Solicitor Ranjit Uppal shares his approach to preparing for a contested hearing and cross-examination of a witness.
Preparing for trial
A good care lawyer will tell you that what happens at the beginning of a case will often dictate the direction the case will go. This is because preparing a case for trial begins on day one – when you’re first instructed to act for a client, not day one of the final hearing.
Obtaining evidence to support your client’s case
Part of preparing your case is arranging for disclosure of evidence at the first hearing. If you act for a parent, in most cases your client has ‘parental responsibility’.
This means you do not have to wait for permission from the local authority, the child’s solicitors or a court order to ask expert witnesses to disclose relevant evidence they hold about your client’s child. You simply need to get your client’s written consent to ask for the information.
The sooner you have this information, the sooner you can start preparing.
It’s important to get disclosure as soon as possible. Do not wait for the first hearing, as your client may wish to challenge an application for an interim care order. Any delay in obtaining evidence to support your client’s case means a delay in getting listed for a contested interim hearing.
It’s always worth considering very carefully what case management decisions are needed at the first hearing. Do not simply glance at the local authority draft case management order.
- what is the local authority alleging in its threshold document – what are ‘the facts’?
- which items in threshold will your client accept and dispute?
- what are the local authority’s proposals for contact?
- what assessments will your client have to engage in?
Establishing the facts
Think critically about the quality of the evidence on which the facts of the case are based. Consider the statements filed by witnesses in support of the facts each party is relying on.
Go beyond the witness statements and look at the source materials: are there any handwritten notes of meetings with professionals made at the time? This usually depends on your case, and whether it’s neglect, physical injury, sexual abuse or emotional harm that’s alleged.
You’ll need to consider what evidence might be available to dispute or support any alleged facts. For example, you may wish to consider handwritten notes from the following sources.
For example, notes made by the:
- health visitor
- hospital staff
- paramedics and ambulance service
- speech and language clinic
- Training records
- School safeguarding policies
- Any disclosures within the child’s school file
- Any details of specialist services provided by the school for the benefit of the child
- All statements
- Handwritten notes in relation to any witnesses the investigating officer or their team spoke to
- Notes of any discussion between the police and medical staff – what information was shared?
When preparing for a trial, I always try to read any statements and disclosure documents as I get them. I mark my own copies with my questions and highlight key paragraphs. I also make sure this marked copy is paginated in my bundle.
The sections you highlighted and notes you made will help you process this information faster when you re-read these documents for trial six months later.
Considering the threshold criteria
Consider the facts of the case from the judge’s perspective at the outset. The judge will want to know:
- the background to the case
- which issues are relevant
- what the agreed facts are and which facts are not agreed
- the threshold criteria the local authority are relying upon, and which of the facts you have summarised can be agreed in threshold and which cannot
After reviewing the factual evidence, I remind myself as to the civil standard of proof, which is the balance of probabilities test. After considering the factual evidence, I review the threshold the local authority is seeking to establish and consider whether I should advise my client to concede or challenge it.
You should discuss threshold with your client as early as possible and advise your client, where appropriate, to make concessions.
Table of evidence
When preparing your factual case for trial, it’s also useful to develop a method to:
- recall what each witness has stated
- cross-reference instances where they might have given different responses to the social worker, police, school and so on.
Creating a table of evidence can be an effective way to do this. It helps to:
- identify threshold facts in chronological order
- set out the parents’ response to each factual issue and where different accounts may have been given
- compare the responses on all relevant issues
I find this method very helpful when preparing cross-examination questions for witnesses if they may have given different responses to professionals on different dates.
|Date||Allegation||Mother||Father||Witness 1 etc|
|24.12.2014||Bruising to child's cheek||C5 para 16 states||C22 papa 1 states||C67|
|C67 para 15 states||C56 para 7 states|
|F. police interview||F. police interview|
|G – mum states to social worker|
|8.1.17||Bruising to ear||C6 para 19||C27 para 35|
|C68 para 8|
Depending on the type of case you’re preparing, it may be helpful to have similar chronological tables for different issues.
For example, you might want to chart what happened in the 24 to 48 hours before a child presented at hospital with a suspicious injury. Or you might want to chart what happened in the time leading up to a disclosure being made by a child.
The table would include statements from:
- those who saw the child at home at 8am
- the person(s) who took the child to school
- the teacher(s) who saw the child
- the person(s) who collected the child
If each entry is listed by time and date, with page references for each adult who saw the child and how the child presented, you can quickly familiarise yourself with the evidence and where the information is recorded in the bundle.
This is very useful if you have more than five bundles.
Preparing to cross-examine a witness
I recommend that you begin by looking at your evidence table and identifying the following for each witness:
- of the issues you’ve identified, on which has the witness provided written evidence, or on which issues can the witness assist the court?
- of those identified, on which issues does the witness agree with your client’s instructions? If they agree, it’s unlikely you need to ask questions about this issue
Now take the remaining identified issues – those where the witness does not agree with your client’s evidence – and list them in date order. Use the evidence table to cross-reference where in the bundle different accounts have been given by the witness. This will form the basis of your cross-examination.
Having listed the issues you need to challenge the witness on, consider what types of questions need to be asked. New advocates may find it helps to write these out but, with experience, setting out a few key words under each issue should be enough to develop a line of questioning.
Becoming a confident advocate
If you do not have much advocacy experience, it can sometimes feel overwhelming when you start preparing for a contested hearing – whether it’s a one-day or a five-day trial.
By following some of these tips, you can:
- feel confident you know your case inside out
- easily identify what the issues are and what the evidence is
- quickly refer to court bundles and page references when considering witnesses’ evidence
Remember that the first step to becoming a confident advocate is being confident about your knowledge of your case.