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UNCORRECTED SAMPLE CHAPTER
Courtroom Skills for Social Workers
CLARE AND RICHARD SEYMOUR
Please note this material is at draft stage and has not yet been edited or proofread
To be published by: Learning Matters 33 Southernhay East Exeter EX1 1NX Tel: 01392 215560 www.learningmatters.co.uk
© 2007 Clare and Richard Seymour. No part of this sample chapter may be reproduced, stored in a retrieval system 1 or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission in writing from Learning Matters.
Chapter 10, Courtroom Skills for Social Workers
1 2 3 4 5 6 7 8 9
The English legal system in context The English legal system in practice Values and principles Legal language and concepts Court rules Preparing for court Excellence in report writing What to expect at court Giving evidence
10 Cross-examination 11 Legal decision making and appeals 12 Tribunals, panels and inquiries 13 Advice and representation in court 14 What happens next Conclusion Glossary References
© 2007 Clare and Richard Seymour. No part of this sample chapter may be reproduced, stored in a retrieval system 2 or transmitted in any form by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior permission in writing from Learning Matters.
© 2007 Clare and Richard Seymour. Key role 6: Demonstrate professional competence in social work practice. 2005). and specifically the problem-solving and communication skills defined within QAA subject benchmarks for social work. • Identify the need for legal and procedural intervention. Key role 5: Manage and be accountable. carry out. and addresses the following national occupational standards for social work: Key role 2: Plan. groups and communities and other professionals. electronic. carers. with supervision and support. for your own social work practice within your organisation.Chapter 10. • Provide evidence for judgments and decisions. recording. Courtroom Skills for Social Workers Chapter 10 Cross-examination ACHIEVING A SOCIAL WORK DEGREE This chapter addresses the legislative framework requirements of the Department of Health. stored in a retrieval system 3 or transmitted in any form by any means. • • Exercise and justify professional judgments. • Carry out duties using accountable professional judgment and knowledgebased social work practice. . without prior permission in writing from Learning Matters. or otherwise. Use professional assertiveness to justify decisions and uphold professional social work practice. young people. No part of this sample chapter may be reproduced. review and evaluate social work practice with individuals. mechanical. values and ethics. photocopying. It meets GSCC specialist standards and requirements for post-qualifying social work education and training in relation to work with children. families. their families and carers (GSCC.
it is never likely to be particularly pleasant. but can last an hour or more. These dramatic representations cannot give a realistic idea of the court process. and is the part of the trial process which is often the most daunting to witnesses. Courtroom Skills for Social Workers INTRODUCTION Cross-examination takes place in both criminal and civil proceedings. which is little more than a morning in court. © 2007 Clare and Richard Seymour. as if out of a hat. cross-examination is not usually a fast and furious encounter over ten or fifteen minutes. Any family court hearing is likely to last at least one court day – five hours – and may well be spread over several days. However. electronic. may also stem from dramatic representations of cross-examination on television. Plays or films usually last less than three hours. Will the judge be sympathetic or intimidating? Will the advocates set out to make me look stupid? Will they try to bully me. Questions arise. or possibly even days. produces material. or trick me into saying things that I do not mean? What happens if I forget something important. since the process need not be. in which the starring lawyer triumphantly demolishes the evidence of the key witness or. which are entirely natural. hostile.Chapter 10. or get confused? You may also have been worried by hearing anecdotal evidence of other people’s experiences in the witness box. It is easy for someone who is not used to giving evidence to imagine that all sorts of terrors lie in wait once they enter the witness box to be cross-examined. stress than the experience itself. stored in a retrieval system 4 or transmitted in any form by any means. No part of this sample chapter may be reproduced. suggesting something hostile in the course of which the questioner becomes ‘cross’. Even the term ‘cross-examination’ may be intimidating. or otherwise. not least because the anticipation of an ordeal usually contributes as much. This is misleading. . without prior permission in writing from Learning Matters. if not more. particularly in family proceedings. photocopying. and usually is not. These fears. or in films. recording. at the eleventh hour. such as. So. which undermines the whole prosecution (or defence) case. mechanical.
