Questioning at WRC Hearings and 10 Rules for Effective Cross Examination

cross-examination

Since the commencement of the new Workplace Relations Commission (WRC) service in October, 2015 I have been surprised at the inconsistency I have experienced in relation to how the hearing is conducted.

The Workplace Relations Commission Adjudicators have a certain amount of discretion as to how the hearing is conducted, but I have been slightly taken aback by the different approaches of individual adjudicators.

My understanding was that WRC hearings could be described as informal, in comparison with the procedures in the Civil Courts, and were inquisitorial, not adversarial, in nature.

However, a WRC hearing I was involved in required the questioning of witnesses in accordance with the District Court rules for Direct Examination and Cross Examination.

Quite frankly, the WRC adjudicator required the witnesses to be fully cross examined in relation to their entire version of events.

Failing to do so would, in respect of any aspect of their “story”, see that aspect of the story or fact accepted, notwithstanding a different version of events from a different witness.

This being the case, it is a good opportunity to refresh my knowledge and understanding of direct examination/examination in chief and cross examination.

It should be helpful to you too if you are running your own case at the Workplace Relations Commission, or Labour Court, without the benefit of a lawyer.

Examination of Witnesses

There are two types of questioning of witnesses you will engage in:

  1. Direct examination
  2. Cross examination

    Direct Examination aka Examination in Chief

Direct examination is your questioning of your own witness(es). A fundamental rule of direct examination is that you cannot ask a leading question of your witness about a matter or fact that is in dispute.

An example of a leading question would be, “you were dismissed on Monday morning by the chief executive without any warning, isn’t that so?”

However, if a fact is not in dispute, a leading question can be asked eg the name, address, and occupation of the witness, or a statement, and confirmation, that the witness worked for the respondent as a retail assistant, for example.

The way you need to ask questions to avoid falling foul of the rule about asking leading questions is to use words like what, why, who, how, when, where, please explain, what happened, and what happened then, and so on.

So, in the example above you would ask the witness “what happened at work on Monday?”, or “please tell us about your day in work on Monday, 25th April”.

Use simple, clear language and ask your questions in logical, chronological order.

Also, control your witness and prevent him/her from wandering all over the place, and avoid repetition of questions to emphasize facts which are already established.

Cross Examination

Your approach in cross examination will be completely different. You are allowed, and are well advised, to ask leading questions. Unlike the answers you are seeking in direct examination, which may be explanatory or narratives, the answers to your questions in cross examination should be “yes”, “no”, “I don’t know”.

Cross examination can be like a series of statements by you as questioner, and you want short yes/no answers, no explanations or justifications.

So, in the example above when cross examining the boss who dismissed the employee you would say something like, “you dismissed Ms. Smith on monday morning, without warning, completely out of the blue, isn’t that right?

10 Rules for Cross-Examination

Here are ten rules of cross examination that will serve you well:

  1.   Be brief-ask about only one new fact per question
  2.   Use short questions and plain, easy to understand words
  3.   Use leading questions-put words in the witnesses mouth
  4.   Ask questions you know the answer to, unless i) you don’t care what the answer is or ii) it is an apparently innocuous question in a series of questions filling in your knowledge which may lead to a key question
  5.   Listen to the answers; don’t be so focused on asking the questions that you do not listen to the answers, because they could be useful
  6.   Don’t quarrel with the witness, there is nothing to be gained by fighting with a witness and you only end up looking like a fool
  7.   Never let the witness repeat what he said in direct examination
  8.   Don’t permit the witness to explain anything (answers should be yes, no, I don’t know; never “yes, but…”)
  9.   Avoid one question too many-quit when you’re ahead; it can go horribly wrong when you don’t limit your questions
  10.  If your cross examination is subtle, and there is a danger of the decision maker not understanding it, don’t try to explain it during cross examination; explain it later in summing up; this will allow you exploit the curiosity of the decision maker, who will be wondering about the question you apparently left hanging but who now, prior to considering his decision, has heard your explanation in your summation.

One important point to remember: if a witness gives evidence in cross examination that contradicts evidence that you, as claimant/respondent, or one of your witnesses will give in evidence, you must put the evidence you or your witness intend to give to the witness in order to allow him/her the opportunity to rebut it. If you don’t do this then that witness’s version of events will be accepted.

The ten rules above are sound principles in any cross-examination, not just in an employment related dispute.

Re-examination of your witness

Re-examination of your witness may also be an important part of your evidence. Re-examination allows you to deal with any issues raised in the cross-examination of your witness.

For example, your witness may have been accused of some inconsistency or discrepancy in his/her evidence which might be amenable to a perfectly innocent explanation.

Re-examination allows you to do this and allows you to clarify any evidence your witness has given but which may have been misunderstood by the Adjudicator.

In short re-examination allows the witness to explain and clarify any testimony which may have been challenged or obscured in cross-examination.

It may also be used to restore the credibility of a witness whose credibility has been challenged in cross-examination.

It is arguable that if you present your witnesses testimony clearly and fully in examination in chief there should be no need to re-examine.

Re-examination is useful, however, to clarify any discrepancies or inconsistencies which have emerged between examination in chief and cross-examination.

However, the examiner needs to be sure that asking the question to clarify will give the desired result and not make matters worse or put an unwanted focus on a discrepancy.

For the reasons set out above any re-examination should be brief.

Conclusion

But the most important rule of all? Prepare well, and know your case inside out.