Tagged: cross-examination

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What sort of questions do you ask?

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.

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Strength in numbers

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.

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Death by post-it

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.

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“Answer yes or no!”

Sometimes when you ask a simple factual question, the witness doesn’t seem to want to answer it at all. The exchange might go something like this:

Q: Did you read the Claimant’s personnel file and previous appraisals before deciding to dismiss?

A: Well we took into account everything that was relevant and although the Claimant had performed quite well during his first few years, it was really the last period after the restructuring exercise that we were interested in…

Q: Did you read his previous appraisals?

A: What you’ve got to understand is, well of course we considered everything in the round, but when it came to it in the final analysis and of course bearing in mind the kind of exercise we were been going through [witnesses really do go on like this] it wasn’t about his previous performance, it was ultimately about the incident arising out of his response to the January 2007 reorganisation.

When the question – like this example – really does admit of a simple yes/no answer, it is fair to insist. Even then, a bad-tempered ‘Please answer yes or no – did you… (etc.)?’ can look bullying, and is probably not the best way of getting to the answer anyway. Better is something like:

Q: Does that mean no, you didn’t read it before deciding?

At the same time, do bear in mind that you are not necessarily entitled to insist on questions being answered with a simple yes or no: sometimes that will genuinely give a misleading impression, and the witness is entitled to explain why. For example:

Q: The date on this letter is 24 September isn’t it?

A: Yes, but that is not really..

Q [interrupting]: Thank you! So you…

Judge [interrupting the questioner]: Let the witness finish her answer.

A: The date shown at the top of the letter is 24 September, but that’s not the date it was written. This was a letter very like the letter I wrote to Mr Jones the previous week, so what I did was open that file, copy the contents, save into a new file and then edit it. Unfortunately I forgot to change the date.

If you were too impatient to ‘bank’ what you thought was a useful admission, you won’t have found out what the witness’s explanation is. One possibility is that the witness is making it up as she goes along. If so, then you don’t want her to give it for the first time under re-examination by her own side, because you will have lost your opportunity to probe further or challenge it. For example, given an explanation like the example above, you might (if you are fairly sure the witness is lying) usefully continue:

Q: So you say this document was actually created on 5 October?

A: Yes.

Q: So if you get a colleague to email it to the tribunal over the lunch adjournment, we will be able to see from its file statistics that it was created on 5 October?

A: Er… well I’m not sure anyone but me would be able to find it and anyway I’m not sure I was actually at work when I wrote it, I may have written it on my laptop which got stolen over Christmas…

By now the witness is looking fairly shifty.

The other possibility is that the witness’s explanation was a good one, with the added merit of being true. That’s bad news for you, obviously. But the likelihood is that if you don’t let her give it in cross-examination, she will be given the chance to clear it up in cross-examination anyway – so you might as well hear it now. At any rate it may help you focus on what matters in the rest of your cross-examination.

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Don’t pounce too soon

Sometimes, when you are cross-examining a witness, you get an answer that you are very pleased with: for example, if you want to discredit the witness, you will be delighted if he says something that can be refuted by a document in the bundle.

A cat about to pounceIt is satisfying when this happens. But try not to look too much like a cat pouncing on a mouse as you reach for the bundle to score the point. Otherwise the witness may realise his mistake in time to limit the damage. So sit still and keep a poker face while you say something like ‘You’re reasonably sure of that are you?’ If you get a yes to that, you may want to box him in even further before he realises he’s in trouble: ‘You’d be likely to remember quite clearly because…?’ With luck, you’ll have got him to confirm his evidence beyond all hope of retraction or fudge before you take him to the page that proves him a liar.

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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.

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Laptops in the tribunal

It is becoming more and more common for parties and representatives in the employment tribunals to use laptops in the course of the hearing, and most employment judges will now permit you to do this without any show of surprise.

In a short hearing you may do better with an old-fashioned notebook, but in a case running over several days or more, notes of the evidence taken on a laptop (if your or your note-taker’s typing speed is up to it) can be very helpful. There are two main benefits: legibility and searchability. Trying to make sense of someone else’s handwritten notes of evidence is tiring at the best of times – and late at night between days n and n+1 of a hearing is not the best of times. Having completely legible typed notes that you can search for a particular word in an instant (ctrl+F is a much under-used keyboard shortcut) is extremely time-saving and convenient. If you are taking the notes yourself, you can highlight or bookmark key sections as you go along; and you can paste extracts from your notes of evidence into your written submissions.