As there is only a need to cross-examine witnesses on contested evidence. and why. stored in a retrieval system 5 or transmitted in any form by any means. if a party wishes to challenge the way in which a local authority has managed the whole of a client’s case. this will support you when facing cross-examination. without prior permission in writing from Learning Matters. In this way evidence can be tested for accuracy. clear about the rationale for any opinions expressed. as much as anything else. usually through their advocate. recording. or otherwise. orchestrated by a seasoned and experienced verbal assassin. As the aim of cross-examination is to expose any flaws in the evidence. consistency and authenticity. because there is nothing about which questions need to be asked. No part of this sample chapter may be reproduced. Courtroom Skills for Social Workers For social workers facing cross-examination on their evidence. the purpose of cross-examination is not entertainment of the public through the discomfort of the witness. preparation and an understanding of the way in which advocates approach the task will help make the experience more manageable. will have the best chance of standing up to scrutiny. the scope of cross-examination may be quite narrow. to challenge the evidence of other parties. electronic. what actions were taken or not taken. photocopying. there is no need for cross-examination.Chapter 10. it follows that evidence which has been properly prepared and presented by people who are familiar with their material. We have explored the importance of presentation and use of language and. © 2007 Clare and Richard Seymour. mechanical. THE PURPOSE OF CROSS-EXAMINATION Contrary to the impression often created by films and television. confident in their role. However. On the other hand. like a sort of modern day gladiatorial combat. it is also useful to understand its purpose and how lawyers approach the task. and understand what is likely to happen. . it may be necessary and appropriate for their advocate to ask the social worker numerous and detailed questions about what decisions were made. the barrister. If a witness’s evidence is accepted. The only proper purpose of crossexamination is to give all parties in a case the opportunity.
touched. electronic. smelled or tasted. • Memory Evidence often relates to events which occurred months or even years previously. heard. without prior permission in writing from Learning Matters. which may on occasions mean disclosing information which may not support the case of the party for whom you have been called to give evidence. No part of this sample chapter may be reproduced. and it could be suggested that the witness’s memory has faded. Courtroom Skills for Social Workers WHAT ARE WITNESSES LIKELY TO BE ASKED ABOUT IN CROSSEXAMINATION? As we have seen. something relevant happened which the witness did not notice. while observing a period of contact between a parent and child. This is why accurate and comprehensive record-keeping is so important. a cross-examining advocate could suggest that a witness is biased or prejudiced against their client for some reason. fact and opinion. for example. • Bias or prejudice Although not very likely in relation to a professional witness. mechanical. or which they did notice. .Chapter 10. However. which should ensure that facts are accurate and decisions are supported by a clear rationale. Possible reasons for challenging evidence of fact • Perception It may be suggested that the witness’s perception at the time of the event in question is wrong. it is vitally important to maintain objectivity. © 2007 Clare and Richard Seymour. so that relevant matters have been partially or completely forgotten. what they have seen. photocopying. or otherwise. Evidence of fact is evidence of what a witness has perceived by use of one of their senses – that is. Social workers are fortunate in that they normally have the benefit of professional supervision. evidence is likely to come in either or both of two categories. recording. stored in a retrieval system 6 or transmitted in any form by any means. but misinterpreted.
mechanical. Courtroom Skills for Social Workers • Lying It is possible that a witness could be accused in cross-examination of deliberately giving an inaccurate account – telling lies. or other discreditable conduct on the part of a professional witness. unless it is necessary to their client’s case to do so. different people may legitimately hold different views. normally you need have no fear of hurtful or distressing questions being put which cast doubt upon your personal integrity. or any professional witness. As we have seen.Chapter 10. . It is not expected that a social worker. and it is very unlikely that an advocate would consider it appropriate to suggest such a thing. lawyers act under a set of professional rules and it is professional misconduct for a barrister to ‘make statements or ask questions which are merely scandalous or intended or calculated only to vilify. Evidence of opinion is evidence of what the witness thinks about something. distressing to the witness. recording. insult or annoy either a witness or some other person’. you will inevitably be cross-examined about that difference of opinion. which in itself is not a reason for criticism. Yet it is when that suggestion is being made that cross-examination is most likely to become confrontational. will ever tell lies on oath. Usually. or otherwise. photocopying. electronic. Expert knowledge is knowledge acquired by training or experience. However. On professional matters. there is an exception in relation to matters requiring expert knowledge 2. 1 It follows that advocates should not make suggestions of lying. If another party calls an expert witness who expresses a different opinion from the one you have formed. in contested legal © 2007 Clare and Richard Seymour. evidence of opinion may not be given in court. without prior permission in writing from Learning Matters. In other words. or a combination of both. However. No part of this sample chapter may be reproduced. as we have seen in chapter 9. and most like how it is represented on television and in films. and there are solid grounds to support them. stored in a retrieval system 7 or transmitted in any form by any means.
