Index

March 22 , 2022

Repeating a Cross-Examination Question

February 7 , 2022

Non-Prosecution Excuses

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021

Urgent!

December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the
Handbook

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

Welcome

Côté’s Commentaries

© 2016-2022 J.E. Côté

REPEATING A CROSS-EXAMINATION QUESTION

A recent decision contains a brief dictum that counsel cross-examining cannot repeat a question asked before. It implies only narrow exceptions. (Kostic v. Scott 2022 ABQB 188)

Over about 55 years, I have read a vast number of transcripts of cross-examinations from England and Alberta, many by top-flight counsel and very experienced judges. Some of those cases were very high-profile, some famous. And I have read in detail a great many textbooks and court decisions about cross-examination. For this blog, I reread a number of textbooks from Commonwealth countries. This new suggestion to ban repetition surprises me. It certainly was unheard of in Alberta, in any procedural area, until a few years ago.

The traditional textbook is Harris’s Hints on Advocacy, which went through 18 editions, and was then reprinted at least three more times. The last edition says that courts give considerable latitude to counsel cross-examining. If the judge thinks that questions are simple repetition, the judge may seek to abbreviate the examination. But if that counsel has a plan, it is his or her duty to assert the right to examine in his or her own way, and its result will eventually justify that course. (See 18th ed. p. 86.) The 1907 and 2000 editions of Phipson on Evidence do not bar repeating a question.

A very famous and successful English cross-examination was conducted before the three judges of the Parnell Commission. They inquired into a sensational letter published in The Times. By that cross-examination, Sir Charles Russell showed that the letter was a forgery. Time after time he repeated questions.

Any general ban on repetition is hard to reconcile with two of the aims of cross-examination, well settled all across the Commonwealth:

  1. to test the witness' credibility, strengths and weaknesses, and memory or assertion, and
  2. to elicit more evidence for the party cross-examining.

There are a host of reasons why counsel must repeat questions. Very often, it is doubtful whether the question was properly answered, however sincere the witness. No doubt about that can be left. Repetition is often needed to introduce a new context for the question, or to return to a previous topic. And after an initial answer, counsel very often introduces additional facts or reasoning to suggest a different answer to the question. Witnesses often withdraw their previous answers as the context and counsel’s manner change, or as the witness fears exposure.

Interrupting cross-examination by objections is highly disruptive, and on appeal is often a ground to order a new trial. Proper interruption must be for a good, strong reason, not some rigid formula or vague phrase.

The rule in Browne v. Dunn often requires that one party cross-examine certain opposing witnesses about a number of aspects of a certain factual assertion, though the witness will almost certainly deny each aspect. It is impossible to ban repeating questions, given this frequent duty to do just that.

The few recent Alberta decisions proposing to forbid almost all repetition cite a few other recent decisions. But those offer little policy or reasoning, refer to no principles, and cite few other cases. Some of the new cases inaccurately summarize previous decisions. The earliest case which any of them cites (not about cross-examination), says pretty well the opposite of the ban now postulated. No later case quotes that sentence.

Almost all the earlier cases cited are not even about cross-examination. They are about examinations for discovery. The aims and rules of discoveries and of cross-examination differ considerably. Repetition is especially needed in cross-examination. And even in discoveries, as Master Funduk said more than once, “Take my word for it” is not a principle.

There is only one previous Alberta decision about repetition in a cross-examination. But it does not suggest a flat rule. It is much more nuanced.

– Hon. J.E. Côté

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.