CP

Cavendish
Publishing
Limited
Andy Boon, LLB, MA, PGCE, PhD, Solicitor
Head of School of Law
University of Westminster

SERIES EDITOR
Julie Macfarlane, BA, LLM, PhD
Associate Professor of Law
University of Windsor, Ontario

CP
Cavendish
Publishing
Limited
First published in Great Britain 1993 by Cavendish Publishing Limited,
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United Kingdom
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© Boon, A 1999
First Edition 1993
Second Edition 1999

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording, scanning
or otherwise, except under the terms of the Copyright Designs and
Patents Act 1988 or under the terms of a licence issued by the
Copyright Licensing Agency, 90 Tottenham Court Road, London
W1P 9HE, UK, without the prior permission in writing of the
publisher.

Boon, Andy
Advocacy – 2nd ed – (Legal skills series)
1 Representation in administrative proceedings – England
2 Representation in administrative proceedings – Wales
I Title
347.4'2'052

ISBN 1 85941 485 0

Printed and bound in Great Britain

 v

Contents
1

Editor’s Introduction xi
Acknowledgments xiii
Introduction xvi

1 Presenting to Persuade 1

1.1 Elements of persuasion 1

1.2 A sense of audience 2
1.3 Planning and organisation 2
1.4 Structure and organisation 7
1.5 Personal style 7
1.6 Voice 8
1.7 Words 8
1.8 Words for impact 10
1.9 Emotion 13
1.10 Repetition 13
1.11 Pacing 14
1.12 Pauses 14
1.13 Posture 15
1.14 Interaction 15
1.15 Body language 16
1.16 Appearance 17
1.17 Confidence and nerves 18
1.18 Elements of competent performance 19
vi Advocacy

1.19 Narrative 22
1.20 Summary 25
1.21 End of chapter references and additional reading 26

2 Conduct 29

2.1 The lawyer and the client 29

2.2 The lawyer and the court 33
2.3 Conflicts 36
2.4 Lawyers and witnesses 37
2.5 Summary 40
2.6 End of chapter references and additional reading 41

3 Planning 45
3.1 The client 45
3.2 Planning contexts 47
3.3 Planning to use witness evidence 49
3.4 Developing a hypothesis 54
3.5 A theory of the case 60
3.6 Organising materials 62
3.7 Keeping materials 63
3.8 Finally – narrative or story-telling 64
3.9 Summary 67
3.10 End of chapter references and additional reading 68

4 Opening 71
4.1 Introductions 71
4.2 Criminal courts 73
Contents vii

4.3 Style 74
4.4 Structuring prosecution openings 75
4.5 Structuring defence openings 82
4.6 Structuring openings in civil cases 85
4.7 Summary 86
4.8 End of chapter references and additional reading 87

5 Questioning 89
5.1 Context 89
5.2 Open and closed questions 90
5.3 Hypothetical questions 90
5.4 Leading questions 91
5.5 Leading questions in cross-examination 92
5.6 A sequence of three questions 93
5.7 Probing, insinuating and confrontational questions 94
5.8 Ridicule, repetition and rivetting 98
5.9 Enlivening testimony 100
5.10 Pitfalls 101
5.11 Examination-in-chief 102
5.12 Organisation 102
5.13 Leading questions in examination-in-chief 104
5.14 Introducing real evidence 106
5.15 Anticipating cross-examination 108
5.16 Summary 110
5.17 End of chapter references and additional reading 111
viii Advocacy

6 Cross-examining 113
6.1 Aims 113
6.2 Organisation 114
6.3 Style 115
6.4 Strategy 118
6.5 Duties of the advocate in cross-examination 120
6.6 Relating oral evidence to previous statements 121
6.7 A choice of strategies for cross-examination 122
6.8 Ending a cross-examination 126
6.9 Cross-examining expert witnesses 127
6.10 Cross-examining police officers 132
6.11 Re-examination 133
6.12 Summary 134
6.13 End of chapter references and additional reading 135

7 Summarising and Concluding 137

7.1 The importance of summary 137
7.2 Closing speeches to juries 137
7.3 Closing speeches to juries for the defence 139
7.4 Closing speeches to juries for the prosecution 147
7.5 Summary 149
7.6 End of chapter references and additional reading 150

8 Advocacy in Practice 1 151

8.1 Context 151
8.2 Preparing for a bail application 152
8.3 Structure 154
Contents ix

8.4 Style 155

8.5 Context 156
8.6 Procedure 160
8.7 Lessons from research 162
8.8 The audience 165
8.9 Preparation 166
8.10 Structure of a plea in mitigation 168
8.11 Content 168
8.12 Style 169
8.13 After sentence 171
8.14 End of chapter references and additional reading 175

9 Advocacy in Practice 2 177

9.1 Context 177
9.2 Preparing for an interlocutory application 177
9.3 Simulation exercise 178
9.4 Evaluating your performance 186
9.5 Reading in support of the exercise 188

10 Evaluation and Reflection 189

10.1 Reporting back to your client 189

10.2 Continuing to learn from your own experiences 189
10.3 Finding practice exercises 190
10.4 Giving and receiving criticism 196
10.5 In conclusion: evaluating the
Chiandras simulation exercise 198
10.6 End of chapter references and additional reading 200
x Advocacy

11 The Framework of Professional

Advocacy Training 201
11.1 The training of advocates 201

11.2 Higher rights of audience 207

11.3 The Bar Vocational Course 211

11.4 Conclusion 217

11.5 End of chapter references and further reading 218

Index 219
 xi

Editor’s Introduction
1

‘The essence of our lawyer’s craft lies in skills ...; in

practical, effective, persuasive, inventive skills for getting
things done ...’
Karl Llewellyn

The appearance of this series of texts on legal skills reflects the

shift in emphasis in legal education away from a focus on teaching
legal information and towards the teaching and learning of task-
related and problem-solving skills.
Legal education in the United Kingdom has undergone
significant changes over the past 15 years as a result of growing
concern, expressed for the most part by the profession, over its
adequacy to prepare students for the practice of law. At the same
time, many legal educators have voiced fears that concentrating on
drilling students in substantive law promotes neither the agility of
mind nor the development of judgment skills which provide the
basis for continued learning.
Today, courses providing clinical experience and instruction in
legal skills are increasingly a part of undergraduate law
programmes. Both branches of the profession in England and
Wales have fundamentally revised the content and format of their
qualifying courses to include direct instruction in practical skills. In
Scotland, the Diploma in Legal Practice, which emphasises the
learning of practical skills, has been in place since 1980/81.
Nonetheless, legal skills education in the United Kingdom is still
in its infancy. Much is to be learned from other jurisdictions which
have a longer history of the use of practical and experience-based
teaching methods, lessons invaluable to UK law teachers many of
whom now face the challenge of developing new courses on legal
skills. The ready exchange of ideas between skills teachers in
xii Advocacy

the United Kingdom and abroad is an important part of the

development process. So too is the generation of ‘home-grown’
texts and materials designed specifically for legal skills education in
undergraduate and professional schools in the United Kingdom.
The introduction of skills teaching into the legal education
curriculum has implications not only for what students learn in law
school but also for how they learn. Similarly, it has implications for
the kind of textbooks which will be genuinely useful to students who
wish to succeed in these programmes.
This new series of texts seeks to meet this need. Each text
leads the reader through a stage-by-stage model of the
development of a particular legal skill; from planning, through
implementation in a variety of guises, to evaluation of performance.
Each contains numerous practical exercises and guides to improve
practice. Each draws on a network of theories about effective
legal practice and relates theory to practice where that is useful
and relevant.
The authors are all skills teachers with many years of practical
experience at all levels of legal education. They draw on relevant
literature and practice from all over the common law world.
However, each book is written specifically for students of law and
legal practice in the United Kingdom and sets learning in the
context of English law and against the backdrop of the Law
Society’s standards for the new Legal Practice Courses.
Each of these texts is designed for use either as a supplement
to a legal skills course taught at an undergraduate or professional
level, or as a model for the structure and content of the course
itself. We recommend the use of these books, therefore, to students
and skills teachers alike, and hope that you enjoy them.

Julie Macfarlane
London, Ontario
 xiii

Acknowledgments
1

I continue to be indebted to those who helped me, directly and

indirectly, with the production of the first edition of this book.
In addition, I would like to thank Avis Whyte, for research
assistance in producing the second edition, Susan Nash and
Pamela Abrams, for advice on criminal and civil procedure, and
Jo Reddy, for her patience and encouragement.
 xv

Introduction
1

‘The only thing to do with good advice is to pass it on; it

is never any use to oneself.’
Oscar Wilde

There are many reasons why advocacy is a skill worth mastering.

Understanding the task of the advocate in presenting a case for
trial is central to understanding the litigation process.
Understanding advocacy helps a lawyer to prepare cases for
others to present. It enables her to give realistic, cogent and
confident advice to her clients. Aspiring solicitors may not want to
practise as an advocate, assuming this to be the job of the
barrister. You will lead a very sheltered life as a solicitor if you are
never required to make any kind of court appearance. If this day
comes you will want to do a good job.
Even if you never appear as an advocate you may want to
instruct one; understanding advocacy, you will be better able to
evaluate the advocates you see and recommend one who is best
suited to speak on behalf of your client. Advocacy is about
persuading people; you cannot go through life without, on
occasions, needing to persuade. Advocacy is often useful and
sometimes vital, in client interviewing, in negotiation and in
meetings, client seminars and public lectures. If you do not
practise law at all, principles of advocacy will be useful in
whatever you do; advocacy is a valuable skill, a transferable skill,
a lifelong skill.
For over 2,000 years people have analysed, theorised and
written about advocacy. Contexts change but many of the basic
principles, espoused by Aristotle, Cicero and Quintillian, endure.
Only recently have research findings begun to influence the way
we think about advocacy; the most illuminating research
considers the psychological impact of particular techniques on
xvi Advocacy

juries. The jury is, of course, a feature of civil as well as criminal

cases in the United States. But, even third party neutrals, such as
judges, can be influenced by presentation. In researching material
for this book, I have drawn on North American materials because
this research often confirms our feelings about what is, or is not,
effective. Nevertheless, there are many books on advocacy by
contemporary advocates. These are often in broad agreement
about the role and impact of advocacy as practised in our
domestic courts. Many draw on examples from the last 100 years.
During that time the common law tradition has produced many
outstanding advocates. The cases in which they appear repay
study by the intending practitioner. Indeed, extracts from the trial
of Alfred Arthur Rouse, prosecuted by Sir Norman Birkett in 1931,
will feature in this book. Most advocates agree that advocacy
requires a special talent, one that cannot be taught. But a talent
for advocacy may be found in unpromising material. In 1948, Sir
Norman said:
I have been at the Bar and upon the bench for 34 years and I
have seen almost every kind of advocate in almost every type of
court. And I know at once there are no standards that you can lay
down and say, there is the pattern. It can’t be done. There are
diversities of gifts but there is the same spirit; and I have known
in my time, men who could scarcely string a sentence together,
who lacked all graces, and yet impressed the court so that the
court strained to listen and to catch every word that was said.
The Right Hon Sir Norman Birkett PC, ‘The Art of Advocacy:
Character and Skills for the Trial of Cases’
(1948) American Bar Association Journal Vol 34

Nowadays, we are more confident that it is possible to train

people to be competent advocates even if this does not lead to
‘greatness’. In fact, most of the advocates who have been
accorded that recognition have had particular strengths. It may be
that, to move into the realm of excellence, the advocate requires
some rare, indefinable talent; some strength of personality which
cannot be taught. Identifying that quality of excellence, let alone
teaching it, is not the purpose of this book.
Introduction xvii

Today, our mental picture of advocates is conditioned by

images of the big and small screen, from films such as The
Verdict to television series like LA Law or Rumpole of the Bailey.
The collage of impressions which drama produces is rooted in
reality. Nevertheless, the picture is too glamourous and dramatic.
In real life, the vital witness seldom agrees to testify at the last
minute, nor does he break down under cross-examination and
admit to lying.
The danger in dramatic role models is that they lead us to
believe that advocacy is all to do with personality, flashy tricks
and inspiration and little to do with careful thought and hard work.
While ‘great’ advocates may be gifted in particular respects, most
people can learn to do a competent job. If some of the great
speakers of the past visited our courts today, their oratory would
seem out of place; they were great because they captured the
mood and style of their time. Likewise, the style of speeches
supporting acquittal on a murder charge may be inappropriate
where the charge is drunken driving. While we can still learn from
advocates of the past and present, it is important to recognise that
effectiveness requires the ability to adapt to novel situations as
much as it requires natural gifts. For this reason I am more
concerned that this book encourages you to think about advocacy
rather than telling you how to do it.
For most advocates starting out in the courts, there will be
very little drama, at least not of the kind which we see on the
screen. While there may be times when an advocate needs to
‘ham it up’, she will always need to be a good technician: to
understand the client’s objectives; to analyse the extent to which
the law can help to achieve these; to prepare the case and to
present it in the most favourable way. The principles of good
advocacy are not difficult to state and may even seem to be
common sense. Like most good ideas they seem obvious with
hindsight. The use of most techniques or devices depend on the
demands of a situation; what may be the right thing to do in one
situation may prove disastrous in another. Effective advocacy is
not just about knowing the techniques but selecting from them as
xviii Advocacy

the situation demands. One writer suggests that an advocate

needs 25 jury trials before he begins to become an effective
advocate. Less complex hearings may demand fewer ‘tries’ but
each performance must be subjected to thorough analysis if
progress is to be made.
Personality may predispose advocates to a particular style. It
may even produce advocacy suitable to a certain kind of case;
those best suited to act for prosecutor or plaintiff, accused or
defendant. An effective advocate needs to know the range of
strategic choices which can be made in the pursuit of the client’s
goals. Many novices’ experience of advocacy in traineeship and
after is of the ‘in at the deep end’ training method. While you may
well receive help and guidance from your firm or chambers,
people who have gained their experience ‘the hard way’ can very
quickly forget the pain they suffered in the process or the simple
questions which concern the novice.
The aims of this book are to help you to:
• feel confident that you have planned your advocacy well;
• have clear sight of your objectives and how to achieve them;
• do a competent job of advocacy when required;
• learn from your experiences of advocacy and do an even
better job the next time;
• be conscious of your strengths and able to gain confidence
from them;
• be aware of your own limitations but not to be intimidated by
them; and
• analyse and, where possible, eliminate weaknesses.
The book aims to provide practical assistance to undergraduate
law students taking part in advocacy training exercises and
moots, and to students studying advocacy for the Legal Practice
Course or Bar Vocational Course. Courses often differ according
to institution. The broad framework set out by the professional
bodies provide some guidance for the competent performance of
advocacy.
Introduction xix

As regards advocacy, the Legal Practice Course:

... student should be able to formulate and present a coherent
submission based upon facts, general principles and legal
authority in a structured, concise and persuasive manner. The
student should understand the crucial importance of preparation
and the best way to undertake it. The student should be able to
demonstrate an understanding of the basic skills in the
presentation of cases before various courts and tribunals and
should be able to:
1 identify the client’s goals
2 identify and analyse factual material
3 identify the legal context in which the factual issue arises
4 relate the central legal and factual issues to each other
5 state in summary form the strengths and weaknesses of the
case from each party’s perspective
6 develop a presentation strategy
7 outline the facts in simple narrative form
8 structure and present in simple form the legal framework of
the case
9 structure the submission as a series of propositions based
on the evidence
10 identify, analyse and assess the specific communication
skills and techniques employed by the presenting advocate
11 demonstrate an understanding of the purpose, techniques
and tactics of examination, cross-examination and re-
examination to adduce, rebut and clarify evidence
12 demonstrate an understanding of the ethics, etiquette and
conventions of advocacy.
Criteria 1–9 inclusive could all form part of a transaction leading to
a performance in the form of a simple submission, such as an
application by summons. Performance criteria 10–12 inclusive
relate to the 'identification and analysis' of specific skills and the
demonstration of understanding of their significance. Satisfying
these criteria need not depend on an advocacy performance but
xx Advocacy

on a paper exercise. ‘Professional conduct’, one of the pervasive

areas in the Legal Practice Course, may also appear in
connection with advocacy. Professional conduct in relation to
advocacy is dealt with in Chapter 3 of this book.
Competent performance will always depend on both legal
knowledge and the skills which allow it to be applied. This is not a
book on either law or legal procedure. It is a book which would be
helpful in achieving entry level standards for the Legal Practice
Course and a competent standard of advocacy in practice.
However, elements of procedure are necessary to place practical
advocacy in a meaningful context. Where I have found it
necessary to mention procedure for this reason I have tried to
keep this material to a minimum. Similar procedures constrain
advocates in various courts and jurisdictions. References to
illustrative procedural or evidential rules are limited so as to
maintain the focus on the essential skills of presenting a
persuasive case. However, before appearing in any court or
tribunal, you should be familiar with the procedural and evidential
rules that will govern the proceedings.
At the end of each chapter, I have included ‘further reading’
which I hope you find useful sources of these materials.

Andy Boon
March 1999
 1

CHAPTER
1

1 Presenting to Persuade

1.1 Elements of persuasion

The advocate’s task is threefold:
(a) to be heard; to be interesting; to engage the audience in the
presentation;
(b) to get the message across; to select the right content and to
emphasise the key points; and
(c) to persuade the audience to accept the view advocated.
Presentation skills are the key to persuasion because
presentation carries the message. Aristotle identified three major
elements of persuasion: ethos, pathos and logos.