Possible reasons for challenging evidence of opinion • Level of expertise A structural engineer is qualified. one of the judge’s tasks is to decide which opinion to accept. in the design of the structure of buildings. psychiatric or psychological evidence in addition to more than one source of social work evidence. To be qualified to give opinion evidence means being able to offer evidence which goes beyond a level of understanding which might be found in a reasonably intelligent member of the public. He is not an expert in matters of child care. It could be that a social worker’s view about the best way to promote the future development of a child is different from that of the child psychologist called on behalf of the child’s parents. and take a middle course. mechanical. electronic. without prior permission in writing from Learning Matters. photocopying. but any decision must be based upon a relevant ground of distinction between the different opinions. but only in relation to the design of the structure of buildings. where differences in professional opinion are important. No part of this sample chapter may be reproduced. Courtroom Skills for Social Workers proceedings. The children’s guardian may not fully support the local authority’s plan. However. They must listen to those who express competing views and decide which to accept. or otherwise. Judges are not equipped by academic or professional training to form views on professional social work issues as such. A judge can in fact accept neither. He is therefore in law an expert. It cannot be said that the evidence of a psychologist or children’s guardian should always be preferred to that of a social worker. recording. and likely to be experienced. stored in a retrieval system 8 or transmitted in any form by any means. what is often found in family proceedings is overlapping between different professionals. and no one would dream of suggesting that he was.Chapter 10. or vice versa. There may be medical. since everything depends © 2007 Clare and Richard Seymour. In such cases the judge has to decide which witness is best qualified to express an opinion on the matter in dispute. .
you would be likely to consider the opinion of the qualified social worker as more valuable. Courtroom Skills for Social Workers on the issues in the case. It is not a criticism of someone with one set of professional qualifications that they do not possess a different set of professional qualifications. recording. photocopying. we acknowledge that it can be frustrating when other expert witnesses appear to overstep what you consider are professional boundaries when expressing their opinions. you may prefer the opinion of the legally-qualified author. without prior permission in writing from Learning Matters. and where the issue was essentially legal. In such a case. a highly qualified person with many years practice experience. No part of this sample chapter may be reproduced. In such cases it is important to avoid being defensive. and to remain focused on the rationale for the opinions you have formed. crossexamination of the social worker will have as one of its objectives to demonstrate to the judge that the social worker is not as well equipped as the other professionals to express an opinion. electronic. or otherwise. . However. but if two social worker witnesses who express different opinions are. On the other hand. even if a judge ultimately decides that one person is better qualified to express a view than another. someone newly-qualified and inexperienced. where there is disputed evidence.Chapter 10. and on the other. on one hand. • Level of experience We do not want to over-emphasise the significance of this. Each of us claim some knowledge of the law relating to social work. the judge may prefer the evidence of the latter. mechanical. if the issue was essentially one of social work practice. stored in a retrieval system 9 or transmitted in any form by any means. This is so. the cross-examination of the newly-qualified social worker might have as one of its aims to demonstrate © 2007 Clare and Richard Seymour. This sort of cross-examination should not be a cause of distress or upset. such as the interpretation of an Act of Parliament. So it is with differing opinion evidence from professionals from different disciplines. However.
Chapter 10. stored in a retrieval system 10 or transmitted in any form by any means. supported by the GSCC registration requirements in relation to continuing professional development. so that a social worker will usually only be working with one specific client group at any one time. mechanical. which are clearly expressed. since no one can produce experience which they do not have. without prior permission in writing from Learning Matters. This should not be taken as personal criticism. may have it suggested in cross-examination that her limited experience of childcare casts doubt on the validity of her opinions in a family case. recording. you should have a good grasp of the rationale behind any opinions you have offered. Again this should not be taken as a personal criticism. it is far from inevitable that the judge will prefer the evidence of the more experienced practitioner if the newly-qualified social worker has good grounds for her opinion. photocopying. electronic. HOW ADVOCATES APPROACH CROSS-EXAMINATION © 2007 Clare and Richard Seymour. It is therefore important that. who has recently moved into a childcare team. or otherwise. . No part of this sample chapter may be reproduced. • Rationale Notwithstanding what we have said about qualifications and experience. and we suggest that if you are a qualified social worker you should feel confident in the value of your generic training. Courtroom Skills for Social Workers that they lacked sufficient experience. This means that a social worker with many years of experience of mental health work. most social work practice and post-qualifying training is specialist. • Range of experience Although social work qualifying training is generic. when preparing for cross-examination. which should incorporate the four Rs described in chapter 7.
