Plain Guide to Litigation: The hearing and subsequent matters
The witnesses in turn go into the “witness box”. In the Land Court they are normally invited to sit at a table rather than go into any box because it is usual to have to make reference to plans and documents. They are then asked questions to bring out the material they know relevant to the matters in dispute. This stage of having the witness questioned by the party who has asked him to go into the witness box is known as “evidence in chief”. After that, the other side will have a chance to cross-examine. Cross-examination is not limited to challenge of what the witness has said in their evidence in chief. You can ask a witness about any matters relevant to the case.
After cross-examination, the first questioner has a chance to re-examine. The intention of re-examination is simply to let you clarify issues raised in cross-examination. It is not to give you “a second bite at the cherry”. It gives a chance for further explanation of anything said in answer to cross-examination.
It is important to keep in mind that the aim of questioning witnesses is to put evidence before the court which will either positively support your case or minimise the weight of material which is against you. You want your own witnesses to be clear and persuasive and to give evidence which has a bearing on the case rather than rambling on about other things. When you are cross-examining, you want to make sure that evidence from the opponent’s witnesses is properly tested. You might simply want to get an explanation from a witness which would limit the adverse effect of their general evidence or you might want to challenge it as fundamentally wrong. You have to find ways of asking questions which allow your purpose to be achieved. We return to this below under headings of “examination” and “cross-examination”
Always remember that you are involved in the exercise of placing evidence before the court. You are not taking part in a general inquiry or investigation. In other words, there is no point in simply having witnesses tell a court everything they know. They must be helped by questioning to deal only with matters relevant to the matters in dispute.
The Land Court is fairly flexible in its approach to taking evidence from witnesses and applies no hard formal rules. For example, if you find it necessary to raise some entirely new point in re-examination the Court may well allow this and simply give the other side a chance for further cross-examination. But the Court will usually need to be satisfied that the omission was accidental and that there was no attempt to gain a tactical advantage of some sort.
You may have heard that there is a rule that you should not ask “leading questions”. This will not be a problem if you keep in mind that if you do put the words in the mouth of your witnesses, their evidence will not sound as persuasive as it would if they were left to give the account in their own words. The Land Court does not apply a hard rule. But all courts want to hear evidence at its best and you should avoid leading questions in taking evidence from your own witnesses. There is no difficulty when questioning a hostile witness. We shall go on to discuss the differences between “evidence in chief” and “cross-examination”. It is difficult to understand fully what to do about “leading questions” without a good grasp of these differences. But we think it may be helpful to start by saying a little more about the idea of leading a witness.
The idea of “leading” a witness is used in two senses. We talk about “leading evidence” in the very general sense of bringing a witness to court and asking questions to put the evidence before the court. We also use it in the more restricted sense of guiding or directing – like leading a horse.
In ordinary speech, people occasionally use the expression “that’s a leading question”, in quite a different sense. They mean a question which will lead into examination of some difficult area or lead to some embarrassing disclosure. However, lawyers use the term “leading question” to describe a question which in itself directs the witness to the answer. In other words, it is a question which tells the witness what the substantive facts are. “What did he say?” would usually be an “open” question. It leaves the evidence of what was said to come from the witness. An example of a leading question would be: “Did he say he would pay £1000?”. That is an example of the questioner telling the witness, and the court, what the important fact is. A question which invites the answer “Yes” is often a leading question in the lawyer’s sense.
The effect of a “leading question” is that the important material is introduced into the evidence by the questioner and not by the witness. That means that it loses its value. You have probably heard expressions like: “You put the words in his mouth” or “He just agreed with everything you said”. That is a common way of assessing such evidence.
Some people find it easier to understand the point if we talk of “closed” questions instead of “leading” questions. You can contrast “open questions” and “closed questions”. The range of direct answers available to a closed question will be closed in the sense of being very limited. The natural answer to such a question will usually be “yes” or “no”. An “open” question invites a witness to explain things in his or her own words. Closed or leading questions are used a lot in cross examination.
It is often said that you must not use leading questions when taking evidence-in-chief. That is a sound enough guide – although it only applies to evidence relating to contentious matters. But it might be better expressed as “you must not lead your supporting witnesses”. In some cases, it may almost be a matter of chance whether a witness is led by one side rather than another. The court always has to assess the evidence as best it can and will have regard to the whole context in which it was given. The important point to keep in mind is that if you put words in a witness’s mouth the court is likely to attach much less weight to the answer than if the witness told us the story in her or his own words. You must try to get your own witnesses to tell the court the important things in their own words. That makes the evidence more persuasive.
