Whilst my advice yesterday on how to be a good witness contained instructions which are relatively easy to pick up, the craft of questioning a witness in a courtroom is much more complicated. Undoubtedly lots of practice is required to master it. It is truly an art. It cannot be taught, it has to be learnt. That said, if you are going to represent yourself in court, this post will explain the best approach to use. Having practiced as a barrister myself with a thousand or so trials under my belt, I have considerable knowledge of the skill. This is my explanation of the way barristers tackle cross-examination.
This advice applies to any court where the facts of the case are decided by specialist judges but comes with a very strong warning: avoid representing yourself in a jury trial. Recognising the best method of attacking a witness in front of a jury in your own trial is not something you are going to make a good stab at on your first attempt. Plainly, for the uninitiated, divining the minds of 12 strangers whilst concentrating on everything else is impossible! Put simply, you will be rubbish. That is why most people who defend themselves in serious criminal trials not only get convicted but usually become figures of much fun. Representing yourself in any criminal trial is a bad idea. Even an experienced barrister would not consider it because it is too difficult to properly divide up the roles of being both an advocate and a witness. Fighting a case requires a degree of objectivity beyond the wit of anyone actually involved in the case.
No matter how complicated or simple your case is, 90% of the work you do will be preparation. If you don’t prepare yourself thoroughly for the case you will arrive in court disarmed. You won’t have a strategy and won’t be ready to fight the case. Barristers are famous for being able to apparently pick up a case at a moment’s notice and head straight into the thick of it. They can do this because they have expert knowledge of law and have fought a multitude of similar cases already. By practice they carry a considerable body of case preparation in their heads.
The art of cross-examination requires considerable skill but that amounts to nothing without preparation. The questions you will have to ask witnesses in court must be born out of your case preparation. The actual words of the question are important but there isn’t a formula for how to actually ask each question. You can’t hear someone else ask a brilliant question and then just employ the same question in your own case. It doesn’t work like that. Any fool can teach a clever question but only an idiot will repeat it. Therefore, I’m not going to teach you specific questions. Instead I’m going to show you how to prepare yourself so that you ask the best questions for your case. You must begin your case preparation by analysing your case.
Every court case is concerned with disputes. There are two types: there are arguments about law and and arguments about fact. You must analyse your case according to both. Start by writing out two lists, one for each. The legal list will contain all the legal issues which are being claimed in the case. All of them! If you are defending a case, your legal issue list will contain all the legal complaints made against you. If you are making legal claims yourself, all the legal issues which you say are in your favour will also be in this list. Many people’s cases will involve both claims and defences. Once you’ve written your legal issues list, take each one in turn and break it down into its component issues and create a more detailed list with them, using the main issues as sub-headings.
Obviously this requires knowledge of law. There’s no other way around it. If you are unsure of the law, you are unsure of your case. Still want to do this? I’ll continue…
Your second list will contain all the factual issues in the case. Most people find this distinction between legal and factual issues very difficult to fathom. Imagine that someone has taken you to court because they say you owe them money. Let’s say that the claim they have brought against you rests on them saying that you engaged in a contract to buy goods which they delivered but which you did not pay the agreed amount for. For the sake of this example, your defence is that you did pay the full amount as agreed but that this is less than what is being claimed in court. Using this example to illustrate the first stage of case analysis, you would make two lists:
|Legal Issues||Factual Issues|
|Was there a breach of contract?||What were the terms of the contract?|
|What was the agreed price?|
|How much was paid?|
The above example is simply illustrative of the immediate point – this is not necessarily the best case analysis for every money claim. Each case must be analysed on its own law and facts. As it says at the top of my blog, none of this is legal advice.
In my example, you are accepting that there was a contract between you and the claimant. If you had disputed the claim that you had been party to a contract, the list of legal issues would be longer. You do not need to trouble yourself with matters which are not in dispute. In this example, you have already been served with the claim issued against you and you have already entered your defence. These formal papers are called the pleadings in English and Welsh courts. Although you will have (hopefully) analysed the case when pleading it, now you are concentrating on how to win it by conducting a successful cross-examination. You’ll see that the factual issues are related to the legal issues. If your legal issue list contains something which isn’t covered by your factual issue list, you have gone wrong. That’s why you make two lists. You need to be very clear headed throughout this process. You don’t want to get to the end of your trial only to discover that you ignored an important legal issue.
Ideally, you want the claimant to agree with you! Therefore, you need to work out what you would like him to say in evidence. Whilst you may doubt that he will be co-operative in court, nevertheless you are working towards his agreement. You want to end up being able to make a closing speech quoting him agreeing with you. Failing that, you want to be able to show in your closing speech that you have put your case to your opponent properly. If you can’t do that, then you have not defended the case properly. If you haven’t challenged your opponent on a crucial issue, you have conceded it.
