Evidence in chief is the process by which the barrister questions one of his/her own witnesses. The questioning is designed to help the witness tell the story of the relevant events, in a structured, logical way, bringing out detail when necessary. It is primarily used in criminal cases where all of the evidence is oral. In most civil cases, witness statements stand as the evidence in chief and there is only supplementary questioning.
On the surface, it appears a simple task. However, it is a deceptively difficult skill to perform well. The evidence should come from the witness, which is why the advocate should not ask leading questions on disputed issues. The barrister needs to carry out case analysis and detailed planning of the evidence in chief beforehand. During the evidence in chief the barrister not only has to ask the questions, but carefully listen to the answers, control the witness and ensure that all the relevant evidence comes before the court, deftly avoiding anything inadmissible.
You can read all about the theory of evidence in chief in the Advocacy manual (definitely worth reading), but what about the realities as a BPTC student? I asked my former BPTC students if they could help.
Preparation – legal knowledge and research, case preparation and planning
Farooq Sher gave astute advice on the best starting point for any endeavour as a barrister; a full knowledge of the law.
“Know when not to lead! Know your rules of court, know your civil evidence act, enhance the positive elements of your case through the evidence of your witness. Breathe. Take your time. Speak clearly and follow a logical format.
Elicit the objective and subjective evidence according to the legal tests. Don't forget the burdens and standards of proof in a civil case.”
As set out above, you should not ask leading questions on disputed matters, so making lists of disputed matters as part of your preparation will help you. Knowledge of procedure and rules of evidence might not immediately seem relevant, but you must know what you can and cannot adduce and what the court requires.
Elizabeth Salmon emphasised the need for meticulous preparation. Knowledge of the case as a whole was paramount to her:
“Snigdha, my advice would be prepare, prepare, prepare. Know what evidence you need your client to give in order to make your case and ask questions that will allow for that information to flow.”
The importance of background knowledge and thorough preparation cannot be overstated - too many students think all that is required of them is to ask questions based on the witness' statement, with no greater awareness of the legal framework or the law of evidence.
Practical advice on how to prepare came from Prashant Sabharwal:
“Know your brief, read it several times and mark down any detail. Then, prepare the broad outlines of questioning your witness. Understand that your witness is human. If necessary, drill down the details through several targeted questions in quick succession. Most importantly, make your witness comfortable and willing to trust you.”
Preparation of an effective kind is key, and I wholly endorse Prashant’s approach. The elements of the offence, the events, the descriptions, the placing of people in the situation - the advocate must be on top of it all. Another highly significant element of Prashant’s advice is the need to “drill down” on details. The possible need for asking many questions to elicit a single piece of information is something many students do not appreciate. Students often wrongly think that if they ask "What did he look like?" they will get everything - face, clothes, shoes, hair colour.
Whilst full preparation is important, the plan you put together must be a flexible one. Something which is too rigid will not work when dealing with a witness. Witnesses are people, so you can expect a degree of unpredictability.
“My view is 'don't over prepare it'! Focus on the facts you're trying to prove rather than listing a volume of questions. Add some natural flair!”
Sharid Sarwardhi has this advice on preparation:
“My advise is try to memorise the whole chief in your mind and ask questions based on a pattern, which you can form earlier, then just keep on listening to the answers and keep on asking questions. I am not suggesting blindly memorising all the questions for the chief, because you could easily lose your track in the middle of the chief. I am just saying that you should remember your facts in such a way so that when you ask any question you will know what will be your next question after getting the answer from the witness.”
Travis Ritch brings together all of these ideas with his mature reflection based on his own practical experience:
“Admittedly, I found this difficult on the course. But I think now it was put so early in the [skills] assessments (possibly first) because, however well you prepare (and prepare you must), your meta-skills of case analysis, fact management, and helping the finder of fact to find the facts you need to establish your case in law and win the day, take a leap forwards when you do this assessment. For that reason, those areas are perhaps the starting point. What has my client told me has happened, what am I trying to achieve for my client, what do I need my client to say in order to achieve that for him/her, and then, how do I plan to bring this information out without leading.
