“Taking a note,” was the answer.
At which Russell burst out in his uncompromising way: “What the devil do you mean by saying you are taking a note? Why don’t you watch the case?”
“Watch the case!” It is a golden rule.
It was the same when he was playing cards. He would get impatient with a partner shuffling and handling his cards in a state of indecision. “Why are you looking at your cards?” he asked. “Why don’t you watch the game? The game is on the table.”
In the same way an advocate who is always fumbling with his brief when he is examining a witness cannot follow the game that is on the table before him.
Sound judgment is essential to the examination of witnesses. How few advocates know how to examine a witness-in-chief! Birrell tells us that Sir Frank Lockwood had very clear views on the subject. “He believed that the examination of a witness-in-chief, or the direct examination of witnesses, as it was called in Ireland, was very much underrated in its significance and its importance. If they had to examine a witness, what they had got to do was to induce him to tell his story in the most dramatic fashion, without exaggeration; they had got to get him, not to make a mere parrot-like repetition of the proof, but to tell his own story as though he were telling it for the first time—not as though it were words learnt by heart; but if it were a plaintive story, plaintively telling it. And they had got to assist him in the difficult work. They had got to attract him to the performance of his duty, but woe be to them if they suggested to him the terms in which it was to be put! They must avoid any suspicion of leading the witness, while all the time they were doing it. They knew perfectly well the story he was going to tell; but they destroyed absolutely the effect if every minute they were looking down at the paper on which his proof was written. It should appear to be a kind of spontaneous conversation between the counsel on the one hand and the witnesses on the other, the witness telling artlessly his simple tale, and the counsel almost appalled to hear of the iniquity under which his client had suffered.
“It was in this way, and in this way alone, that they could effectively examine a witness.”
There is probably more waste of time and irrelevance in the examination of witnesses-in-chief than in any other procedure of counsel. This is the modern drama of it.
Counsel (his eyes glued to his brief): “Your name is Mary Ann Snooks.”
Witness (annoyed): “Martha Ann.”