Ethos
The speaker must convince the audience that she is trustworthy,
credible, authentic and, in short, believable.
We can do this by telling the audience how important we are,
how many degrees we hold, or that we have experience in the
area we are talking about. It is preferable for this to be done with
humility. However, the audience is more likely to be impressed
and, therefore, to accept us if, rather than parading our
credentials, we are at ease with them, if we show that we know
what we are talking about and, importantly, if we show that we
respect them.

Pathos
The speaker must appeal to the emotions of the audience, so that
they are psychologically inclined to accept his argument. The
significance of this element of persuasion depends on the cause
which the speaker supports. Its relevance will be seen as we
progress.
2 Advocacy

Logos
The speaker must provide reasoned argument as a foundation for
her cause. The advocate’s reasoned argument relates to the rules
of law and the facts of the case which, she claims, support her
client’s right to a favourable decision.

1.2 A sense of audience

A presentation must be appropriate for an audience. Where a jury
decides issues of fact, the issues must be clearly presented to
them, in a way which will hold their interest. Lay magistrates or lay
members of industrial tribunals may have little or no legal
background. They might, therefore, also appreciate a presentation
of the case which is accessible and not overburdened with legal
jargon. Court officials with legal backgrounds will be familiar with
the language of the law; this does not mean that they are immune
to the persuasion of the effective presenter. Many judges have
made the point – and it is worth remembering – that judges are
human too; for example:
What is frequently overlooked is that non-jury cases are tried to a
one man jury; that the juror in robes, like the juror in the box, is
made of human material, possessed of the common virtues and
the common frailties. He, too, has to be kept interested. If he is
sleeping, he has to be aroused. He has to be persuaded. Your
knowledge must become his knowledge, your inferences must be
made his inferences. If you fail in these primary objectives, you
might as well keep your client at home and save the subpoena
fees of your witnesses.
Rifkind (1984)

1.3 Planning and organisation

There are many different ways of planning a presentation. The
worst thing to do is to write down, word for word, what you intend
to say. A presenter who has his eyes glued to his notes frequently
Presenting to Persuade 3

has a boring delivery and is not persuasive. Imagine a

salesperson who reads a patter from a prepared script; would you
buy? When you read a script, your voice generally lacks interest
and your body movement is limited; both voice and body
movement are crucial to effective presentation. Even when
presenters have managed to free themselves from the tyranny of
a script the average presentation is easily forgotten. Why?
Anxiety can cause us to suppress our natural personalities.
Audiences usually cause speakers to feel anxious; the larger, the
more unfamiliar the audience or setting, the more anxious the
speaker and the greater the temptation to seek refuge in safety
and mediocrity. We are often so concerned about ourselves that
we don’t think enough about the audience and their needs.
Neither is preparing a list of headings necessarily the best way to
start planning a presentation:
A logical device for avoiding reading a script is to plan by making
a list of things we want to say. Outlining in this way is an
improvement on scripting, but it also has limitations if it is used
inflexibly and without imagination. Planning for presentation is a
creative activity. Outlining is time consuming and does not always
encourage maximum creativity. It follows from our educational
conditioning that we tend to rely on the organisational, logical
parts of our brain while we write an outline [see Legal Writing by
Margot Costanzo, in this series]. We tend to think about the first
point to make, whereas the first point may suggest itself at the
end, rather than the beginning, of our planning. Because planning
a presentation is a creative process, it benefits from a method
which releases creative potential.
Gelb (1988)
4 Advocacy

Outline for presentation: the disadvantages of outlines

1 Not creative.
2 You have an idea, but, by writing it down, it may not appear in
the most logical place.
3 Outlines are, therefore, inflexible.
4 Temptation to add detail and make the outline too long. This
means that it may go over the page and begin to suffer from
some of the same defects as a written speech.
5 Need to organise while writing.
6 When you get to the end, you probably want to change the
order, add and delete, re-organise and re-number; you are
more likely to tear the whole thing up.
7 Relevance to advocacy?
8 Difficult to remember.
Presenting to Persuade 5

Mind map for presentation: the advantages of mind maps

Mind mapping is an alternative to outlining which is quick, fun and
creative. It is a diagram of doodles and words which spread out,
from a central concept, the topic for the presentation. It puts you
in the right frame of mind for an audience and releases creative
energy. Mind maps are more easily changed and adapted than
outlines. They are quicker to make and contain all the key points
on one page. Because of this they can be more easily learned
and remembered. Once you have refined your map, you can learn
it simply by reproducing it from memory. After a few tries you
should have perfect recall of the elements of your mind map.
Once you have produced your mind map, go back and think about
your objectives for a particular presentation. These should be
written out in full. Having organised them, you should go back and
see whether your mind map needs changing to achieve your
objectives. There are several advantages to mind mapping. You
should approach your presentation having utilised all your
creative energy in the planning process. Your content should be
more diverse and interesting. Your presentation has more chance
of being diverse and interesting.
 6 Advocacy

Mind map for presentation:

advantages of mind maps CAN IMPOSE
ORDER
3 2 LATER
EASILY
DISCOURAGES LEARNT FLEXIBLE
READING
STORES
FUN
INFO EASILY

CREATIVE
COMPACT
PROCESS
PRESENTATION
QUICK

AUDIENCE GENERALLY
INTERACTION ‘MIND MAPS’

AD
VO
CA EYE
CY
CONTACT
What is
a ‘mind AVOID BEING
map’? OVERVIEW/
RESPONSIVE BORING
TIO IBE

MORE NATURAL
LE
NA
R

CAN ADD TO:

SC

1
DE

Adv as hear
RA

evidence
4
AN CH
UZ R
)

APPLICATION
(B SEA

Examples
RE

GELB
le? Witness Closing
amp
Ex evidence speeches
Presenting to Persuade 7

1.4 Structure and organisation

There is a major principle of organisation which bears on every
presentation: the clearest recollection is of those points which are
made first and last. This is what North American lawyers call
‘primacy’ and ‘recency’. The effect is illustrated by some research
following a trial in Los Angeles which lasted six and a half months.
At the beginning of the trial, a representative of the defendant
corporation was introduced to the court and remained in court for
three days. After the trial every juror was able to provide an
accurate description of that person. The jury members’
recollection of later witnesses was poor; they even confused the
experts for plaintiff and defendant. Why? Our senses are
heightened by unfamiliarity. Depending on the circumstances,
most speakers have the advantage of the primacy effect as they
begin a presentation. To a lesser extent, a clearly signalled
ending will also stimulate an audience.
Vinson (1985)

1.5 Personal style

Cultivating a personal style for advocacy is problematic. Do not
assume that you must be a ‘cardboard cut-out’ advocate who
must conform to some model. You do not need to know it all or
pretend that you do. Be yourself and be honest. Above all do not
feel as if you must always be ‘right’. Richard Du Cann argues that
an advocate:
… must be convincing in his manner and with his material: yet,
concessions, hesitations and even self-corrections can lend an
air of truth to his subsequent statements. There must be variety in
his language and in the tone of his voice, he must avoid
monotony like the plague: yet, repetition of a word or phrase can
be a valuable weapon. One part of the case may demand a rapid
summary of fact, and another require him to dwell at length on a
single point. His remarks might have relevance to the facts before
the court; yet, a healthy digression may enable him to return to
the issues with a renewed force …
Du Cann (1980)
8 Advocacy

1.6 Voice
It is instinctive to respond to authoritativeness; we tend to
associate this with a well modulated voice and calm but confident
body movement. The ambition of the advocate in her presentation
should be to sound sincere and authoritative without being
pompous or arrogant. One of the problems of being anxious is
that the quality of the voice is affected. Tension in the neck and
diaphragm makes the voice higher than normal. Taking a sharp
breath, a normal reaction to a threatening situation, can make you
breathy and squeaky. All of these symptoms, which flatten out our
voice so that it loses it natural highs and lows, can lead you to
speak in a monotone. Be calm and measured and project your
voice. Even if this is not how you feel, fake it until you have
gained confidence.
Remember that if you look down you will lose projection; so
either don’t look down or don’t speak while you do! The best
advice is not to worry too much about your natural voice; if you try
to change the way you speak or your pitch you will feel
uncomfortable. If you feel confident in what you are doing, your
natural voice will be fine to start with and your delivery will
improve with experience. If you continue to experience problems,
many people have benefited from use of the Alexander technique.
You would need to join a class to get the full benefit.

1.7 Words
The words we use are a powerful element in persuasion and yet
words must be used with care. One person’s orator is another’s
windbag. It is often said that an advocate should be eloquent. In
abstract, eloquence is ‘the art of fine speaking’. This begs the
question: ‘what is fine speaking?’ Eloquence is no more than the
power of uttering strong emotion in appropriate, expressive and
fluent language; in essence eloquence is using the power of
persuasion. Eloquence must fit the occasion. Language which is
inappropriate in a particular setting is embarrassing to the
audience and is likely to be ineffective.
Presenting to Persuade 9

One of the finest speeches ever made, ‘The Gettysburg Address’,

was expressed in simple, powerful language:
… four score and seven years ago, our fathers brought forth upon
this continent a new nation, conceived in liberty, and dedicated to
the proposition that all men are created equal …
Complex language can obscure the message; direct language is
often more effective because it is assertive. Speech behaviour
analysis of successful prosecutors in the US showed that their
key characteristic was ‘verbal assertiveness’. They tended to ask
the witness more direct questions and made firm statements
about the evidence in their speeches. Prosecutors securing fewer
convictions were more polite, used careful grammar and made
qualified statements in their speeches. Interestingly, defence
lawyers were more likely to secure acquittal when they used
vague and abstract language. Successful defence lawyers used
measurably fewer adverbs than their less successful colleagues.
Successful defence lawyers also used more legal jargon. This
suggests that the art of prosecution benefits from clarifying the
issues, keeping them simple. The art of defence may benefit from
a degree of obfuscation which leads to uncertainty in the
audience.
Parkinson and Parkinson (1979)

Evidence such as this suggests we should exercise caution in

overstipulating particular word choices. Instead, you should be
aware that different situations require different approaches. Make
a conscious choice of speech tactics depending on your purpose.
There is no doubt that the choice of words affects an
audience. In choosing words, it is often important to select plain,
everyday words. Think about the way you speak and begin to
form some good habits. Use only those words which you fully
understand, choosing them carefully for your speeches to convey
exactly the sentiment, fact or feeling which you intend. Remember
that the active voice (for example, ‘Jim Smith hit a fellow worker’)
is more vigorous than the passive (for example, ‘Another worker
was hit by Jim Smith’). As lawyers we tend to use neutral
10 Advocacy

phraseology when we could be more positive. In an Industrial

Tribunal, for example, the respondent’s advocate might say, ‘The
applicant’s conduct in striking a fellow employee was gross
misconduct fully warranting his dismissal’. This has less impact
than ‘Jim Smith was dismissed because he hit a fellow worker’.
Try to put important ideas at the beginning or end of the
sentence. Compare:
‘The defendant, at no stage, denied driving too fast’

with:
‘Not once has the defendant denied driving too fast’.
What is the important message and which sentence conveys it
more effectively?
Words should be chosen for particular purposes. Witnesses’
estimates of the speed of motor vehicles can vary according to
the verb used by the questioner to describe an accident. In
American research into witnesses’ perceptions of a car crash, use
of the word ‘smashed’ evoked an estimate of 40.8 mph, ‘collided’
39.3 mph, ‘bumped’ 38.1 mph, ‘hit’ 34.0 mph and ‘contacted’ 31.8
mph. When the questioner used the word ‘hit’, witnesses were
prepared to say that they had seen broken glass on the road.
There was no broken glass. Asking ‘Did you see the car with the
broken headlight?’ was more likely to get a ‘Yes’ than ‘Did you
see the car with a broken headlight?’. Therefore, a claimant’s
advocate and a defendant’s advocate would be wise to choose
different words to describe the same accident.
Loftus (1974)

1.8 Words for impact

One reason for using short sentences is that they are more easily
understood. Another is that they give longer sentences more
force. Longer sentences can be made more attractive by a
number of devices. Did you know, for example, that the interest of
Presenting to Persuade 11

an audience is stimulated by a rhetorical question? I have noticed

that, in skim reading a text, I often go back and re-read a question
if I have not fully grasped its meaning.
Using similies and metaphors is another way of stimulating
interest in an audience and of increasing their understanding of
your point. A good example is Pollock CB’s observation that:
It has been said that circumstantial evidence is to be considered
as a chain, but that is not so, for then, if any one link broke, the
chain would fall. It is more like the case of a rope comprised of
several cords. One strand of the cord might be insufficient to
sustain the weight, but three stranded together may be of quite
sufficient strength.
Exall (1866) 4 F&F 922

Another technique is the use of ‘parallel phrases’ (words or

phrases in a sentence which echo other words or phrases in the
sentence). John F Kennedy often used the rhythmic repetition of
key words in his speeches, for example:
Not merely peace in our time, but peace for all time.
People notice and remember such phrases. For example, in a
recent murder trial a phrase widely quoted in the national press
was:
Nothing like this had ever happened before. Nothing like this has
happened since.
John Goldring QC,
R v Allit (1992) court reference no T 0484

Churchill was fond of alliteration:

We cannot fail or falter.
and
He was a man of light and learning.
Another popular trick is to arrange points in groups of three. There
is something about this number which is magical:
12 Advocacy

Research in conversation analysis, particularly by Jefferson,

suggests that lists occurring in natural conversation are very
frequently done in three parts. More important, three-partedness
is a ‘basic structural principle’ to which speakers orient as a
normative device, which is to say that lists with less than three
items may be treated as incomplete … This striking
pervasiveness of three-parted patterns across kinds of discourse,
and across cultures, is, perhaps, responsible for the research
beginning to take place in the cognitive and linguistic sciences to
look into the technical bases for three-part categorisations as
ways of conceptually organising experience.
Drew (1990)

‘He was great; he was magic’

sounds like an excerpt from an interview with a footballer.
‘He was great; he was magic; he was a star’
at least sounds like an excerpt from an interview with the
manager. The sentence is balanced and the eulogy complete.
Theodore I Kossof (1977) gives an example of how ‘parallel
phrases’ can be translated to legal contexts. Of his visit to the
tomb of Napoleon, Robert Ingersoll said:
I saw him at Toulon, I saw him putting down the mob, I saw him
at the head of an army, I saw him in Egypt, I saw him at Elba.
He demonstrates how this might be adapted by an American trial
lawyer in a child personal injury case:
I saw this beautiful blonde haired child on her way to school. I
saw her crossing the street. I saw her playing with her friends and
laughing as they walked home …
While British courts may be used to less dramatic imagery, the
impact can be ‘scaled down’ to good effect. Do not aim to cram
your presentation with verbal tricks; at the beginning, you will
have enough to cope with! Make sure that your delivery of that
part which contains the key phrase is sufficiently emphasised by
your pacing and, often, a pause, usually immediately before
delivery. Excessive repetition of any single device can lead your
audience to see that it is just that, a device. If one comes to you in
Presenting to Persuade 13

your preparation and it seems to serve a purpose, for example, by

making a key point memorable, then use it. Remember, also, that
it is part of the art of presentation not just to use your phrase, but
to use it without a hint of either apology or embarrassment.

1.9 Emotion
Students often say that the quality they most appreciate in their
lecturers is enthusiasm. Why should students be excited about a
subject if their teacher isn’t? It is the same for presentations of
every kind. Why should a jury feel a sense of outrage if the
prosecuting advocate can barely stifle a yawn? Why should they
see this case as an instance of injustice when the defending
advocate doesn’t seem to care? Of course, emotion has to be
kept in bounds. It needs to be channelled and controlled. But the
court, just like an audience, should be in no doubt about your
commitment to what you are doing:
An advocate must be convincing, and for this purpose must
himself be convinced of the merits of the points he is making. To
put it bluntly, he must look as if he believes every word of his
client’s instructions
Bartle (1983)

It is especially important that an advocate can portray a sincere

conviction in her client’s cause because she cannot state such a
belief. The root of this convention is that it is not the advocate’s
role to express opinions in court. If both advocates said they
believed their clients, the argument could well be decided by the
status or credibility of the advocate rather than by the evidence
and the argument.

1.10 Repetition
There may be a very good reason for repeating a key point, for
example, for emphasis. This is a variation of the old teaching
adage: ‘Tell them what you’re going to tell them, tell them, and
14 Advocacy

then tell them what you’ve told them.’ Make sure that, if you do
repeat a point, you vary the way in which you present it. Mere
repetition is tedious. Having said that, there may be some
occasions when you use exactly the same phrase again and
again. This should be a conscious decision and not just the result
of a failure of inspiration.

1.11 Pacing
Presenters often assume that the key to being understood is to
speak slowly. In fact, this is not the case. The human brain has
the capacity to process information far more quickly than we can
speak, provided it understands what is said. Presenters who
speak too slowly can lose their audience to boredom. Provided
attention is paid to the other key elements of presentation style, a
lively pace is necessary to keep the audience stimulated. Of
course, anxiety can lead to a rushed delivery, but it is often not
the pace which is the problem; it is the lack of variation in the
voice and the lack of pauses which undermines the delivery.
Assume that you have something to say which deserves to be
listened to; don’t ever think ‘let’s get this over with and get out’ or
you will not do justice to yourself or your argument.