and a textbook published by the College of Law (Elkington. consistent with the available evidence and the client’s instructions which. mechanical. exciting or even exhilarating.Chapter 10. An effective cross-examiner is one who succeeds in obtaining from another party’s witness evidence which assists his client’s case. if accepted. which means obtaining answers from a witness which the witness accepts are accurate. and is limited to any new issues which have arisen out of cross-examination. the advocate for the party calling a witness can ask further questions to clarify the answers given by that witness in cross-examination. is part of legal training. or otherwise. 2004) introduces law students to the skills of cross-examination in this way: In order to conduct cross-examination effectively. The effective cross-examiner is therefore © 2007 Clare and Richard Seymour. However. or at least more accurate than their previous evidence. However. A few very eminent barristers have not been very effective crossexaminers. After cross-examination.. et al. it is necessary to develop a ‘theory’ of the client’s case. when there is an opportunity to correct the previous answer. some lawyers believe that skills in cross-examination cannot be taught. recording. and depend more on how particular advocates approach the task. This theory should be a plausible version of the events. We recall the long-awaited opportunity to cross-examine a particularly notorious witness in a long-running case as one of the highlights of a legal career. which includes conducting cross-examination. No part of this sample chapter may be reproduced. This stage of the evidence is called re-examination. Courtroom Skills for Social Workers Advocacy. without prior permission in writing from Learning Matters. will result in the court finding in the client’s favour. then this is likely to become apparent in re-examination. and others do not particularly enjoy the task. rather than going over evidence which has already been given. electronic. for many. If a witness has been persuaded by the style of cross-examination to say something which they did not mean. and the level of their experience. . crossexamination represents the point at which their legal knowledge and advocacy skills come together in an exercise which is potentially challenging. photocopying. stored in a retrieval system 11 or transmitted in any form by any means.
recording. mechanical. and that depends on presenting the witness with material which changes their perception of the fact or opinion about which they are being asked. No part of this sample chapter may be reproduced. It used to be said that student barristers were told during training: Never ask a question to which you do not know the answer. Clearly. It is worth remembering that if an advocate puts a question during cross-examination which suggests that there is a relevant document which supports the point of the question. Effective cross-examination depends upon thorough preparation. and good command of the material available to the advocate. photocopying. it is. which is why we hope that understanding of the process will make this less likely to occur. nervousness or confusion can influence a witness’s answers. Cross-examiner: Yes. © 2007 Clare and Richard Seymour. The most basic style of cross-examination. the cross-examiner needs to be in command of all the relevant facts. . because it will have been found during the preparation of the case. it isn’t. Unlike in examination-in-chief. but it does illustrate that in order to try to persuade the witness to agree to or change their mind about something. this is probably true. it isn’t. advocates can ask leading questions during crossexamination. and able to produce supporting material. Witness: No. It would be very unwise for a cross-examiner to suggest to a witness a version of events which could not be supported by reference to evidence. without prior permission in writing from Learning Matters. Courtroom Skills for Social Workers looking to achieve an impact which cannot be reversed in re-examination. That may be apocryphal. is somewhat as follows: Cross-examiner: I put it to you that your evidence is a pack of lies. and that most familiar from films and television. although they should not make statements without giving the witness the opportunity to comment on them. Witness: No.Chapter 10. stored in a retrieval system 12 or transmitted in any form by any means. electronic. or otherwise.
sometimes in combination. by taking events out of chronological order. cross-examination by putting an accusation to a witness. somewhat surprisingly. is a waste of time. STYLES OF CROSS-EXAMINATION Having said that cross-examination is a rather inexact science. adapting their questions according to the answers given. to the extent of writing out a list of questions in advance. if such material exists. or otherwise. because the questions are usually posed in the order in which they have been written. stored in a retrieval system 13 or transmitted in any form by any means. © 2007 Clare and Richard Seymour. This kind of cross-examination can be very tiring. electronic. Only once in a professional career did one of us suggest to a witness that his participation in a particular enterprise was simply a means of stealing money. Many advocates are able to think on their feet. • Intellectually challenging Cross-examiners who maintain the intellectual flexibility to pursue answers which seem relevant to their client’s case will have an outline plan. which they can adjust as required. in the majority of cases it is in documentary form. This form of cross-examination is not especially difficult to handle. without regard to the answers obtained in the meantime. Effective cross-examination depends upon producing material which persuades witnesses to alter their evidence and. • Organised and predictable Some quite eminent and successful lawyers prepare thoroughly for cross-examination. They may also try to unsettle the witness. receive the answer ‘yes’. photocopying. and repeating it when the witness does not agree. Courtroom Skills for Social Workers This is more reminiscent of a pantomime than the courtroom.3 Barring the odd exception. mechanical. Cross-examination then takes the form of going through the questions. and. recording. No part of this sample chapter may be reproduced. . there are nevertheless discernible styles which can be observed.Chapter 10. without prior permission in writing from Learning Matters.