Therefore, using your list of factual admissions, you need to make another list of your opponent’s ideal admissions. These will probably colour the picture a little. Let’s imagine you come up with these:
|Ideal Admissions By The Claimant|
|I met you in a pub on 17th January 2011|
|We discussed a business proposal|
|I offered to sell you CDs in bulk|
|We negotiated over the price|
|I offered £3 per CD if you bought 1,000|
|You offered £2 per CD if you bought 1,000|
|I offered £2.50 per CD if you bought 2,000|
|You offered £2.25 per CD if you bought 1,500|
|I said, “Fair enough”|
|I raised my glass to you|
|You raised your glass to me|
|That was us agreeing your final offer|
|On 17th February 2011 I delivered 1,500 CDs to you|
|On 17th March 2011 you paid me £3,375|
|On 17th December 2011 I demanded a further £1,625|
|On 18th December 2011 you refused to pay|
These ideal admissions are set out chronologically. In most cases you will want to list them in time and date order because it generates a narrative which the listening judge (or anyone, for that matter) will most easily understand. However, in some cases there may be different factual matters in dispute which need to be treated as separate storylines with each being told chronologically. There’s no hard and fast rule about this. Use your own judgment.
You’ll notice that none of the ideal admissions above relate to the legal issue. All of them are admissions of fact. You don’t want to have any legal issues in this list because you will be questioning a witness to establish the facts. The legal issues in any case are argued about between whoever the advocates are and the judge but they do not form part of the evidence. Evidence is concerned with facts. Law is theoretical – it stands above and separate to the facts of any particular case.
Improvise Your Questions
Scripting your questions will lead you into trouble. It might seem like a great idea to sit up the night before a trial and work out the most dramatic questions you could imagine being asked by your favourite actor, imagining your opponent fumbling around at the witness stand as his case collapses around him. In reality what happens is that you tie yourself up instead. The problem lies in the fact that a script requires all the other ‘actors’ to be using a script also. Inevitably, the witness you cross-examine did not have sight of the script before hand and is very likely to say something which you did not prepare for. In other words, the script ignores the actual evidence. I’ve seen some junior barristers actually try this approach! I guess they skipped their advocacy classes. Perhaps they just thought they knew better. It’s hilarious watching someone plough on with an inappropriate script because they failed to recognise the impossibility of a witness’s answers differing from their instructions. Although I didn’t read them, I once noticed that my opponent had written out over 100 questions and was working his way through them without reference to the evidence they were producing. The judge asked him to change tack but he could not because all his case preparation was bent on his chosen narrative. Trust me, this approach simply does not work.
Scary as it may sound, you have to improvise your questions. That way, they are pertinent to the evidence already given and have immediacy. Frankly, when you are unfamiliar with courts it is frightening to fight a trial without knowing what you are going to say next. I didn’t say this was going to be easy! Nevertheless, this is not only the best approach, it is the only successful one. Hang on in here with me and I’ll illuminate the framework within which you improvise.
Closed and Open Questions
A closed question is one to which there is a very limited range of available answers. Classically, any question which can only be asked “yes” or “no”, is the most closed. An open question is one to which the range of available answers is very wide. The most open question can be answered in the most unpredictable manner. Therefore, in cross-examination you do not want to ask any open questions! This considerably narrows the amount of space you have to improvise in and consequently simplifies your task.
Only Ask A Question To Which You Already Know The Answer
When cross-examining a witness, you want to be able to control their evidence. You want them to actually say, out loud, the statements in your Ideal Admissions list. Your aim is to control, as much as possible, what they say. If you ask them a question to which you do not know the answer, you are asking for trouble. You are inviting them to take control of their own evidence. You cross-examine a witness to win your case not to make general enquiries.
You must know not the only the answer which their case predicts they will give to the question but also the answer to which your case requires them to give to the question. Often, these answers will be different. However, they will both be definite answers. You must have an exacting knowledge of both parties cases. You cannot allow yourself to be surprised by anything which is said in court. It can take years to learn how to instantly ride over the shock of an unpredictable but damning answer. All barristers have experience of this, assuming they stay in practice for any length of time. If you are a courtroom newbie, it may not be a mere unsettling moment, it may be catastrophic to your ability to continue with your case intact.
Questions, Not Speeches
You have to ask questions. It is far too easy to assume that when you are cross-examining anything you say will be assumed to be a question. Consequently many litigants in person drift into making little speeches. When the litigant in person finishes talking, the witness is left hanging, unsure what the question actually. Often no question actually gets asked at all. Sometimes the witness starts just talking themselves but if they followed my advice on how to be a good witness, they would stay silent in the absence of a question.
