The Perils of Re-Examination
The perils of re-examination
When the cross-examination of a witness is concluded, the witness can be re-examined by the lawyer who called him or her. Re-examination is limited to matters that the witness was cross-examined on. In theory, it offers an opportunity to reverse the damage done by an effective cross-examination. On occasion it can be used to draw attention to a “dishonest” cross examination (for example, by taking the witness to documents not referred to in cross-examination). On rare occasion (mainly in jury trials) it can be used to reinforce helpful answers in cross-examination.
In practice, re-examination is fraught with peril. It is rarely done well, and can cause considerable damage to the case of the person who called the witness. Often the mere fact that there is a re-examination is an admission that the preceding cross-examination was effective. Asking extensive questions on a particular area of cross-examination can highlight the weaknesses in the preceding testimony.
Even more so that cross-examination, the first rule is “don’t do it” unless you really have to.
This rule is particularly apposite In New Zealand civil trials, where almost all evidence-in-chief is given by witnesses reading prepared statements. These are distributed to all parties to the litigation well in advance of trial. This means that cross-examination, and most other aspects of a trial, is prepared on the basis of extensive knowledge of a witness’s evidence.
Re-examination commences immediately upon the conclusion of cross-examination. Unless the cross-examination has taken a number of days, there is little time to specifically prepare for re-examination. For most New Zealand civil lawyers, re-examination is (or should be) the only part of questioning witnesses that is done largely “off the cuff”. That means it is an unfamiliar exercise to all but experienced advocates.
The other part of re-examination that trips up lawyers is that, unlike cross-examination, the witness cannot be asked leading questions. Asking non-leading questions to elicit a particular response used to be part of evidence in chief. Now, with written witness statements, it is a skill that many civil lawyers in New Zealand have not had to master. The end result is that re-examination is often done badly by inexperienced advocates.
All that means that a lawyer should not re-examine unless they are a skilled and experienced advocate. If a lawyer must re-examine, it should be brief and done only to correct an obvious mistake a witness has made. Even then, re-examination should only occur when the questioning lawyer is very confident in his or her ability to elicit a helpful answer. If, for example, the witness didn’t refer to a helpful document in cross-examination, then taking the witness to that document in re-examination can repair damage done during the cross-examination.
However, re-examination can often go badly wrong. An example of that may be found in the transcript below. The first extract is from the cross-examination of an expert witness. He was giving evidence as to whether the executors of an estate acted reasonably in selling an estate asset (a farm) at the time they did so. He was called by the plaintiff, whose position was that the executors breached their duty by selling the farm at that time. However, as can be seen below, he reversed that position under cross-examination, accepting that in fact their action was reasonable.
The plaintiff’s lawyer then had an unenviable choice to make. Let the admission stand, put on a brave face, and deal with it in closing submissions? Or try to get the witness to reverse the position in re-examination? The dice was rolled, and re-examination was attempted.
As you can see from the transcript excerpt (with changed names) below, that turned out to be a disastrous choice. The witness repeats and re-emphasises the unhelpful answer. Even worse, the witness gives significantly more detail to back it up than was elicited under cross-examination.
The end result of the re-examination was an answer that did significant damage to the plaintiff’s case. In this particular instance, the damage was so severe that, following an invitation from the judge, the defendant decided to rely on the plaintiff’s witness and not call any expert evidence in opposition.
CROSS_EXAMINATION
Q. And at this time we’re in a situation where it’s well known I think by this
time that farm values are falling. Falling sharply. That’s something that you would’ve been aware of, correct?
A. Yes.
Q. And it’s just general knowledge in New Zealand at the time, correct?
A. That’s right.
Q. So really the executors are going to want to be in a position – well, before we talk about that, it’s reasonable at this stage isn’t it for the executors to say well look, no, sorry. We’ve got to sell it to somebody else, correct?
A. Yep. I believe so.
Q. Now at this time, the executors do have a registered valuation which was the basis for the offer Mr Brown made. You're aware of that?
A. Yes.
Q. In that situation with this offer having effectively fallen over, with them having a registered valuation saying that this price – Mr Brown’s price was a reasonable one or a market one, the proposition I’m putting to you is that at that time, if they’d been able to sell the property for that price straight away that would’ve been a reasonable for the executors to do, correct?
A. Yes. I believe so.
Q. Particularly given the global financial condition?
A. Correct.
Q. So if we’re in a situation where the executors are able to get an extra $100,000 for the property from Steel Farms, that reinforces that their actions are reasonable, correct?
A. Yes.
Q. The fact that they don’t have to pay any costs of sale for example, commission fees, marketing fees or anything of that nature means that a decision to sell on that basis in a falling market is a reasonable one for executors to make isn’t it?
A. Yes I believe I so.
RE-EXAMINATION
Q. You were also asked about the eventual sale of the farm, in this case to Steel Farms in 2009 and agreed with the proposition that it was reasonable to sell that farm to Steel Farms given the market at the time and also the fact that the trustees or executors managed to get another $100,000 on top of the offer. There is evidence in this case that after the judicial settlement conference in 2009, there was a settlement agreement that the trustees would look to sell the property on an open market if a deal to Mr Able fell through and also evidence that there were some other interested buyers in the area including a wealthy farm owning family, the Oliphants. Do these factors have any impact at all on your answer in respect of the reasonableness to sell to Steel Farms in these circumstances?
A. I think as I said earlier, I think trustees in that situation have to make a bit of a judgement call as to whether they take an offer that’s on the table in front of them or whether they take an offer that’s on the table in front of them or whether they in fact went to the open market or approached other people who may be interested. I think against the background of the falling farm prices during that time and the economic situation generally, I don’t think it was unreasonable for them to say, well we have a buyer here at a figure that we believe is reasonable, reflects market value and we would take it bearing in mind the amount of time that had gone by supposedly in negotiations with Mr Able that didn’t produce an agreement. Yeah I don’t think it’s unreasonable for the trustees to have made the decision to have taken the offer that they had.