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.

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.

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.

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.

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”!

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.

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.

It seems that quite a few of those who find this site are looking for help with deciding what kind of questions to ask their former employer in the course of the hearing. In other words, they want to know how to go about cross-examination.

We have written quite a lot on this subject in our book.

We have also written a number of posts about various aspects of cross-examination on this blog – you can find these by using the index or the search box.

The questions you will need to ask will depend very heavily on what you are trying to prove. Probably the best thing you can do to get a feel for how this works is to sit in on some hearings at an employment tribunal. If you can, visit one of the larger employment tribunals (e.g. Central London, Stratford, Croydon, Watford, Ashford, Cardiff, Bristol, Birmingham, Manchester, Leeds, Newcastle, Edinburgh, Glasgow) and aim to listen to bits of several short hearings, preferably in cases in which at least one side is represented by lawyers. If you get to the tribunal at 9 o’clock or soon after, the clerks may be willing to point you in the direction of a suitable case if you explain what you want.

Employment tribunal hearings are normally held in public: you can come and go as you please, and there should be no need to identify yourself or explain yourself in any way if you don’t want to. If you’re asked, it should be sufficient just to say that you’re a member of the public.

If you sit at the back of one hearing, and you don’t find you understand a word of what’s going on because it’s day 9 of 17, don’t feel you have to stay until there’s a break: you can slip out at any time and go quietly into the back of another hearing room to see if there’s anything more enlightening going on there.

Claimants often feel disadvantaged by the fact that they are the only person giving evidence on their own side, while the employer turns up mob-handed.

Don’t let this worry you. First, it’s what usually happens, and for good reason. Most ET hearings are about dismissal, one way or another. It only takes one person to be dismissed, but it usually takes at least 3 and often several more to dismiss: a line-manager, an investigator, a manager to make the decision to dismiss, another to hear the appeal, and probably at least one and often 2 or 3 HR professionals.

Secondly, almost all the people who have relevant evidence to give about what has happened in your former workplace will be employees of your former employer. Even if they sympathise with you, the chances are they will be reluctant to get involved.

Finally – it really doesn’t matter anyway. Tribunals are used to seeing a large imbalance of numbers, and they don’t decide cases by counting votes. And witnesses are at least as likely to score own goals as to advance their own side’s case. The more witnesses your former employers call, the more shots they give you or your representative at discrediting their story.

If you are represented in tribunal, you will often need to communicate with your representative. A lot of the time this can be done by discreet whisper. But this is impossible when your representative is in the middle of cross-examination or submissions. Then the usual method is passing them a note.

Notes from your client during the hearing can be very helpful – but too many can feel like sabotage. So it is worth some thought. Advisers can help themselves by discussing this issue before the hearing.

The tension is between providing useful information, and distracting your representative. They are doing something difficult and complex that requires their full attention. If you interrupt a lot you will break their train of thought, and pile on the stress. The result will be to make them less effective. On the other hand, you may have information or insight that will make all the difference.

The key is to know when to intervene and how.

When

Bear in mind what you representative already knows. Imagine that you have a wages case, and you say that your employer, Mr Smith, promised you a 5% raise from January 2008. If Mr Smith gives evidence that such a conversation never happened, there is no point in passing a note saying “He’s lying”. Your representative knows that he is, and will be busy trying to prove it.

On the other hand, Mr Smith may say something like “I wouldn’t have discussed that sort of thing. I left that all to Ms Jones, the store manager”. You may know that Ms Jones was on her honeymoon during January, while your representative does not. In that case a note letting him know will give him some valuable ammunition.

It is rarely sensible to try to give general advice about how to do something. For example, you may think that it would be better if your representative dealt with matters in a different order than he is doing. But it will be quite impossible for you to explain why and for your representative to change course during his submissions. Trying to do so will just distract him.

Bear in mind that you only have partial knowledge of what your representative is thinking. If he does not seem to be addressing a point, it is possible that he’s unaware of it, or has forgotten it. But it’s also possible that he’s spotted a problem with the point that you haven’t, or noticed that a tribunal member was reacting badly to it; or even that he thinks it’s such a good point that he’s postponing it to the end of his submissions or cross-examination where it will have most impact.

Try to take some account of how important a point is. What you’re trying to achieve by intervening is to make your adviser’s cross-examination or submissions more effective. Will the benefit be worth the cost in terms of distraction? Can your point wait until the next break?

How

Write short notes. This is important for two reasons. First, your representative will find it easier to understand and use a short note, rather than a long one. Secondly, you want to finish your note before he moves on. Even the best point will be less telling if your representative has backtrack to a point he left five minutes ago.

Write legibly. This is a good moment for large round primary schoolteacher writing – even if in fact you are a doctor.

Don’t shout. In other words – DON’T WRITE IN CAPITALS. It is surprising how much more distracting and stressful it is to receive a note written in capitals, because it does feel as if you are being shouted at.

Be prepared. Bring a pack of post-its or small pieces of paper so that you have something to write on that can be easily passed across – a lot of noisy ripping of pages won’t assist your representative’s concentration either.

Another way of dealing with this sort of issue is to agree that, at the end of cross-examination or submissions, your representative will check with you whether there is anything else that need to be covered. This allows you to deal with issues in a more organised way. If you do this, it is sensible to keep a running note of issues that you might need to raise. But be brief: while the tribunal will be happy to let you have quick whisper, they will not normally allow a prolonged conversation.

Finally: don’t take it personally if your adviser reacts quite shortly to your interventions. Under the pressure of a hearing, there often just isn’t time for the standards of courtesy you’d expect normally, and communication is likely to be reduced to the bare essentials. It doesn’t mean your adviser is irritated: it just means they’re in a situation where they have to grab the bits of information they need from you and then shut you up.