Witness Handling

Hello, My name's Alice Hardin. Can I welcome you to this second Webinar In Serious for the data log Higher Rights of Audience Advocacy course this webinar concerns witness handling both in terms of examination in chief. On cross examination, you cry. There is 1/3 element to it that re examination, which I will touch on very briefly at the end. This is perhaps the most fun part off the entire advocacy process, whether it be dealing with one of your own witnesses or dealing with a witness for the other side on, Let's just refresh our memories, if we will, if we may, in terms of the various components, Examination in chief is the name given to the process whereby we take evidence from our own witnesses. Cross examination is where we would ask questions of a witness from the other side on the final aspect. Re examination. That is where you, as the friendly advocate, get the opportunity to explore with a witness matters that have arisen in cross examination. If need be dealing first if we may, with examination in chief, I can deal with this very, very simply for the purposes of this weapon, are that deals with civil advocacy. Why? Because in the majority, if not all, of civil cases now, all evidence in chief is given by way off witness statement. In other words, as part of the preparation for a case, a witness will have drafted a witness statement, which is accompanied by a statement. Truth that witness statement will have been exchanged with the other. The other parties in the case on a copy will also have been sent to the judge to allow the judge to read that particular statement in advance off at the hearing taking place on the the only advocacy of which you really need to be aware for the purposes off civil advocacy is how to put that statement in. So is to have it as a piece of evidence and standing as the witness's evidence in chief in a trial on you couldn't do that is the advocate very, very simply by asking a Siri's off questions. Firstly, you can get the witness to confirm their name and their address, then take them to the witness statement, then get them. Teoh confirm that it is their statement whether they've read it recently, to which hopefully the answer will be yes. And then get them to confirm that that's their signature. The date on that. The contents of this statement are true to the best of their knowledge and belief. And you can then indicate to the judge that you might want you asked the judge for that to stand as the witness's evidence in chief. So it might go something like this. And forgive me. I will play both parts of the advocate on the witness for the purposes of this demonstration. Can you give the court your full name, please? John Smith on. Are you still resident of 12 KCIA Gardens, Lester? Yes, I am. You made a witness statement in these proceedings. Could I ask you to turn to page six of the smaller bundle that's in front of you containing the witness statements? Do you have that? Yes. Is that a copy of your witness statement? Yes. Could I get you to turn to the last page and confirm that that's your signature and the date? Yes. And have you read that statement recently? Yes. On are the contents of that statement true to the best of your knowledge and belief? Yes, Your Honor, may that stand as the witness's evidence in chief. Yes, Mr Hardaker, very much, and that's really it. That's really the process by which you would put a witness statement into evidence. But it would be rude of me to stop there, because there may come the occasion in a trial where you would be required in a civil case to ask supplementary questions on. In order to our supplementary questions, you need to obey certain fundamental rules because this is examination in chief on, You'll probably learn more about this in your criminal advocacy course, But because it's examination in chief, you may not ask a question in examination in chief, which suggests the answer to the witness. In other words, every question you ask as a supplementary so as not to fall into that trap, which will annoy the judge you may have your opponent objecting to the question is to ensure that every supplementary question you asked begins with the words Who, what, why, where, when, how describe or which? Because those questions that begins with those words allow the witness to answer the question and give their story. There are, in essence, I suppose, three categories of question. There's the first, which is the fully non leading question, which you would be permitted to ask a supplementary. I take a trivial example to illustrate different types of questions so that prints of the permissible question to ask in examination in chief would be what is your name that allows the witness to answer the question. Alistair. Hotch. So the evidence is coming from the witness. The leading question is slightly different. The leading question, which you must not use in supplementary questions, is either this one, which is your name is Alistair Hajj, is it not? Because that suggests the answer to the witness Or indeed, is your name Alastair Hodge. That's the third category of question because that suggests an answer to the witness and for the purposes of supplementary is you cannot ask any questions that are like the Category two or Category three questions. They must all begin with who, what, why, when, where, how describable which, as I've already intimated the easiest way to remember this is that in the examination in chief, the evidence comes from the witness. The advocate is merely there to ask the question to get the story out of the witness or get the UN south of the witness in cross examination, which will come on to match a little bit later. It