I cannot stress enough the importance of ‘knowing your brief’. When you receive your papers for your very first advocacy class read them, and then read them again! Make sure you are familiar with the facts of the case. I would suggest making a chronology of the key dates and moments in the case to give you a clearer picture of your brief. Do not go to your advocacy session without reading the case! Nobody is expecting you to memorise the brief word for word, but you should know (1) what has happened, (2) who you are representing, (3) who are the key witnesses, (4) the evidence you have e.g. CCTV and (5) what you are asking the court for i.e. a bail application, plea in mitigation etc.
Know what you are going to say
Plan your submission and know the points you are going to make…
Timothy A. Pratt, a trial attorney and partner in the firm of Shook, Hardy & Bacon, L.L.P., based in Kansas City, Missouri has written an introduction to cross examination and ‘ten commandments’ that should be followed by any trial lawyer when cross examining. While they were written with the American legal system in mind, you will find that many of the tips that he has provided are also useful for you when you are learning how to cross-examine during the BPTC and later when refining the skill in practice. As he mentions, these are one of the many skills that a Barrister develops through active advocacy rather than diligent study.
The introduction is excerpted below, followed by a list of the ten commandments and a link to the full article:
Much has been written about the “art” of cross-examination. Not all of it, though, involves art. Some of it involves natural talent, but most of it involves hard work. In truth, three factors combine to create this “artistic” success — personality, presence and persuasion. These traits are often manifest in the ability to think and react quickly. But something else is involved as well — something that trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit. The art of cross-examination involves all of these traits, and more than a little luck.
This article is intended to provide yet another iteration of the Ten Commandments of cross-examination. Here is the caveat, however — one does not learn to be good at cross-examination by reading papers. The successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. In this era, when there are too few trials to satisfy so many eager trial lawyers, cross-examination techniques can be practiced in depositions. The trial lawyer must learn to get the “feel” of a good cross-examination; to develop a personal cadence and style. The trial lawyer must learn as well to adapt to particular witnesses and different cases. But he or she learns by doing. In all this, of course, having some general rules in mind will not hurt. Hence, the “Ten Commandments.”
The Ten Commandments:
Thou Shalt Prepare
Thou Shalt Know Thy Objective
Thou Shalt Take Baby Steps
Thou Shalt Lead the Witness (usually)
Thou Shalt Know Thy Style and Adapt It to the Occasion
Throughout law school and the BPTC, you will undoubtedly receive a lot of advice about advocacy. You’ll see advocacy demonstrations and will be lectured on the topic by master/mistresses of the moot, mooting coaches and guest lawyers and judges. If you’re especially keen, you’ll probably read books on mooting and advocacy such as The Devil’s Advocate, The Art of the Advocateor How to Moot: A Student Guide to Mooting. Through some of my following posts I will try to share some of the advice and tips that I have received over the past four years.
The tips that I have provided below are from an autobiography that I picked up from an antique/second-hand booksellers in Coventry during the summer of 2011 after graduating from University. It’s titled “Law and Life” by G Roberts KC OBE and was published in 1964. It details the life of one of the UK’s great Barristers, who went so far as to represent Great Britain at the Nuremberg Trials. In his memoirs, Roberts KC speaks of his long experience as a Barrister and provides many useful tips for budding lawyers.
His tips on advocacy may seem obvious but are easy to forget or overlook:
Be Prepared – even on obscure facts/points of law
Be Audible – Strong, Clear Voice
Open with Care – In his opinion, burglary, housebreaking cases should be opened in about 3 sentences. The jury want to hear witnesses in such cases. If the case is regarding fraud, dishonest prospectuses, share-pushing, then a detailed opening is required to show how documents bear out submissions.
Beware the disastrous question – A single misguided or inappropriate question can lose the case for the unfortunate client. Speak slowly and think carefully before asking questions.
Leave Well Alone – A case can be lost when the advocate tries to “rub in” a good point already made. Such an issue can arise where, for instance, a favorable point has been made by a potentially hostile witness and you try to hammer the point too much. Its full effect may be diluted.
Be Impersonal – Roberts KC amusingly said that an advocate should never talk about their own health in court. By this he meant that while in court, a Barrister should shed his personal skin and assume the role of professional counsel, thereby acting as the best advocate possible for their client.
In sum, he quoted Lord Somervell of Harrow and said “that the object of the advocate should be to persuade the court that his client has the best case though unfortunately not the best advocate”.