TALKING CROSS: SIX QUESTIONS WITH DAG HRI KUMAR NAIR SC
Honest and fair witnesses are the toughest to cross-examine, says the Deputy Attorney-General.
Who trained your cross-examination skills?
I learned mainly by observing good lawyers in action – what we are fond of calling “osmosis”. It helped greatly that I worked with the best in business – Davinder Singh SC – in my younger years. I cannot emphasise enough to young lawyers how important it is to work with, and learn from, the right senior lawyers. But ultimately, you have to develop your own style.
What are some general principles you apply, regardless of the type of witnesses?
You have to know the material – pleadings, affidavits, documents – inside out. There is no substitute for this. Every hearing is like an oral examination – you may be asking the questions, but you need to know all the possible answers as well. You also need to plan what you need to get from each witness. I write out my questions as it helps me think through what I should ask, and how I should ask it. I often depart from my script in the course of questioning, but it remains an invaluable device to bring me back to what I need to do. Do not ever “wing it”.
What kinds of witnesses are the toughest to cross-examine?
Honest and fair ones – thankfully, I have encountered very few.
How do you tackle this?
It depends on what you need from the witness. Honest and fair ones are more willing to concede matters in your (or your client’s) favour. Use that – concessions are more powerful coming from the mouth of a witness called by the other side.
Tell us about some memorable cross-examinations from your career and what made them so memorable?
It was my second High Court trial, early in my career. I was cross-examining a business owner who sued my client, an accountant for professional negligence. He did not know his own pleadings and kept giggling whenever he was caught out. This annoyed the Judge so much that he told the witness that he could go to prison for perjury. My learned friend withdrew the action after half a day. For other examples – you have to attend the seminar.
How and why would the cross-examination of an expert witness differ from other kinds?
Generally, one is more respectful of their position – they are after all there to assist the Court. An honest expert is also usually willing to acknowledge the limitations of his brief or analysis, and may offer useful concessions. But the gloves come off if they are dishonest or biased or incompetent. Unfortunately, I have come across too many of those. For details – you have to attend the seminar.
Mr Hri Kumar leads an upcoming workshop on cross-examining expert witnesses. Register here.
