I am growing weary of reviewing transcripts with open ended questions to testifying doctors, such as: “How would you describe my client’s symptoms of schizophrenia?” Here are some thoughts on how to cross-examine any witness. Goes equally for expert witnesses, like psychiatrists.

Begin with writing out what you want your Closing Statement to the tribunal to say. All the facts you want to review and the law you’ll be relying on. Take the Facts part and separate it all into bite-size bits of 5 words or less. Type this up with bullet points or write it out.

When preparing a cross, they don’t have to be real questions. Statements put to the witness are fine. So for eg: 1. My client has no psychiatric history (?) 2. He’s never been certified before 3. He’s never been medicated 3. He’s never been violent 4. He’s never been charged etc.

Never, ever ask an open-ended question. No good comes of them. Don’t let the ‘expert’ witness get away from you. Keep control. No Whats, Wheres, Whys, Hows – no good comes of that – that’s for your exam in chief, which hopefully you won’t have to run. Take your 5 word bullets and

Just hammer them at the witness, firmly but politely, as long as you must. Keep repeating the question exactly as you put it, or shortening it even more each time, for so long as the witness remains unresponsive. Finally, if they give you a 20 minute answer, wait fully 30 seconds

And then ask: “Are you finished?” Everyone in the room will become very uncomfortable. The witness won’t run away from you again. These are the tips that took me almost 30 years to learn. Use them for good, not evil. Let me know how you do and most importantly, do your best!!

Here is my Twitter Thread that sets all this out.

https://twitter.com/pouchbaby/status/1349324393864974337

Alternatively, here is a great display of intuitive cross-exam beautifully done with a twist of wry humour we all wish we had and only some of us do. This is co-author Michael Davies making stuff up on his feet, or, well, as it turns out, in his seat – this alone was well worth the price of admission. We had roped him in to do this last minute – literally – to fill in for someone who had fallen ill last minute – watch and learn everyone.The whole panel is about cross-examining psychiatrist experts. One of my favourite panels of all time. – Demo is at the end of this session – on the issue of significant risk and then on conditional discharges at the ORB – a typical ORB hearing.

You can buy access to the the whole conference that year (2019) here: https://members.criminallawyers.ca/event-3298067

and it will give you a taste for the one to come this February 20, 2021 https://members.criminallawyers.ca/event-4090820