10 Rules for Effective Cross Examination (especially before arbitral tribunals) PLUS 5 Professional Conduct Questions arising from Cross-Examination. By: Thomas G. Heintzman, O.C. Q.C.: March 22, 2012

McCarthy Tétrault LLP / mccarthy.ca / 2 1. Decide exactly what you want to accomplish ¬Indecision at the beginning can lead to catastrophe in execution (and frustrate the tribunal). ¬Analyze your case, and then: ¬Decide what you need to prove through this particular witness, and why. ¬Limit your examination to what you should accomplish with this witness. ¬Arbitral tribunals will be particularly impatient with wandering, unproductive cross-examinations

McCarthy Tétrault LLP / mccarthy.ca / 3 2. Minimize the risk (and forget the rule: Don't ask a question to which you don't know the answer) ¬Cross-examination is all about minimizing risk; it's not about taking no risk. ¬Decide what the "crunch" or difficult questions are. ¬Then develop a line of questioning that will get you there as safely as possible. ¬Start with a simple question or one that has little risk. ¬Then work from there to more problematic questions. ¬(So you can bale out if the questioning is going badly, with little risk or loss). ¬In other words, develop a strategy about how you are going to get to the crunch questions. ¬And learn how to "cut your losses and run".

McCarthy Tétrault LLP / mccarthy.ca / 4 3.Write out the "crunch" questions. ¬The "crunch" or ultimate question is the one accomplishes your mission on a particular line of inquiry. ¬Writing it out enables you to carefully think out the question and get it exactly right. ¬The crunch questions should not be a "spur of the moment" exercise. ¬Writing it out also enables you to plan out how you are going to get that specific question.

McCarthy Tétrault LLP / mccarthy.ca / 5 4. Listen to the answer. ¬Don't be absorbed in your script. ¬The witness' answers often give you a "pearl" that you weren't expecting. Grab it and run. ¬Don't be afraid to pick up on a witness's answer. ¬Most often there is little risk and, since it was spontaneous, it could lead to gold.

McCarthy Tétrault LLP / mccarthy.ca / 6 5.Use Pace to persuade and control ¬Go slow (enough, or in starting) to allow the tribunal to understand where you're going. ¬Slow pace may be particularly important in technical matters or before arbitral tribunals. ¬Use slow or faster pace to control the witness. If you are on a roll, speed may help.

McCarthy Tétrault LLP / mccarthy.ca / 7 6. Use leading questions ¬Leading question accomplish three objectives of cross-examination: 1.they minimize risk (the greatest danger of cross-examination) by minimizing unforeseen answers (since they suggest the answer). 2.they are the most efficient method of getting the answer (since they suggest the answer). 3.they control the witness and thereby demonstrate that the examiner is in charge and competent.

McCarthy Tétrault LLP / mccarthy.ca / 8 6.Use leading questions (contd) ¬However, if you become adept at cross- examination, try non-leading questions ¬Non-leading questions can be very persuasive because they make the answer appear to be entirely the witness' creation. ¬Non-leading questions can be persuasive, especially to arbitral tribunals which may not wish to see a witness controlled.

McCarthy Tétrault LLP / mccarthy.ca / 9 7. Organize the documents in a useful and persuasive order ¬Use the documents to control the witness: ¬its easy for a witness to disagree with a the question that is unsupported by a document. ¬Its more difficult for the witness to disagree with a document written at the time of the events in question. ¬So use the documents at the important parts of the questioning: the beginning and the end

McCarthy Tétrault LLP / mccarthy.ca / 10 7.Organize the documents in a useful and persuasive order (contd) ¬Use the documents in some sensible sequence (usually, but not necessarily, in date order). ¬Its more persuasive and understandable to the tribunal. ¬ It's usually more persuasive and controlling to the witness.

McCarthy Tétrault LLP / mccarthy.ca / Conduct a shorter, rather than longer, cross-examination ¬Long cross examinations are not persuasive, especially to arbitrators. ¬Crisp, cross-examinations are persuasive (and memorable). ¬If you have to examine at length, then do so. ¬But put marks in your notes, identifying places you could stop. ¬And as you are cross-examining, keep checking whether you should stop.

McCarthy Tétrault LLP / mccarthy.ca / 12 9.Keep your eyes on the tribunal ¬Cross-examination is for the tribunal's benefit, not yours. ¬Watch to see if: ¬the tribunal is engaged; ¬the panel is understanding the cross-examination; ¬your are going too fast or slow. ¬Cross examinations are much more difficult to follow than examinations in chief. ¬So be alert to see if the tribunal is following yours.

McCarthy Tétrault LLP / mccarthy.ca / Try to end on an up-beat ¬Impressions are important. ¬Try to end on a note that signifies that you have accomplished something, and that the examination was worthwhile. ¬And then leave out the extra questions you had planned, unless they are necessary.

McCarthy Tétrault LLP / mccarthy.ca / May you ask a question in cross- examination to obtain an answer which: ¬you know to be untrue? ¬you believe to be untrue? ¬you have no reasonable basis to believe is true? ¬you have no basis to prove is true, but believe is true? ¬Rules of Professional Conduct, Rule 4.01 (1) and (2)(b),(d),(e),(g)

McCarthy Tétrault LLP / mccarthy.ca / May you ask a question in cross- examination which is: ¬intentionally misleading? ¬is not intentionally misleading, but in fact misleads the witness? ¬Rules of Professional Conduct, Rule 4.01(1) and (2)

McCarthy Tétrault LLP / mccarthy.ca / May you ask a witness a question in cross-examination based upon a totally unrelated documents (the Toronto telephone book)?

McCarthy Tétrault LLP / mccarthy.ca / Can you refuse to advise the court or the opposing counsel of the thrust, objective or purpose of your cross- examination: ¬in the presence of the witness? ¬in the presence of opposing counsel?

McCarthy Tétrault LLP / mccarthy.ca / During cross-examination, may counsel discuss the facts or proposed cross-examination or evidence with the witness? ¬Rules of Professional Conduct, Rule 4.04 (f) and (g)

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