Tales of a Lawyer Facing Cross-Examination
I have of course considerable experience of examining and cross-examining witnesses. But I do not know how many lawyers have had the experience of being cross-examined in the witness box. For my sins, I can remember at least seven occasions when this happened to me.
1. Cross-Examination Without Attendance Notes
I was cross-examined in a building construction arbitration by Advocate A, a notoriously fierce cross-examiner of a previous generation (now deceased). He was acting for a contractor who had been terminated by its employer on a project. The employer had the contractor terminated based on a certificate from the project architect that the contractor had been in breach of certain important terms of the contract. The architect gave evidence that he had exercised his independent judgment in giving that certificate, and had acted in good faith and not because the owner had exercised pressure on him. When challenged on this by Advocate A, the architect testified that he had consulted me before giving that certificate.
That consultation arose in this way. The architect was an old family friend, whom I called “Uncle Bill”, and one afternoon he called me for an appointment to discuss a case with me. He had never been a client of mine, so I thought he simply wanted to pick my brains, and not engage me on a professional basis. He came to my office and showed me the contract, and the termination clause, and explained to me the acts of the contractor which led to his conclusion that the contractor was in such breach of its contractual obligations as to justify him certifying that such breaches amounted to serious breaches of the contract. Knowing that his certificate would lead to termination by the employer, I looked through the papers which he showed me, and made copies of them (as they did not amount to a very thick pile). I told him that, in my opinion, if his professional judgment was genuinely that the contractor was in breach, and he had come to that conclusion independently of the employer’s wishes, and he had taken care that he had considered all the contractor’s reasons for the breaches and had concluded that they were an inadequate justification for the contractor’s breaches, he should issue his certificate. He then left me, and I put the copies I had made into a loose envelope without opening a file, as I had no intention of charging him for that consultation, and did not expect to see him again in connection with this matter.
Sometime later, I was contacted by the employer’s lawyers acting in the construction dispute with the contractor. I was asked if I could confirm that I had been consulted by the architect, and had advised him that he was entitled to issue his certificate of breach. I so confirmed, and was then asked to give evidence in the arbitration, which I duly did.
The irony was that I had always paid attention to the importance of attendance notes but, on this occasion, because I thought I was just giving some friendly advice to an old family friend, I did not make an attendance note because I was not going to open a file, and when I turned up to give my evidence, all I had were the papers which I had copied on that one evening when Uncle Bill came to see me. This gave Advocate A some material with which to cross-examine me, and he asked some tough questions about (a) whether I had really been consulted, and (b) the degree of seriousness I had paid to this conversation.
I must admit that I was somewhat embarrassed at having to explain to the Arbitral Tribunal why, as a lawyer, I had not made an attendance note of my first meeting with a client. My answer was that I was not really treating Uncle Bill as a client, and was expecting that meeting to be the first and last time I would be discussing this matter.
In the event, I must have put on a credible performance as the Tribunal upheld the decision of the architect, and found the termination to be valid. But it did teach (or remind) me of the importance of making attendance notes even in situations when I was not expecting to open a file if I was in fact giving advice which I might have to defend in future.
