Tips for Cross Examination at Final Hearing
Keep a careful note You will not be able to write down everything a witness says but, if you can, write down short notes on the answers they give. If you have a #McKenzie Friend with you, it is easier for them to take notes for you. If the witness says something important, write it down word for word. It is helpful to remind the judge of the words used later and to use them to make an argument when making your closing submissions
Do not comment on the answers given When the witness has given their answer, move on. It can be tempting to say “Aha!” or “That’s right”. Remember, you are only supposed to be putting your case. Ask closed questions When #cross-examining a witness, it is best to ask closed questions and leading questions. This usually means questions with a yes/no answer, This means you can lead a witness up a path where you want them to go. When you ask open questions, the witness has time to think of answers and you can forget what path you are going up. For example: Don’t ask: Where would you live in Australia? Do ask: You haven’t found anywhere to live in Australia, have you? Only ask one thing at a time - Try not to string your questions together into one long question. It is too difficult for the witness to answer lots of questions at once. Only ask about one fact at a time. For example: Don’t ask: You haven’t found anywhere to live in Australia or a school for Peter because you haven’t given any thought to Peter’s future have you? Do ask: You haven’t found anywhere to live in Australia have you? No You have not got a school place for Peter have you? No So you have not given any consideration to Peter’s future in Australia have you? These are not carefully thought out plans are they? No Ask about any inconsistencies At times, a witness can say inconsistent things in different statements or make different comments to, for example, a # CAFCASS officer. (suggesting that one of the statements is wrong), or there will be evidence or a document which contradicts their statement. When you are #preparing your cross-examination, check all of the other side’s documents for mistakes like that. If the contradiction seems important, make sure you ask the witness about it. When you do this, make sure you have written down the page and paragraph numbers of the contradictory statements. Ask them which statement is true. Then say to them why you think one statement must be untrue. For example: Please look at page ten, in the second paragraph. Yes You said that you have found several properties to rent, didn’t you? Yes Then look at the CAFCASS report at page 46, third paragraph. Yes You said that you have not found anywhere to live in Australia, didn’t you? Yes Which one of these is true? Well we started having a look, but.... So you have no idea where you are going to live do you? Yes Don’t argue with the witness In the above example, it could be tempting to say, “You can’t know where you are going to live if you have not found any properties to rent, can you?” You just want to take Peter far away from me, don’t you? Do not do this. Save it for your #closing submissions. You have made your point already. If you start making arguments to the witness, you will give the witness a chance to come up with a better answer. Stop while you are ahead.