Our regular series offers a simple solution to planning an effective examination-in-chief that avoids having to ask leading questions


Q I am newly qualified and just starting trial advocacy. I know the ground rules for cross-examination &150; mainly closed, leading questions &150; but I actually find avoiding leading my client in examination-in-chief rather more difficult. What is the best way of performing this role?



A This is a common concern. You have got their proof and you want to keep them within it and, accordingly, it is easy to slip into leading questions. Your opponent will then take great pleasure in telling you not to lead.



Instead you must approach your questions, and your witness, almost as though you were taking their instructions for the first time (although it is to be hoped that on this occasion you know what they are going to say). Your questions will then enable the story to be told in the witness's own voice, and will not sound like you cannot trust him, and therefore have to tell it for him.



A useful way to structure examination-in-chief is by using the 'box' model. Write down a sequence of boxes that consist of one or two-word headings. This will be your overall structure that you are going to follow and that you can explain to your client so that he can understand what you are going to ask. For example, imagine your client works for a shop where the amount of money in the cash till has been found to be short on two occasions. For your examination-in-chief you

could structure it with the following boxes:

l his background;

l his employer;

l his role;

l other staff;

l till processes;

l first date;

l second date.



The next step is to 'funnel' each of these topics. Funnelling is a concept utilised in investigative interviewing but it has equal value in examination-in-chief. Start by introducing the topic followed by a wide open question &150; those that begin: 'Tell me about...', 'Describe...', 'Explain...', and so on.



Do not fall into the trap of making it a closed question by trying to be polite and starting with 'Could you...' or 'Can you...'. Instead, if you want to be polite, just begin with 'Please'.



Returning to our scenario and funnelling the first box, a focused, wide-open question on the topic of his background would therefore be: 'I want to start by asking about your background. Tell me about the jobs you had prior to your current position.' This should prompt your witness to give you lots of information that allows you to probe deeper.



To do so, you must ask specific, open, probing questions. This means those that begin with a who, what, where, when, why or how.



Again, returning to our scenario, let us say our client's response was that he worked in a bookmaker's shop prior to his current job. You could then ask a series of probing questions such as: 'When did you start this job?' 'What was your role?' 'What tasks did you have to perform in that role?' 'How long did you work there?' 'Who supervised you, if anyone?' 'Why did you leave?'



You will also have spotted that, to a large extent, these questions follow on from each other. However, try not to rely on the most frequently used open question: 'What happened next?' This is not only lazy, but more importantly it is too vague and too ill-defined to be probing enough. Do not be surprised if accordingly the witness comes out with something unpleasant and unwanted.



At the end of these probing questions, you will be able to ask the occasional closed question to focus or clarify your client's evidence, or to summarise or emphasise certain aspects of it &150; when doing so you will not be 'leading' new evidence because the facts you are discussing have already been adduced.



Returning one final time to our scenario, let us assume our client said that in his previous job he handled thousands of pounds on a daily basis and only left to progress his career. Subsequent questions to emphasise your case could then be: 'You've said that substantial amounts of cash passed through your hands. Is that right?' 'Not just occasionally but every single day?' 'Were you ever accused or disciplined for any alleged dishonesty during that job?'



A useful by-product of knowing how to conduct appropriate examination-in-chief is that your taking of instructions should improve as you will have an enhanced awareness of what is going to be needed at trial.



If you are now starting to worry that in adopting this style for the whole of your examination-in-chief your witness will be giving evidence for days - stop. To reduce the amount of material that will need this careful approach, ask your opposing side which issues it is happy for you to lead on. The opposition should object only to the genuinely contentious areas where it wants you to have less control. If your opponent refuses to let you lead on anything, you could begin this process with a completely undisputed area and see how long it takes for the opposition to reconsider its stance.



Most importantly, remember this witness should be supportive of the questions you are to ask and should not react badly to what you seek to clarify.



This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). For details of SAHCA, membership enquiries or advocacy questions, contact Hilary Riddle, SAHCA Administrator, tel: 01233 820676, email: hilary@hradmin.co.uk