We cannot tell you all about “leading questions” in a guide like this. But, broadly speaking, if the witness is in your favour you should not lead. You should aim to ask a question which lets the witness know what you want him to tell the court about but does not tell him what he is to say. It is useful to keep in mind the standard interrogative questions “What, where, when, how, and who”. Other helpful expressions are: “Tell the court” and “Describe for the court”.
A little care is needed with the other standard question, “why”. This is fine when you are asking witnesses about their own reasons but should be avoided if it is likely to have them guessing or speculating about matters outside their own knowledge.
If you want to present evidence from a witness, you tell the court who it is you want to give evidence. The clerk will then bring the witness from the witness room into the courtroom. The presiding judge will ask the witness to take the oath; that is, formally to swear to tell the truth. The witness will then be asked to sit down and you will be invited to ask the witness questions. Your aim is to get your own witnesses to tell the court the important things in their own words. Your difficulty is to find a way of leading them through their evidence; in other words directing them to the relevant matters and stopping them from going on too much about matters which have nothing to do with your case.
The problem is that it is not always easy to let a witness know precisely what you want them to tell the court about. Usually, of course, they do know. Many, many lawyers have been heard asking questions on the lines of: “Did something happen last year?” and getting a perfectly good answer which does refer to the case in dispute. But it is better to try to be more precise. Think in advance of the questions you will use to direct the witness to the things you want him or her to give evidence about. Remember you can always put unimportant or undisputed evidence in a leading way. It is quicker and easier for the witness and the court if that is done. So, you can use leading questions to set the scene. You might approach things by referring to something which is admitted or obviously not controversial. For example, you might say, “It is admitted that there was a meeting between the landlord and the tenant on 4 January last year, did you know about that? Then ask the witness to tell the court how he knew or ask the standard interrogative questions as appropriate. Did he know what happened; how did he know; can he tell the court who was there, what was said etc.?
If you find that you simply cannot get the witness to answer open questions you may have to move to more leading questions. That will weaken the force of the evidence but it may be better than nothing. A witness you have asked to give evidence may turn out to be unfriendly and determined to be unhelpful. Once it becomes clear that the witness is hostile in that way, leading questions may be the best, if not the only, way to get the evidence out. The questioning can be treated as cross-examination.
You may wish to ask your witness to tell the court something about some of the documents which you have lodged with the court as productions. You should have a note of the number of that production. When you ask the witness to “look at production number 1”, the clerk will pull that production out of the bundle of productions and hand it to the witness. In other words, the witness will not need to come with a copy and indeed, should not come expecting to refer to any material their own. Many witnesses come with brief cases full of their own copies of things. They will not normally be allowed to refer to them. Everything referred to in court must be openly available to all parties and the court. If anything is to be relied on by a witness as a written source, it should be lodged in good time as a production.
It is an old joke that when cross-examining it is not necessary to examine crossly! But it is important to keep this in mind. A witness led by your opponent may be able to give evidence which will help you. He or she may be quite willing to concede some points or accept qualifications to their evidence. You are more likely to get helpful answers from friendly questions than by adopting a hostile tone just for the occasion.
Obviously, much depends on the nature of the evidence they are giving. You could hardly be expected to be too friendly to someone whom you are accusing of telling a pack of lies. But in many cases the witness may be trying to give evidence in a straightforward way and be perfectly willing to give evidence which supports your case, if asked in a straightforward fashion. It may be worth repeating the point that in cross-examination you can ask the witness about anything relevant to the case. You are not simply challenging what he or she has said in chief. Let the witness give the evidence if it helps you. It is not uncommon for a witness to be led to talk about a subject which helps one side and then to find that when asked about another subject the evidence on that second subject is very helpful to the other side. Where a witness is helpful you might want to avoid leading questions and give the witness every chance to put things in their own words.
That said, it is usually more sensible and effective to use leading questions when you are cross-examining. Even when trying to get evidence which is helpful to your case, your concern is usually to get an answer which fits your case, rather than to set up the witness as particularly persuasive. So, you can put your version of things to the witness in a way that requires the answer “yes” or the answer “no”. Indeed, when cross-examining it is easier to think in terms of putting propositions to the witness rather than asking questions. That is the quickest way. It is also the easiest way of making sure that you put your own case fairly to the witness for comment. If you force the witness to answer your proposition type questions clearly by a “yes” or “no”, you will have to give them any chance they need to give an explanation or qualification. But the court will be watching for this. Do not be alarmed if the court interrupts to give a witness a chance to qualify some answer.