2. Cross-Examination with Attendance Notes
Next, I was cross-examined by a distinguished foreign Queen’s Counsel, Advocate B. This was his last case as counsel in Singapore (as he was shortly to be elevated to the Bench), and I was a witness in a family dispute between the attorneys of an elderly wealthy lady who had been suffering from dementia in her last years. She had been persuaded by her nephew from Kuala Lumpur to transfer a sum of about SGD 5 million to him for safekeeping. Sometime before this transfer, she had made a Power of Attorney appointing another nephew and a niece from another side of her family in Singapore to take over managing her affairs in case she became physically or mentally incapable of doing so. When these attorneys discovered that her bank account had been depleted by this sum, they investigated, and discovered where the money had gone to. They then wrote to the Kuala Lumpur nephew to claim this sum on behalf of the elderly lady. When he failed to respond, I had to write on behalf of the attorneys to the Kuala Lumpur nephew on the attorneys’ instructions to repeat that claim on behalf of the lady. This was personally difficult for me, as the elderly lady had been my mother’s best friend, and I had treated her as a family member all my life. The Kuala Lumpur nephew (who had taken the SGD 5 million) had been kind to me when I was young, and I had looked up to him as a big brother, and now I had to write letters of demand and have meetings with him to persuade him to return the moneys he had taken from his aunt’s bank account. Although I was writing and speaking to him in my personal capacity in an effort to avoid legal confrontation, I had to treat the matter as a legal case, and to take appropriate measures to show my objectivity by taking all the steps that a solicitor would do before launching into contentious correspondence and meetings. So:
- I took the lady to see a psychiatrist on each occasion I drafted a letter for her to write to the Kuala Lumpur nephew asking for her money to be returned to her, so that he could certify that she was of sound mind at that moment and that she was aware of the nature and contents of the letter she was signing.
- I kept careful attendance notes of all my meetings and phone conversations with the nephew so that there was a paper trail that could be a contemporaneous record of communications between me and the nephew (having learnt my lesson after my experience with Advocate A).
Eventually, the matter went to court. Another law firm represented the estate of the elderly lady, as she had passed away by this time, and I had to be a witness to (a) explain the various letters written by the lady but drafted by me, as well as (b) to testify to the conversations I had had with the Kuala Lumpur nephew at various times leading up to the court action. On the day of the hearing, I went to court wearing the necktie of my Inn of Court (Gray’s Inn). When Advocate B noticed this, as we met outside the courtroom before I went into give evidence, he said: “I’m an old alumnus of Gray’s Inn too, so I will give you a discount of 10% off the length of my cross-examination”. Possibly for that reason, he was relatively kind to me in cross-examination. More likely, it was because my defensive measures as a solicitor had made it more difficult to attack my credibility, and it was only possible for him to question my judgment calls and opinions of what the nephew was trying to do at the material time. In the event, the High Court (Justice Judith Prakash) held in favour of the attorneys. When discussing my evidence in contrast to the evidence of the nephew, she stated in her judgment that she accepted my evidence in preference to that of the nephew about my conversation with him because (among other things) “Michael Hwang kept contemporaneous notes of the conversations while [the Kuala Lumpur nephew] had not”. Thankfully, I came through this trial without any major problem in my testimony because of observing a tedious but vital rule of legal practice – the keeping of attendance notes.
3. Cross-Examination with Attendance Note Prepared in Advance
This lesson proved valuable for my next two experiences of being cross-examined. In the first case, I had acted as solicitor for a publicly listed company in drafting a loan agreement between the Listco and its related company in Indonesia. It was a fairly standard loan agreement for a repayment schedule followed by a standard clause providing for events of default, and the consequences of any such event. After I submitted the draft agreement to the Listco through its Company Secretary, my draft was returned with the repayment schedule and the events of default clause both completely deleted, with no replacements. I called the Company Secretary and asked him why, and he said that these were the express instructions of the Chairman. I said I would write to the Chairman to advise him of the consequences of the deletions. The Company Secretary said that the Chairman did not want to hear my views on this subject, and did not want to receive any further written advice from me. What I then did was to compose a memorandum of my views as to why the proposed deletions were inadvisable. This was then typed up in the form of an attendance note, beginning “Attending the Company Secretary on the telephone on” [the date which I had arranged to speak to him in advance]. I then called the Company Secretary and gave him my oral advice using my attendance note as my script. He duly took note of my advice, and said he would convey the gist of it to the Chairman.
I did not hear from him again on this point, and the clients eventually engrossed my draft on their own with their deletions of those two clauses (without further consultations with me). At some later time, the Listco became the subject of criminal investigations by the Commercial Affairs Department (a specialist branch of the police dealing with commercial crime). The Chairman was then charged with breach of his duties of diligence as a director under section 157(1) of the Singapore Companies Act.
