The recent Court of Appeal case R v Farooqi [2013] EWCA Crim 1649 makes pretty dismal reading. The outgoing Lord Chief Justice delivered a judgment containing stinging criticism of the conduct of one of the defence Counsel in a terrorism trial. Budding advocates might like to read the judgment as an example of what not to do. The barrister in question faces disciplinary proceedings and I do not intend to comment on his position.
For civil lawyers, the judgment is worth reading for the Court of Appeal's disapproval of modern myths and habits creeping into trial advocacy. These comments are relevant to all advocates.
An area of particular interest to me is cross-examination. In civil cases, most of the oral evidence is now given under cross-examination. Written statements and expert reports form the evidence-in-chief. It follows that when the outcome of the case depends on a judge's view of the evidence, cross-examination is the key to success (or failure).
Cross-examination is an art. It requires thorough preparation – the ill-prepared advocate can often be spotted skating around the real issues, missing the essential point or obscuring it in a mass of peripheral questions. Preparation does not mean sticking to a script. Questions elicit answers and
answers need to be listened to and dealt with. This requires a degree of flexibility. I have seen advocates obtain a really interesting answer then simply move onto the next question on their list without following up what has just been said.
It is sometimes necessary to be firm with a witness and to persist with a line of questioning the witness may not want to answer. It may even be necessary to stand up to the intervention of a judge who cannot see where the questions are going. This can be perfectly proper – revealing the purpose of the cross-examination may alert the witness and allow him to tailor his answers. Being firm is not being rude. The polite but firm advocate will be respected. Rudeness may simply not be tolerated. If it is unwise to alienate the judge in a criminal trial, it is doubly so in a civil trial when the judge is the arbiter of fact.
Acknowledging that there are many different styles of advocacy and that a wide discretion is
entrusted to the advocate, the Court of Appeal had this to say about cross-examination:
"We do not suggest ... the somewhat dated formulaic use of the word “put” as integral to the process. Assuming that there is material to justify the allegation, “Were you driving at 120 mph?” is more effective than, “I put it you, that you were driving at 120 mph?” What ought to be avoided is the increasing modern habit of assertion, (often in tendentious terms or incorporating comment), which is not true cross-examination. This is unfair to the witness and blurs the line from a jury’s perspective between evidence from the witness and inadmissible comment from the advocate. We withhold criticism of Mr McNulty on this particular aspect of his cross-examination because he was following a developing habit of practice which even the most experienced judges are beginning to tolerate, perhaps because to interfere might create difficulties for the advocate who has been nurtured in this way of cross-examination. Nevertheless we deprecate the increasing habit of comment or assertion whether in examination in chief, but more particularly in cross-examination. The place for comment or assertion, provided a proper foundation has been laid or fairly arises from the evidence, is during closing submissions to the jury."
The blurring of lines may pose less of a risk to justice in the civil arena when the facts are to be determined by a trained judge rather than a lay jury. However, this is certainly a habit which can be found in civil courts and which should be stamped out. It will annoy the judge, interrupt the flow of the evidence and risk blurring the issues. Good cross-examination is concise and focused. The advocate will lay the groundwork, move quickly to the key questions keeping the judge's attention in that area and then know when to sit down and shut up! Equally submissions should be concise and focused and cross-reference the cross-examination. This is far more effective way of leading a
judge to the conclusions you seek than throwing your conclusions around in the middle of cross-examination ever will be.
Cross-examination rarely produces the killer blow we see on T.V. but done properly it is rewarding. Know where you want to go, get there and move on. Do not fall into bad habits or copy styles even if they seem to be becoming the norm. Proper, focused and polite cross-examination will earn the respect of the court and in doing so put your case in the best light.
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