As explained above, it is not normal practice to bring a witness back to the witness box. It is, therefore, important to give them a proper opportunity to comment on anything they might be expected to know about. This applies if you intend to lead evidence which is or might be inconsistent with the evidence the witness has given. If you challenge or dispute evidence given by any witness you must make that clear by your own questions to the witness so that they have ample opportunity to clarify, support or change what they have said.
We will go on to say a bit more about standard techniques of cross-examination. But we do not want to intimidate a DIY litigant by making it sound too complicated. There are various ways of getting the evidence out of a witness. Many cross-examinations are conducted like a conversation, or more often, an argument, between examiner and witness. That approach needs no particular skill. It makes life very hard for the judge who often has no idea what particular aspect of the general chat is to be relied on. It is often hard to take proper notes of the evidence elicited in this way. But in a simple case, it may serve the purpose well enough.
A court would not expect a DIY litigant to be able to use all the techniques we describe below. Good cross-examination is welcome because it not only allows the examiner to present the evidence in the best way for his or her own case but it also saves a great deal of time. It makes the task of the court much easier. However, it takes both an understanding of technique and experience in using it to fit the needs of particular cases and the challenges of particular witnesses. When appearing without a lawyer, you will just have to do the best you can, guided by common sense. The court may be able to help clarify matters as you go.
However, there are some techniques of cross-examination which have been shown to work effectively and as there is little material available to the general public dealing with them, it is worth taking time to describe them and provide a brief explanation of why they are appropriate.
These are not rules. But they are useful tools. An experienced examiner may well have better tools for particular circumstances. A good example is that, if you are cross examining a helpful witness you might want to make the most of his or her evidence by using open questions to let witness do the talking. But these tools are part of an experienced examiner’s tool-kit and there are good reasons for them.
1. Think in terms of leading questions, in other words, of propositions rather than questions. If you want to establish a fact in evidence you should, when cross examining, think in terms of simply putting it to the witness for agreement. The evidence gets weight from the fact that it comes in the form of an admission. As we have said, you are not carrying out an investigation. You are presenting material. You should know what facts you want to put before the court. In effect, you are telling the witness what you think the fact is and asking him to confirm it. You can do this by stating the fact and adding a question such as; “Is that correct?, “Do you agree?”, “Isn’t it?” or simply by inflection of the voice show that it is a question which invites confirmation.
For example, it is more effective to ask: “It was raining at the time, wasn’t it?”, rather than “What was the weather like?”. Or to say, with a suitable questioning inflection, “The road was 4 metres wide?” rather than “How wide was the road”. The leading question will nearly always prove the most efficient way of getting out the material you want the court to hear. It is very useful for simple points. It provides better control on more complex issues.
The usual pattern would be to bring out the background facts by putting questions as a series of propositions and then inviting the witness to confirm some conclusion you want to draw from these facts. Ideally, you want the witness to find that once he has accepted all the undisputed facts he has to accept a conclusion which is in some way different from what he has said in his evidence in chief. It may be that you can force him to accept that what he said was wrong but often your aim is simply to get him to accept that he might be mistaken: see tool 7, do not expect too much.
2. Keep questions to one essential fact. If you use composite questions or vague expressions, the witness will choose the easiest bit to answer and this may open up an area which is either unhelpful or a waste of time. For example, it is not uncommon for an examiner, trying to seem friendly, to slip into a conversational style. For example, you might hear something on the lines of; “I think the weather had not been very nice for a day or two, can you tell us what it was like when you were talking to Mr Brown” That would allow the witness to discuss whether the weather had, or had not, been “nice”. The answer could cover a lot of ground, including typical weather in that place and typical weather for the time of year. If the questioner was fortunate the answer might come to a conclusion: “I think it had been wet that morning”. In short, asking questions with two or more parts can lead to much waste of time, often over issues which are of no great significance. Where the issues are of importance, composite questions make it extremely difficult to tie the witness down. The examiner thinks that this is because the witness is being deliberately evasive but the reality is that any witness will tend to choose to answer the bit that is easiest.
