‘Cross examined like a criminal’
In an extremely tense and fraught matter I acted as Delay expert for the government in defence of a delay claim by a Contractor. I was cross examined on my opinion evidence in arbitration as a part of the process.
The details of the delay are irrelevant to the secret that I will reveal.
In my evidence, counsel led me through my opinion and analysis. We were commended by the Arbitrator for concise and erudite explanations of technical terms, and for breaking down the analysis into understandable words and terms.
Unfortunately, this did not help in cross examination. Subsequently, counsel (obviously irked by the Arbitrator’s compliments) went on a vapid attack.
My counsel asked the Arbitrator to direct counsel to cross examine me only on the contents of my report and the Arbitrator duly obliged. Despite this, the aggressive questioning continued.
Eventually, my counsel had to interject again. He implored his colleague and the Arbitrator to not conduct this as a criminal matter.
Such a collegial request normally invokes the correct behaviour and conduct. However, this counsel unleashed his aggression on his fellow counsel before continuing to attack the Arbitrator. He insisted he would take the arbitrator under review if he did not conclude with the correct award.
Suffice to say, the award was in our client’s favour and the review followed. As you can imagine the review failed and resulted in a heavy costs order against the Claimant. This was accompanied by a series of none too complimentary comments about the aggressive counsel.
The lesson to learn here, is that Counsel can be tough and should be firm. They should not treat experts or colleagues like criminals.
Finally, as always, for help or advice on any of the issues raised in this article get in touch today.