Trial Advocacy Law Notes (v2)

Conflict of Interest, the “cab rank” rule and applications for recusal of judicial officers

This chapter deals with ethical issues facing trial lawyers when they must deal with:

a)      Conflicts of interest;

b)      The “cab rank” rule applicable to the advocates’ profession; and

c)      Applications for the recusal of judicial officers.

 

1.      Conflict of interest

The following aspects will be dealt with:

a)      The conflict between the trial lawyer’s duty to the court and duty to the client;

b)      The client confessing guilt to the lawyer;

c)      Confession of guilt by client being no bar to defence by trial lawyer;

d)      Confession of guilt imposing strict limitations on the conduct of the case;

e)      Grounds of objection after a confession has been made;

f)       How far a trial lawyer may go in attacking prosecution evidence after a confession of guilt is made; and

g)      Statements not indicating a clear confession.

 

a)     Conflict between the duty to the court and duty to the client

A major area of conflict of interest faced by trial lawyers is where their role as an officer of the court conflicts with their duty to the client.  Where such a conflict exists the question is: whose interests prevail?  The answer must be that the duty to the court takes precedence, because a trial lawyer may only protect or advance their interests of his or her client to the extent that it is consistent with counsel’s function as an officer of the court.

b)     Client confessing guilt to lawyer

In considering the duty of a lawyer employed to defend an accused person who makes a clear confession to him or her concerning the offence charged, the following should be borne in mind:

                         i.         Every punishable crime is a breach of common or statute law committed by a person of sound mind and understanding.

                        ii.         The issue in a criminal trial is always whether the accused is guilty of the offence charged, never whether he or she is innocent.

                       iii.         The burden of proof rests on the prosecution.

                       iv.         Confession of guilty by client no bar to defence by lawyer

Every person who is charged before the court has a right to the services of counsel in the presentation of his or her defence.  The mere fact that an accused person has confessed to counsel that he or she committed the offence charged is no bar to an advocate appearing in his or her defence.  Such a confession does not release a lawyer from his or her duty to do all that can be done for the client without deliberately misleading the court.  This principle applies to all trial lawyers.

c)     Confession of guilt imposes strict limitations on the conduct of a case

A confession of guilt by a client imposes very strict limitations on the conduct of the defence.  Where a client makes a confession to his or her counsel either before or during criminal proceedings, counsel should explain to the client that he or she may only continue with the case on the following basis.

                         i.         Counsel may not in the proceedings assert that which he or she knows to be untrue, nor may he or she connive at or attempt to substantiate a fraud or untruth.

                        ii.         Counsel may appropriately argue that the evidence offered by the prosecution is insufficient to support a conviction and may take advantage of any legal matter which might relieve the accused of criminal liability.

                       iii.         Counsel may not set up an affirmative case which he or she knows to be inconsistent with the confession.

                       iv.         The client may then decide whether he or she wishes counsel to appear on the above basis or whether he or she wishes to withdraw their instructions.

d)     Grounds of objection after confession of guilt

An advocate to whom a confession of guilt has been made may by way of using principles of legal procedure to relieve the accused of criminal liability, object to such matters as:

                         i.         The competency of the court;

                        ii.         The form of the indictment;

                       iii.         The sufficiency of the evidence; and

                       iv.         The admissibility of any evidence

He or she may however, not suggest that someone else committed the offence charged, or call any evidence which the advocate knows or ought to know to be false having regard to the confession, for example, evidence in support of a false alibi.

Limitations of how a trial lawyer may go in attacking prosecution evidence for the prosecution in his or her cross-examination, or during the closing argument/speech/submissions for the defence.  Such a lawyer is entitled to test the evidence given by each witness, and to argue that the evidence taken as a whole is insufficient to prove that the accused is guilty of the offence charged.  An advocate may not go beyond this by making a case inconsistent with the client’s confession.  For example, by putting a version to witness which he or she knows is false.  These principles should be applied by all trial lawyers.  

e)     Statements not indicating a clear confession

A series of inconsistent statements are made to the advocate by the accused before or during the proceedings or statements may be made by the accused which point almost irresistibly to the conclusion that the defendant is guilty but which do not amount to a clear confession.

The insistence of the client in pleading guilty in the face of compelling evidence to the contrary would not be a reason for declining to act unless it adversely affects the confidence or the advocate-client relationship.  These instances raise the client’s interests are not jeopardized and all trial lawyers should exercise this caution.

2.      The “Cab rank” rule applicable to the advocates’ profession

The “cab rank” rule means that an advocate is obliged to accept a brief unless he or she has some good reasons for refusing to do so.  This applies to the lawyers practising on their own in the profession of advocates.

The following aspects of the “cab rank” rule will be dealt with:

a)      When an advocate is obliged to accept a brief;

b)      When an advocate may not refuse a brief;

c)      The reason for the “cab rank” rule;

d)      Why an advocate should not assume the role of judge;

e)      When an advocate may refuse a brief.

 

a)     An Advocate obliged to accept brief

Counsel is under an obligation to accept a brief in the courts in which he or she professes to practice, at a proper professional fee, unless there are special circumstances which justify his or her refusal to accept a particular brief. Furthermore, subject to the above, it is the duty of an advocate to whom the privilege of practicing in courts of law is afforded to undertake the defence of an accused person who requires his or her services.  The phrase “cab rank” was coined by Lord MacMillan.  He used the words “on the cab rank” for hire and means that an advocate is obliged to accept a brief unless he or she has some good reason for refusing to do so. The reason for the rule is that every person is entitled to be represented in a court of law.

b)     When counsel may not refuse a brief

An advocate may not refuse a brief because he or she:

                i.         Does not think much of the client’s chances of success;

               ii.         Does not think much of the client as a person; or

              iii.         He thinks that the facts of the case are unsavoury/objectionable.

 

c)     Reason for the “Cab rank” rule

Marshall Hall, the famous English advocate, explained the reason for the cab rank rule as follows:  Barristers (lawyers) are public servants and may be called on just as a doctor may be called on to operate on a man suffering from a loathsome complaint.

Every person who is charged before the court has a right to the services of counsel in the presentation of his or her defence.  Any action which is designed to interfere with the performance of this duty to accept a brief is an interference with the course of justice.

d)     Counsel not to assume the role of a judge

It can be argued that an advocate, who refuses to defend an accused person because he or she feels that the person does not have a good case or is guilty, assumes the role of a judge.  Such an assumption undermines the fundamental and constitutional principles of the Constitution of Kenya, 2010 [Article 50 (2)].  The duty is on the court, not the advocate, to make the decision on the guilt or otherwise of the accused.

e)     When counsel may refuse a brief

Despite the “cab rank” rule, an advocate may refuse a brief where there are special circumstances which justify his or her refusal to accept a particular brief.  Advocates may decline specialist briefs where they consider themselves not competent to accept the brief.  It has been suggested that counsel may refuse a brief for a number of good reasons including but not limited to the following:

                         i.         The client cannot afford the fee;

                        ii.         The advocate may have been consulted by the other side; Central Bank of Kenya v Uhuru Higway Higway Building company

                       iii.         The advocate may have confidential information about the other side;

                       iv.         The advocate may know one of the witnesses involved;

                        v.         The taking of the brief may clash with some office or appointment the advocate holds and his or her duties as an advocate;

                       vi.         The advocate does not have the necessary skill or experience to conduct the case competently on behalf of the client; and

                      vii.         The advocate has too much work and can see in advance that he or she will not be able to carry out the brief.

3.      Recusal of judicial officers

Trial lawyers faced with the prospect of having to ask a judicial officer to recuse him or herself must consider the following:

a)      The need of utmost tact;

b)      How to apply for a recusal based on kinship or previous connection with the case:

c)      How to apply for a recusal based on bias;

d)      The factor to consider when applying for recusal;

e)      The duty to avoid premature assessment of the need for recusal; and

f)       The consequences of the abuse of the right to apply for recusal.

 

a)     The need for utmost tact

Trial lawyers who find themselves faced with having to request the recusal of a judicial officer should always use the utmost tact when doing so.  Judicial officers are only human, and do not like to be told in open court that they may not be able to make a fair or unbiased decision because of some reason they themselves have not brought to the attention of the interested parties.  They are nevertheless expected to retain their objectivity when considering an application for recusal.

b)     Recusal on kinship or previous connection with decision

Where the application is based on the judicial officer being related to somebody or because of some previous connection with a decision in the same proceedings, the application will not be difficult as the court will usually oblige. It is advisable for the lawyer to point out such a relationship or connection to the judge or magistrate in chambers before raising the issue in open court.

c)     Recusal based on bias

Applications for recusal on grounds of bias can be very difficult, and the trial lawyer must take care to avoid words, which may reflect adversely upon the actual impartiality of the court and which may thus be contemptuous.  Submissions founded on fact and made in moderate language are protected.  However, exaggerated, reckless or incautious language may result in the applicant being held in contempt of court.  Once again it is advisable to advise the bench beforehand about the pending application, in order to give the judicial officer an opportunity to withdraw from the case on his or her own initiative.  Counsel making an application for recusal of a judicial officer should consider the following factors:

                i.         The repetition of protestations of deep respect will not make the submissions more convincing if the effect of the words is to undermine the honour and dignity of the court.

               ii.         As a matter of professional courtesy, the judicial officer who is being asked to recuse himself or herself should be informed in advance that such an application will be made. This is usually done informally by asking the judicial officer to receive both counsel in chambers where the person wishing to make the application indicates tactfully the fact and the grounds of the application.  The officer concerned then has time to consider the request and where appropriate, to arrange for someone else to hear the case.

              iii.         Where a lawyer moves for recusal, the other counsel should remain completely neutral because it is essentially a matter between the first lawyer and the bench. The lawyer on the other side should not become involved and should state that he or she will abide by the court’s ruling.

d)     Avoiding premature assessment of need for recusal

Every trial lawyer at some stage may feel that the court has formed an opinion adverse to his or her client. It has been suggested that this can be overcome by doing the following:

                i.         Lawyers should always preserve the degree of independence and detachment necessary to allow them to remain objective.

               ii.         Lawyers should not act prematurely when deciding to apply for recusal in case the court’s opinion is merely the expression of transient contemptuous feelings.

              iii.         Lawyers should make sure that they are right before making an application for recusal, and that it is the only reasonably practical step to take.

e)     Consequences of abuse of the right to apply for recusal

If a trial lawyer abuses the request of a judicial officer to recuse himself or herself, and if under the cloak of an application for recusal, the applicant is in truth insulting the court wilfully, summary committal [for contempt of court] may be appropriate.  Advocates should never use their position to undermine the dignity and reputation of the court.

