The art of cross-examination at Christmas

It’s beginning to look a lot like Christmas, lawyers in every store, and to celebrate my anniversary of 4 years at 1 Essex Court, here is an early present just for you…

So let your heart be light and have yourself a merry little Christmas now.

Now, listen to what I say …

When planning the cross-examination of a witness, the starting point is to ask yourself what your cross-examination is directed at eliciting and proving, which in this case is the existence of Santa Claus. So, you better be good!

Even though it’s lovely weather for a sleigh ride with the witness, your aim should be to:
(i) destroy the material parts of his evidence – i.e. that NASA have found no evidence of the existence of dwellings at the North Pole sufficient to accommodate a colony of Elves that is large enough to manufacture at least one toy for every child in the world – ‘Of course not as my expert witness (Mr Kris Kringle of 34th Street New York, New York) has clearly stated in his report, ‘they only exist in the dream world’ – really I thought everyone knew that!’;
(ii) weaken the evidence where it cannot be destroyed – i.e. that reindeer cannot fly – ‘The case I shall advance on behalf of my Client is that Reindeer only fly at midnight on Christmas Eve’;
(iii) elicit helpful evidence, i.e. the Christmas albums of Bing Crosby, Frank Sinatra, the great Nat King Cole, Andy Williams, Perry Como, Johnny Mathis; Deano, Rod Stewart, Michael Bublé and Cliff – well why not it’s Christmas …;
(iv) to undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge, ‘I will demonstrate that Frosty the snowman has no peripheral vision whatsoever. I shall also prove that at all material times he was wearing woolen ear muffs.’

The ideal to be aimed at is to lead the witness to admit that his evidence was untruthful or mistaken. ‘How do you know that you saw Mummy kissing Santa Claus underneath the mistletoe?’

Cast doubt.

Bring in Schrodinger’s cat:

Then distract and use as an opportunity to get the witness to prove another fact, e.g. that reindeer can fly.

‘My next question, as you no doubt correctly anticipated [flatter witness to disarm], is that outside, the snow is falling, and friends are calling, “yoo-hoo!” – Yes?’
Then get the witness to gradually agree.
‘There’s a birthday party at the home of Farmer Gray – Yes?
It’ll be the perfect ending of a perfect day?
We’ll be singing the songs we love to sing without a single stop?
At the fireplace while we watch the chestnuts pop, pop, pop, pop?
There’s a happy feeling nothing in the world can buy?
When they pass around the coffee and the pumpkin pie?
It’ll nearly be like a picture print by Currier and Ives?
These wonderful things are the things we remember all through our lives?
Do you hear those sleigh bells jingling, ring-ting-tingling, too?’
‘Sleigh bells ring – are you listening – Yes?’
‘Please turn to Bundle J, Tab 14 at page 300 Do you see exhibit …
‘It is a picture print by Currier and Ives isn’t it – yes?’
‘What is the reindeer doing?
‘It’s flying isn’t it!’

After the witness has said, ‘yes – I suppose so’ nod vigorously, flick a large wad of pages over in your file (any will do), and declare ‘so you have seen a reindeer fly!’ – then move on quickly to your next question.
In most cases, the objective is not so much to destroy the evidence outright, as to weaken it, i.e. to reduce the weight of the evidence and qualify the inferences which might be drawn from it. This objective is particularly important where the evidence is circumstantial, so that its damaging effect depends not so much on what is actually said as on what may be deduced from it. The witness may be induced to admit that other explanations are possible. Relentlessly probing into the details, as in cases where identification is in issue may show that there is a possibility of a mistake. The eliciting of fresh evidence may lead to a new topic altogether. More often, however, the new evidence simply consists of facts which put a new colour on the evidence in chief. If this is done successfully, the result is not only to help in the building up of one’s case, but also, at the same time, to weaken the other side. Undermining, if successful, destroys the assumptions on which the reliability of the evidence depends. ‘How can you be sure that reindeer don’t like heights? After all, don’t they bear an uncanny resemblance to mountain goats? – only with big red noses and antlers. Is it a coincidence that they both like carrots? What other possible explanation can there be – reindeer are an elevated species of mountain goat. QED, I believe.’
After enjoying the sight of the witness’ jaw dropping to the ground savour the silence as if you had just stepped into the winter wonderland (i.e. Harrods – pronounced ‘arrods’) and taken in a deep breath of refreshingly pure winter air. Smile – but for not more than 5 seconds.

It does not follow that because an individual’s evidence is unreliable in some respects it is must also be unreliable in others.’ i.e. just because Gloria Estefan said that ‘all she wanted for Christmas was me’ [NB what she actually said was ‘you’ but that’s not how I heard it], it is not axiomatic that she did not also want a copy of my latest book on Contentious Probate – which incidentally is very reasonably priced at £79.95 and ordering links appear on the Publications page at Spread the love at Christmas.

Cross-examination requires the greatest ingenuity:
· a habit of logical thought;
· clearness of perception in general;
· infinite patience and self-control;
· power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives;
· ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and
· above all, the instinct to discover the weak point in the witness under examination.
By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, whilst his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself, it it is however, only with the matter of our cross-examination, that we can hope to destroy him.

‘Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen – are all professional dancers on ‘Strictly Come Dancing’ [which incidentally was very good this year, and I am voting for Stacey] – yes?
So, you stay in on Saturday nights?
You also stay in on Sunday nights to watch the results show – don’t you!
And yet here you stand today telling us that your field of expertise is ‘jingle bells’.
Not very likely is it?
In fact, you have never been conveyed in a one-horse open sleigh, have you?

There are three principal techniques for undermining credibility. An advocate may suggest that a witness is:
(i) being dishonest;
(ii) inaccurate or inconsistent; or
(iii) biased.