is, of course, totally different because you is the advocate. Want to ask the leading question in order to get in order to hopefully obtained from the witness A yes or no. So for our purposes, put this putting the statement in should be relatively straightforward for you. And if you ever do need to ask a supplementary question, always make sure that it begins with one of those trigger words. Who, what? Why, when, where, how describe or which. That's really all I have to say on examination in chief, because in the civil context it is very rare that you will have to deploy the skills which you will learn on the criminal advocacy course off conducting and on examination Chief in the old fashioned way. That's really it. Let's move to cross examination. Cross examination is the most fun part of the advocacy process. It's also been known as making people cry. But what? Let's start with some fundamentals. What is the purpose off cross examination? Well, the purpose I suppose, is threefold. Number one. It's to put your case. You have to to a witness where there is disagreement. Put your version of events to a witness as to how a particular factual matter happened. Because if you don't do that, what will happen when you make your closing Submission is the judge will say. Well, Mr Hodge, I don't recall you putting that in cross examination to the winners. If it's something about which you are going to comment in your closings mission, you must put it in cross examination. The second purpose of cross examination is to test the credibility off a witness. You may think that a particular witness is unreliable. They may have said different things on different occasions, and you want to highlight that lack of credibility to the judge during at the case. And I think the final purpose a cross examination one in which I've always believed is to make people cry. There is nothing more satisfying than an advocate thing, getting a witness to cry or to break them down and make them realize that they may have been telling a few Porky's along the way. So those the main purposes Cross examination. What of cross examination itself? What? A few preliminaries if I met. Most lawyers do it badly all the time. No lawyer doesn't brilliantly all the time on No lawyer, in my view, in the early stages of their advocacy careers doesn't well at all. The reason for this, I say, is because you have to be in it to be an effective cross examiner. You need tohave three things on. When I tell you what these during three things are, you'll realize why I say with some confidence that no advocate in their early years off cross examination, does it well at all. The first thing you need is a mastery off the loft procedure on the law of evidence to the jurisdiction in which you're gonna practice. So, in other words, a sound knowledge of the contents of the Green book, a white book, whichever procedural text you are using, as well as a command of the law of evidence, you need to know what things are admissible. What things are not admissible. But I couldn't take it for granted that you, as the potential cross examiner, can acquire those fundamentals. Firstly, by undertaking the course, and we will be on the course in life times that we're in the classroom, be looking at principles of evidence and procedure. So as the cross examiner, you can acquire those fundamentals either by listening to me when you actually do the course. Or indeed, heaven forbid by going to a library on reading. What is there to be read on the fundamentals of evidence on procedure? So much for the first requirement. The second requirement is experience again. Having taught advocacy all over the world, I am totally persuaded that the FN you can only be an effective cross examiner with experience on by experience. I mean 55 0 cross examinations under your belt, because only when you cross examined for 50 times do you get your sea legs. Do you become aware of how witnesses react to different types of questions? Two different types of style of questioning. It's not for me a zone advocacy training to teach your style if you go back to the original or the first weapon are that we had on this course. Remember, I talked about the Six Rules of advocacy on one was being true to your personal brand. I'm not gonna teach your style, be yourselves. But I suppose in essence, I do have three styles. Number one is myself. I will always cross examine its myself. Secondly, sometimes with a rather slippery witness, I do what's called the Hannibal Lecter routine. That is where I adopt the sort of style of Anthony Hopkins. And basically, what one does is one looks into the eyes of the camera or indeed, the witness, and tell them that they have a very attractive feature about their face and that you're going to eat it on. It seems to upset them and sort of shake them up a bit. If you tell the witness that you're going to eat well, I've never done that. I would never tell a witness that I'm going to eat their nose or things like that. But it's a very race of looky, very calm way of getting under the skin of the witness. And the third style I often adopt, which is very good for a cross. Examining general managers or managing directors who are accused of sexual harassment, is to actually adopt the Colombo routine because managing directors tend to know almost everything there is to know, or at least they think as witnesses. They know everything there is to know. And so you adopt the Colombo approach Peter found in the 19 sixties and 19 seventies. You'll remember, played the to Cheryl detective, who gave the impression that he had not the slightest idea what he was doing and when, in fact course he knew exactly what he was doing