If you have a voluminous hearing bundle, save an electronic copy of the index on your laptop if you can: then, if you are hunting for a document in the bundle under pressure of time, you may be able to find it faster by searching for a keyword or a date in the index.

You will of course be much better equipped to take advantage of these benefits if you can touch-type fluently.

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Writing a chronology

A chronology is just a list of key dates. Writing a chronology will often be the first thing you need to do to start to come to grips with a case. It is much more use to you if you have drafted it yourself: a great deal of the value of the exercise is in the doing of it, rather than in the finished product (although the finished product is useful too). This is because the task makes you think systematically about the story. What happened first? Then what happened? What happened after that? Did this bit of the story come before or after the other bit? By the time you have written down the key events in the story, you will have understood a great deal more about it than you did when you started.

For this reason, any kind offer your opponent may make to draft a neutral chronology and give it to you and the tribunal should be treated much as your mother taught you to treat kind offers of sweets from strangers.

There is nothing difficult about drafting a chronology, but there are a few good habits to cultivate:

Start by sorting the papers you have in chronological order

This makes the task much easier. Then your method is just to go through the documents one by one writing down any relevant date that you see.

Use 3 columns: date, event, page number

Date and event are obvious, but if you already have a paginated bundle by the time you do this task, it will save you a lot of time later on if every time there is a document clearly associated with a particular event, you note its page number in the right hand column. So for instance if ‘dismissal’ is one of the dates on your chronology, the obvious associated document is the letter of dismissal.

Use a table or a spreadsheet

This is helpful, because it means that you can write down dates in any old order, and then sort them at the end (or from time to time as you go along, if you find that helpful).

Approximate dates

Lots of dates you will know exactly and be able to put in your table in a form (e.g. 12/11/97) that your word-processing or spreadsheet program will recognise as such and be able to cope with. Sometimes you will just know that a particular event happened ‘during the week beginning 12 November 2007’ or ‘in November 2007.’ If there are relevant dates further back in the history, they may be even vaguer: ‘early in 2003’ or ‘in about 1990.’ Dates of this kind are harder to put in a chronology that you are going to want to sort automatically.

There are various ways of dealing with this. One method that works is to adopt a convention. Give the event an exact date which is the earliest date it could be; but mark it as an approximate date by putting an asterisk in front of the note of the event. So for example if you know that the claimant asked for a pay rise at some point during the week beginning 12 November 2007, you could write in your chronology:

12/11/07 *C asked for pay rise

If you know that your client was promoted at some point in 2003, you could write:

1/1/03 *C promoted.

Then you will be able to sort your chronology automatically, but the asterisk will remind you that this is not an exact date. If you finalise the chronology to give to the tribunal, you can sort it for the last time, and then remove the asterisks and write in the dates column just ‘week beg. 12/11/07’ or ‘2003’ or ‘November 2007’ as appropriate.

This is effective, if not elegant: if anyone reading this post knows a better method, please comment.

Start your cross-examination notes at the same time

Keep an eye open from the start for documents you might want to cross-examine the respondent’s witnesses on. It makes sense to have a separate document open on your computer (or a separate pad of paper) that is the beginnings of your cross-examination notes. Don’t worry for the moment about structure or order. Just highlight the relevant part of the document with a yellow highlighter, stick a post-it on the page, and make a brief note of the point or question together with the page number (if any). If you don’t yet have a paginated bundle and the papers are voluminous, you can save yourself some time later by numbering each post-it as you go along, and sticking each one on half an inch lower down the page than its predecessor. That way, whatever order your pages end up in, your numbered post-its will run from top to bottom. Start again at the top if you run out of space.

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Gross misconduct

Gross misconduct is misconduct so serious that so far as the contract of employment is concerned it entitles the employer to dismiss without notice. This idea cuts both ways: if the employer is guilty of a fundamental breach of contract, the employee is entitled to walk out without notice. When the employee resigns in these circumstances it is called constructive dismissal.

That is the contractual situation. Protection from unfair dismissal means that even where gross misconduct is proved, the employer still has to consider the gravity of the offence, look at alternatives to dismissal, and give proper weight to any mitigating factors. Employers often overlook this: they have a tendency to assume that once they are satisfied that there has been gross misconduct, dismissal follows inevitably. This is a mistake, and one that claimants can exploit.

