Steven Donziger has been detained at home since August 2019, the result of a Kafkaesque…
By Jasmine Murphy
Aspiring barristers should take note, advises Hardwicke’s Jasmine Murphy
An important libel trial such as Depp v (1) News Group Newspapers Ltd (2) Wootton is a great opportunity to pick up some advocacy tips from the best in the business.
With huge thanks to journalist Nick Wallis, who has been live tweeting from the High Court and has obtained and posted the daily transcripts on his website, I have collated some top tips so far.
1. Confrontation in cross-examination
One of the most powerful techniques of cross-examination is confrontation. In The Technique of Advocacy by John Munkman, this is described as confronting the witness with a great mass of damaging facts which he cannot deny and which are inconsistent with his evidence.
It is a destructive technique, but when it fails to destroy it may still succeed in weakening. This is the technique that Sasha Wass QC has consistently deployed with Johnny Depp. For example, at page 50 of the transcript she poses a straightforward confrontational question on the morning of the first day of trial. Then, having got the denial she was expecting, she has the basis to take Depp through the evidence:
Wass QC: “Do you have an anger problem?”
Depp: “No, I do not have an anger problem.”
Wass QC: “…All right, we are going to have to look at some documents then.”
Which leads us on nicely to…
2. ‘Sedley’s Laws of Documents’
This trial has proved no different to any other trial in that ‘Sedley’s Laws of Documents‘ are already in play. Despite the best efforts of both legal teams to marshall the trial bundles (which have been commended by the judge) I noted that by the first couple of days, at least four of Sedley’s Laws had proved true:
• Third Law: No two copies of any bundle shall have the same pagination.
• Fourth Law: Every document shall carry at least three numbers in different places.
• Sixth Law: At least 10% of the documents shall appear more than once in the bundle.
• Seventh Law: As many photocopies as practicable shall be illegible, truncated or cropped.
In order to play Sedley’s Laws Bingo you can refresh your memory of them from the blog of my colleague, Gordon Exall.
3. What to call the judge?
Counsel should always tell the witness the correct mode of address for the judge. However, under the pressure of the moment, some witnesses forget as Depp did here at page 46 of the transcript, briefly demoting Mr Justice Nicol a level or two:
Nicol J: “And I think you agreed?”
Depp: “Yes, sir, your Honour, I mean your Lordship.”
4. The correct statement of truth
After taking their witness to their witness statement and confirming their signature, I often hear my opponents asking: “Are the contents of this witness statement true and correct according to the best of your knowledge and belief?” or words similar to that effect.
This is a bad habit to get into. Don’t let it happen to you! It is not the wording of the statement of truth and waters down its effect considerably. Instead, keep it simple, accurate and brief, as David Sherborne did with Depp at page 22 of the transcript:
Sherborne: “I am grateful. Can you confirm to the court, is that your signature?”
Depp: “Yes, it is.”
Sherborne: “Can you confirm that the facts stated in this witness statement are true?”
One witness, Samantha McMillen, was asked several questions by Wass QC along the lines of, “Can you think of any reason why Ms Heard would send photographs of her injuries to X if she didn’t have any injuries?” (see page 1009 and page 1025 of the transcript for examples).
This comes close to asking the witness to speculate on what someone else was thinking. Often this kind of question is asked in the hope that a witness will fall into the trap of answering it, so it should be objected to before the witness answers.Secure your place: The Legal Cheek Virtual Pupillage Fairs 2020
In this instance, the question was objected to (page 1009) but the questions were allowed (page 1010) on the basis that if the witness knew of a reason why Ms Heard wants to invent allegations she should say it. These questions are no doubt laying a basis for a line of argument that will come out in submissions. The problem with this kind of question is that it can lead to this type of awkward re-examination we see here (at page 1036 of the transcript):
Sherborne: “You were asked a number of questions about why Ms Heard might have lied about this, might have lied about her injuries. Can you read minds, Ms McMillen?”
Nicol J: “Well, now, I think this is coming close to facetious Mr Sherborne.”