Manners in Court (Court Etiquette)

The correct behaviour at court (court etiquette) is usually determined by long-standing practice. Sometimes rules of etiquette are also contained in the practice manuals produced by various divisions of the High Court and bar associations.  Many rules of etiquette are also contained in the rules of conduct of the legal profession. This chapter deals with:

a)      Dress

b)      Punctuality

c)      Introductions

d)      Modes of address

e)      Behaviour in court

f)       Witnesses

g)      Court terminology

h)      Perceptions of bias; and

i)       Humour in court

a)     Dress

Appropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or blue). Ties should be understated-loud ties and cartoon characters on ties may be viewed as improper.  Be aware of the smaller details, such as ensuring that shoes are clean and that shirt top collar buttons are fastened.  If a rope is required, ensure it is ungreased, of a suitable size and in good repair.  Male witnesses should dress in collar and tie, and female witnesses should dress smartly and conservatively.

b)     Punctuality

Always ensure that you are at the court at least 30 minutes before the court’s starting time.  Judges and the public expect lawyers to be punctual:  repeated lateness without adequate explanations may be treated as contempt of court.

 

c)     Introductions

Trial lawyers should always introduce themselves to the judge who will be presiding in their cases.  The term “judge” is used generally to include judges of all courts-Magistrates, High Court, Court of Appeal, Supreme Court.  You only need to introduce yourself once – it is not necessary to reintroduce yourself before each subsequent case you may have before the same judge.  It may, however, be prudent to reintroduce yourself if you have not appeared before the judge for a long time and he or she may not remember you.

d)     How to introduce yourself to a judge

The introduction must be brief and along the following lines:

“Good morning, Judge.  I am Mary Juma, of the firm of Juma and Partners, and I am appearing for the plaintiff in the case of John vs Anne trial which is due to start today.”

“Judge” is the mode of address to a High Court judge in chambers.  In court, counsel should introduce himself as follows e.g.

“My” Lord, I am Mary Juma of the firm of Juma and Partners, and I appear for the plaintif in this case.”

Finally, court etiquette requires you to be accompanied by your opponent when seeing the presiding officer out of court, but this rule does not apply to pre-trial introductions.  In the High Court, the practice is to be fully dressed for court when introducing yourself.

If you have not previously met your opponent, or any of the court officials (like the stenographer, interpreter, court orderly), you should formally introduce yourself to them as well.

e)     Modes of address

i.                Magistrate’s Courts

In the Magistrate’s courts, presiding officers are addressed as “Your Honour” during court proceedings and by their normal civil titles.  Modes of address such as “Your Worship” and “My Lord” are increasingly being seen as outmoded and unnecessarily pompous, and may, through usage or legislation, be replaced with a uniform mode of address of “Your Honour” in all courts in the future.

ii) High Court, Court of Appeal and Supreme Court

The presiding officer is addressed as “My Lord” in court, and as ‘judge’ out of court or in chambers.  Note, too, that the informal ‘you’ and ‘your’ is replaced by “Your Lordship”- for example. “No, My Lord, I was not aware that Your Lordship has not completed your Lordship’s question.

As the term ‘My Lord’ is addressed to the office of the High Court judge, it is preferable to address both male and female High Court judges in this way.  A female judge may prefer to be addressed as ‘Her Ladyship’ or “My Lady”– establish her preference prior to the commencement of the trial by checking with her registrar.

f)      Behaviour in court

                         i.         Entering and leaving the courtroom

When the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all those present in the courtroom must stand.  When the judge reaches the bench, he or she will stand, bow slightly and then sit down.  This is the cue everyone in the courtroom to sit as well.  When the judge leaves the courtroom, the orderly again announces that everyone should rise – remain standing until the judge is out of the courtroom.

Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom when it is in session should:  when leaving, briefly pause at the exit door, turn towards the judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow slightly towards the judge, and then proceed to you place.

Should you wish to deliver a message to one of the trial lawyers while the court is in session, enter the courtroom and quietly sit down next to the lawyer concerned.  Then write out a message, leaving the note with the person concerned, and quietly exit.  It is distracting to the court and bad manners to whisper to one of the trial lawyers whilst proceedings are in progress.  Also limit such interventions to matters that cannot wait until the next adjournment.

ii) Do not wander or walk about in court

The general rule is that a lawyer appearing in a trial should not move away from his position without the permission of the court.  Do not walk around when asking the witness questions or making submissions.  In a criminal case when the defence lawyer wishes to speak to his client (the accused who is standing in the dock), the defence lawyer will have to request the court’s permission: e.g. “My Lord, May I approach the accused for instructions on that point?”

Note that if a longer discussion is required, it is more appropriate to request the court for a short adjournment.  This means that the judge will leave the courtroom, and be recalled by the court orderly once the consultation has been completed.

ii) Always stand when addressing and when being addressed by the judge

When the judge speaks to you as a trial lawyer appearing in the matters before him, you should immediately stand.  When the judge is addressing your opponent, you must sit.  For example, if you are busy cross-examining an opposition witness, and your opponent stands up to object, you must immediately sit.  This indicates to the judge – whose attention has been focused on you – that your opponent is standing, and the judge will then focus on your opponent to hear the basis of his objection.

Only if the judge is addressing both you and your opponent simultaneously (for example, discussing a possible postponement date), should you both be standing at the same time.

You are required to stand when indicating your acceptance of a court ruling:  for example, when the judge completes the delivery of the judgment, both you and your opponent should stand up to indicate your acceptance of the decision by saying: “As the court pleases/most obliged.”

iii) Get the judge’s permission before moving on to the next stage of the trial

After each stage of a trial, or after an intervention by the judge, first get his permission before continuing.

For example: during plea proceedings in a criminal trial after the accused has pleaded not guilty, you will inform the court what the basis of the accused’s defence is.

Magistrate (to accused): how do you plead?

Accused: not guilty, your worship

Defence counsel: Your Honour, I confirm that the accused’s plea is in accordance with my instructions. May I proceed?

[Only continue once the magistrate assents.]

Another example: While you are cross-examining a witness, the magistrate intervenes by asking a question.  If it is a short intervention (one or two questions), you may remain standing until the magistrate gives you an indication to continue:

Magistrate:             [Having completed his questioning of the witness]

Yes, Mr. Juma, you may continue.

Defence counsel:  As the court pleases.  Now, Mr Musa, you said…..

 

g)     Witnesses

When being questioned during examination-in-chief or cross-examination, witnesses must look at the lawyer putting the question, and then look at the judge when answering the question.  Should the witness not be trained to do so, the judge is likely to become irritated by being treated like an interested observer to a conversation between the lawyer and the witness.

Witnesses yet to be called must wait outside the courtroom (with the exception of certain expert witness who may be required to hear that evidence for the purposes of their later testimony).

 

h)     Court terminology

Trial lawyers must become familiar with a number of important words and phrases used in court proceedings:

i)       “I submit …” During argument at the close of the trial, or argument on specific issues that arise during the trial (for example, following an objection), trial lawyers make submissions to the court on the correct approach, thus: “My Lord, I submit that the court should find…” Do not use: “I think”, “I aver”; “I consider”; “I am of the opinion”; “I declare”.

ii)    “As the court pleases” This is a stock response phrase indicating the acceptance of decisions by the court, or is used where counsel wishes to indicate that he has completed a submission.  Do not use phrases like “as pleases the court”; “the court pleases”; OK. ‘My Lord”; “Alright” or “I’m finished, ‘My Lord”.

Direct questions from the bench, should however, be answered with a simple “yes” or “no”.e.g.

Judge:  Were the papers served on the defendant personally?

Counsel:  Yes, “My Lord.”

iii)           “If the court will bear with me”   This is a phrase used to request the court to be patient for a little while as you find a misplaced note or authority.  It is meant to indicate a short delay (a minute or two at most). Do not use: “My Lord, just hold on a second” or “Give me a moment to find my note, My Lord”.  If the delay is likely to be longer than a minute or two, rather request a short adjournment.”

iv)           “With respect”/ “With great respect”/ “With the greatest respect”:  A submission preceded by the term “with respect” indicates in advance to the judge that you do not agree with the view stated by him on the issue being discussed.  Should the debate become more heated, and your disagreement with the judge’s position stronger then, you may show your intensified disagreement by prefacing your submission by saying “with great respect, Your Lordship”.  Should you reach a stage in your interaction with the court where you consider the court’s position to be utterly without foundation, you may indicate your disagreement by prefacing your response: “with the greatest respect…” Thus, the greater the professed respect, the less the actual respect for the court’s point of view.

Note, that however strong your disagreement with the court, your submissions must remain courteous and restrained in tone, volume and content, (Remember, you have a need to retain the sympathy of the court).

v)            “I am indebted to the court”, this is the traditional method of saying ‘Thank you’ in court proceedings, and still is in widespread use.  E.g.

Judge:  Ms John, I will give you a short adjournment to take instructions on that point.

Counsel:  Thank you, My Lord.  (Or: I am indebted to the court).

vi)           “My instructions are…”: Often your client may insist you make an application to, or request of the court that is ill-advised or it may be that a version you are instructed to put a witness is manifestly absurd.  In most cases, you will have a duty to comply with your client’s wishes.  If you are challenged (usually in an incredulous tones by the judge, your response that those were your instructions is sufficient to indicate that you are merely carrying out you legal duty, and are not necessarily convinced about the legal or tactical soundness of your submissions.)

vii) “I withdraw the question” or “correction”:  Often counsel will put a question to a witness (either in examination-in-chief or cross-examination), and then decide to change or modify the question.  The correct method to do so is:

Counsel:  Now, Mrs John, when you first saw the bruise makers on…. (stops, then says: Your Lordship, I withdraw the question) –then starts again:  Mrs. John what date was it that you saw the bruise marks on your son for the first time?

