When a law suit is filed in court, usually, witnesses are called to give their testimony. Testimony can be contained in a witness statement, or in an affidavit. We have previously written about affidavits HERE and HERE.
When a witness swears an affidavit to be relied on as testimony in a court of law, sometimes, he or she may be called to be cross-examined on that affidavit.
If you are the witness so called, or the lawyer who is representing such a client, here are 5 tips for effective examination on an affidavit.
- Draft Properly
The first law of trial advocacy is, “Prepare. Prepare. Prepare”. It therefore follows that when you are going through the case with the client, pleadings must be drafted properly. Proper drafting of pleadings requires that the document be well researched, facts be clearly and concisely stated, and the laws regarding that document be complied with.
It is important that the affidavit be drafted properly to ensure its admissibility before the court and more so, because an affiant is bound by his or her words as contained in the affidavit.
- Prepare your witness
The affiant must be well prepared. He or she must know the facts of the case, and he should be able to answer questions raised on his affidavit, even when they are not directly asked.
Also, do your homework and get to know what key points your witness should restate in court. Know where all your supporting documents are, and have authorities for presentment to court, ready.
- Keep the affidavit within the issues of the case
When making the statement, the affiant must keep the affidavit only within the issues of the case. For example, the court may not be interested in some details about the affiant, if they are not in response to the issues raised. If the case is about custody of the child, and the father seeks the courts indulgence to grant him custody of his 7 years old daughter, the court may not be interested in knowing that the father’s favourite vodka is Grey Goose.
It is also important to remember that during cross examination, Counsel is not limited to the content of the affidavit but to the issues in the application or motion. If the affidavit is not limited to the issues of the case, it gives lee way to opposing Counsel to pry into the other matters as introduced.
- Know when to object
“Objection, Your Honour!” at every question may not be a smart strategy. Counsel usually object to questions which are unfavourable to the affiant or which do not confirm to the laws of evidence. Trying to shield your witness from answering questions by wading in and obstructing cross examination is not a good strategy in the long run. Just draft proper documents and prepare your witness.
However, raise your objection when the affiant is harassed or when opposing Counsel asks questions which are outside the scope of issues in the case.
- Do not forget about the case
It is a risk, when arguing an application or examining a witness on an application, one may forget about the general case. But it is advisable to keep one foot on the motion, and the other on the case. In case you discover evidence on an application, it may be useful for the main case.
However, your examination should not be geared towards discovery of new evidence. Remember, after examination, there is cross examination. Also, control the witness. They do not have to tell stories in digression. Permitting digression may be a recipe for a shot in the foot.
These tips can be borrowed and varied every time there is a witness in the dock.
Feel free to call on us and make further inquiries on examination of witnesses.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 3, Issue 4 of March 23rd, 2018.
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