Much public time could be saved by more economical methods of examination-in-chief, and greater efficiency would be ensured.
Cross-examination, too, is almost entirely a matter of judgment. Two golden rules handed down from the eighteenth century, and maybe from beyond, are still unlearned lessons to each succeeding generation of advocates:
1. Never ask a question without having a good reason to assign for asking it.
2. Never hazard a critical question without having good ground to believe that the answer will be in your favour.
Serjeant Ballantine has some just observations on the art of cross-examination and the use and abuse of it.
“The records of justice,” he says, “from all time show that truth cannot, in a great number of cases tried, be reasonably expected. Even when witnesses are honest, and have no intention to deceive, there is a natural tendency to exaggerate the facts favourable to the cause for which they are appearing, and to ignore the opposite circumstances; and the only means known to English law by which testimony can be sifted is cross-examination. By this agent, if skilfully used, falsehood ought to be exposed, and exaggerated statements reduced to their true dimensions. An unskilful use of it, on the contrary, has a tendency to uphold rather than destroy. If the principles upon which cross-examination ought to be founded are not understood and acted upon, it is worse than useless, and it becomes an instrument against its employer. The reckless asking of a number of questions on the chance of getting at something is too often a plan adopted by unskilful advocates, and noise is mistaken for energy. Mr. Baron Alderson once remarked to a counsel of this type, ‘Mr. ——, you seem to think that the art of cross-examination is to examine crossly.’”
How few advocates have the capacity to let well alone! They must repeat and emphasise, and emphasise and repeat. In a case tried before Sir Henry Hawkins, a junior, not content with his own witness’s answer, continues:
Junior (emphatically): “And you are quite sure of this?”
Witness: “Yes.”
Junior: “Quite?”