A shorthand method of achieving the same effect is to insert the word ‘correction’ after the phrase you want discarded.

Counsel:  Now, Mrs. John, when you first saw the bruise marks on –correction, Your Lordship –Mrs John, what date was it that you saw the bruises on your son for the first time?

viii)         “My learned friend”.  The correct method of referring to your opponent in all courts is “my learned friend” (never sarcastically qualify the ‘learned’ with, for example, ‘my alleged learned friend’ – such behaviour is unprofessional).  It is also preferable to refer to your opponent by name: “Mr. John has submitted that…..” (This may be safer route given the sensitivity of certain members of the Bar at being addressed as ‘my learned friend’ by attorney and prosecutors).

ix)           References to judges not before court:  Refer to other judges as in the formal written references: ‘His Lordship’, Mr. Justice Paul, in his judgment…”  When addressing the court, avoid referring to other judges as “Your brother, Paul” – this reference is only used by judges themselves when referring to other judges.

x)            Postponements; adjournments; remands; standing-down:

The term postponement is used when a case or matter that has not yet commenced is postponed to a later date.

Once a matter has commenced, you have proceedings and proceedings are always adjourned. (Adjournments can be any length of time, from a few minutes to weeks or even months. During court hours, the morning tea-break is referred to as the ‘short’ adjournment, whilst the lunch-break is referred to as the “long adjournment”).

A remand refers to the postponement to another date while the accused is in custody on a criminal charge, as in; “Your Lordship, I ask that the accused be remanded in custody to the 3^rd of June for trial.”

Only a witness can stand down (that is, literally step down from the witness box).  Matters or proceedings cannot stand-down –they can only be postponed or adjourned.

xi)           Perception of bias

‘Justice must not only be done, but also be seen done.’

This adaption of the quoted dictum from the old English case of R v Sussex Justices holds true for all aspects of the trial.  For example, the client you are defending on a criminal charge may not understand your undue familiarity with the prosecutor (who may be an ex-colleague and good friend).  Maintain a professional reserve in your dealings with your court opponents, lest your client interpret your later behaviour during the trial (like a concession properly made) as having been influenced by your friendship with the opponent.  For the same reason , if the judge in your matter is a friend or close acquaintance  , do not refer to him by his first name in the presence of your opponent , nor should you discuss social matters when seeing in chambers in the company of your opponent.

xii)         Humour in court

Trial lawyers should, as a rule, avoid attempts at humour during the trial.  This is especially true for criminal trials, where attempts at humour may be construed as trivializing a serious matter. Leave attempts at humour to the judge.  Sometimes, however, a wry comment may not be inappropriate.

 

 

 

 

 

Preparation for Trial

In this chapter we consider:

a)      Trial preparation

b)      Oral advocacy: the ‘PRES’ formula;

c)      The importance of the onus of proof

d)      The sympathy of the court

e)      Preparation wins cases

 

a)     Trial Preparation

Thorough preparation is probably the single most important factor that will determine whether you win or lose your case.  The crucial steps in preparation, applicable to all tribunals, are:

                i.         Identifying the issues on the pre-trial documentation;

               ii.         Preparing a trial plan;

              iii.         The final consultation before trial

              iv.         Identifying the issues on the pre-trial documentation;

In civil cases, thorough preparation requires analysis of the pleadings (preferably by preparing an advice on evidence in order to determine which issues are common cause (agreed on and not disputed by either party-list of agreed issues), and which issues are in dispute.  Analyse in a trial plan the issues in dispute.

In criminal cases, thorough preparation requires an analysis of the charge sheet (or information in High Court trials), in order to determine exactly what your client is facing.  This analysis also entails numbering and listing all the elements of the offence charged, in order to prepare a trial plan.

This table provides a synopsis of the preparation process before trial:

Civil trial	Criminal trial
Pleadings closed: trial notices served and replied to; discovery and interrogations completed; trial date set.	Trial date set; charge sheet/information obtained and analyzed defence
Consult with client or witnesses	Obtain all own client statements, copies of state witnesses’ statements and all other relevant documents to be relied during trial (e.g. fingerprint reports, medical reports, from prosecutor).
Request for further particulars served and reply obtained; pre-trial conference completed.	Consult with complainant/accused and witnesses.
Analyse pleadings (preferably with the Advice on Evidence format)-identify the issues to be proved at trial by either party.	Request for further particulars.
Draw up a trial plan setting out the issues (elements of the claim).	Draw up a trial plan; listing each element of each charge the accused faces.
Consider issues – decide what evidence is available or required to prove each issue – enter on trial plan. Research legal aspects.	Obtain required additional evidence – further consultation with client and/or witnesses.
Decide a theory of the case. [The strategy and tactics you will use: the likely order of witnesses, any ‘fall-back’ positions].	Decide on a theory of the case. [The strategy and tactics you will use; the likely order of witnesses, any ‘fall-back’ positions].
Prepare file for trial (organize sequence, etc.). Comply with court rules regarding indexing and pagination.	Prepare file for trial and draft formal court documents that may be required
Final consultation for trial with client and witnesses	Final consultations for trial with accused and witnesses (or with state witnesses if acting for the state)

 

iii)          The final consultations before trial

The final consultation before trial should be held as close as possible to the date of the trial – preferable the day before the trial.  The object of the final consultation is to ensure that the witnesses you intend calling are fully prepared for the trial.

Draw a segmented examination-in-chief witnesses’ sheet for each of your witnesses.  This is done by dividing the conversion contained in the witness statement into three or four segments (for example, actions prior to the incident, the incident itself, actions after the incident, explanations for certain actions).

Explain the relevant portions of the case to the witnesses in plain language – the witness must understand for what purpose he or she is being called in the context of the trial as a whole.

Then explain to the witness that you will now lead him exactly as you intend to lead him in court.  Ask the witness to stand behind a chair to stimulate the witness box, and you must also stand when leading him as you will do in court.  It is important that you do not sit and merely talk the witness through his statements, or even worse, read the statement back to the witness without doing simulation. You need to assess the witness on his grasp of his version, as well as assessing his demeanour and mannerisms.

Now lead the witness exactly as you intend to lead him at court, noting on your witness sheet any errors, hesitation, distracting mannerisms, and the use of ambiguous words. This process (with corrections of errors identified) will usually have to be repeated at least three to ten times before you will be satisfied that the witness is ready for trial.

iv            Things to remember when preparing a witness

Insist that the witness uses short, descriptive and meaningful words; for example, ‘walk’ rather than the meaningless ‘proceed’, ‘struck him on the left arm with a stick’ rather than the meaningless ‘assaulted him with a wooden object on his body’ and so forth.

Train the witness in the practical conventions such as the correct way to address the court, whom to look at when testifying, and so forth.

Play the role of the opposition (prosecutor or opposing counsel) to test weaknesses in the witness’s version, and correct potentially damaging responses such as arguing with the opposing lawyer, volunteering unasked information and losing temper.  It is important to confront your witnesses with weak points in their case – the process is known as “defusing landmines”.  Do not succumb to the temptation to ignore potential weaknesses in your witness’s evidence in the hope that they will not be uncovered by the opposing counsel.

Explain the court layout to the witness, and also explain the sequence of events that will follow when the witness is called to testify, including the choice of taking the oath or the affirmation.  If an exhibit or a document is to be handed into the court through the witness, explain the questions you will ask and the response you expect, as part of the exercise.  Also explain the procedure to refresh the witnesses’ memory in the witness box, in case this should become necessary.

Consider habits of speech that may distort meaning.  For example, the witness may have a habit of saying he is ‘pretty sure’ about something, when he actually means that he is completely convinced and has no doubt at all.  During your pre-trial consultations, the witness must be told to use words that reflect his intended meaning – therefore, ‘pretty sure’ may be replaced by ‘absolutely sure’ in the pre-trial consultations, if that is what the witness means.  Note that there is nothing ethical about this correction – ‘absolutely sure’ reflects what the witness wishes to say and not the ambiguous “pretty sure”.

Be especially vigilant about the use of words that affect probability assessments, such as ‘likely’, ‘possible’ ‘probable’.  Warn your witness against being cajoled or bullied into concessions by the use of leading questions by opposing counsel.

Example:

Opposing counsel:  Now Mr. Jones, surely you will agree with me that the number of people present, it is that given the number of people present, it is possible – and I’m not saying that you did make a mistake –just that it is possible you made a mistake?

If, during pre-trial consultation, your witness was adamant that he had not make a mistake, your pre-trial preparation must reinforce his commitment to his version – he must not allow himself to be seduced into seemingly innocuous concessions.

Also inform the witness that he is entitled to explain his answer –he cannot be forced to reply only ‘yes’ or ‘no’ to a question under cross-examination.  Should the cross-examiner insist on this, the witness must be equally insistent that he wishes to qualify his answer.

When you are satisfied that the witness is adequately prepared ask the witness if he or she has any questions on anything that may still be unclear.

 

 

Oral Advocacy:  The “PRES” formula

a)     Introduction

All stages of the trial, you will be required to respond to questions from the bench, or you may have to make applications on various issues, or try to persuade the court to accept your submissions on a disputed point. The “PRES” formula is a simple and effective formula that enables you to respond promptly and persuasively to oral questions. It is especially useful in situations where you are required to “think on your feet” – that is, respond quickly and effectively to questions when you do not have time to prepare.

