25 Feb Preparing your own cross examination in court
We’ve all seen films depicting a dramatic cross examination in court, but what’s it really like to cross examine someone? If you’re representing yourself in court, you might be asking yourself that and wondering how you can make a good job of it if it’s something you’ll need to do.
Cross examinations usually occur during a Contested Hearing where one party is alleging something which will affect making an order. During the hearing the judge will hear both sides of the story, examine the available evidence, and make a decision based on what he decides is the truth. He will then make an order which is binding upon the parties.
Preparing for a Contested Hearing
You’ll need to prepare a Statement outlining your situation. This should explain the background to your case, convey the solution you’re seeking, and include anything that supports your claims, such as evidence and available witnesses. It should specify the order you’re seeking from the court.
It’s worth bearing in mind that evidence is information which proves or disproves a fact, such as text messages between you and your ex which prove they constantly harassed you or a video of them being abusive. You need to make sure your evidence is specific to any claims you’re making. Other types of evidence include social media posts, phone recordings, witness statements, receipts, emails and letters. The burden of proof is always on the person making the allegation to prove or disprove a fact.
One side will have to prepare a court bundle for the judge including your Statement and evidence. It should also include a chronological timeline of events leading up to the hearing, a statement of issues (a list of the main issues in the case) and a case summary.
Examination in Chief is where you present your case to the judge. You’ll go through each point you’re making, supported by evidence or the relevant case law. The purpose of Examination in Chief is to make your case clear to the court, and present and protect your supporting evidence.
To prepare for this you need to think about anything that has happened since your Statement was provided to the court and update the court regarding this. For example, you might want to relate anything significant that has happened in the intervening time or if anything new has come to your attention. In a children’s case you might also want to think about whether contact has gone well since you provided your statement.
Cross-examination is where you get the opportunity to question the other party (your ex partner), as well as CAFCASS Officers and support workers or other involved parties. This can help advance your case or give you a chance to challenge or undermine that of the other party.
How to prepare for cross examination
Make sure you read all the court documents thoroughly, specifically your ex’s statement and any statements from other people involved. You need to read them with a critical eye, highlighting any discrepancies you notice as well as improbable comments or things that don’t make sense. Ensure you know and understand the ins and outs of the case thoroughly. This will help with your confidence and making you look professional.
Develop your questions from this analysis and determine the main point you want to make with each question. Remember that facts are key and your questions should focus on establishing the facts and exposing any holes in the other party’s story, which will make them appear unreliable. Discrediting a witness is often the main aim of cross examination in court.
When designing your questions keep in mind these important points:
- Your questions can be leading or non-leading. Leading (or closed) questions simply state a fact with an implied question at the end. This limits the response. Conversely, non-leading or open questions allow a fuller response from the witness. Each type of question is required at different stages of cross examination.
- Each question should be short and to the point – only ask one question at a time and seek to establish only one fact or elicit one type of answer per question.
- Plan out your questions so that they follow a logical order and don’t veer off course.
- Try to anticipate how the witness might respond, and how you can then follow up their answer with further questioning if needed.
- Make sure you have the facts in place to back up any leading questions in case the witness doesn’t respond as you’ve anticipated. You can then discredit what they’re saying by presenting the facts.
How to behave when cross examining in court
It’s important to remember that the judge will also be assessing your behaviour during cross examination in court. As such, you need to remain calm throughout, and always be polite and courteous. This can help your case. If there has been an unfounded allegation of domestic abuse and your ex has falsely claimed that you are controlling and bullying, you’ll want to discredit this by showing the judge that you’re not like that. Equally, the way the witness behaves will help the judge decide on the validity of their case.
During questioning, make sure you look directly at the witness. This might be difficult if there is tension between you and your ex and high conflict, but it’s good for the judge to see you showing them respect regardless of how you feel about the situation. It’s also important to know when to stop questioning, particularly if your question has been answered and facts have been established.
After cross examination
You might need to review your closing submission in light of what happened during the cross examination. Think about whether anything needs to be added or removed. Make sure it sets the right tone and presents you and your case in the best possible light.
In your closing submission you’ll want to repeat what needed to be proven, reiterate the relevant case theory, remind the judge of everything that supports your case, and make it clear what outcome and order you’re seeking.
Cross examination in court is something I help a lot of clients with when they’re representing themselves. I’ve actually got a live course coming up on Saturday 27 February 2021 all about cross examination and how you can prepare for it properly to maximise the chance of getting your desired outcome from the hearing.
The course will go into cross examination in depth, including:
- The reality of cross examining someone vs what you see on TV
- Getting clear on the purpose of your questions
- How to word your questions to expose any lies the other party might be telling
- Making sure the questions are relevant and won’t be dismissed
- How to act and behave when cross examining
- Tips and tricks for dealing with different scenarios
- Writing a closing submission and why you need to do that first
- Evidence – what it is and how to use it
After taking the course you’ll feel more confident about cross examination in court when you’re self-representing. You’ll also get access to a private Facebook group for course attendees so you can chat to others in the same boat and ask me any questions you have.
If you can’t be there live, you’ll be able to access the recording afterwards. Just drop me a message or look out for it on my Teachable page.
Let me know if you have any questions. You can comment here or drop me an email at firstname.lastname@example.org.
You might also want to check out my Facebook page for more tips and advice on representing yourself in court.
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