[BRIEFING NOTES ‘Communications Techniques Appropriate communication techniques applicable to all tral skills include demeanor, green ‘ole projection, pace, cadence and silence, facial expressions, § Holdace of disracting gestures and verbal habits Bvoldinguse of notes Examination in Chie ‘Through this exercise you will demonstrate effective Examination in Chief sills, whe, wre, Whe Wie 6, Hh, eso, Sa ona rel a. The“five wives and one husband: Not using closed “yes or no" questions beginning with” “Are” “Did” “Can” “Could” ‘c_Ask simple, short, understandable questions without using aw jargon, 2 Tollastory through the witness, 3, Maintain control of the order and organization ofthe examination 1. use narrow questions to direct the witness's testimony. 1. Frame open questions usin us : 4 Develop an organisation that interesting cyto flow and persuasive ‘a. Start and ends strong |e, utlizing the coneepts of Primacy and Recency. 5 Ask enough questions to develop the detail ofthe story. 4 Develop the credibility ofthe witness by asng relevant background. 7, Listen to the witness and ask follaw-up questions. oe Useeffective questioning techniques wed g tanto statements — Cal d\ oop 49 fick 12 (Cross-Examination - ‘Through these exercises you will demonstrate effective Cross Examination Skills 1 The primary goal of ross examination istoell your story through the witness “Rather than to only discredit he witness 2. Useonly leading questions. tending estione uggs the answer, ape ‘he best ay to frame leading questions is wo make a factual statement oF asertion and ask the witness to confirm the truth of the statement. In that sense the questioner is Ystiy 4. Askonenew fact per question 2. Donot ask conclusions © Donot patito ihewines i Unless you have to for some legal reason. 8Askas series of questions that lead the judgeto a conclusion, a. Organize the facts lead toa point or eenelusion But do not ask the conclusion. Ask enough questions to develop the point. Organize the entre cross-examination into chapters. Organize the erass examination to start and end on strong points, ‘ale, use the concepts of Primacy and recency. Use ranston statement Listen to the answer and follow up on opportunities. Select important topics for cross-examination, ‘That support your cients case 1b Notjustto make the witness look bad The goal is to persuade the judge ofthe justice of your case wep sew Techniques to Control the Witness on Cross Examination ‘Summarized from Posner & Dodd, cross Examination Science & Techniques > Short questions; one fact per question. Eg, “Thecar was blue, wasn it" > Keep eye contact > Repeat the question until itis answered > Ask, repeat. reverse. “Q. You signed this document? A. (babble) Q. You signed this document? A. (babble) Q. You didnot sign this document? A. No,T signed it” > Shorten the question as you repeat it. “Q. The =ar was blue, wasn’t it? A. (babble) Q, Car blue? A (babble) Q. Blue? A Yes it was blue” Appropriate voice inflection and body language helps with this one, > Elimination. "Q. The car was blue? A. (babble) Q.The car was black? A. No Q. The car was red? ‘A.No, Q.The car was purple? A. No, Q, The carwas pink? A. No. Q.The car was blue? A. Yes, the car was blue > Shaken Finger or Head, > Objection to non-responsive answer. (I personaly dant ike this and not have to ask for help.) because | want tobe in control ahead of time the witness wil avoid. > "My question was [ors)..." > “That didn’t answer my question, didi?" Ifthe witness says that it did, then ask; “What was my question?” > “What was my question?” Start with asking the witness to state the question. IFthe witness gets i right, ask: “Then please answer the question” If the witness get's It wrong, then ask your ‘question gain. “Then your answer is yes?” > “Ife truthful answer is yes wil you answer yes” c soe v‘Impeachment aes ‘By prior Inconsistent statement 1. Therearemany other metnds of “impeachment” 2 "wemory a B as : meres” ~ Regedses @ Perception _ quequlenh wrt E Ladkof knowledge 2. Only impeach bya prior inconsistent statement on important point. et a pull 5. Onlyimpeach bya prior inconsistentstatementon lene contrctetons———eact pall ‘a failed impeachment does much harm to the lawyer's credibility. - Bomahion 4. Using the 3 “Rs” method. = Reowvay | ‘A. epeat (What they said in thee testimony) valued B. Make Reliable (What they usualy say/ write n ordinary course of busines) Read (What's nthe document being sed to impeach) AFTER