up here. So cross examination might begin with obviously losing the cigar that Peter Foul called Mr Witness Cat. Can you help me out here? I'm having a little difficulty following this, and maybe you could be of help on the witness that have looks at you and says over this Mr Hodges, and particularly good is he doesn't know what he's doing. But of course I know exactly what I'm doing, and you love them into a false sense of security on before they know it, they're partying, had so experienced 50 cross examinations under your belt, there's 1/3 thing you need is to be an effective cross examine. Maybe I shouldn't say it's maybe it's considered elitist now. Maybe it's considered un politically correct, but I don't care, because I think it's true. The third thing you need to be an effective cross examiner is talent, and you've got the talent or you haven't got the talent. When you all came out of your mother's wounds as babes in arms, either God was there to go cross examination talent or God was elsewhere in the world saving a rainforest or whatever is God's do so. So if I can't give you a mastery of the fundamentals of evidence and procedure, which we will, we will work on, you'll learn that for yourself. And I can't give you the experience. I can't replicate or recreate for you as part of the course 50 cross examination so as to give you the experience on a country that what some of you may think I am not got on. Therefore, I can't give you the talent. I don't have the power to zap you with talent for cross examination. So why I hear you cry? Alistair, do you dare try and tell us about cross examination? Well, I think I can say this much whilst in the time that we have together. Both is part of this webinar and indeed, on the life course in in due course in the fullness of time. Whilst I may not be able to make you a good cross examiner, I think I can stop you from being a bat cross examined on. That is my limited objective. Over the course of the next few minutes, how am I gonna do it? What? I'm gonna do it by giving you a series of rules which we call the 10 Commandments. I already mentioned in in the other webinar on case preparation. Thea American gentleman Irving Younger, who set up the National Institute of Trial Advocacy in America. Well, having younger came up with the original 10 Commandments a cross examination. But that was in the late 19 sixties. They were also American and therefore somewhat alien to our jurisdiction in this country. So what I've done is I've updated them. I've made them relevant to modern civil practice Onda cross examination, civil courts as well as criminal courts. That principles same on the message to send to you guys out there is when you're cross examining, never, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever, ever violate any of these commands. Because when you do, two things will happen. Number one, You want the ground to open up, that you will sink in and you will never be heard from again. Number two You remember me? The madman glaring at you, telling you not to violate these commandments. And sure enough, when you break one, you'll think of me. But I'm a lovable chap on Maybe that's not such a bad thing. Of course, what I'm gonna talk about, there are exceptions. There are, of course, exceptions for the virtuoso cross examiner, the cross examiner with the experience with the talent, with the mastery of procedure and evidence, he or she will be at liberty to depart from the operation off these rules off cross examination with the click of a finger. Why? Because we can. Because we can do it because we know what we're doing. But for those of you who have not yet got the talent to require the experience, stick to these rules on do no violate them. How's it gonna work? Well, it's very simple. Each of the commandments can be simply stated so as to make it memorable. Each commandment I'll then sketching a little bit of background as to what I mean by the commandment on. Then there's a There's a story to accompany most of them, some from my own practice and some from the greater world of trials at large to illustrate how the commandment works in practice. So without further ado, let's now turn to those commands. The first commandment is be brief, short succeed. Oh, ladies and gentlemen, if I had again, if I had £5 for every time I see this in a court or a recent case that I'm doing, it's where you see opponents going on and on and on cross examination, asking questions that totally irrelevant dealing with issues that agreed between the parties. There's no need if if something is agreed, you just sort of you don't touch it very often. What you have to ask yourself at this stage of the process in order to comply with commandment number one is Do I actually need to cross examine because remember the purposes of cross examination. You're gonna put your case to particular witness, you're gonna challenge their evidence, you're gonna seek to destroy their credibility. If you don't think you need to do that with a particular witness. You don't cross examine it all but equally with some witnesses. You focus on that closing argument because remember, every question you ask in cross examination should have some relevance. It should have some bearing toe what you're going to say in your closing submission. Cross examination, ladies and gentlemen, is not the invasion of Europe. It is not a bunch of general sitting around a vast table moving a tank and inch closer to Berlin on a daily basis. That takes hours. That takes days. That takes weeks. Cross examination is a commander rate. I think back to 1981 when I was a primary school. Come back with me in 1981 and there were only four channels on