Like any other skill, learning to speak effectively without prior preparation is a skill that can be learnt.  The stereotype of having ‘the gift of the gab’, implying an inborn ability to speak effectively without training, is largely a myth-it is a kin to suggesting that some people are born drivers , that some people learn quicker than others, and may have better language ability, but the essential skills can be learnt by anyone.

b)     The ‘PRES’ formula:  How it works

If you are asked an unexpected question, a message is sent to your brain to retrieve all available information related to the question asked (‘input’). The retrieval process is random, and as information is retrieved, you speak the information retrieved as it is retrieved (‘output’). If there is a retrieval delay between one item of information and the next, the waiting gap is often filled by “delay sound” such as ‘uhmm’, ‘er’, and um…’, or by hand gestures (the hands often frantically waving to speed to retrieval process).

The result is a disjointed, uncoordinated oral of the retrieved from information, with little or no structure or persuasive value.  When you use the ‘PRES’ formula, you impose a structure on your oral response that results in a co-ordinated and persuasive response to the question posed.

The information randomly retrieved from the brain is effectively ‘filtered’ through the formula, and the four-step sequence used when applying the formula usually also results in the elimination of distracting killer sounds and excessively hand gestures.

c)     Applying the “PRES” formula

The formula woks as follows:

P –Point of view

When asked a question, give it a moment’s thought and then state your point of view on the problem.

R – Reasons

Give the reasons why you hold the point of view stated.

E –Evidence and examples

Support your reasons with evidence (for example, authorities who agree with your point of view) and, if necessary use examples to illustrate your reasons.

S – Summarize

Restate your point of view, which is now your conclusion.

 

When answering a question, it helps to use the actual words of the formula.

P –“My point of view on this statement is ………..”

R – “The reason I say so are….”

E – “Professor X’s research provides evidence in support of …….”

S – “In summary, therefore, I am of the opinion ….”

Using the ‘PRES’ formula to deal with “off the cuff” questions

 

Example 1:

You are asked the following ‘off the cuff’ question:  Is smoking bad for your health?  Using the ‘PRES’ formula, you would answer along the following lines.

My point of view is that smoking is indeed bad for your health.

The reasons I say so are first, medical scientists worldwide are virtually unanimous that smoking is bad for your health, and secondly, most governments and even cigarette manufacturers themselves accept that smoking is dangerous to your health.

As evidence of the first reason, there is large body of scientific research proving conclusively the link between smoking and fatal diseases such as cancer and heart disease, and as evidence of the second reason, one only has to pick up a cigarette packet to see the prominent health warning printed on it.

In summary, therefore, my point of view is that smoking is indeed bad for your health.

d)     Using the ‘PRES’ formula in court

Once the ‘PRES’ formula has been mastered, it can be adapted to many contexts, for example responding to queries or challenges from the bench during a trial. (Note that the first step – ‘My point of view’ should be replaced with the words ‘my submission’, when addressing the court, but the rest of the formula can be applied unaltered).

 

 

Remember that the ‘PRES’ formula must be practiced continually until the sequence of responses becomes second nature to you.

e)     Things to remember about the ‘PRES’ formula

                i.         The summary (conclusion) is merely a repetition of the ‘point of view’ or ‘submission’ – it serves as a signal to the listener that you have completed your submission.

               ii.         The evidence and examples must support the reason given-if you give more than one reason, then, remember to link each reason to the evidence and examples that support it.

              iii.         Remember to emphasize the key words when speaking:  “The reason I say so….;as evidence …”and so forth.

              iv.         Pause after each step of the formula to give the listener time to consider your submission (the listener may want to interject with a follow-up question or clarification).  Remember the object is to persuade the listener, not to make a speech.  The ‘PRES’ formula may also be used for pre-prepared submissions, not only for impromptu responses. In this case, however, the first step (“point of view”) is replaced with an introduction in which your approach to the question or problem is outlined.  The remainder of the formula stays the same.

 

The importance of the onus of proof

The common object underlying each stage of the trial process is to try to ensure that, at the trial, judgment is given in your favour.

When the court is deciding whether judgment should be given in your favour or not, the overall onus of proof is decisive:

In a criminal case, the state will have to show that, on all the evidence, the probabilities favour the state to such an extent that there can be no reasonable doubt of the accused’s guilt – in other words, proof beyond a reasonable doubt.

In a civil case (and all other non-criminal hearings), the plaintiff will have to show that, on all the evidence, the case for the plaintiff is more probable than the case for the defendant – in other words, proof on a balance of probabilities.

In both cases the assessment is of the probabilities – the only difference being that to secure a conviction in criminal cases, the probabilities must overwhelmingly favour the State, whereas to win a civil case, the plaintiff has the less onus of merely showing that, when compared to the defendant’s version, the plaintiff’s version is more probable.

The stringent onus on the state in criminal matters has the consequence that the accused can secure a not-guilty verdict even on an improbable version-provided that the version is not so improbable that it cannot reasonably possibly be true.

An understanding of the level of probability required for the purposes of your case is crucial –it will affect every decision you make at each stage of the trial.

 

The sympathy of the court

In theory, the judges consider all the evidence calmly and dispassionately eventually coming to a conclusion by the application of sound rules of logic.

However, judges are human, and therefore also subject to being influenced by emotional factors for example, if a witness angers the judge by making a disrespectful comment to the court, the emotion of anger consciously or subconsciously influence the judge’s assessment of the witness’s credibility.  A negative credibility assessment will, in turn, result in the witnesses’ version being rejected, finally resulting in the case the witness was called to support being assessed as improbable.

The behaviour of counsel could have similar effects on the court- for example: badgering and abusive cross-examination may result in the court coming to the witnesses’ assistance by reprimanding counsel.  This in turn, may result in the witness being more positively assessed by the court, as any contradiction or improbabilities in the witness’s evidence may be assessed as being due to the abusive conduct of the lawyer, and not due to the witness’s own deficiencies.

Therefore, in addition to maintaining a continual focus on the onus, counsel should ensure that he/she does not lose the sympathy of the court.

The opening statement and the examination-in-chief

This chapter deals with:

1.      The opening statement/speech/remarks

2.      Examination-in-chief

 

1.      The opening statement/speech/remarks

The purpose of the opening statement is to provide the court with a framework within which to understand your case. Normally your client’s version is briefly outlined, the essential elements of the case are high-lighted, and the names and number of witnesses are mentioned. Sometimes the essential focus of each witness’s testimony will also be mentioned.

In case where the issues are simple and straightforward you may choose to forego the making of an opening statement altogether.  Is opening statement mandatory (in both civil and criminal cases) in Kenya?

i) Example of an opening statement

“My Lord, the accused Mr. John’s defence in this matter is that he acted in self-defence when he stabbed the deceased.  The evidence so far has shown that the deceased was the aggressor and that the accused was merely responding to an unprovoked attack”.

The defence intends calling two witnesses, the accused, Mr. John, and his father, Mr. Ben, who will testify about the circumstances surrounding the arrest of his son.”

ii) Keep the following points in mind

                         i.         In civil trials, the opportunity to make an opening statement gives the plaintiff a considerable tactical advantage, as the plaintiff’s version is accepted as the prima facie probable version, with the defendant then left with the task of persuading the court that its version is the more probable one.  

                        ii.         Beware of being too specific and detailed in your opening statement, as the contents of the opening statement is evidentiary material that may be used to cross-examine your witness.

                       iii.         The most important aspect of the opening statement is to ensure that the court fully understands every aspect of your case.  The making of an opening statement is therefore imperative in complicated civil case and criminal cases.  In such cases, it is useful to support the opening statement with a diagram, which must be handed up for the guidance of the court. (Remember to also hand a copy to your opponent).

                       iv.         Finally, prepare your opening statement notes by out-lining your opening statement in point form, using the notes as a memory aid when you address the court – do not read a full written statement.

 

2.      Examination-in-chief

The following topics will be covered under this heading:

a)      The main objective of examination-in-chief

b)      The witness sheet

c)      Manner of testifying

d)      Examination-in-chief: the essence

e)      Leading the witness: the core skill

f)       What are ‘leading’ questions?

g)      Controlling the witness

h)      Be aware of the record

i)       The order of calling the witnesses

j)       Leading the witness-in-chief: a summary of steps

k)      Refreshing the memory of witnesses during examination-in-chief

l)       Leading the expert-in-chief

m)    Hostile witnesses

n)      Objections

o)      Mannerisms

 

a)     The main objective of examination-in-chief

Examination-in-chief is the process of calling witnesses to support the elements of your case.  This can be done through the witnesses’ own testimony, or through items of evidence (objects or documents) handed into court by the witnesses called.

E.g. in a charge of murder, consider the following trial plan:

In order to support the first element of the charge, that is, that the accused acted unlawfully, the state plans to call two eye witnesses

For the second element (intention), the same two witnesses will be relied upon by the state.

The element of causation will be supported by evidence of the pathologist who did the post-mortem examination, as well as the witnesses who witnessed the attack.

The fourth element will obviously be common cause, as the defence is unlikely to dispute that the deceased was a human being.

Assuming that the defence relies on the defence of self-defence, this defence will be supported by the testimony of the accused and another witness.  The essential element of his defence is that the accused, in the circumstances, had no choice but to kill the deceased in self-defence.

b)     The witness sheet

In your pre-trial preparation you will have prepared a witness sheet for each of the witness you intend calling.  (Do not laboriously write out your proposed question and answers, as this is time-consuming and difficult to read whilst standing).  It is suggested that you tick off each point on the sheet as it is asked to ensure nothing is over looked.

c)     Manner of testifying

We have seen that the essential purpose of leading the witness in-chief is to ensure that the witness deals with the issue or elements identified in your trial plan.

It is, however, a futile exercise to lead the witness through a dry, stark rendition of his version – his manner of testifying must also be persuasive.

Case study

Mr. Jackson was charged with culpable homicide, it being alleged that he negligently drove his car into the car of the two deceased (an elderly couple).  The collision occurred on the deceased’s side of the road, and there were no eye witness to the collision.  The collision occurred at the night in rainy weather.

Mr. Jackson was adamant that he had been driving on his correct side of the road when he saw the deceased’s car lights coming straight at him on his side of the road.  As he could not swerve to the left due to a freeway barrier, he swerved to the right to attempt to go around the deceased’s car.  As he swerved to the right, the deceased’s car swerved to the left back onto its correct side of the road again, but was too late and the cars collided, killing the two deceased and seriously injuring Mr. Jackson.  As collision had occurred on the deceased’s side of the road, Mr. Jackson was charged with culpable homicide (presumably on supposed premise that his negligence could be inferred from the point of impact).

