Do not allow them to improve on their evidence.



Suppose there is a dispute as to where a witness was at a particular time. You could ask a non-leading, open question - 'Where were you at 10.30am on 1 February?' You have no control over the witness's reply.



Instead, decide what it is you want the witness to say and put that in the form of a question. For instance: 'At 10.30am on 1 February, you were at 13 Acacia Avenue, weren't you?' Even if the witness disagrees, the dispute will be kept short and you have not given the witness the chance to go outside the limited area that you have chosen.



At first, asking leading questions can sound strange but, with practice, it becomes more comfortable. You will get to the stage where you can keep complete control of what you want to deal with, and when and how.



Notice that using leading questions means that the court hears more from the advocate than it does from the witness. You should not waste this opportunity to choose the most suitable word or phrase to put in your questions, at the same time deciding on which word or words you want to place emphasis.



Experienced advocates may well mix and match leading and closed questions, but where the cross-examination really matters you will usually hear good advocates concentrating on tight leading questions. You have the chance of being effective by focus.

You must know what your objectives are to create the right climate for questions. Unless you know what you need to get out of a witness, there is no use in starting the first question. Direct confrontation at the start rebounds if that is your opening gambit. The reasonable advocate often gets further.



Your job as a cross-examiner is to put your case and challenge the opposition. Put each logical proposition to the witness before putting your own conclusion to the witness. The idea behind this approach is that the witness will either have to agree with your conclusion or deny it in circumstances that the court simply does not believe. Therefore, it is important that you do not put your conclusion in a way that enables the witness to explain or comment.



You might decide that the witness simply will not change his mind. In that case, you must still put your client's case to the witness to give the witness a formal opportunity to comment on it. If you do not, then you will not be able to deal with that matter in your closing speech. By leading, at least you will get over the denials quickly.



Your cross-examination is not confined to matters in the witness's examination-in-chief. You can and should cross-examine on any matter that is either relevant to the facts of the case or to the witness's credit, or both.



In all circumstances, avoid open questions in cross-examination. In particular, resist the temptation to attempt to destroy the witness completely. Every advocate has fallen foul of the question too far. It happens when the cross-examination has put the witness in a position from which the witness cannot apparently escape. With a fine flourish, the advocate says: 'So just tell us how or why this could possibly have happened.' And the witness does just that.

If the witness is in a hole, do not hand them a ladder. Do not bully the witness. You can insist on a yes/no answer if you have asked a genuine yes/no question. It is bullying to stop a witness from giving an explanation when your question has called for one. You should not have asked that question.





Remember, you are bound by a code. The advocate should know rule 21 of the Guide to the Professional Conduct of Solicitors. Everyone should be treated with courtesy and respect. However, it is not bullying a witness to repeat a question that either the witness has refused to answer or to which he has given an answer to a different question.



This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). For details of SAHCA, membership enquiries or advocacy questions, please contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, e-mail: hilary@hradmin.co.uk