1.12 Pauses
Most speakers who are nervous do not speak too fast; their
mistake is not to pause enough. When we get over-anxious, time
seems to speed up and any delay seems like an age. The
speaker is very conscious of pauses which are barely noticed by
the audience. An audience needs pauses in order to process and
organise information. Pauses can also be used tactically:
Silence is one of the best ways to get attention. Suppose a
lawyer is in the middle of a final argument and notices a juror in
the back row whose eyes start to flutter closed. Does he raise his
voice; change the subject; grab the jury rail and go on? No. He
stops. Waits. Says nothing. The tension of the situation rises until
all eyes are fixed on him unblinkingly. At that moment the lawyer
Presenting to Persuade 15

has the jury’s total attention. The next thing he says or does will
be remembered … It works so well that the lawyer who uses it
must take special care that whatever follows justifies the
expectation which was created.
Kossof (1977)

1.13 Posture
Your posture helps to convey confidence; in addition, good
posture is an aid to voice projection and delivery. In some
situations, you will stand. In others, particularly tribunals, you may
be invited to sit. If you are sitting, lean forwards rather than
backwards, and do not cross your legs. When standing, be
upright, with your feet placed slightly apart and your weight evenly
distributed. Do not sway, either from side to side or backwards
and forwards. Hold any materials at a level which allows you to
conveniently maintain eye contact with your audience. Avoid
unnecessary movements with the hands. Finally, if it is possible
under the weight of all this advice, be relaxed: do not stand too
stiffly. Believe it or not, all of these things will help your voice as
well as looking better.

1.14 Interaction
One to one communication is usually the most effective means of
interaction.
Whatever the presentation, it is important to interact with the
audience. When it is not possible to speak to the audience
individually, the only means left are eye contact and gesture. Your
eyes not only hold the audience’s attention. They tell you how the
audience is responding to what you are saying. Different people
respond differently to the same presentation. It is important to
take cues from the audience. If members of the jury are looking at
the floor or examining their fingernails, perhaps your delivery
needs more ‘pep’. If the judge is clearly impatient, it may be
appropriate for you to take the cue and respond by changing your
16 Advocacy

presentation style. It may be that you are covering aspects which

she has gleaned from the papers (in which case she will usually
say) or it may be that your delivery is too slow. However, some
judges are just impatient. It may be that she has made up her
mind about the aspect of the case you are dealing with. If that is
the situation as you read it, do not compromise. Make sure that
what you have to say is heard.

1.15 Body language

There is evidence that non-verbal signals have more impact on an
audience than either words or voice. We read these signals so
automatically we rarely consciously analyse them. Furthermore,
there is a danger in trying to change signals:
Human beings cannot function with equanimity when too much
detail is brought to the level of awareness. Blind spots are a
protection in a sense. Bringing too much to the attention of a
person, about the way she fiddles with her hands, or grimaces, or
uses over-high pitch too often, will not enhance communication,
and may push the individual to isolation.
Key (1975)

If there is little you can do to change your own body language,

what is the point of knowing about non-verbal communication?
First, of course, be conscious of other people's signals. If you
observe, you will know whether or not the audience is with you.
As to your own body language, obviously you should try and
avoid the most distracting of your mannerisms. The most
important point is not to send verbal messages which are
inconsistent with your non-verbal messages; you must be sure
that the words you use are consistent with your feelings. The
problem in denying your feelings in presentation is that an
audience perceives your lack of conviction or belief.
In advocacy you are always more likely to be convincing if you
believe in what you are saying. Hence:
Presenting to Persuade 17

I am very much impressed with the work of men like Professor

Ray Birdwhistle, who insists that more than 50% of all
communication between human beings is being done non-
verbally – that is, by eyebrows, ears, shoulders, set, movement,
tone. His observations are true; a lawyer cannot fake his way
through a case and con a jury into a verdict he does not believe
in himself. The jurors will know they are being conned; they will
resent being thought of as such easy marks.
Spangenburg (1977)

According to Stefano (1977), this is an argument for honesty. If

your client is an unsympathetic character, it may be that you will
be more convincing once you have confronted that problem.
How? You can admit it; having done so you may be more able to
put his case convincingly. That is a position which you can believe
in. If you believe in what you are doing, your body and voice are
more likely to act in concert; you will be persuasive.
On body language generally, see also Negotiation by Diana
Tribe and Interviewing and Counselling by Jenny Chapman, both
in this series. On reading the body language of your audience,
see Exercise 1 later in this Chapter.

1.16 Appearance
An advocate owes a client a duty to do the best she can.
Whatever your personal preferences in clothes, they may not be
the judge’s:
Personal impression of the advocate inevitably influences a court
either favourably or adversely … A dark suit and sober tie is the
ideal working uniform of the lawyer. If a waistcoat is not worn, the
jacket should be buttoned up. A degree of individuality there must
be, but these are surely sound guidelines
Bartle (1983)

While much depends on the person who hears the case, you will
rarely know what they think of your striking apparel, or how they are
influenced by your appearance. Why make a sartorial point at your
18 Advocacy

client’s expense? Be yourself, but less so, is good advice. Looking

right helps you to feel right: feeling right gives you confidence.

1.17 Confidence and nerves

Stumbling nervousness focuses attention on you rather than your
case. It is a disadvantage, but one which can be dealt with.
Nervousness, at least in most cases, dissipates with experience.
There are worse personality traits; pomposity and arrogance may
give an audience an unhealthy desire to see you take a fall. Some
people appear naturally confident about speaking in public.
Others can be badly affected by nerves. You can’t worry and think
at the same time. Before the presentation, imagine yourself
performing the presentation. Visualise yourself doing well, being
positive and confident. Do not, whatever happens, think about
things going wrong.
Confidence grows with experience of the context in which you
are operating, realising that you can do it. Have as many ‘good
experiences’ early on as you can get; you could probably do 10 or
more simulated presentations of a particular type before you will
feel confident. You can usually tell you are confident when you
start to feel bored! The best way to ensure good experiences is to
prepare well. This includes not just the substantive law and
arguments but the procedure as well. If the procedure requires
that you make an opening address, think carefully about what you
will say and rehearse those opening lines so that you can deliver
them with confidence. Do not read them out loud; you will appear,
and feel, less confident. Do not take a lack of positive signals
from the audience as a judgment on you; assume the audience’s
acceptance. Finally, focus clearly on the task before you, how you
are going to solve this problem. Do not think about what others
may be thinking of you.
Nerves are natural before a ‘performance’. Usually, they
disappear as you continue. The trick is to get over the early
stages. If you find yourself badly affected it is a good idea, where
possible, to make physical contact with some object. If the desk is
Presenting to Persuade 19

high enough, many advocates rest their palms or fingers on the

desk. If you feel particularly nervous, sit down, hold the edge of
the desk or hold your hands behind your back; this will prevent
your hands shaking. Focus on what is going on and wait for the
moment to pass. Remember, when you think about the
performance, imagine it going really well; positive thinking is a
great aid to confidence.

1.18 Elements of competent performance

There are many ways of analysing presentation and breaking
down the skills involved. In fact, these skills are largely inter-
connected. If you are confident and have good posture, there is a
good chance you will have better control of your voice, pacing and
the interaction in general.
Key work on the nature of lawyer competence was conducted
by the Competency-Based Task Force of the Antioch School of
Law, published in 1978. The Task Force identified six ‘major
competencies’. One of these major competencies, oral
competency, they broke these down into seven specific
competencies:
(1) ability to use the mechanics of language (for example,
grammar, syntax, articulation);
(2) ability to express a thought with precision, clarity and
economy;
(3) ability to express thoughts in an organised manner;
(4) ability to speak appropriately to a given audience;
(5) ability to identify and use appropriate non-verbal aspects of
communications (for example, appearance, poise, gestures,
facial expressions, posture and use of spatial relationships);
(6) ability to perceive other’s communications and actions (verbal
and non-verbal);
(7) ability to communicate so as to advance immediate and long
term objectives.
20 Advocacy

Checklists such as this one can be useful guides and can help to
identify major shortcomings. They can also provide a structure for
verbal feedback in small group work. Being aware of a
shortcoming is initially discomfiting. It is also the first step in
remedying that shortcoming. If you need to improve your basic
presentation take every opportunity to do so; speak in public
whenever you can and invite feedback from any audience
prepared to give it. Do not become obsessed with how you are
perceived by others. It is difficult to significantly change the way
you are. With effort you might avoid a few annoying mannerisms
or appreciate that you could be more or less assertive. If you try
to change too much, you can become overanxious, self-
conscious and, as a result, less effective. Remember, good
planning and organisation will help you to feel confident and at
ease. In most cases time and experience will improve
performance.

Exercise 1

Try this with a few friends for a start.

Select a topic of particular interest to you, a hobby or current
issue, for example. Talk for five to 10 minutes to an audience of
four or five colleagues about your chosen topic. At the end of the
presentation, the audience should give you constructive feedback
identifying particular strengths and weaknesses of the
presentation based on the Antioch criteria listed above. In
particular, consider the following points:
(a) look back at criterion seven (advancing immediate and long
term objectives). Consider the purpose of your presentation. Is
it to inform, persuade or sell? How should you introduce this
purpose? How will you structure what you say to achieve it?
(b) re-read criteria five and six (using non-verbal communication
and perceiving others’ (non-verbal) communications or
actions). Remember, it is difficult to do either of these things
Presenting to Persuade 21

effectively if you are looking down while reading notes; you

need to be able to scan the faces of the audience to see what
signals they are sending you. The benefit of this kind of
exercise is that it gives you experience of working from brief
notes or headings. It can be an essential confidence builder
and should not be treated lightly. In seeking honest feedback
from your audience, try to recall the signals you received from
individuals in the audience. Test whether you understood the
non-verbal messages they sent. You can do this by asking
each individual what they were feeling at the time they did
whatever they did:
Q: Jim, I noticed you folded your arms when I was talking
about abortion. What were you feeling?
A: Actually, I was feeling cold and thought I might disrupt your
talk if I put my jacket on.
Q: Are you sure? It felt like a defensive gesture to me.
A: Well, I didn’t agree with what you were saying, but I wasn’t
aware of shutting it out.
It is often the case that non-verbal messages are ambiguous or
misunderstood. The fact that non-verbal signals from an audience
can be ambiguous is worth noting. However, ‘body language’ can
be a powerful tool in communication and it is surprising, therefore,
that some students appear reluctant to take the subject of non-
verbal communication seriously. Positive body language can be
an aid to effective advocacy. The sooner you start thinking about
it, and finding a language which will express your thoughts, the
sooner you can begin to improve your presentation.
The first time you try the exercise, the audience should not
interrupt. If you want a second round, pick a controversial current
issue. A further refinement is to allow questions during the
presentation. You can then practice dealing with difficult
questions. You might, for example, respond to questions as asked
or deflect them. You will soon develop strategies for deflecting
even the most disruptive contribution from the floor. For example:
22 Advocacy

Speaker: Next, I am going to talk about the current rash of

cases involving corruption in the boardrooms of our
major companies …
Questioner: [Not sure whether to take this seriously] What
about the workers?
Speaker: You may be right; worker democracy is a possible
solution. I will consider this, and some other
options, in my concluding remarks.

1.19 Narrative
The average attention span of most people is no more than 10 to
12 minutes. After that time thoughts wander and an audience may
only be brought back by a presenter using a technique like
audience participation, silence or questions. A possible exception
to this is when we are listening to a story with real human interest.
If our interest is stimulated in this way, our attention is more
focused, we want more detail: we want to find out what happens
to the characters we have identified with.
Narrative is no more or less than telling a story. Creating ‘word
pictures’ can be of great assistance in presenting a case to a
court. It can offer members of a jury a clear image of events.
Remember that they will know nothing about the case and that it
is difficult for them to understand the story when they cannot
easily ask questions. Of course, to have the dynamic interest of a
real story they will need to identify with the characters and care
about what happens to them; the characters will have to be real
and the world which they inhabit will have to be clearly drawn. Of
course, in courts of law, ‘the story’ has to be accurate. This is not
a problem. It is not legal cases which are lacking in drama; it is
the way in which we analyse and report cases which tends to
remove the human interest. An advocate has to find the human
dimension of a story before he can turn the facts of a case into
narrative.
Many of the techniques which can be used in developing
narrative come from the best dramatic traditions. Konstantin
Presenting to Persuade 23

Stanislavsky originated the ‘method’ school of acting at the end of

the last century. His aim was to eliminate the artificiality of the
acting of the period. His approach was to develop the ‘emotional
memory’ of actors in their roles. In modern acting, this is known as
‘imaging’. Heightened perception of events is achieved by
focusing on a character and a situation. The events are mentally
reconstructed in minute detail, using a sensory checklist: sight,
hearing, touch, smell, taste and state of mind.
According to Kerper (1984), the technique is useful in creating
a heightened perception of a series of events. It is useful
preparation for interviewing the client prior to litigation and for
questioning witnesses in court. A sense of narrative can be an
important aid in making speeches and cross-examining
witnesses.
It is worth repeating that, in using any of the devices
mentioned above, you must be aware of your audience; their
needs, their expectations and, possibly, their prejudices. Do not
use presentation techniques you are not comfortable with. Avoid
any hint that you may be patronising your audience or attempting
to manipulate them.

Exercise 2
In order to develop your sense of narrative, take a case which is
well known to you. Donoghue v Stevenson (1932) or Carlill v
Carbolic Smokeball (1893) or The Wagon Mound (1967) are
usually lodged in most students’ memories. For the purpose of
demonstration, I will take The Wagon Mound. You will remember
that the fire which damaged Sheerlegs Wharf, and the ships
moored there, followed the spillage of oil into Sydney Harbour at
Caltex Wharf. You might start by making a mind map of the basic
facts of the case as a guide. You will need to identify the
characters: the ship’s engineer, the welders and their works
manager and the ‘higher authority’ he consulted before instructing
the men to continue their welding operation.
24 Advocacy

Case reports offer scant detail of the basic facts and, for the
purpose of this exercise, they are not really important. The
questions which you might have asked the characters are for you
to answer; the idea is to free your imagination. You can approach
the task from the partisan perspective of any of the characters, or
none. However, a perspective that you might like to adopt is one
which suggests that this is an event which was unforeseeable, not
in a legal sense, but to the ordinary people who were involved at
the time. The first time you do this, it is best just to concentrate on
the story. The idea is to make the story come alive. The story can
be recounted seriously or with humour, as you prefer; some
people feel more comfortable with humour to start with. Since this
is not an exercise in factual or legal accuracy, I will dispense with
both:
The sun beat down on Sydney Harbour and the quayside and
wharves hummed with the activity of people and insects. Along at
Sheerlegs Wharf, Ron Welder ignored the heat and the stale
smell of sweat and solder. He exhaled noisily as the flame of his
oxy-acetylene torch burst into noisy action. HMS Doomed would
need all of Ron’s skills to save its rust flecked carcass. Ron was
an experienced man, a man of 35 years who loved welding; his
father had been a welder and Ron had been apprenticed to a
welder from the age of 16. He had learned his trade so well that
when, at the age of 21, he had wanted to marry Arlene, there was
money enough to support them; Ron’s overtime had seen to that.
That morning, the work had seemed unusually slow; the air was
still and damp. Many of the male welders had taken off their
shirts. At around noon, Ron and his mates were enjoying thick
sandwiches and a tin of piping hot, sweet tea. Leaning on the rail
of HMS Doomed, Ron sucked on a can of beer. ‘Looks like an oil
spill out there’, he heard someone on the upper deck call. The
gang gathered round and shielded their eyes against the sun.
They saw a patch of dark sea moving slowly but surely towards
Sheerlegs. Ron wondered whether the welding would be
affected. He knew that his overtime was at risk from the gathering
gloom in the water. With his overtime might go his planned trip to
England to see his Mum and Dad. As Ron had kissed Arlene
Presenting to Persuade 25

goodbye that morning, he could not have guessed that his would
be the spark that ignited global litigation. Ron’s torch would be
the catalyst in a chain of events which established a startling new
test for the limit of legal responsibility for negligent conduct.
But it was not Ron whose conduct on that day was condemned
as negligent. The Wagon Mound had put into Sydney Harbour to
collect a cargo of bunkering oil. It was about 10 am. On deck, the
engineer, Dave Sloppy, was supervising the pumping of oil into
the hold …
This would be a good point for you to take over! In about three
pages you should get to the interesting bit; the decision to carry
on welding, the spark falling in the cotton waste floating in the
water and the fire which followed. Remember to subject each item
on your mind map to the sensory checklist (see above) in order to
develop the narrative. You should be able to expand the detailed
description to fill the time allowed to you.