In the pre-trial consultation, Mr. Jackson’s first rendition of his version went as follows (in a dull monotone):

Lawyer:  Tell the court what happened

Jackson: It was about 6.30 in the evening. I was coming from watching rugby in Warner Beach with a friend. I drove along Kingsway towards ‘Toti – came to the sharp bend next to the fee way  - saw car lights on my side of the road – turned right to go around – the other car corrected itself – was coming for me again – I tried a sharp left to avoid it–was too late–collision.

This staccato delivery in a dull monotone sounded like Mr. Jackson was merely repeating a rehearsed story–it did not sound at all convincing (even though his version of events was plausible enough).

The crucial aspect of the trial strategy was to persuade the court that Mr. Jackson’s version of how the collision occurred was reasonably possibly true.

In order to enhance the persuasive value of Mr. Jackson’s testimony, he was asked to re-enact exactly what happened in his car immediately prior to the collision.  He was told that the key word that would trigger his enactment would be the word ‘bend’ in the question; “Mr. Jackson, tell the court exactly what happened when you came around the bend?”

This device transformed Mr. Jackson’s dull, monotonous summary of what happened into the following:

“As I turned up into Kingsway, I saw a pair of car lights coming straight for me on my side of the road.  I thought, ‘Oh shit!’ The idiot is going to hit me!’ jerked my steering-wheel to the right and slammed down my foot on the accelerator.  As my car went to the right, the other car also suddenly swerved back onto its correct side of the road.  I shouted out loud ‘stupid bastard!’ and jerked my wheel to the left to try and miss him, but it was too late!”

In the trial, this re-enactment was extremely persuasive and also accorded with the inherent probabilities of the situation.

The key is to remember that your witness’s testimony paints pictures in the mind of the judge – if that picture is a dull summary in black-and-white, it will be much less persuasive than a vivid, dramatic rendition in Technicolor.

d)     The essence of examination-in-chief

The essence of the examination-in-chief is to lead the witness from given point in time, taking him through the sequence of events step-by-step to a later point in time.  Let the witness present his version (‘tell his story’) in chronological sequence without any diversion or detailed explanations- once the judge has heard the outline of the story, you can return to the specific events.  The court, having heard the full version in outline, will then easily place the detailed explanation in the context of the overall version. First tell the whole story-then return to emphasize.

e)     Leading the witness: the core skill

The core skill in leading a witness from a given starting point to a pre-determined end-point is the simple sentence. “What happened next?”

Having outlined the story, repeating this question as your stock phrase, the second stage would be to baby-step the witness through these aspects.

Finally, remember the acronym ‘D.T.P?’ (DATE-TIME-PLACE?-ACTION?), as a device for starting your examination-in-chief of a witness.

Example:

Counsel:  Mr. Jones, on Sunday 1 April 1992 (date), at 2 o’clock in the afternoon (time), where were you (place) and what were you doing (action)?

Jones: I was walking in Sleep Street going towards Down Street in Umlazi.

Counsel: What happened next?

Jones:  [Continue until basic story is completed – then return to deal with certain aspects in details]:

Counsel:  Mr. Jones, I want to take you back in your evidence to the point where you were confronted by the deceased.  Exactly how far from you did he stop?

Jones:  About two to three paces.

Counsel:  What did he do immediately after he stopped?

Jones:  He stood there and shouted at me…

 

f)      What are leading questions?

Leading questions are not permitted in examination-in-chief.  However, do not confuse the process of leading the witness with (that is, taking the witness through his testimony using short, open-ended questions), with the concept of ‘leading’ questions – that is a question that is phrased in such a way that the desired answer is contained or implied in the question itself.

There has been much academic debate and little unanimity about an acceptable definition of a leading question.  The best approach, we suggest, is to define a leading question with reference to the reason why its use is not permitted in examination-in-chief.  A leading question may thus be defined as any question that undermines or diminishes the weight the court may give to the answer elicited from the witness by such a question.

Whether a question is objectionable on the basis of being ‘leading’ will therefore depend on entirely the context –the court wants to hear the witness’s testimony in his or her own words:  It does not want to hear the testimony of the lawyer, using the witness merely as a sounding board.

Consider the following examples:

Example 1:

Counsel:  Now, Mr. Jones, is it correct that you pulled out your knife and stabbed the deceased in self defence?

Jones:  Yes.

(Here it is the lawyer testifying, and Jones is merely affirming what the lawyer has said.  The court cannot give much weight to the single word ‘yes’ – how does it assess the probability of Jones’s reaction in the circumstances, and Jones’s demeanour on the single word uttered?  The question will not be allowed as the court can give a little or no weight to Jones’s answer).

Example 2:

Counsel: Mr. Jones, when the deceased came towards you, what happened next?

Jones:  He stopped about two paces in front of me, and I stepped back two paces

Counsel:  what happened next?

Counsel:  He put his hand into his pocket and pulled out a knife.

Counsel: What happened next?

Jones:  I immediately pulled out my own knife out from my belt and stabbed him before he could stab me.

(Here the questions are non-directive, giving Jones an unfettered choice on what to reply–therefore the potential weight of the answers are not compromised, and the questions are not ‘leading’).

It follows that it is not necessarily the form of the question that determines whether it is objectionable or not, but the context – that is, will the potential weight the court may attach to the answer elicited be compromised?

Example 3:

Counsel:  You are Mr Jones, you are 17 years old and in Shiners High School?

Jones: That is correct.

(This question is designed to elicit background information unrelated to the stabbing incident, and does not undermine the potential weight the court will attach to the answer – the question is merely cast in this form to speed up the trial).

Note, however, that if the Jones’s age had been in dispute –the State, for example, alleging that Jones is actually 20 years old, and that he has changed his age in order to be a juvenile offender, the question would be objectionable.  If Jones’s age is in dispute, an open-ended form will have to be used.

Counsel: Mr. Jones, how old are you?

Furthermore, casting the question in a form permitting only a limited number of options may be accorded the reply.

Example 4:

Counsel: Now Mr. Jones, when you stabbed the deceased, did you stab him on the head or in the chest?

(This question is objectionable because the witness is directed to choose only one of two options – a free choice may have elicited a reply that he stabbed the deceased in the stomach, or arm, or on any one of numerous other places on the body.  The correct question would be as follows:

Counsel:  Mr. Jones, where exactly on the deceased’s body did you stab him?

Jones:  On his right arm.

The extreme form of a leading question is not a question at all, but a statement. It is made to sound like a question by attaching a ‘tail’ to the statement which merely seeks the witness’s affirmation that he agrees with the statement.

Counsel: Mr. Jones, you stabbed the deceased on the right arm – is that correct?

Jones:  Yes.

 

g)     Controlling the witness

Despite the fact that court proceedings are tape-recorded, most judges prefer to note the evidence down in detail.  This requires the trial lawyer leading the witness to be aware of the judge’s writing speed (watching the judicial pen), and to delay the putting off a question to the witness until the answer to the previous question has been written down by the judge.  A useful control technique is to train to glance at your right hand while answering your questions-in-chief.

When your hand is raised palm-upwards (directly at about waist height), the witness must complete the statement he is busy with and then stop.

When you lower your hand (palm facing down), he must continue with his answer (until you raise your hands again).

This way you ensure that the delivery of the witness’s testimony keeps pace with the judge’s writing speed.  The inability to properly control your witness is bound to irritate the court, with the result that your witness may become unsettled and nervous.  Remember that both the lawyer and the witness must project their voices and speak in a clear, audible manner.  Also speak slowly and pause between submissions –the court also needs time to consider the submissions made.  If an interpreter is used, remember to allow for the interpretation to be completed.

h)     Be aware of the record

All court proceedings are tape-recorded or handwritten.  For purposes of appeal, the taped record is transcribed. This means that what is heard on the tape is what is typed, and this typed version forms the court transcript.  Keep this in mind when leading the witness.  For example, if your witness’s reply to a question is inaudible, this will be reflected on the record as follows:

Counsel: What happened when you handed the letter to the landlord?

Witness: (inaudible).

Counsel:  What happened next?

If your witness says nothing at all in response to a question, you must insist on an audible reply, or else the transcript may merely reveal two consecutive questions being asked.  Note that when cross-examining a witness, you may not want to insist on a reply, but you should comment on a witness’s inability to answer the question, or else the effect of your devastating piece of cross-examination may be lost.

Counsel:  You did not report the theft at all on Sunday, did you? [no reply from the witness]

Counsel:  I see you are unable or unwilling to answer the question.

Witnesses’ interruptions of your questions and outbursts of angers should also be described for the record, as they will merely be recorded as ‘intervention’ or ‘inaudible’ on the record.

Finally, physical demonstrations in court should be accurately described for the record.

 

Example:

Counsel:  How did you stab the deceased?

Jones:  Like this [demonstrates]

Counsel:  ‘My Lord, the accused demonstrated the stabbing action as follows:

He gripped the knife (exhibit 1) in his right hand with the blade facing downwards.

[Pause]

He lifted the knife up until the blade was above his head, parallel to the ground, and

[pause]

He demonstrated a swift angled downwards stabbing motion.

i)      The order of calling witnesses

Your trial strategy (overall plan) will determine the order in which you call your witnesses.  In some cases, you may want to call your best witness first, because the other witnesses merely corroborate his version; in others you may call your best witness last in order to leave a strong, positive impression in the mind of the court.

In criminal cases, the accused must be called first, or else a negative inference may be drawn by the court.

If there can be no prejudice to the state by calling other witnesses before the accused, no adverse inference may be drawn.

j)      Leading the witness in-chief: A summary of steps

Step 1:  D-T-P?-A? (Date-time-place?-action?)

Step 2:  Take the witness through his version chronologically, repeating the phrase: “what happened next?” as your stock phrase.

