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Preparing cross-examination

Should you prepare a list of questions? This is a question on which reasonable people disagree. The argument is basically this.

Those against say a list of prepared questions reduces your ability to adapt to changing circumstances in court. At worst, you might dry completely when the witness turns in a direction you’re not expecting. Or more subtly, you fail to adjust your manner or style to the witness because you are reading out your prepared questions and not paying enough attention to the responses. And reading out a list of questions can make you sound wooden.

Those in favour point out that producing a list of questions allows you to prepare in a degree of detail that is hard to achieve in any other way.

There are excellent advocates on either side of this issue. Probably the best advice for those who appear in court regularly is to experiment with your approach until you find what suits you best – which may well be somewhere between the two positions.

We are both list-makers. If you’re an experienced advocate and you belong to the other camp, then (quite apart from the fact that this blog isn’t really written with you in mind) we wouldn’t dream of trying to convert you: you’ve found what suits you.

But if you’re a beginner, or you’re representing yourself, or you only appear in the tribunal very occasionally, we do recommend lists of questions. It’s much better to risk sounding a bit wooden, than to miss out a crucial topic, or annoy the tribunal by coming back to the same territory over and over. A written list can also have the advantage that – if you’re representing – you may have time to run your questions past your client before you cross-examine.

3 comments

  1. Jonathan Halsey

    A useful post: I’d be inclined to agree with you both on adopting a list of questions. A possible tip might be to have them saved in Word format on a laptop so as to enable sequential responses to cross-examination to be recorded directly underneath the question during the course of the hearing (although, technology being as it is, a handful of hard-copy versions would be prudent).

  2. Naomi

    Yes – if you’re a fluent enough typist, you can get a pretty good note of your own cross-examination this way. But never go to tribunal without a back-up paper copy of your notes: the best-behaved computer may have the occasional sulk, or you could – conceivably – be forbidden to plug your laptop in. (Confess I’m struggling to think of a situation where you’d need more than one hard copy. Mice in your briefcase?)

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