Going to court? It’s very likely you will face cross-examination by your ex or their legal representatives. For that matter, you or your legal representatives are just as likely to cross-examine your ex. Here are our top tips for how to handle cross-examination in your family law matter to ensure you stay credible — whether it’s you doing the questioning or you’re being questioned yourself.
What is cross-examination?
If your family law matter has been set down for a final hearing, you will probably face cross-examination. This is the part of a trial when a witness is asked questions by the other party or their legal representative. If an Independent Children’s Lawyer is appointed in your matter, they might cross-examine parties as well. Judges, too, can interrupt and ask questions during a cross-examination.
It’s designed to allow parties to test a witness’s evidence to see if they have been truthful.
How to handle cross-examination
Rest assured most people feel nervous about this element of a trial, fearing saying the wrong thing or making mistakes. It can help to have an idea of what’s in store and how to best present yourself during cross-examination, so here are some tips for how to handle cross-examination.
Tips for when you are being questioned
Listen carefully to the question. If you didn’t hear it fully, ask for the question to be repeated and if you don’t understand, say so and the cross-examiner will reword it.
Be clear. When answering, speak carefully and clearly. Remember your evidence is being recorded so you need to verbalise all answers, not using nods or shakes of the head or shrugs. Remember your body language is important, too. The judge will be observing you as a whole, not just listening to what you say. Try not to display signs of boredom, irritation or frustration, such as by making faces at questions asked.
Be prepared. Once cross-examination has begun, you won’t be able to speak to your lawyer until it’s over. So ensure you are clear on all aspects of your information and won’t feel the need to check things with your lawyer.
Be truthful in answering all questions. Worried about what’s the “right” answer? The most truthful one is the right answer. Even if answering honestly could paint you in a less than positive light, it’s essential you tell the truth. The judge will be more impressed by your credibility if you answer honestly in such situations, and it will also demonstrate that you have insight into your own mistakes or failings, rather than obstinately refusing to admit if you were clearly wrong. If you can’t remember something, simply say so.
Answer only what is asked. Don’t volunteer information that hasn’t been asked for. Don’t answer other questions you feel might relate to the question asked. If asked a yes or no answer, just answer with a yes or a no. There’s no need to elaborate with “because” or try to explain your answer. This can give the cross-examiner more opportunities to question you on your expanded explanation. Cross-examination is not a chance to explain your position or expand on it. Your affidavit, which the judge has read, will already have contained your evidence-in-chief.
Keep calm. Remember that if a question seems to be intended to provoke you (and make you angry or argumentative), it probably is. Stay polite and firm, but don’t start arguing with the cross-examiner. If you can stay calm under pressure in the witness box, the judge will be more likely to view you as someone who has the capacity to self-regulate their emotions in other situations, such as with the kids, as well. (If you are feeling very upset or you feel unwell, it’s okay to ask the judge for a short break.)
Don’t try to guess the reason behind a question. If you do so, it will be hard not to try and tailor your answer to suit what you perceive is the desired outcome. This can lead to dishonest answers and to appearing as if you are trying to manage your answers to put you in a good light. Also, don’t give your opinion – just stick to the facts.
Don’t bring documents into the witness box (such as your affidavit). The court may permit you or ask you to refer to or read your documents to refresh your memory and these can be handed to you in that case.
Try not to take everything personally. Cross-examination can feel like a personal attack or can bring issues to the surface that cause you emotions. Don’t dwell on how the cross-examination is making you look as a person. Let your truthful answers speak for themselves.
Tips for doing a cross-examination
Be clear and brief. Ask single and specific questions about one fact at a time, avoiding complex, compound questions.
Don’t ask very general questions that can elicit any number of answers. Instead, ask a series of questions that require specific answers – ideally, yes or no.
Make a statement and then add a question that checks if you’re right, such as “is that right?”, “is that correct?”, “yes or no?”.
Ask leading questions. In other words, you’re giving the witness the answer you’re looking for by how you phrase your question (e.g. “You didn’t come to collect the children for your scheduled time on March 4th, did you?”).
Control your witness. You don’t want to let your witness say whatever they want to say. You especially don’t want to give them the chance to repeat something they said earlier that wasn’t good for your case. It’s best to know why you want to question someone, and what answer you expect them to give, so you can craft questions that demand that answer.
Don’t ask a question if you do not know the answer to avoid surprise answers which could hurt your case. You don’t want to give the opportunity for them to expand on and explain answers they gave earlier. Never ask a question that will elicit an answer that already hurt you on direct examination. If your witness starts expanding or explaining beyond the scope of your question, you can cut them off and say thanks, you’ve answered my question.
Challenge the other person’s evidence if you believe it’s not true or if it contradicts something they said earlier. You can do this with questions or by showing documents that reveal an inconsistency with what was said. But make sure you first have them “recommit” to their earlier statement (ie. have them agree it’s what they said earlier) before challenging it. Look for ways to expose weaknesses, exaggerations and untruths in what your witness has told the court earlier.
Don’t argue with the witness or become angry. If they don’t answer your question, you can ask the judge to tell them to.
Protection for family violence victims
Personally cross-examining an ex if they were the perpetrator of family violence against you used to be a highly traumatic part of a trial, but in 2019 the Government acknowledged how this affected access to justice and delivery of justice by amending the Family Law Act 1975 to ban parties from personal cross-examination in situations involving family violence. If a ban is imposed, cross-examination must be undertaken by a lawyer, either privately engaged or engaged under the Family Violence and Cross-examination of Parties Scheme via Legal Aid. You can read more about the Scheme and how to apply here.
At Alliance Family Law we have a lot of experience representing our clients at trial, including instructing barristers. We can also help if you are self-represented but would like help just with specific aspects of your matter, such as preparing for cross-examination—consider taking advantage of our unbundled legal services. For advice, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.