Step 3:  After completing the outline of the version (telling the basic story), go back to the specific points in the version and cover these aspects in great detail (baby-stepping).

Step 4:  Deal specifically with any weaknesses in the witness’s version. (‘Defuse landmines’).

Finally, at the conclusion of the witness’s evidence, indicate to the court that you have finished.

“That is the evidence My Lord,” or “I have no further questions, Your Lordship.”

Never conclude your evidence with an open-ended invitation to the witness to add to his testimony, such as:

“Is there anything else you would wish to tell the court?”  This is a recipe for disaster, as you never know the witness will come up with.

g)     Refreshing the memory of the witness during examination-in-chief

If your witness cannot remember a portion of his evidence when testifying, you may ask him if he wishes to refresh his memory from his statement (or note book or other document).  The refreshing of your witness’s memory may be crucial to your case, as without the forgotten facts the case might be lost.

k)     Leading expert witnesses-in-chief

Before leading your expert witness on his findings, you have to first establish the witness’s credential as an expert.  Only once this has been done, may the court have regard to his opinion. His credential may be established by virtue of his academic and professional qualifications and previous experience, or by previous experience.

Example:

In a murder trial, Dr. Joseph, a pathologist, was called to testify on the cause of the deceased’s death.  In order to establish his credentials as an expert, he should be led as follows:

Prosecutor:  Please state your full names for the record.

Dr. Joseph:  I am Dr. Joseph Peter.

Prosecutor:  What academic and professional qualifications do you hold, Dr. Joseph?

Dr. Joseph:  I have MB ChB degree of the University of Natal, obtained in 1972, and the Master in Medicine Degree from the University of Cape Town, obtained in 1979.  I also completed a post graduate Diploma in Forensic Pathology at the University of Edinburgh in 1986.  I have been registered with the health professional council of South Africa (previously called the South African Medical and Dental council) as a specialist forensic pathologist since August, 1987.

Prosecutor:  Please tell us what experience you have seen as a specialist pathologist.

Dr. Joseph:  I have practised as a special pathologist for 13 years: from 1987 to 1995 in the employ of the state as State Pathologist based in Durban, and since 1995 to the Present in private practice in Durban.  During this time I have examined more than…..[evidence continues]

j)      Hostile witnesses

It may happen that a witness you have consulted with for trial suddenly tries to undermine your client’s case once he or she is testifying in the witness box.  Should this happen, the trial lawyer has to decide to what extent the witness’ evidence will hurt his client’s case if it is left uncontested.  The options are:

v  To merely stop evading the witness once the antipathy towards your case becomes apparent; or

v  To prove the witness’s inconsistent prior statement against him; or

v  To apply for the witness to be declared a hostile witness and if the application is successful, to cross-examine the witness.

If a prior inconsistent statement was made, putting the statement to the witness may be used as part of the evidence to prove hostility. Note, however, that the mere proving of a prior inconsistent statement does not convert the witness into a hostile witness.

Counsel should inform the court that he is going to ask questions with a view to possibly discredit his witness.  This should preferably be done after he has completed the body of his examination-in-chief in order to enable the defence to cross-examine the witness on the merits of his evidence and the circumstances surrounding the making of the statement.

The witness should be asked if he has previously made a statement to the police about the same matter.

Sufficient details should be put to the witness about the date, time and place of the making of the statement and his signature on the statement to inform him about what statement is being referred to.

If the witness admits making the statement to the police then he should be asked if the statement was reduced in writing in his presence and if so, whether he thereafter read it (or if it was read back to him, as the case may be).

If the witness still answers in the affirmative, then he should be shown the statement and asked if it is his signature on the statement.

Once he has admitted that, the statement should be read out to him and he should be asked if those were the word which he used.

If the witness admits saying the words, the statement may be handed in as an exhibit without it having to be proved by evidence although it might well be unnecessary to hand in the statement since the admission of the witness would be on record as to the contents of the statement.  Where he has made more than one previous statements, whether consistent or inconsistent with his evidence, it is desirable that all such statements should be produced.  The witness should then be asked which of his two statements (more) is the truth.

The witness must be given the opportunity to clear up the discrepancies.  He might have a good explanation for inconsistence, misunderstanding or mistranslation; the recorder might not have had translation, words could even have been put in his mouth by a perhaps overzealous policeman or he could be trying to protect someone.  It’s unfair to assume that such a witness is lying without giving him a chance to explain.

k)     Objections

The general rule is only to formally object if it is really necessary.  If your opponent asks leading questions during his examination – in –chief you should warn him a few times in a stage whisper before standing up to object.

The procedure is as follows:

1)      As soon as you hear the item of evidence you wish to object to merely stand up. (Do not shout out: “Objection!”)

2)      In response, your opponent should, as a matter of court etiquette then immediately sit down (the judge’s attention will then be on you).

3)       State the basis of your objection: “My Lord, I object to the admission of the statements on the legal basis that it is inadmissible hearsay.  The reason I say so is….” (Use the ‘PRES’ formula).

4)      Your opponent will then be given the opportunity to reply to your submission.

5)      The court may then give you a chance to briefly reply.

6)      The court will then announce its decision whether to sustain or dismiss the objection.

 

l)      Mannerisms

Whilst leading your witness, try to eliminate mannerisms that may irritate or distract the court, such as:

v  Clicking you pen;

v  Smacking your lips;

v  Jingling your keys;

v  Putting a hand in your pocket while leading the witness: or

v  Repeating your witness’s answer immediately after it is given.

 

 

Cross-examination

This chapter deals with the following issues:

a) The essential objective of cross- examination;

b)      A closer look at this objective;

c)      Cross- examination: statements, not questions:

d)      Basic cross-examination technique;

e)      Cross-examination court craft;

f)       Selected tactical considerations;

g)      Cross-examination ethics;

h)      Re-examination;

 

a)     The objective of cross-examination

The objective of cross-examination is to ensure that your client’s version of events is preferred to the version of the witness you are cross-examining.

b)     A closer look at this objective

Traditionally, commentators who have discussed the aims and objectives of cross-examination have on the effect your cross-examination should have on the witness you are cross-examining (destroy the witness’s version: undermine the witness’s credibility and so forth).  The correct approach in our view is that the success of your cross-examination of a witness will be determined by the effect it has on your own client’s version:

If you are acting for the accused in a criminal case, your aim is to ensure that at the conclusion of your cross-examination of the state witness, your client’s version remains reasonably possibly true, i.e. ensuring that, at the conclusion of the cross-examination, your client’s (accused’s) version remains reasonably possibly true.  In civil cases, your client’s version must be the more probable version at the conclusion of the cross-examination.   If you are defending an accused in a criminal case, you ‘win’ your case if your client is acquitted.  Your client will be acquitted if the court is satisfied that his version is reasonably possibly true:   To show that his version is reasonably possibly true, the accused must create a reasonable doubt in the mind of the court about his guilt.  The defence focus when cross-examining state witnesses is therefore the creation of doubt.  The simplest way to create doubt is to obtain concessions from state witnesses:  

For example:

Defence counsel:  Sgt Jones, I’m sure you will agree with me that it is not easy to identify a person by moonlight?

Sgt Jones:  It’s not easy.

Defence counsel:  And you only saw the person who jumped over the wall for a fleeting moment?

Sgt Jones:  I suppose so.

Here Sgt Jones’ concessions create some doubt about the reality of the identification of the accused- a number of similar concessions from other state witnesses is likely to cumulatively amount to a ‘reasonable doubt’ when the evidence is assessed as a whole at the end of the case)

In conclusion, therefore, provided your cross-examination of the state witness is sufficient to ensure that your client’s version remains reasonably possibly true, the aim of your cross-examination has been achieved.

In a civil case, the essential aim of cross-examination will be achieved if your client’s version of events is shown to be more probable than that of the witness you are cross-examining:

v  When you appear for a client in a civil case (plaintiff or defendant).  You ‘win’ your case if the court gives judgment in your favour.

v  The court will give judgment in your favour if it is satisfied that your client’s version is more probable than his opponent’s version;

v  Therefore, when cross-examining in a civil case, you will have to do more than merely get concessions that create a doubt: you will have to go further and get concessions that tilt the probabilities in your client’s favour;

v  This onus may require you to go beyond extracting concessions and, for example, show that the witness being cross-examined cannot be believed at all.

v  In contrast to a criminal case, the cross-examination of the opposing witness in a civil case must leave your own client’s version sufficiently strong for the court to reach a finding on a balance of probabilities in your client’s favour.

 

c)     Cross –examination: make statements, do not ask questions.

The core skills in cross-examination are to train yourself not to ask open ended questions. Your standard technique when cross-examining is to put statements supporting your client’s version to the opposition witness, followed by a short request to confirm the statement.

For example:

Prosecutor.  When the deceased stood in front of you, you could see he was drunk – correct?

(Note: when the deceased stood in front of you, you could see he was drunk (statement): - correct?

(Request to confirm).

Witness: Yes

Prosecutor:  To the left of where you stood was just open field- right?

Witness: Yes.

The advantage of putting statements instead of asking questions is that you restrict witnesses to merely confirming or denying assertions put to them.  This way, you keep control of the witnesses, and give them very little scope to give detailed responses.

Traditionally, the statement plus confirmation ‘tail’ has been called an extreme type of ‘leading’ question, but this terminology is not helpful as there is no consensus among writers about the correct definition of leading question.

Although the statement plus ‘tail’ is your main cross-examination device, open-ended questions may still be used during cross-examination for tactical purposes.  However, only use an open-ended question if you are sure that the witness’s answer cannot hurt your case.

Provided the witness continues to agree with your statements in support of your client’s version, there is no problem.  Should the witness disagree with the statement put to him, you will then have to use other methods to persuade the court to reject his version and accept yours by showing for example:

·        That the witness is mistaken about the contested point; or

·        That the witness is untruthful about the contested point; or

·        That the inherent probabilities (that is, the way we expect things to happen based on common sense and experience) concerning the contested point, favour your case.

 

d)     Basic cross-examination technique.

In this section the basic steps that need to be mastered to ensure the competent and effective cross-examination of a witness will be discussed.