wines teteiolieomning be deeamest |) Lea A akyin tla lncesulenuy ‘THERE IS NO“E" \ ¢ Seta . q BONOT ask to explain \_% bet hubits SAMPLE Exhibit Checks (wil key require adjustment for ub in your ursdcion) (@ Use a transition statement, "Your Honour now wish to refer toa (series of) documents/tems (© Provide opposing counsel wih a copy ofthe exit or extalsh forthe record the counsel slredy has copy also provide jige with copy ot requst the uage am i oppose cours touurntoa parla page otis trol bundecestsning ne oie (© Respond oan objections mad by opposing counsel regarding the exhibit (Ms doyou have before you"? (6) Request thatthe item be marked for identification (M-F-1 1.2.3) {0 Establish sufMiclent foundation fr the witness to be able to identify the exhibit seuisemiesraae eae yh Se eee oo ‘© Who authored the document Witte cee ae 2u A Soa ae ee es Donde a ee rere waaae| 3, SUut Relevance 4 {Authentication 5 Maltuny @ Valves 7 Qutthens 0Hearsay Analysis Iv. Original Writings (Fnecessary) Apply tothe Judge to have she exhibit earlier marked Ml tobe marked as ExMibE-(1.23) ‘Wait forthe confirmation by the Judge and cau clerk about the exhibit number given. vi Have the witness talk about the exhibit Vit. Aslequestions to have the witness explain how they ae able to credibly talk about the ean Dat, Signature, Contents, Features, Letterhead, 1D number, handwriting ROY uci Statement ee “Through these exercises you will demonstrate effectve Opening Statement Skil 1. 2 a ‘Tell an effective factual story of the case Have and explain a clear theory ofthe case. a. How the facts ft into the law so that your cient wins. iti how the judicial officer can find in eur client's favor given the facts ofthe case and under the law that applies. 2° For example, “theory ofthe case” fora criminal charge of assault might be: C"Taentification Tewasn’t her" li, Seifdetense “She was protecting herselt” ii lbs “she wasn't there: Usea persuasive theme. a. "The theme isthe moral reason ‘your client] should win. lt is why the [judicial officer] wants to decide the casein thelr favor. A good moral theme identifies an Injustice that Js being committed against the cient znd empowers the Judicial officer] to right that wrong! Charles Rose theory ofthe case 1 Eg, “Nude, but not Lewd I, Similar tothe refrain of song li Used throughout the trial Some methods to develop a theme: i "Binish the statement, “Ths is a sase about." to convey a theme that advances your client’ cause. But do not actually usethe phrase “This is acase about I, Use a dramaticbit of testimony o statement from an exhibit Hi Use an old saying ‘The "moral ofthe story" iv. Popular culture Movie titles Songs ‘Show a clear and effective organizational structure. Etfecively deal with the weaknesses ofthe case a. Turn them to strengths when possible. i “tudo taw" u— ae resent only what soucan diver duringhe evidences Use primacy and recency” by starting strong and ending strong, DONOT use notes a. Demonstrate command ofthe facts and issues in the case, 1 Show confidence and beliet in your client's case, Through these exercises You wll demonstrate effective Submissions Skills. Submissions are the story ofthe trial ‘4. Much asthe opening isthe story ofthe ease. Persuasively articlate your theory ofthe ease. Use your moval theme Show knowledge ofthe law a. Argue the Law effectively. 3 Appropriately ct to persuasive authority €. Adknowledge opposing authority f. Distingulsh it li. Orargue ar change inthe law. Use an organized presentation Argue the credibility of witnesses. Explain why you should win based on the evidence, a. Connect the fats ina helpful way to complete the story '. Use analogy, comparisons, rhetorical questions and repetitive techniques such as triads to persuade the judge Relate the facts othe law. ‘ell the Court what you want The “prayer: i But don't beg ‘You ate asking for justice i Not sympathy Use exhibits and visual alds. DONOT use notes. ‘Demonstrate command ofthe facts and isues in the case. '. Show confidence and beliein your client's case. 2You are here Ff 1 2 3, How do you prepare to ross examine an expert? How do you prepare to cross examine an expert? by Ranjit Uppal S October 2016 {Inthe third part of our annual series celebrating the nominees forthe Solicitor Advocate of the Year award at the Law Society's Excellence Awards, Ranjit Uppal provides a 10-point guide o help young advocates begin to ‘develop their own style and techniques wen eoss-examining experts