Note to readers: This post is not my usual discussion of legal or technical issues, but describes a funny personal anecdote.

When I was fresh out of law school and just learning how to be a litigation lawyer, my late legal mentor, Gordon Henderson, taught me that you don’t have to be cross in cross examination. He often developed a friendly rapport in his cross examinations, leading to some startling admissions from opposing party witnesses. I have always followed his example.

Canada used to have a legal requirement that telephone companies, electric utilities, airlines etc., apply for approval for consumer rate increases. These companies often brought in their CEO as a witness, to present a doomsday scenario if the increase wasn’t granted. The CEO’s presentation was usually followed by that of several company witnesses, and an expert witness from outside the company.

Early in my career I was often retained by consumer groups to present opposing evidence, and to argue that the proposed increase was either unnecessary or excessive. This meant cross examination of the company’s witnesses, the most challenging of which was the expert witness.

I was not the only lawyer opposing rate increase applications. There were large teams of more senior lawyers and experts brought in by the governments of Ontario and Québec, and by businesses that would be adversely affected if the rate increase was granted. My legal team was just me.

The CRTC, the regulatory agency that heard and decided these cases, usually let the big guys (the provincial and industrial teams) go first. They would aggressively cross examine the expert witness for hours, if not days. They definitely looked and sounded cross rather than collegial. Part of what took so long was that the expert witnesses, on the defensive, would rarely provide a simple answer, even to a simple question. They would present long technical lectures in response to almost every question. After those lengthy cross examinations there were usually slim pickings left for me.

A popular expert witness in Bell Canada rate cases was a distinguished elderly American economist who had built his entire career testifying all across the US and Canada on behalf of various telephone companies. During one such case where this expert witness was testifying, after the big guys had finished their lengthy and “cross” cross examination with him, the CRTC called a short break, following which it would be my turn with this witness.

I took a moment to go to the men’s room, and right behind me was this expert witness. Although we were the only two people in the men’s room, he stood and used the urinal beside me while telling me that he had to catch a plane soon. He asked what I could do to be very brief in my cross examination.  I explained that I expected to take at least two hours, unless we could change the usual process. I asked him whether, if I worded all my questions so that he could answer with a simple yes or no, he would agree to no further explanation in his responses. He agreed.

Back in the hearing room I asked the questions and he responded as agreed. At one point he started a lengthy explanation, so I raised my hand and interrupted with “Is that a yes or a no?”. He got the hint and gave the one word answer. My cross-examination ended and he was on his way out the door in about 10 minutes. I noticed that everyone in the room looked shocked.

At this point the hearing ended for the day.  Then several of the other lawyers approached me. They were astonished with how quickly I had conducted the cross examination of this normally long-winded witness, and asked how I did it. Not giving away the secret of our ‘conversation in passing’, I told them “If you word your questions properly you will get the right answers.”