For some, it is the sole reason why they are at law school - for that one moment where they get to cry out "You can't handle the truth".
Witness Examination is a simulated civil or criminal trial. The trial is run from the opening statements, through the examination of witnesses to the closing addresses. Sometimes it involves quick thinking, but the advocacy skills you'll develop will be priceless.
Most Witness Examination competitions, including the National Finals held annually at ALSA Conference, run with one barrister and one non-competitive witness for each side. A few universities run the competition with two barristers per side.
WITNESS EXAMINATION: REFLECTIONS
Justice Michael E Rackemann – Justice Rackemann was appointed to the Queensland District Court and Queensland Planning and Environment Court in 2004.
In 1985 I arrived in Adelaide to attend the ALSA conference and, in particular, to be part of the University of Queensland’s team in the mooting competition. I remember the conference fondly for the great camaraderie among the students from the various universities, the enjoyable social engagement which that fostered and the valuable experience of participating in both the mooting competition and the witness examination competition. I was fortunate enough to be a joint winner of the latter.
My participation in the witness examination competition was somewhat impromptu. I was unaware of the competition until I arrived in Adelaide, but was nevertheless given the opportunity to nominate and participate. At the time I saw it as an interesting addition to my role on the mooting team, which was my main focus. As it transpired however, the witness examination competition not only afforded me some success, but also taught me a valuable lesson, which stood me in good stead in my later career.
I was, at the time, a confident young man and, to be frank, somewhat over confident. I had experienced some success in debating and public speaking in school days, had solid grades at law school, and had been joint winner of the mooting prize at university. I was also the associate (then called clerk) to a district court judge and had the benefits of being comfortable in a courtroom environment and of having seen many counsel in action. I thought that I was ready to emulate the best of what I had seen. As with many young aspiring barristers, I was particularly excited about the prospect of cross-examination.
Each competitor in the witness examination competition was required to examine one witness in chief and cross-examine another. Each competitor was also expected to take proper objection to questions asked by opposing counsel. The contest involved a mock personal injuries/motor vehicle accident case in which I played the role of counsel for the plaintiff. The central issue was whether the defendant, who claimed to have been dazzled by sunlight, was negligent in colliding with the plaintiff.
Most competitors approached the matter by seeking either to establish or to disprove that the defendant had indeed been dazzled. I took a different course, by cross-examining to establish that the defendant’s vision, if obscured by sunlight, must have been obscured for sometime, making it negligent for him/her to have continued on their course instead of altering course, stopping or doing something else to avert the danger of driving with obscured vision. That approach found particular favour with the presiding judge. I was also told that I had done well in taking objection to the questions of opposing counsel. The lesson which I learned that day however, had nothing to do with the things I did reasonable well, but with the one thing that I did not, examination in chief.
I had, as an associate, seen many examinations in chief. They seemed so uneventful, so tame and so unchallenging in comparison with cross-examination. I had no doubt that this would be the easiest part of the competition and I gave it relatively little thought before I called my witness. To my surprise however, I found it to be much more difficult than I imagined. I was less successful at it than the person with whom I ultimately shared the prize. It was that day I realised, for the first time, that in order for the account of a witness to be elucidated in a clear, logical and persuasive way, an examination in chief must be carefully planned and well executed. I came to appreciate the skill involved in producing a seemingly uneventful examination in chief. My later experience at the bar taught me that not only did a well planned and executed examination in chief properly elucidate the account of a witness, but also made it more difficult for the cross-examiner to diminish a witness whose evidence in chief appeared credible.
An unlikely post script is that the then new trophy which I took home with me to the University of Queensland was never returned, despite my understanding to the contrary. Indeed, it became ‘lost’ for more than two decades. I spotted it, by chance, in the law school library only last year when I was showing my son around. The old trophy continued to be presented as the trophy in those ‘lost’ years. I am pleased that the ‘new’ trophy has now been returned to ALSA.
I wish ALSA all the best and I hope that each participant in the ALSA Conference will take away both fond memories of the event and a lesson of their own from their experience.