Tagged: cross-examination

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Appeals and reinstatement/ re-engagement

Employers, as we have remarked before, tend to hate the idea of re-employing an employee they have dismissed (see Reinstatement and re-engagement; but also Be careful what you wish for ). They will normally insist that it is not practicable.

One point to bear in mind in this context concerns your appeal against dismissal. Your employer presumably maintains that the decision-maker approached your appeal in good faith and with an open mind. It would seem to follow that if you’d won your appeal, you would have been reinstated – or conceivably re-engaged. It’s worth exploring that a bit when you’re cross-examining the person who heard your appeal, to make it harder for your employer to say later on, when you’re arguing about remedies, that it’s not practicable to re-employ you. If it was open to the decision-maker to allow your appeal and let you return to work, why isn’t it practicable now?

This isn’t bound to succeed, of course: things may genuinely have changed between the appeal and the ET hearing; or some of the reasons why you lost your appeal may contribute to its being impracticable to re-employ you now, even though your dismissal was unfair. But it might usefully block some of your employer’s lines of escape.

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Mark Bennet on Cross-Examination

In planning a cross-examination, we start with statements that the witness can’t deny without appearing dishonest … leading to statements that the witness could credibly deny but for the first level of admissions, then to statements that the witness could credibly deny but for the first two levels of admissions, and so forth. Just like building a pyramid. The objective at every step is to make a statement that the witness has to either agree with or appear dishonest.

From Empathy and Cross-Examination

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Cut-and-paste witness statements

Sometimes you find identical passages in two (or more) of the respondent’s witness statements. It’s obvious what has happened: whoever has drafted the witness statements has either cut and pasted passages, or – more likely – used one statement, edited and partly rewritten, as the basis for another.

Is this allowed? Does it mean the witnesses have colluded? Does it mean some or all of them must be lying?

Yes, sort of, and no.

Yes

It is perfectly permissible for all the statements to be written by one person. If solicitors are acting, drafting statements will be a normal part of their job. The tribunal won’t be surprised or shocked by evidence that the witnesses didn’t write their own statements. Drafting the statement and providing the information that goes into it are two different jobs, though: the witnesses probably won’t have done the former, but they certainly ought to have done the latter. (See further Witness statements have to be true.)

Sort of

The respondents’ witnesses will almost certainly have discussed their evidence with their representative and each other, and it is possible that they have reached a consensus on things they initially disagreed about. That’s ok: no-one expects witnesses on either side to be kept isolated from each other. So in this limited sense, yes: certainly the witnesses on the other side will have ‘colluded.’

No

It doesn’t mean the witnesses have to be lying. Collusion in the bad sense – that is, all getting together and agreeing to tell the same lie – is not allowed, of course. But the appearance of identical passages in different statements is much more likely just to mean that the solicitor has taken a bit of a short-cut when setting out the evidence of the different witnesses. The witnesses all agree broadly what happened anyway, and the solicitor hasn’t bothered to draft statements that reflect the subtle differences between them. As long as they have all read their statements and satisfied themselves that they are true, that’s legitimate.

Where does it get you?

What this means is that simply pointing out that the exact same passage recurs in two or more of the respondent’s statement won’t score you a direct hit. But it is certainly worth some thought about whether it shows weaknesses in the respondent’s preparation.

That means thinking about the content of the identical passages. If two witnesses start their statements by describing in the same terms what sort of business the respondent is, or give identical accounts of how it operates its flexitime arrangements, for example, it will be very difficult to get the tribunal to see that as sinister (though they may be a bit irritated at being told the same thing twice). But if two witnesses give identical accounts of an incident that they both witnessed, it’s more suspect: two witnesses rarely notice and remember exactly the same events, and this does tend to suggest – at best – that they haven’t properly taken ownership of their statements. Just pointing out the similarity still won’t get you very far in itself – but it might get you somewhere in conjunction with other material. Your cross examination might go something like this:

You checked your statement carefully before you signed it and swore to it?

So you’re sure that everything you say in it is true?

So when you say at paragraph 32 “Waa waa waa…” – you’re sure of this?

You’d remember that because …. ?

Would you turn to page 351 in the bundle. It follows that “Waa waa waa… ” can’t be right, doesn’t it?

Would you turn to Ms Cox’s statement, paragraph 24 – she says exactly the same thing doesn’t she?

And have a look at Mr Ashmead’s paragraph 39 – he says it too?

By this time both the witness and the respondent’s solicitors are looking a bit silly. How silly depends on how important the evidence in question is, and how completely the document at page 351 shows it to be wrong. But certainly sillier than if only one witness had made this mistake.

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Navigating the bundle

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.

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Dogs that don’t bark

Inspector Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Inspector Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

People are often worried about missing evidence. For example, a claimant knows that most internal communication between his employer’s managers is conducted by email. But, during the disclosure process, no relevant emails are disclosed and their existence is denied.

