Chapter 12 Witnesses

Advocates have a remarkable privilege.

They are allowed to ask highly personal questions of people in a public arena.

And people must answer them.

Few others have this privilege, apart from judges, and sometimes politicians.

There is a danger advocates can march into people's lives, turn them completely upside down, and waltz out for a glass of wine.

The public sometimes perceives this is what advocates do.

For the advocate, it is just another day's work. But for the witness, who often has not been questioned in court before, nor ever will be again, the experience may have been devastating, and never to be forgotten.

Do not become blase - REMEMBER THE IMPACT you will have on others' lives.

WITNESSES ARE PEOPLE.

They are not objects.

Try to show that you care for their story - often even when cross-examining. Show that you empathise, human to human - to your own witnesses, and also to the witnesses most dangerous to your case. If they are wrong, then fine, but treat them like human beings, and not like dirt.

They are not for picking over dispassionately, or disdainfully, like some laboratory specimen.

There are some truly awful advocates who treat witnesses appallingly.

Never,

ever,

be like that,

EVER.

If you have to do down a witness, try to be kind, not harsh - harshness should always be rare. Remember, people often lie to protect their dignity, or their loved ones, or to save face - these are human responses - your job is often to tease out the truth, not to rub people's noses in muck, and you will be respected by the tribunal for being kindly, more so than if righteous, even when right.

ALWAYS BE POLITE.

ALWAYS.

Even to the witness who is the greatest enemy of your case.

Especially to that person.

Anger,

disdain,

and answering back,

are

always,

always

dangerous.

Disdain makes you look arrogant and so you lose respect.

Anger makes you look as if you are losing.

Answering back makes it seem you are too involved in your case.

Try to envisage you are above the fray, while keeping a measure of common sense.

Some advocates can play the disdainful card well. And it is rarely early in an examination. But these advocates are very experienced. If you play disdain badly, you will usually lose the case.

So in the early years, don't do it.

Witnesses are usually intimidated by the court and the formality of wigs, gowns and striking robes.

If they are your witnesses, PUT THEM AT EASE.

Settle them slowly.

Ask easy questions to begin.

Be wary of asking civilians to state their home address in open court - this often unnecessary request can completely unsettle them. Is a public declaration of a home address necessary? Can it be written down? Think about this.

Ensure questions are simply phrased.

One question at a time.

Look at the witness.

Eye contact again.

Smile, even - it works wonders.

Invite them to keep their voice up, to project their voice across the room, reminding them that the microphone usually only records their voice and does not amplify it.

Invite them to face the tribunal, not the advocate, and to address the tribunal directly, especially on really important points.

Develop a SYSTEM with your witness.

Question. Answer. Question. Answer.

Encourage the feel of dialogue.

Get a rhythm going.

But pace the speed of the dialogue to meet the judge's pen.

Keep things slow and even and pleasant, and the witness will feel more comfortable.

Remember that every witness has a personality. Try to tease that personality out, or they may in their discomfort appear wooden and lifeless and will perhaps wrongly be less likely to be relied upon by the tribunal.

And finally, for all the brooding atmosphere of a court, for all the formality and strangeness of it, your witnesses have a story to tell.

They may feel in front of lawyers it is a story which must be told in some formal manner with big words.

Stop them.

Get them to TELL THEIR STORY,

easily,

in their own words, without worrying about impressing all the supposedly clever lawyers.