or are prepared to devote to. or lack of knowledge. sometimes posing several questions at once. This is not usually a deliberate ploy to confuse the witness. The hope is that the witness will relax. and continue to agree when more contentious matters are put to them. This perhaps has some theatrical appeal. recording. while expecting one “Yes” or “No” answer. but rather evidence of the limitations of the advocate as a cross-examiner. but is usually less effective than a quieter. This is particularly true in family proceedings. stored in a retrieval system 14 or transmitted in any form by any means. rather than who wins or loses. this seems to be becoming more common as increasing restrictions on public funding of legal costs influence the time which advocates have for. you should not assume that all lawyers are skilled cross-examiners. Courtroom Skills for Social Workers • Intimidating Occasionally advocates set out to dominate and intimidate witnesses with a loud voice and superior manner. photocopying. . If a witness’s answers in cross-examination have been obtained by an advocate who has been sympathetic to the witness. • Softening-up Some advocates adopt a technique which involves asking a series of fairly innocuous. mechanical. simple and uncontroversial questions before moving on to a more assertive line of questioning.Chapter 10. preparing cross-examination. respectful style. © 2007 Clare and Richard Seymour. While many advocates are competent at cross-examination. of the facts or issues. No part of this sample chapter may be reproduced. or otherwise. electronic. without prior permission in writing from Learning Matters. where advocates are expected to avoid an adversarial approach. Unfortunately. and are conscientious in preparing for it. • Chaotic While not exactly a style of cross-examination. they may well appear to the judge to be more persuasive. and the primary focus is the welfare of a child or children. and who poses questions based on a misunderstanding. you may be surprised to find that some advocates appear incapable of asking a simple question. • Unprepared A variation on the chaotic is the cross-examiner who is simply not on top of the material.
since your first reaction may be defensiveness. by a whisker. which are easiest to deal with if you follow the advice below about listening carefully to the question. photocopying. Insinuating and confrontational questions are more difficult. © 2007 Clare and Richard Seymour. without prior permission in writing from Learning Matters. of the advocate. in which the advocate seems to be suggesting that because it was not an average case. recording. particularly in family proceedings.Chapter 10. a very few advocates whose style of cross-examination is bullying. TYPES OF QUESTION In social work interviews the distinction is usually made between open and closed questions.probing. and reduce it to something more manageable. it may be worth asking what the actual question is in these circumstances. but if you do experience it. be assured that it is not a legitimate style of cross-examination. mechanical. stored in a retrieval system 15 or transmitted in any form by any means. Fortunately they are not often encountered. it should not have received a routine response. For example. and these are also used to different effect within cross-examination. No part of this sample chapter may be reproduced. or qualify their answer. a closed question may be used to press for an admission of some sort when a witness would prefer to add explanatory material. gain some extra thinking time. you are most likely to encounter the first type. regrettably. Such behaviour will not pass the judge unnoticed. and avoiding jargon and clichés. . or otherwise. and possibly professional inadequacy. but rather a reflection of the personality. electronic. You also need to be able to recognise the three broad categories of cross-examination question . Courtroom Skills for Social Workers • Unpleasant There are. sarcastic and intended to cause distress and discomfort to witnesses whilst remaining. within their rules of professional conduct. keeping your answer brief and focused. Although in principle you are not allowed to ask questions yourself. and may well be the subject of judicial censure. shows that it is sometimes possible to deflect an insinuation. As an expert witness. insinuating and confrontational – each of which may trigger a different instinctive response. The next example.
mechanical. Courtroom Skills for Social Workers Practice example Victoria Climbié Inquiry. but I still don’t think that they can give him the care he needs. I think we still have a long way to go. because you have noted some of your other concerns about the case. if the crossexaminer considers it worth pressing for particular answers. HOW TO HANDLE CROSS-EXAMINATION The best social workers answer the question fairly and honourably. or otherwise. stick to their guns. simply housing issues. For example: ‘Yes.’ © 2007 Clare and Richard Seymour. Confrontational questions will sometimes follow probing questions. This is another reason why focused responses are important. photocopying. electronic. A: Was that a question? Q: Yes A: What was the question? Q: Well. it seems looking at it that there are issues that go beyond the simple case of housing … it was not quite the average case you were dealing with. stored in a retrieval system 16 or transmitted in any form by any means. No part of this sample chapter may be reproduced. concede a little if necessary but.Chapter 10. without prior permission in writing from Learning Matters. as is their duty. However. it was not an average case because she did come from France and part of her family was in France. I agree that David is much better at controlling his temper and the school is pleased. The parents love him very much and he loves them. Vagueness or elusiveness in an answer may encourage the advocate to become more confrontational in an effort to extract some kind of admission. . recording. 4 October 2001 Q: But this case was not quite the ordinary case that you were dealing with. W: Well. the fact that she has children in France and intends to return.