3. Do not use ambiguous terms by accident. It may very well be that you do wish to get the witness to accept a proposition in ambiguous terms because that will make it easier to fit your own evidence. If so use an ambiguous term by all means and be prepared to deal with whatever answer you get. But a good examiner is aware that using ambiguous terms or “judgmental” expressions allows a witness to discuss the meaning of the word rather than answering the intended question. So, use of very clear language saves time. Instead of expressions like “The weather had not been very nice?” the question should set out the examiner’s position explicitly: “It had been raining heavily for the previous three days, had it not?”. “Petrol is expensive in the Highlands, isn’t it?” may invite a discussion of comparative costs. “Petrol was then £2.00 a litre in Dingwall?” invites simple agreement, or perhaps, “I do not know, it would be about that”. That may be all you want the court to hear.
4. Get an answer to each question. If your question contains one proposition, it is comparatively easy to see whether the answer really meets the question. If it does not you can, politely, repeat it until the witness does give a proper answer. You can then move on. This may seem slow to start with but ultimately it can save a great deal of time. Once witnesses come to realise that they will always be pressed to answer each question, no matter how simple, they tend to listen more carefully to the question and to try to answer it. Indeed, most witnesses are remarkably quick to learn the ropes. They realise that precise answers are needed and they do tend to take more care.
It is worth adding that courts are often puzzled by examiners who move on without getting an answer to the specific question they asked. It is very common to hear a question like our example: “What was the weather like when you were talking to Mr Brown” being followed by an answer on the lines that “I think it had been wet that morning”. The examiner then moves on to another point. The witness has not said what the weather was like at the time of the meeting. The court is left wondering whether there was any point in the question. If it was worth asking what the weather was like at the time, the witness should be pressed to answer the question. If it was not important to know, why bother to ask?
Sometimes, of course, an answer contains something more useful to the examiner’s case than the expected answer. It is tempting just to follow the witness’s answer. But it is usually safer to insist on the witness answering the question put, and then coming back to follow up the useful answer.
5. You must make sure that you give the witness a chance to comment on anything you or your witnesses will later say if it is something that the witness could be expected to know about. It is not always easy to know what is required. Sometimes the whole of the witness’s evidence in chief is an answer to what your witnesses are going to say. If you deny all of what has been said but realise that the witness is not going to change their mind you may think there is no point in specific questioning. But, generally speaking, you must make it clear that you do not accept it. You might put a question: “You have said X, if the court hears evidence from other witnesses that X did not happen, can you give any explanation?”. Another approach might be: “If Mr Y gives evidence that X is not correct, do you accept that he might be in a better position to know than you?”. Obviously, this is very much a matter of circumstances. If X is a point which is disputed in the written pleadings, that may be enough notice. But it may be safer to make an express challenge. You want to avoid a situation at the end of the case where your witnesses has said X and your opponent can say that if his witnesses had known that was to be said they would have been able to comment on it. Perhaps the key to this is to remember that you must ask the earlier witness questions on essential points to be spoken to by a later witness of your own, even if you know perfectly well that they will not agree.
6. It is a sound rule never to answer a question from a witness, however innocuous it may seem. To do so can be the start of a slippery slope. Once you answer one question, your cross examination can easily degenerate into an argument. You lose control of the content. It is, at best, embarrassing to answer an easy question and then realise you do not want to be caught by a subsequent more difficult one. It is best to establish quite clearly that it is for the witness to answer and the examiner to ask questions. If the witness’s question seems reasonable and needs an answer, an experienced questioner will simply build the answer into his own next question. The court will often intervene to help a party litigant deal with questions from the witness but this is not guaranteed.
7. Leave well alone. Once you get an answer which fits your own case, consider carefully whether the possible benefit from trying to improve it is matched by the risk of having it watered down.
It might be worth adding that, in the past, professional lawyers were allowed to use a great variety of techniques to bully or belittle a witness. It was often thought that a bullying or hectoring manner showed a high level of skill. Nowadays the emphasis is on politeness and, indeed, bullying and belittling are regarded as improper. Another typical feature of poor cross-examination technique is the practice of interjecting comment into questions. This is now widely recognised as unprofessional and inappropriate. Where there is no jury, a court can simply try to ignore it but it can be a little irritating. The function of all questioning is to elicit evidence to be used as a basis for persuading the court to find in your favour. Comment disguised as examination is unhelpful and inappropriate.
