How to prep your client, the Plaintiff, for cross-examination in a civil suit?
Updated: Oct 13, 2022
Under the Code of Civil Procedure, we are aware that there is a stage of cross-examination of the Plaintiff. At this stage, the Counsel for the Defendant examines the Plaintiff to establish the 'truth' before the Hon'ble Court. It is material that we prep our client, the Plaintiff, before the cross-examination so that they don't utter statements that will act against their interest; knowingly or unknowingly.
To clarify, the Plaintiff is the person who brings a Plaint, a statement stating the wrong done against him and the relief that he seeks. Such a relief is claimed against the Defendant who is alleged to have committed the wrong against the Plaintiff. The Defendant responds to the Plaint by submitting the Written Statement. If the Defendant has claims against the Plaintiff, he can include a Counter-Claim in his Written Statement itself instead of instituting a fresh suit against the Plaintiff. This helps avoid multiplicity of suits. Having established who the Plaintiff and the Defendant are and what the Plaint and Written Statement are, let us delve into cross-examination.
On 3rd July, 2021, I was given the opportunity to prepare a client of the firm for cross-examination by my Senior Partner. As I went through the Plaint and Written Statement, I realized I needed a strategy to pursue the assigned task.
Read the Plaint, the reply notice and the Written Statement
The first step in any legal research is read, read and read. There is no way you can avoid reading the documents. Go through the Plaint first. Understand it completely. Keep your judgements, biases and inhibitions aside. For an advocate, the client is always right. When you trust the client, the client will trust you too. This is important as it is imperative that the client is honest and frank with his counsel. So, read, read and read. After the Plaint, go through the reply notice provided by the Defendant who will generally deny the averments stated in the Plaint. It is extremely crucial that we understand the reply notice and the subsequent Written Statement. The wordings used and the tone of the entire document will give us invaluable insight into the strategy that the opposite counsel will pursue in the case at hand.
Plan and Strategize
As you peruse through the documents, few ideas and thoughts will pop up in the canvas of your mind. This is brilliant! Note them down. Note all that the mind comes up with; of course, only what is relevant to the case. Whatever queries you have, get them clarified after seeking the opinion of your seniors. I draw up a strategy that is unique to each case assigned to me. Along with the strategy, I keep all that is expected of me to deliver in the assigned case also ready at hand. The strategy and the deliverables act as a compass as I navigate through the vast ocean that the law is. I cannot emphasize enough the importance of this step. You must have the strategy and deliverable ready as it gives you a sense of direction and ensures that you do not ward off into territories that are irrelevant in the deep recesses of the statute. There is a tendency we have that we go into so much detail that we lose sight of the big picture and end up working on something that was not at all irrelevant.
Try to understand the strategy that the opposite counsel might employ in the cross-examination
As you read through the reply notice and Written Statement, you will get a whiff of the strategy that the opposite counsel might employ. You must ascertain what the opposite counsel seeks to achieve- get your client to confirm important facts? Get your client to confirm the Defendant's narrative? Destroy your client's credibility?
Will he ask leading questions? In chief-examination, asking leading questions is not permitted. Leading questions are questions framed in a specific manner with the veiled objective to evoke a specific response to the question so asked. You must forget about your client and place yourself in the shoes of the opposite counsel and frame questions so as to assist your client through the whole process. In cross-examination, asking leading questions is permitted.
There are 2 popular strategies for cross-examination- constructive and deconstructive. In constructive strategy, the opposite counsel will seek to build the Defendant's narrative. One way of identifying this strategy is you will see the opposite counsel becoming extra friendly and warm towards your client in a very progressive manner so that it does not generate suspicion in the mind of your client. But you must be vigilant to see if there is a difference in the demeanor of the opposite counsel. Deconstructive strategy seeks to destroy the credibility of your client. This strategy is extremely popular in movies and TV series as they are emotionally charged, strong worded with exaggerated gestures being used. There is no subtlety to this strategy.
Preparing your client
The more you sweat in training, the less you bleed in battle. You must understand the psyche of our client, what throws them off, what triggers them. These have been observed by the opposite counsel. If your client is an emotional person, they will ask provocative questions to make your client feel desperate. Questions will be based on facts and not on opinions. This is why prepping your client becomes indispensable because the client may be caught off-guard seeing the nature of the questions. Each statement made by your client can make it easier or much more difficult for you in the next stage of proceedings which is arguments. Prep your client to the maximum extent possible. I created a questionnaire consisting of 100 questions just so that our client feels comfortable while being examined. It is like a question bank and answer key that aids students to excel in exams. Guide them through the questions, explain the intentions behind the questions. Once they understand the logic, answering becomes easier. It is important that the entire narrative built by us remains consistent.
Trust your client's ability to do well
Once you have done all that you could, forget about it and prepare for the cross-examination. Trust the client to remember all that you explained and deliver on the same. Trust in your own capacity to deal with any situation that may arise. Advocates climb the stairway to success either due to their track record built over time or delivering on a favorable verdict for your client in a seemingly impossible case. Embrace uncertainty and thrive in chaos! ALL THE BEST!