Aspiring barristers ought to take notice, advises Hardwicke’s Jasmine Murphy

Johnny Depp through Wikimedia Commons (Georges Biard)

An necessary libel trial equivalent to Depp v (1) Information Group Newspapers Ltd (2) Wootton is a good alternative to choose up some advocacy suggestions from the perfect within the enterprise.

With big because of journalist Nick Wallis, who has been stay tweeting from the Excessive Courtroom and has obtained and posted the daily transcripts on his website, I’ve collated some prime suggestions to date.

1. Confrontation in cross-examination

One of the highly effective methods of cross-examination is confrontation. In The Strategy of Advocacy by John Munkman, that is described as confronting the witness with an awesome mass of damaging details which he can’t deny and that are inconsistent along with his proof.

It’s a harmful method, however when it fails to destroy it might nonetheless reach weakening. That is the method that Sasha Wass QC has constantly deployed with Johnny Depp. For instance, at web page 50 of the transcript she poses a simple confrontational query on the morning of the primary day of trial. Then, having received the denial she was anticipating, she has the idea to take Depp by way of the proof:

Wass QC: “Do you’ve got an anger downside?”

Depp: “No, I don’t have an anger downside.”

Wass QC: “…All proper, we’re going to have to have a look at some paperwork then.”

Which leads us on properly to…

2. ‘Sedley’s Legal guidelines of Paperwork’

This trial has proved no totally different to some other trial in that ‘Sedley’s Laws of Documents‘ are already in play. Regardless of the perfect efforts of each authorized groups to marshall the trial bundles (which have been recommended by the choose) I famous that by the primary couple of days, no less than 4 of Sedley’s Legal guidelines had proved true:

• Third Regulation: No two copies of any bundle shall have the identical pagination.

• Fourth Regulation: Each doc shall carry no less than three numbers somewhere else.

• Sixth Regulation: Not less than 10% of the paperwork shall seem greater than as soon as within the bundle.

• Seventh Regulation: As many photocopies as practicable shall be illegible, truncated or cropped.

With the intention to play Sedley’s Legal guidelines Bingo you may refresh your reminiscence of them from the blog of my colleague, Gordon Exall.

3. What to name the choose?

Counsel ought to at all times inform the witness the right mode of handle for the choose. Nevertheless, below the strain of the second, some witnesses neglect as Depp did right here at web page 46 of the transcript, briefly demoting Mr Justice Nicol a degree or two:

Nicol J: “And I believe you agreed?”

Depp: “Sure, sir, your Honour, I imply your Lordship.”

4. The right assertion of reality

After taking their witness to their witness assertion and confirming their signature, I usually hear my opponents asking: “Are the contents of this witness assertion true and proper in accordance with the perfect of your data and perception?” or phrases just like that impact.

This can be a unhealthy behavior to get into. Don’t let it occur to you! It isn’t the wording of the assertion of reality and waters down its impact significantly. As a substitute, hold it easy, correct and temporary, as David Sherborne did with Depp at web page 22 of the transcript:

Sherborne: “I’m grateful. Are you able to affirm to the court docket, is that your signature?”

Depp: “Sure, it’s.”

Sherborne: “Are you able to affirm that the details said on this witness assertion are true?”

Depp: “Sure.”

5. Hypothesis

One witness, Samantha McMillen, was requested a number of questions by Wass QC alongside the traces of, “Are you able to consider any cause why Ms Heard would ship images of her accidents to X if she didn’t have any accidents?” (see web page 1009 and web page 1025 of the transcript for examples).

This comes near asking the witness to invest on what another person was pondering. Typically this sort of query is requested within the hope {that a} witness will fall into the lure of answering it, so it needs to be objected to earlier than the witness solutions.

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On this occasion, the query was objected to (web page 1009) however the questions had been allowed (web page 1010) on the idea that if the witness knew of a cause why Ms Heard needs to invent allegations she ought to say it. These questions are little doubt laying a foundation for a line of argument that may come out in submissions. The issue with this sort of query is that it might probably result in the sort of awkward re-examination we see right here (at web page 1036 of the transcript):

Sherborne: “You had been requested quite a few questions on why Ms Heard may need lied about this, may need lied about her accidents. Are you able to learn minds, Ms McMillen?”

Nicol J: “Nicely, now, I believe that is coming near facetious Mr Sherborne.”

