Why Litigation Lawyers are Great Dinner Party Guests - an exercise for practising effective formulation of questions to witnesses
Formulating Questions to put to Witnesses
Or Why Litigation Lawyers are Great Dinner Party Guests
One of the hardest things for an inexperienced counsel to do is to formulate the questions they intend asking witnesses in Court.
The Five Rules of Asking Questions of Witnesses
Most advocates will know the theory of asking questions of witnesses. This can be broken down to five simple rules. These apply equally to examination-in-chief, cross-examination and re-examination. In no particular order, the rules are that:
The questioner should always know what they want to ask;
The questioner should always know the answer that they want to get to their question;
The questioner should always know the correct answer to their questions (sometimes this is different from the answer the questioner wants to get);
The question asked should be short and simple; and
The question asked should seek to elicit in answer one fact only.
The Difficulty of Formulating Questions under Pressure
Whilst the rules are simple, under the pressure of a courtroom, formulating a question that follows the rules can be very difficult. A popular example of a question that has gone wrong is:
Plaintiff’s Lawyer: When he went, had you gone and had she, if she wanted to and were able, for the time being excluding all the restraints on her not to go, gone also, would he have brought you, meaning you and she, with him to the station?
Defendant’s Lawyer: Objection. That question should be taken out and shot.
The Drawbacks of Pre-Written Lists
Some counsel try to eliminate the risk of this type of thing by writing out lists of questions in advance. Unfortunately, this rarely works. If a witness does anything unexpected (as they almost always do) the list of questions becomes no more than an unhelpful distraction.
A better way is for counsel to formulate appropriate questions based on their knowledge of the case, and the answers they require to advance their position. This is how most experienced counsel will approach matters.
In the absence of experience, counsel need to practise formulating questions. This is where a very simple game can be extremely effective. All that is required are three participants, each with pencils and paper. As the title to this article suggests, the game can be played with anyone. People who are particularly pressed for social conversation could even use it as an ice-breaker at dinner parties.
Various versions of the game abound, but probably the best explanation of it is in Iain Morley QC’s excellent book on advocacy, The Devil’s Advocate.
Practising Examination-in-Chief and Re-Examination Questions
For practising examination-in-chief and re-examination questions (i.e. non-leading questions), one participant (the witness) draws a relatively simple picture on the paper, ensuring that the others cannot see. The second participant (the examining counsel) asks open questions of the first person to describe the picture.
The third participant (the Judge) draws a picture based on the responses to the second participant’s questions. The aim is for the “Judge’s” picture to end up as close as possible to the picture drawn by the “witness”.
In Iain Morley QC’s example, the first person draws a boat. The open questions asked by the second person, and the responses elicited, were:
Q. What shape have you drawn?
A. A boat.
Q. From bow to stern, how long is it?
A. 6cm
Q. Where on the paper is it, in the middle, or on the right, towards the top, exactly where?
A. Its centre is in the middle of the paper.
Q. Has it sails or funnels?
A. Funnels…
And so it continues. At the end, the closer the picture drawn by the “Judge” is to the original picture, the better the questioning has been.
For cross-examination, the aim is to ask leading questions. Once again, the “witness” draws a shape. This time, he or she gives it to the “counsel”, without showing the “Judge”. The “counsel” then must cross-examine the “witness”. The “Judge” draws a shape based on the answers elicited.
Again, in Iain Morley QC’s example, a boat is drawn. The questions and responses were:
Q. The shape is a boat isn’t it?
A. Yes.
Q. It has two funnels doesn’t it?
A. Yes.
Q. The bow of the boat is centred one inch from the left edge of the page, isn’t it.
A. Yes…
Again, the aim is to have the Judge draw a picture as close to the witnesses’ as possible.
This game is a great help in assisting counsel to concentrate on accurate question formation. And if you’re present at a particularly dull dinner party, it could even help increase the esteem in which the legal profession is held.