something to feel sensitive about. This would have been less of a problem had I been sitting down. or otherwise. which. No part of this sample chapter may be reproduced. mechanical. even if you feel that they reflect upon your professional competence. recording. that you have been racist in your dealings with someone). stored in a retrieval system 17 or transmitted in any form by any means. Your professional competence is not in any event. Practice example I remember fighting a losing battle with the tendency to stand with my hands on my hips during a very long-drawn out cross-examination. . In asking questions. both verbally and non-verbally. assertiveness and detachment. photocopying. Even though you may feel indignant. or even insulted. without prior permission in writing from Learning Matters. If this happens. Courtroom Skills for Social Workers (Family Court Judge) Whilst too much preparation can be counterproductive. It is important to appear calm and objective. thus unfortunately suggesting an attitude which was more confrontational than conciliatory. and this may mean that they are asked to put something to you which you regard as outrageous (for example.Chapter 10. although it is difficult to feel relaxed when © 2007 Clare and Richard Seymour. you should try not to take personally any suggestions made. it is worth identifying strategies which may support you in the witness box. to have more experience. or simply hold another view. • Don’t take it personally You should always try to approach crossexamination in a professional manner. nothing is gained by showing this. advocates are performing their professional duty to their client. even if another party’s expert may appear to be better qualified. electronic. requires a certain amount of resilience. as already explained. and it may harm your credibility as a professional witness if you reveal your personal feelings. as you will know from your practice. in that it may fuel anxiety and deflect you from the main issues in the case.
. mechanical. and give the answer that you want to give. or otherwise. no-one can force you. Most importantly from your point of view. unless it is for clarification. • Establish the ground rules If. you are entitled to ask to be shown it.Chapter 10. Sometimes an advocate will try to insist that a witness answers a question with “Yes” or “No”. Just say that the question cannot be answered with a simple “Yes” or “No”. photocopying. Courtroom Skills for Social Workers sitting in a chair without arms. • Expect the unexpected You cannot assume that you will be asked in crossexamination about events in chronological order. crossexamination is essentially an intellectual game for two players. when neither would be a sufficient answer. one of whom is you. stored in a retrieval system 18 or transmitted in any form by any means. if you are unable or do not wish to give the answer which the advocate wants. Another approach is to ask essentially the same © 2007 Clare and Richard Seymour. and this critical fact gives you more control over the process than you may think. If you think that a document may help you answer. (Social Worker) • Are you going to play the game? To the skilled advocate. electronic. This is likely to be the order in which they are dealt with in your witness statement. For example. You are not normally entitled to ask questions of the person questioning you. one approach to cross-examination is to take events out of chronological order. a question is confusing. the advocate cannot fix the ground rules as to how you answer the questions. the advocate cannot play without you. not what the advocate wishes it to be. However. but as we have seen. The judge is interested in knowing what your evidence is. as sometimes happens. or when the height of the witness box interferes with the view of the courtroom. so as to unsettle the witness and perhaps persuade them to change their view about something. you are entitled to say that you do not understand it and ask for it to be clarified. recording. without prior permission in writing from Learning Matters. No part of this sample chapter may be reproduced.
. you should ask for it. you can appeal to the judge. without prior permission in writing from Learning Matters. who will decide whether it is necessary to intervene. if you feel that the advocate cross-examining you is being offensive or unfair. electronic. Practice example © 2007 Clare and Richard Seymour. taking time to formulate your answer and asking for clarification of any questions which are not fully understood. and although the judge or your own advocate should be alert to any improper comments made. you think that your views have not been accurately conveyed. unfortunately judges and advocates do not always achieve the necessary level of alertness. • Expect to be fairly treated One of the judge’s responsibilities is to ensure that witnesses are treated fairly. Taking time in this way will also help redress any perceived power imbalance between you and the cross-examining advocate. This should not happen unless the witness is invited to respond. No part of this sample chapter may be reproduced. and to tell the judge what you think the correct position is. or otherwise. photocopying. Whilst you should not be over-sensitive. during cross-examination. in order to attach a potentially negative connotation to a particular witness. recording. as a result of the style of questioning. and to give considered answers.Chapter 10. These possibilities make it all the more important to listen carefully to the questions. If. mechanical. in addition to asking questions. • Control the pace It is possible to gain thinking time by carefully considering each question. Courtroom Skills for Social Workers question in a different form. hoping to demonstrate inconsistency if the answers are different. you are entitled to say that you wish to reconsider your answers. stored in a retrieval system 19 or transmitted in any form by any means. The judge is likely to intervene if questions are fired so fast as to give a witness insufficient time to answer. However. but if you want time to consider your answer to a question. The example below illustrates the fact that advocates are sometimes tempted to make comments. an advocate may feel that it is worth risking the censure of the judge.
