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Derek Legal Blog

Giving Evidence

If you are involved with any sort of litigation that goes to trial, you will be required to give evidence.

Evidence is divided into three sections, evidence in chief, cross examination and re-examination. In some jurisdictions such as the Family Court, the Federal Circuit Court and the Federal Court, evidence in chief is given by affidavit. That is, rather than having the Plaintiff or Applicant sit in the witness box and give oral evidence in chief, prior to the hearing date the evidence in chief is reduced to writing and is sworn to. Evidence in chief outlines the Plaintiff/Applicants’ story and complaints. If you are giving evidence in chief in a non-affidavit jurisdiction, your Barrister/Solicitor will take you through your evidence prompting you as you go. You cannot be asked a leading question, that is a question that suggests the answer.

Once evidence in chief is completed, you’ll be cross examined by the opposing Barrister/Solicitor. That person is allowed to ask leading questions and is required to put his client’s case so that you have an opportunity to comment on it. When you are being cross examined the question is not evidence. If you disagree with the question, then there will be no evidence on that point. However, if you agree with the question that becomes evidence and that evidence will be acted upon by the Court.

After cross examination, you may be re-examined by your Barrister/Solicitor. You will only be re-examined if your Barrister/Solicitor wishes to clear something up that you have said in re-examination. This will often be something contrary to what you have said in a conference. In re-examination, your Barrister/Solicitor is not allowed to ask leading questions. What usually happens is that your Barrister/Solicitor will take you to the evidence that he believes needs clearing up and ask you some non-leading questions to endeavor to do that.

When you are giving evidence, if the opposing Counsel objects whilst you’re in evidence in chief or if your Counsel objects whilst you are being cross-examined, do not answer the question until such time as the Judge rules whether or not you have to.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 15 August 18

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