I was called as a prosecution witness, and went into the witness box. The Chairman had engaged Advocate C (one of Singapore’s top cross-examiners) to defend him, and the judge was Koh Juat Jong (then a District Judge and later to be our Solicitor General). Advocate C proceeded to cross-examine me, and I gave my evidence as to my views on the proposed deletions of those two clauses and my attempts to convey those views to the Chairman through the Company Secretary. At some point, Advocate B asked me if I had made an attendance note of my conversation with the Company Secretary. I then introduced into evidence my Attendance Note, which everyone was seeing for the first time (I don’t think the prosecution had asked me for my office file, so even its team was surprised by this evidence being tendered.) So Advocate C had the unenviable task of having to cross-examine me on a document that he was seeing for the first time in the middle of his cross-examination. Understandably, he asked me if (a) I was sure about the date of the attendance note, and (b) could I have made it a few days after the date of the alleged conversation. I replied “yes” to the first question and “no” to the second. He also asked me if I was sure that the attendance note faithfully reproduced my oral advice to the Company Secretary. I again told him yes, and then the inevitable question came from him: “And how can you be so sure?”. I then disclosed that this was not composed from memory but had in fact been my script for my oral advice, so it was (if this is not a contradiction in terms) an attendance note made in advance of the anticipated conversation for the future.
Advocate C was of course doing what virtually every counsel has to do when confronted with a seemingly contemporaneous note of a conversation. He needed to test the actual contemporaneity of that document, so no criticism can be made of his decision to ask those questions. It was just unfortunate for his client that I was able to pass that test.
Undeterred, Advocate C then approached the problem from another angle. He put it to me that the result of the omission of the repayment clause simply meant that the loan was then repayable on demand. In fact, that was, in my opinion, a correct statement of the law, and I did say so unequivocally, as I had no particular axe to grind against my former client. My answer at least gave Advocate C a fighting chance of submitting that the result of that last exchange supported an argument that the company had suffered no damage because of the lack of a repayment clause, since it could make a demand for repayment of the whole loan outstanding at any time. Unfortunately for my former client, the District Judge nonetheless found the Chairman guilty as charged. Fortunately for him, he was only fined as there was no finding of dishonesty of his past. But I felt relieved that I had been able to recall my oral advice accurately owing to my creation of the attendance note before actually giving advice.
4. Expert Examination in Indonesia
I now turn to the story of when I had to go to Indonesia to give evidence as an expert witness on international arbitration practice. This was for a hearing in court, and I had to take an oath, since I declared my religion as Christian. As I was reading my oath, I felt a shadow over my head covering the text of my oath. I looked up, and saw a bible the size of the bibles that you see in the great cathedrals of the world, which are so thick they almost need a weightlifter to carry and open the book. And this enormous bible was being held by a court officer over my head, presumably to warn me that if I did not speak the truth, the wrath of God would (literally) descend upon my head. But this was nothing compared to the oath which was then taken by my interpreter, who was (unsurprisingly) a Muslim. And when he took his oath, the Quran that was held above his head was about twice the size (and weight) of my bible. This gave new meaning to the phrase “putting the fear of God into you”. I am sure that this display of the power of the Word (in either religion) made a deep impression on me at the time, so as to make me take especial care that my evidence was accurate and unbiased.
5. Expert Examination in Thailand
I will next recount the tale of when I was asked to give evidence as an expert witness on international arbitration law and practice. This was a court hearing in Thailand, where one party had commissioned me to issue a written expert report in support of a Final Award made by a Tribunal. The background to this case was that the Tribunal had commenced the hearing and had eventually issued its Award without waiting for the Chairman of the Respondent to the arbitration to issue his decision whether or not to accept or reject a recommendation of the project engineer on the matter in issue between the parties (which was a condition that had to be fulfilled before either party was entitled to commence arbitration). What is of interest about this case was the procedure for hearing an expert witness in Thailand rather than the evidence itself.