the television. God, can you imagine a television with only four channels on it? BBC one, BBC to ITV and Channel four. And I remember I was a primary school and we had a television in the classroom on the picture was unchanged. It was of a white building on in the top, right hand corner of the picture. It said life and nothing happened a couple of hours. Then all of a sudden, groups came off the top of the building on these men, dressed all in black with big gas mask down the ropes and they kicked in the windows and the grenades went off. Boom on. Then, about 40 seconds later, all the hostages came out the front door with these men dressed all in black. Yes, ladies and gentlemen, it was the Iranian Embassy siege back in 1981 on that's cross examination. It's come under rate. You stand up, you put your questions and you sit down. Of course, there will be. Exceptions are longer. Cross examination may be required where there is a lot of factual matters upon which you have to cross examine. But always think back to what you're gonna be saying in your closing submission and keep it as brief as you can. The next commandment Commandment number two is goes hand in hand with a commandment number one, and it is one point per question. One point per question. This is where you need to acquire this skill off asking questions that are brief in terms of the length off. The question take is an example the cross examiner that would breach this particular commandment might ask the following question. Being cross examine eighth generation Miss Witness on the 20 fourth of January of 2017 year arrived at work at 9:30 a.m. On the first thing you did was park your car in the office car park, which is immediately opposite the office building on the other side of the road on having parked your car. You then got out, locked it on, then walked the 20 or so yards to the office building, which is a glass door. And you went through that glass door and said, Good morning to Allen, who was the security guard on duty that morning, Having said good morning to him, you they went to your office, which is on the ground floor on. When you went into your office, you saw on your desk that was an envelope, which he picked up, opened and read the contents inside. And it was a letter from your managing director inviting you to a meeting at 10 a.m. That's right, isn't it? Now, how is the witness supposed to answer that question? In other words, that particular question. What's 30 questions in one so you need to acquire the skill off. Asking that question one point at a time. Something like this. On the 27th of January 2000 fit 17 year arrived at work at 9:30 a.m. Didn't you? Yes. The first thing you did was park your car. Is that right? Yes. You parked your car in the office cup up, didn't you? Yes. The office car park is immediately opposite the office building, isn't it? Yes. It's on the other side of the road, isn't it? Yes. Having park your car? You got out of your car, didn't you? Yes. You locked your car, didn't you? Yes. And you then walked the 20 or so yards to the office building? Yes. The office building is a glass door, doesn't it? Yes. You went through that glass door? Yes. There was a security desk on the left, wasn't there? Yes. Alan was on duty that morning, wasn't he? Yes. You said good morning to our Yes. He said good morning to you. Yes. You fancy Alan, don't you? Oh, no, I don't. On having spoken to Avenue. Then went to your office, didn't you? Yes. Your office is a desk, doesn't it? Yes. On your desk was an envelope, Wasn't that? Yes. You picked up that envelope, didn't you? Yes. And you opened that envelope? Yes. And you read the contents inside? Yes. And it was a letter from your managing director, wasn't it? Yes. And that letter invited you to a meeting at 10 a.m. In his office? Yes, one point per question. Because if you go one point the question you will note that retains control off the witness. There's no way for the witness to deviate if you're going one point at a time. It also makes the questions crystal clear. It's also far easier for the judge to follow on, I suppose. The sort of yardstick for you when? When preparing any cross examination. Remember the sixth rule of advocacy. Write it out if you're gonna write out your questions and when you type them or write them in manuscript. If you find when you have written your question that a question runs whether in manuscript or typed 12 See P, I would have a fund you want to use. If it runs to a second line on the page, then arguably the question is too long. That question can be made shorter. It's containing too much information. So that's the yardstick, every question on one line only. So we're gonna be brief in the global context of things on. We're gonna go one point of the time. The next commandment is simple language. Plain words for those of you have seen the webinar relating to case preparation. You will know that the third rule of advocacy is keep it simple. You must acquire the knack of using plain and simple language when asking questions. I think back to an occasion when I cross examined the scaffold in the Carlisle Employment Tribunal. This was a man in his late forties who had left school at the age of 14 and had no qualifications. You cannot, when dealing with that type of witness, ask complicated questions. You can't use language that he may not understand. Therefore, you need to reduce everything to its most simple. Of course, there will be exceptions when you get to the stage of your careers, where you may have to cross examine an expert witness. Let's take a a surgeon who has carried out a new for ectomy by way of example, that's the removal of In a very insist you will