1.20 Summary
• Persuasion has an emotional and logical dimension.
• Anticipate the needs of your audience.
• Start and finish strongly.
• Use creativity in planning.
• Speak at a normal pace, using pauses and eye contact.
• Give your words and phrases impact, but …
• Do not be seen to manipulate your audience.
• Believe your message.
• Develop confidence through trial runs.
• Be conscious of your ‘story line’.
26 Advocacy

1.21 End of chapter references and additional reading

Bartle, RA Advocacy in the Magistrates’ Court
(1983) Law Institute Journal Vol 57
Chapman, J Negotiation
(1994) Cavendish Publishing
Costanzo, M Legal Writing
(1994) Cavendish Publishing
Drew, P Language in the Judicial Process
(1990) Plenum
Du Cann, R The Art of the Advocate
(1993) Penguin
Evans, K Advocacy in Court:
(1995) A Beginner's Guide
Chapter 16
Blackstone
Gelb, M Present Yourself! Captivate your
(1988) Audience with Great Presentation Skills
Jalmar
Guirdham, M and Enterprise Skills for Students
Tyler, K Chapter 8
(1992) Butterworth Heinemann
Kerper, J Stanislavsky in the Courtroom
(1984) Litigation Vol 10 No 4
Key, MR Paralanguage and Kinesics
(1975) Scarecrow
King, AG Effective Communication
(1992) Chapter 4
Blackstone
Kossof, TI The Language of Persuasion
(1977) Litigation Vol 3 No 4
Presenting to Persuade 27

Loftus, E Reconstructing Memory:

(1974) The Incredible Witness
Psychology Today Vol 1
Parkinson, MG and Speech Tactics for
Parkinson, LM Successful Trials
(1979) Trial Vol 15 No 9
Rifkind, SH How to Try a Non-Jury
(1984) Litigation Vol 10 No 3
Spangenburg, C Basic Values and the
(1977) Techniques of Persuasion
Litigation Vol 3 No 4
Stephano, J Body Language and Persuasion
(1977) Litigation Vol 5 No 41
Tribe, D Negotiation
(1994) Cavendish Publishing
Vinson, DE How to Persuade Jurors
(1985) American Bar Association
Journal Vol 71
 1

CHAPTER
29

2 Conduct

The ethical conduct of solicitors is governed by principles

established by the Law Society, which are published in The Guide
to the Professional Conduct of Solicitors . Detailed provisions
relating to the conduct of advocacy are published by the General
Council of the Bar and the Law Society (General Council of the
Bar (1990); Law Society (1996)). The Law Society’s Code for
Advocacy was issued as part of the regime installed to implement
the Law Society’s power to accredit solicitor advocates for higher
court work. The Code applies to all proceedings. Other principles
of conduct are relevant in less obvious ways. There are additional
conventions which should be followed. These often arise out of an
obligation of common courtesy to the court. It is beyond the scope
of this book to discuss these in detail (but see Boon and Levin
(1999)).

2.1 The lawyer and the client

Today, many clients want to be closely involved in their case; they
want to know what is happening and they want to participate fully
in the decisions which are made. They want to know what they
are ‘buying’. No longer do they work from an assumption that their
lawyer is competent:
Today, it is necessary to give your client more information than
before. There is more pressure to inform, and the character of
modern litigation is more complex … we have to be careful about
what we say, and how we say it; to be knowledgeable about
procedures, costs and the consequences of litigation …
Boon (1992)

The client will often expect the lawyer/client relationship to be

more of a partnership than in former years. This is a perfectly
reasonable expectation. Often, the client is running a
30 Advocacy

considerable financial risk in litigation. The lawyer cannot

guarantee that the case will be won. The client is aware that the
outcome may depend on what the lawyer puts into the case, so
you can be sure that the client wants to know what is going on!
Potential problems can be eased if the lawyer recognises this
legitimate interest by involving the client as far as possible,
keeping him informed of developments, re-evaluating the possible
outcome and guiding the client in making decisions (see the Law
Society, Client Care: A Guide for Solicitors (1991), especially
pp 10 and 11).
Principles 21.20 and 21.21 of the Guide to the Professional
Conduct of Solicitors impose an obligation on a solicitor appearing
for the defence, in criminal cases or in civil proceedings, to ‘say
on behalf of the client what the client should properly say for
himself if he possessed the requisite skill and knowledge’.
This means that you must first discover what the client ‘should
properly say for himself’. It implies proper counselling of the client
to determine the client’s objectives and interests, so that you can
advise him or her properly on his or her options, and obtain
proper instructions.
In any matter, the advocate must discover all the facts from
the client. She will sometimes need to work hard to create an
atmosphere of openness and trust. It may be necessary to explain
the duty of confidentiality in order to obtain all the available
information. It is only possible to advise properly on the basis of
the full facts, and this should be made clear to the client. A client
should be fully aware of the risks he or she runs if he or she does
not provide you with all the information you require. One such risk
is that the information will come out at trial and torpedo the case.
This could leave the client with a ruinous burden of costs in a civil
case, or a more onerous sentence than necessary in a criminal
case. However, having obtained this information, you can only
give the client preliminary advice on the basis of what you have
been told. Your view of the matter may change when you have
heard what the other side have to say. At that point, you may wish
to go back to your client and discuss the matter further.
Conduct 31

Moreover, it is my practice to plead to him the cause of his

adversary, in order to force him to plead his own and to force him
to state boldly what he thinks of his own case. When he has
gone, I conceive myself in three characters: my own, that of my
adversary and that of the judge. Whichever propositions promise
more support or assistance than obstruction, I resolve to raise in
court; wherever I find more harm than good, I set aside and
totally reject that part of the case.
Cicero, De Oratore

Cicero’s advice is still relevant to client interviews. In a recent

research project, a solicitor explained how she adopted the role of
the trial judge in advising a client:
When dealing with a client, it is important to put a neutral cap on
and remain objective. In other words, put yourself in the place of
the trial judge … it is important, also, to be brave with the client –
let them know from the start what the likelihood of success or
failure is – don’t raise their hopes if they have little chance of
success.
Another solicitor anticipated the line which would be taken by the
other side:
I attempt to remain objective by placing myself in the other
solicitor’s shoes, and try to explain this to the client, who can
then, sometimes, see things in a different light …
Boon (1992)

The foundation of effective advocacy, therefore, is getting

litigation off on the right course; this requires that you obtain as
many of the facts in as accurate a form as possible. How do you
obtain full disclosure by the client? It would be foolish to tell the
client in advance that you do not wish to hear admissions or
details of incriminating evidence. However, this does present
problems. Principle 21.13 of the Guide to the Professional
Conduct of Solicitors states that, if a client informs a solicitor that
they have committed perjury or misled the court on a material
point, the solicitor must decline to act further unless the client
agrees that the conduct is disclosed in full (see, also, para 5.1(e)
of the Code for Advocacy).
32 Advocacy

The ethical dilemma for lawyers in this situation is more

complex than a quick reading of this principle suggests. First of
all, the client must inform the solicitor that they have committed
perjury. What is a material point? What if the client says he is
going to commit perjury in the future? What if the perjury is
obvious to the solicitor, but is not admitted? Canadian research
suggests that many advocates put their obligations to clients
before their obligations to the court. This attitude is actively
discouraged by the Law Society’s Code for Advocacy (1996),
which provides that:
Advocates must not:
(a) engage in conduct … which is:
(i) dishonest or otherwise discreditable to an associate;
(ii) prejudicial to the administration of justice; or
(iii) likely to diminish public confidence in the legal profession
or the administration of justice, or otherwise bring the
legal profession into disrepute.
(para 2.1)

(See, also, below, 2.2.)

It should be noted that solicitors are cautioned not to treat
inconsistent statements made by a client as grounds for refusing
to act. The solicitor must be sure that the proposed evidence is
false before withdrawing. ‘In other circumstances, it would be for
the court, and not the solicitor, to assess the truth or otherwise of
the client’s statement.’ (the Law Society, Guide to the
Professional Conduct of Solicitors (1996), principle 21.21, para 5.)
The court must rely on the good sense of advocates in such
matters. After all, if a client is determined to mislead the court, he
or she can go to another advocate. This next time, he or she will
omit the detail which caused the first advocate to withdraw.
Protected by the first advocate’s duty of confidentiality, they will lie
to the court and may or may not be believed. Nevertheless, to
disqualify oneself from acting further is clearly required by the
court and the profession if clients insist on deceiving the court.
Conduct 33

Clearly then, it is the advocate’s duty to convince the client

that it is too risky to lie. If they have a good case without lying, this
is an argument which can be pressed. To be found to have lied to
the court on one issue will undermine the client’s credibility on
other issues. If he or she has no case without lying, the risk of
being caught out is too high; there are other options, such as
negotiation, which should be urged on the client.
The lawyer’s duty to her client also extends to preparing him
or her adequately for a court performance. In the United Kingdom,
it is not permitted to ‘coach’ witnesses (to suggest ways in which
they should give evidence). Giving general advice is, however,
allowed. Research conducted in the United States indicates that,
in criminal trials, defendants are more likely to be acquitted if they:
(a) said ‘please’ or ‘sir’ when appropriate;
(b) spoke in grammatically complete sentences;
(c) made relatively few references to themselves.
Many advocates also advise their own clients to give short
answers, preferably ‘yes’ or ‘no’, when they are being cross-
examined. This puts considerable pressure on the cross-examiner
to keep coming up with questions.

2.2 The lawyer and the court

The Criminal Procedure and Investigations Act 1996 imposes
obligations on a prosecutor to disclose material which has not
previously been disclosed to the accused and which, in the
prosecutor’s opinion, might undermine the case for the
prosecution against the accused (s 3(1)).
Principle 21.19 of the Guide to the Professional Conduct of
Solicitors provides that a solicitor prosecuting a criminal case
must make every material point supporting the prosecution, but
that while ‘presenting the evidence, must do so dispassionately
and with scrupulous fairness’. Thus, details of witnesses whose
testimony favours the accused should be disclosed to the
defence. There is no corresponding duty on the defence.
34 Advocacy

The advocate must show all due respect to the court, and is
entitled to be shown reciprocal courtesy by the officials of the
court. The materials from the Inns of Court School of Law Bar
Finals course give extensive examples. Terms of address are the
most obvious manifestation of this responsibility. The conventions
for addressing the official in charge of the hearing are
summarised here. You should avoid referring to the senior court
official as ‘You’, as in:
‘You will see that the defendant has a long record.’
The forms which are used to avoid this seem strange at first, but
you will soon become accustomed to them. The following is a
summary both of the terms and the way they are used.
Magistrates, Tribunal Chairs and District Judges are
addressed as ‘Sir’ or ‘Madam’. On occasions where there are
other members of the bench or tribunal, address the Chair and
refer to these others as ‘colleagues’, for example:
‘Madam, the applicant and respondents have agreed terms’
and:
‘If it pleases the court, Sir, I have copies for your colleagues.’
County court judges and circuit judges sitting in the Crown Court
are addressed as ‘Your Honour’, for example:
‘If Your Honour could turn to page 15 of the Claimant’s bundle’
and:
‘His Honour will direct you on the law at the end of the trial.’
High Court Judges, Lords Justices of Appeal and lawyers sitting
as judges in the Central Criminal Court are addressed as ‘My
Lord’ or ‘My Lady’ in any situation where you might use the
judge’s name, for example:
‘My Lord, I have no further questions.’
Conduct 35

Use ‘does My Lordship’ or ‘does My Ladyship’ in situations where

you otherwise use ‘do you’, for example:
‘Does Your Ladyship wish that this witness be released?’
You should refer to magistrates’ clerks as ‘your learned clerk’
when addressing the bench.
With regard to other advocates, barristers are referred to as
‘my learned friend’. Solicitors are simply ‘my friend’. A more
modern approach is to refer to your opponent by name, that is,
‘Mr/Mrs Advocate’, in the same way as one would refer to
witnesses. If in doubt, stick to the conventional ‘my friend’ and ‘my
learned friend’.
There is obviously more to the relationship between advocates
and judges than terms of address; these are simply
manifestations of a deeper obligation. Both judges and lawyers
have reciprocal obligations to uphold the dignity of the courts of
justice. This is eloquently expressed in the Code of Trial Conduct
of the American College of Trial Lawyers:
During the trial, a lawyer should always display a courteous,
dignified and respectful attitude towards the judge presiding, not
for the sake of his person, but for the maintenance of respect for
and confidence in the judicial office. The judge, to render effective
such conduct, has reciprocal responsibilities of courtesy to and
respect for the lawyer, who is also an officer of the court. It is both
the right and duty of a lawyer fully and properly to present his
client’s cause, to insist on the opportunity to do so, and, further,
to take appropriate steps to attempt to assure that his client is
granted a fair and impartial trial. He should vigorously present all
proper arguments against rulings or court demeanour he deems
erroneous or prejudicial, and see to it that an accurate and
complete case record is made. In any regard, he should not be
deterred by any fear of judicial displeasure or punishment.
Connolly (1975)
36 Advocacy

It is important, therefore, to be respectful to the court. This

includes avoiding the use of the time honoured phrase ‘with
respect’. This phrase is common amongst lawyers, particularly at
the point when the advocate is about to disagree with a point.
However, it is generally recognised that ‘respect’ is probably the
last thing conveyed by its use.

2.3 Conflicts
On occasions, the advocate’s duty to the court and her duty to her
client will conflict. This is an area in which there will often be
disagreement amongst senior practitioners about what a lawyer
should do. Principle 21.07 of the Law Society’s Guide provides
that:
… a solicitor who acts in litigation, whilst owing a duty to do their
best for the client, must never deceive or mislead the court.
Thus, while entitled to every arguable point, a solicitor who
realises that another advocate has missed a case or provision
must draw this to the attention of the court, even if it may damage
her own case (principle 21.07, para 3; and Code for Advocacy,
para 7.1(c)).
Under principle 21.08, a solicitor must not:
… make an allegation which is intended only to insult, degrade or
annoy the other side, the witness or any other person.
This precludes impugning parties who are not party to the
proceedings before the court, or making allegations against
witnesses which are not supported on reasonable grounds.
Apart from certain conduct which is specifically precluded by
the rules:
It is for all participants to extend respect and courtesy and to
expect to receive it. The most visible sign of shared respect is
appropriate courtroom demeanour and manners.
This actually serves the best interest of both advocate and client
because:
If counsel is a bully, a braggart, a boor, it is best to assume a
more amenable personality … Juries come to their duties with
Conduct 37

their own common sense and life experience, which the judge
usually tells them they are to use in deciding the case. This
common experience includes the ability to spot someone who is
posturing, declaiming, faking or otherwise trying to baffle them
with form over substance.
Steingrass (1985)

The new Civil Procedure Rules, introduced in April 1999, have the
overriding objectives of enabling the court to deal with cases justly
and saving the parties expense (Civil Procedure Rules 1998,
r 1.1(1) and (2); and see Grainger and Fealy (1999)). In order to
achieve this, judges have been given extended powers of case
management. The role of advocates is to assist courts in
achieving these objectives while defending their clients’ interests.
This will be particularly relevant where the court encourages
co-operation or attempts to settle (r 1.4).

2.4 Lawyers and witnesses

Much of what is said in this section is as applicable to client
witnesses as to other witnesses of fact. In interviewing witnesses
before trial, it is important to make it clear that their evidence may
be disregarded or diminished in value if it is perceived to be
partial. A witness whose evidence may otherwise be valuable
may destroy a whole case if they are not believed on what may
appear to be a trivial detail. There are, therefore, tactical as well
as ethical issues in ensuring that witnesses provide a full and
accurate account of their evidence.
There are particular problems in assessing ‘vulnerable’
witnesses:
Falsification, or distortion of memory, is particularly pronounced
where an individual reflects an acute sense of insecurity and an
immature outlook on life. Fabrications reflect an attempt to
achieve status and recognition, and to dispel any doubts as to
one’s efficiency.
Freedman (1976)
38 Advocacy

However, there are other factors which lead different witnesses to

give different accounts of the same events; the very act of
recounting a personal experience, and the questions which
prompt recollection, can affect the detail of what witnesses offer
as fact:
One of the most common misconceptions about memory is that it
is a process of recollection or reproduction of impressions,
closely analogous to the functioning of a phonograph or tape
recorder. In that respect, legal thinking is centuries out of date,
proceeding as if highly relevant experiments in behavioural
psychology had never taken place. In fact, perceiving is itself
active and constructive, and memory is much more a process of
reconstruction than one of recollection or recall. Moreover, the
process is a highly creative one, affecting what is ‘remembered’
as much as what is ‘forgotten’!
Freedman (1976)

Closed and leading questions from the person interviewing are

more likely to shape the witnesses’ recollections of events (on
questioning strategies in client interviews generally, see
Interviewing and Counselling by Jenny Chapman, in this series).
Adversarial court procedure often gives each side exclusive
access to some witnesses. There is a risk, in this situation, that
the witnesses for each side will have their evidence ‘shaped’
during trial preparation. When they give their evidence, they will
not be lying. That is the way they now remember events.
Recognising this also involves recognising the thin ethical line
between obtaining a witness’s account of events and determining
what they will say about the events.
For this reason, cross-examination of witnesses is not always
effective in obtaining ‘the truth’. Cross-examination may not
secure the best account of events; the hope is that, from all the
evidence produced at a trial, a synthesis will produce something
which better equates with historical accuracy:
Conduct 39

Narrative, supplemented by probing questions of the direct

examination type, has been found to induce the least error and
cover the most ground … in obtaining a complete story of what
was, in fact, observed, whereas the experimental findings
illustrate that the highly suggestive or leading questions usually
associated with cross-examination cause a witness to give
answers which are very high in the percentage of error.
Grossman (1962)

Remember that some witnesses may want to help your client, or

to please you. Their attempts to help may actually prejudice your
client’s case if their account ‘unravels’ at trial.
It may be obvious at the time you speak to a witness that he
has given information which conflicts with other known facts. On
other occasions, matters come to light which contradict what the
witness has said. On these occasions, it is important to speak to
the witness face to face. It is difficult to clarify even a simple point
on the telephone or to convey to a witness the importance of their
credibility.
It is also important to realise that witnesses who are
contradicted are not necessarily lying; in most cases, they should
not be treated as if they are. In speaking to your witness, it is
more likely that you will get an accurate version of what they know
if you question on the basis that they may be mistaken. You might
suggest to the witness that the other side might try to show that
he is lying, but that is another matter. Witnesses in court are also
entitled to common courtesy. It is not good tactics to attack every
witness as if they must be lying unless, of course, you can quite
clearly show that they are.
Aggressiveness towards witnesses or discourtesy to the bench is
always counterproductive … He who seeks to persuade the court
to look favourably on his client will not achieve this objective by
antagonising his audience.
Bartle (1983)
40 Advocacy

When questioning a witness, you should not ask a trick question,

for example, one which misrepresents a state of affairs or what
another witness has said (see for examples of the subtle
difference between permissible representation and
misrepresentation: Tombling v Universal Bulb Co Ltd [1951] 2
TLR 289; Meek v Fleming [1961] 2 QB 366; and Boon and Levin
(1999), Chapter 14). In any closing speech, when you are
reviewing the evidence, you must not misquote the evidence of a
witness.
What is the situation if you suspect one of your own witnesses
of perjury? Is the client to be denounced because a witness has
lied on his or her behalf? The Guide is not clear on this point, but
the general prohibition on misleading the court applies (see
above). The strict ethical position is that an advocate should not
ask questions which she knows will allow a witness to give false
evidence. Nor should she refer to evidence she knows to be false
in a closing speech. However, as we have seen, the boundary
between what is ‘true’ and what is ‘false’ is rarely clearly defined;
you will find that different advocates have different views about
whether a witness has given ‘false’ evidence.

