Nigel's Eyes

20230510 Ethics and Morality in cross examination

I had an interesting discussion yesterday with a table filled with lawyers, academics and others about the conduct of litigation.

One particular aspect stood out: let's talk about ethics in the trial itself.

It was a fascinating topic that in just a few minutes drew attention to some remarkably complex issues.

The first was the attitude of lawyers to their counterparts.

There was a broad agreement that litigation is hostile and that lawyers should expect a certain degree of forceful behaviour from their opposite number - and should be prepared to give it back. But what is forceful and what should a lawyer do if the force goes too far?

There was no dispute : it's got to be serious, not simply "he was nasty to me" or similar and this is important because an allegation of unprofessional conduct can destroy careers. But concern was noted that there is, increasingly, a tendency for some advocates to use, for example, gender politics, as a reason to complain to a judge or, even, a professional body. In a multi-racial, multi-generational, multi-gender group, such a complaint or report was widely regarded as improper.

Abuse and bullying of the sort frequently seem in US TV Courtroom dramas have no place and are unprofessional. And in any case, any lawyer behaving like that is not only likely to result in a cross judge but one whose capacity for sympathy with the advocates case is severely diminished.

Next we turned to the treatment of witnesses. A non-litigator said that he'd seen lawyers try to confuse witnesses. I pointed out that that's the job: an advocate is required to use any and all means that are within the law and within the rules of court to prosecute his client's case to the best of his ability, Cross-examination is, by definition, designed to probe and test the truth of the evidence. Unless an advocate oversteps an invisible line of aggression then, basically, and so long as his conduct is within the rules of court, then there should be no grounds for complaint. So, physical or other threats are not - and should not be - permitted. But tricking a witness into making a statement which is inconsistent with an earlier statement, is actually the whole point of cross examination.

And yes, it's unkind but unkind does not mean unethical.

That led to a fascinating question: is there a division between ethics and morality in cross examination.

The conclusion amongst the litigators was that there is and that it's clear water. In fact, there is it is a matter of professional ethics to adopt any and all legitimate tactics to disprove a witness' contention in cross examination. Any advocate who does not do so is not properly serving his own client and is therefore in breach of his professional ethics.

And he must do so, even if it's unkind and unfair and even though he, the advocate, considers it immoral.

Further, he must press and widen the point, making it difficult for the other side to repair the damage in re-examination.

The litigators saw this as the only available course; the non-litigators thought it was brutal and unfair.

The differing opinions were interesting. As a life-long litigator (even now I approach most of what I do with a litigator's mind) I have no qualms about pressing a witness. Those who have never spent time in a court, appeared to have a very different view of an adversarial process. But they had no answer as to what they might want to put in its place.