The File Was Not Ours

There comes a moment in any long, serious matter when the opposing advocate knows your client better than your own team does. He has spent two years watching the witness from across the room. He is paid to find what is wrong with the case. Your team, by contrast, has been right. The strategy holds. The client is steady. Familiar relationships are the unguarded ones. When something gives, your team is rarely looking.

This is the fourth in Wessel’s series on the rules of practice. The rule it examines is one every serious professional believes he already applies. The truly competent are usually its first casualties. In a matter that ran for 176 hearing days, the cost appeared on a January morning, in a small red object that the other side took another week of cross-examination to work through.

The File Was Not Ours

Every village has an idiot. Today it may be you.

On the night of 31 May 2009, an Airbus A330 took off from Rio de Janeiro bound for Paris with 228 people on board. Somewhere over the Atlantic, in cloud and at altitude, the small probes on the outside of the aircraft that measure airspeed iced over for less than a minute. The autopilot, deprived of its readings, handed control back to the pilots. One of them pulled back on the stick. The wings, climbing at too steep an angle, stopped producing the lift that keeps an aeroplane in the sky. The recovery is taught on the first day of flight school: lower the nose, the airflow returns, the wings begin to work. None of the three pilots in the cockpit did this. The aircraft fell from 38,000 feet into the ocean over the next three and a half minutes. The stall warning sounded 75 times. The cockpit recorder later showed three competent men, increasingly frantic, certain they were managing the situation, who had forgotten to fly the plane.

The lesson taught on day one of flight school is that when the situation deteriorates you return to the basics. Aviate, navigate, communicate, in that order. Aviate first. Fly the plane.

There is an equivalent failure in serious legal work, and it catches the competent. The careless and the arrogant have other problems. This rule is for the practitioner who knows the matter, who has prepared properly, who has been right for long enough that being right has begun to feel like the same thing as paying attention. My fourth rule of practice puts it this way: challenge your own certainty. Every village has an idiot. Today it may be you.

The case I use is a published judgment in the public domain. I was inside it from the first instruction to the conclusion on appeal. My principal and the junior counsel who stayed the course have both since passed away, and these reflections are mine alone.  Peter, the executive at its centre, was a divisional chief executive in the senior commercial sense the title used to carry. He was decisive, accustomed to taking control of any room he was in, and he prepared in detail for everything. The matter ran for 176 hearing days and produced a record of more than 35,000 pages. By the December adjournment Peter had been in the box for two weeks: one in chief, one in cross-examination, with the rest of his cross still to come. The matter stood over for six weeks until the new year.

Where did the gap actually open?

The rule that governs a witness in the middle of his evidence is straightforward. He may not discuss his testimony with anyone, including his own legal team. The rule prevents influence over evidence not yet given. Its practical effect at court is severe: lawyers will not even be seen with the witness between cross-examination days. Over a six-week Christmas break the application is gentler in spirit and identical in form. No discussion of the evidence. None.

That is what the rule prohibits. It is not what the rule was being asked to do. It prohibits the discussion of evidence. It does not prohibit a phone call to ask how someone is. It does not prohibit a coffee, a check-in, a Christmas wish, a conversation that touches anything other than the testimony. What the rule permits is, in a long matter, what the relationship most needs: enough contact to sense whether the witness is sleeping, whether he is brittle, whether he is sitting alone with the case in a way he should not be.

My principal was the senior attorney on the matter. The attorney is the kingpin of a litigation team: counsel argues, juniors research, the attorney holds the client. After two years on Peter’s case, my principal was the person who knew when Peter sounded tired on the phone, who could read his mood from a sentence, who would notice if he was carrying something he was not saying. That attention was the foundation on which the rest of the team’s work sat.

In court that attention is automatic. The client is in front of you every day. When the matter stands over for six weeks, the attention has to be chosen. An attorney who has held a client steady for years can forget that choosing it is still part of the job.

That December the relationship which had held Peter steady went quiet. The witness rule was the cover. The reason was something else. After two years in court the team had a settled view of Peter: difficult in places, but managed. The aircraft was in cruise. Everything was working. Nothing in the instruments said anything was wrong.

What appeared on the witness’ table?

The arbitration room had its own settled geography by the time we returned in January. Files were stacked along the long counsel table. Peter sat behind a smaller table with a microphone and his own stack of files on the edge of it. Our team alone needed 4 sets of files. The opposing team had 7. Add the judge’s copy and the witness’s set, and there were 13 sets of similar-looking lever arch files between those tables, easy to pick up by accident at the end of a day when everyone was rushing for the door to beat the traffic. The colour-coded system I had built early in the matter was for that practical reason. Senior counsel’s set was black. Junior counsel’s was blue. The attorney files were green. The witness set was yellow. The judge’s copy was red. The other side had added their own exhibits in carton-brown lever arch files. Every file had a known colour and a known place. I was the most junior on the team and sat at the end of our table closest to Peter.