Step 1

The cross-examination sheet:  write down exactly what the witness says in examination- in-chief, and note items for cross-examination.

Every word spoken by the witness during the examination-in-chief should be written down.  Do not summarise or paraphrase   the evidence, as a single word or phrase may prove to be extremely significant.

Example:

(The witness, Peter Smith, was called to corroborate the evidence of the defendant.  He appeared to be an ideal witness, but the plaintiff’s counsel strongly suspected that he had not been present in the tavern when the plaintiff had been assaulted, and has merely memorized a fabricated version.)

The portion of his evidence –in-chief was as follows:

Counsel for the defendant:  Mr. Smith, where in the tavern were you seated when the fighting started?

Witness:  At the bar.

Counsel for the defendant:   What did you see?

Witness:                 The plaintiff was sitting with two women at a table.  They were chatting and drinking beers.  Then a man I did not know bumped their table, causing the beer to spill onto the plaintiff.  The plaintiff got very angry and picked up – sorry I left a piece out- before the plaintiff got angry, the two women …….. (continued).

 

If you took a verbatim note of the evidence, your indication may have been to ignore the seemingly innocuous and meaningless phrase, ‘sorry, I left a piece out.’  However, on closer examination, this phrase is a fruitful starting point in cross-examination, as it seems to support the theory that Smith had merely memorized his version. (One would have expected him to rather say, ‘sorry, I forgot something.’  Using the words, ‘leaving a piece out, suggests that the witness memorized a sequence of events).

Also note down things like hesitation, silences and mannerisms.  Because the judge will also be taking a detailed note of the evidence, you should not have a problem keeping up with the witness.  You need not write out the questions put to the witness- just the witness’s answers need to be noted.

We suggest that the evidence be noted on a cross-examination sheet.

 

Using the cross-examination sheet

This is a sheet of A4 size paper, divided in to two.  In the main body of the page, the evidence –in-chief – only the answers; not the questions – is written down as spoken.  Any aspects of the evidence you may wish to challenge or use in cross-examination will then be noted opposite the relevant paragraph in the right-hand column (marked ‘XX’).  You may wish to cross-reference the note in this column with a number linking it to the evidence-in-chief.

The bottom quarter of the page is for any additional notes that may have been prompted by the evidence-in-chief, for example; additional items of evidence needed; aspects of the case-law to

When your opponent has finished leading the witness in-chief, he will indicate to the court that there are no further questions.  This is due for the start of your cross-examination which leads to the next step:

Step 2:  Ask yourself:  Has the witness hurt my case?

By the time you get to this stage, you will already know in what respects the witness has hurt your case, as you would have noted and numbered this damaging aspect of the testimony on your cross examination sheets.

In assessing the potential damage of then evidence given, keep the overall onus of proof in mind.  For example a prosecution witness testifies as follows about his purported identification of the accused.  

“The man I saw looks quite a lot like the accused-similar build and facial features-I am not very sure, but I think it is the accused.

Reasonable doubt about whether the man the witness saw was, in fact the accused is inherent in this evidence and there would therefore be no need to cross examine the witness (he has not hurt your case).'

The same evidence in a civil trial however may require the cross examination of the witness as the evidence given arguably raises a probability that the man seen was the defendant.

If your answer to the question, “Has the witness hurt may case, is yes, then list (highlight on the cross examination sheet), the portions of the evidence that hurt your case.  After this has been done cross-examine the witness on each of the point in your list to try to nullify or reduce the harmful effect of the damaging evidence.  You may, for example, try to get the witness to concede that he may have been mistaken or if this fails try to show that the witness is untruthful on that point.

If your answer to the question, has the witness hurt my case is no, then you must ask yourself the next question.

 

Step 3:  Ask yourself:  Can the witness help my case?

For example, can you elicit testimony from this witness that will strengthen the probabilities in your client’s favour?  Perhaps aspect of the witness’s testimony, if expanded upon, could corroborate your client’s version, or you could obtain detailed evidence on a ‘specific aspect to use as cross-examination ammunition against an opposition witness still to testify.

If you answer to the question is yes, obtain the helpful information, but be careful to ensure that you don’t inadvertently elicit damaging evidence.  If in doubt about the potential pitfalls of proceeding to cross-examine, rather decline to cross-examine.  If the witness clearly does not have the potential to help your case, decline to cross examine by saying:  "I have no questions for this witness. Your Lordship.

 

e)     Cross-examination courtcraft.

In this section, the following principles are considered:

v  Listen to the witness:  the L.A.E.R formula;

v  Frame your question to elicit only one item of information at a time;

v  Do not formulate sloppy or imprecise questions;

v  The cross-examiners’s demeanour – keep a ‘poker’ face.

v  Do not be enticed into arguing with the witness.

v  Watch the judge’s pen.

 

i)      Listen to the witness: the L.A.E.R formula.

When the witness is answering your question in cross-examination, you must not only hear what is being said, but carefully observe the witness (is the witness continually looking at his counsel for assistance?) and listen to the content of the answer.

Often, cross-examiners are so focused on the next question they want to put, that they do not fully appreciate the significance of the answer given. The L.A.E.R formula assists you to develop listening and analytical skills when cross –examining.

It works as follows:

 

Listen:  Listen carefully to the answer given by the witness you are cross examining, ensuring that you fully understand the answer.

Analyse:  Consider the choice of words, any hesitation, and information volunteered that was not requested.

Evaluate:  Decide what the effect the answer given has on your case-does it have the possibility to hurt or help your case?

Respond:  In light of these steps, you must decide in what direction your cross-examination of the witness will continue, or whether to end the cross-examination at that point.

With practice, these few steps are considered instantaneously – an automatic test applied to each answer given by the witness.

ii)           Frame your question to elicit only one item of information at a time

Counsel should beware of multiple questions.

Example:

Counsel:  Is it not correct that you stood at the door for five minutes before entering and stabbing the complainant?

Witness:  Yes

(Does this mean the witness has agreed with all the four allegations contained in the question?)

The correct approach would be:

 

Counsel:  When you got to the house, you stood at the back door-right?

Witness:  Yes.

Counsel:  And you stood there for  about five minutes-correct?

Witness:  Yes.

Counsel:  You then entered the house through the back door-correct?

Witness:  Yes.

Counsel:  You then stabbed the complainant?

Witness:  No, I did not stab her-she ran into my knife.

 

iii)          Do not formulate sloppy or imprecise questions

You must ensure that the question posed to the witness permits only the answer or range of answers you intend.

 

Iv The cross - examiner’s demeanour – keep a ‘poker’ face.

If the witness reply to your question in cross-examination is potentially damaging to your case, or unexpected, discipline yourself to show no outward signs that the answer has hurt you. Use the L.A.ER. formula to assess the best way to proceed.

Also bear in mind that while your client is being cross examined the judge may draw inferences from your facial expressions and body language – don’t inadvertently discredit your own witness by wincing and vigorously shaking your head, when your witness makes errors under cross-examination by your opponent.

v)           Do not be enticed into arguing with the witness.

Do not be distracted from the cross-examination objectives you have set yourself.  Inexperienced trial lawyers often fall into the trap of arguing with the witness during cross-examination.  This trap is usually sprung through the witness responding to the cross-examiner’s question with a question of his own.  This usually happens when the witness is having difficulty answering the cross-examiners questions.

vi) Watch the judge’s pen.

As is the case in the examination-in-chief, pace your questions in cross-examination to keep up with the judges writing speed.  This rule may be relaxed if your cross-examination requires a quick follow up question.

Vii)         Never ask why?

The question ‘why?’ is open –ended and nearly always results in a reply damaging to the cross-examiner’s case.  The question may be used tactically in some circumstances – but before it is employed, ensure that any answer that may be elicited cannot hurt your case.

viii)        Put your version.

You are obliged to put your client’s version to the witness if the evidence of the witness contradicts, modifies otherwise impacts on your client’s version.

In putting your client’s version, you need only to put those aspects of the version that have been affected by the witness’s evidence- do jot laboriously repeat your client’s entire version to each and every witness called by your opponent.

The failure to dispute portions of testimony that conflicts with that of your client could result in the rejection of your client’s version in that point, and the adoption of the version of the witness you omitted to challenge.

An effective rule of thumb is to put your client’s version after first highlighting your client’s version as being more probable than the version of the witness being cross-examined, for example, you may show the conflict between the two versions do not amount to a contradiction, but merely to be a normally human discrepancy.

Example

If you can, try to avoid using the words:  “I put it to you that…”

Rather use:  “My client will testify that…”or I suggest to you…”

 

 

ix)             One question too many

When you strike oil, stop digging. Do not let idle curiosity, or a desire rub salt into the wound, encourage you to continue questioning the witness when the concession you sought has already been made.

A famous traditional illustration of this rule is an assault case where it defendant was sued for biting off the plaintiff’s tongue.  The cross examination of the only eye-witness to the incident went like this.

Defence counsel:     Who do you say bit off the plaintiff’s tongue?

Eye-witness:                         The defendant did

Defence counsel:     Did you actually see the defendant bite off the plaintiffs tongue?

Eye-witness:                         No, Sir, I did not.

(At this point, defence counsel should have ended his cross-examination and have sat done, but he did not).

Defence counsel:     (With a self-satisfied smile)

                                           Well, then, how can you then say it was the defendant who bit off

                                           the plaintiff’s tongue?

Eye- witness;                        I saw him spit it out

 

x)              Close all escape routes

In cross-examination, the defence counsel should close all available escape routes in order to tighten the loose ends evident in his client’s case.

 

xi)             Repetition

The most common forms of repetition used during cross-examination are:

(a)             Repeating the answers for the witness you are cross-examining;

(b)             Repeating the question put to the witness during cross-examination;

(c)             Asking the witness under cross-examination to repeat a portion of his evidence in –chief; and

(d)             Repeating the witness’s answers to questions put to him in cross-examination.

 

This is an irritating mannerism that must be avoided. The cross-examination usually goes something like this:

Counsel:                        Mr. John, when you ran from the scene of the stabbing you threw your knife in the bushes – right?

