Evidence in chief – what you need to know
38. With the rise of written statements and affidavits filed in advance of a hearing the ability to undergo evidence in chief has become something of a lost art. It is however an art which is useful given that often in shorter cases courts are resorting to oral evidence only, particularly for reasons of expense and time.
39. Before dealing further with questions of oral evidence, advocates should be alive to written statements that are not in the witness’ own words. Often one sees witness statements which although purportedly made by a cleaner or truck driver, are clearly in the language of the lawyer. Often one sees witness statements in the same case where large slabs of evidence for two or three witnesses are in exactly the same words. Such affidavits and witness statements are easy pickings for your opponent: and the effect of a witness’ evidence is greatly diminished by their admission that the statement was written by “the lawyer” and they just signed it because it sounded right. Even worse is the trouble caused by two witnesses, neither of whom wishes to be caught out, who say that the passages, identical in both witness statements, are in their own words. Inevitably, there is a concession that that is not so when they are shown the other affidavit or witness statement. Alternatively, in final submissions it is difficult to rebut the suggestion that one or both of those persons were lying. Obviously, such matters significantly affect the credit of a witness.
40. In short, when witnesses sign affidavits and witness statements make sure they are in their own words, and use the type of language and phraseology that they use, and, importantly, used at the time (so far as they can recall it). A mine worker on a picket line is more likely to say “I told the fucking scab to piss off, and pointed him in the right direction” than “I forcefully informed Mr X that I did not want him in the vicinity of the picket line, and gesticulated accordingly.”
41. With oral evidence-in-chief there are essential starting words for your questions. Generally, they are:
- what?;
- when?;
- who?;
- where?; and
- how?
42. They are essential words in evidence in chief because generally, except for undisputed or uncontroversial matters, you cannot lead your witnesses in evidence-in-chief.
43. Remember to qualify your witness. When a witness says in evidence in chief that he was surprised that Mr X was not in the tea room at 7.30am, it is important that the Court know that the witness is the janitor, that he has followed the same activity schedule in stocking the tea room and refreshing the bathroom towels for the last 20 years, and that this is the first time in Mr X’s four years with the company that he has not been in the tea room making his morning cup of tea at 7.30am. Make sure that you let the Court know that your witness has relevant expertise, and, therefore, understands what might have been put to them in the course of the events the subject of the dispute. Chief executive officers were not all born in suits brandishing a Harvard MBA. Many were accountants, mining engineers or human resource professionals, in a previous life (some might even have been lawyers or policemen or mechanics), and often their expertise, and qualifications, might be relevant to their understanding of the facts of a dispute.
44. When you have a witness in the witness box make sure that they are comfortable. Set the scene by asking the obvious questions of name, address or business address, their qualifications, and experience. Once you get into the subject matter, make sure that you indicate where you are going:
- “If I can now turn to the events of 1 January 2012” or
- “I want to now deal with the corporate structure of the company” or
- “I now need you to assist His Honour with an understanding of the conveyor belt mechanism.”
Not only does this tell the witness where the evidence is headed (without leading them as to factual matters), but it also helps the judge.
45. In evidence-in-chief use the basic tools of the trade to get the story out. For example:
- “Where were you at [time] on [date]?”
- “What did you see there?”
- “What happened then?”
- “Did anyone speak?”
- “Who spoke?”
- “What did they say?”
- “Did anyone else speak?”
- “What did that person say?”
- “Did that person do what he said he would do?”
- “Did you see what he did?”
- “Can you describe how he did it?
- “How long did it take for these events to occur?”
- “Did you do anything in response to these events?”
- “And did the police arrive?”
- “At what time?”
