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How to Cross Examine the Other Side

By: Lorna Elliott LLB (hons), Barrister - Updated: 29 Sep 2012 |
Cross Examination Questions Court Small

Cross examination is a skill that is taught in law schools across the world, but in reality there are very few lawyers who are true tacticians in this art form. Cross examination is often misconstrued, and some people think that the more aggressive or rude you are the better. This is simply not the case. In fact, if you reduce the witness to tears or get so angry that the judge has to intervene, you have shown yourself in a bad light. The key to cross examination in the small claims court is proving your case.

Your Case

If you have brought a small claims case the onus is on you to prove your case ‘on the balance of probabilities.’ This is a legal phrase and actually means that your version of events is ‘more likely than not’ or at least that there is a 51% chance that it is true. Defendants who have issued counterclaims also have to prove their case to the same extent. It may help if you have a list of the things that you need to prove to hand. In cross examination you should always ask closed questions. That means asking questions that elicit either a yes, or no, answer. Do not give your opponent the ability to ramble on about a subject, get the answer and then move on to your next question.

The easiest way to explain cross examination is by way of an example. Imagine that you are a gardener who has not been paid for the work that you did on a customer’s garden. You did a variety of jobs in the garden, such as weeding, planting, and clearing out a garage. Then you built a patio. The customer complained and said that the stones you had used were not the ones that he wanted you to use and in any event you did not do a very good job. You need to prove:

  • that you did the work
  • that the work was agreed
  • that you used the correct stones
  • that you have not been paid
  • that the job you did was satisfactory and fit for purpose

The customer has not let you take photographs of the patio, so you are unable to prove that the stones are unbroken and that you did a good job. Interestingly, he hasn’t provided photographs himself either. The way you might formulate your questions are as follows:

  • Do you remember the conversation we had about your garden on May 15th?
  • Yes
  • So you recall that we walked around the garden and you showed me the work that you wanted done?
  • Yes
  • You asked me to weed your flowerbeds, didn’t you?
  • Yes
  • And to clear out your garage?
  • Yes
  • And to plant the new bulbs you had bought?
  • Yes
  • There’s nothing wrong with the work that I did on ay of those, is there?
  • It’s the patio I’m more concerned about.
  • You haven’t expressed dissatisfaction with any of the work I’ve just mentioned in your defence, have you?
  • No
  • So if the work has been done, and there’s nothing wrong with it, you should pay for it, shouldn’t you?
  • The Patio

  • Turning to the issue over the patio, do you agree that I showed you some samples of paving stones that were in the back of my van?
  • Yes
  • And you picked out one particular stone, with a serial number X430.
  • Yes
  • (You pass him a receipt) If you would like to have a look at that, please. (Once he had a chance to read it). It’s a receipt for paving stones, isn’t it?
  • Yes
  • Can you read the paving stone serial number on it?
  • Yes
  • What does it say?
  • X430.
  • Which is the same as the paving stone you chose from my van, isn’t it?
  • I can’t remember.
  • At that point I explained the price to you for the paving stones and how much the labour would cost, didn’t I?
  • I can’t remember.
  • You’ve explained in your defence that the patio was laid badly, haven’t you?
  • Yes
  • But you recall looking at it after it was laid and saying that you thought it was a good job?
  • It was then, but it cracked after that.
  • Yes, which is the essence of your counterclaim. Have you given the court any exhibits to prove this?
  • Like what?
  • Photographs, for example?
  • You didn’t do a good job, simple as that.
  • So you can’t prove that there’s anything wrong with the patio?
  • (Silence)
  • Let me put it bluntly. If you had been so dissatisfied, why didn’t you contact me about the patio beforehand?
  • Because you sued me.
  • But that was six months later. If there had been a problem, you would have raised it at the time, wouldn’t you?
  • I’ve been busy.
  • Too busy to sort out something that you have to look at every day?
  • (silence)
  • You’re trying your luck, aren’t you?
  • No

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Share Your Story, Join the Discussion or Seek Advice..
That all seems to be ok - but what happens if the defendant makes an outrageous counterclaim, and the court (somehow !) finds in his favour ? Does the claimant end up having to pay HIM money ???
Steve - 6-Oct-11 @ 5:19 PM
Interesting and well presented.If opponent shows to be / have been / unreasonable and you win then apply at end of case to District Judge for the limited costs against him / her as these may be available.
Ethics - 10-Sep-11 @ 3:14 AM
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