The Seven Deadly Sins of Cross Examination. Steve Courtney Sunshine Coast Barristers Chambers

Transcription

1 The Seven Deadly Sins of Cross Examination Steve Courtney Sunshine Coast Barristers Chambers

2 The Importance of Competent Cross Examination for the Lawyer You forget your wins and remember your losses. (Chester Porter QC)

3 The Importance of Competent Cross Examination for the Client It is difficult for any [person], however wise or eloquent, to speak for himself [or herself], when fortune, reputation, happiness, life itself, are in jeopardy and rest on the decision of strangers, sworn before God to find an impartial verdict on the evidence brought before them. Hence has arisen the honourable and necessary profession of the advocate; it is indeed a high and responsible calling; for into [the advocate s] keeping are entrusted the dearest interests of other [people]. [The advocate s] responsibility is wider in scope than the physicians, and more direct and individual than that of a statesman; [the advocate] must be something of an actor; not indeed playing a well earned part before painted scenery, but fighting real battles on other [people s] behalf in which in any moment surprise may render all rehearsal and preparation futile. (Edward Marjoribanks For the Defence The life of Sir Edward Marshall Hall KC Quote lifted from Winning Advocacy Challenges and Techniques by Justice Henry. Delivered in Cairns on 9 August Reproduced in Hearsay, volume 62, September 2013.)

4 Sloth - Failure to Prepare a) Failing to prepare means that your appearance in court is likely to be personally embarrassing and a waste of the client s time & money. A poor advocate is likely to win when the case is well prepared. A brilliant advocate is likely to lose a poorly prepared case. b) Preparation of cross examination cannot be conducted in isolation. Your case plan must be the touchstone. The evidence you hope to elicit in your cross examination must always have relevance to what you intend to say to the court. c) Preparation for cross examination is not just reading the brief. It involves digging deeper. It can include things such as further conferences, issuing of subpoenas, views and so on. I find it helpful to ask the client about the witness.

5 Sloth - Failure to Prepare d) Once prepared what you have in front of you is a matter for you. However you decide to set up your bar table you need to be organised. My preferences is for: Notes assembled in the order of the topics I want to cover. A clear exhibit list handy. Copies of any exhibits handy that are relevant to the witness. Have any aids ready. Prior statements of the witness (in whatever form they may take) handy, highlighted and tabbed.

6 Greed and Gluttony Asking too many questions or even asking any questions at all. a) Do you really need to cross examine? It may be that once you consider the affidavit or have listened to the witness s evidence in chief there is little to gain but a lot lose by cross examining. Relevant considerations include the importance of the evidence to your case plan and whether the witness is likely to be hostile to your cause. If you do not intend to cross examine a witness ensure you tell your client why. b) Once having made the decision to cross examine keep it short. Do not give the witness an opportunity to give their evidence in chief again. Keep your questions tight. If the witness does not answer, ask again. Only cross examine on topics that are relevant to your case plan. Do not give the witness an opportunity to explain their evidence unless you are confident there is no reasonable explanation. Do not put to the witness what you intend to submit to the court. Once you have what you want sit down.

7 Wrath Losing your temper or taking a free kick. a) Do not lose your temper. No good comes of it. At best you will annoy the court. At worst you will lose your focus on the task at hand. b) Avoid the temptation to attack a soft target. On occasions a witness will, for whatever reason, perform poorly. Cross examination designed to only humiliate a witness serves no forensic purpose. It reflects badly on the advocate. It may cause the court to feel sympathy for the witness.

8 Pride Not sometimes letting the witness think they have won, not adjusting your cross examination when the witness is in fact winning and not seeking help from the client or colleagues. a) Let the witness think they have won. On occasions a witness will give an answer the witness thinks is pure genius. You know it is not. Move on. b) If cross examination is going badly adjust and/or get out. Cross examination does not always go well. Sometimes the facts are against you. Sometimes the witness is smarter than you. Sometimes you have been slothful in your preparation. Adjust your cross examination to suit. That may involve moving on to another topic or winding up. c) You do not always know better. Occasionally you get an insight into the thinking of the tribunal of fact. A Magistrate may ask questions or a jury may send a note. If it is of interest to the tribunal it is important. Cross examine on the issue even it was not one of your intended topics. d) Seek help. Others, such as clients, may have a deeper understanding of the facts and background of the case. Others may be more experienced cross examiners. Others may be better cross examiners.

9 Lust and Envy Conducting cross examination to impress the client or copying another s cross examination style. (a)it is your cross examination. Always keep the client informed of how you intend to conduct the cross examination. They usually understand. If they do not avoid the trap of cross examining on topics and in a manner purely to keep the client happy. (b)be yourself. We have different personalities and backgrounds. Do not attempt to be something you are not when cross examining.

10 Other Thoughts a) 10 Commandments of Cross Examination Irving Younger (Attached). b) Justice Henry Winning Advocacy Challenges and Techniques. (Hearsay, Issue 64, September 2013.) c) Be physically comfortable. d) Always consider your audience. e) Do not fear to seek a short adjournment either before you cross examine or during it. f) Within reason do not be bullied by the court to conduct your cross examination in a particular way. g) Listen and pay attention. Be aware of the flow of the trial. h) Do not expect too much from your cross examination. Often the best you can hope for are inconsistencies and absurdities. i) Consider starting your cross examination on the last topic covered in evidence in chief.