2.5 Summary
• Treat all participants in the court process with respect.
• Use the correct terms of address.
• Your duty to your client is subordinate to your duty to the
court.
• Be brave in confronting your client with problems in the case.
• Be brave in presenting your client’s case.
• Expose inconsistencies in your witness’s story before you get
to court.
Conduct 41

• Counsel your witnesses against perjury and disqualify yourself

if necessary.
• Bring to the court’s attention contrary precedents.
• Do not connive at the presentation of false evidence of fact.
42 Advocacy

2.6 End of chapter references and additional reading

Bartle, RA Advocacy in the Magistrates Court
(1983) Law Institute Journal Vol 57
Bing, I Criminal Procedure and Sentencing
(1996) in the Magistrates’ Court
Chapter 11
Sweet & Maxwell
Boon, A Skills for Legal Functions I:
(1992) Representation and Advice
Institute of Advanced Legal Studies
Boon, A Assessing Competence to Conduct
(1992) Civil Litigation Key Tasks and Skills
Institute of Advanced Legal Studies
Boon, A and Levin, J The Ethics and Conduct of Lawyers
(1999) in England and Wales
Hart
Carey Miller, DL The Advocate’s Duty to Justice:
(1981) Where Does it Belong?
Law Quarterly Review Vol 97
Connolly, PR Civility in the Courtroom: The
(1975) Judge’s Obligation
Litigation Vol 1
Duggan, M and Material Non-disclosure on Ex Parte
Gott, I Applications – The Golden Rule: Part I
(1986–87) Litigation Vol 6
Freedman, MH Counselling the Client: Refreshing
(1976) Recollection or Prompting Perjury?
Litigation Vol 2
General Council The Code of Conduct for the Bar of
of the Bar England and Wales
(1990) (as amended)
Conduct 43

Grainger, I and An Introduction to the New Civil

Fealy, M Procedure Rules
(1999) Cavendish Publishing
Grossman, BA Testing Witness Reliability
(1962) Criminal Law Quarterly Vol 5
Inns of Court Advocacy, Negotiation and
School of Law Conference skills
(1992) Blackstone
Napley, D The Techniques of Persuasion
(1991) Chapter 2
Sweet & Maxwell
Silverman, F Handbook of Professional Conduct
(1992) for Solicitors
Butterworths
Steingrass, S A Judge’s 10 Tips on Courtroom
(1985) Success
American Bar Association Journal Vol 71
The Law Society The Guide to the Professional Conduct
Taylor, N (ed) of Solicitors (7th edn, updated by
(1996) Professional Standards Bulletins 17 and
18; 8th edn, 1999)
The Law Society
The Law Society Client Care: A Guide for Solicitors
(1997) Patrice Stevens
Thomas, AP The Solicitor and the Witness
(1986–87) Litigation 271
CHAPTER
45

3 Planning

Diligence, I say, which, as it avails in all affairs, is also of the

utmost importance in pleading causes. Diligence is to be
particularly cultivated by us; it is to be constantly exerted; it is
capable of affecting almost everything …
Cicero, De Oratore

3.1 The client

In any litigation you may handle, the client is a valuable resource.
They will usually have at their fingertips most of the factual
information necessary for the preparation of their case. For this
reason, interviewing techniques which increase the amount of
detail given are recommended.
The type of questions asked are important. The main
distinctions are between open (or open ended), probing and
closed questions. Open questions permit the client to talk at
length; for example: ‘Can you tell me about your background?’
Probing questions supplement open questions and encourage
elaboration of the account; for example: ‘Can you tell me more
about that?’ Closed questions require a very short answer; for
example: ‘Where were you born?’
Open questions supplemented by probing questions are a
good foundation. They get the information and encourage the
client to tell their own story. Probing questions encourage the
client to see that detail is important; they keep up the flow of
information. They may supplement open questions, as above, or,
by using the sensory checklist, can stimulate recollection of the
small, apparently insignificant details of key incidents. Closed
questions can be used to clarify detail or to recap on parts of the
story. You might say, for example: ‘So, if I can summarise what
you have told me, you were not at The Purple Parrot when the
46 Advocacy

crime was committed, but you were at The Goose and Turkey
which is five streets away, is that right?’ (See, also, Interviewing
and Counselling by Jenny Chapman, in this series.)
The client’s value as a source of information may go beyond
their knowledge of factual matters. In many civil cases, expert
opinion may be crucial. The commercial client may have come
across well respected professionals in their own sphere of
business, for example, accountants, engineers or surveyors, who
may be prepared to give evidence; the personal injury victim will
have views on the consultants he has seen, including whether or
not they might make good expert witnesses; another client may
have contacts with campaigning organisations who know of
suitable experts.
At the end of the investigation phase, the client expects clear
advice about the prospects of success. It has long been
recognised that the ‘facts’ which determine the outcome of cases
are not necessarily ‘historically accurate’. Jerome Frank, writing in
1949, answered his own question ‘is the finding of fact in a case
what actually happened?’ thus:
Most emphatically not. At best, it is only what the trial court, the
trial judge or jury, thinks happened. What the trial court thinks
happened may, however, be hopelessly incorrect. But that does
not matter – legally speaking. For court purposes, what the court
thinks about the facts is all that matters.
Frank (1949)

Because cases depend on findings of fact, the advocate should

always be cautious in predicting the outcome of a trial; there is no
such thing as a certain outcome. It follows that it is the rare case
which will come to trial. In some areas of litigation, personal injury
for example, most specialist practitioners bring less than 5% of
their cases to trial. One of the prime rules of litigation is to
proceed expeditiously, but to be aware of opportunities for
settlement at the same time.
Planning 47

3.2 Planning contexts

If you handle a case from the first interview, you will be familiar
with the issues and materials. On other occasions, you may be
expected to speak on behalf of a client you have not met. In these
circumstances, you may well be handed a bundle of documents
generated by someone else.
In either case, your preparation for advocacy should include a
thorough review of the case papers. The sequence in which you
go through the preparatory steps may vary depending on the
circumstances and the context. Generally, however, your first step
in preparing for advocacy, whether in the civil or the criminal
courts, will be to ask: ‘What are the contentious issues in this
case?’

3.2.1 Civil cases

Disputed facts should be evident from the pleadings in civil cases.
The system of pleading is designed explicitly to isolate the
matters in issue for the benefit of the parties and the court.
However, it is a feature of the common law that a defendant can
rely on alternative defences. Thus:
Irving Younger says that, at common law, you are allowed to
reply to the plaintiff who claims his cabbages were eaten by your
goat:

You did not have any cabbages.

If you did, they were not eaten.
If they were eaten, it was not by a goat.
If they were eaten by a goat, it was not my goat.
And if it was my goat, he was insane.
McElhaney (1979)

If the pleadings fail to reveal the bone of contention, it may

become clear in a number of other ways. It may be necessary to
serve formal documents seeking clarification, or a Request for
Further and Better Particulars of a pleading or interrogatories. In
48 Advocacy

other cases, less formal means may help to identify issues. The
exchange of correspondence or the process of negotiation may
also elicit the relevant issues (see, also, Negotiation by Diana
Tribe, in this series).
It is always advisable to gain as much knowledge as possible
about the other side’s case. The process of stating a case is
designed to ensure that facts relied upon are set out and to
enable the court to make decisions about the management of the
case. The new procedures are intended to simplify the
identification of the core of the dispute, so that it is less technical
and is understandable by the parties. The statement of facts must
now be verified as true by the client or her representative
(Grainger and Fealy (1999), Chapter 9). It is already the case that
expert reports are exchanged before trial. The advocate must be
prepared to deal with all those matters which appear to be in
dispute when the case is tried.

3.2.2 Criminal cases

In criminal cases, the issues are usually issues of fact. The
prosecutor has to prove the commission of the offence and that
the accused committed it. The defence can choose which limb of
the prosecutor’s burden to challenge; this is what Marcus Stone
calls the ‘rule of alternative defence’. Typically, the selection of
one issue by the defence excludes the possibility of running the
other. This follows because, if the defendant says he was not
there, he cannot deny that a crime was committed. A defendant
who denies that a crime was committed places himself in the
position that he cannot deny his presence. Usually, it is only the
defence advocate who will know which of these ‘alternatives’ will
constitute the defence.
The prosecution may discover details of the defence, either
informally or through the committal proceedings. In some cases,
the precise nature of the defence will only become clear as the
Planning 49

defence evidence is presented during the trial itself. However, it is

often possible to anticipate the likely issues at trial from the kind
of offence charged. Stone suggests that there are three distinct
types of crime:
(a) crimes which produce specific results (for example, murder);
(b) crimes which are based on conduct rather than a result (for
example, assault); and
(c) crimes which arise because of the accused’s relationship to
forbidden objects (for example, possession of drugs).
In the vast majority of cases, the critical issues for the defence will
be similar. So, for result crimes, the potential issues may range
from identification to intention. The prosecution is not necessarily
hindered by not knowing precise details of the defence because
the range of possible defences is limited. The prosecutor will wish
to paint a full picture of the circumstances and to prove each
element of the offence charged in any case. The defence is
entitled to argue, at the end of the prosecution case, that the
prosecutor has failed to do this and that the case should be
dismissed. However, anticipating the common patterns of defence
enables the prosecutor to plan and structure the case (see Stone
(1997)).

3.3 Planning to use witness evidence

Witness evidence is divided into evidence of fact and opinion
evidence. ‘Fact’ witnesses are not supposed to express opinions.
Opinions can be expressed by suitably qualified experts. Experts
are frequently asked to examine the scene of an accident or
physical evidence. They will write a report which sets out the
factual background and the opinion they have formed on the basis
of the evidence to hand. In magistrates’ courts, expert opinion is
often given in statements which are accepted by both sides. In
civil cases and in the Crown Court, expert evidence is often
challenged and experts are, therefore, required to justify their
opinion in court. The new Civil Procedure Rules give the court
50 Advocacy

greater control over decisions about the use of expert evidence.

The use of written reports alone is likely to increase substantially.
Moreover, expert witnesses may become less partisan. The rules
make it clear that their primary duty is to help the court in matters
relevant to their expertise; this duty overrides any obligation to the
party instructing them (Grainger and Fealy (1999), Chapter 18).

3.3.1 Witnesses of fact

Most court cases involve factual disputes. Cautious lawyers treat
their client’s version of the facts with some suspicion. The client
may not wish to reveal elements of their story which may affect
the lawyer’s view of them or their case. In these instances, the
client seems to believe that their task is to convince their own
lawyer of the merits of their case rather than the court. It is
important, therefore, to make an accurate record of the basis on
which advice is given.
It is also a sensible precaution to write to the client setting out
the foundation on which litigation is to be commenced. Given that
evidence of fact is usually presented in the form of witness
statements, and that this forms the evidence-in-chief, it is
particularly important to ensure that the accuracy of any material
gathered from witnesses is verified before it appears in a witness
statement. It should also be complete. Granting the opportunity to
raise matter that could have been included in a witness statement
is within the discretion of the court (Grainger and Fealy (1999),
Chapter 17).
A classic area involving fact witnesses in criminal cases is
identification. That identification witnesses are fallible is easily
demonstrable. It is a well known trick during the first year of law
school to stage an incident in which a stranger enters a lecture
theatre and argues publicly with the lecturer. The stranger leaves
and the class is asked to make notes on the stranger’s
appearance. They disagree, sometimes fundamentally, and the
point is made; identification by witnesses is frequently unreliable.
In 1976, Peter Hain, well known at the time for a high profile
campaign against sporting and financial links with South Africa,
Planning 51

was charged with robbery from a bank. He had gone shopping for
a typewriter ribbon and was identified by three boys as a robber
whom, moments before, they had chased with a bank official.
Hain’s vehicle number was given to the police by the boys and he
was arrested. He was identified in a parade by the teller from
whom the money was snatched. The bank official who chased
him failed to identify him. Hain’s book, Mistaken Identity, is a good
‘insider’s view’ of the system at work. Since that time, guidelines
have been laid down for the acceptance of uncorroborated and
challenged identification evidence. (See Turnbull [1977] QB 224
and the Codes of Practice in the Police and Criminal Evidence Act
1984 which cover the conduct of identification parades.)
The first question for the advocate in an identification case is,
therefore: ‘is this witness likely to tell the truth as they see it?’ If
they have no reason to lie and their evidence is adverse, the
advocate must consider the possibility of challenging the
witness’s memory of the incident. A plan for cross-examination of
identification witnesses might include the following matters:
(a) the time elapsed since the incident and the implications for
memory;
(b) any physical disability (poor eyesight, for example);
(c) the duration of the incident;
(d) the general conditions under which the events were observed
(ambient light, distance from the viewer, etc);
(e) the specific conditions affecting that witness (the view that the
witness had on the event, for example);
(f) the amount of activity in the area in general (was this an
offence where the witness’s attention would be drawn to the
defendant?);
(g) any immediate personal threat to the witness which may have
interfered with their perception;
(h) dramatic events which may have drawn the witness’s attention
away from minor details;
52 Advocacy

(i) the possibility of confusion with previous or subsequent

events;
(j) the circumstances under which identification took place;
(k) the possibility of pressure on the witness;
(l) the suggestibility of the witness (for example, an indication to
an identification witness viewing a line-up that ‘Mr X is the
one’).

Exercise 1
If you were acting as the defence advocate in Hain’s case, what
would be your general strategy? Which areas might be profitably
pursued in cross-examining:
• the boys who gave chase; and
• the bank teller?
Devise two key questions for each line of enquiry. What difference
would it make if the three boys had been overheard discussing
‘the chase’ outside the courtroom ‘as if they were trying to agree
about what they had seen’?
(You will find a small section from both these cross-
examinations in Chapter 10.)

3.3.2 Opinion evidence

Expert evidence is used in a large number of cases, and its
possible relevance to any case should always be considered. The
function of experts, as defined by the old civil rules, remains
relevant:
… inter alia, to explain words or terms of science or art appearing
on the documents which have to be construed by the court, to
give expert assistance to the court (for example, as to the laws of
science or the working of a technical process or system) or to
inform the court as to the state of public knowledge with regard to
the matters before it …
Rules of the Supreme Court Ord 38 r 4.2
Planning 53

Even if you are acting for a client whose washing machine has
broken down, there may be issues which can only be determined
by an expert. Was the machine abused? Was it faulty? How long
could it be expected to last without repair? In many cases, the
opinions of experts for either side will diverge in one or more
crucial respects. All other evidence being equal, one or other
expert’s opinion may decide the case. While it is not always the
case, the more elevated the expert, the more credibility they will
have, at least at the start of the case.
In preparing your own case, you will often need to work
closely with your expert. When instructing an expert, you should
provide copies of all original documents and details of where
physical evidence can be inspected. Remember that the expert is
coming fresh to the case and will, therefore, appreciate a letter
from you which explains the issues. The expert’s opinion will be
based on the evidence you provide and the issues you ask them
to address. If your expert has to admit in cross-examination that
they did not see an important document, or a particular piece of
equipment, the evidence given will be undermined.
Depending on the type of case, it may be that you will need to
cross-examine an expert instructed by the other side. You need to
understand enough about the expert’s specialism to make cross
examination possible. Your expert is the key to unlocking this
knowledge. By discussing the other expert’s report in conference,
your expert can point out unjustified assumptions, technical errors
and illogical deductions. It may be necessary for you to read
around the subject; your expert will be able to suggest
introductory texts which will save you time and effort. Ask your
own expert whether they are aware of anything written by the
other side’s expert on the topic in issue. You may find an
occasion when they have expressed views which contradict the
views they have expressed in your case. Do not be embarrassed
to put yourself in your expert’s hands; you are a lawyer, not a
washing machine repairer. If you begin to specialise in a particular
area, you should consider supplementing your law library with
books in the relevant discipline. You will soon save time and effort
by understanding and anticipating the expert’s needs.
54 Advocacy

Anticipate that each side will adopt a different focus in

presenting their expert evidence. In a personal injury claim, for
example, the claimant’s advocate will use medical evidence to
emphasise:
(a) the nature and effect of the injuries;
(b) any causal connection with the accident;
(c) the duration of the injuries;
(d) any expenses incurred and likely to be incurred; and
(e) any impairment of earning capacity.
In contrast, the defendant’s advocate’s focus when presenting the
medical evidence will be:
(a) the lack of causal link between the accident and the
symptoms;
(b) invalid assumptions made by the claimant’s expert;
(c) exaggeration of symptoms;
(d) the lack of support for the claimant’s claims of incapacity; and
(e) the capacity of the claimant to continue his previous
employment or to find another (equally) well paid job.
Anticipating the different emphasis of each expert will suggest the
matters to investigate and discuss with your own expert.