Cross examination of expert witness should follow the same principles but it can present special problems. In fact, DIY litigants usually avoid the difficulties which many lawyers create for themselves when faced with experts. Some lawyers seem to think their task is to show that the opposing expert is either an idiot or a charlatan. They adopt a hostile tone. They try to get the witness to say he is wrong. Adopting an aggressive tone has two consequences. It keeps the witness on his guard throughout. It also conveys to the judge that the pleader thinks that the witness is open to personal criticism. As the cross-examination goes on and no valid personal criticism emerges, the judge tends to come to sympathise with the witness. Fortunately, party litigants are usually more realistic. They often recognise that the best they can expect is to get the expert to admit that things are not as clear cut as their report or evidence might suggest. They would never dream of taking a hostile tone because they recognise that the expert knows more about it than they do, so all they do is try to get him to agree some things that help their case.
That is a sound approach and in this Guide little more need be said than that DIY litigants usually have the right idea instinctively. However, it might be helpful to put things in more formal terms.
Whatever you expect to achieve by the end of the cross-examination, it is a good idea to think of things in five stages.
1. Getting material which supports your case or your own expert. You might, for example, put to the witness the various matters on which you suggest that they are essentially agreed, framing your questions to get the best you can out of this. For example, an expert will often agree that your own expert is well known and well regarded. You could take the precaution of asking your own expert what they think the other will say – and also check what your expert might say about the other.
2. Trying to qualify the evidence given to take some adverse weight off it. This approach is not an attack of the expert’s evidence but simply an attempt to show the court that it is not quite as strong as it might seem. A good example would where a witness has used a word like “most” and is persuaded to accept that he means no more than something over 50%.
3. Showing that some of his evidence is based on material for which he is not responsible. An expert will usually have had to rely to some extent on particular instructions or assumptions as to the state of fact. He may have had to accept his client’s account of the facts. If he agrees that his expert opinion is heavily dependent on a particular assumption based on material provided by someone else, it might be easy to get him to accept that, if different assumptions were made, his evidence would be quite different. It may be worth noting that when you talk about “assumptions” to a layman he often becomes defensive, thinking that you are criticising him for jumping to conclusions. But expert witnesses recognise that all evidence is based to some extent on “assumptions” and when the detail is spelled out they should not have any problem with use of that word.
On the other hand you should note that experts do have difficulty with the word “wrong”! They might agree that another view of matters might be preferable, but they will rarely concede they were “wrong” and, in fact, there is usually little point in trying to get them to do so.
4. The next stage is that of challenging the reliability of the witness. The aim is to do this as neutrally as possible to avoid forcing the witness into a corner where he will be forced to fight for his reputation. But he might agree, for example, that the real issues in the case now appear to be outside his main area of expertise. That type of question allows the expert to accept that the nature of the dispute has changed. That is not his fault. You are not challenging his evidence but he might accept that your man is more of an expert on the particular topic. This will provide a good basis for your closing submission that the evidence of your own expert witness should be preferred.
5. The fifth stage is where you openly challenge the honesty, ability or good faith of the witness.
Some inexperienced lawyers seem to think this is what it is all about. DIY litigants would seldom fall into that trap. The fifth stage does not often arise. However, it might, on occasion, be necessary to get into this area. It might become clear that the witness has accepted some assumption as to facts which he could have checked. You might want to get him to admit that he should have checked. You might find an inconsistency in his report which fatally impairs the main points in it. But bear in mind that this does not necessarily involve an attack on the witness’s moral character. If it is clear that the evidence is outside his proper area of expertise you might need to press him to accept that it is misleading for him to purport to give expert evidence. You sometimes have to show that he has forgotten the proper role of an expert and has being doing his best to help his own side by stretching matters as far as he can. That will involve implied aspersions on his character. But, by and large, it would help a lot of professional cross-examiners to realise that the occasions when they can positively “destroy” an expert are very few and far between.
