“Answer yes or no!”

Sometimes when you ask a simple factual question, the witness doesn’t seem to want to answer it at all. The exchange might go something like this:

Q: Did you read the Claimant’s personnel file and previous appraisals before deciding to dismiss?

A: Well we took into account everything that was relevant and although the Claimant had performed quite well during his first few years, it was really the last period after the restructuring exercise that we were interested in…

Q: Did you read his previous appraisals?

A: What you’ve got to understand is, well of course we considered everything in the round, but when it came to it in the final analysis and of course bearing in mind the kind of exercise we were been going through [witnesses really do go on like this] it wasn’t about his previous performance, it was ultimately about the incident arising out of his response to the January 2007 reorganisation.

When the question – like this example – really does admit of a simple yes/no answer, it is fair to insist. Even then, a bad-tempered ‘Please answer yes or no – did you… (etc.)?’ can look bullying, and is probably not the best way of getting to the answer anyway. Better is something like:

Q: Does that mean no, you didn’t read it before deciding?

At the same time, do bear in mind that you are not necessarily entitled to insist on questions being answered with a simple yes or no: sometimes that will genuinely give a misleading impression, and the witness is entitled to explain why. For example:

Q: The date on this letter is 24 September isn’t it?

A: Yes, but that is not really..

Q [interrupting]: Thank you! So you…

Judge [interrupting the questioner]: Let the witness finish her answer.

A: The date shown at the top of the letter is 24 September, but that’s not the date it was written. This was a letter very like the letter I wrote to Mr Jones the previous week, so what I did was open that file, copy the contents, save into a new file and then edit it. Unfortunately I forgot to change the date.

If you were too impatient to ‘bank’ what you thought was a useful admission, you won’t have found out what the witness’s explanation is. One possibility is that the witness is making it up as she goes along. If so, then you don’t want her to give it for the first time under re-examination by her own side, because you will have lost your opportunity to probe further or challenge it. For example, given an explanation like the example above, you might (if you are fairly sure the witness is lying) usefully continue:

Q: So you say this document was actually created on 5 October?

A: Yes.

Q: So if you get a colleague to email it to the tribunal over the lunch adjournment, we will be able to see from its file statistics that it was created on 5 October?

A: Er… well I’m not sure anyone but me would be able to find it and anyway I’m not sure I was actually at work when I wrote it, I may have written it on my laptop which got stolen over Christmas…

By now the witness is looking fairly shifty.

The other possibility is that the witness’s explanation was a good one, with the added merit of being true. That’s bad news for you, obviously. But the likelihood is that if you don’t let her give it in cross-examination, she will be given the chance to clear it up in cross-examination anyway – so you might as well hear it now. At any rate it may help you focus on what matters in the rest of your cross-examination.

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