Tuesday, November 3, 2020 - 11:31

TAN CHEE MENG SC ON FACT AND FLAIR IN A CROSS-EXAMINATION

The Deputy Chairman of WongPartnership gives his take on whether fact or flair is more important for a solid cross-examination.

TanCMFor most lawyers, a chance to cross-examine an engineer may not sound particularly stimulating. But not for Mr Tan Chee Meng SC, who had the opportunity to cross-examine numerous engineers who provided expert testimonies during the Committee of Inquiry convened for 2004’s Nicoll Highway collapse, one of Singapore’s worst construction accidents.

 

The Deputy Chairman of WongPartnership tells SAL, “Many of the issues related to geotechnical and structural matters.  These were my 'A' subjects at university when I did engineering.  The Inquiry allowed me to go back to my roots as an engineer and ask relevant questions.” He adds that his engineering background came in handy in this instance: “It is an uphill task for a non-technical person to anticipate and prepare for all possible responses from technical experts, but with my background and the assistance of my team of experts, I can say I didn’t manage too badly.  Undoubtedly, it was my most enjoyable engagement.”

But he admits that other fields are trickier for him. “For me, medical experts are the most challenging. Putting aside the medical terms which I often have difficulty pronouncing, the same symptoms can often support different diagnoses. Medical science involves some degree of subjective judgment, and it is not uncommon for medical practitioners to arrive at different conclusions from the same set of data and test results.”

Still, as he knows from his decades of practice, lawyers can’t shy away from cross-examining expert witnesses just because they are unfamiliar with the subject being debated. They should also realise that cross-examinations of experts and laypeople are two different things altogether, with the former often focussed on science and the latter on credibility. “Experts’ credibility rarely feature significantly in cross-examination unless it concerns their areas of expertise. An expert may be someone of good standing, but it does not necessarily follow that the contentious issues fall within the areas of expertise.”

Over the years, Mr Tan has occasionally come across experts who are partial to the side appointing them. These, he says, are the easiest ones to deal with. “Their opinions often cannot withstand scrutiny if counsel is adequately prepared, especially when we are dealing with technical matters, like accounting and engineering issues.  The substantive issues may be complex, but ultimately, logic will prevail.”

FACT OR FLAIR?

The art of advocacy is often glamorised but Mr Tan staunchly believes that at the end of the day, facts will prevail over flair. “Rhetoric and flair without substance will get you nowhere. What’s important is that you get your points across to the judge. I know most judges would not be impressed by rhetoric, preferring substance over form, which is a great relief to me, as I am by nature not a flamboyant person. To me, the key to good cross-examination is thorough preparation.”

Preparation for Mr Tan comes in the form of a team huddle and whiteboard, which he calls “indispensable”. “We do what I call scenario planning: the case theory is tested against the opponents’ and other objective evidence. There will be much brainstorming and even roleplaying, where members of the team throw out every conceivable response to my questions.”

“I work the same way with my experts. The end product will be an ‘issues table’ listing the key areas for cross-examination with appropriate cross-references.  In the ‘issues table’ will be areas which are marked out of bounds so that in the heat of cross-examination, I do not venture into forbidden territory.  And we will have a post-mortem on how we could have done better after each day in court.”

Gain more insights like these at Insights into Cross-Examination: Factual and Expert Witnesses, a two-part webinar series: the first, helmed by Justice Coomaraswamy, Mr N Sreenivasan SC and Mr Choo, looks into general cross-examination.  The second features Judge of Appeal Steven Chong and Mr Tan, who will discuss the cross-examination of expert witnesses. Both are available at a bundle price of $148.90 (U.P. $192.60). Register here.

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