Advocacy Notes

D.S. HISLOP’S ADVOCACY TRAINING

Evidence in Chief:
Is the evidence given by your own witness in your case? Experienced trial lawyers
recognize that most trials are won on the strengths of your case in chief not on the
weaknesses of your opponents’ case.
Consequently, effective direct examinations that clearly, logically and forcefully
present the facts of your case will usually have a decisive effect on the outcome of the
trial.
It is important that the purpose of examination in chief must be kept in mind. It
should elicit from the witness in a clear, and logical progression the observations and
activities of the witness so that the trier of fact, whether it be a Jury or Judge alone,
understands, accepts and remembers his testimony.
How is this done?
Preparation:
Calling your evidence is as much as an art form as the smartest and most skillful
cross examination.
How do I Prepare:
1. Decide in your own mind why you want to call the witness -
• what evidence can he give that helps your case.
• if he/she cannot help your case, do not call him/her. Why give your opponent the
chance to cross examine without there being a material gain for your case.
2. Once you have made the decision -
• having decided what evidence the witness can give to assist your case
List the key points you want the witness to make
3. Organize that Evidence Logically -
• Usually but not always, this will result in a chronological presentation of
testimony. Experience has shown that jurors and judges like other people are best able to
comprehend and remember a series of events or other information if they are presented in
the same chronological order as they occurred.
Example:
The witness, the plaintiff in an automobile collision case, could testify in the
following order:
a. his background
b. description of collision location
c. what occurred just before the collision d. how the collision actually occurred
e. what happened immediately after the collision
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 f. emergency room and initial treatment
g. continued treatment
h. present physical limitations and handicaps i. financial losses to date
Example:
The witness to an attack on a man in the street could testify in the following order:
a. background of witness
b. location of event
c. location of the witness
d. the incident
e. the quality of the observation - unobscured?
f. what the witness heard before, during and after the incident
g. the state of the victim
h. the flight of the assailant
i. the arrival of the emergency services
Of course as you become more adept as a trial lawyer you will find this not an
inflexible rule. Sometimes presenting the most dramatic or important testimony early in
chief when the trier of fact is most alert and still listening can sometimes be a better
approach.
Example:
Q. Mrs. Jones, do you and your husband have children?
A. No, before the accident we planned to start a family
Q. Why did you change your mind?
A. We did not change our minds. It is just that as a result of the accident I suffered
internal injuries that have made me infertile, unable to have children.
Wham! You immediately have not only the attention of the judge or jury but you
have their sympathy, then you can go on to elicit the details of the accident (paragraphs b.
to i. inclusive.)
So you have organized your material, how do you best effectively present it
4. How do you present it-
The Golden Rule is that your witness is the one who is telling the story not you. You
want the trier of fact to hear the evidence from the witness, not you. You want your
witness to make an impression and to be believed.
This is best done by the trier of fact hearing from the witness not you. The witness
should be the centre of attention not you.
You are there to facilitate the telling of the story by your witness

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 5. How do you achieve this-
• Short simple questions
• eliciting one point at a time
• choose language carefully
• do not lead the witness, open ended questions only:
-why
-when
-how
-where
• leading questions not only will draw a reprimand from the judge but it is counter-
productive to your purpose
6. Listen to answers the witness gives -
• if you do not understand the answer how do you think the judge or jury will
• the answer may only be as half as good as it could be, you may have to probe
deeper
7. Holding the interest of the trier of fact -
• appear interested yourself in what the witness is saying
• do not simply introduce the witness and then invite him or her to "tell us all what
happened." This is easy and the lazy man’s way!
• it will lead to ineffective, boring evidence, where you as counsel have no control
whatsoever over the content and is likely to lead to the adducing of irrelevant evidence
which will submerge the relevant evidence you want the trier of fact to accept and
remember.
• the better way to put your witnesses testimony before the court is I suggest in this
way:
8. Build your questions on the preceding answers:
Example:
The witness is being called to say that he was looking out of the first floor front
bedroom window of his house at 10.30 am on 2 July when he saw a young boy throw a
stone through the window of a toy shop directly across the road, take a toy gun from the
window and run off to the right and out of view. A young boy is on trial for the offence
and is relying on an alibi.
Having got the witness to give his name, the next answer counsel will want the
witness to give is his address. Question: " What is your address?"
The next answer he wants is that there is a toy shop directly across the road: the
assumption is that there is no plan. There should be but there is not. This cannot be

