The Lawyers Weekly - September 17, 2010

Alternative Dispute Resolution

The dark art of

CROSS-

EX AMINATION

WILLIAM
G. HORTON
in life to prepare
lay witnesses for cross-examination. Yet their
credibility will be judged by how they meet
that challenge.
When a witness is prepared for cross-examin-
ation, however simply or elaborately, the main
point of the exercise is to help the witness to
unlearn, for the occasion, most of the rules that
apply to normal conversation and to prepare the
witness to combat the dark arts which will be
practised by opposing counsel.
Except in the most dysfunctional moments of
our relationships with others, we have little
experience of being aggressively questioned by
another individual with the clear purpose of
subverting, discrediting or misinterpreting what
we are trying to say. Few of us would want to be
judged by how we behaved under those circum-
stances when they arise in normal life, but a
witness is expected to meet very high standards
under similar conditions.
When confronted by an aggressive and argu-

There is little

mentative interlocutor, one may be forgiven for
becoming argumentative and aggressive oneself.
But a witness may be admonished to “just
answer the questions” and may have his or her
evidence adversely commented on for having
been “argumentative,” without reference to the
nature of the questioning to which he or she was
responding at the time.
In normal conversations, a person may be
asked by a friend “How are you?” on two or
more different occasions in the same conversa-
tion. It is generally understood that more infor-
mation is required and the person who is asked
the repeated question will usually oblige by
being more forthcoming, or at least by slightly
varying the answer to provide better insight. In
a cross-examination setting, variations in
answers to the same question will often be pur-
sued by the cross-examiner as the wavering of a
dishonest witness.
In normal conversation, it is rude to disagree
too often or too vociferously with the other party.
This tendency is emphasized in certain cultures
and individuals more than in others. A person
may actually start a comment in which they will
disagree with the questioner by using a positive
word such as “Right,” “Yes” or “OK.”
Often cross-examination questions are
“loaded” by asking questions or phrases that
have precise legal meanings that would not be
known to the average person. Such words may
include: trust, partner, right and obli-
gated—and countless others that arise in
specific legal contexts.
In normal conversation, people do not clearly
or explicitly distinguish between things they
know from first-hand knowledge and things
they know by other means. In other words, the
rules of evidence are learned rather than innate.
Witnesses can readily become confused and dis-
oriented when presented with these distinctions
as challenges to their veracity or to their desire
to tell the truth.