Tricks Barristers Often Use and How to Overcome Them

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If your profession is fighting fraud, then at some point in your career you are likely to end up in a court or tribunal facing a barrister who wants to discredit you.

Barristers traditionally use a number of tricks to make the witnesses that they are cross-questioning look less than entirely honest, competent and credible.

Here are a few of the tricks that barristers use that you should watch out for.

The Yes/No You Lie Trick 

In this trick the barrister asks you a question and tells you to answer either yes or no.  

The only problem is that the truth is neither yes nor no, but somewhere in between.

If you answer “yes” your credibility will be attacked by the barrister showing that “yes” is not an honest answer. The implication is that you are not an honest person and that anything you say cannot be believed. 

If, on the other hand, you answer “no” the same fate awaits you. 

Clearly the barrister has set a trap for you, which if you do not avoid will result in your honesty and integrity being questioned and the contents of all of your evidence perhaps being disregarded. 

If you are faced with this situation you need to tell the judge or barrister that the question cannot be answered by a “yes” or “no” answer.  

You should then explain why and ask the judge or barrister if you can answer the question properly.  

The Keep Talking Trick

The rules of evidence strictly control what can and cannot be introduced as evidence into a case.

There are often many issues that the other side’s barrister would love to introduce as evidence, but will not be allowed to do so because of the rules of evidence.

However there is often a back door whereby things can be introduced as evidence that would not normally be allowed. 

An easy back door for barristers to use is what you say in the witness box. If they can trick you into referring to evidence that would otherwise be inadmissible, they may be able to make the evidence admissible. 

They do this by asking questions to which they do not really need the answer, but which may trick you into referring to other issues that they want to introduce as evidence. 

Another trick is for him or her to keep looking at you expectantly when you have finished answering a question and be silent, thus psychologically applying pressure on you to keep talking. 

When you are in the witness box you need to avoid talking too much. 

You should always answer questions truthfully and fully, but avoid answering more than was asked. 

Avoid the psychological pressure to keep talking. 

Play Around the Borders Trick 

It is usually difficult to remember every single detail of an event or every single fact. 

Barristers often exploit this by concentrating questions on “the borders”, that is the least important facts or memories. 

It is these areas where you are most likely to be unable to remember exactly what happened. 

Some witnesses feel that they have to answer these questions or the judge or tribunal will assume that their memory cannot be relied on.  

In trying to answer these questions they sometimes end up guessing. Some guesses will be right, but many will be wrong. 

When you give the wrong answer and the barrister can show that it is wrong your credibility becomes easier to attack. 

You do not have to answer every question. If you cannot remember or you cannot answer accurately without referring to notes or documents you should simply say so.

This is far better than trying to answer, getting it wrong and having your total credibility discredited.
 

Irrelevant Technical Point Trick 

If the other side’s barrister wants to discredit your credibility as an expert in your field or as a professional person he or she may rely on the irrelevant technical point trick.

The barrister will ask you a question about some area in your profession or area of expertise, or that is likely to appear to the judge or tribunal as being with your profession or area of expertise, even if it isn’t. 

The area of knowledge covered by the question is so obscure or so irrelevant that almost nobody would know the answer in your profession or who has the expertise needed to do your job. 

The judge doesn’t know this and assumes that you should know the answer. Therefore your credibility as an expert or professional may be doubted. 

Provoking Anger Trick 

The barrister may want to show the court or tribunal that you are an unreasonable person and did not treat his or her client fairly.

One way of doing this is to get you to lose your composure in court, and especially to induce you to get angry. 

Invariably the barrister will do this very subtly because if the judge can see that you are being goaded the sympathy will be with you instead of with the suspect. 

In court never lose your temper. Many cases have been lost because the judge or tribunal decides that the investigator is emotionally unsound and may therefore have threatened the suspect or witnesses or simply have carried a grudge that affected his or her judgement.
 

Questions with Assumptions Trick 

Sometimes barristers ask a question that has an assumption or implication in it that makes you look bad and is not accurate.  

If you answer the question without correcting the assumption it may appear that you are admitting to the accuracy of the assumption or implication. 

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