need to know what a new for ectomy is. You will need to know what a parrot in the M is. You will need to know where the ureter is, etcetera, etcetera, technical language. But your expert will also have a grasp, a mastery off the language you are using on the problem that a lot of young advocates have it again. It's not being true to the personal brand. It's thinking that when I asked a question, I have to use flowery language. I need to sound exotic is the advocate in order to be an advocate? I remember when I started at the bar, I I used to cut my teeth in the early days on a number of road traffic cases, but I would go up and down the country, old and broaden stall Manchester all up in the north on only a handful of those cases. In the old style of examination in chief, I know this is an examination in chief. Our example. No cross examination, our example. But it illustrates the use of plain language in simple words. Only a handful of cases. Did I ever hear in advocates use the word car or bus or bike? It was always vehicle. Nobody ever asked the witness how you drive. They said no. So, Mr Witness, what did you then do with regards to the operation and control of your motor vehicle? Who hates it when I hear that is too flowery? Keep it simple on again your yard state for when you actually do it for really low yardstick on this is to carry out a cross examination. When you ask your questions on the witness on No occasion looks back at you and says, Sorry, I don't understand because if you can ask every question where the witness understands what you're asking, then you have kept to this particular commandment. The next commandment is only asked leading questions I mentioned a short while ago when we were looking at examination in chief. Remember an examination in chief? You're gonna ask questions that begin with who? What? Why, when, where, how describable which. But we're talking here about cross examination. The rule of evidence law in cross examination is that leading questions are permitted. But my commandment goes further than that. My commandment is that you will only ask leading questions in cross examination. In other words, you will never asked that question. What is your name? By way of a trivial example? You will say your name is Alice the hajj, is it not? You could also ask the category three questions. Is your name Alastair Hajj? But perhaps more forcefully for our purposes. In cross examination, we should stick to Category two questions. In other words, questions that suggest the answer so totally taboo in cross examination is any question that begins with who? What? Why, when, where? How describe a which. Why? Because when you ask that type of question, you passed the raise. The witness the witness runs away on the witness says what they want to say. That's not the purpose of cross examination. The purpose of cross examination is for you to get the witness what you want to say on by asking them a why or what? Or a witch or a wedding question, they can say what they want from your case analysis from your preparation, you will know what the witnesses likely to say in response to a particular question on those questions, must be leading. I'll give you an exception. There is an exception where you can throw it over to the witness. Teoh, explain something, or to tell you something where you know you're in a win win situation. A few years ago, when I get a case in Leicester, I remember cross examining the claimant on the cross examination had if it were to comply with this commandment of only leading questions, Will will have gone something as follows at Miss Smith on the 10th of January of 2010. You met with Mrs Cords, didn't you? Yes. The purpose of that meeting was to discuss your grievance, wasn't it? Yes. And we have a transcript of that meeting in the bundle. Don't way. Yes. Turn, please. To pay 6000. That is a copy of the transcript, isn't it? Yes. It contains everything that you said to Mrs Cords at the meeting, doesn't it? Yes. It says it contains everything that Mrs Could said to you. Yes. Here comes the If you like the leading form. Nowhere. In that transcript you suggested Mrs Cords that she should interview X no nowhere. In that transcript, you suggest that she should interview. Why do you know nowhere in that transcript, you suggestion interview that said no. But what I did was I turned around. I got to that point of getting her to agree. The transcript transcript was accurate on it contained everything that was said and I didn't ask it in leading form. I said, Where in that transcript do you suggest to Mrs quotes that she should interview X on what happened was, of course, she started turning the pages and the hand started to shake and she got very worked up because she couldn't find it and started screaming, It's in here somewhere. But of course it wasn't. Of course, there's a lesson there. You have to make sure you've gone through it in minute detail because the last thing you want the witness to do it. So So, yeah, pay 6002. Bottom line Death to the cross examiner and you lose credibility. So in some circumstances where it is a win win situation, you may want to ask an open question, but for our purposes might I suggest that you stick to leading questions ALS the time because it will retain control of the witness and you will be in charge of the cross examination. This little example of the nowhere in this transcript Does it say this leads us into the next commandment, which is? Listen to the answer, continuing my cross examination. Nowhere in that transcript do you suggest you should interview X? No. Nowhere in that transcript, Do you? Suggestion? Interview? Why do you know nowhere in that