Cross-examination: It's the climax that counts. A personal perspective.

In recent posts we've looked at the 10 commandments of cross-examination and asked is cross-examination an engine of truth or something to do with goats? Now, I want to give you a personal perspective. It's a good time for this because I've just completed several trials and the cross is fresh in my mind.

This recent experience has reminded me of a few things: good cross-examination isn't easy; depends on preparation; and does no more than uncover or emphasis aspects of the evidence. 

Irving Younger's 10 Commandments of Cross Examination remain true. Baby barristers should follow them. But they should also understand that over time they must, not should, but must develop their own style. One that suits their own personality and practice. Here is my take on the commandments informed by a couple of decades of practice.

1. Be brief. Absolutely. Be as brief as possible given your purpose and the material.

2. Short questions, plain words. True. It is the answers we are interested in and we want both question and answer to be understood.

3. Leading questions only. Yes, but I sometimes use open questions on uncontroversial topics as a way to establish rapport with a witness.

4. Don't ask a question without knowing the answer. Certainly on any topic that is important to your case.

5. Listen to the answers. Yes. It can sometimes be distracting when your instructing solicitor is flicking a pen or shuffling papers. Talk to them about this.

6. Don't argue with the witness. Yes, but this doesn't mean you don't redirect a witness to the question when they flip flop around it or want to make speeches.

7. Don't let the witness repeat evidence from chief. This is right but it can sometimes be very difficult to achieve.

8. Don't let the witness explain answers. This is right too unless the explanation is unbelievable and it's a matter you want to talk about in your closing address. However I think court culture has changed over time and judges often intervene to allow a witness to explain. This is fair enough.

9. Don't ask the 'one question too many'. Yes and we've all heard the stories. It is thrilling though when you break commandments 4 and 9 and you get an answer that supports your case. It sometimes happens but it takes a lot of experience, luck and a certain sense to know when to do it.

10. Save the ultimate point of your cross for the closing address. Of all the commandments I reckon this is the most important. The whole process is of little value if you don't know the relevance of the answers and how you will use them in your closing address. Remember, if cross-examination is the sexy part of the trial, then it's the climax that counts.