6. Control the choose

The necessary piece of proof you’ve simply elicited from a witness is nugatory if the choose misses it. Control the choose, as Sherborne was doing at web page 31 of the transcript, and provides the choose time to make a remark:

Sherborne: “Thanks, Mr Depp. Can I ask you about one additional matter. I’m simply going to attend for his Lordship to complete his notice. (Pause)”

7. No nodding canine

One other tip on your witnesses is to remind them that they should use their phrases to reply. Nicol J quickly reminded Depp of this at web page 40.

Nicol J: “Only a second, please. Mr Depp, recordings are being made, however to ensure that the recording to report your reply, you have to articulate a solution. I’ve seen that you simply nodded your head at some factors at what Ms. Wass was asking you.”

Depp: “Certainly.”

Nicol J: “However you do really want to talk.”

Depp: “Sure, head nods don’t come out on microphones. I’m sorry.”

Nicol J: “Head nods and head shakes don’t come out on the microphone, you might be fairly proper.”

Depp: “I perceive. Thanks, your Lordship.”

8. Brief questions

Attempt to hold your questions brief and crisp. A longwinded query, or a query that accommodates multiple proposition inside it, may confuse a witness and result in a solution that can’t be relied upon. Nicol J intervened to interrupt down a query throughout Wass QC’s cross-examination of Depp at age 84 of the transcript.

Wass QC: Did you think about it proportionate to choose up a chunk of wooden and threaten folks with it, screaming obscenities on the photographers, because it says on this report, flipping out, because it says on this report? Is {that a} proportionate response?”

Nicol J: “Nicely, there’s a premise in that query, Ms Wass, which is maybe higher handled by the prior query, did Mr Depp wield a chunk of wooden on the photographers?”

Wass QC: “Sure. Mr Depp, whenever you had been arrested, did you’ve got a chunk of wooden whenever you had been questioned by police, because it says right here?”

Depp: “Sure, ma’am.”

9. Difficult proof and re-examination

Re-examination is a tough process to start with. It’s made much more sophisticated in case your opponent has, opposite to what you had been anticipating, not challenged part of your witness’s proof. Nevertheless, the rule stays that re-examination is solely to cope with issues that got here out in cross-examination as we noticed when Mr Sherborne was re-examining Mr Depp (at web page 700 of the transcript):

Sherborne: “Can I take you to the following alleged incident, which is Thanksgiving, 26th November 2015. Mr Depp, this was not even put to you by Ms Wass, however I have to ask you just a few questions, as Ms Heard will little doubt give proof about it.”

Nicol J: “That is Thanksgiving of which yr?”

Sherborne: “November 26th, 2015.”

Wass QC: “My Lord, it can’t come up out of cross-examination as a result of I didn’t cope with it, it’s in Mr Depp’s assertion and, in my submission, it isn’t acceptable to re-examine with regards to one thing that has not been the topic of cross-examination. That’s the rule.”

Sherborne: “My Lord, the issue is that this, as a result of Ms Wass didn’t truly put it to Mr Depp, she has not challenged his proof.”

Wass QC: “If she has not challenged his proof, there we’re.”

Sherborne: “My Lord, so be it.”

Nicol J: “Is just not Ms Wass proper that re-examination must be confined to issues that had been put in cross-examination.”

Sherborne: “My Lord, it does, but when Ms Heard goes to present proof about it, your Lordship will see –”

Nicol J: “Then you may make your factors sooner or later that it was not put.”

Sherborne: “I’ll, my Lord. (To the witness) Can we flip then to the following supposed incident, which was 15th December 2015, incident 12 in December 2015.”

10. It occurs to us all

It’s reassuring to see that QCs may be clumsy too. This occurred to Wass QC on day seven of the trial:

Wass QC: “These had been texts — I believe I’ll have the incorrect reference, truly. Would you give me a second?”

Depp: “Sure, ma’am.”

Wass QC: “(Pause) My Lord, I’m sorry. I received distracted as a result of I’ve managed to pour water throughout my papers. (Pause) It’s tab 3. It’s solely my fault. Tab Three are you able to go to, please?”

This week the main focus of the case turns to the defence and the proof of Ms Heard. This will probably be a possibility to watch these expert advocates in motion once more. If you want to see extra suggestions for witnesses giving proof in a civil case, you can watch a short video here.

Jasmine Murphy is a barrister at Hardwicke.

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