Originally from The Law and Practice of International Arbitration: Essays in Honor of John Fellas – Preview Page

Seen from the perspective of someone trained in one of the civil law systems used by most of the rest of the world, the common law used by most of the English-speaking world seems like a single system, applied consistently across multiple jurisdictions. But the same centrifugal forces that led George Bernard Shaw to describe England and America as “two countries separated by a common language” have also opened rifts in their common legal system. It seems fitting to examine one of them, involving the cross examination of an adverse witness, in a volume in honor of John Fellas, who passes for English in America and for American in England. 

Until international arbitration began to combine practices borrowed from both the civil and the common law, cross examination of the witnesses put forward by the opposing party was a mystery practiced by English-speaking lawyers and considered by them to be one of the core skills of a trial lawyer. One of the mysterious things about it is that, although cross examination is nominally a technique for questioning witnesses, it has nothing to do with asking questions. A skillful cross examination is rather a speech delivered by the examining lawyer in the form of short sentences to which the witness provides the punctuation in the form of “yes” or “no” answers. Peter Murray describes a well-executed cross examination as “truly an aria —sung by the lawyer.”2 

Up to this point, the English lawyer and his American counterpart are singing from the same score.  The divergence occurs when the aria reaches its climax. At the point where the American lawyer, having extracted the last grudging admission from the witness, will flash a look of triumph at the jury and sit down, the English lawyer will, inexplicably to an American, proceed to give the witness an opportunity to explain himself. This essay explores the reasons for the difference and some of the consequences that follow from it.