Cross-examination is considered to be the most effective way of testing the accuracy of a witnesses’ testimony. It is said to be the best tool for challenging evidence to ascertain the truth. It is often referred to as an “art” or an “intuitive skill” that is the most difficult of all lawyering skills to master. Cross-examination is generally undertaken by barristers. However, increasingly, solicitors may need to cross-examine. For example, a client may lack the finances to brief a barrister for a hearing and the matter may not be overly complex. Thorough preparation is the first step to gaining confidence. Over time, and with practice, practitioners will become confident and skilled cross-examiners.
Prior to preparing cross-examination, practitioners must research and understand the rules of evidence and the procedural rules that apply in their jurisdiction. Rules of evidence are contained in both statute and common law. Evidence itself is a large area of law. A good start is familiarity with legislation in the relevant jurisdiction. In addition, each jurisdiction applies specific civil and criminal procedural rules. In addition, practitioners need to be aware of principles derived from case law that apply to the admissibility of evidence and cross-examination. One of the most important rules is the rule in Browne v Dunn. Breaching the rule can have severe consequences.
Practitioners must remember that their duty to the client is second to the paramount duty to the administration of justice and to the court. This means that cross-examination should only be used to test the evidence to advance the client’s case. This should be done with vigour and determination. It should not be exploited for improper purposes. To achieve this, the practitioner must remember the purpose of cross-examination. In addition, thorough and meticulous preparation is the key for effective cross-examination.
Some well-known tips for cross-examination include:
- Ask short, leading questions;
- Use plain words;
- Use one issue per question;
- Do not ask a question you do not know the answer to;
- Know when to stop;
- Consider the tone used;
- Be familiar with rules pertaining to expert witnesses;
- Be familiar with rules pertaining to cross-examining children, vulnerable and special witnesses; and
- Be familiar with grounds for objections.
The evidence adduced in cross-examination either helps the client’s case, or harms it. The way cross-examination is conducted plays a large part in this outcome. Consequently, preparation for cross-examination, the technique followed, and the style adopted, must be given very careful consideration. By adopting recommendations given by experienced counsel, and with practice, practitioners will find the technique and style that they feel most comfortable with in representing their clients with vigour and determination. Thus, they will master the art of cross-examination, and ultimately, the art of persuasion.
How I can help
Having practiced as a solicitor prior to becoming a barrister I understand the challenges that solicitors face. Busy practitioners are under pressure to meet client and firm expectations. Managing a high number of complex files can be overwhelming.
I can assist you by advising you and your client on their prospects of success, the evidence you will need, by drafting or settling your material, and by appearing in court with you and your client. If you need assistance with any of these matters please contact me on 0466 547 787 or firstname.lastname@example.org.
This blog is a short summary of my paper “Cross-examination” available on the “Speaker and Sessional Academic” page.