Saturday, 25 October 2014

Cross-Examination: Understanding and Constructing The Complexities of The Vibe

Cross-examination is a fascinating endeavour. No two people do it the same and executing it effectively invariably takes time and practice.  Refining the skill involves patience, insight and reflection. Understanding the subject material is crucial, as is appreciating the outcome sought to be achieved by the cross-examination.

Instructions of the client will form a general guide as to what approach ought be taken, but they are not the only consideration. Further enquiries and / or investigations may be required and information gained from those enquiries or investigations may suggest that a different approach to the one apparently proposed by the client is prudent.  That new information may also require further legal advice to be given and that can also change the approach the cross-examination ought take.

Sometimes when you are seemingly not thinking about a case, something about it appears in your thoughts and it causes you to revisit the case and your approach to it. A case had occupied my thoughts for some time. It involved a complex matrix of facts, including:
  • Whether the parties had disclosed all relevant material;
  • Whether the lawyers retained had made proper prudent enquiries to be fully informed about the case;
  • Whether the lawyers had advised the litigants what result a Court might reach, if it had to decide the matter; and
  • What personal and financial tolls might be involved with the various options available for the case.

This case was even more complex because it also involved the children of the litigants and there was an overriding requirement that any decision made in respect of the children would be in their best interests.

I knew facts about the case that the litigants seemed unwilling to agitate. My view was that those facts could have a significant impact on the outcome of the case, if the Court were minded to take a particular view of them. That was not the only view that was open on those facts.

I had had significant discussions with one of the litigants (L1 for the purposes of this article). L1 was keen to tell their narrative and not keen to be moved from it onto any other narrative. Conversation with L1 could at times be rather difficult.

My approach is to endeavour to understand the entire case and see what impression that case makes upon me. I also try to appreciate how the Judge might view the case. Litigants are not always keen to embrace such an expansive view of their situation. Often they feel that their narrative should be accepted without challenge. That is a shortsighted view and one unlikely to prepare a litigant for the rigours of the court room experience.

I was doing something completely unrelated to the case in question when I found my mind replaying a part of the narrative of L1. My impression was that the narrative sounded forced, that it was trying to convince me of a situation or a state of events, but it was not doing so in a compelling way. I realised that I had felt similarly in the past when that particular topic was discussed by L1. Credibility was a very real issue in the case and an alternative narrative could be told about L1 that would cast them in a very different light. The alternative narrative could have a significant impact on the result of the case.

L1 was not interested in the alternative narrative being discussed. They were also not particularly interested in understanding that the other litigant (L2 for the purposes of this article) could use inferences to support the alternate case and those inferences could be supported by successfully challenging the credibility of L1.

The nuance of the forced narrative resonated strongly with me. It suggested the author (L1) was not being truthful. I thought that would be the approach I would endeavour to take, if I were charged with the task of making the alternative narrative. A provable peripheral lie is a good friend when you are seeking to dismantle the credibility of a witness. If the witness is prepared to lie about something unimportant, then they are definitely prepared to lie about the crucial matters of the case, is how the argument goes. The forced narrative impressed me as being akin to a peripheral lie and it made me wonder what L1 was trying to hide.

In the abstract it also made me happy because I thought the forced narrative could be used to support the alternative narrative, which was based on a considerable number of inferences. The alternative narrative would commence with establishing a number of discrete facts, perhaps not immediately appearing as relevant to the overall outcome sought to be achieved. Having established the first set of facts, there was a second set of facts that needed to be established. Those facts were not always apparently directly connected to the first set of facts. With all those facts now established, some observations as to behaviour could be made. It was then possible to suggest that what may appear to be isolated and unrelated events, were in fact part of a rather more elaborate behaviour that was in stark contrast to the pleasant narrative L1 wanted to tell. The further one went through the inferences narrative proposed by L2, the stronger the inferences became that L1 was not necessarily possessed of good behaviour.

The significance of attacking the character or personal behaviour of L1 was to support the overall argument that their focus was not primarily on the children and parenting the children, but rather on the social life of L1. Accordingly L2 should have more time with children.

The overall argument having been understood, a process needed to be identified by which L2 could make their case, in circumstances where there were not necessarily facts obviously appearing to support them. The opportunity to pursue that narrative arose via the narrative of L1 and the fact that at a significant point it seemed to be forced, suggesting it was not true.

Effective cross-examination is a complex and multi-layered endeavour. It need not be clear to those watching cross-examination at any given time what the ultimate goal of the case may be, but working towards that ultimate goal is crucial. Similarly within the case something may arise that causes you to change your approach, if you are to retain hope in achieving your ultimate goal. There are also times when the reputation of a witness can be seriously challenged, but it need not necessarily be restored for your overall case to be successful.

As I said at the outset, no two people do cross-examination the same. A seemingly unrelated thought inspired reflection on the case and that provided a greater appreciation of the evidence. From that I could determine how cross-examination might be undertaken. Whether the Judge would ultimately be persuaded by my cross-examination and submissions is another matter, but I was confident I could mount a compelling argument and in doing so, I would enliven the chances of the client being successful.