First, I was asked to enter what was in fact a (roofless) cage, rather like a dock in a criminal court. Having affirmed my expert written report, I was then cross-examined by Thai Counsel, who was allowed to walk up to my cage, and he moved so close to me when he was asking me questions that I could see the pattern on his necktie, (which I can still remember consisted of a number of dancing Thai elephants, which somehow had the effect of making my eyes dance). Perhaps this was what Counsel intended to do by flaunting his magic necktie before my face. He then walked all around my cage, which made my life rather difficult, as I was sometimes unable to hear his questions clearly as they were coming from behind me. In the meantime, the panel of three Judges was presided over by a lady Judge. As I was speaking, she had a mini-cassette recorder, and was busy speaking into it. Every 15 minutes, she would whip out the cassette and hand it to her court reporter to type up the oral notes of evidence while she continued with another cassette.
At the end of my cross-examination, the Presiding Judge told me that “You may now go to the toilet”. I replied politely to her “Your Honour, thank you for that opportunity, but I do not think I need to go to the toilet at this stage.” The Presiding Judge then spoke again and said “You will go to the toilet,” which I then understood to be an instruction and not an accommodation. It turned out that the toilet was quite far away from the courtroom and, by the time I found it and completed what I had to do there and walked back to the courtroom, about 10–15 minutes had elapsed. I then found that, during my absence, the very efficient court reporter had already typed out my evidence from the Presiding Judge’s oral notes of evidence and I was asked to sign below the evidence recorded in Thai as the court’s record. I then asked for the Thai notes of evidence to be translated to me in English, but my instructing lawyer simply said, “I have read the translation and it is a correct translation of what you have said,” so I reluctantly signed the Thai translation, trusting in the linguistic ability of my instructing lawyer that there were no errors in translation.
The result of the hearing went against the party who appointed me. That is another story for another day.
6. Expert Cross-Examination in Hot-Tubbing Session in Geneva
This anecdote is another experience as an expert witness where the parties were located in Europe so the hearing was held in Geneva. The governing law of the dispute was Swiss law, but the law of the seat was Singapore law. The issue was a textbook question. The Claimant had filed an arbitration claim against the Respondent based on an agreement for services rendered more than six years after the services had been provided. Under Swiss law, the limitation period for such an action was 10 years, but under Singapore law the limitation period was six years. I was instructed by the Claimant’s lawyers to give an opinion as to whether or not the Tribunal should apply Swiss law or Singapore law on the question of limitation. If Singapore law applied, then the cause of action would be time-barred and, if Swiss law applied, then the cause of action would still be live, since the Notice of Arbitration had been filed 8 years after the date of the transaction. The Singapore law expert for the other side was Alvin Yeo, SC, and each of us gave two expert reports arguing for different limitation periods.
And even if Singapore law applied, what was the law applicable to limitation periods? Singapore had recently enacted the Foreign Limitation Periods Act, 2012 expressly providing that limitation would be treated as a matter of substantive rather than (as had hitherto been the case) procedural law. However, this law was not applicable to cases where the limitation period (apart from the Act) which would have applied in respect of that matter in Singapore, had expired before the commencement of the Act. In this case, the Singapore limitation period of 6 years would have expired before the commencement of the Act, but not the Swiss limitation period of 10 years. So there was a further question: since the common law world (Canada, Australia, New Zealand and Hong Kong) had already found that limitation should be treated as a substantive rather than procedural issue, and had reached this position by case law rather than statute, would the Singapore Courts have decided this particular case treating limitation as a procedural issue (in which case the claim would be time barred) or a substantive issue (in which case the claim would not be so barred)? As the position of the Singapore Court of Appeal on this point was unclear, I had to argue that, given the progressive thinking of the Court of Appeal, it was a reasonable prediction to say that the Court of Appeal would (if asked) have followed the example of other major common law courts and have held that, as a matter of Singapore common law, it was now time to declare that limitation should be regarded as a substantive rather than a procedural matter, and therefore the Swiss law of limitation should apply (as the governing law of the contract).