transcript? Do you suggest you interview said? Do you know, two weeks later, you send a further document to Mrs Cords? Didn't hear? Yes. Have a look at page 6000 and 20. Yes. That was the document you sent to Mrs Quids two weeks later. Yes, on that contained further information that you thought Mrs Cords would know should know. Yes, on nowhere in that document. Do you suggest to her to interview X? Do you know nowhere in that document? Do you? Jesse's interview? Why do you know? And they were in that document. Do you suggest you should interview said, Do you? So, ladies and gentlemen, I took a punt I took upon. I had nothing to lose. So I looked across the witness and said so, Miss Smith are you telling this tribunal you expect Mrs Cords to be psychic? What did she say? What did you say? She said yes. And very often, ladies and gents, witnesses will say the most extra ordinary things in cross examination. But you're too busy thinking about the next question or whatever it is you're going to say that you forget what the answer is that you don't make a note of the answer. You might as well be in a different court trying a case elsewhere. You must listen to every answer that the witness gives. And when you get that ridiculous answer, when you get the absurd answer, what do you do? You stop. Make a note of it. Make a note of the time of the question on move on to something else. The danger of following it up in a lot of young advocates when they get that. If they got that answer, would repeat the question for effect. They would say you're seriously suggesting that Mrs Quickly you want the tribunal to find that Mrs Could should be psychic on the witness will do. That's still usually say Oh, no, Mr Hodge. No. Sorry. I didn't mean to say that you're confusing me. You're winding me up, etcetera. Of course I meant to say no, but you just leave it hanging in the air, making most of it. And then you could make one of the use of it in your closing speech that you wish and think of the fun that you could have in your closing submission, as I did with that particular event. For those of you have seen the the webinar on case preparation, you'll remember that I referred to my my closing speech being 58 minutes and 17 seconds long. Well, the one that I actually performed was two minutes longer because of this incident, because I highlighted to the judge the lack of credibility that this particular witness had. I also did it in quite an amusing way. I said to the judge said, Sir, do you remember the question? I asked the claimant on day three of my cross examination to 11:37 a.m. on his best brew me accent. Did you just want Mr. But you haven't the slightest idea now that you mention it. But there we are. Park it on. Move on. Don't leave it to chance Because, as I say, if you do leave it to chance. The reality is that the witness is gonna try and wriggle out of it. The next commandment is probably my my favorite. I was about to say it's probably the most violated. In fact say they're all violated by inexperienced advocates. But I'm very certain not that I've ever seen. But I'm fairly certain that one can actually violate all 10 Commandments. In one question, that's probably true. But anyway, the next commandment is don't quarrel with the witness. Sometimes it seems like an attractive proposition. You're standing there in the witness is not playing ball and you engage in an argument with the witness. Now, aside from this being in it, lacking an actor activity is an advocate. You would you lose some of your own credibility. It just gets you nowhere. Quarreling with a witness usually arises in two different scenarios. Firstly, there is what I call the pantomime cross examination where it just turns into a little bit of a tennis match. You arrived at work at 9:30 a.m. Did you? No. No, I didn't. Yes, you did. No, I didn't Yes, you did. No, I didn't. Yes, you did. Pointless. The question has been put by the advocate. The witness has given an answer, and nothing on God's Earth is gonna persuade them that it was any time other than 9 30 off course. If you have got extremely, it's for other evidence to suggest that they didn't put arrive at 9 30 Then you put that to them. But for the purposes of simply putting the question, you need not go any further question has been asked. The witness has answered it so becomes a bit of a tennis match, and it's inelegant. Don't do it. The other area in which arguing tends to arise is where people forget that what we're talking about here is cross examination. Not examining crossly on this is really geared to the advocate that has an angry attitude. You must have done communicate. You could be firm, but you must adopt a measured attitude when cross examining a witness you'll know from the solicitor's regulation authority code of conduct. You'll know from the Bass Standards Board that we are not permitted as advocates to deliberately set out to harass or Arang or annoy a witness. That's not what we do. Yes, you may have to be firm, but usually one could be firm without being angry or without quarreling with the witness. The greatest example of this comes actually, from the end of the Second World War, there was a serious of trials many of you may know that took place in the town of Nuremberg in Germany. This was where the International Criminal Court was set up to try many of the Nazi elite who was still alive at the end of the end of the Second World War. There was a prosecuting team of four people. There was an American, Robert Jackson. There was an English silk. There was a Frenchman and there was a rush, for the Allied forces have had a prosecuting team on There was an English historian who was out of Nuremberg, who