Sunday, 31 January 2010

The art of cross examination

The following is an extract from a famous cross examination of an expert witness engineer by Sir Norman Birkett QC of Alfred Arthur Rouse who was tried for murder in 1930. Sir Norman Birkett was prosecutor and at the height of his powers. Alfred Rouse was accused of murdering a passenger in a car by setting light to it. The defence was that it was an accident. Defence counsel called an expert witness who claimed 'a very vast experience as regards fires in motor cars' and who asserted that the fire was caused by the junction in the fuel line becoming loose. The witness gave his evidence with great confidence. Sir Norman Birkett then began his cross examination......

A: What is the coefficient of the expansion of brass?

S: I beg your pardon?

A: Did you not catch the question?

S: I did not quite hear you

A: What is the coefficient of expansion of brass?

S: I am afraid I cannot answer that question off-hand

A: If you do not know, say so. What is the co-efficient of expansion of brass? What do I mean by the term?

S: You want to know what is the expansion of the metal under heat?

A: I asked you: what is the co-efficient of the expansion of brass? Do you know what it means?

S: Put it that way, probably I do not

A: You are an engineer?

S: I dare say I am

A: Let me understand what you are. You are a doctor?

S: No

A: You are a crime investigator?

S: No

A: You are an amateur detective?

S: No

A: But an engineer?

S: Yes

A; What is the coefficient of the expansion of brass? You do not know?

S: No, not put that way

This is a very powerful cross-examination technique. Although it has some flaws and is somewhat outmoded (see below) it still held as a classic teaching tool in law schools. The point is of course that it would have been difficult to challenge the witness directly on his conclusions without being something on an expert on car fires too, which Sir Norman was not. So Sir Norman goes instead for the jugular: the expert status itself. He also tightly controls the questioning, emphasizes it and directs it in such a way that the witness has nowhere to go. The cross-examination consits of a series of tightly paced 'closed' questions.
Today the repetition of the same point to give maximum drive to the same answer might be
criticised as too crude (even as a 'jury technique'). The judge might well say 'Sir Norman, the witness has answered. let's move on'. Also there was of course a slight risk - a risk which Sir Norman probably considered but calculated as negligible having heard perhaps the too self-assured evidence in chief of the witness - that the expert did actually know the coefficient of expansion of brass, which would have destroyed the point. Maybe he had an immediate supplementary question should this have been the case.

I did once see (in the Technology Court in Birmingham) an expert witness being comprehensively demolished on his expert credentials. Unfortunately for me, he was our witness. It was done very neatly but in a more subtle way. The other side had done their homework and found out that our expert chemist (the case was about the efficacy of a glue which had alleged failed causing gaps to appear in glazing: the glazing company was my client, the Defendant was the glue manufacturer) had previously published research and conclusions which were different from the ones he was now presented. A tough, truly confident and perhaps better prepared (rehearsed?) witness might have been able to stick to his guns and say, yes but I later saw that this research was wrong for xyz reasons and I reached opposite conclusions. But I think they calculated on the other side that he would be too taken aback by being reminded of his previous different conclusions that he would stumble. And he did. The other side's counsel I noted was made a QC soon afterwards.

Whatever the pros and cons and indeed theatre of these cross-examination techniques one must not lose sight of the fact that their success or failure can have life or death consequences for a case. That was literally the case for poor Alfred Rouse. The defence expert witness was discredited. Alfred Rouse was found guilty of murder. His appeal failed and and he was hanged at Bedford prison on 10th March 1931.

Friday, 8 January 2010

Snow and getting to work

The British don't do snow very well, presumably as it usually just comes for a short while and goes again quickly, not settling. So we don't really know how to cope when snow goes on for a few days and it's not worth committing masses of resources for this occasional eventuality.
Some workers are staying at home as a result of the snowstorms. Indeed they are often advised 'only to make essential travel'. But the strict legal position maybe a surprise and give the extra spur to make the effort to come in one way or the other.
As a starting point, employees are only entitled to be paid for the work they do. Therefore even if it is not the employee's fault, because he does not turn up for work (unless there is a provision in the contract providing for this which is unlikely), the employer is not obliged legally to pay him. Of course many employees may exercise some discretion in favour of the employee in these circumstances. He could overlook the point and it is also open to agree that the time is take as annual leave for instance. However as an owner- manager myself, as well as a lawyer, I know the difficult balance which has to be struck with the workforce to achieve fairness because there has to be sympathy for those who do get in as well and have to take up the absent ones duties. So it's not just a case of exercising generosity to those absent. One solution might be agreeing with the absent ones that they work some extra time when they get back.
Working at home of course is an alternative and this recent spell has caused me to accelerate my programme of equipping our lawyers at least with remote access to our network. If the facilities are there the law would imply that the reasonable employer would allow an employee to work from home at such times and conversely the reasonable employer would agree to do so if asked.
It follows also that (again unless there is a contractual provision) the employee is not entitled to claim additional expenses e.g, taxi or staying the night in a hotel, although especially as to the latter where necessary it seems to me to be a good exercise of employer's discretion to pay.
The position is somewhat different for those parents who have to stay at home because the school is closed, although the net effect may be the same: employees have the right to time off for emergencies for assistance in care of children (and indeed incapacitated relatives who depend on them) but this is unpaid.
The authorities are interested in the costs to public services (emergencies, gritting, schools etc) and the media are too. The entertainment media are perhaps less responsible on top of this: it always makes me cross as a responsible employer when DJs say 'take a duvet day today' and I have heard some of our 'national treasures' say it on Radio 2 (of course they don't operate in the world most of us do). The legal position, as ever, does not necessarily favour the same line and adds to the mix of decision to be taken.
On a final note, one of my partners suggested that we diversify from legal services into grit as it's clearly a valuable commodity. It would work well to promote law and grit: We could call ourselves 'Lawyers of true grit'?