Both Alvin and I thought that, since our written reports were very full, and there was a very experienced tribunal chaired by Bernard Hanotiau from Belgium (who was very familiar with Singapore arbitration law as well as continental legal systems), the Tribunal would not need Alvin and myself to appear in person to be questioned in Geneva. Contrary to our expectation, we were both summoned to appear at the hearing to assist the Tribunal, and we therefore flew to Geneva and reported to the Tribunal. I was first cross-examined rather gently by Counsel for the opposing party (as she happened to be a long-standing friend of mine). Alvin and I were then subjected to vigorous examination by Bernard and his co-Arbitrators (both distinguished European civil lawyers) and this continued until lunchtime with the Tribunal grilling us in a hot-tubbing session i.e. with both of us facing the Tribunal giving answers in the same session together. By lunchtime, the Tribunal had still not finished with us, and we were told that we should not communicate with our respective instructing lawyers, but we were free to lunch with each other. Accordingly, Alvin and I took ourselves off to another part of the hotel and had a pleasant lunch talking about all manner of things Singaporean, but not about the case or our evidence. We then returned after lunch for further grilling by the Panel, so a whole day of proceedings was effectively taken up with this issue, which was of course the key to deciding whether or not my instructing lawyers’ case could proceed or be dismissed on the grounds of time bar.
Months later, the Tribunal released its findings and found in favour of the interpretation advocated by Alvin, i.e. Singapore law (as explained by Alvin) would apply. It was an invigorating experience to be under close questioning on a point of law for a whole day by very senior and very expert arbitrators testing our knowledge both of Singapore domestic law as well as the Singapore principles of conflict of laws. I recall that, as I flew back to Singapore that evening, I was totally exhausted (as probably was Alvin). I think both of us felt that we had engaged in a highly unusual, if not unique, forensic challenge testing our respective abilities to analyse fundamental concepts of private international law in international arbitration.
7. Cross-Examination Under Deposition in New York
My final anecdote is about a case where I was cross-examined, not as an expert or in my capacity as a lawyer, but as a pure witness of fact. This was under the American trial system, not in an Open Court, but in a private hearing known as a “deposition” hearing. It came about in this way.
My wife and I owned an apartment in New York, and we engaged a prominent Real Estate broker to find a tenant. The tenant was duly found but, after some months, he stopped paying rent. When I called him on the phone to ask him why he stopped paying rent, he said “Because you are suing me”. This was the first time I had heard of any such court action in my name, and he eventually sent me a copy of the Writ. It turned out the Writ had been issued in the name of myself and my wife against our tenant for breaching the terms of our lease with him, which required the tenant to observe all the rules of the Condominium Board (which is the American equivalent of our Management Corporation in a strata titled apartment block). His alleged violation was bringing in a dog into his apartment which exceeded the permitted weight of dogs allowed in the Condominium. The tenant explained that the dog was like a member of the family and he could not give up possession of the dog. I was astonished to discover that the Writ had been issued by the Condominium Board exercising its power under the (long forgotten) Power Attorney that my wife and I had signed when completing our purchase of the apartment. This document empowered the Condominium Board to exercise all rights that we had under our lease with the tenant to enforce the rules of the Condominium Board.
When the tenant discovered that my wife and I had not directly authorised the issuance of the Writ, he applied to a New York court to set it aside. The court granted his application and issued a judgment setting out the grounds for its decision which basically stated that the Power of Attorney could not authorise this type of litigation where the owners’ judgment as to a breach of contract had been taken away from them, and they had not been consulted before the litigation had been commenced in their name. (So as a side issue, my name does exist in the New York law reports as a precedent-making decision).