We referred to some basic techniques above and at number 2 we mentioned use of single fact questions or propositions. When cross-examining an expert it is important to try to avoid compound questions. Careful preparation is required. Where an expert has the choice of which part of a question to answer, they will invariably go for the one they think easier to deal with. A skilled “expert witness” will know that your knowledge is almost certainly much less than his own and he may try to push you into areas you know little about. This, actually, is more of a problem for a lawyer. Lawyers usually start knowing nothing whatever about the expert subject. They will have prepared some material thoroughly but are likely to know little or nothing about related matters. As a DIY litigant directly involved in the case, your knowledge may be every bit as detailed as the expert. But, in every case, ways have to be found to keep the witness to the relevant topic. Short questions are best. When dealing with complicated topics this is not easy. You may be able to work out a pattern which allows you do deal with one issue at a time in a sequence of questions but sometimes it may not be easy to establish a logical sequence. If you have to deal with two inter-related matters you might put one as hypothesis or assumption so that the witness has to accept one part of the question and deal only with one variable at a time. You might tell the witness for the purpose of the question that he must assume or accept that X is true, if so does he agree Y? Once you have established whether he agrees Y, or established what qualifications he wants of Y if X is true, you can go back and deal with X.
Any hypothesis should be carefully framed and used consistently. Minor changes in the way you express the fact or facts to be assumed, have a tendency to invite the witness to start his answer by dealing with the change and its implications rather than the intended question. You cannot expect to cross examine from a list of carefully prepared questions. Things change and if you are stuck to a script you may indeed be stuck. But, careful preparation of the wording of your main questions is advisable. On some matters you may have to work out a careful sequence of detailed questions but, generally speaking, you should think of such a sequence only at the preparation stage. It will let you establish a mental framework to work from and to allow you to put the important questions clearly and in a sensible way.
A DIY litigant could not be expected to master all the points we have discussed above. Where a litigant is struggling to put questions in the best way, the court may well be able to help. But take comfort from the thought that we find that sensible examination often seems to come more naturally to laymen than it does to some lawyers – particularly those whose expectations are too high. In any event, we hope that awareness of some of the issues will help in preparation for the hearing.
After your witness has been cross-examined, you will have a chance to ask any further questions. That would let you give the witness a chance to explain or qualify any evidence given in cross. You want to let the witness do the explaining. You should be careful at this point not to use leading questions; that is, not to put words in the witness’s mouth. That always makes evidence less valuable but this effect is worse in re-examination because the whole point is that you would like the witness to change something he has said in cross-examination. The questions you do ask should be related to something the witness has been asked about in cross examination. Re-examination is not intended to let you bring out fresh evidence on new topics.
One main benefit of re-examination is that it allows a witness to say things which a skilled cross examiner may have been able to prevent. So, when you are listening to your witness being cross-examined you should be alert to note any occasion where it has seemed that he was about to add something to his answer. If you think that what he would have added is likely to be helpful you can remind him of the question and ask if he wants to add anything.
As a DIY litigant you face one particular problem: that is, the problem of giving your own evidence. In most cases, you will be required, yourself, to give evidence about some issues of fact. Unlike all the other witnesses, you will not have an examiner’s questions to guide you. Note that you will be asked to move into the witness box to give your evidence. This helps make the distinction between giving evidence and making submissions. After you have given evidence, the other side will have a chance to cross examine you. At the separate stage of final submissions; that is, after all the witnesses have given evidence, you will have a chance to make your submissions about the evidence and the law. But at that stage you cannot introduce new facts.
If you are giving evidence in the witness box in you own case, you must do your best to stick to giving evidence of facts, and more importantly, you must say all you have to say about factual matters. You will be allowed to use notes to remind you what to say and help you work your way through any productions to which you wish to refer. Remember to use the Court’s numbers to refer to productions. You should keep your arguments and legal submissions for the stage of closing submissions.
The court will understand that it is not always easy to keep these matters separate and it can be expected to guide you to some extent. An overlap of evidence and argument in the witness box is not a major problem. The problem arises at the stage of making closing submissions. This is the opportunity for you to comment on all the evidence which has been given as well as being the proper time to advance your arguments about how the law supports your claim. Although you may well want to refer to what you have said before in the witness box, you cannot give new evidence about factual matters when making closing submissions.
If you do raise some new issue of fact in your closing submissions, your opponent will ask the court to ignore it. If it seems too important to ignore, your opponent will be allowed to cross examine you or even lead further evidence to contradict you. Obviously, this can cause extra delay and expense. As we discussed above, other witnesses would normally have been allowed to leave after giving their evidence. In short, it is important to identify clearly all the facts you want to tell the court about. You should prepare for the hearing by trying to keep these separate from the argument about why you should win on the basis of these facts. You should make sure that all the facts are covered when you are giving evidence in the witness box.
