By Ben Patrick, Partner
This is a guide for witnesses about how to give evidence in court. We would encourage you to discuss this guide with your lawyers and to clarify anything that you do not understand. Different cases may require different approaches.
There are three phases to giving evidence. First, there is examination-in-chief, where your barrister will ask you questions. Then there is cross-examination, where your opponent’s barrister will put their client’s case to you. Finally, your barrister will get to re-examine you to clarify anything that arose during cross-examination.
When you are giving evidence as a witness, your only role is to assist the court by telling the judge what happened. The judge will then make findings about the relevant facts.
You are not there to argue your case or discuss the law. That is the role of your barrister and legal team.
Always tell the truth, even if you are worried that it might not assist your case. There are many reasons for this.
Your lawyers will know your case well. They will know the weaknesses in the case, and the strengths. They can deal with any concessions that you might have to make when giving evidence. Don’t be worried about the potential impact that your answers may have on the outcome of your case.
It is important to listen carefully to the questions you are being asked as a witness. Once you have listened to the question, answer the question.
Do not stray beyond what has been asked. Do not expand on your answer unless invited to do so.
There will be a distinct difference between the way counsel will ask questions in examination-in-chief and the way questions will be asked in cross-examination.
During examination-in-chief, your barrister will ask open questions which invite you to explain your answer. For example, you might be asked ‘what is the weather like today?’. During examination-in-chief, a barrister is generally not allowed to ask questions that have a simple ‘yes’ or ‘no’ answer.
When your own barrister is asking you questions, you need to provide a complete and comprehensive answer. The questions will be designed to assist you, so don’t be shy. Tell your story.
That said, you still need to follow rules two and three – tell the truth and answer the question.
Cross-examination has different rules to examination in chief. You should consider this a hostile encounter and treat it accordingly.
During cross-examination, your opponent’s barrister may ask you questions that suggest the answer, for example, ‘it is raining today, isn’t it?’. These questions (called leading questions) will usually have a yes or no answer. Leadings questions will encourage the witness to accept certain propositions or make particular concessions.
It is essential to listen closely to the questions and ensure that you understand exactly what you are agreeing to.
If you do not understand the question or it is not put to you clearly, you are entitled to request that the barrister re-phrase the question. It is not the job of the witness to guess what it is they think counsel is trying to ask. It is better to ask for clarification and make the barrister ask the question properly than to assume what was intended.
Answers given during cross-examination should be given concisely, usually with a yes or no answer. If a witness seems unsure or hesitant when answering closed questions during cross-examination it can come across to the court as them being dishonest or that they have something to hide.
Cross examination is not the place to give speeches. It is your barrister’s job to argue a case. Your job as a witness is simply to tell the judge what happened. A witness is not there to have an argument with his opponent’s barrister. This never assists either the court or your case.
If you want to qualify or clarify further beyond your ‘yes’ or ‘no’ answer, it is best to avoid launching straight into a long explanation. It is better to answer the question with a short ‘yes’ or ‘no’, but indicate that there is more that needs to be said about the topic, for example, by saying ‘yes, but there is more I need to say about that’, or ‘no, but I would have to clarify that’.
The barrister that is cross-examining you is required to ask whether you disagree with your opponent’s case, particularly if there is a difference between your recollection and that of another witness about a material fact. If a judge must make a decision about who is telling the truth, then the barrister must put it you that your version of events is wrong, or a lie. Do not be offended by this; it is simply part of the process of cross-examination.
In summary, it is best to confine your answers to one of the following:
Finally, it is good to pause slightly before giving an answer when you are under cross-examination. This will give your barrister a chance to object to irrelevant or objectionable questions.
At the end of your cross-examination, your barrister will be able to ask you further questions to clarify any evidence that you gave. This is called ‘re-examination’.
Rather than argue with your opponent’s barrister during cross-examination, it is better to leave it to your legal team to ask you further questions in re-examination to clarify anything that was unclear.
It is likely that the judge will ask questions. If so, provide detailed explanations rather than short responses. This will help to convey the impression that you are there to assist the court.
While your lawyers can explain the context of the matter and highlight the issues in dispute, they are not there to tell you what evidence to give.
It is inappropriate for a lawyer to coach a witness on how to answer a question before a hearing, and also detrimental to your evidence. It is far safer to rely on your own knowledge, otherwise your evidence will come across as dishonest.
Cross-examination is not a competition or something that you can win. Arguing with the judge or the barristers will only detract from the way your evidence comes across.
Your only goal should be to make sure that you have conveyed to the court your recollection of events to the best of your ability.
A good witness will be seen as humble, knowledgeable and honest.
While it can be difficult to be relaxed when giving evidence, it is best to be calm. Prior to the hearing, do whatever it is that you personally do to relax yourself.
While giving evidence, it can help to have a glass of water in front of you, as this will give you the opportunity to pause, take a sip of water and collect your thoughts during your examination and before responding to any questions asked of you.
If you need to take a break or go to the bathroom, simply ask the judge.
Do not try to guess why someone is asking a question. This will only confuse you and make it difficult to seem credible when giving your answer.
The better course of action is simply to follow the rules set out above:
Your evidence is for the benefit of the judge. If possible, you should address your answers to the judge, and not the barrister asking the questions.
Ask your lawyer how to address the judge before giving evidence, as it varies between different jurisdictions.
Never disclose any legal advice you have received, even if asked.
If you do not understand anything in this document, please contact us or your lawyers and we would be happy to have a discussion with you.
Disclaimer
Please note that this guide only applies to the giving of evidence in civil proceedings. You should always discuss this with your lawyer before you take the stand.
This guide does not apply to giving evidence if you have been charged with a criminal offence, or if you are giving evidence to an inquiry or Royal Commission. The rules are quite different in those situations, and require a different approach.
Finally, this article should not be treated as legal advice and does not apply to any individual situation. Always consult a lawyer if you are involved in civil litigation.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
Ben Patrick
Partner