Undisputed facts are particularly helpful, because you can state them yourself and use them to signpost. In practice, cases will range from those where all of the facts seem to be in dispute to those where all of them are undisputed and the judge has to decide a single question of law. The course won't give you either of those extreme scenarios; you will need your witness to establish some or most of the facts but not all of them. So, use the undisputed facts to full advantage, and then plan (but don't fully script) how and when you will ask the witness to say the rest of what you need. As a student, I did not trust my brain to think of the next logical question or to find another way of asking the same question while on my feet if I knew the finder of fact had still not heard from the witness what I needed them to hear. I wish I had now.”
Travis’ perceptive observations and searing honesty should guide you towards being an excellent advocate. His description of the relationship between case analysis and questioning is essential reading for students.
Questioning – avoiding leading
Mark Lafferty had this to say:
“I’ve just seen your request for advice on evidence in chief and the following snippet from a Rudyard Kipling poem sprung to mind. I think it's quite useful in a daft sort of way!
I keep six honest serving-men
(They taught me all I knew);
Their names are What and Why and When
And How and Where and Who.
(Unfortunately, I think the rest of the poem is utterly irrelevant!)”
In response, I would say Mark’s advice is anything but daft. It is enormously helpful. Leading questions are only permissible on undisputed matters. So, learning how to carry out non-leading questioning is very important. Using the open question words set out in Kipling’s poem will help. You will need to practice this over and over again, because normal conversation doesn’t work this way; we nudge each other in conversations, using interruptions, leading questions, and other ways of pushing a story or conversation on.
Hannah Thomas warns against obsessing about leading and non-leading questions, as this can distract you from the point of the exercise:
“The thing I personally found important to note, is not to overthink it. What you're essentially asking is normal, basic information, and it becomes overcomplicated by people trying to ask non-leading questions. Think of it like a fact-finding exercise- when you're asking anyone information you don't know you ask every question in a non-leading way and I think the pressure of tutors drumming 'non-leading' into your mind makes you forget that it is literally just normal question and answer like you would do with your friends.”
To an extent, you should endeavour to avoid leading, but if searching for non-leading questions is slowing up the witness handling, or the questions are becoming too vague and unspecific, then Hannah’s advice will help you refocus on what is important; the narrative and the facts to be adduced before the court.
Practice makes perfect
Dana Munnings underlines that skills can only be learned through practice:
“All I can say is practice, practice, practice, and record yourself while doing so. You are your best critic. Play it over and over and see where you can improve. Project your voice, keep eye contact and PRACTICE!“
Practice always makes perfect. Any person who has learned any kind of skill, whether sporting, music, dance, art, craft (etc.), will know the importance of practice to both the building or maintenance of one’s skills level. But thoughtful practice is the most important things to engage in - with review and reflection in between. Watching your performances back and assessing yourself will be hugely valuable.
Prav Chandra has a very simple, achievable tip for all students:
“Practise with someone who doesn't know anything about Bar studies. That way, you ask questions which are easily understood by the witness without trying to be too legal sounding. At the same time, you get answers that aren't ‘template-like’.”
I have often worried about students practicing with the same people too often. Fellow BPTC students will tend to try to be too helpful. They give far too much information in answer to a question, in a way which is not realistic. Go to court and you will see what I mean. Working with the same people will tend to mean your skill will evolve to suit those people being your witness. As a result, the whole exercise becomes "template sounding”. Once we fall into that template mode, we stop really listening to the answers and determining which facts have and have not been established. Get out of your comfort zone and learn to stretch yourself.
Listen. The importance of paying attention to the witness.
Komal Joshi raised the often ignored point that the witness should be heard, not just by the court, but by the advocate:
“Don’t over prepare the questions - listen to the witness and let them tell their story. It not only makes it (the evidence) flow better, but also more key evidence can be drawn from them; going from set questions may make you pass over the comments that they make that may be key in the case theory! It also makes it more natural and convincing!”
Komal recognises that follow up questions are often necessary to bring out detail. You cannot hope to use this technique when you are not listening to the witness with great care.
Small hints, little nuggets of fact can come out, which will need development. But only if you hear them!
Eloise Turnnidge supports Komal’s view with these brief, sharp and incisive points:
“1. Write a list of facts you seek, not questions to ask.