Courtroom Skills for Social Workers During cross-examination. . sometimes advocates will try to ‘soften up’ witnesses with apparently straightforward and uncontroversial questions. If you do. at which point the judge intervened. which might not otherwise have been obvious to the crossexaminer. the advocate was doubtless satisfied with the fact that the comment had been heard. In a case about a harbour in which one of us was once involved. or otherwise. As we have seen. very inexperienced!). and is also likely to be beneficial to you. electronic. • Keep it short It is usually best to give as brief an answer as possible. without prior permission in writing from Learning Matters. (Social worker) • Don’t try to second guess It is usually a mistake to anticipate where the line of questioning is going. and make a note of all the oral evidence. especially if they do not relate to you personally. stored in a retrieval system 20 or transmitted in any form by any means. However. At the start of his cross- © 2007 Clare and Richard Seymour. I was asked to explain the description ‘manipulative’ which I had very unwisely included in a case record some time previously (when I was. You may also come across to the judge as someone who is not being completely open and transparent. rather than giving the answer that you actually believe to be the truth. of course. a witness described himself as a “Port Expert”. who has to concentrate on the central issues in the case. mechanical. recording. you may be tempted to prepare what you consider to be the ‘correct’ answer. I have never used the word ‘manipulative’ since. No part of this sample chapter may be reproduced. This is most helpful to the judge. photocopying.Chapter 10. Long or unfocussed answers provide the opportunity for points to be made. • Watch out for the wolf in sheep’s clothing Beware of agreeing too readily with apparently innocuous propositions. saying to the advocate ‘Miss S. that is an offensive remark and you will withdraw it’. The cross-examining advocate commented ‘It seems to me that social workers apply this description to any person who dares to disagree with them’. Needless to say. before pressing much more strongly for contentious admissions.
recording. at the time. “You describe yourself as a Port Expert?”. shows a cross-examiner being offered an unexpected admission by a witness who had not carefully considered the question posed: Practice example Q: Here we are at the beginning of June and you were still being asked to do an assessment. and by © 2007 Clare and Richard Seymour. We usually assessed people via housing needs. The next example. also from the Climbié inquiry (2 October 2001). . photocopying. and so he was not entitled to be regarded as an expert in ports generally. Instead of simply agreeing. focus You should confine your answer to the scope of the question posed. or making excuses for errors or omissions. and not introduce new material unless absolutely necessary. If it is suggested that something should have been done differently. Nothing is gained by trying to defend the indefensible.Chapter 10. without prior permission in writing from Learning Matters. • Admit mistakes It is very unlikely that everything you do in practice will stand up to detailed scrutiny. Did that surprise you or is that normal? A: I think at the time it was difficult. mechanical. be as honest as you can and admit any short-fall in your practice. • Focus. electronic. especially with the benefit of hindsight. Courtroom Skills for Social Workers examination he was routinely asked. which revealed that his expertise was limited to the operation of one particular port. Q: You assessed people generally on housing needs rather than being child focused? A: Yes. otherwise there is a risk that you will alert the cross-examiner to a line of questioning not previously considered relevant. focus. stored in a retrieval system 21 or transmitted in any form by any means. he delivered a long account of why he had so described himself. rather than being child focused. No part of this sample chapter may be reproduced. or otherwise.
yes. electronic. then it is probably unwise to refer to it. sorry. hoping that no-one has noticed. you risk being accused of inconsistency or inaccuracy if the matter is raised later.Chapter 10. but not dated? A: No. You should also be careful when suggesting. If you did nothing. or which you think may have given the wrong impression. so that you are both prepared for the issue to be raised. 4 October 2001 Q: Do you accept that file entry is not signed or dated? A: I think my name appears at the bottom. If you say something during cross-examination which you later realise is not right. it is not dated. Courtroom Skills for Social Workers acknowledging a mistake you are demonstrating that you are aware of the requirements of good social work practice. that an external factor was to blame for any shortfall to which you admit. mechanical. and this is the first time that you have raised it. However. or otherwise. it is important to say so. If you leave it. stored in a retrieval system 22 or transmitted in any form by any means. I made a mistake in my last reply… should guard against this. Practice example © 2007 Clare and Richard Seymour. No part of this sample chapter may be reproduced. since you are likely to be asked what you did about it. Q: Do you accept that is a shortfall? A: Absolutely. for example. Practice example Victoria Climbié Inquiry. without prior permission in writing from Learning Matters. Q: Yes. Simply saying I think I might have given the wrong impression when I said … or I am sorry. . recording. you should explore with your advocate in advance of the hearing any potential areas of difficulty which might become the focus of cross-examination. photocopying.