3.4 Developing a hypothesis

When preparing a case, you need to be thorough and make
efficient use of your time. If you are familiar with the facts because
you have been involved with the case from the start, the task is
easier. However, it is still necessary to review the file thoroughly,
even when you are familiar with the issues.
Sometimes, however, you may be put in a more difficult
position because you receive a bundle of papers just prior to a
court appearance.
Planning 55

There are many ways of reviewing materials. I recommend the

following:
(a) skim read the documents for familiarisation;
(b) make a mind map or some other diagram of the main issues;
(c) number the pages of your bundle;
(d) go through the papers again and make a chronological list of
important events, noting in each case the number of the
document containing the relevant material.
Remember that when a case goes to court there may be
different bundles of documents. There may be those that the
parties have agreed which need not be proved by witnesses;
there may also be separate bundles of both sides’ documents
which have not been agreed by the other side. If you do not
have responsibility for preparing any of these bundles, you
should check the numbering of each bundle with the other
side. This will enable the judge, witnesses and advocates to
conveniently find the documents in each bundle as you refer
to them;
(e) create a working hypothesis.
Your working hypothesis should be based on the available
facts. It should take account of those facts that are in dispute.
The framework is provided by the facts agreed by the parties
or by their experts and the facts that are corroborated by
agreed documents or physical evidence. A lawyer is generally
concerned with ‘material’ facts, that is, those facts which must
be proved to establish a cause of action or to obtain a
conviction. However, facts which may not appear to be
material may throw light on other evidence. It is sensible not to
reject facts as irrelevant too early in your preparation. Nor is it
sensible to become wed to any one hypothesis at an early
stage. As you collect evidence, you may find yourself
prematurely rejecting evidence which conflicts with your
hypothesis. Try to remain open minded for as long as
possible. If more than one hypothesis is consistent with the
56 Advocacy

facts you have, suspend judgement until you know more. It

may only be at quite a late stage in a civil case that you are
able to see the whole picture. In most cases, you will be able
to compare the other side’s expert reports and witness
statements with your own.
You will be able to access a range of information on factual
disputes which was not available to previous generations of
lawyers. Use it well. In planning for advocacy, do not be blinded to
the risks of going to court and to the arguments for a negotiated
settlement. Remember to warn the client of the risks, make sure
that the client understands your advice, and obtain clear
instructions. The obligation to disclose fact evidence was intended
to lead to an even larger number of informed and wise
settlements, and you need to be constantly aware of this
possibility.
When considering your hypothesis, ask yourself these
questions:
(a) is this hypothesis consistent with the facts as known to me?
(b) is this hypothesis likely to be credible to a disinterested
observer?
(c) is there any evidence inconsistent with this account?
(d) can the hypothesis be amended or changed to accommodate
contradictory evidence, or must the evidence be challenged?
(e) what else do I need to know to prove or disprove this
hypothesis?
(f) if this hypothesis is correct, what is the likely legal outcome?
You may find it useful to represent the case in a logical
diagrammatic form at this stage. The following diagram is adapted
from student materials used by the Law Society of Upper Canada.
Level 1 (1) CONTRACT LAW
Source of clients’ (1) SALE OF GOODS ACT 1979 (as amended)
legal right
Planning

Level 2 ACTION FOR DAMAGES FOR

Cause of action BREACH OF CONTRACT

Level 3 CONTRACT BREACH BY D COMPLIANCE BY A DAMAGES

Ingredients P (A) Purchase price
must prove
(B) Profit A
(C) Profit C

Level 4 STANDARD FORM (1) Sale of Goods Act, s 14 – (1) Delivery accepted A = recoverable on proof of
Propositions AGREEMENT ON Merchantable quality’ (date) Defect existing breach
of fact D’s TERMS (date) ‘Sale in course of business’ at time of delivery B = loss ‘natural and
EXCLUSION ‘Examination did not reveal (2) Payment made probable consequence’
defects, nor should it have DATE: of breach
done’ METHOD: C = loss a foreseeable
(2) Sale of Goods Act, s 15 – consequence because D
‘Sale by sample’ aware of P’s purpose

Level 5 Oral evidence Inspection Oral Oral evidence

Evidence of P’s inspector report evidence A➔B

Written forms Acceptance Inspection Correspondence

57

Correspondence note report

Correspondence
58 Advocacy

3.4.1 Legal and technical disputes

If it appears that the material facts are not in dispute, the
advocate should consider whether it is a point of law that is in
issue. It may be that the defence does not consider that the facts
pleaded, even if proven, reveal a cause of action. It may be that
the defence believes that the courts are ready to extend or
change the law. Once you have anticipated the legal issues:
• consider how well precedent applies to the case in hand;
• anticipate the other side’s argument (and the best means of
rebutting it); and
• consider how your client’s own argument can best be put.
Subject to the way in which the new rules develop in relation to
stating a case, legal points can often be argued in the alternative
(whether cause of action or remedy). However, it is important to
consider whether an argument in the alternative can be advanced
without undermining credibility.
It is possible that the other side has no substantive argument
on either fact or law. They may be following their client’s
instructions to dispute the matter and merely hoping that you will
make a technical error in your preparation. It is always important
to check the papers and rules of procedure before the hearing to
see if errors have been made. It may be that the court has power
to rectify the error at a hearing. On the other hand, an amendment
may constitute a new cause of action or involve new parties; in
such cases, the power of the court to allow amendment may be
limited. Where amendment raises new issues, the hearing may be
adjourned and the costs of the amendment thrown away. In any
of these cases, it is important to be alert to the possibilities, not
least that the other side is aware of a procedural error which is
becoming more serious by the day.
If you identify a possible technical error, research the relevant
rules of procedure to see whether the situation is covered. Ask
yourself these questions:
 Planning 59

(a) if the court can rectify the error, what matters will be taken into
consideration?
(b) are there any cases reported which had similar facts and, if so,
what were the determining factors in those cases?
(c) should the court be asked to rectify the error, or do I need to
vacate or adjourn the hearing and take remedial steps?

3.4.2 Ulterior motives

Some reasons for cases going to court may have little to do with
the merits of the case as such. The defamed or the ‘wronged
spouse’ may want their day in court. Institutional defendants, such
as insurance companies, may rely on some claimants not
pursuing a case to trial. Some solicitors pride themselves on
running cases to the door of the court in the hope of securing a
better negotiated settlement. Debtors may want to procrastinate
to allow their business’s cash flow to improve. You may be able to
guess what lies behind a desire to proceed with a poor case and
deal with it in advance. I once had a case where the insurers
revealed that the plaintiff, for whom I was acting, had fraudulently
claimed car hire expenses. They thought that doubts created
about the plaintiff’s credibility would undermine claims about his
continuing medical problems. My litigation partner wisely wrote an
open letter withdrawing the expenses claim. The potential
damage was limited, and the plaintiff still managed to recover
more than the sum paid into court by the defence.
The client may be able to help you to identify ulterior motives.
If you suspect the other side of pursuing litigation for the wrong
reasons, this information can be put to use in several ways. The
debtor who is delaying payment may concede the action if
ordered to pay the disputed sum into court. This may condition
your approach in an application for summary judgment where
there appears to be an arguable defence. The claimant who
wants his day in court may be receptive to arguments,
assurances and solutions which are better generated through
negotiation. The institutional defendant may be more prepared to
compromise if convinced of the claimant’s determination to
60 Advocacy

proceed with the action. Also, if any witness stands to gain from
proceedings, it is important to bring this out in direct evidence.
Finally, it may be appropriate to use insight into a party’s
motive in the conduct of a hearing. Courts and tribunals are often
affected by ‘the merits’ of a case, that is, the social or moral
weight of the argument, as opposed to the weight of legal
argument.
… the facts set up an emotional or cardiac reaction in the judicial
mind and heart. The judge’s reaction is either ‘the plaintiff ought
to win, let me see if the law permits such a result’, or ‘the
defendant ought to win if the law will allow it’. The law being what
it is – living and fluid – you generally find what you are looking for.
Rifkind (1984)

3.5 A theory of the case

Having looked at your working hypothesis from every angle and
discovered as much as you can about the other side’s case, you
are ready to formulate your theory of the case:
The theory of the case is the basic, underlying idea that explains
not only the legal theory and factual background, but also fits as
much of the evidence as possible into a coherent and credible
whole.
McElhaney (1979)

Let us briefly return to the Hain case to illustrate this idea. The
defence theory of the case could be stated as follows:
Peter Hain was incorrectly identified by four witnesses as having
committed a robbery. There is no other evidence against him and
there are witnesses who had a better view of the robber who say
that Hain was not the man. Three of the adverse witnesses are
boys who chased the robber. Their identification is suspect
because the robber was running away and they did not have a
clear opportunity to see him for any length of time. They
Planning 61

incorrectly identified Hain in the bookshop because he bears a

passing resemblance to the robber. Their description of the
robber is based on their subsequent sighting of Hain. They
support each other in their error; their recollection may have been
shaped by questioning and they may have been suggestible. The
bank teller was under personal threat at the time of the robbery
and this interfered with her perception. She picked out Hain in an
identification parade because she had seen Hain on the
television and knew that he had been arrested in connection with
the offence.
To some extent, the advocate must predict what will be proved in
evidence. Because of the possibility of different findings of fact,
you may need to develop more than one theory of the case.
Obviously, credibility is damaged if these competing theories of
the case are not consistent with each other. The problem for you,
the advocate, in presenting more than one theory of the case is to
remain convincing while presenting a message to which you are
not committed.
Any theory of the case must be able to withstand rigorous
testing. Preparation should include an analysis of the other side’s
strengths. You can even try to anticipate or discover their theory
of the case. This will help to reduce the risk of surprise at trial and
alert you to possible weak spots in the case you have to answer.
When you have developed your working hypothesis into a
theory of the case, you will need to think about:
(a) reinforcing your own weak points;
(b) making best use of your strengths;
(c) deciding whether you need to attack the other side’s strengths
and, if you must, the best way to do it; and
(d) how to make the best use of the other side’s weaknesses.
As you expand your theory of the case, you will want to test it. In
doing so, you will wish to uncover what Binder and Bergman
62 Advocacy

(1984) call ‘additional events’ which help to fill out a chronology.

These provide context and are a crucial stage in the development
of both theory and narrative:
An ‘event’ inquiry typically concerns an occurrence at a discrete
moment in time; a topic inquiry typically calls attention to certain
subject matter and searches for moments in time when that
subject matter occurred. In a sense, a topical enquiry divorces an
event from the moment of its occurrence. For instance, topical
questions might be ‘did you ever talk to the manager about
sparks coming from the sink?’ or ‘did your company suffer any
losses as a result of your suppliers’ failure to send the
explosives?’. If a witness answers either question affirmatively,
one may expand the story by uncovering the specific event or
events giving rise to the response. For example, if the witness
responds that losses did occur, one may then ask the witness to
identify specific incidents of loss.
Binder and Bergman (1984)

Since particular topics or events will not appear to be significant

when you start your investigation, further attendances on
witnesses may be necessary to elaborate proofs of evidence in
this way. Obviously, your strategy will generally be to play to your
strengths, to weaken the other side’s strengths and expose their
weaknesses; you can anticipate, for example, that you are
unlikely to cross-examine an excellent witness for the other side
unless you have the material to either destroy, or at least
neutralise, their evidence.

3.6 Organising materials

Materials need to be organised in the way in which you will
present your case to the court. Having identified the best order,
you should follow that sequence as far as possible in your
opening speech, your presentation of witnesses and, again, in
your closing speech. In this way, you will gain the benefit of
reinforcement.
Planning 63

Glickman identifies four different possibilities for presenting

facts:
(a) chronological order; that is, the order in which events
occurred;
(b) topical order; that is, the order dictated by some outside
requirement, for example, establishing duty, breach and
damage in a tort suit;
(c) logical order; that is, is there a problem? What is the nature
of the problem? What is the cause of the problem?;
(d) An order building to an ‘inevitable conclusion’ – so that, if
the facts are accepted, there is only one possible outcome.
Glickman (1982)

There are several advantages to this last format because it

incorporates both sides of the story, both good and bad points,
works from common ground and gradually fits in the pieces of the
story. The audience is filling the pieces in, as you proceed,
wanting to see you complete the puzzle.

3.7 Keeping materials

It is dangerous to have badly organised materials. You may not
be able to find what you want when you need it. You will go down
in the estimation of the court and the client as you hunt through
your materials for the document you need. If you continually lose
your thread, you will feel less and less confident and, as a result,
you will be less able to do a competent job.
One way of organising materials is to keep a ‘trial notebook’.
The most convenient form is a ring binder containing:
(a) a table of contents (but marked by colour sections rather than
numerically; you need to be able to take things out without
upsetting your order);
(b) the case analysis including:
• your theory of the case;
64 Advocacy

• an analysis of the other side’s case and probable theory of

the case;
• a proof checklist containing three columns, as follows:
Elements to be Supporting Source of evidence
proved evidence
The third column should include a page number of any agreed
bundle of documents;
(c) documents and exhibits;
(d) research notes – argument on particularly difficult points; and
(e) closing speech.
McElhaney (1980)

3.8 Finally – narrative or story-telling

Binder and Bergman (1984) suggest that the decisive factor in
most cases is the plausibility of the story outline presented by
each side, not the detailed evidence given by witnesses.
Moreover:
… for a story to appear credible, not only must the crucial events
be related to one another in a coherent manner, but also the
telling of those events must be accompanied by some contextual
detail, which is itself irrelevant to the base story-line, but
nevertheless places it in a context recognisable to the audience
... they stress that not too much detail should be provided; the
base story line must not be submerged …
Jackson (1988)

The final stage of preparation is to turn the theory of the case into
a story; to build it up again from the bare legal bones to a fully
dressed narrative. If you have approached the initial client
interview with the need to ‘dress’ your case, you will have rich
resources of imagery to plunder. If not, it is never too late to go
Planning 65

over your theory of the case with the client, clarifying the detail
and refreshing your memory. This is not just window dressing; it is
important for all the material details of the location, the actors and
the events to be visualised by all participants in the proceedings.
The advocate’s first objective must be for her theory of the case to
be fully understood by the judge or jury.
When examining your own witnesses, thought must be given
to the potential impact of the ‘narrative mode’ which is made
possible by open rather than closed questions. When cross-
examining, a strong mental picture of the facts is essential. It
enables you to respond quickly to the witness’s answers and not
be tied to set questions. The area of cross-examination should be
identified in advance, issue by issue. If you find it helpful, an
opening question in relation to each issue can be written out.
Better still, the key question to which you are building can be
included under each heading.

Exercise 2
In the next three chapters, I shall be using extracts from the trial
of Alfred Arthur Rouse. The basic facts are as follows:
Rouse was accused of murdering an unknown man at
around 2 am on 6 November 1930 outside the little village
of Hardingstone near Northampton. Rouse was a
commercial traveller who claimed that he was travelling
from London to the Midlands in order to draw some money
from his employers’ offices there. His story was that,
before leaving London, he was hailed by a respectable
looking man who asked for a lift to the Midlands. Rouse
agreed to give him a lift. During the journey, a police
constable drew Rouse’s attention to a defective light on his
car. Just outside Hardingstone, a village near
Northampton, the engine began to spit. Rouse said ‘I
thought I was running out of petrol’. Rouse got out of the
car in order to ‘relieve himself’, and, showing his
66 Advocacy

companion a petrol can, suggested that he top up the tank.