2. Make it conversational. Don’t be a robot.
3. Actually listen to the witness’ response and, if appropriate, adapt your questioning.”
A list of facts is better than a list of questions because you can use your pen to quickly cross out facts you have adduced, giving you an instant reminder of what you have left to adduce. A list of questions is risky, as the temptation is to read the list of questions, without keeping track of the actual evidence adduced by the witness. Adapting of the questioning to pick up the facts which are left on your plan will help you get all of the necessary facts out, allowing the court to decide on the basis of the best possible evidence.
Be human. Remember the witness is human.
Eloise’s point about being conversational and avoiding being “robotic” set out above is part of a more general point about the need to be professional, yet human and recognising the witness is human too.
Hesh Kumar takes this point up in his advice:
“One piece of advice, which helped me a lot in the first few weeks: never forget that in XIC, it’s your witness. You’re on their side and they’re on yours. Be friendly, ease them into it. Students are always keen at the start of advocacy training to get into a witness and do what they’ve seen on minis/on TV/any other experience they may have, but in chief, a smile never hurts.”
Never forget that you only get to examine in chief the witnesses which support your case. Why would you want to give them a hard time? Remembering how stressful it is for a non-lawyer just to be in court, let alone giving evidence and getting grilled! A bit of politeness, kindness and charm is always more likely to get co-operation and helpfulness back. I couldn't agree more.
Jack Horlock reminds us that focussing on questioning technique often happens at the expense of being polite, natural and courteous to the witness.
“I found it helpful to just think of it as having a chat with a friend about the particular topic. The formalities and other things for the exam etc. are easy to learn and commit to memory. However, your manner with your witness comes naturally and if it's forced it's obvious!”
Oliver Bee is blunt, direct but astute:
“Just chill, Winston, or whatever your name is. If you sound like a clipped privileged twit barking your commands to the lower orders or a robotic staccato fartgun, that never plays well. Be conversational, you're eliciting a story, a credible narrative for the entertainment of the court.”
As barristers-to-be, you have the advantage of a good education, usually far in excess of that of your clients and witnesses. They are already intimidated by you, and your profession. There’s no need to ensure they know how intelligent and well educated you are. Help them do their job, and they will help you do yours. Oliver explains further “remember that you aren't just asking questions or proving a case, but dealing with another human being is very important. This is a communication based skill.” What we do and say in court has far reaching consequences. We would do well to remember that!
Marshall Harkins has this highly effective tip, which is genius:
“Asking how the witness felt or thought about important moments can be insightful and efficient.”
Advocates often focus on their own performance, forgetting that just watching back a video is only half the story. The witness is the vital other half; a living, breathing, thinking human who can tell you whether they were helped in telling the story by your questions. They can help you identify questions which are vague, unfocussed, unhelpful to ensure you avoid them in future. Sit down with the person you questioned and ask them for feedback.
Chee Wan Yee brings all of these ideas together with her advice:
“I feel like the most important thing to remember in XIC is that you are dealing with an actual person who may be afraid of being at the stand. The witness' feelings are so important and many students fail to ask questions regarding how the witness felt at the time of the incident. It is also useful to imagine that you are in the scene when the incident occurred so that you have a clearer idea of what is going on. Do not bombard the witness with tough questions and properly read the brief before forming questions because students tend to ask irrelevant questions by thinking that more questions equals more points. Also, it is crucial to prepare the witness for XX!! Better to ask the questions early and let the witness explain themselves than to get caught out later on!”
Tom Jones puts things back into perspective. The star of the show should be the witness, not the advocate. Your time to shine will be in the closing speech of the trial.
“I received an outstanding in my final assessment for XIC. My strategy was to let the witness do the talking. I think that you should trust your preparation; read the entire bundle carefully (and not just the WS of the person being “chiefed”) and practice asking the questions before hand. There's no shame in memorising your prepared questions so that you can maximise eye contact with the witness on the day.”
Planning is vital; know your law, rules of evidence, the elements of the offence, and all of the papers thoroughly. Plan using a fact led approach and don’t script your questions.
Avoid leading, but don’t be obsessive. Try to get the story to flow.
Listen to the witness. Watch out for little clues and hints which could be followed up with further questioning.
Practice frequently, with a wide variety of people. Watch yourself and be self-critical. Get feedback from the witness.
Don’t forget to be courteous. Remember your witness is on your side and is only human.
Deepti Bismohun has this final word:
“Snigdha. Just tell them to listen to your advice. It works trust me, I am a lawyer!!”