Lost art of cross-examination | Kyla Lee
Friday, March 12, 2021 @ 9:22 AM | By Kyla Lee
But it shouldn’t be this way.
Somewhere along the line, as lawyers and as legal educators, we forgot about the importance of educating ourselves and our students on the skills of cross-examination. Law schools offer courses in trial advocacy, which cover cross-examination as a component, but there is no focused and distinct class offered at most law schools in this important skill.
As the Continuing Legal Education (CLE) co-chair for the DUI Defence Lawyers’ Association (DUIDLA), I know that lawyers flock to seminars that seek to improve their trial skills. Indeed, this spring in Charleston, S.C., the DUIDLA is hosting a trial skills-based seminar that has both live in person and remote attendance options. For the most part, however, cross-examination based seminars consist of lawyers retelling war stories and talking about the most basic “dos and do nots” of conducting a successful cross-examination.
COVID has made things worse. While the pandemic has increased the opportunity for lawyers to engage in CLE events online, like webinars, it has stripped away the most common teaching method for lawyers interested in developing their skills in courtroom examinations: sitting in a courtroom watching other lawyers do it.
As a law student, when I wanted to learn more about cross-examination, I attended trials with more senior lawyers, to observe and learn from their skills. I was grateful for these valuable opportunities and for the lawyers who took the time to ask me for my opinion and talk to me about the decisions they made after the fact. I watched great lawyers like James Sutherland (now Judge Sutherland) absolutely dismantle police witnesses. And I learned some things.
But even that was just not enough. The delegation of our teaching skills in cross-examination to “watching the greats” is not only not effective in the pandemic, but it also is not effective for busy junior counsel who may not have the time to sit through a trial. Trials are unpredictable and they collapse midway through, or before they begin. Junior lawyers and law students cannot be expected to learn one of the most important litigation skills by sheer luck.
Nor is it fair to say to our clients that we all need to just figure it out as we go along. After all, developing good cross-examination skills can occur by years of trial and error. As a client, I would not want to be part of that process.
So is the responsibility with the law society? If principals of articling students cannot guarantee that cross-examination learning opportunities will occur, due to the unpredictability of trial calendars, and law schools do not have the capacity to teach it, and professional organizations can only do so much, should we put the burden on the law society?
When I took a Professional Legal Training Course in British Columbia many moons ago, we spent less than a day on cross-examination. A handful of students in our class demonstrated and we moved on. We had a mock trial, and a lucky few students in each mock trial group got the chance to conduct a cross-examination. It was a “do it, not learn it” approach. But things have changed substantially. The mock trial is now cancelled, replaced with a day where students can go watch court proceedings. It doesn’t matter what they are. Just watch court. There is no skills development that comes from sitting through a lengthy chambers list, listening to uncontested mortgage default applications.
The lack of resources on how to develop a good system and skill in cross-examination frustrated me and made me concerned for the students who were not learning or getting the chance to learn. I did what little I could this year, by publishing with LexisNexis a textbook on cross-examination. (LexisNexis also publishes The Lawyer’s Daily.) This book, unlike many of the others out there, is less academic and focuses on how to create a system to set up, plan and map out the intended cross-examination. It covers difficult witnesses, expert witnesses, police witnesses and multiple methods of impeachment.
My hope with the book is that it is going to provide young lawyers, old lawyers and future lawyers with a skills-based method to do something that we no longer have much of an opportunity to be taught.
The art of cross-examination may be lost. But that does not mean that it cannot still be found.
Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! and the author of Cross-Examination: The Pinpoint Method. She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.
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