46. Short, sharp, simple questions in order to get the narrative out. Make sure that you get the story out before you start submitting plans, photos and documents. In the above example, where it is clear that the witness has phoned the police, tender her phone records at the conclusion of this evidence. Likewise, if it necessary to submit a plan of the vicinity in which these events occurred, submit that plan after you have got the witness to describe the area concerned. Similarly, if the witness took a photo or photos of what occurred, or the aftermath of what occurred, tender those photos after the story has been put. For short evidence it can be done at the conclusion of the evidence, for longer evidence it may need to be done at the end of each part of the evidence, assuming it breaks into some kind of logical sequence or pattern. The reason for doing this is that you do not want to interrupt the flow of a witness’ story. You can always get the witness to then point out the salient features of the photos or plans.
47. Preparation is generally essential for cross-examination of witnesses, even in short matters. So:
- be prepared;
- know your witnesses: ensure that you have read the witness statements beforehand, and determine those issues or topics upon which you seek to cross-examine;
- listen carefully to the evidence-in-chief, and do not cross-examine on evidence given which is favourable to you, and which you do not need to traverse. Likewise, if affidavit evidence is favourable, and there is no need to traverse it, don’t; and
- do not get bogged down in the papers while cross-examining. If necessary, extract and copy the relevant documents, or parts of documents, before each witness’ cross-examination. You need to keep up a rhythm in cross-examination, and not let the witness have time to fill in a pause by correcting, or trying to correct, evidence that they have given earlier. (The pause for dramatic effect where you have just obtained a damaging and unambiguous admission is an exception!).
48. The purposes of cross-examination are to be borne in mind. They are:
- to obtain or develop material favourable to your case, that is, that strengthens your case;
- to discredit the evidence of the other side which is unfavourable to your case;
- to discredit the witnesses who are unfavourable to your case; and
- importantly, to put contradictory evidence to the witnesses for the other side. If a matter is in issue, make sure you put it to the relevant witness.
49. Cross-examination is the firing of bullets with the intention to inflict damage. But how do you do it?
50. There are various modes of impeachment of witnesses. For example:
- by establishing that their facts are wrong, in part or whole;
- by establishing faulty memory;
- by prior inconsistent statement (a task made much easier by the advent of email, Facebook and Twitter);
- the establishment of bias or prejudice; and
- in appropriate cases, attacks on a witness’ character.
51. It is usually unnecessary to cross-examine crossly. You can be direct, persistent and ask hard questions, without doing it crossly.
52. It is usually better to try to develop favourable material first, before directly challenging a witness. A witness who feels comfortable with you is less likely to see you beginning to chip away at their story or to see the critical question coming.
53. If you have a witness who is patently truthful, and whose evidence you are unlikely to impeach, leave the witness alone.
54. Above all, in cross-examination, do not simply go over the evidence-in-chief. All that does is have the evidence-in-chief repeated twice and it reinforces its believability. Simply going over the evidence-in-chief also bores the court to tears. Focus on what you need to impeach and challenge that evidence.
55. If conflict or contradiction is already evident in the evidence-in-chief leave it alone: do not cross-examine on it, as all that you will do is give the witness an opportunity to amend or ameliorate the effect of their evidence. Often the best evidence for your case is evidence-in-chief from your opponent’s witnesses which conflicts or contradicts your opponent’s case, and which has been left untouched by cross-examination, and which can then be usefully used in submissions to impeach the other party’s case.
56. If you get a good answer in cross-examination leave it alone. Resist the temptation to ask the one extra question, as a witness will probably realise they have made a mistake and somehow qualify the answer that they have previously given.
57. For example:
“There have never been any complaints concerning Dr Y’s surgical skills? – No.”
“He was a good surgeon then? – Well, I’m not so sure about that.”
58. The latter answer gets picked up in re-examination. The witness is asked:
“You said you were not so sure that Dr Y was a good surgeon. Why is that?”,
and an answer is given which does not assist your case (eg, no complaints, but just an average surgeon, or no complaints, but many errors which have not been subject to complaint).
59. Do not ask a question without having a good reason to do so. If, for example you ask the question “Well, why did you do that?” you are likely to get a perfectly rational explanation damaging to your case. It is the type of question that ought not be asked unless you have iron clad evidence which establishes why the witness acted as he did, which can then be put to the witness if his explanation is false.