Since gaining my Higher Rights, Thave developed my oven style and approach to preparing fora contested hearing and eross-examination. Inany given hearing, you may be challenging psychologist, psychiatrist, independent social worker, or 8 paediaircian, Whoever you may be facing as all advocates should know, te key to successil cross- ‘examination is thorough preparation. It may seem obvious, but unless you have read all ofthe papers and understand your ase inside out, you will aot be reaching Your tru potential as an advocate ‘So how do you prepare to challenge an expert witness? It is very important atthe outst of a case to list the key ‘issues the court i being asked to determine. denying the Key istues will help guide your questions when preparing for cros-examination [kis also important not to ask every possitle question in crss-examination, bt to focus onthe celevant issues. “This assists the judge in preparing their judgment, and it shows that you are pickin the strongest points in your case, providing for more powerful ecoss-eamination, and ultimately foe more persuasive submissions. [is always best to avoid the Scenario whereby your client provides you with alist of $0 questions and requests that ‘you putall these questions to a witness. Its the role of the advocate, nt the client, fo decide what is relevant in tis often helpful to explain to the client what issues the cout is being asked to determine. You may also wish to 10 over the legal points that are being comidered, and why you helicve the questions that you have prepared are focused and relevant forthe purposes of asisting the cour in reaching a decision and in challenging the relevant ‘expert witness evidence. Again, iis the role ofthe advocate to decide the witnes is ‘Top tips for cross-examination of a professional witness/expert 1. Adentify all of the cal dar dates relevant tothe witness. For example, identity on whieh dat: + the letter of instevction was submited 4 the relevant statementspleadings was sent to the expert + ierviewslassessments were caried out + the report was prepared (Otten an expert will have received a leer of instruction with the relevant documents attached, ad they will, ‘commence their inlerviews with your ele forthe purposes of preparing tei report for the cout. In many iimawaorpuactea ata cseytowdsao Hw oyu pg ot ain apr -Te «cases, key documents are not ineluded in the orginal leer of insruetin, oF they ae sent much later during the ‘ssesumient process ft all, Therefore careful sertiny of what documents have been sent and by whom, and identifying whether there are any gaps in the expert's knowledge of the case, is highly relevant when preparing to challenge the witness's evidence voy ‘Om occasion, an expert may well have conducted tele interviews with a client and have received information far too late for them to have asked or explored issues in the documents. This may well have had an impsct on the analysis and recommendations in thie report. Iitean be shown that there has been & failure inthis par of the process it will demonstrate that the expert witness and their recommendations to the court may not be as persuasive as fis thought. I also highlights any ‘opinions that may be based on incorrect Facts ithe relevant statements have not been read by the exper. 2. Do some research on the relevant expert or professional witness cis always helpful to carey check their CV do they actually have the necessary skills and qualification to fully understand the issues the cout being asked to address? For example, a consultant pacdatrician may star to comment on issues surrounding attachment between a patent anda child which ate not within thie field of expertise. Ora social worker may go beyond their concern and make references to meatal health issues or psychological behaviour ofthe clint. ci always usc to check in what rca the expert has trained or undertaken research. In some cases, an expert can be challengal for going beyond ther field of expertise. 