After we filed a suit or case, most client are concerned about when they can win the case (although the editor has said that they is not guaranteed won case for hundreds of times, they still turn a deaf ear to it); the most frequently asked question is when will I have to attend court?
Although the editor knows that the clients really want to go to court as soon as possible to give their testimony to expose the opponent. But before that, there are many procedures and documents that needs to be sorted and handled by our lawyers. During this period of time, the client only needs to cooperate with the lawyer and provide the required and necessary information and documents.
The purpose of the trial is to allow the judge to excavate and adopt the whole story and evidence given by both parties. The judge will not give you a verdict in favour of you just because your statement presented is so presentable. After all, this is not a story telling contest.
How does the judge adopt evidence? There are two ways, which is, the oral evidence and documentary evidence. The documentary evidence is obviously the documents related to this case in order to support the suit and this provided by your client. It can be a contract, payment evidence, phone whatsapp chat history, bank account list, etc.
Oral evidence is evidence in which we would call the witness to testify in court. Therefore, the client does not come to the court to quarrel or fight, the main purpose of him coming to court is to be a witness. Of course, he can also bring more relevant people related to the case to become his witnesses (but it is not that the more witnesses the better, after all, some witnesses are tend to worsen the case as they give contradicting evidence).
There are three procedures for witnesses to give oral evidence. We shall state each accordingly:
1. Examination in Chief (EIC)
EIC means that lawyer will ask the witness about what happened. This is to ask from the perspective of which we called the Five W and One H (5W1H)
“What? Who? Where? When? Why? How?”
The answer and description of the witness must be from the witness himself, and the lawyer can only ask relevant open questions. For example:
P’s Lawyer : On 01.04.2020, you went to the house of your friend, what did you do there?
Then the witness can answer,
P’s Witness : Oh, my friend asked me to eat at his house. After we finished our meal, he asked me to sign a document. After I signed the documents, I went home.
2. Cross Examination (X-Exam)
I believe readers are more familiar with cross-examination. Readers that watched Hong Kong TV dramas are familiar with these lines: “Witness, please answer yes or no” or “Witness, you lied.” Obviously, these roles were played by the opposing lawyer.
The opposing lawyer can cross-examine any relevant questions about the witness’s statements and documents. The question asked can be a leading type of questions meaning to guide you to say yes, or no. Usually, the witness will be questioned by the opposing lawyer.
Retuning back to scenario in the EIC above:
D’s Lawyer : Did your friend show you the document before signing it?
P’s Witness : Yes
D’s Lawyer : So yes. Did the friend force you to sign that document?
P’s Witness : No…but……..
D’s Lawyer : I only asked if your friend forced you to sign, but didn’t ask you to explain. Now I am a lawyer. I ask you questions, and you can only answer them based on my questions.
Seeing this, readers should not be surprised as when we cross-examine, we can indeed order witnesses not to add their own explanations or try to explain. During cross-examination, all the initiative and rhythm are in the hands of the opposing lawyer.
3. Re Examination
In the re-examination session, in fact, it is to give the witness the opportunity to explain some of the answers that the other’s lawyer cross-examined just now. At this point of time, the witness who was restricted to speak during cross examination can finally had the opportunity explain.
The lawyer can respond to the unfavorable confession made by his witness when he was answering the cross-examination, and then do the clarification. The witness can now state his reason as to why he answered no previously.
Back to the scenario above:
P’s Lawyer : Just now the lawyer asked you if your friend forced you to sign the documents. You answered No. Can you explain to the court why you have signed the document.
Witness : Your Honor, when my friend asked me to sign the document, he told me that the document was for the previous repayment of my outstanding bill of RM500 and asked me to confirm it. However, he misled me to transfer my luxury bungalow to him. I can’t read, and I don’t know how to read Mandarin or English; I signed it completely based on his statement.
Judge : (Oh, it turns out that is the case.)
Every witness must be questioned, cross examined and re-examined.
Of course, the most important thing is that clients must understand the entire case history and related documents. Then, during cross-examination, you can answer truthfully and confidently, instead of making random answers that lead any untruthful evidence, which will lower the judge’s impression of you.
BY WINSON TAN
Note: This article is for reference only and does not constitute legal advice. Therefore, if readers have any legal questions or needs, they should seek professional legal advice. If the reader suffers any loss by relying on this article, the author will not be held responsible.