That’s not as sarcastic as it sounds. Hearings are stressful and pretty weird, and cross-examining is probably the weirdest and most stressful part of conducting a hearing. Stress and unfamiliarity do make people lose touch a bit with their common sense.

That’s why these two pieces of advice are necessary:

1. Don’t take a witness to a particular line of her witness statement and say ‘You say such-and-such in your statement, don’t you?’ There’s no point: there it is in her statement. She’s just said it. You don’t need to get her to say it again, or agree that she’s said it.

2. Don’t take a witness to a document in the bundle and ask them if they agree that it says what it says. Again: they’re bound to. You can sensibly ask if they agree with you about what the significance of the document is, or face them with inconsistencies with their statement and the document, but there’s no point asking them to agree that what’s written on the document is what’s written on the document. The tribunal can see that for itself.

When you want to draw the attention of a witness – and everyone else – to a particular line in a document in the bundle, be clear about what you’re asking them to look at. So if you’re looking at an email string, you may want to say something like ‘the third email from the top of the page, sent by Dot Walsh at 5.34 pm.’ Or if you’re looking at minutes of a meeting, you may want to say ’3 lines from the bottom of the page,’ or ’5 lines down in the 2nd paragraph.’ The holes punched in the pages are sometimes useful as landmarks, as in ‘about level with the lower punch hole.’

It’s a small detail, but in a long hearing the time wasted will add up quite a bit if the tribunal has to keep stopping you and asking where you mean.

We’ve written quite a bit about the value of being nice. As we’ve remarked before, this isn’t because we’re especially nice people – it’s just that being nice is often quite a good way of getting what you’re after.

A particular case of this is that it’s worth being pleasant to the tribunal. They shouldn’t really let their decisions about which party wins be influenced by which party they like better – but they are human, and if the case is finely balanced and someone has to get the benefit of the doubt, being the party the tribunal likes better could just tip it in your favour. So if they ask you a question, answer it patiently, even if you think it’s a silly question. If you feel annoyed with them, don’t let it show. If you think the whole tribunal system is corrupt, keep that opinion to yourself until your hearing is over. Make eye contact at least some of the time when you are giving your evidence. Laugh or smile if one of them attempts a joke.