If your life doesn’t involve you demanding answers from people in formal settings, you may find it very hard to actually frame your cross-examination in questions. It sounds easy, doesn’t it? Actually, it’s not. I found it hard when I started out, cutting my teeth with the Free Representation Unit, at the tail end of the last century. Most people find it hard. You won’t realise how hard it can be until you’re doing it. Therefore, it’s useful to have a trick up your sleeve, which converts everything you say into a question.
One trick you could employ is to begin each question with the words, “Would you agree that…”. This immediately converts everything you say into a question! It does become tiresome to listen to a cross-examination which repeats this phrase over and over again but if you struggle with phraseology, this technique will at least guarantee that you are cross-examining rather than speech making.
Separate Your Questions
You must ask only one question at a time. If you ask more than one question at a time, no-one can be sure which is being answered. A good judge will step in and ask you to separate your questions. This is usually unnerving.
Note The Answers
Knowing the answers given to your questions is critical to your success. You will need to rely on them at the end of the trial when making your closing speech. Before you get there, you will need to be sure of what the witness has already said before you ask the next question. You will not be able to delay the trial to laboriously write down every answer but you must take a note of the important ones, record admissions and record key phrases.
Think of the witness as inhabiting a wide open space. He stands in the middle of it and all around him are unknown lands. Your job is to box him into a defined space, which is territory owned by you. This is the sexy part of cross-examination, the bit that gets shown on the telly. You’ve thoroughly prepared your case. You know the positions of the parties on all the relevant issues. You’ve begun your cross-examination of a witness. Now you are ready to box him in!
The box is constructed from a number of walls. Each witness’s Ideal Admissions are the walls. You must build these walls. The plan is to keep the witness on the wrong side of the walls you build so that when you are finished, he is inside the box. The smaller the box, the more successful you have been. If the box is large and he has plenty of wriggle room, you have not done a very good job. If he’s outside the box, pointing at the flaws in your crappy construction and laughing his head off at you, you have lost control of him.
Let’s go back to our example. Your opponent is the only witness in the case and he is also the claimant. That keeps things simple. Redraft your Ideal Admissions list for him so that the admissions fall down one side of the paper/screen and there is space for you to make notes in on the right-hand side, like this:
|Ideal Admissions By The Claimant||Evidence|
|I met you in a pub on 17th January 2011|
|We discussed a business proposal|
|I offered to sell you CDs in bulk|
|We negotiated over the price|
|I offered £3 per CD if you bought 1,000|
The first wall should be easy to build. It’s best to start with the box walls which are simplest to construct first and move onto the other ones later, because that allows you build as much of the box as you can. However, it is also best to proceed chronologically. You have to make a judgment call about this. For this example, I’m going to assume that you are going to proceed in the order of the Ideal Admissions.
Let’s imagine that the start of the cross-examination goes like this:
You: Would you agree that we met in the Cock & Beaver public house on 17th January 2011? Claimant: Now let me think, it was a while ago. I remember when we first met. I was talking to, Lord, what’s his name, y’know the fellow with the big nose. Anyway, his friend Roger introduced us but I don’t think it was like you said, no…
Already you have got into difficulties because your first question was really two questions as one! You have asked whether you met in a pub and the date of the meeting. The natural consequence of this is a loss of control. Woolly questions cause woolly answers. Pedantry is the key to control. Have another go!
You: Can we agree that I first me you in the Cock & Beaver public house? Claimant: Yes, I think it was although it could have been somewhere else, it was definitely in a pub. You: Are you happy to agree that we first me in a pub? Claimant: Yeah, whatever. You: We can disagree about which pub it was but surely you must agree what date it was – 17th January 2011? Claimant: You’re plucking a date out of the air, it was definitely early in the year but I’m not agreeing to it being any one particular date. You: You must agree that you haven’t named the date we first met in your pleadings, have you? Claimant: In my what? You: You also haven’t named the date we first met in your witness statement have you? Claimant: I don’t think so, I didn’t think it was that important. You: You say it was early in the year, that narrows it down to January or February, doesn’t it? Claimant: Yeah, I guess so. Maybe it was when you said, I don’t know.
You have built the first wall. Whilst you have not obtained the Ideal Admission, the elements of it are present. I’m assuming that you have already declared in your witness statement the date of your first meeting. Therefore the court has evidence from you as to the correct date and no evidence from the Claimant because when asked about it he has conceded that he “don’t know”. You have also established that you met in a pub. The particular pub is not important. Had I conducted this cross-examination, by this time my Ideal Admissions sheet would look like this:
|I met you in a pub on 17th January 2011||pub – yes; date “don’t know”|
Exactly how to break down the factual issues into Ideal Admissions is dictated by the level of your skill at cross-examination. If you are well versed in the dark craft then each Ideal Admission can be quite involved, comprising several constituent elements. In the example above it only has two: the pub and the date. If you’ve never done this before, it’s probably best to stick to each Ideal Admission having only one element to it and working your way through them. That’s the closest that you should ever allow yourself to get to scripting questions.
