Here then are the touchstones for preparation for cross‑examination. 1. AN ADVOCATE IS ONLY AS GOOD AS THE BRIEF This may be more a caution against vanity than a proper touchstone. None the less it is important to remember that not every case is a winner. In fact cases may be likened to a hand of poker. You are dealt the cards. They may be good or bad. Whatever they are, it is your duty to play them as well as they can be played. If after adopting the steps listed below you are still left with very little material with which to cross‑examine, so be it. If the other side has all the facts they will in all probability win. Your duty is to press your case as fairly and firmly as it can be pressed bearing in mind that there is (usually) only one winner. If on the other hand the facts are favourable, you must marshal and then present them in a manner that will ensure success. Advocates don't win cases: they prevent cases being lost. If in the course of your preparation you discover the facts are generally against you, then of course you have a duty to your client that may involve settlement of the litigation. 2. LIST THE ESSENTIAL ELEMENTS OF BOTH CASES Before cross-examination you must know precisely what has to be proved in order to win and what your opponent must prove before they can win. Nor is it concerned with the skills of a cross‑examiner for those can only be developed by practice courses, followed by trial work1. Rather, this article is about preparation for cross‑examiners. Assume you know the legal theory relevant to a forthcoming trial. You have the skills. You have been given a brief. It contains your side's witness statements, documentary and other exhibits, the pleadings and the advice on evidence. You understand the issues. How then do you go about preparing for the cross‑examination of the opponent's witnesses? WHAT IS PREPARATION FOR CROSSEXAMINATION? If I can borrow a military analogy (after all, litigation is civilised warfare), cross‑examination is equivalent to making bullets and firing them. Without skill in aiming and selecting targets
(the technique) the bullets may miss their mark. But without possession of the bullets themselves (the material), no cross‑examination has ever been effective. In the course of practice and since joining the bench, I have been privileged, if occasionally horrified, to witness some telling cross‑examinations. In every one, the cross-examiner was armed with some facts not known or forgotten by the witness. Of course the skill of the advocate in presenting those facts to the witness has ensured the success of the crossexamination. However, without those facts the cross-examination would have been worthless. If the preparation is thorough and the ammunition is there, even a comparatively unskilled crossexaminer will be successful. An advocate's first task is to ensure that they have all the facts that are able to be assembled in respect of each witness.
Write out on one half of the paper what must be proved by each party. Usually there will be no more than a half a dozen points for either side. Then write under each point how the point will be proved. This simple task is invaluable for preparing your case generally. It will assist in your opening, closing, general strategy and will rapidly tell you whether to fight or settle. From this second list you will also quickly see where you will need to cross‑examine to destroy the opponent's case, and just as importantly, where cross-examination will enable you to use admissions or additional evidence to build your own case. All cases are set within a theoretical and a practical framework. This is true of both civil and criminal trials. The theoretical framework is supplied by the substantive law governing the cause of action. Knowledge of this theoretical framework is of course essential generally, but it is worth considering the framework in the context of cross‑examination. It will often supply the basis of that 21