The Role of Oral Evidence: The Common Law Approach
I come from the perspective of a common law-steeped 28-year-old lawyer, 14 of whom are QC, 18-year-old High Court judge and now arbitrator and mediator.
1. Main testimonies and witness statements:
I prefer to have oral chief testimony. Otherwise, either the witness is simply made to say what he is unsure of and may be destroyed on cross-examination, or he becomes so dogmatic that the truth is obscured. The Tribunal must know that this is his testimony and not that of his lawyers. As a classic, I am familiar with the works of Lysias and Demosthenes, writing speeches for the Athenian court as if it were in the person of the accused.
I remember a case in the early days of witness statements – 30 years ago – before they became practice. My witnesses would not have been able to testify, as their memory was so poor on the events of 10 years or more before, but by carefully piecing together from documents, my lawyers were able to put together witness statements for them, and in those early days were successful in persuading the judge and the other party to allow the witness statements to be presented in chief and the witness was able to adopt the content. They would never have been able to testify otherwise, but we were home and dry. This is a lesson I have learned and have always been skeptical of witness statements ever since, even if they save a lot of time. There can be a huge time-saver by witness statements blotting out of the way a narrative of facts which are necessary for an understanding of the case but which are unlikely to be in dispute – I remember it well. a case that I handled as counsel on the making of yogurt, where screeds of necessary and uncontroversial evidence was recorded, read and understood by the parties and the judge, and never mentioned in the lawsuit.
In any case, a witness needs to be installed in the witness box and put at ease by a number of oral testimonies, otherwise he feels nervous and is immediately thrown to the wolves.
If there is a separate area which is the subject of a heated dispute and which is essential to resolving the issue in the case, then as a tribunal I always encourage the presentation of certain oral evidence regarding this matter. separate area by both parties because it is much more likely to be convincing.
2. Order of witnesses
A party’s best witness must be nominated first to win the tribunal round, even if it is not strictly chronological.
3. Number of witnesses
There is no harm in presenting witness statements from a number of witnesses who are all saying the same thing, as your opponent then finds himself in a dilemma as to whether he should cross-examine them all.
Many years ago, I appeared in a case as an attorney for a group of musicians who performed in a group at a senior holiday camp, and they were fired because it was alleged that they couldn’t play the music that the customers wanted in the tempo. I couldn’t risk showing the judge because they hadn’t played together since the dismissal. They sued for wrongful dismissal damages and the holiday camp had to start to establish their case, and they called witness after witness from those who lived nearby in Lincolnshire to allege the group couldn’t perform the Gay Gordons or the Dashing. The white sergeant or the old-fashioned waltz at the right tempo.
After about eight long such witnesses, I had no more cross-examination to offer them, and at half-time I suggested to my opponent that we could both withdraw and bear our own costs. He wouldn’t agree, so we went. Fortunately there was a bit of publicity about the case and a witness came forward to testify from my side who had appeared in a cabaret with the group. He was R2D2 from Star Wars. When I was about to call him, I said to the judge: “After all these long testimonies, Your Lordship will be relieved to know that it will be a short testimony.”: And indeed, R2D2 was small, no more than 3 feet tall, as he waddled around the courtroom and had to stand on a chair to see the judge. I am happy to say that we won. Of course nowadays, with the meaning of depositions, it would not be possible to call a surprise witness but the moral is not to bore the court with too many living witnesses!
I am not a fan of witness coaching, and it is indeed not encouraged in the UK, unless there is a general briefing to a witness on what to watch out for and what to avoid. It’s very different in the United States, of course, where a witness dress rehearsal is expected.
I vividly remember appearing for RTZ, where my witnesses were to be cross-examined by American lawyers at the United States Embassy. They all had to take the Fifth Amendment (including Lord Shackleton, who came to our dress rehearsal straight from a Garter ceremony in St Paul, with his garter badges in a carry bag) in order to have a rehearsal which was simply to refuse to answer questions!
As for the cross-examination of a lawyer:
It is essential to have a purpose in the structure of the cross-examination. The lawyer must determine what his final conclusions will be and follow them with the witness. He should let the Tribunal follow the direction of the questioning even if the witness does not.
