Re-examination

After the respondent’s representative has finished cross-examining your witness, you have the chance to ask some further questions arising out the cross-examination. This is called ‘re-examination.’

The purpose of re-examination is to clarify matters on which you think the cross-examination of your witness has produced a misleading impression. It is not a chance to ask some more supplementary questions that you forgot to ask the first time.

To a non-lawyer, this can sound like one of those arcane rules that have no real function except to make the whole process complicated and intimidating. But it does actually have quite a sensible purpose. If you introduce new material after your witness has been cross-examined, that means there is material that the other side has not had a chance to challenge by cross-examination. So they will have to have another go after your re-examination. That way, the two sides could play ping-pong with the same witness indefinitely. The point of confining re-examination to matters raised in cross-examination is to make sure that once re-examination is completed, the witness can be released.

If you realise at this late stage that you have forgotten to ask something important of your own witness, don’t try to slip it in under the guise of re-examination – the tribunal is much more likely to be annoyed than fooled – just admit to the oversight and ask permission to correct it. Be ready to explain why the omitted material is important.

It is rarely a good idea to re-examine at length. The danger is that returning to a point on which you think your witness has given some damaging answers will simply serve to underline for the tribunal the weaknesses of your case. Your witness may well be tired and anxious by this time – further questioning on an area in which she previously got into difficulty may just make her look increasingly shifty.

As a rule of thumb, only re-examine to clarify a fairly straightforward factual misunderstanding. And bear in mind that the prohibition on leading questions remains in force: if you don’t think you can get the answer you want except by saying to the witness something like ‘The real explanation for this was p,q,r wasn’t it?’ don’t bother trying. The witness has to be able to give the explanation herself, or it is no use.