wrote a historical account. Of all the Nuremberg trials that took place on his name was John Wheeler Bennett, and he eventually produced his massive texts, Most of which is contemptible is literature. I'm not recommending it for that, but there is a section in it where he describes the cross examination off Hammond going now, Herman going for those of you who don't know was an exceedingly evil man. He was responsible for the deaths of many, many hundreds of thousands of Jews and homosexuals in what is now Poland. During the Second World War, he was, he was he was an exceedingly evil man, but he was also a brilliant. He was highly intelligent, although towards the end of the war, he going to put a bit up here with heroin, cocaine abuse. But that's neither here nor there. Here is at Nuremberg fighting for his life, and John Wheeler Bennett describes the cross examination as follows. First the American Robert Jackson. He described him as a Times brute, but at times he got into trouble going managed to get the better of it. Why, says John Wheeler, Bennett is a layman because he was not properly prepared. Remember, Anthony leads three rules of advocacy around with my first full of advocacy preparation. When Jackson got into trouble, it was the English silk who got him out of trouble. Then he describes the Frenchman scrap. Prevention was wearing a very smart grey three piece suit, wonderful to the wavy white hair, very attractive, very charming and totally useless is a cross examiner. That was French, then the Russians is the point of the story. The Russian He described his 32 stone off, heavy, going rushing tech on. Once this tank got underway in cross examination, there was nothing standing in its way on the Russians. Cross examination simply consisted of the Russian taking and document handing it to Gary on going to get going to read it. Once Gary had read it, he would shouted him at the top of the top of his voice. So Hammond going, do you know, confess yourself to be fascist beast? And he did that for day and 1/2 and it was very angry, and it was all very e t t. And of course, the reality. What's all going did sitting in the witness box, which just sit there going? No, that's examining Crossley on. You shouldn't do it. By all means. Be firm, But don't adopt that nasty, angry attitude. The next rule, The next commandment, is avoid repetition. This is to guard against the cross examination that simply repeats the evidence that has been given by the witness, either in their witness statement or live in court. There is a bit of psychology, a bit of a bit of brain doctoring, I suppose here that if you tell a judge something once he may believe that he may not tell a judge twice, you'll probably believe it. Tell it to him three times. You'll definitely believe it until it 1/4 time. Nothing on God's Earth will persuade him that it is anything other than the truth. This is because our brain, when it would here's things that we have already heard. It processes information and makes them more believable than if we only hear something once. So when you cross examine, you want to avoid simply in leading form, taking the witness through a passage of their witness statement and getting them to agree. Of course, that can agree. That's their evidence. Remember that cross examination is about challenging the evidence. You want toe challenge a particular piece of evidence. You don't get them to repeat it. You simply say it wasn't nine 30 when you arrived that morning, wasn't it was 10 a.m. That's challenging the point, and it's not just letting them tell the story over and over again. The next commandment has never let the witness explain anything that goes hand in hand. I know with some of the other commandments that we've looked at on. Of course, I should have said at the outset there aren't really 10 Commandments there. Probably only six or seven, but we spell them out to make 10 because that has a greater biblical in literary ring to six. Come on, eso There's never let the witness explain anything again. If you're observing the only leading questions commandment, then you will not find yourself breaking this very often. But it is not your job. Is the cross examiner toe Ask for the explanation. You might do a perfect cross examination, which takes you to a point. You're asking only leading questions and you destroy the cross examination by finishing off with or how come? How can that be asking for the explanation on? Let me tell you, ladies and gentlemen, if you ask a witness to explain something that is exactly what they will do, they will give you an explanation as to how something can be on. Therefore you must guard against it. You must try to stick built to a point, by all means with your questioning, but never rounded off by that. How come explain, because usually what? The answer that comes from the witness will destroy your cross exam. The next commandment has never asked a question in cross examination, to which you do not already know the answer. This is what this is quite an old one and has been around for many, many years again. This is really more geared to the preparatory stage. You must know the answer or the likely answer that a witness is going to give to a particular question before you asked it on. This will also stop you going fishing. Cross examination is no time to go fishing for further information from a witness at the time for disclosure, that's all past. You should know everything there is to know. If you don't know everything, there is to know that that's the fault of your preparatory process on. You should have flagged it up at that particular stage and obtain the information from your own witnesses that you