THE GRIZZLY ART OF CROSS EXAMINATION 1: MY FIRST LESSON: STAY SILENT IF YOU CAN BEAR IT

This is it, I am learning about cross-examination. I have been practising for weeks.  I have  rehearsed my angry voice and my best bear roar. I will be a real bearister. Witnesses will quake when they hear my name. My roar will be heard across all the courts in the land.

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However EG brought me down to earth with a bump.

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EG points out  that I am less than 8 inches tall (7 inches I measured myself – I’m smaller than a white book).

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EG’s starting point for most things is to make me read – a lot. So I read “The Art of Cross-Examination” by Francis Wellman. EG likes the book so much he has two copies (a softback and an old hardback copy).

CROSSEXAMINATIONBOOK

Pah I thought. This is a book first written in 1903,before the internet. What can I learn from this, there only 476 pages.

THE FIRST LESSON – IF YOU DON’T HAVE TO DON’T

EG made me read Chapter 7 first. It is called “Silent Cross-Examination”.

“Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers – and alas! not only young ones – who seem to feel it is their duty to cross-examine every witness. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examination results in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case.”

EG then made me read the “Devil’s Advocate” by Iain Morley QC. Chapter XIII.

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In the chapter on cross-examination.

The general rule here is DON’T DO IT”

“Always start from the point of view: if I can avoid it I will”.

Then I had to read Keith Evans on the Golden Rules of Advocacy.

EvanspictureDONT CROSS EXAMINE AT ALL UNLESS YOU HAVE TO

It’s a great way of destroying the impact of a witness just to say, “No questions, my Lord”. You’ll know what a powerful effect this has when somebody does it to you. You’ve gone to all the trouble of getting the witness to court, you’ve done your best, and your opponent brushes it aside with, “No questions, my Lord”. The effect on the factfinder is real.

So EG says the first thing I have to learn is when not to ask any questions.  I find this very hard, but have been practising.

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This was a lot of reading. EG asked me if I preferred the hardback or paperback copy. I decided to test them out.

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The softback is definitely better.

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