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obtained by a leading question and will take three non-leading questions to obtain it.
Thus:
Q: Are there any buildings on the opposite side of the road from your house?
A: Yes
Q: Are any of those buildings directly opposite your house
A: Yes
Q: What building is that? A: A toy shop
• note that each question is built on the previous answer. This technique is
sometimes referred to as piggy-backing
Q: Where were you on the morning of the 2 July?
A: In my home
Q: When you were in your home that morning did anything happen outside your
home which you were aware?
A: Yes
Q: How did you become aware of it?
A: I saw it
Q: Where were you in your home when you saw this happen?
A: In my bedroom
Q: What were you doing in your bedroom?
A: Just looking out the window
Q: Is your bedroom to the front or the back of your house?
A: The front
Q: What is opposite your house as you look out your bedroom window?
A: The toy shop
Q : What did you see happen?
• The value of piggy-backing is threefold:
-controlling the witness
- allowing you to follow your planned structure
- it provides a memorable picture
9. Pace-
• As you get more adept at adducing evidence in chief you can start using more
sophisticated techniques such as the use of pace.

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 • Pace involves controlling the speed of examination. This is particularly important
where the evidence you are wishing to adduce from the witness involves the happening of
an incident.
• Remember that the jury, unlike you and the witness has never heard the testimony
before. Its ability to receive, digest and comprehend is limited
• The critical part of for instance most murders will take place in a few seconds.
In such a situation pace can be employed by you to control the witness to slow down
the action if that indeed suits your purpose. You may wish to slow it down and show the
action frame by frame.
Example:
You act for Bill Smith who is charged with the murder of his neighbour Jim Jones.
Jones is hard working but rather ill tempered. He works night shift and thus has to sleep
during the day. Smith has recently lost his job and is rather enjoying being unemployed.
He also likes his new sound system which he bought with his redundancy money. He
especially like playing it loudly during the day. It has already been the source of heated
arguments between Jones and Smith. On the 4 August at 10.30 am Jones had just got
himself to sleep after a hard nights work when he was awoken by the thump, thump of
Smiths music. He flew into a rage, picked up a metal bar from his tool bag and stormed
next door to Smiths house. He bursts in through the back door into Smiths kitchen to
confront Smith. In a complete rage he takes a swing with the bar at Smith, for the most
part misses and goes to take another swing at Smith. Meanwhile Smith is preparing his
breakfast, slicing up fish with a butcher’s knife. Smith is taken completely by surprise,
panics and lunges out with the knife and thrusts it through Jones heart. Jones dies
immediately.
As Counsel for Smith you have received instructions which make it clear that your
defence is self defence. You wish to call your client to give evidence.
You have two particular problems that you must resolve in the planning of your
clients evidence in chief. You can resolve each problem by using pace in completely
opposite ways.
Your problems are as follows:
Firstly you need to convey to the jury that the incident happened very quickly.
Because the very essence of self defence is that it is a spontaneous reaction borne of fear
of very serious harm to oneself or another.
Secondly, the need to convey the very real threat the client felt.
• So one of your objectives calls for an examination in chief that conveys the speed
and suddenness of the attack and the other calls for the slowing of everything down
frame by frame in order that the jury may focus on the feelings of fear felt by your
client Smith.
• So how do we achieve this?
We achieve this by breaking our evidence in chief into two parts, using pace to different
effect in each part.