Anyway, to cut a long story short, I still had to settle the litigation with my tenant and, since I was unable to get the Condominium Board to permit the presence of his dog in his apartment, he eventually moved out. This obviously resulted in a financial loss to me and my wife, and I then sued the property agent for not advising either me or the tenant of this condominium rule. The property agent put up a defence (the nature of which I cannot now remember). After the exchange of pleadings, the case then moved onto the deposition stage. For those unfamiliar with the American procedure, its standard practice, is for each party to serve a list of questions on the other side about the case requiring answers on both sides followed by a live cross-examination. The live cross-examination is not before a judge, but will take place in a private office with a court-approved stenographer recording the cross-examination verbatim. The record of the cross-examination would then be submitted to the court as part of the court record which could be referred to at the main trial.
I therefore had to go New York to attend the live deposition hearing. After a series of routine questions by my former broker’s lawyer, the lawyer then told the stenographer to stop recording. I was a little puzzled by this request, but my own lawyer (who was accompanying me for the deposition) told me that this was a standard practice as the lawyer probably wanted to speak to me off the record. The cross-examining lawyer then made me an offer to settle (which we discussed for a few minutes), but we did not come to any conclusion. The lawyer then turned to the stenographer and said “Please resume”, and went back to his cross-examination.
It was a strange experience, but eventually settlement was reached. But the point of this story is that it helped me to understand why (especially when we watch American movies or TV) the American lawyers are so precise and knowledgeable about the factual background in their cross-examination. The answer is because they would have gone through the deposition procedure at an early stage, which would have given them all the basic information they needed. Depositions would also be a form of dry-run, which would enable counsel to gauge how a witness would react to cross examination. This would assist counsel at the main trial to have a sense of how to frame certain questions with his or her prior experience of how that witness had performed at the deposition stage. So it was a useful lesson learnt about a different legal culture.
What are the lessons to be learnt when lawyers have to give evidence in court or in an arbitration? For issues of fact, the lawyer needs to practise good lawyerly habits. One of these is keeping attendance notes. For issues of law where the lawyer has to testify as an expert, the lawyer will have to make sure that he does as much research as he or she can on the subject of his or her expert report. This will include a careful reading of the opposing expert’s report so as to have a response ready for the obvious questions that opposing Counsel will be putting forward to challenge the testifying lawyer’s views in his or her expert report. Above all, the lawyer as witness, whether on a matter of fact or matter of law, must demonstrate impartiality and neutrality, and not deny everything put to him or her by opposing Counsel. A lawyer can be forgiven for having a bad memory on matters of fact or an inadequate grasp of the legal niceties on matters of law, but a lawyer will not be forgiven by a court or tribunal for trying to skew the evidence on the facts or the law in favour of the party calling him or her.
Having reflected on the various occasions when I have been cross-examined before a Court or a Tribunal, it occurs to me to recall a similar (but yet different) experience, and that is being interrogated by a police officer in a criminal investigation in Singapore. Many years ago (sometime in the 1970s), I was acting for a very large and important listed company in various of its corporate deals. Subsequently, this company came under criminal investigation, and I was summoned by the CID (then in Robinson Road) to have my statement taken. It turned out that the officer interviewing me was my former classmate in Anglo-Chinese School, but this cut no ice with my interviewer, who treated me with great formality in the questioning process. His professionalism could be gauged by this example: on one occasion, when I replied to his question that I could not recall the exact sequence of events, he commented: “That is a convenient answer”. However, we called a truce at lunch time, and went out for lunch together when we reminisced about our old schooldays (I cannot remember who paid for the lunch). After lunch, we resumed the interview in the same formal manner, and finally finished in mid-afternoon.
As all criminal lawyers know, a person being interviewed by a police is not usually (especially in the 1970s) given a copy of his “long statement”. But I managed to prove an exception to the rule, because my interviewer spoke slowly and clearly when asking his questions, and I was able to write down (in manuscript), not only the questions, but my answers as well (in note form). My interviewer was tolerant about this procedure even though it slowed down the process a little. When we finished for the day, I went back to my office and immediately typed out my notes of the questions and answers in full. So, for practical purposes, I had made a copy of my own statement. I wonder how many other police interviewees have been able to achieve that (by one means or another).