22 Jun 2018
On 7 June 2018, the London & South East YMG hosted its first seminar of 2018 provocatively entitled “The Art of Cross-Examination: How to Destroy a Witness on the Stand”. The seminar was generously hosted by Hardwicke Chambers.
Mandy Lee (Chair of the YMG and Co-Chair of the London & SE YMG) introduced the event and introduced the speakers, barristers Frederico Singarajah and Charles Raffin of Hardwicke Chambers. She noted that there had been a degree of controversy regarding the title of the event, however assured attendees that no witnesses were harmed in the making of the seminar before handing the podium to Charles Raffin.
Charles began by offering “Cross-Examination 101”, a helpful summary of general cross-examination advice to assist advocates when preparing and conducting cross-examination in international arbitration proceedings.
In relation to fact witnesses, Charles discussed the main principles, utility and risks involved in cross-examining a witness of fact. He noted that cross-examination presents many opportunities to corroborate and support your client’s case. It is an opportunity to undermine the credibility of an adverse witness and facilitates the alteration of the Tribunal’s perception of your opponent’s evidence.
Charles highlighted that in the ideal situation, cross-examination would be dull and uneventful as the advocate will have extracted all the information that is required from the witness to support their case or to undermine that of their opponent. This was caveated with a warning about the “danger zone”. The “danger zone” represents the concern that for the duration of cross-examination, an advocate must deal with a living breathing person who cannot be controlled and whose reaction to cross-examination cannot be predicted. Ultimately, the less time spent in the danger zone, the better. With this in mind, the first question to address when beginning to prepare cross-examination is fundamental: do you even need to cross-examine this witness? What can you realistically get from the witness which will help your case? There is no point cross-examining a witness for the sake of it.
Charles identified two key stages in the preparation and execution of any cross-examination for both fact witnesses and expert witnesses namely: (1) planning; and (2) running the cross-examination (the assault).
Stage 1: Planning
Charles emphasised the single most important step in any cross-examination: preparation. The five Ps “proper planning prevents poor performance” are key to any successful cross- examination.
When cross-examining fact witnesses, there are several critical questions: do I need to cross-examine this particular witness at all? Will the cross-examination only improve your opponent’s case? Is anything not covered in a statement that is relevant and needs to be further investigated?
Charles also touched upon the relevant preparation for a cross-examination in an English context, where counsel will have to consider whether they must adopt the traditional English approach, which requires an advocate to “put the case to the witness”. It is important to raise this issue with the Tribunal in advance in order to determine the approach to be adopted. An advocate should review cross-examination from this perspective at an early stage, as this will inform you of your opportunities and the approach you may need to take.
Another useful tip which Charles advocated was to always engage your client and the witness in your preparation. He noted that the legal team may wish to instinctively move forward with the preparation of cross-examination as quickly and as cost effectively as possible, without engaging the client. However, this approach may mean you miss the opportunity to gain key insight from the witness or client which may prove invaluable to the quality and focus of your cross-examination.
Charles distinguished the methods of preparing to cross-examine an expert witness. As a starting point, he encouraged early instruction and engagement with your own expert witness in order to draw upon their expertise to assist you in your preparation of the cross-examination. Charles noted when dealing with expert witnesses that it is very important to never be proud. Ask experts to explain issues to you as they would a child. The expert needs to be able to articulate the issue for you and the Tribunal in a digestible manner. Charles cautioned against the misconception that working with an expert witness in this manner is lazy advocacy. In fact, he demonstrated that discussing the issues with your expert helps distill complicated subject matters in order to assist in cross-examination preparation.
A key distinction when examining an expert is the need to be able to analyse the expert’s CV in order to identify possible “guns for hire” or a “professional witness”. These are experts who will ardently advocate their client’s position rather than providing a considered expert opinion.
Overall, Charles endorsed that one of the greatest weapons in your arsenal for cross-examining a factual or expert witness is a clear concise chronology which is supported by and cross referenced to key documents.
Stage 2: The Assault
Despite the title of stage two, Charles admitted that he always follows the sage advice of the experienced advocate Iain Morley QC, who stated that cross-examination is a “raid, not a siege”, i.e. get in and get out. His top tip for the actual cross-examination was to begin with the uncontroversial issues first, before moving onto the difficult questions later, even if it means deviating from the chronological order of the events.
In relation to fact witnesses, Charles laid down some basic rules. First, never ask a question to which you do not know the answer. Second, ask leading questions; there are ways to shape a question to narrow down the opportunity for a witness to give a meandering, unhelpful answer.
Third, avoid asking open ended questions: this will only encourage the witness to give lengthy confusing answers that ultimately do not answer the question that was posed. More importantly, you risk losing control of the witness.
In comparison, expert witnesses are called to provide an opinion on evidence. Their purpose is to assist the Tribunal where the Tribunal do not relevant high-level experience.
A guiding principle of cross-examining an expert witness is to avoid simply asking them to comment on your expert’s differing view. This hands them an opportunity to simply grandstand. Instead, follow a logical sequence, forcing them to correctly and logically explain their expert view.
It is important to recognise that expert witnesses are not used to having their positions challenged and so are often reluctant to back down from their position. If there is a glaring error which they have compounded in their report, it is often easier to offer them a graceful way to back down from their position by rephrasing the line of questioning. This is preferable, as it offers them an opportunity to back away from their written report without having to admit outright that they missed a step or continued to compound an error.
Charles’s final advice applies to the overall course and conduct of the cross-examination: above all, be polite and courteous. This is the best practice to adopt, as the Tribunal will not be impressed by a rude and impolite cross-examination.
After Charles’ comprehensive and insightful introduction, he handed the floor to Frederico, Mandy and Tope Adeyemi (Committee Member, London & SE YMG) for the practical demonstration, in which Frederico acted as counsel cross-examining fact witness ‘Gordon Gekko’, in arbitral proceedings pursuant to the LCIA Rules conducted before sole arbitrator Tope Adeyemi.
Frederico introduced the factual scenario, which was based on the well-known film ‘Wall Street’ and its sequel ‘Wall Street: Money Never Sleeps’. Attendees were invited to read through Mr Gekko’s prepared witness statement and exhibit, which introduced issues that arose in a piece of real-life litigation. Frederico invited the attendees to apply Charles’ advice on cross-examination and sought suggested first questions to ask Mr Gekko from the attendees. Attendees had the opportunity to have a go at cross-examining Mr Gekko themselves, asking several questions throughout the session and sharing their insights and experiences. A lively interactive discussion followed.
Frederico concluded the discussion by providing a demonstration of the way in which he would have conducted the cross-examination, putting the guidance offered by Charles into practice in order to obtain the answers from Mr Gekko that would assist his client when it came time to make closing submissions. Charles served as Mr Gekko’s counsel.
Mandy closed the session by offering a note of thanks to the speakers and Hardwicke Chambers, the seminar was followed by a reception for the speakers and attendees, generously hosted by Hardwicke Chambers.
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