John:                            Yes, I was afraid he people chasing me would find it in my possession.

Counsel:                        (Repeating the answer, “You were afraid the people chasing you would find it in your possession.  But you did not run straight to the police, did you?

John:                            No, I ran to my parental home.

Counsel:                        (In reflective monotone): You ran to your parental home. What time did you get to your parental home?

(End of extract)

 

Sometimes, however, counsel may repeat the witness’s answer as a tactical ploy, for

instance, to indicator disbelief at a far-fetched answer.

 

Counsel:                 What did you do when the intruder burst in and started shooting at everyone in the room?

Witness:  I peeped over the top of the table to get a good look at his face.

Counsel:  You peeped over the top of the table to get a good look at his face?!!

(The answer is repeated here by counsel in an incredulous tone to indicate to the witness-and the court – his utter disbelief in the witness’s version on this point.  This may result in the witness modifying or trying to defend his answer).

 

Asking a witness to repeat a portion of his examination-in-chief.  When the cross-examiner suspects that a witness has fabricated an aspect of his version, it is a legitimate tactic to ask the witness to repeat the portion of evidence-in-chief covering that aspect.  This repetition may result in the witness giving a version so different from the one given in his examination in-chief that an inference of fabrication is justified. The manner in which this may be done is as follows:

Counsel:                               Mr. Jones, just remind us again what exactly did the plaintiff say to you when he signed the amended contract?

xii)            Using collateral evidence in cross-examination.

‘Collateral’ (or subordinate’) evidence is which, on the face of it does not appear to be relevant, but its relevance is apparent once the applicable portion of cross-examination has been completed.

xiii)           Indicating relevance.

Do not be intimated by the court into abandoning your line of questioning, as the court may not be in a position to appreciate your objective at this stage: politely but firmly insist that the relevance will become apparent.

 

xiv)           Do not interrupt the witness.

Let the witness complete the answer to your question without interruption, even if he is being deliberately evasive or excessively verbose.  Rather let the court intervene to reprimand the witness.  A sure way to lose the sympathy of the court is to continually interrupt the witness.  The judge may think you are afraid of the answer, and are therefore unfairly preventing the truth from coming out.  Your interruptions may also be viewed as an attempt to badger or intimidate the witness.

Although interrupting is an accepted cross-examination technique in some jurisdictions, it is best avoided.  In any event, the more the witness talk, the more cross-examination ammunition you are given.

 

xv)            Cross-examination ethics

In this section, consider the following:

a)     Attacking the character of witnesses

A trial lawyer may attack the character of witnesses during cross-examination up to the expected levels in order to aid in fair trial.

 

b)     Confusing or misleading cross-examination

You are entitled to objet if the cross-examination of your witness is either deliberately or unintentionally confusing or misleading.  An example would be where a series of questions results in the cross-examiner assuming a fact which is not yet in evidence.

Example

Counsel:         When you arrived at the house, you went and stood at the back door, did you not?

Witness:         That’s right.

Counsel:         You then entered the house through the back door - correct?

Witness:         I did not enter the house.

Counsel:         And after you entered the house, you stabbed the complaint- right/

 

(Counsel here assumes that the witness had entered the house, despite the fact that the witness has specifically denied doing so. This could confuse or mislead the witness)

 

a.      Abusive cross-examination.

The court has a duty to protect witnesses from abusive cross-examination. Apart from it being unethical, abusive cross-examination also carries the danger of the loss of the sympathy for your case.

 

b.      Subtle distortions

It is unethical to paraphrase evidence to give it a shade of meaning more supportive of your case.

c.      Contradictions and normal discrepancies.

If ten individuals are asked to estimate the length of a  room 15 metres long, the chances are that the estimated will range from 10 to 20 metres. These differences in estimated length are normal discrepancies – it is artificial to draw adverse inferences as a result. Conversely, if all 10n individuals estimated the distance to be say, 91/2 metres, only reasonable inference to be drawn is that all 10 people colluded to agree on a distance. Thus, be careful to  distinguish between genuine contradictions, and normal human discrepancies.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Re-examination

After a witness has been cross- examined, the trial lawyer who led the witness in-chief has the right to re-examine the witness. There is no obligation to re-examine; the lawyer can choose not to re-examine.

In this section, the following issues are considered:

a)      The purpose of re-examination

b)      Re-examination procedure

c)      Things to remember.

 

a)     The purpose of re-examination.

The purpose of re-examination is to give the lawyer who called the witness an opportunity to lead the witness again in order to:

v  Clarify evidence that has been left in a confused state after cross-examination or;

v  Place in context evidence that may have left the court with a misleading impression.

s

Example:

(Let us assume that in his cross-examination the defence counsel stopped after getting the concession from the eye-witness that he did not actually see the defendant bite off the plaintiff’s tongue)

Defence counsel:     Who do you say bit off the plaintiff tongue?

Eye witness:                         The defendant did.

Defence Counsel:    Did you actually see the defendant bite off the plaintiff’s tongue?

Eye Witness:                         No, sir, I did not.

Defence Counsel:    Thank you.  I have no further questions for you.

 

In re-examination, the misleading impression left by this cross-examination may be rectified as follows:

Re-examination by plaintiff’s counsel

Plaintiff’s counsel:  You told the court that the defendant bit off the plaintiff’s tongue-how do you know this?

Witness:  I know this because I saw the defendant spit the tongue out.

b)     Re-examination procedure

 

While your witness is being cross-examined, make notes about items of evidence that are left confused or incomplete during cross-examiantion.

When you are about to re-examine, it is accepted convention that you may bring the witness being re-examined to the relevant point in the evidence by way of repetition or a leading question.  However, the question itself must be open-ended.

c)     Things to remember when re-examining

Re-examination is confined to issues that were covered in cross-examination.  Should you wish to ask new questions beyond this, you have to seek court’s for leave.

Choose your words carefully so that the witness knows exactly what the re-examination intends to focus.  Do not ask questions in re-examination unless you are sure the witness knows the answer.

 

Closing Argument/ Speech/ Submissions

This chapter deals with:

a)      The main aim of closing argument.

b)      The nature of closing argument

c)      Closing argument procedure

d)      Preparing your closing argument

e)      Example of a closing argument

f)       Presentation of a closing argument.

 

a)     The aim of closing argument.

The closing argument (also called ‘argument’ or the “closing address’or speech) is the stage of the trial where each of the opposing trial lawyers attempts to persuade the court to decide in his favour.

b)     The nature of closing argument

It may be fairly easy to persuade the courts if the judge happens to agree with your submissions on the evaluation of the evidence. Your closing argument will then amount to little more than a closing speech (or address).  The judge will have no need to challenge your submissions (since he agrees with them).

Sometimes the judge may be convinced your case has been proven even before closing argument begun-in such cases, the judge will invite your opponent to begin if the usual convention is for you to view, you may very well be informed that you need not address the court at all.

In most cases, however, there will be issues on which the submissions accord with the views of the court and others where they do not.  In the latter case, you will not have the luxury of merely delivering a speech, but will have to debate the contested views with the judge in order to persuade the court to accept your views (that is, argue the case with then judge).

c)     Closing argument procedure

The general rule is that the lawyer acting for the party on whom the onus rests argues first.  The opposing lawyer then argues, after which the lawyer who started has the right to reply.  In theory, the right to reply is limited to questions of law, but in practice the courts invariably allow the starting lawyer to reply on factual issues as well.  The argument is limited to the evidence led at trial- new evidence or information not covered during the trial cannot be introduced at this stage.

d)     Preparing your closing argument

In essence, during argument the trial lawyer will try to persuade the court to adopt his submissions in its judgment on the merits.  It is therefore useful to use the structure of the judgment to prepare your argument.  Start your preparation by taking a number of blank pages and write the following headings (one per page) at the top of each page:

1.      The issues

List the issues that the court will have to decide to determine who wins the case as follows:

v  The issue

v  The onus on the issue

v  The legal test applicable to the issue.

2.      Agreed facts :

List the facts that are not in dispute or common cause, due to:

v  Prior arrangements between the parties;

v  Formal admissions made before or during the trial; or

v  Evidence of both parties on the aspect being identical.

3.      Summary of relevant evidence.

Summarise (only a few lines per witness) the evidence that the court has to consider to decide the case, in the following categories:

v  Witnesses called for the state or plaintiff

v  Witnesses called for defence.

v  Witnesses called by the court.

v  Evidence handed in the consent between the two parties.

v  Circumstantial evidence

v  Other categories of evidence (for example, inspections in loco)

 

 

4.      Evaluation of the summarised evidence.

The evidence summarised in (3) above is now evaluated - submission must be made on how much weight to attach to each individual item of evidence.  Your submissions on the testimony or each witness must be made in respect of:

v  Contradictions with other witnesses

v  Corroboration of other witnesses or exaggeration.

v  The inherent probabilities when considering the witnesses’ version;

v  The demeanour of the witness

v  The weight to be attached to objects and documents handed in by the witness

Based on these criteria, conclude your submissions with your overall assessment of the witness: (truthful; untruthful, mistaken etc) and your assessments of the other evidence (reliable or unreliable’).

5.      Conclusions of fact.

After evaluating all the evidence, the court will consider its findings on individual witnesses and the other evidence, and then decide on the version of either the plaintiff (or the state in criminal cases), or that of the defendant (or the accused in criminal cases), or finding on the facts that does not fully accord with the versions in preference to those of your opponent’s witnesses.

After stating the facts it has been found to be proved, the next step will be the application of the applicable legal test, and the overall onus of proof to these facts.

 

6.      Applying the legal test to the conclusions of facts and the overall onus of proof

At this stage, the court decides whether the facts it has found to be proved are sufficient to justify a finding in favour of either the plaintiff or the defendant in civil cases, or the state or the accused in criminal cases.  It is at this stage that the legal test on each issue is applied to the facts found to have been proved, and an assessment of the overall probabilities is made to decide whether the required onus of proof has been achieved.  Again, your submissions must highlight the aspects that indicate that the probabilities favour your case.