16 1,000 Questions for Cross Examination of Witnesses To put your ease. 1G Toattack the other side's case 1 Toestablish your case. Please note two things: firstly, itis not purpose of cross-examination to establish the truth, The truth is almost unknowable, particularly in civil cases where much of what is said and done is determinant upon a ‘person's perception of what has gone before. Secondly, putting your case and establishing your case are different things. Putting ole-a-uis Establishing. It is possible (although unlikely) in a criminal case to obtain an ‘acquittal simple by making the jury unsure that the prosecution case is fone on which they can rely to the necessary standard. It is not possible ina civil case for the following reasons The standard of proof is different. The gap between likely’ and ‘sure’ simply does not exist. Decisions are, save in very rare cases, made by the Judge, In ‘giving a reasoned judgement she is’ required to come to a ‘consistent view about the evidence and, almost inevitably, to decide what happened. Judges do not have to decide every fact Dut, by and large, they want to be able to create, in their judgement, a version of events into which they can ft their findings on the evidence and their legal rulings. ‘This means that itis necessary to both put and establish one's case. ‘The two things have different functions: putting the ease means that you ‘can make your submissions, There are terrible stories about barristers ‘who do noi put their case. Bstablishing your case means you might win, Establishing your case also allows you to work to the lowest common denominator. To adopt a sporting analogy, it isnt necessary to break the world record-only to jump the bar. How to Establish Your Case In a civil case the two competing accounts are likely to be known and capable of being understood at a relatively early stage because all witness statements are exchanged and, save perhaps in simple lability ceases, there are documents which go to the saain issue. It is, therefore, possible to know what you want to say at the end of the case before you begin it, A failure to work that out should be regarded as inexcusable. That should mean that cross-examination is both short and focussed, Ifit isn't then you should ask yourself why. ‘The exception to that rule is when a long cross-examination makes a difference to the witness's credibility. If the man is sweating and wiping hhis forehead in an air conditioned court room and he isn’t ill-eeep going, But even then, only until the Judge has decided that the Witness is unreliable, Because96 11,000 Questions for Cross Hzamination of Witnesses But before raising these ultimate issues, we had to prove them point iy point because the witness, a high-ranking university staff member, wis ‘ot inclined to help, Each row of the outline for cross-examination of the witness (sce below) contained no more than one fact in a statement that the witness made during his deposition or that appeared in an exhibit. This preparatory document helps to formulate leading questions based o: each fact. Ia witness tries to argue with or deny a statement, you can ‘quickly refer to the deposition or exhibit, Here is an edited transcript ofthe cross-examination as it played out at trial, @ You were the head of the sexual harassment board thit investigated my client's complaint, Iwas the head of the panel of the sexual harassment board During the investigatory process, my client complained that he ‘was stil being subjected to harassment, correct? When I interviewed him, yes, he di. ‘Can you look at Exhibit 153—do you see that document, sir? Yes, This is a letter dated June 9, 1997. [And I see at the bottom that you received a copy of this letter. le that correct? oP QPpoPr > ‘That's what it says, (OK. Now, in it, my client mentions that he had on severs) occasions subsequent to his complaint asked for protection from further harassment and retaliation. Do yon see that? Yes. © ‘And you remember him mentioning this to you? During the interview. Yes. Sir, the board could do nothing to stop the harassment or the retaliation? ‘That's correct oreor o> Board members had no duty to correct or prevent harassment, did they? ‘That's correct ‘They had no power to do that? ‘That is correct. And the only person you know that had that power was the university president? ‘That is correct. ‘And you don't know of anything he did to stop the harassment? o> orem11,000 Queetions for Cross Bzaminetion of Witnesses 147, ‘and thorough, the general idea, to the questions to follow is to a number of orthopedic diagnostic tests or aids that he probably had not used in his examination). Q. Now, doctor, you testified that the patient undressed, Did you have er tae her ahocs off? (Where the doctor is examining for the defendant anc the ‘complaint fs knee injury it is amazing to discover how many ‘orthopacdists did not ask the patient to remove his shoes. In this instance, however, the doctor taid) Yes, Doctor, do you know whether the patient has at feet? No, I don’ know. Is there any indication in your records of having examined the patient for at feet? No. You don't remember examining the patient for flat feet? No, Isnt flat fet the most common orthopedie disorder that there is? Yes, oror eoreoror Isn't it then a part of every complete thorough examination to examine the patient fr fat fet? Yes ‘And this is considered an essential part of every thorough ‘complete orthopedic examination? Yes. But in this instance you did not conduct what is considered an ‘essential part to every complete thorough orthopaedic A. No. @ Then at least to that extent would you say your orthopedic ‘examination of the patient was complete or thorough? A. No, (Where the injury complained of isa knee injury, itis unusual to find ‘an orthopacdist who has measured the length of both legs. Either he should have done a better examination or he should Ihave testified about the thoroughness of his examination, Then the following would not have occurred.) Q Doctor, did you measure the length of one leg and then the other? or oF296 11,000 Questions for Cross Examination of Witnesses lay down certain general principles of construction. The cardinal maxim to be observed by Courts in construing a wills to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will, the Courts are entitled land botind to bear in mind other matters than merely the words used. ‘They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed tp in the somewhat picturesque figure. ‘The Court is entitled to put itself into the testator's armchair.’ But all ths is solely as an aid to arriving at 4 right construction of the will, and to ascertain the meaning of its Janguage when used by particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified Jn adding to testamentary dispositions. In all cases it must loyally carry cout the Will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life. A presumption against intestacy may be raised if it ie justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. [Gnambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103} ‘Wills—Model questions ‘When were you married? ‘When were you separated from your father? ‘Where were you living after separation? ‘When did your mother expired? ‘When did your father expired? fs it right that deceased was living with the petitioner? Ie it right that you did not maintain any relations with your sisters and their family? 1 say that the site plan filed by you is wrong? 9, How can you enjoy & use the property during lfetime of deceased when you were already separated? 10. Did you ever visit deceased & when? 11. Do you have any written document regarding holding of [Biradari Panchayat? When & by whom it was attended? 1 say, you are lying falsely about holding of any such panchayat or about paying of Rs. 500/- P.M?car. esate Re 10. ML 2. 3. us. 15 16. ¥. 32) ARMS ACT o QUESTIONS TO BE PUT IN CROSS EXAMINATION Did you se the person firing or somebody told you doubt it? ‘What was the am used by that person? Atwhat distance from the crowd was that person fring? Wasit a revolver, again or any other fire arm? Do you recognize that gun? Can you identify the attackers? Can you say which ofthe several persons fixed the shot? ‘Was that person already in possession ofthe arms or it was supplied to im immediately. Do you recognize the supplier of Arms? Did you hold any licence for the fre arm you were possessing. If you did not have the licence under what authority you were keeping the licence? How many fire arm you were keeping? How did you acquire the fire arm in absence ofa valid licence? ‘You had the knowledge thatthe incriminating article was afire-arm. (On search of your house a country-made pistol was recovered from your ‘house, wherefrom you got itor who supplied it? ‘There was found to be two gun barrels and many parts of fir-arm in the presmises of your house what have you to say about i? Cartridges and blood were found in your house just after the incident why you should not be convicted under the Act? Facts reveal you were found involved in manufacture/sale of ammunition, why you be not convicted under the Act? ‘A period of three years from the issuance of licence had already expired and the licence for gun was also not reneved what you have to say in defence? ‘You were found transfusing your fie arm without transfering of the District Magistrate. Why you be not furnished under the provisions of ‘Arms Act?