The man asked for a cigarette. Rouse, pointing out that the
man had smoked his last one, offered him a cigar. The
man told Rouse that he did not need a light. Rouse went
some distance down the road and was about to return to
the car when there was a terrible explosion.
He panicked, running up Hardingstone Lane towards the
village. Two young men, Bailey and Brown, were walking
home from a dance. As they turned into Hardingstone
Lane, a car ran along the main road linking Northampton
and London. Almost simultaneously, they saw a man and
the blaze in the distance. The man passed them going
towards the village of Hardingstone and the main road.
Bailey asked Brown what he thought the blaze was and, as
if in answer, the stranger said ‘it looks as if someone is
having a bonfire up there’. They observed the stranger
stop at the end of the lane seeming confused about which
direction to take.
Rouse hitched a lift back to London, not mentioning the
events in Hardingstone to anyone. He visited his wife
briefly and then caught a coach to Wales to visit a young
woman whom he had made pregnant and promised to
marry. While he was there, he saw a newspaper with the
account of the ‘blazing car’. After two days, he returned to
London and was arrested on his arrival. He told police:
I had just got my trousers up quickly and ran towards the
car which was in flames. I saw the man was inside and I
tried to open the door, but could not as the car was a mass
of flames … I felt I was responsible for what happened. I
lost my head and did not know what to do and really don’t
know what I have done since.
The corpse of the unknown man was found in the front
seat of the car. His identity was not discovered. Rouse
Planning 67

claimed not to have asked his name. Photographs of the

corpse were taken only after some delay, and the body’s
exact position immediately after the fire was surmised from
sometimes conflicting accounts of police officers. It was
accepted, however, that the head was face down in the
driver’s seat with the trunk across the passenger seat. It
was probable that one leg had hung outside the passenger
door. The car was faced in the direction of the village. The
fire had been particularly severe and had apparently been
sustained by a steady flow of petrol. Examination of the
burnt out wreck revealed that the petrol can was in the rear
seat of the car, the carburettor lid was not in place (which
would cause the carburettor to fill with petrol and overflow)
and the nut on the petrol union joint was loose.
(a) Make a mind map of the issues as they appear to you from
this very brief summary.
(b) What do you think should be the prosecution theory of the
case? What are the elements of that case and what is the
evidence which might support them?

3.9 Summary
When preparing for advocacy, you must identify:
• what facts are in dispute;
• what law is relevant;
• what evidence supports your client’s version of events;
• what evidence is missing and how it can be obtained;
• what you need to establish at the hearing;
• what your working hypothesis for the case is (later to become
your ‘theory of the case’);
68 Advocacy

• whether there any procedural errors or drafting errors in the

documents which should be drawn to the attention of the
court, the impact of any such errors and the court’s power to
remedy the defect;
• your theory (or theories) of the case and the best way of
presenting it (or them);
• whether the documentation is complete and conveniently
organised for the purpose.
Planning 69

3.10 End of chapter references and additional reading

Bastress, RM and Interviewing, Counselling and Negotiating
Harbaugh, JD Skills for Effective Presentation
(1990) Parts 1–3
Little, Brown
Bettle, J and Personal Injury Claims in the County Court
Hamey, JA Tolley
(1994)
Binder, D and Fact Investigation: From Hypothesis
Bergman, P to Proof
(1984) West

Bowers, J Presenting a case in the Industrial

(1987–88) Tribunal: A Practical Approach
Litigation Vol 7 No 2
Frank, J Courts on Trial: Myth and Reality in
(1973) American Justice
Chapter 3
Princeton UP
Glickman, J Persuasion in Litigation
(1982) Litigation Vol 8 No 3
Jackson, BS Law, Narrative and Fact Coherence
(1988) Deborah Charles
McElhaney, JW The Theory of the Case
(1979) Litigation Vol 6 No 1
McElhaney, JW The Trial Note Book
(1980) Litigation Vol 1 No 1
Morrison, J and The Barrister’s World and the Nature of Law
Leith, P Chapter 5
(1992) OU Press
70 Advocacy

Napley, D The Techniques of Persuasion

(1991) Chapter 1
Sweet & Maxwell
O’Hare, J and Civil Litigation
Hill, RN 8th edn
(1997) FT Law & Tax
Rifkind, SH How to Try a Non-Jury Trial
(1984) Litigation Vol 10 No 3
Stone, M Cross-Examination in Criminal Trials
(1997) Chapter 2
Butterworths (USA)
Zuckermann, AAS The Principles of Criminal Evidence
(1989) Chapters 2–3
Clarendon
CHAPTER
71

4 Opening

… a cause requires that the expectations of the audience should

be met with all possible expedition; and, if nothing to satisfy them
is offered at the commencement, much more labour is necessary
in the following parts.
Cicero, De Oratore

4.1 Introductions
An opening speech will introduce the issues in the order
determined by the advocate. In general, an opening should
introduce the facts in the order in which they will emerge in the
evidence. Subject to the new rules on case management,
advocates have discretion in the selection and order of
presentation of witnesses. The new Civil Procedure Rules, for
example, r 32.1(c), allow the court to determine ‘the way in which
the evidence is placed before the court’. The obvious order is
chronological. The aim is that the judge or jury should be given
the best opportunity to understand your case; the repetition of
your chosen sequence, in opening and through the order in which
witnesses are called, will help them to do this. In addition, the
sequence should be logical. Departing from the logical sequence
should only occur where this is necessary, for example, in order
to start or end with your strongest witness.
Lawyers need to make different kinds of speeches for different
purposes and for different audiences. A speech introducing a
case to a jury will be of a different character from a speech
introducing a case to a master or judge. If the speech is by way of
introduction to an application, the lawyer will be guided by the
master or judge who is hearing the application.
In all cases, you should introduce yourself and the other
advocate, if any. At many courts, you will hand a slip with your
name on it to the usher. If you do you this, you need not give your
72 Advocacy

name in your introduction. It is still common for advocates to

commence by saying:
If it pleases Your (Lordship), I appear for the claimant in this
case. Mr Bumptious appears for the defence.
There are several ways you can then proceed. On applications or
summonses, your speech could then be broken by a polite
enquiry as to how the judge would like you to proceed, such as:
‘Would Your Honour like me to read the claimant’s affidavit?’
However, reading out an affidavit can be a tedious process and, if
the affidavit has been filed in advance, it has probably been read.
A more satisfactory approach is to outline, in your own words, the
purpose of the application and the issues, propose a course of
action, and then pause for guidance from the judge.
In other cases, opening speeches in a trial, for example, the
speech will be longer and uninterrupted. In it, the lawyer will be
expected to set out her case to the court. In either case, brevity
and conciseness are usually appreciated. Because of the primacy
effect, any opening should have the maximum impact. You, the
advocate, must be at your best: fluent, persuasive and concise.
The opening speech should be practised and refined so that it can
be delivered with verve and purpose.
To be confused in memory, or to lose our fluency of speech, has
nowhere a worse effect than at the commencement. The pilot is
surely one of the worst who runs his vessel aground as it is
leaving the harbour.
Quintillian, Institutes of Oratory

There is a lot to be said for directing the court towards the desired
conclusion. A sense of purpose, a clear indication of aims, can be
highly persuasive:
If I am doing court work, I want to be thoroughly prepared and to
have thought about my goal and how I will convince the court to
give me what I want. I try to be concise and relevant. I start by
saying what I want and why; people know up front what I am after
Opening 73

… Nowadays I see more young barristers around who use this

format, so I assume they are being taught that way. The problem
is that they are slow and long winded; they add far too much
detail. That will be lost with experience.
A solicitor advocate, quoted in Boon (1992)

The goal of the opening speech, whatever the context, will be to

create a positive and persuasive first impression. Inevitably,
however, different considerations apply to making openings in
different courts and contexts.

4.2 Criminal courts

In criminal cases, the prosecution offers its evidence first. Only if
this shows a case to answer will the defence need to offer its own
evidence. Not every court offers the same opportunity to make a
speech introducing the case. In magistrates’ courts, both
prosecution and defence are allowed only one speech. The
prosecution introduces the case, usually with a brief speech, and
the defence usually makes a closing speech. What follows will
concentrate on openings in the Crown Court before a jury. (For
the practice in magistrates’ courts, see Stones Justices’ Manual.)
In the Crown Court, the prosecution will make an opening
speech. The defence is only entitled to make an opening speech
if calling witnesses to fact other than the accused. The defence
opening speech is, therefore, usually made after the prosecution
has called all its evidence. It is almost a convention that a defence
opening speech in the Crown Court is brief; often it is forgone
altogether. In the US, the ‘opening statement’ is rarely waived
because of belief in the critical importance of the ‘primacy effect’
on a jury, that is, that the first thing you say makes the deepest
impression. According to Lindquist:
… opening speeches determine the outcome of trials more than
50% of the time. Indeed, respectable studies indicate it may be
85% of the time. While other parts of the trial confirm it, opening
74 Advocacy

statements give the jury a basic feeling for who is right and why,
who has the better facts, what is the logical result.
Lindquist (1982)

Norman Birkett QC, whose opening speech in the Rouse trial will
be considered shortly, was also conscious of the importance of an
opening speech and of the primacy effect:
The jury, fresh to the court, fresh to the case, hear a presentation,
and they are never, never likely to forget it. Shaken they may be
by cross-examination, by subsequent witnesses, but that first,
clear, incisive impression made upon the jury is beyond all price.
Birkett (1948)

4.3 Style
Making a speech to a jury presents special problems for a lawyer.
Obviously, the use of legal jargon may be alienating; sometimes,
legal concepts may need to be explained because they are
central to the case. However, legal ‘terms of art’ should be
avoided. Aim for a tone which is almost conversational:
Eloquence …, in the sense of careful and precise language, is
crucial. The word choice must be clear, direct and appropriate,
varied, interesting, often very conversational and always direct
and communicative.
Lindquist (1982)

Avoid being seen to ‘talk down’ to the jury; do not feel that you
must ‘impress’:
A mode of delivery in which all art is concealed, and which, as the
Greeks say, is ‘unostentatious’, is the most successful way of
winning over the mind of the listener.
Quintillian, Institutes of Oratory
Opening 75

Mannerisms should be avoided; attention should be focused on

what you are saying, not the way you stroke your nose or pat your
hair.
It is always necessary to convey conviction, and this is
particularly so with juries. The jurors have to care about this trial;
they will not if the advocate cannot. Do not write a prepared
speech: working from an outline or map will enable you to face
the jurors and seek eye contact with as many of them as possible.
Do not concentrate on one to the exclusion of others, although, if
you are able to identify potential leaders, more eye contact with
those individuals may be justified. Demand the jury’s respect; do
not be servile to your opponent or the court; and state the
problems in your case honestly.
Julien (1985)

4.4 Structuring prosecution openings

4.4.1 Introductions
Introduce yourself, the other advocate(s) and the case. Try to be
comfortable with the jury, aim to be helpful to them, for example,
by explaining their role in the proceedings. Predicting what will
happen will give them confidence in you when it does; for
example: ‘There will be technical evidence, and it may appear
dull, but it is crucial to the case.’

4.4.2 Summarise the facts

One aim of the opening speech is to enable the audience to
visualise the events and to place the central issues of fact within
these events. It is important not to obscure the main issues with
inconsequential detail. During the first few minutes of the opening,
a jury is attentive, receptive and curious about the case. If your
theory of the case is powerfully explained at this point, it will stick
in their collective memory. However, the advocate also needs to
76 Advocacy

secure and retain interest by humanising the story. Lawyers in the

United States often use rhetorical questions to stimulate interest
in their client:
Ladies and gentlemen of the jury, you must be asking yourself,
who is my client and what does he want? I represent Roger Fry.
He is a young man. He is what is called a ‘blue collar’ worker. He
works with his hands. He liked working long hours as a
steamfitter. What does he want from this lawsuit? He wants to
justify your decision to give money damages …
Stein (1977)

Narrative can also be used in court to great effect. In the chapter

on planning, one aspect of the power of narrative was explained.
Norman Birkett QC is recognised as one of the leading advocates
of his era. He appeared in many notable trials, both as a
prosecutor and for the defence. In the Rouse case, Birkett was
prosecuting. At the end of the last chapter, the facts of Rouse
were briefly outlined and you were asked to formulate a theory of
the case. Even in this brief extract, Birkett’s theory of the case
begins to unfold. Consider the narrative skill, the atmosphere of
suspicion and menace, which Birkett evokes. Some key words
are italicised in the excerpt below. What is the purpose of these
words in the context of this excerpt?
Two young men walking home from a dance met the accused just
after they had turned into Hardingstone Lane … It was an early
morning, bright and moonlit and as they reached that junction, on
the farther side of the lane from which they stood, they saw a
rather remarkable sight. They saw the prisoner come out from the
direction of a ditch on the side of the road, hatless and carrying
an attaché case. There, from that strange place, at that strange
time, on that lonely road, the accused emerged …
Referring back to Chapter 2, note the use of groups of three, the
signalling of key factors and the weaving of evidence into the
narrative.
Opening 77

4.4.3 State the issues of fact

These are the material facts on which the case turns. It is
increasingly recognised that logical argument alone does not
convince juries. A study of 600 jury trials in the US supports the
idea that juries rarely see a case in the same way a lawyer would.
Lawyers are trained to think cognitively, that is, logically and
abstractly, and to conceptualise and evaluate argument from a
number of different perspectives. People without this training or
background may think affectively, that is, from feelings and set
points of view. Affective thinkers tend to reject information
inconsistent with their opinions. They certainly do not seek it out.
Cognitive thinkers will not reject or be prejudiced against an
affective argument while affective thinkers need an argument
which appeals to their emotions. They will not appreciate, and
may not forgive, a cognitive argument. This analysis supports the
use of ‘psychological anchors’ in jury trials. Psychological anchors
are issues of fact which are so significant that the members of the
jury will always remember them. Affective thinkers on the jury will
use them to organise subsequent details and to make sense of
the conflicting evidence they hear. Cognitive thinkers may also
use psychological anchors where the issues and evidence are
complex.
A case which illustrated the effective use of a psychological
anchor concerned an action for damages over a drowning at a
swimming pool. When the deceased was pulled from the pool, it
was noted by several witnesses that her arm was blue from wrist
to shoulder. None of the doctors called to give evidence could
explain it. The plaintiff’s case focused on the adequacy of safety
measures. The defence, however, pre-tried the case with a
shadow jury and found that they were troubled by this aspect of
the case. It was made a major issue in the opening address by
the defendant’s lawyer. The defendants won. The blue arm had
no apparent legal significance, but the jury believed that the blue
arm indicated some unexplained medical trauma. They concluded
that the woman had lost consciousness and drowned.
Vinson (1985)
78 Advocacy

Birkett’s opening speech in the Rouse trial demonstrates an

intuitive understanding of the psychological anchor. Before you reach
the end of the following passage from that speech, you should have a
very clear idea of the single fact which Birkett wanted the jury to
remember above all else:
After they had passed, one of them said: ‘What is the blaze up
there?’ pointing to a glare up the lane, and then, having gone 15
or 20 yards beyond the men, the accused said these very
remarkable words: ‘It looks as if someone is having a bonfire up
there.’ Members of the jury, you will hear what was found up that
lane. You will hear the accused’s part in it and you will bear in
mind at every stage of this case the fact that, right at the outset,
when the accused met those two young men, he passed without
a word. No appeal for help! No call for assistance! Nothing. And
then: ‘It looks as though someone is having a bonfire up there.’
You will hear that what he called a ‘bonfire’ was the burning of his
own car; and that there was the body of that unknown man in that
car being steadily burned beyond all recognition. The significance
of the remark ‘It looks as though someone is having a bonfire up
there’ cannot be over-emphasised in view of the fact that 400
yards away there was that terrible fire. The car had shortly before
been drawn up by the side of the road by the prisoner himself; he
had shut off the engine and put on the brake … and yet, at that
moment, his observation to these two young men was ‘It looks as
if someone is having a bonfire …’.
The use of the phrase ‘It looks as if someone is having a bonfire
up there’ is a clear illustration of repetition for effect. There is no
inspiration failure here! The whole passage is carefully
constructed around a systematic return to that single sentence.
Why? The prosecution’s theory of the case is that Rouse’s
conduct after the conflagration was inconsistent with his
innocence. His words are not those of a man seized by panic.
Notice, also, the direct language and constant grouping of
words and phrases in ‘threes’.

4.4.4 Outline admissible evidence

Prosecutors benefit from the use of direct language. Instead of
saying ‘the witness will say he saw …’ or ‘I was not there, but the
Opening 79

witnesses will tell you …’, say, ‘Mr Green saw …’. If there is an
objection that you are representing evidence as fact, preface what
you say with ‘we will prove that …’. Be careful to ensure that what
you say will be proved; if your evidence fails to fulfil expectations,
a competent defence will expose that failure. You are making a
commitment to the jury and you must fully expect to meet that
commitment. Promise only what you can deliver.
In the next extract from Birkett’s opening speech, he
introduces the expert evidence he will call. There are two devices
in this short passage with which Birkett aims to stimulate interest
in this crucial evidence:
This fire was undoubtedly one of intensity and fierceness. How
did it start? Where did it start? Was there anything in the remains
of the car which will help you to answer that question? There
was. I will call before you a witness, Colonel Buckle, who has
very wide experience of fires in motor cars and fires generally. To
summarise his conclusions, he will say …
(If in doubt, look back at section 1.8)

Presenting strengths
English lawyers are often advised to ‘keep their powder dry’; to
save strong evidence so as to surprise the other side. Lawyers in
the United States are often advised not to do this. Such is the
belief in the effect of the opening speech on a jury that lawyers
are usually advised to present the strongest case possible. You
can never be sure that the jury will appreciate the subtleties of the
evidence. The procedures for disclosing witness statements in
civil cases, and the fact that matters not raised in witness
statements cannot be adduced in evidence, reduces the
possibility of surprise. This increases the argument for the
strongest opening possible.