You mustn’t bang on and on with the same question over and over again. It is really horrible to listen to and unpersuasive. Barracking a witness might make you feel big and clever but it doesn’t make you look right.
If you get the answer you want, move on. Whilst demonstrating a witness is being inconsistent might win you some brownie points it could easily also weaken your case. If you repeat a successful question, you might a different answer and undermine your achievement!
If you get a clear answer to a question but later on the witness contradicts that answer in relation to another question, it becomes a good idea to point out the inconsistency and ask the witness to accept that they have contradicted themselves. If they decline to answer or fudge their answer, it is usually a good idea to re-explain the inconsistency and ask again to see if they can accept their own muddle. This puts the witness into an invidious position: if they accept their contradiction, they weaken their credibility, but if they don’t, their drip on reality looks weakened.
As a general rule, I avoided asking any question more than three times. I only repeated questions which I felt were absolutely necessary to repeat. Obviously, if a witness cannot hear you properly, a question will have to be repeated. Aside from the partially deaf and those times when you wish to demonstrate inconsistencies most starkly, rare will be the occasion when repetition is a good idea.
When I was about to commence my legal training I travelled to London and cat sat from a friend for a week. In the day times I watched a murder trial at the Central London Criminal Court, more commonly known as the Old Bailey. The trial revolved around an altercation in a night club between two groups of youths. A couple of drinks were spilt and probably one young man ogled at another young man’s girlfriend. Typical Friday night action. However, when everyone was turned out of the nightclub one set of youths got in a car to drive home and the others stood around in the street screaming abuse at them. For reasons he’ll be pondering for the rest of his life, the driver of the group with the car raced the vehicle down the road, turned around and drove straight back up the road and directly into a young man in the other group, flipping him over the bonnet, smashing his injured body into the windscreen and killing him.
I expected Counsel for the Crown to perform a rumbustious cross-examination of the sort I had seen in films and on television. I could not have been more wrong. The defence case was laughable, admittedly – the car’s occupants all claimed that they had hit a dustbin, even though the deceased’s blood was all over the place and there were lots of independent witnesses. All the same, I expected the barrister cross-examining the defendant to lay him to waste. Instead he was a gently lapping tide which, with each question, took away a small portion of the defendant’s beach. After a while there wasn’t much room for him to stand on. He began to look increasingly uncomfortable as he held less and less territory. When his discomfort proved too much, he suddenly shouted out, “Well, he was fucking asking for it?” The jury gasped at this sudden confession, the barrister paused, the defendant saw what he had done and in that ugly moment, the facts of the matter were established.
The best style for cross-examination depends on your personality. There is no right or wrong way to do it. If in doubt, be charming and polite. This is the easiest style to manage. I was a fighter in court and although I always endeavoured to be civil to the witnesses within the rules of engagement, they did not always see it like that. I found my natural style after years of working the streets as a Fire-eater and Showman. In time I found it best to pick and choose my style according to early nuances which I detected in the witness I was cross-examining. Sometimes this led me to being a completely different person from one witness to the next. If you are inexperienced you cannot even think of trying this on. Stick to the basics. Be firm but be polite. Stick to your guns but do not pull them out and try any fancy trick shots.
Piggybacking & Other Specialist Techniques
Piggybacking is resting one question on the back of an answer to the one before. You specifically use the witness’s words in your next question. This means that it is harder for the witness to take issue with your line of attack because it would involve attacking their own evidence. I’ve had plenty of witnesses denounce me for putting words into their own mouths only to be reminded by a judge that I am borrowed their phraseology. This strategy prevents a witness from escaping from the actual issue by being overly hostile to you. It has the secondary advantage that the witness who takes issue with their own phraseology will very possibly not produce evidence which weighs heavy with the court.
Piggybacking is easy to describe but difficult to do. You can’t set out to do it. You have to be able to identify when it is to your advantage to do it live and direct in the trial but not do it all the time. If you piggyback at the wrong time, it can backfire on you because the judge will start to hear your opposing witnesses words more than yours. The worst case scenario is that you will appear rude.
There are a host of specialist techniques for cross-examination. I’ll be explaining them in detail in later posts. You don’t need to know them in order to cross-examine like an expert though. Cross-examination is only one part of a trial but it is one you absolutely must get done properly. Only take it on yourself if you are sure that you have a grip on the proceedings. This toolkit I have provided you with will enable you to complete the preparatory work for a successful cross-examination. Following my preparatory advice makes for 90% of a successful cross-examination. Remembering the advice which relates to the remaining 10% of the work involved is not altogether straightforward. The law of diminishing marginal returns kicks in. As I said at the start, mastering them takes time and practice.
You may lack finesse or eloquence in court but with thorough, focused and sensible preparation you may be able to present your case well. The question you must answer first, is whether you can learn to use these tools in time for the case you intend to fight?