6. Keep an eye on the judge
The important piece of evidence you’ve just elicited from a witness is worthless if the judge misses it. Keep an eye on the judge, as Sherborne was doing at page 31 of the transcript, and give the judge time to make a note:
Sherborne: “Thank you, Mr Depp. Can I ask you about one further matter. I am just going to wait for his Lordship to finish his note. (Pause)”
7. No nodding dogs
Another tip for your witnesses is to remind them that they need to use their words to answer. Nicol J soon reminded Depp of this at page 40.
Nicol J: “Just a moment, please. Mr Depp, recordings are being made, but in order for the recording to record your answer, you need to articulate an answer. I have seen that you nodded your head at some points at what Ms. Wass was asking you.”
Nicol J: “But you do actually need to speak.”
Depp: “Yes, head nods do not come out on microphones. I am sorry.”
Nicol J: “Head nods and head shakes do not come out on the microphone, you are quite right.”
Depp: “I understand. Thank you, your Lordship.”
8. Short questions
Try to keep your questions short and crisp. A longwinded question, or a question that contains more than one proposition within it, may just confuse a witness and lead to an answer that cannot be relied upon. Nicol J intervened to break down a question during Wass QC’s cross-examination of Depp at age 84 of the transcript.
Wass QC: Did you consider it proportionate to pick up a piece of wood and threaten people with it, screaming obscenities at the photographers, as it says in this report, flipping out, as it says in this report? Is that a proportionate response?”
Nicol J: “Well, there is a premise in that question, Ms Wass, which is perhaps better dealt with by the prior question, did Mr Depp wield a piece of wood at the photographers?”
Wass QC: “Yes. Mr Depp, when you were arrested, did you have a piece of wood when you were questioned by police, as it says here?”
Depp: “Yes, ma’am.”
9. Challenging evidence and re-examination
Re-examination is a difficult task to begin with. It is made even more complicated if your opponent has, contrary to what you were expecting, not challenged a part of your witness’s evidence. However, the rule remains that re-examination is solely to deal with matters that came out in cross-examination as we saw when Mr Sherborne was re-examining Mr Depp (at page 700 of the transcript):
Sherborne: “Can I take you to the next alleged incident, which is Thanksgiving, 26th November 2015. Mr Depp, this was not even put to you by Ms Wass, but I need to ask you a few questions, as Ms Heard will no doubt give evidence about it.”
Nicol J: “This is Thanksgiving of which year?”
Sherborne: “November 26th, 2015.”
Wass QC: “My Lord, it cannot arise out of cross-examination because I did not deal with it, it is in Mr Depp’s statement and, in my submission, it is not appropriate to re-examine on the subject of something that has not been the subject of cross-examination. That is the rule.”
Sherborne: “My Lord, the problem is this, because Ms Wass did not actually put it to Mr Depp, she has not challenged his evidence.”
Wass QC: “If she has not challenged his evidence, there we are.”
Sherborne: “My Lord, so be it.”
Nicol J: “Is not Ms Wass right that re-examination needs to be confined to matters that were put in cross-examination.”
Sherborne: “My Lord, it does, but if Ms Heard is going to give evidence about it, your Lordship will see –”
Nicol J: “Then you can make your points in due course that it was not put.”
Sherborne: “I will, my Lord. (To the witness) Can we turn then to the next supposed incident, which was 15th December 2015, incident 12 in December 2015.”
10. It happens to us all
It is reassuring to see that QCs can be clumsy too. This happened to Wass QC on day seven of the trial:
Wass QC: “These were texts — I think I may have the wrong reference, actually. Would you give me a moment?”
Depp: “Yes, ma’am.”
Wass QC: “(Pause) My Lord, I am sorry. I got distracted because I have managed to pour water all over my papers. (Pause) It is tab 3. It is entirely my fault. Tab 3 can you go to, please?”
This week the focus of the case turns to the defence and the evidence of Ms Heard. This will be an opportunity to observe these skilled advocates in action again. If you would like to see more tips for witnesses giving evidence in a civil case, you can watch a short video here.
Jasmine Murphy is a barrister at Hardwicke.