To me, being cross-examined, is a bit like being given a bike for the very first time and then being told you have to ride it having had no practice beforehand.
Both experiences are unfamiliar, tense and anxiety inducing. The chances of not doing very well are high.
Even if you have given evidence before, you are unlikely to be particularly confident about doing so again, any more than you would be about cycling across rush hour in London after just one or two goes on a bike. Most witnesses who have given evidence before, rightly recognise that it will still be one of the hardest experiences of their life. They remain open to the idea that they will learn from the experience, both its good and its bad.
In contrast, the worst witnesses are those who are complacent or arrogant, or both, either by temperament or because they have given evidence before, often on something relatively trivial and not for a particularly long period of time.
A healthy dose of humility and knowledge of the process is key to effective witness performance, just like it is for learning to ride a bike.
Like all things in life a lack of familiarity leads to uncertainty and uncertainty leads to nerves and nerves can lead to poor performance.
In addition to this lack of familiarity, the court room environment doesn’t help. Lawyers and Judges often forget how intimidating the court room environment is. For a first time witness it can look as threatening as the Olympic cycling velodrome.
Being cross-examined is very one sided for the witness: they have to answer the particular question asked, not the one they wished they had been asked nor are unable to ask any questions of the questioner. It is about as far removed from ordinary human conversation as you can get. Barristers try to make it a conversation, witnesses most definitely should not make it one. Witnesses needs to understand that.
That is why it is critical that as a minimum all witnesses understand not only the process that will be followed (the where to sit and what to call the Judge) but also what their role is (to tell the truth and help the Judge), as well as having an opportunity to do some practice cross-examination on difficult subjects (unrelated to the case of course).
You are not going to be a competent cyclist unless someone has shown you a bike, explained how it works, demonstrated how it works, let you touch and feel it, and finally given you an opportunity to ride it a few times with practical feedback on your technique. That is why witness preparation is a key to helping solicitors to support their clients by doing everything they can to prepare them for one of the most challenging experiences of their lives.
It is self-evident that you need to learn to ride a bike before riding on busy roads. A failure to ensure their witnesses are properly prepared increases the risk that a solicitor has failed to do all they can to avoid a nasty crash or two…
Ed Williams KC
Co-Founder and Director of Assurety, the only number 1 ranked provider in Chambers and Partners.