Cross-examination resumed. Peter answered questions. He had watched witnesses go through that room for months and the rhythm was familiar. Then, in the course of an answer, he reached for a file from the stack on the edge of his table.

The reach was the wrong reach. He did not reach for a lever arch file. He reached for a small red ring binder. The colour was almost the right red. The format was wrong. Nothing on the table was ring-bound. He opened it, consulted it briefly, and gave his answer.

I watched him do it and ran the sequence in my head. Red was the judge’s copy. The judge’s copy was a lever arch file, not a ring binder, and it was not near Peter. A ring binder was not part of any set we had prepared. It was not part of the other side’s additions either. The conclusion took a second to arrive. The file had come into the room with Peter.

I leaned across to my principal, who was beside me making notes. He looked up. His response arrived in the kind of whisper that carries the force of an under-breath scream. Did I know about this file? The question came with the energy of a man already working out where the blame would rest. I told him immediately, no. This was not going to land on me.

Why the cross-examiner let it run

The cross-examiner had seen the binder the moment Peter reached for it. He knew, as I did, the shape of every file in that room. He said nothing. He continued with his questions. Over the next several lines of cross-examination Peter consulted the binder several times. The cross-examiner allowed each reference. He did not glance at the binder. He did not break the rhythm of his questions. He was building the record. By the time he finally moved, no credible explanation remained that the use had been anything but intentional.

Then he asked for the file. A cross-examiner is entitled to any document a witness consults in the box, and Peter had consulted this one several times in front of him. Peter answered with the indignation of a man who understood, in the same moment, that something had gone wrong but had not yet worked out what. The file, he said, was his. He did not want to give it up. It contained model questions and answers he had prepared over the Christmas break, his own attempt to anticipate what was coming and ready himself for the cross-examination still to come.

He had done exactly what his instincts told him to do. He was a senior executive. He was facing weeks of hostile questioning. He had been frozen out of contact with his legal team for six weeks. He had time on his hands and an anxiety he was not used to carrying. He did what he had always done when something difficult was ahead. He prepared, in detail, alone.

A map of the witness

The cross-examiner now held a document no opponent of a senior witness ever expects to see. He held, in Peter’s own hand, the questions Peter had anticipated and the answers Peter had rehearsed. He held the topics Peter thought would be pressed, and by inference the topics Peter thought were safe. He could read where Peter felt strong and where he felt weak, where his thinking ran fluently and where it stalled.

The cross-examination that had been due to finish in a few days extended by another week. The cross-examiner worked from the binder. He held Peter to the answers he had pre-rehearsed. He asked what was not in the binder, which was often more telling than what was. The binder was not merely a breach of the witness rule. It was a map of the witness, drawn by the witness himself.

Who is still examining the case?

By that January morning, in the second year of trial, the only person still examining Peter’s case with fresh eyes was the cross-examiner. He had spent December refining his questions and his theory. We had spent it under the comforting impression that the parts of the matter we already understood did not need to be examined again.

By the middle of a long matter, your opponent may be more alert to your client than you are. He is paid to find what is wrong with the case, which means he stays curious about the witness whose case it is, in a way that familiarity has quietly cost the team that built the strategy around him. He is not a friend. But on the question of whether your client is about to do something self-destructive, he is paying closer attention than anyone on your own side.

In Peter’s matter the failure had a name. My principal did not pick up the phone over Christmas. He did not check in. He did not ask how Peter was carrying the wait. None of that contact was prohibited by the witness rule. Nothing else in our discipline replaced it. The relationship that had held Peter steady went silent at the moment Peter most needed to feel held.

I do not write this to indict my principal. He was one of the finest employment lawyers of his generation. He did not need anyone to teach him to challenge his own certainty. The rule of practice catches all of us in turn. I have caught myself in it. I expect to catch myself in it again.

The discipline the rule asks for is narrow. Someone inside the team must do what the opposing advocate is doing from the other side of the table. Someone must look at the developing record with fresh eyes and ask what has stopped being examined. Without that person, the only sceptic on the case is on the other side, and he will find what the team should have found itself. The question that sceptic asks is rarely sophisticated. It is usually the obvious question the team has stopped asking.

The pilots needed to lower the nose. They were too absorbed in the instruments to do the one thing every first-year pilot learns to do. We needed to ask the basic question. It was not sophisticated, and the witness rule had not stopped us asking it. What will Peter do with six weeks alone?

The cross-examiner had spent December being effective. We had spent it being right.

Written by:

Wessel Badenhorst

June 2026

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