Part of the reason for the mistake is that people making harsh decisions tend to prefer to disclaim responsibility for them. It is easier to say ‘I have no alternative but to dismiss you’ than ‘Although I could have give you a formal warning, I have decided to dismiss you.’

This mistake means that there is a particular line of cross examination that often works well. It is worth considering in any case where the employer’s reason for dismissal is gross misconduct; it also provides an example of how witnesses can be invited along an easy path until they are where you want them. (See also ‘Preparing the ground.’)

Suppose the dismissal letter says something like ‘In the circumstances I have no alternative but to dismiss you.’ The cross-examination goes something like this:

Q: Please turn to page 87. This is your letter dismissing Mrs Smith. Does it explain your reasoning accurately?

A: Yes [this is obviously the ‘right’ answer – few managers will want to say that their own letter was misleading]

Q: So there was nothing that you regarded as important to your decision that you omitted to mention here?

A: No. [This seems to follow from the previous answer, and disagreeing is unattractive because it involves volunteering that there were important omissions from the letter.]

Q: And when you said ‘I had no alternative’ you meant it?

A: Yes. [Again – a question of the form ‘you meant what you said didn’t you?’ will almost always elicit the answer yes.]

Q: Once you were satisfied that Mrs Smith was guilty of gross misconduct, you really had no option but to dismiss her?

A: That’s right. [A wily personnel officer who has given evidence on many occasions may start to smell a rat – but it is surprising how many will continue to follow trustingly at this point.]

Q: So there really were no other options that you could have considered?

A: No.

Q: And the question of her previous record was not relevant?

A: No.

The last two questions are the crunch. The dismissing officer should have considered alternatives to dismissal, and mitigating factors such as the claimant’s previous record (if good), before deciding to dismiss. A failure to do so points to unfairness. This series of questions has produced some damaging admissions without ever facing the witness with an inconsistency or calling her a liar. If you have done it gently enough, she may not even realise she has given anything away.

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Signposting

When writing or speaking to the employment tribunal it is very useful to ‘signpost’ what you are going to say. The aim is to give the tribunal an indication of where you are going, so that they are able to follow you.

Young barristers are often taught to say something like “I have three submissions to make. Firstly, that the claim was made within the three month time limit. Secondly, that if it was not, time was extended by the grievance procedure. Thirdly, if the claim is out of time, then it would be just and equitable to extend time. I will now deal with my first submission, which is that the claim was within the three month time limit.”

Beginning in this way has two important advantages. It tells the tribunal what you are going to say and how you are going to say it. You should not assume that either of these things is obvious to the tribunal. And it will be easier for them to understand (and therefore easier for them to accept) your submissions if they know what you are getting at. If they do not understand where you are trying to take them, there is a real risk that an important point will be lost, because they did not understand its relevance while you were making it. Even if the tribunal is able to follow you, you are making them work unnecessarily.

The other advantage of signposting is that it makes sure that you have some clear idea of what you are going to say and what order you are going to say it in. This is valuable, particularly if you have to depart from a planned speech to deal with the tribunal’s questions.

The potential disadvantage of signposting is that it can easily become robotic. There is a real danger you will find yourself saying something like “I know turn to my second submission, on which I will make three points. My first point has two sub-points. The first subpoint raises two issues…” This is confusing, as well as sounding foolish.

This is easy to avoid by remembering that tribunals understand about signposting (they did or do it themselves as advocates and most representatives will use it) and will pick up quite subtle indications. This means that saying “Sir, we say that the claim was made inside three months and that in any event time was extended when we raised a grievance. But if the claim is out of time we say that time should be extended.” is just as effective, and less robotic, as explicitly numbering your points.

Signposting is also useful in cross-examination. It is not generally useful to signpost your whole cross-examination at the beginning, but an occasional indication of where you are going next will help the tribunal and the witness. Cross-examination should be made up almost entirely of questions, but it is perfectly proper, and very useful to say things like “I’m now going to ask you some questions about the July meeting.”

In a factually complex case it may even be useful to ask some questions for the purposes of signposting. For example, you might ask “This was a meeting between you and my client?”, expecting the answer “yes”. Then “And you were meeting to discuss the allegations of theft”, again expecting the answer “yes”. Such questions will not take the evidence further forward, but act as a quick reminder of what the meeting was about. It is important that any such questions be quick and to the point. The idea is to give a short reminder, not to rehash evidence that has already been given.