So many lawyers cross-examine by presenting a document to the witness and asking if it is fair, then moving on to the next one. Nothing is won and, if anything, it gives the witness confidence. It is much better to prepare for a cross-examination by referring to the contents of the documents, then ask questions that lead the witness to accept or, better yet, to give an answer that does not conform to his own document, which can then be shown to him. .
Many poor lawyers write their questions in advance and just follow the script – sometimes it is possible from a high court to observe what happens, with the lawyer ticking off questions as they come up. are asked. This not only leads to a lack of spontaneity, but the loss of the ability to follow lines of questioning as they develop. Better to have notes but not a script. Some poor defenders simply ask their pre-established questions fiercely, even though they already have the answer they want.
It is important to be prepared not to continue with questions. If a lawyer gets the answer he wants, it’s best to leave it, no matter what the temptation. You can always ask one question too many. Keep your emphasis on final conclusions or perhaps a sly look at the court. If you continue, the witness may withdraw and rethink and you may lose the benefit of your correct answer. Even if he tries to put things right in cross-examination, you have had your answer in cross-examination.
It is important for the lawyer to make their case, but not, as so many inadequate lawyers do, asking the court “Have I made enough of my case? “. The lawyer must know the answer himself.
The lawyer should not be afraid to make strong allegations: denounce fraud if necessary. There was a sort of belief that in arbitration a lawyer should not suggest fraud to a witness – that he was not a gentleman. If this were the case, it is not currently the case and the lawyer must present his case in a fair and frank manner in order to give the opportunity to the witness to answer, but also to give the opportunity to the court to understand and to accept his case.
The common law system is different from the civil system because of the focus on oral evidence. Therefore, a lawyer should not feel inhibited, and guillotines and unmotivated delays are not, in my opinion, appropriate. Much better for the court to intervene vehemently by pointing out that the questions have already been asked or answered and that it would not be useful for them to be repeated. Even then, a good lawyer can still persevere – ‘I’m sure it’s all my fault I haven’t figured it out yet, but …‘and sometimes perseverance will win the court or give it meaning!
I am very much in favor of the common law system of disclosure of documents, which seems to me to strike a balance between the American system of total discovery and the civil law system of limited disclosure of the documents relied on. Many disputes are won or lost by the disclosure, often late, of a previously undisclosed document. When it comes to large sums of money, as in most international arbitrations or the UK commercial court, I think a Rolls Royce system can be offered, in order to get to the truth, and a counter- Skillful questioning by a lawyer commanding the documents may be key.
It is a very important and neglected art:
Particularly in a case where there has been no oral testimony, the re-examination is an opportunity for the witness to impress or charm the court and erase his personality.
It is important for the lawyer to make sure that during the re-examination the witness is able to hit all the good points on the head that he thinks his opponent has put forward. Very often there is an answer that the witness did not give satisfactorily or not at all. Obviously, it is better not to lead the witness, which would gain nothing anyway, but rather to gently massage the points to give the witness the opportunity to remember, understand and correct what he said. in a natural and persuasive way.
7. Expert witnesses
In the UK system, expert witnesses have an obligation to the court or tribunal to provide independent evidence, and cross-examination will often seek to show that the expert is in breach of this obligation by being too favorable to the party giving him or her. giving instructions, or ignoring or even concealing adverse evidence or opinions.
Another art is the cross-examination of an expert witness. This cannot be done without the lawyer becoming an expert, even if it is only for one case! One way to discredit an expert witness is for the lawyer to try to push the expert to an extreme position by making proposals based on the evidence the expert has given and then showing their irrationality. In one instance where I appeared at the bar, I encouraged the expert to elucidate some of his more extreme theories and gave them a name. I was then able, by honoring them in this way, to make the court understand that they were unbearable. A court is going to want to find a simple way to come to a conclusion in favor of one expert or another, and the lawyer’s strategy is for one expert to appear straightforward and the other to pontificate.
8. From a court perspective, I like oral testimony and find it helpful to be able to test my own thinking with witnesses, usually at the end of their testimony.
9. I conclude, in these days of Covid, by expressing a personal point of view that Zoom hearings are very successful, even in cases where there is oral evidence and cross-examinations, and I believe they will have a important place in the future, especially to save travel costs.