As the late Mr Justice Hunt said, in a lecture to the South Eastern Circuit Bar Mess entitled, ‘The Art of Advocacy’,
‘Don’t [embark] on your case like Christopher Columbus, who on his voyage of discovery, didn’t know:
- where he was going;
- when he arrived, where he was; and
- after he left, where he had been!
Know where you are going, and when you have got there sit down. Set out what you want in paragraph 1 of your skeleton argument, “the Claimant’s case is…” Set out your stall, what you are asking for and want the judge to do. Say to yourself – “what am I doing here? What is my case?” Your opening is the route-map for your case containing the clearest sign-posts to point the judge in the right direction.’
There are three modes in which facts can be established:
(i) Direct evidence – that is to say, the facts are proved by an eyewitness;
(ii) Logical deduction from direct evidence;
[and]
(iii) Probable inferences, based on the facts proved by direct evidence or directly deduced from those facts.
Whether or not the burden of proof is discharged depends upon the weight and value which the judge attaches to the various strands of evidence. This involves weighing up the credibility or reliability of the evidence, and ultimately comes down to deciding which version of the relevant matters is more likely to be correct. At trial the judge is concerned with the balance of probabilities rather than certainty.
The aims of cross-examination are:
(i) To destroy the material parts of the evidence-in-chief.
(ii) To weaken the evidence where it cannot be destroyed.
(iii) To elicit new evidence, helpful to the party cross-examining.
(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. The art lies in leading a witness to admit that his evidence was untruthful or mistaken.
If successful, undermining destroys the assumptions on which the reliability of the evidence depends.
‘[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. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness… It is absurd to suppose that any witness who has sworn, positively to a certain set of facts, even if he has advertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. If the cross-examiner allows the witness to suspect from his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair minded spirit, which if the cross-examiner is clever, will soon disclose the weak points in the testimony… By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, while his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself; but it is only with the matter of our cross-examination that we can hope to destroy him.’ (The art of Cross-Examination, by Francis L. Wellman). For more information about advocacy techniques, see the ‘Advocacy’ page at www.carlislam.co.uk