need the final rule on again. This goes hand in hand with some of the things we've already spoken about. is avoid the one question too many. Develop a realization of when the job is done when you have actually achieved everything that you want to achieve in your cross examination. The classic example of this, albeit it's criminal case. Some years ago it was It was GBH. Case on the prosecution's case was very simple that there was a fight. In the course of the fight, the defendant got his teeth around the victim's nose and bill it off. So the victim's great victim turned up in court looking like Rafe fines. Is Lord Voldemort with no nose or or lead Marvin in that other film with No nos didn't look particularly nice, but good reminiscence of the Harry Potter films. Oh, and for those of you who do personal injury, what you will know that this is perfectly possible. The jaws are the strongest voluntary muscles in the human body on the knows very little bone. It's mostly made of cartilage, and if you if you do get your teeth around someone's nose, you can bite it off, exceeding me easily. The prosecution in this case calls an eyewitness. It takes place in the parking calls, an eyewitness Who says that? They saw it. Then comes the cross examination from the defense. And it goes something like this. You were in the park that day for your favorite pastime, wouldn't you? Yes. Your favorite pastime is birdwatching, isn't it? Yes. You're keen birdwatcher? Yes. On Birds live in trees, don't they? Yes. Come Have a look at the plan of the park. So they get out of the diagram of the pop. You can see on this planet all the trees in the park around the edge of the park. Yes. On the fight to place in the middle of the park. Didn't? Yes. And there are no trees in the middle of the park. Other? No. So you were looking at the birds in the trees? Yes. On the fight took place in the middle of the park. Yes. Stop. What is that? Defense lawyer can argue in his closing speech. The jury, quite simply, he's looking at the birds in the trees. He had his back to the assault which we know took place in the center of the park. Therefore, he had his back to the assault. He couldn't see it. But what is the advocate do know he breaks this commandment. He goes one question too many and he says this. So if you were looking at the birds in the trees and the trees around the edge of the park on the fight took place in the center of the park, how can you possibly tell this jury that you saw the defendant bite off the victim's nose? Quite simple, Says the winners. I heard a scream. I turned round when I saw him spit it out. Cross examination totally destroyed by one question too many. So those, ladies and gentlemen, are the commandments. Follow those and you will never, ever go wrong. Obviously, when we come to do the practical exercises in due course, I will be looking as your teacher for your advocacy trainer. Four Commandment compliance Because I say where you do violate the commandments, we do end up in a bit of hot water. The final thing I just want to touch on his re examination, the third part of the process and very rarely, in my view, where you need to know about re examination. That is because there are 22 rules. There's the golden rule and there is the platinum rule. The golden rule is don't re examine unless you absolutely have to. On the platinum rule, being a more precious metal than gold is don't re examined. I see far too many advocates on a week in week out basis. You think, Oh, it's reexamination of goto or something? I am proud to say, Ladies and gentlemen, of all the cases I have done, I can still count the number of times that I have re examined on two hands. It is only in the rarest of occasions where you would need to re examine if a judge invites you to do so. You simply say I have no questions there many reasons for this Number one, you can dig yourself into a hole in reexamination very, very easily. Number two, if your witness has been destroyed in cross examination, the last thing believe you me as a matter of practicality that witness wants is to answer more questions. They want to get out of there as quickly as possible on in theory, as the friendly advocate, you want to get them out of there as quickly as you possibly can. If you do find the need to re examine the same rules apply as apply in examination. In chief, you must not ask any leading questions. So therefore, in re examination, without back to who, what, where, when? Why? How? Describe which territory on you must acquire those those fundamentals in order to re examine. But in early stages of your advocacy careers, I would say, Don't do it. So there we are that hopefully has equipped you for the witness handling sessions that we will be doing on the course a few general points just to finish with. It will never be perfect every time. I don't think there is any advocate I know who are in every case with every witness performs the perfect cross examination. It simply doesn't happen. But if something does go wrong, you stick to your guns. If all fails, move onto a different point on. You have to go from a point of credibility. You have to remain calm on the outside, even though on the inside you may be actually going mad and the heart will be bumped, pumping blood like never before, and you'll be feeling quite nervous when it comes to the course itself. I'll be teaching way teaching it in groups obviously, look at the other performances by the other individuals on the practice days loan from the the advocacy reviews that they get s so that you can improve your own advocacy. It's been a pleasure talking to you, and I look forward to meeting you on the course in the fullness of time.