Cross Examination part 2
Learning how to cross examine effectively is one of the most difficult skills that any aspiring lawyer has to learn. Two things are absolutely crucial. Firstly, mastery of the rules of evidence and procedure. Secondly, mastery of the facts of the case.
This is part of a series describing various aspects of the rules of evidence. Of necessity it must be brief and summarise some of the more important parts. However knowing and understanding the rules of evidence is a critical part of effective questioning. You must know what you are allowed to ask and why if you are going to examine effectively. Imagine a footballer playing centre forward who does not understand the offside rule. (Setting aside for the moment the fact that since the issue of who precisely is "active" for the purposes of offside has made that notoriously difficult to apply). He would not know what he was to avoid doing so as to mean any goal was disallowed, and therefore would not know how to time his runs. Ignorance would make it difficult to use his natural ability effectively. It is the same with cross examination. If you have a thorough grounding in the rules which have to be applied, then you can focus on deciding exactly what it is you should be asking. If at the same time as trying to think of effective questions you are having to rack your brains to decide whether they are ones you are allowed to ask in the first place, you are hardly likely to succeed in cross-examination.
The same applies in respect of the facts of the case. Unless you know all the relevant inns and outs of the case, you will be straining to recollect those rather than having them at your fingertips so as to know how best to respond to any comment made by a witness under cross-examination. Once you know the facts you will know what ammunition you have. It may be good or it may be poor, but if you do not know what you have in the heat of cross-examination it will be extremely difficult to decide how to use it.
The other side's lawyer may object to a line of questioning. It may be on the basis that the evidence is for some reason inadmissible, or irrelevant, or because of some technical or procedural objection. If your opponent makes an objection whilst you are questioning, you have to deal with it there and then. If your knowledge of rules of procedure and evidence is suspect, you will not only struggle to respond to the objection, (which in itself is likely to encourage a whole rash of them), but you are likely to be put out of your stride when you return to questioning.
Knowing the rules and knowing your case will not of themselves make you into even a competent, let alone skilled, cross examiner. However they are the building blocks. Cross examination is always difficult even for the most skilled practitioner. For anyone, let alone a novice, to approach it without hard work on the rules of evidence and procedure and the facts of the case is professional self-mutilation.
This is particularly so because of all the areas of law evidence and procedure are the ones most difficult to predict in terms of what will happen in the case. Whilst things can always arise unexpectedly in a case, it is usually pretty clear which areas of general law are going to be covered. If it is a contract case, the parts of contract law which are relevant likely to already be apparent. That gives you plenty of notice to work on them. Evidential and procedural points can arise in an instant. They are much harder to spot, and when they do arise there is usually next to no time to research them. That is why any cross examiner needs to be on top of them.