Surviving Cross-Examination: 8 Best Tips
15th January 2018
By Lucy Warhurst & Lisa Wagner
Has your Family Law matter been set down for Final Hearing?
If so, you will most likely be facing cross-examination. Cross-examination is a critical part of the Final Hearing process and can be an extremely nerve-wracking experience.
You may be wondering how to answer the difficult questions posed in cross-examination. Read on to find out our 8 best tips for surviving cross-examination.
1. When asked a ‘yes’ or ‘no’ question, answer ‘yes’ or ‘no’.
The moment you say ‘because’, is a pretty good indication you have gone too far.
The right answer to questions under cross-examination is usually the simplest, most honest answer. This usually means providing direct ‘yes’ or ‘no’ answers.
Appearing in the witness box should not been seen as an opportunity to retell your story or add to it. You will have already had the opportunity to provide evidence in chief in the form of your Affidavit. The Judge will have read this material.
The more you try to explain your answers, the more opportunities you are giving your former spouse’s barrister to trip you up. Remember that the judge will have read your Affidavit and the Judge’s understanding of a context will usually not require you to elaborate.
2. It is important to tell the truth.
It may feel like you are doing yourself a disservice by agreeing with a question which represents you in an unfavourable light, however, being honest goes to your credibility. Agreeing that you perhaps behaved badly in a prior situation can show insight into your own understanding of your behaviour and your ability to self-reflect.
3. Body language is everything.
Remember that you are not only being examined on what you say, but also how you say it. This means it is important to be aware of your tone and body language. Something as simple as flicking your finger nails can give the impression that you are disinterested.
4. You won’t be able to speak to anyone once you’re under cross-examination
You never realise how hard it is not to engage in conversation until you’re told you can’t and if ever there were a time you needed to speak with someone, it’s during cross-examination. Once cross-examination has commenced, witnesses giving evidence are not allowed to speak to their legal representatives. For this reason, it helps to be as prepared as possible. If you have questions that you want to ask your lawyer, make sure that you have asked them before you are called to the witness box.
5. Remember why you are there.
Amidst the stress of a final hearing, clients often lose sight of the reason they are there. If your case is about parenting, it is about the best interests of your children. Worrying about being represented in an unfavourable light and showing anger towards your former partner often distracts you from what is most important.
6. Do your best to remain in control.
Take nothing personally. Questions that make you feel angry or that provoke you to argue are designed to do just that. Barristers have extensive experience in asking questions of this kind. If you are able to remain calm, your ability to self-regulate in life in general, not just in the witness box is reflected. This is what the judge wants to see. The worst thing you can do in this situation is to be seen to be arguing. Remain courteous but firm.
7. Do not try to pre-suppose the reason for the question.
Trying to pre-suppose the reason for a question can lead you to give a dishonest answer and giving a dishonest answer provides the Barrister with an opportunity to trip you up even further.
Presupposing the reason for a question can also result in you volunteering information that can also be used to ensnare you.
8. You should generally avoid absolutes, such as ‘always’ and ‘never’.
Generalising through the use of absolutes is one of the surest ways to trip yourself up in cross-examination. If you say you ‘never’ do or say certain things, you give the barrister an opportunity to seek out the one situation which was an exception to your rule. This allows the opposing barrister to chip away at your credibility.
If you are facing a Final Hearing and would like to know more about cross-examination and the process to Final Hearing or want to talk about progressing your family law matter smoothly, then get in touch with us at Doolan Wagner Family Lawyers by calling 02 9437 0010 or emailing firstname.lastname@example.org
Our office is conveniently located in St Leonards on Sydney’s Lower North Shore and our team of family lawyers are ready to speak confidentially with you.
These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.