Judicial Collision part 5

Sometimes a problem with the judge arises in relation to questions which he or she will or will not allow to be put to witnesses, or in respect of the steps taken by the judge during cross-examination.

Of course some disagreement is perhaps inevitable and it should not be thought that this by any means is solely the fault of the judge. In many cases the judge will be intervening or commenting (whether or not in response to an objection from counsel for the other side) because counsel is trying to put something which either should not be put or is irrelevant.

Sometimes a question can be put in such a way that the answer is equivocal. So for example a barrister might be cross examining a witness about what he or she knew at particular times (which may be important for the cause of action). However by switching the timescale of the questions (so that instead of approaching things in a chronological order counsel is hopping about forwards and backwards in time terms) a question can be asked about "what did you know" without it being clear to the witness at what point is it being asked whether he or she knew. (For example it might be crucial as to whether a witness knew a fact as at the date of the deal the subject of the litigation which occurred say on February first, and the witness may have in reality found this fact out at a later stage but that does not affect his or her ignorance of it as at the first which is the only relevant date. If in the course of cross-examination the witness is asked a question say for example by reference to "at that time" when the questions have been hopping about between different times, the witness may not realise which time is being talked about. In consequence the witness might give an answer which could be at best equivocal and the worst misleading. Obviously the barrister asking the question will be relying on it at the end of the case in the closing speech to suggest that the witness did indeed know the fact that the crucial date when that might be entirely wrong. It is fair to say that sometimes this form of questioning so far from being inadvertent is deliberate in an attempt to confuse the witness.).

In an important civil trial leading counsel once asked such question in equivocal terms, and received an answer which might have meant one thing, and might have meant another. At the conclusion of the cross examination of the witness the judge pointed out that the answer might mean that the witness had known this at one time or at another time and asked which it was. There was an eruption from leading counsel who would cross examined. "My lord is misleading the witness" he said (which on any view was totally unjustified). The judge was somewhat taken aback by the ferocity of this comment and pointed out that he was merely trying to find out what the witness was saying. Leading counsel continued: "I had a concession which my lord should not have interfered with". Again this was erroneous. If the judge had been trying to get the witness to withdraw a concession that would be one thing. However the "concession" had been equivocal. Litigation is not a game.

It might have been thought that the judge should have left that for re-examination but this also would have been incorrect. In re-examination you cannot put leading questions and cannot effectively cross examine your and witness. There might have been considerable argument as to what exactly a question in re-examination was tending for, and whether it was suggesting an answer. Even if it was not suggesting an answer, if an objection was taken in front of the witness, the point might have been made that the witness was likely to take the side that was being argued for by leading counsel on his or her side of the case (i.e. the side which called the witness). There would no doubt then have followed an argument that any "change" was devalued by the circumstances in which it occurred. Judicial collisions can sometimes arise because the judge is doing his or her job, regardless of how inconvenient that might appear to any of the counsel involved.