You might find it helpful to have a friend in court who is not going to be a witness but who will help you cover the ground. For example, such a friend might have a list of the points you intend to make and be able to check them off as you deal with them. Another useful role for a friend is to keep track of productions. If you can find someone prepared to study the productions and get a good working knowledge of them, such a friend may be able to identify them for you as you give evidence. That saves everyone’s time and takes a bit of the strain off your task in the witness box. Bear in mind that although it may be easy enough to keep track of the productions you intend to refer to when you are giving your own evidence at the stage of “evidence in chief”, it is not so easy when you are being cross examined. An example of the useful role of a friend is when you find yourself wanting to refer to a particular letter as an answer to cross-examination, a friend who understood your case could probably find the number of the required production for you and tell the clerk what production is required. The Court will try to help you make best use of a friend in this way.
A person giving evidence on his own behalf often finds the stage of “re-examination” quite difficult. Obviously you are not going to examine yourself. This is best seen as a chance for you to clarify any points which you feel might have been rushed over in the cross-examination.
We have referred above to written evidence. It may be worth repeating that the evidence of witnesses is best given orally in court. This allows assessment of the witness, particularly when answering questions in cross-examination. Evidence which has been tested by cross-examination is the strongest type of witness evidence. However, evidence can be presented as hearsay evidence or given on paper either by way of formal affidavit or even a simple signed statement. The weight to be given to written evidence given in these ways will be a question of circumstances. An affidavit is a written statement, usually prepared by a solicitor from information the witness has given, and then formally completed by the witness taking an oath that it is true. The importance of putting a witness on oath is that telling lies on oath is a criminal offence and can be prosecuted. Telling lies is not itself a crime and, so, it is not always easy to establish that a person who has made a false statement on a piece of paper is guilty of an offence. This is one reason why affidavit evidence is likely to be given more weight than a simple written statement. A written statement can be a useful way of giving formal evidence on matters which are not expected to be disputed but it is better to have the witness in person, if possible.
If a written statement has to be relied on, it is, in practice, more likely to receive weight if there is supporting evidence showing why the witness has been unable to attend. Where the evidence is in the form of a letter or report which has not been prepared specially for the hearing it is useful to provide evidence of the precise circumstances in which the statement came to be made and evidence of why the writer’s evidence should be relied upon.
The Land Court will usually feel free to take account of all productions which have been lodged and to treat them as being what they bear to be. But it is important that you draw attention to all the documentary evidence you wish to rely on and tell the court which parts you think are of any particular significance. That can be done as part of your submissions if the material is straightforward and your comments are simply drawing attention to the words used. However, if you wish to give any explanations as to how some written material came to be prepared or explain where it came from or anything about it, this should be done from the witness box as part of your direct evidence.
You can, of course, take such notes as you wish during the proceedings. However, it is not possible in practice to take notes when asking questions. The sensible course is to have a list of the points you wish each of your witnesses to cover and try to tick it or change it as the evidence is given. It is impossible to take notes while giving your own evidence. That should not be necessary when making your own statement because you can work from a prepared note, as we have discussed. When being cross-examined you may, possibly, be able to make a brief note of some of the things you want to come back to at the “re-examination” stage but it is not easy to do this in practice. This is where it is useful to have a friend to assist. The friend could be asked to take a note of your cross-examination evidence or at least to take a note of any points they think you should return to when at the stage of “re-examination”. The Court would normally allow a brief adjournment to allow you to have a look at any such notes.
The public is entitled to be present throughout the hearing. However, people who are to be witnesses are usually kept out of the hearing room until they give their evidence. This is because evidence from a witness who has not heard what another witness has said is likely to prove more persuasive than evidence from someone who has had an opportunity to tailor his evidence to fit what has gone before. You should make sure that anyone you might want to give evidence is asked to leave the courtroom unless the court agrees otherwise. It may be noted that the court is unlikely to agree if the other side objects but that even if the other side agrees, the court may decide that, in your own interests, it is better that the witness should not be there.
You should not discuss with witnesses anything that has been said in the court while they have been excluded. The reason for excluding them is to avoid their evidence being influenced by what they have already heard. It may be difficult to avoid discussing the case with relatives or friends but if they are to be witnesses you should tell them specifically that this must be avoided. Where there has been such discussion it is often quite difficult to hide this when the witness comes to give evidence and it does weaken such evidence.
© 2011, Scottish Land Court