The inimitable Fahri Azzat returns to the most awesome blawg with an evisceration of the practice of asking counsel to supply Cross Examination questions in advance
There will come a time in your legal practice when you are directed to do something so senseless, so illogical and so silly but you have no choice because the Judge ordered it. At times like these all you can do is play it by ear, hold off the fear and keep things clear.
That occasion arrived when I conducted a trial of a breach of contract in the High Court before a Judge whom I still like even though he made an initial poor impression as a trial judge. When I look back, I think it was more the case of him being not cut out as a trial judge, as will soon become clear. He was better suited to hearing applications and appeals, which I have also had experience with. It takes greater patience, fortitude and restraint to be a trial judge than it is an application or appeal judge. A trial judge has to count his work in hours, if not days and weeks. An application or appeal judge often counts his work in minutes and at most hours. I say this, of course, without the benefit of being either.
The claim was a straightforward one. Our client purchased an accounting software from a company who said they would customize it for them and carry out the data migration and have it ready by a particular date. The long and short of it was the company could not get the software ready by the agreed date despite two extensions of time. Our client terminated the contract and claimed the purchase price they paid.
As is usually the case, both parties had witness statements prepared for their witnesses before the trial. The Judge took the view that witness statements were taken as read at the trial. That meant, after the formality of introducing, verifying and marking the witness statement as an exhibit, we would commence our cross-examination.
Since we acted for the Plaintiff, the Defendant’s counsel would cross-examine our sole witness first. She spent two days cross-examining our witness and it was hell. The Defendant’s counsel had an uncanny ability to create arduous torturous journeys by simply asking a question. Every question began with the phrases, ‘Do you agree with me that …’ or ‘I put it to you that …’ Those phrases were always linked to a long meandering statement which contained factual and legal assumptions, referenced multiple documents and even bits of rhetoric. If you told me the kitchen sink was in the question, I would believe it. Questions took an average of 2 minutes to ask. I remember one question even went up to 5 minutes in the asking.
But that was not the end of it. Because the questions were so long and difficult to understand, our witness naturally failed to understand it on the first ask. The Defendant’s counsel would therefore repeat the entire question again. Sometimes twice over, before our client’s witness could make sense of the question and understand what was being asked of him. There was also the witnesses’ clarifying questions back to the Defendant’s counsel. That cross-examination performance is close to the top of my list of top 5 most painful cross-examinations I ever sat through.
Advocacy Tip: Keep your questions cogent. It is better received and understood by the witness, the judge and above all, yourself. Formulaic rambling questions merely demonstrate your incompetence and your lack of preparation and care of your case. It is also a waste of not just the court’s time, but everyone else in that courtroom.
Now while questions were asked and answered, the court had them typed up by an interpreter, which were then displayed to us on the screens on our tables. I could see the rows and paragraphs of text which were her questions snaking its way across the screen often wondering what awesome feats of memory she possessed to keep track of her own questions given how epic they were in scale.
After two days, we were finally done with the examination of our witness. And although I got to my feet a few times throughout the trial, I felt drained from listening to those relentless formulaic questions, several times over. But my ordeal was not yet done. At the end of the second day of trial, the Judge seized upon an idea, no doubt hatched, during those cross-examination questions, to ‘speed up the trial’.
His Lordship directed me to prepare my cross-examination questions for the Defendant’s witnesses in advance in a Word format document. I was to give my questions to the interpreter the next day (we were fixed for 3 consecutive days of trial). She would display my cross-examination question when I asked it so the witness could hear and read the question. That way, we could avoid asking the question several times and the witness would understand the question better. Clearly, the Judge anticipated that I was going to cross-examine in a similar fashion to the Defendant’s counsel.
I raised my concerns with the Judge about his suggestion.
Firstly, as a lawyer, we must know what we want to accomplish in cross-examination. However, the precise questions to achieve that will take its shape from the situation, mood and momentum of the moment, and above all, whether you need to go to the toilet urgently. Although I prepare my examinations by writing down the exact set of questions I intend to ask, I have come to appreciate that I have to discard it the moment the situation calls for it. So those prepared questions are at best a guide, a rough discardable guide, at that. I submitted that given the dynamism inherent in cross-examination, it was impossible to prepare them with great accuracy, and it is likely that I would have to change much of them mid-way.
The Judge’s response was that I could amend, add or delete the prepared questions I prepared.
Secondly, and more practically, if the questions were listed down, then the Defendant’s witness could see the follow up questions. That, I argued, would be prejudicial and detrimental to my cross-examination. If the witness could see what was coming, they could prepare themselves for it thus annihilating the element of surprise, which is so crucial for an effective cross-examination.
The Judge’s response was to instruct the interpreter to put more lines of space between the questions so that only one question showed on the screen each time.
With both my objections shot down, I had to proceed.
The Judge’s view and his responses may seem reasonable and even appropriate given the priority was to save time and bearing in mind the last two days of trial. However, it was the view of someone with little or no experience actually conducting a trial and so lacked the ability to appreciate the task, never mind the finer points, of courtroom advocacy.
Being a Judge is a vastly different thing from being a lawyer, a former Sessions Court Judge who later became a lawyer once told me. Being a judge is easy, he said. You sit and listen. If you don’t know something, you ask counsel to explain it. If you don’t have something, you ask counsel for it. If you didn’t hear it, ask the witness to repeat it. Then, you decide. A Judge does not need to prepare if he doesn’t want to.
How does it compare to being a lawyer then? I asked. Being a lawyer is hard, he replied. We have to prepare thoroughly and come to court knowing everything there is to know about the case, our file, the substantive law and the procedural law because the Judge could ask us about any one of those matters and we cannot say we don’t know. We always, have to be prepared, he said.
Though a judge and lawyer sit in the same room doing the same case, they act in very different roles. Naturally, they have different perspectives of the case. In my experience, a Judge that never practiced as a litigator in his previous career, is likelier not to understand the traditions, ethics and practice of courtroom advocacy compared to someone who practiced. And that often is where the difference in how they conduct trial lies. I think it safe to say that a seasoned litigator who became a Judge would never impose such a condition on a lawyer before him. However, a Judge who went through the judicial and legal service without having conducted trials as a Deputy Public Prosecutor or Senior Federal Counsel, are likelier to make us do silly, nonsensical things like this – submit prepared cross-examination questions for trial. You can do that for an examination in chief where the witness is friendly, but not against a witness you are challenging. In fairness, I have encountered Judges who never practiced and yet were excellent in their conduct of trials. But I ascribe that more to the individual Judges who were instinctively sensitive, fair and sensible.
Act 3 – Fin
So how did I proceed? As best I could. But it was an awful, awful experience which I hope no competent lawyer has to experience. Such acts of torture should only be reserved for incompetent counsel who beat their spouses, children and their pets.
I prepared the questions as directed and gave the soft copy file to the interpreter to upload into her computer. She spaced the questions far enough so only one could be seen at a time. And we were off. These were some of the things I noted from my recollection of the experience:
How did it end? My client won. Why? Certainly not because of my cross-examination, which was certainly not one of my best. We won because the facts and the law were in our client’s favour. Some fact patterns naturally lead to a particular conclusion. In such cases, a lawyer’s role is simply not to lose the case as opposed to winning it. In this case, the Defendant had no reasonable explanation for the delays and their inability to overcome the technical issues in migrating the data. The Judge therefore ruled that the Defendant had to deliver the software by the agreed extended date and their failure to do so caused a fundamental breach of contract.