60. Ask short, directed questions in cross-examination, not long, general ones. For example:
“You saw Mr X in the mess?”
“You approached him?”
“Did he say ‘hello’ to you?”
“You called him ‘a sneaky bastard’?”
“Mr X said nothing in response to that?”
“You then called Mr X an ‘arsehole’?”
“Did Mr X then say ‘don’t call me that’?”
“Did you then say ‘I won’t’?”
“Instead you hit him didn’t you?”
“You hit him with a closed fist didn’t you?”
“You hit him on the nose?”
“And Mr X’s nose bled profusely didn’t it?”
“Do you recognise this work shirt with Mr X’s name on it?”
“Do you agree that the shirt has significant blood stains on the front of it?”
61. Compare that to:
“You saw Mr X in the mess on the day in question – what happened?”
The answer goes something like:
“I said ‘hello’, he was distracted and tripped on a chair leg, and fell flat on his nose on the floor.”
62. Immediately the generality of the question has allowed the witness being cross-examined to control the form of the answer, and to provide an alternative explanation as to why it is that Mr X’s shirt was covered in blood, and, more importantly, that he was not assaulted by the witness. The other difficulty is that in cross-examination you then have to unpick that story, and if it is Mr X’s word against the witness’ (the accused), and there were no other witnesses to the event, that can cause you problems.
63. If a witness says in evidence-in-chief that they do not recall something, and you have positive evidence which will be led to demonstrate what it is that they don’t recall, generally leave the issue alone. Not recalling something is quite different to positively denying that something happened, and if you have “put” the issue to the witness, who does not recall it, the court will generally prefer your witness’ positive evidence.
64. When cross-examining, make sure that you shut the gate. Try to leave no room for the witness to escape, either in re-examination, or by the leading of other evidence.
65. How do you close the gate? The following is an example in which one of the issues was whether or not the employee concerned ought to be reinstated. The employee concerned had written a letter to a very senior officer of the company by which he had been employed prior to his termination, and had written the letter just 13 days before a hearing in which he sought reinstatement. The cross-examination which follows was the final part of a lengthy cross-examination, and is directed to establishing that the working relationship between the terminated employee, and his former employer and former workmates, was so irretrievably broken down as to preclude an order for the terminated employee’s reinstatement. The terms of the letter are evident from the terms of the cross-examination which follows.
“How many times in that letter do you accuse the company of being hypocrites, or of hypocrisy? — Quite a few times, I believe, in there.
And you still believe that the company is a hypocritical organisation? — I think they were getting better now.
Do you still believe they’re a hypocritical organisation? — to a certain extent, yes.
And the people that you believe are hypocrites are still with it? — I think they’re – they’re going to be better.
Are the people that you believe are hypocrites as at 13 days ago still with it? — I – yes.
Do you enjoy working with hypocrites? — No, I don’t.
Do you enjoy working with liars? — No.
Do you enjoy working with people who are arrogant? — Not particularly, no.
Do you enjoy working with people who are vindictive? — No, I don’t.
Do you enjoy working with vindictive pricks? — No, I don’t.
Do you enjoy working with fucking lying dogs? — No, I don’t.
Would you understand why people against whom those allegations had been made might not want to work with you either? — I do understand it, yes.
Do you understand why they might say they have lost all trust and confidence in you? — I can understand, yes.
And particularly when those allegations are made, by and large, on the basis of what you have heard in the pub? — This is right.”
66. And that is where the cross-examination finished. And, in those circumstances, there could be no doubt that it was wholly impracticable to reinstate the terminated employee concerned given what he had said about his former employer and his former workmates in the letter just 13 days before the hearing.
67. Start and finish your cross-examination on a good point. Never sit down at a disadvantage, for example on a disallowed objection or an answer adverse to your case which you were obviously not expecting. Just occasionally the theatre and psychology of a cross-examination leaves an impression on the judge! Final impressions can be important.
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