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 First:
Q: Where were you on the morning of the 6th of December 1998?
A: I was at home.
Q: Can you recall what time you got up that day?
A: At about 10 am.
Q: When you got up did you intend to have breakfast.
A: Yes.
Q: What were you going to eat?
A: Fish.
Q: Who was going to cook it? A: Me
Q: Where were you going to cook your breakfast?
A: In my kitchen
Witness shown a knife.
Q: Do you recognize that knife?
A: Yes, its mine I was using it that morning to cut up the fish
Q: Did you end up cooking the fish?
A: No
Q: Why not?
A: Because that mad man Jones from next door came crashing through my back door
and attacked me with an iron bar
So here with the use of short sharp sentences you have created the sense of a sudden
attack. So once the speed and suddenness of the attack has been conveyed back track and
slow the action down to achieve your second purpose.
Example:
Q: When was the first time you realized Jones was in your kitchen?
A: I was at the bench cutting up the fish when I heard a crashing noise
Q: Did that cause you to do anything?
A: I just turned around
Q: And what did you see?
A: I saw Jones coming at me with an iron bar
Q: Was he walking or running?
A: He was launching himself at me
Q: Did you see his face?

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 A: Yes, it was all contorted with rage
Q: Did he say anything?
A: Yes, he said he was going to kill me.
Q: Did you say anything
A: No, I did not have a chance, I was shocked
Q: How did he appear to you?
A: Completely out of control, raging like a bull
Q: How did you feel?
A: Terrified, I thought I was going to die
Q: What happened then?
A: He struck at my head with a bar but missed because I think he slipped on the old
mat on my floor
Q: What did he do next if anything?
A: He recovered his balance and took an enormous swing at me with the bar
Q: Can you demonstrate the motion he used for us with this bar? [Witness
Demonstrates]
Q: Had you moved at all from where you were when he first came into your kitchen
A: No, I was in shock, I had no time to move and anyway there was nowhere for me
to run to, he was right on to me
Q: How did this make you feel?
A: I was terrified, I thought I was going to die, I just panicked, I had the knife still in
my hand and just thrust it at him, he was going to kill me.
• Other techniques
• different types of witnesses
Cross Examination:
Cross examination is a skilled that can be learned by the combination of a careful
study of the basic principles of cross examination and trial experience.
Cross examination is very easy to get wrong. Good cross examination technique is
usually that which distinguishes the good trial lawyer from the not so good.
Cardinal Rules:
• Prepare
• Before you get to your feet
- ask yourself:
- do I really need to cross examine this witness

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 - have the points I would like to make from this witness already been made by any
other witness
- can I get away with not asking any questions
- was the witness credible
• Purposes of cross examination
There are two basic approaches to cross examination:
a. Elicit favourable testimony. This involves getting the witness to agree with those
facts that support your case in chief and are consistent with your theory of the case.
b. Conduct a destructive cross examination. This involves asking the kind of
questions which will discredit the witness or his testimony so that the jury will minimize
or even disregard it.
It is important to bear in mind these two categories because you will as a matter of
good common sense always seek to elicit favourable testimony first before embarking
upon destructive cross examination.
Sometimes You will have to determine whether to forgo destructive cross
examination.
• Elements of Cross Examination
Successful cross examinations are invariably those that follow a preplanned structure
that gives the examination a logical and persuasive order. In relation to your planned
structure:
a. Have your cross examination establish as few points as possible.
Keep the points simple. Stick with your strongest points.
b. Make you strongest points at the beginning and at the end.
c. Vary the order of you subject matter. But make it clear to the jury where you are
going. Help them!
d. Do not repeat the evidence in chief or allow the witness to do this
Rules of Cross Examination
• Leading questions only, no open ended questions
• Make a statement of fact and have the witness agree with it
• Short sharp questions
• Simple language
• Know the probable answer before you ask it
• Listen to the witnesses answers
• Do not argue with the witness
• Keep control of your witness
• Be courteous but firm
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• Be a good actor
• When you have made your points Sit Down
Specific Skills
-the difficult policeman
-the witness who has given a previous inconsistent statement
-the expert witness

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