One approach is to try to persuade the tribunal to allow you to dig out the information. Theoretically, a computer expert could be instructed to search their system and recover relevant evidence. This, however, will be expensive and extremely disruptive. It will almost never be considered proportionate by the tribunal and in the vast majority of cases it is futile to even try.

In 999 cases of 1000 the appropriate course is simply to cross-examine and make submissions on the missing evidence. You can point out just how implausible it is that no emails were sent. If it really is terribly unlikely, and you can convince the tribunal of that, they are likely to draw very negative conclusions about the Respondent’s credibility and conduct.

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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.

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No comment

If you are cross-examining a witness, don’t comment on his answers.

That needs a little explanation. You can ask follow-up questions of the sort “But that makes no sense, does it, because…?” You can contradict: “But if you turn to page 247 of the bundle, we can see that that can’t be true?” You might even want to summarise the last few answers for impact: “So you’d seen Chris crying at her desk more than once in the last week, you knew she’d recently been off with stress, you were aware her GP was asking for her to be given a less pressured role, you’d read the OH report, you knew the Productions Team was under exceptional pressure, you knew the team leader had the reputation of a bully – and knowing all that you thought transferring her to Productions in the final month before the launch was reasonable?”

In a sense those sorts of questions are comments, but they are comments of the kind that call for an answer, and so a legitimate part of cross-examination. The point is to put the witness on the spot.

But comments like “We don’t agree with that,” or “We’ll have to agree to differ there,” or “That’s just not true!” don’t put the witness on the spot at all – you’ll either get a shrug in response, or a bit of panto of the “oh yes it is!” – “oh no it’s not!” variety. Neither takes the case any further forward.

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Guest post: Rebecca Tuck

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Cross-examination

It is vitally important to have a plan of all the points you need to cover when questioning a witness. You will usually have page numbers of documents you need to refer to along side each point. I tick each point off as it is covered.

I think that it is best not to have a script. You should listen carefully to the answers you are given because frequently you will then “piggy back”, and ask questions on the back of the answer you have just received.

You need to make sure that you put to the witness all the disputes of fact – even if you are sure they are just going to deny what you ask. (Preferably without saying “I put it to you…”) But remember, while you must give them the chance to deny it, you should try not to give them the chance to re-state their version – ask closed questions.

Finally, it is important to bear in mind that to “cross examine” is not to “examine crossly”!

Rebecca Tuck is a barrister specialising in employment law at Old Square Chambers.

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Guest post: Benjimin Burgher

benjamin-burgher2

What did you find out the hard way?

I found out something I already knew but decided to ignore. Simply do not ask a question you are not reasonably sure of the answer to!

I was involved in a lengthy discrimination claim acting for the Claimant. A key issue was the recollection of one of the Respondent’s witnesses in relation to a meeting that had taken place some 2.5 years previously. There were no notes of the meeting and under cross examination the Respondent’s witness accepted that he had not taken any notes of the meeting . The level of detail given by the Respondent’s witness of the meeting was stark in its depth and precision. I suggested to the witness that he could not possibly have that level of recall.

Nothing wrong with that question. If only I had left it there. When he said that he did have that level of recall I asked him to recount the first question I had asked him during cross examination. We were, by this stage, 15 minutes into the cross examination. He responded by recounting word for word, in the correct order, what I had said including the mistake I made in turning to a bundle page number and the tribunal member’s interjection confirming the bundle page number and then proceeded to recount my subsequent question before I had to stop him and move on. He had a photographic memory and as far as his recollection of the meeting 2.5 years previously was concerned the issue was clearly against the Claimant and need not have been. Very painful at the time.

Benjimin Burgher is a barrister specialising in employment, discrimination and commercial law at Outer Temple Chambers, and a fee paid Employment Judge.

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The point of cross-examination

It is always worth remembering that the point of cross-examination is to convince the tribunal.

Often people get confused about this. Often they seem to think that the point of cross-examination is to break down the witness and make him accept that he is wrong or lying.

This never happens.

Or to be more accurate, it so rarely happens, that it is not a worthwhile objective. Human nature being what it is, people are reluctant to admit that they are wrong and even more reluctant to admit they have lied. This is especially true when they are in a public, potentially embarrassing situation, such as a tribunal hearing.

In practice therefore, even when a witness is confronted with cast-iron evidence, they are unlikely to radically change their story.

This, however, doesn’t matter very much. Your aim should be to get whatever useful admissions you can and confront the witness with the evidence. If the evidence is strong, whether they accept it is largely irrelevant. The tribunal will see that their answers are inadequate and unconvincing.

Once this has been done trying to make the witness give up and accept your account of events is unlikely to work. It is more likely to waste time and obscure the point you are making.

Always remember that it is what the tribunal thinks that matters.