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Law: Above all else, never trust the barrister: Need some help in handling cross-examination? Fiona Bawdon attended a seminar held by the expert witness's expert

Fiona Bawdon
Thursday 15 September 1994 23:02 BST
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Iwas humiliated, embarrassed, undermined. I didn't feel I had any credibility left at all,' said one would-be expert witness after a course designed to teach him how to be confident in court.

Toby Talbot, a dentist at the Postgraduate Centre of Bath, added that he had been having hypnotherapy sessions ever since. 'I don't want you to abuse me again,' he told the course organiser, Mark Solon, a solicitor and director at London-based Bond Solon Training.

Nevertheless, Mr Talbot, along with seven other experts in their respective fields, had come back for more. Having somehow survived an earlier basic course in courtroom skills, they were now back for the advanced seminar on handling cross-examination.

The crucial role of expert witnesses in court is increasingly being recognised. Groups like the Association of Personal Injury Lawyers have established a recommendation-only expert witness database; and the art of choosing the right expert - particularly in complex cases like medical negligence - is being refined.

But even if you have the right expert, a thorough report and a strong case, you are still likely to lose if the expert falls apart during cross-examination. Yet few lawyers do much to prevent this happening. None of the eight experts on the course was there at the behest of a lawyer, yet all had previously acted as witnesses and all felt they could do with some guidance.

Humphrey Ward, a consultant obstetrician at University College Hospital, said: 'It is extraordinary that solicitors don't help you with this before the hearing, but they don't. They just leave you.'

John Lees, an employment consultant at Trevor Gilbert, reported similar experiences. 'It is quite stunning the number of times you go to court willing to discuss matters with the barrister - but they don't ask.'

Some lawyers do, however, take a more thorough approach. Mr Ward told of how he had sat in court 'literally cringing with embarrassment', after a barrister used the insights Mr Ward had helpfully provided to take apart another expert witness. 'He seemed like a nice person when I was talking to him, but he was quite ruthless,' he said.

The first rule they learned was: Never Trust The Cross-Examining Barrister. Rather than trying to elicit useful information and allow the court the benefit of your expertise, his role is to make sure that you don't get the chance to put your case, they had discovered.

'If any evidence comes out, it's as an accident,' said Alan Cushnir, an accountant at Lubbock Fine. 'I have never before found myself in a situation where I had the information in my head and someone is making sure it doesn't come out,' said Mr Talbot.

Mr Solon warned that barristers will go for the jugular by undermining the witness. 'Lawyers will try to hook into you and pull you down the pan - and at the same time pull your evidence down the pan,' he said.

The eight participants on the advanced course read like the cast of a modern-day Agatha Christie novel: a dentist, an obstetrician, a chartered accountant, a trading standards officer, a law lecturer, an employment consultant, a tax specialist and a quantity surveyor. What they had in common was not a murderous hatred for a minor aristocrat, but a desire to give a good account of themselves in the witness box. As one said: 'I just want to have my self-esteem intact at the end.'

Before the course, each had submitted a synopsis of a real, completed case he had been involved with. This was then used by Mr Solon - playing the part of a particularly vicious barrister - as the basis for the cross-examination. The witnesses had to begin by taking the oath (or affirming) and introducing themselves and their qualifications to the 'court'.

They then had two goes at being questioned, with feedback provided in between by Mr Solon, his partner Catherine Bond, and the other participants. Each session was also videotaped for the expert to view later in private.

The experts were told how to stand in the witness box (so as to revolve comfortably between facing the barrister for questions and facing the judge to give their answers); how to dress (no loud ties); and the correct way to address the judge.

Mr Solon told them that their job is to make it simple ('You know about gynaecology; most judges don't know about gynaecology') and to help the judge reach his decision. 'You are not here to try to win the case,' he said.

With the aim of discouraging jargon, Mr Solon exhorted the rest of us to wave our right hand in the air if we didn't understand any of their evidence and our left hand if we were bored. 'This won't happen in court,' he added helpfully. 'What is a question?' asked Mr Solon. A question is a gift, an opportunity for the expert to tell the court what he's come to say. His questions, however, were generally received like the gift of a hand-grenade or a scorpion.

'Are you allowed to smile in court?' Leonard Jason-Lloyd, a law lecturer at Derby University, wanted to know. It was Mr Talbot who responded. 'It depends on the quality of the smile. Yours was contemptuous,' he said.

Never, ever try to get one up on the barrister, Mr Solon warned. 'What happens if you point-score with a barrister?' 'You lose,' replied Mr Ward, with feeling.

During the various cross-examinations, we heard a discussion about whether or not an aubergine is an 'ethnic vegetable'; we learned that Peter Horne, a quantity surveyor with James R Knowles, had installed his own central heating; and Mr Jason-Lloyd was adamant that 'every human being is aware which direction the wind is coming from'.

Perhaps surprisingly in the circumstances, a reasonable amount of evidence also emerged. By the afternoon sessions - and despite the best efforts of Mr Solon - a number of interesting and pertinent facts were beginning to emerge. He no longer had it all his own way. 'If that's the case, I think he should plead guilty,' he muttered, while playing the role of the defence barrister in what appeared a cast-iron case.

Then, when cross-examining Mr Jason-Lloyd about the police use of CS gas during a riot, he broke what every follower of legal drama knows is the golden rule: do not ask a question to which you don't know the answer. 'Have you ever seen a riot?' Mr Solon sneered. Yes, in 1981 in South London. 'Any others? No? So you've only seen one riot,' Mr Solon responded weakly.

Mr Jason-Lloyd was later chastised by the observers for nearly arguing with Mr Solon. 'Well, I am an ex-police officer,' he explained.

(Photograph omitted)

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