Letter: Masters of cross-examination

I enjoyed reading Robert Mitchell’s entertaining article entitled “Don’t Cross Them” (Journal, August 2014, 22). Mr Mitchell alludes to the many books which have been published on the so-called art of cross-examination. I am inclined to think that the usefulness of such books is limited, and generally inversely proportional in value to their length. Moreover, their overall consensus tends to be productive of a regression to the mean as regards the guidance which they put forward, thus inducing a monotonous uniformity of technique in courtroom practice.

I am in no doubt that the cardinal prerequisite for success is mastery of the brief, and from my own observations the most successful cross-examiners are those who command total mastery of their briefs, a point rarely highlighted in books and articles on the subject.

That is not to say that the employment of certain stylistic add-ons may not serve to enhance delivery, and by that means augment effectiveness. Of course, no amount of style in delivery can take the place of mastery of the brief. An exemplar of encyclopaedic mastery of the brief was that most incisive of cross-examiners of the last 60 years, the late George Emslie QC. He always knew the facts and circumstances of his cases inside out. However, such mastery of his brief did not hold him back from his idiosyncratic stylistic add-on. This was, immediately on asking a question, to place one of his feet on the seat of counsel’s bench, turn his body round to face the back of the courtroom, and feign a quizzical look in the direction of his instructing solicitor. This ploy nearly always discomfited the person giving evidence, resulting in a suspicious hesitancy before the answer was forthcoming so that its accuracy or veracity was debased.

I suppose that we all have our own individual and fruitful ploys and tactics. One of my own was that, even in civil cases, if the persons giving evidence had criminal records for offences involving dishonesty, and the evidence which they were giving was discernibly false, I would ask them whether they were being truthful, and whether they had ever done anything dishonest. If they asserted their good character, I would produce extracts of their criminal convictions for offences involving dishonesty, have these extracts handed to them, and invited their comments.