3. Check whether there isan industry standard framework for the relevant assessment procest. This could be parenting assessment undertaken by a social worker, a eogtive function assessment, a capacity assessment ‘or Beneral Tull psychological assessment. In any case, the relevant wimess may not have adopted the standard practice within their Geld ‘The witness could then be challenged as to why they had not used national best practice guidance within theit ‘own field. Also cross-reference the expert's professional body and se ithe assessmen/Teport confers to the best practice guidance 4. Consider how many and the quality ofthe meetings the expert has had with your elient, Hive they had ‘only one meeting ofa numberof meetings? What was the duration of those meetings? sit sulicien?? Also, what was your client's fame of mind during the assessment process? There could be an extemal reason for ther performing badly during an interview session (ew were they il? 5. Consider whether reasonable adjustments were made for your client, First, consider the number of mectings the expert had with your client, Was it one-off meting, and if'so why ‘were additional meetings not afered to your client? Determine how long each meeting Was suppose! to ast and whether the meeting has lasted fr the fill planned duration. Again, ifthe interview times were quite short or too Fong, this may have had an impact upon your client’ ability to engage with the expert I my client is vulnerable, has learning difficulties or mental health difficulties, would be ying to =stalish ‘whether any appropriate adjustments had been made for them: far example, using visual ads or having breakout session, or offering a numberof sessions as opposed toa full day astessment, the elient attended any meetings lat, i there a season for this, el health, public transport delays ete? 6. Determine whether any parts ofthe assessment process were delegated by the expert (0 work colleague, and ifso, whether this was entirely appropriate. assistant or If the exper is drawing conclusions, for instance, from psychometric assessment tests or any other mechanism, then i is important that appropriate supervision was given ifthe client had been interviewed or had spoken to pssimlaucoelyre acco seasatocsyhan ayer pee weenie epee 2‘more than one exper: during the preparation ofthe report ‘On occasion, an expert may delegate tasks toa junior member oftheir team, for example to read the papers and summarise them, or they may workin pais. Iti important o identify who has dane what in the preparation of the report, as you may wish to call more pole than just the author of the ror if there are factual inaccuracies. 7, Ask for the expert's notes of all meetings and discussions between your client and any other party or professional witness Ths helps to verify whether al actual content is corect. Notes often provide mare detailed contemporancous evidence, especialy if they ae prepared at the time ofthe meetings 8. Consider whether the expert has repeated factual information having read the court bundle and ‘statements and pleadings within it. Have these ben accurately recorded? Has the expert misunderstood the facts in th case? Has the expert perhaps overlooked a Key fact which may have inlucneed their analysis and recommendation? Remember there may be disputed facts in the case; is Tor the judge to make decisions of fact, nat the expert 9. Discuss with your client the section ofthe report where the expert witness has recorded your client's cussions during the assessment process. Docs your client agree with the summary of the discussions recorded in the report? Your client may well dispute te factual recordings of the interview process. IPS0, these red tobe identified and cart with the exper dung eros-examination 10. Ask the witness whether they have considered alternative recommendations.When challenging tual ‘opinions and recommendations, iis often helpful o pat tothe witness whether they have considered the alternatives and what factors led them to reach the conclusions they have made (n some instances, experts will ‘often focus onthe negatives to justify a negative conclusion, However, itis important to focus on your elient’s positive case and to therefore pt the positive examples to the expert ad ask them to confirm that they agree a ‘number oF positives do exist ‘The purpose ofthis line of questioning ise have the expert concede that there are positives in your ease and that they have not given enough weigh o them. Alternatively, in your closing submissions you can highlight thatthe expert has failed to consider the positives in thei report and has attached insufficient weight to then Remember, les is more, so above all els, keep your questions relevant and to the point The day that you can stand up in court and say tothe judge, “T have no questions for this witness, Your Honour’ willbe the day that yot begin to feel truly confident in your anlitis as an advocate