I will not pretend that cross-examination is either easy or easily practised. In a sense, you will only get better by doing it. It is the very heart of advocacy and there are a few golden rules.
I think the most important one is keep it tight
.That really has two meanings. Firstly, put your client’s case as shortly, clearly and concisely as possible and then leave it. Do not allow greater damage by giving a witness a further opportunity to expand by unnecessary questioning. But secondly, it means that, as far as possible, you should try to keep control of the witness whom you are cross-examining.
By that, I mean that as the questioner, you should be in the driving seat and by the precision of your questions, keep the witness confined to your chosen territory. That, of course, is easier said than done. All advocates at all stages will come across a witness who, for one reason or another, runs away with the cross-examination and seemingly scores points all the time. That is the reason whycross-examination should be tight. However you can control the danger of that to some extent bythe manner and the tone of your questioning.
That brings me to the second golden rule, expressed in the truism that the art of cross-examination is not the art of examining crossly.
It is a huge mistake to inject a degree of scorn or passion into your questions in the hope that that technique will fool your tribunal, be they judge or jury.
Rudeness never pays. Discourtesy should be avoided.
That is particularly true with distinguished medical witnesses. The days of savaging distinguished professional witnesses are almost over. But that does not mean that you should allow your cross-examination to degenerate into a discursive, aimless chat with the witness. Keep your temper and, to an extent, keep your distance.
The third rule, perhaps underpinning all the others, is that you must prepare your cross-examination meticulously. You need to think, so far as you can anticipate it, of the worst answer that the witness might give andhow you are going to follow up their answer.
You need to have a structure to any cross-examination, ideally one that advances your case.
Fundamental to your preparation is what I will call the bare minimum: the essential part of yourdefence, which must be clear by your questions. Sometimes that can be achieved at a very earlystage and then left in order to turn to more profitable and less controversial territory. Such a cross-examination may not appear to be a dramatic exercise at all, but will be no less effective. In other cases, you inch cautiously towards your ultimate goal. There I have in mind the cross-examination ofexpert witnesses, where putting a bald proposition too early can have devastating consequences.
The fourth rule is probably the best known. Never ask a question, it is said, to which you do not knowthe answer already.
Now I would qualify that rule, although this is not advice for the absolute beginner. Never ask a question unless you have a very good idea of what the answer is likely to be. In other words, there are times when you may feel that you can take a calculated risk. Perhaps the body language of the witness or a stray unexpected answer has provided a basis for you to take that risk. Perhaps the witness is not as hostile towards your client as you had feared. That said, the rule is a good one. Prosecuting or Defending, you are not there to take wild risks with your instructions on a have-a-go basis. You are there to put your client’s case clearly and escape with as little damage as possible.
Beyond those four rules, there is one indefinable matter which is very difficult to explain and which you will only appreciate after you have been cross-examining for a while – something in the air that you detect and can use. Sometimes you will sense a line of cross-examination that you had not
planned at all. And pursuing it carefully, suddenly the atmosphere changes in court. You have managed to pick out something that was worrying the judge or jury and by careful questions, you have introduced an important and new element.
Now the cynic might call it fishing successfully. I prefer to think of it as an increased sensitivity, which
comes in time and which, once you experience it, will give you a huge satisfaction if you harvest itsuccessfully.
So those are some of the basic principles. There is still a great deal to be said for buying old copies ofthe Notable British Trials series and reading them carefully to appreciate skilful cross-examination ofanother age. Or if you have the chance, go and see those advocates at the very top of their profession whom you have learnt are successful cross-examiners. Time well spent, I suggest.
© Nigel Pascoe QC 2013