Five questions you should NEVER ask on cross-examination

A well-crafted cross examination is like a classical sculpture, every extra bit of marble chipped away until all that is left is the essential form of David.  A skilled cross-examiner asks only those questions required to make the argument and nothing more. Cross-examining effectively is just as much about what not to ask as it is about what to ask. Here are five kinds of questions that have no place in well-executed cross-examination at grievance arbitration:

1.        Any question you don’t know the answer to

Cross-examination is for poking holes in the employer’s case – pointing out contradictions or omissions and undermining witness credibility. It is not for finding things out. Pre-hearing disclosure is for finding things out.

If you’re planning your cross-examination and you find there is a question you want to ask that you don’t know the answer to, ask the employer for particulars on that issue. Get an order from the arbitrator for disclosure, if you have to. But whatever you do, don’t set yourself up for a surprise from an employer witness.

2.       Questions about the employer’s motivation

You may know full well that the employer witness hates your grievor’s guts and imposed discipline because of a personal grudge. But no employer witness (especially if properly prepared by employer counsel) is going to admit that on the stand.

That doesn’t mean interpersonal animosity is irrelevant: if the theory of your case rests on a personal grudge, you will have to establish that in evidence. The tricky thing here is that you’ll have to establish objective facts that will lead the arbitrator to an unavoidable inference that there is a subjectively-held grudge. If there aren’t any objective facts that lead to that conclusion, that might be a sign you should be looking to settle the grievance.

If you can’t prove your case without asking, “You don’t like the grievor, do you? That’s why you singled her out for excessive discipline, isn’t it?”, it’s probably not winnable.

3.        Questions that put conclusions to the witness

"You were present at the meeting and didn't raise the issue of the exposed asbestos -- you don't really care about employee safety, do you?” “Weren’t you overreacting when you terminated the grievor after such long, unblemished service?” Even if every question you have asked and fact you have established to that point leads overwhelmingly to the conclusion you put to the witness, you will never ever get a properly prepared employer witness to take that final step and agree – and you don’t need to anyway.

There are two reasons you should not put a conclusion to the witness.

First, you’re giving the employer witness an opportunity to explain their side of the story and justify their actions. That is the last thing you want to do on cross-examination.

Second, it’s the arbitrator’s job to draw conclusions, not the witness's.

4.        “Why?”

 “Why did you impose a harsher penalty on the grievor than her coworkers?” “Why didn’t you take action to stop this problem earlier on?” “Why did you ignore all of the evidence that the grievor was innocent?”

Never, ever ask these questions. “Why” questions invite the witness to justify the employer’s actions. If you are cross-examining and employer witness and start to feel the word “Why?” forming on your lips, freeze! Don't say it!

5.       The one question too many

There is an apocryphal story of a criminal trial in which the accused had allegedly bit the victim’s nose off in a fight. An eyewitness testified that he saw it happen. Defence counsel established that this eyewitness was in the vicinity bird watching. He was looking at the birds in the trees, with his back to the location where the fight occurred. Defence counsel asked, “When is the first time you knew that something was wrong?” The eyewitness responded: “When I heard the victim scream.”

Great. The supposed eyewitness isn’t really an eyewitness after all. He didn’t see what happened.

But defence counsel then asked the one question too many: “How do you know my client bit off the victim’s nose?”

The witness’s answer: “I saw him spit it out.”

(You can view a great retelling of this story here, starting at about 35 minutes)   

The lesson? The moment you have what you need to make your argument to the arbitrator, stop. Plan your cross examination with the end in mind: what do you need to get out of this witness so that you can make your closing argument? Askthose questions and nothing more.

Susanna Quail practices labour, employment, human rights, and regulatory law at Allevato Quail & Worth.