but witnesses should not take the initiative in this respect. no it was not. this does not apply to cases involving children (s. However. and attempts at humour can go spectacularly wrong. There is an exception in most court proceedings if. or being cross-examined. it is important to anticipate this by writing your records and maintaining your files in such a way as to make them fit to be shown to other people who may have different interests in the case. • Maintain formality Court proceedings are essentially formal and serious occasions. No part of this sample chapter may be reproduced. electronic. which gives everyone the chance to look at the whole file. Social work records are usually contained in the case file which you will have to hand over.Chapter 10. • Use notes with care As with giving evidence. One of us was once involved in a case in © 2007 Clare and Richard Seymour. you can refer to notes during cross-examination. without prior permission in writing from Learning Matters. you might lay yourself open to possible criminal charges. Some relaxation may occur during the course of a hearing. recording. by giving a truthful answer. 4 October 2001 Q: Was the supervision you received from your team manager adequate? A: Not at that time. You will also normally be asked how long after the event you made your notes. but there is a potential pitfall. mechanical. the accuracy of your records may be in some doubt. and if the gap was more than a day or so. Courtroom Skills for Social Workers Victoria Climbié Inquiry.98 Children Act 1989) because the welfare of children is paramount and therefore over-rides any other considerations. or otherwise. lawyers for the other parties in the case will ask to look at them. . stored in a retrieval system 23 or transmitted in any form by any means. As it is usually unrealistic to rely on memory when being cross-examined. Q: Did you do anything to refer your concerns about this to senior managers? • You can’t duck questions When giving evidence. photocopying. you cannot normally refuse to answer a question. If you use notes to refresh your memory during cross-examination.
have an observer to make a note of the effectiveness of different types of question. We have looked at style of questioning. was subsequently rejected. but also to represent the social work profession in a formal. CHAPTER SUMMARY This chapter has explained the purpose of cross-examination and explored the different ways in which lawyers approach the task. challenging. it is quite easy to practise techniques for dealing with cross-examination. He was asked in cross-examination how the Queen had arrived at the opening ceremony and replied. and ask them to discover more about the content by asking you a variety of types of question (open. confrontational).M. Share something you have written with a colleague or friend. No part of this sample chapter may be reproduced. types of question and strategies which may support you in the witness box. Queen Elizabeth had officially opened a building. recording. without prior permission in writing from Learning Matters. been present when H. . In offering this ‘insider view’. or otherwise. and on other matters. Not surprisingly. mechanical. his evidence on that. Courtroom Skills for Social Workers which an issue was whether the witness had. If possible. stored in a retrieval system 24 or transmitted in any form by any means. ‘On a bicycle’. probing. whilst keeping the principles of fairness and transparency central to your practice. multi-disciplinary setting.1 Although you should never coach anyone on their evidence. insinuating. and the nature of the responses obtained. with advice from people who are familiar with the process. photocopying. FURTHER READING © 2007 Clare and Richard Seymour. closed. Activity 10. or had not. not only to withstand the experience personally. electronic.Chapter 10. illustrated by examples from practice. we hope that you will become more confident of your ability. Reflect on the process with your questioner and observer. and swap roles.
Chapter 10. Harlow: Pearson Education. recording. . or otherwise. R (2005) Using the law in social work.org. Johns. A (2007) Social work law. photocopying.victoria-climbié-inquiry. 2nd edition. electronic. without prior permission in writing from Learning Matters. stored in a retrieval system 25 or transmitted in any form by any means. 2nd edition. Chapter 4 Social worker’s role in law. WEBSITE www. Exeter: Learning Matters. No part of this sample chapter may be reproduced. © 2007 Clare and Richard Seymour. mechanical.uk These extensive transcripts provide a fascinating insight into the reality of crossexamination. Courtroom Skills for Social Workers Brammer.
v. 17 July 1998. . Silverlock  2 QB 766.1 2 Code of Conduct of the Bar of England and Wales. 8th edition. R v. 3 Dubai Aluminium Co Ltd. Salaam. Rule 708(g).
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