Alternatively, the advocate may seek to suggest some combination of (i) to (iii).
In cross-examination an advocate may either:
(i) confront the witness with evidence that is inconsistent with their account;
(ii) insinuate another version of events; or
(iii) probe the witness’s evidence for flaws.
‘Your childhood hero was Ebenezer Scrooge – was he not?
you worshiped his work ethic – didn’t you.
So, you espouse thrift as a core value?
Your friends – if you had any, might call you ‘thrifty’ – is that not so?
Scroogle knew about Tiny Tim – didn’t he! [note I have got the fact at which my question is directed down to only 5 words].
Charity does not feature in your vocabulary – does it?
In the hierarchy of moral values – Scrooge comes first doesn’t he?
Neither of you shed a tear for poor Tiny Tim before the midnight chimes ran out through your empty house – which until then had been as quiet as a mouse. [NB not a moose!].
So why should we believe you when you say that you were visited by Muppets at midnight on Christmas Eve?
Your evidence is nothing more than fantasy is it!’

Confrontation, as the name indicates, consists of confronting the witness with a great mass of damaging facts which he cannot deny, and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening. Probing consists of inquiring thoroughly into the details of the story to discover flaws. It may be used either to weaken or destroy, or open up a lead to something new. Insinuation is a many-sided technique. In essence, it is the building-up of a different version of the evidence-in-chief, by bringing out new facts and possibilities, so that, while helping to establish a positive case in one’s own favour, at the same time it weakens the evidence-in-chief by drawing out its sting. Insinuation may take the form of quietly leading the witness on, little by little: alternatively, it may be necessary to drive him. Thus, there are two main forms of the technique, gentle insinuation and firm insinuation. The object of undermining is not to break down the evidence by inquiring into the facts, but to take away the foundations of the evidence by showing that either: (i) the witness does not know what he is talking about; or (ii) if he does know the truth, he cannot be trusted to tell it.

‘Santa Claus is also known by other names isn’t he?
[Santa anoraks please visit:]
In Swahili Santa Claus means Santa Claus!
That is right isn’t it!
The evidence is therefore overwhelming, and without doubt points to only one conclusion – namely that there is a Santa Claus, because during the holidays he parties with the Zulus.
Surely you are not suggesting that the Zulus invented Santa Clause – and if I were you I really wouldn’t go there, because as Michael Caine will tell you (see film on boxing day), it’s not a smart move to upset the Zulus – they are very sensitive about things like that.
So you better watch out
You better not cry
You better not pout
I’m telling you why
Santa Claus is coming to town
He’s making a list,
Checking it twice,
Gonna find out who’s naughty or nice.
He sees you when you’re sleeping
He knows when you’re awake
He knows if you’ve been bad or good
So be good for goodness sake
With little tin horns, little toy drums
Rooty toot toots and rummy tum tums
Santa Claus is coming to town
And curly head dolls that toddle and coo
Elephants, boats, and kiddie cars too
Santa Claus is comin’ to town
Then kids in Girls and Boy land will have a jubilee
They’re gonna build a Toyland town
all around the Christmas tree
So! You better watch out, you better not cry
Better not pout, I’m telling you why
Santa Claus is comin’ to town – Yes?’
Then pause for silence and throw in a splattering of latin phrases, whilst looking meek – as if praying for the salvation of the soul of the witness.
‘En grege relicto
Humiles ad cunas,
Vocati pastores adproperant,
Et nos ovanti,
Gradu festinemus.
Venite, adoremus!’

An expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.
Move in for the kill …

‘I notice that your CV does not mention ‘walking in the winter wonder-land.’
You live in a village, don’t you?
So how do you know that Santa Clause ‘is not coming to town’?
You have never heard sleigh bells in the snow have you?
In fact, you were not even dreaming of a white Christmas when you gave your evidence were you?
Examine your conscience.
Can you tell us truthfully whether you have you been naughty or nice this year?
Finally [the five golden rings question!]
Please turn to Bundle A, Tab 4 at page 108 – do you see what I see? – an exhibit as big as a kite? – a receipt marked ‘all items we supply have been certified as complying with Elf and Safety.’
Listen to what I say …
‘on the fifth day of Christmas DHL, who bring goodness and light, delivered –
Five golden rings!
Four calling birds,
Three French hens,
Two turtle doves,
And a partridge in a pear tree?’
What did DHL bring on the 12th day of Christmas?
You don’t know! … ’

Look astounded and shake head 3 times in disbelief.
Then pull yourself up by lapels on gown, look judge straight in the eye and gently say in re-assuring voice …

‘My Lord, I bring tidings of comfort and joy.
The only question you have to ask yourself is ‘do I believe?’
I submit that there is only one conclusion which can be reached on the facts in this case – and please think of the little children when you deliver your ruling, silver bells, presents on the tree, and bonuses in the City …
and that conclusion is that Santa Clause does exist, and that he exists in the person of my expert witness Kris Kringle!’

Then whilst opposing counsel’s head slumps into his papers as he thumps the table with his right hand, spread the joy! – and don’t hold back – it’s Christmas:
‘So, deck the halls with boughs of holly, strike the harp and join the chorus …
May your days always be merry and bright!
Joyeux Noël et bonne année
Frohe Weihnachten und neues Jahr, Glückliches
Buon Natale e felice anno nuovo
Feliz Navidad, Próspero año y Felicidad’.


Then do a high five with the court usher – but only in an American court!


This is a work of pure fiction. Any similarity to actual persons, living or dead, or actual events, is purely coincidental, and that includes Zulus.

May all your future cross-examinations be well-mannered and polite!
Merry Christmas and a Happy New Year to one and all wherever you may be.