Confronting weaknesses
If you anticipate that the defence will make much of a weakness
in your case, it is often best to forewarn the jury of the difficulty,
and present it in the best light possible. In the Rouse case, Birkett
80 Advocacy

confronted the problem that the evidence against Rouse was

largely circumstantial. People are convicted on circumstantial
evidence all the time. However, where evidence is circumstantial,
a case is considerably bolstered by proof of motive. Making this
point is the other advocate’s job. Birkett does not dwell on the
difficulty; he does not concede this weakness in his own case or
compromise the impact of what he says. In fact, at one point he
asserts that circumstantial evidence may be better (almost) than
direct evidence. I think the ‘almost’ was a mistake!
The grave offence of wilful murder, by the very nature of the
case, is seldom committed where human eyes might behold,
relate and report … what is called ‘direct evidence’ is sometimes
difficult, and sometimes impossible, to obtain. The evidence
which is brought in this case is what is known as ‘circumstantial
evidence’. But circumstantial evidence might be of such texture,
such strength, such cogency, as to be superior almost to direct
evidence. From the evidence it is proposed to call before you,
from the logic of the circumstances and from the facts here, you
will be led to one conclusion, and to one conclusion only, and that
is that the unknown man in that car, on that road, on that day,
was murdered by the accused …
Note the simple use of parallel phrases (italicised) for emphasis
and the repeated use of words or phrases in groups of three.
Compare Birkett’s introduction to circumstantial evidence with the
analogy an American lawyer, Craig Spangenburg, habitually uses
to explain the concept to juries:
This reminds me of my father reading Robinson Crusoe to me
when I was a little boy. Remember, when Robinson Crusoe was
on the island for such a long time alone? One morning he went
down to the beach and there was a footprint on the sand. He was
so overcome with emotion, he fainted. And why did he faint? Did
he see a man? He woke to find Friday standing beside him, who
was to be his friend on the island, but he did not see Friday. Did
he see a foot? No. He saw a footprint. That is, he saw marks in
the sand, the kind of marks that are made by a human foot. He
saw circumstantial evidence. But it was true, it was valid, it was
compelling, as it would be to all of you. We live with it in our lives.
Opening 81

So let’s look at the facts of this case – for those tracks which
prove the truth …
What are the possible objectives of the advocate in explaining
‘circumstantial evidence’ to the jury? Bearing in mind possible
objectives, which of these two explanations of circumstantial
evidence do you think would be more appropriate? You may wish
to compare these extracts with the example from Exall in section
2.8, and with a textbook definition (see, for example, May (1998)).
The use of analogy is obviously a technique to arouse interest
and to make a new concept accessible. How many other
examples of ‘presentation technique’ can you see in this second
extract?
Birkett produced little or no evidence as to motive in the
Rouse trial. Yet he used the power of suggestion in his opening,
asking the jury to draw an inference from the evidence which
would be presented. Notice how, in the following part of his
opening speech, Birkett uses less direct language.
You might think that there never could be an adequate motive for
murder … You might think that the facts and the circumstances in
this case pointed to the conclusion that, for some reason, the
accused desired the charred remains of that unknown man to be
taken for his, and that when he had emerged out of the hedge at
that hour in the morning and had been seen by two young men,
the plan or design might have miscarried …
Notice the use of the qualifying ‘You might think’ before the
suggested motive. This is very tentative phraseology. Notice,
also, how, shortly before, Birkett had used ‘You might think’ to
preface a proposition with which the jury must, inevitably, agree.
Do you think that was deliberate? If so, to what end?
One final point on confronting weaknesses. If you deal with
problems by forewarning the jury, it is sensible to hide these
points in the middle of the speech. As we have seen, less
attention will be paid to what is said in the middle than to what is
said at the beginning or end.
82 Advocacy

4.4.5 Outline the legal issues

The judge will direct the jury on the law at the conclusion of the
case, and it is as well to remind the jury of that. However, unless
the jury is helped by being given some simple foundation in law,
particular points may bother them throughout the trial. See how
Birkett guides the jury on the significance of motive. What do you
think he means in the italicised section? If his meaning is obscure,
was this deliberate?
One of the questions that might arise in your minds is that of
motive. His Lordship will guide you on the law in that case, and
you will accept the law from him. But I think that the learned judge
will tell you that motive is immaterial from one point of view and
that it is no part of the duty of the prosecution to supply to the jury
a satisfying, adequate or, indeed, any motive.

4.5 Structuring defence openings

At the conclusion of prosecution evidence, the defence can make
an opening speech if witnesses as to fact are to be called. The
defence advocate should indicate that this is the case by saying:
‘Your Honour, I shall be calling other evidence.’ An argument for
not using this opportunity is that you may wish to keep evidence
as a surprise, in order to increase its impact. However, a
persuasive argument against this is that members of a jury may
well miss the significance of evidence unless the defence theory
of the case has been firmly fixed in their minds first.
There is one rule of criminal evidence which provides a
constraint in terms of the sequencing of the issues. This is the
rule that, in criminal cases, the defendant must give evidence
before other defence witnesses. However, since you will usually
start with the defence theory of the case, this should not be a
problem.
May (1998)

There are many different ways in which a defence opening

speech can be organised. According to Haddad (1979), a defence
opening should encompass the following points:
Opening 83

(a) an explanation of the procedure to be followed in the criminal

trial and the jury’s part in that process;
(b) a statement of fundamental principles which protect
defendants, for example: the presumption of innocence; the
concept of reasonable doubt; the fact that an indictment is not
evidence of guilt;
(c) a statement of the defence theory of the case; convey the ‘not
guilty’ suggestion strongly;
(d) a statement of what the defence believes it will prove in the
case; be careful not to promise what you cannot prove;
(e) a statement to acquaint the jury with the defendant personally;
humanise the defendant by referring to his employment,
friendships, family and concerns. Interweave these details with
factual evidence, to create a living picture of the case and
identification with the accused; persuade the jury that the
defendant is a good person; once juries make up their minds,
they rarely change them.
At this stage of the trial, the prosecution evidence will have been
presented and there may be weaknesses which can be drawn to
the jury’s attention. Here, the value of keeping a note of the
prosecution opening will become clear. Was there anything which
the prosecution said it would prove in opening which they have
failed to prove? If so, have they broken their promise to the jury?
If so, the jury should know that. It may be possible to weave your
comments into the presentation of the defence theory of the case.
Usually, though, the defence theory of the case should be stated
clearly and unambiguously. This may be difficult if you are trying
to integrate newly discovered facts. Consider the primacy effect; it
might be better to offer the defence theory of the case first and
then look at the prosecution evidence.
Much of what the defence might say depends on what has
gone before; for example, whether or not the prosecution has
already dealt fairly with matters in opening, such as the burden of
84 Advocacy

proof. If so, you should consider showing how fair you are by
giving the prosecution credit. For example:
Mr Bumptious said that it is the prosecution’s duty to present
evidence which will prove Mr Innocent’s guilt beyond any
reasonable doubt. He was right to tell you that, and he explained
your duty clearly and fairly. I do not need to emphasise the point.
Let us now look at the evidence Mr Bumptious has produced …
In the Rouse trial, Douglas Finnemore made a brief defence
opening speech to suggest the ‘improbability and inherent
unlikeliness’ of the prosecution case, and to remind the jury of
their obligation to ignore the newspaper speculation which had
surrounded the whole case. He said the following about
circumstantial evidence:
While circumstantial evidence can be extremely strong, so strong
that its inferences make the case one of almost mathematical
certainty, it might fall far, far short of that. It is so easy to draw
wrong inferences that you must take every care. This danger is
increased a thousandfold in a case like the present, which is quite
unprecedented in that the deceased remains unknown and
unidentified …
Again, the significance of the primacy effect is a strong argument
for proceeding as quickly as possible to establishing the defence
theory of the case. Finnemore offered the jury a theory of the
case based on an accident. He could be reasonably confident that
the prosecution had not firmly established that the fire must have
been planned. His remaining problem was Rouse’s conduct
during and after the fire. His explanation of this conduct was as
follows:
He had left the car and a few minutes later saw it in flames. He
ran up to it, saw no sign of his companion, and, all alone, at two
in the morning, with no one to help, became panic stricken and
ran past his car shouting ‘My God, My God!’. His nerve broke. He
ran away with one idea hammering away in his head; somehow
to escape from the blazing horror in the road. Is it not a story
strongly indicative of a man who has lost his nerve and ran away,
and not in the least that of a man who was a cool and callous
criminal?
Opening 85

What devices does Finnemore use here to stimulate the jury to

focus on his theory of the case?

4.6 Structuring openings in civil cases

In civil cases, the claimant generally offers evidence first and the
defence follows. Under the Civil Procedure Rules, a written
witness statement will ordinarily stand as evidence-in-chief
(r 32.5(2)). Apart from defamation, civil cases are usually tried by
a judge alone. This obviously calls for some re-adjustment of the
tactics which may be used in jury trials. The language may be
logical, even legalistic, and the use of any psychological anchors
should be more subtle. Remember, though, that judges are
human. Do not throw your basic presentation skills out of the
window; a judge is there to be persuaded.
A conventional opening speech follows the introduction with a
statement of the claimant’s cause of action, an outline of the
material facts and those facts which are in issue between the
parties, an outline of the evidence and the relevant principles of
law and a statement of why the claimant should succeed on the
facts which, it is hoped, will be proved.
It is important to outline the legal issues for the judge. Do not
assume that the judge will automatically know everything about
the case that you know. The judge will appreciate clarity and logic
and a structure which assists her to organise the issues. It is
noticeable that judges often start making notes at that point of the
opening where the advocate outlines those things which need to
be proved to establish the claim. For example:
In proving this claim of misrepresentation I will show: first, that
there was a pre-contractual statement of fact; secondly, that this
was negligently made; thirdly, that the claimant was intended to
rely, and did rely, on this statement; and fourthly, that he has
suffered damage as a consequence.
When putting the facts into order, attention should be paid to the
order in which evidence will be called. This may be determined by
86 Advocacy

the optimal organisation of the facts of the case (for example,

chronological, topical or logical, see pp 60–61) or the order in
which it is proposed to call witnesses. In a personal injury case,
for example, this would frequently mean starting with the claimant
and finishing with the medical expert. The defence can also
choose a sequence for its witnesses for tactical reasons. If the
defence believes that the claimant is a malingerer, they may start
with their own medical expert. If the defence can cast doubt on
the claimant’s lack of reliability in relation to his symptoms, it may
cast doubt on the rest of his evidence.

4.7 Summary
• Organise your openings to reflect the order in which witnesses
will appear.
• Remember the ‘primacy’ and ‘recency’ effects.
• Start with strong material.
• Speak to the jury.
• Interest the jury, in ‘the story’ and provide them with enough
‘psychological anchors’.
• Anticipate weaknesses and confront them where necessary.
Opening 87

4.8 End of chapter references and additional reading

Birkett, N The Art of Advocacy:
(1948) Character and Skills for the Trial Cases
American Bar Association Journal Vol 34
Boon, A Skills for Legal Functions II:
(1992) Representation and Advice
Institute of Advanced Legal Studies
Butterworths Stones Justices’ Manual
(1998) Vol 1
Butterworths
Evans, J Advocacy at the Bar: A Beginner’s Guide
(1992) Blackstone
Evans, K Advocacy in Court: A Beginner’s Guide
(1995) 2nd edn, Blackstone

Haddad, FE The Criminal Case:

(1979) The Opening Statement
Trial Vol 15 No 10
Julien, AS Julien’s Eight and a Half Rules
(1985) on Opening Statements
American Bar Association Journal Vol 71
Lindquist, WI Advocacy in Opening Statements
(1982) Litigation Vol 8 No 3
May, R Criminal Evidence
(1998) Chapter 1
Sweet & Maxwell
Munkman, J The Technique of Advocacy
(1991) Chapter 9
Butterworths
88 Advocacy

Stein, JE The Rhetorical Question and Other

(1977) Forensic Speculations
Litigation Vol 3 No 4
Vinson, DE How to Persuade Jurors
(1985) American Bar Association Journal Vol 71
 1

CHAPTER
89

5 Questioning

A prosecution for reckless driving at Leicester Crown Court. The

defendant is being examined about her speed.
‘So you turned into Charles Street. How fast were you going?’
‘Not more than 20 miles an hour.’
‘What gear were you in?’
‘Jeans and a T-shirt.’
Berlins (1992)

5.1 Context
There are two situations in which the advocate asks questions:
when questioning his own witnesses; and when questioning the
other side’s witnesses. Examination-in-chief is where the
advocate elicits evidence from his or her own witnesses. Cross-
examination is the opportunity given to opposing counsel to ask
questions about issues covered in the examination-in-chief. A
defendant in a criminal trial cannot be cross-examined unless he
or she gives evidence-in-chief.
The new Civil Procedure Rules reinforce the trend for
evidence-in-chief to be given in the form of witness statements.
However, there will continue to be circumstances where the court
will permit witness statements to be amplified by oral testimony
(Grainger and Fealy (1999), Chapter 17).
A basic rule for examining witnesses is that questions should
be expressed in simple language, even where the witness is
familiar with jargon. This is particularly the case where there is a
jury.
The following sections of this chapter examine many different
types of questions which witnesses can be asked and some
tactical points for securing the best evidence for your case.
90 Advocacy

5.2 Open and closed questions

On open and closed questions generally, see Negotiation by
Diana Tribe and Interviewing and Counselling by Jenny
Chapman, both in this series.
There are different views about the use of open questions in
examining witnesses. The consensus is that they should not be
used in cross-examination because a witness should not be given
a chance to explain his answers. When leading evidence from
your own witnesses, however, some discretion may be exercised.
A shy, nervous witness may appreciate closed questions which
will help him or her to feel at ease in giving evidence. On other
occasions, an anxious witness may gain confidence in being
allowed to respond more freely to early questions on personal
details and other questions which do not directly relate to the
matter in issue. The advocate must judge which approach will
help to get the best out of each witness.
If you have a witness who is very persuasive, it may be
advantageous to give them an opportunity to speak at length. This
may arise with either a witness of fact or an expert witness.
Narrative is generally more convincing than the fragmented
testimony produced by closed questions. The risk with narrative is
that the witness may deal with irrelevant matters, or present their
information in an illogical sequence or in any other way which is
unfavourable to your case. The most serious risk with such
testimony in criminal trials is that prejudicial material may be
disclosed inadvertently, such as the defendant’s previous
convictions. These potential disadvantages may, though, be offset
by the authenticity of the evidence. In any event, a witness can be
interrupted and re-focused or, as in interviewing, asked to
elaborate on some part of his response to an open question.

5.3 Hypothetical questions

Hypothetical questions are sometimes used to test the logical
boundaries of a piece of evidence, for example:
Questioning 91

Q: You have told me that you did not think it necessary to call an
ambulance. Would you have called an ambulance if the
claimant had hit her head?

5.4 Leading questions

Leading questions are questions which either, by their form,
suggest the answer (for example: ‘You were in the shop that day,
weren’t you?’) or which take certain facts for granted which the
witness has not actually sworn to (for example, asking: ‘What did
the accused do in the shop?’ – when the witness has not said that
the accused was in the shop).
In questioning his or her own witnesses, the advocate must
avoid leading the witness on any issue which is, or which may be,
material. Leading questions are forbidden for the following
reasons:
(a) it is presumed that any witness called by a party is potentially
biased in favour of that party;
(b) there is a risk that leading questions bring out only that
evidence which is favourable to the questioner’s client; and
(c) the likelihood of yes/no answers means that witnesses may
not express their full meaning in their own words.
Denroche (1963–64)

Sometimes your own witness may be evasive and may even

refuse to answer questions. With the leave of the court, leading
questions can be put to a ‘hostile witness’ whom the advocate
himself or herself has called to give evidence. The court must first
decide that the witness is ‘hostile’, as opposed to merely
unfavourable. Cross-examination of hostile witnesses must be
limited to their evidence; it should not touch on their character.
However, such a witness may be confronted with contradictory
evidence or inconsistent prior statements (Rules of the Supreme
Court, Ord 38 r 1(3)). It is desirable to have a signed proof of
92 Advocacy

evidence from the witness as the basis for discrediting the

testimony.
Murphy and Barnard (1998)

5.5 Leading questions in cross-examination

Cross-examination is often based entirely on leading questions.
This allows the advocate to put their own theory of the case to a
witness with every question. The witness is forced either to accept
the premise of the advocate’s question or to correct it. Drew uses
an example taken from a rape trial in the US in which counsel is
questioning the victim about a meeting with the accused on an
occasion prior to the alleged rape. In the original text, different
speech patterns are emphasised and such linguistic analysis of
the process produces some interesting results which are worth
bearing in mind when analysing a cross-examination. However,
these emphases are omitted here. Instead, look at the questions
and answers which are italicised. What can you deduce about the
advocate’s theory of the case? What is the significance of the
questions and of the attempted corrections by the witness?
Q: And you went out to a bar in Boston, is that correct?
A: It’s a club.
Q: It’s where girls and fellas meet, isn’t it?
A: People go there.
Q: And during that evening, didn’t Mr X come over to sit with
you?
A: Sat at our table …
Q: Well, didn’t he ask you if, on that night, he wanted you to be
his girl? … Didn’t he ask you that?
A: I don’t remember what he said to me that night.
Q: Well, you had some fairly lengthy conversations with the
defendant, didn’t you? On that evening of February 14th?
A: Well, we were all talking.
Questioning 93

At this point, the advocate suggests that the accused had invited
the witness out on that occasion. She replied that she did not
remember:
Q: Well, you knew, at that time, that the defendant was
interested in you, didn’t you?
A: He asked me how I’d been, just stuff like that.
Q: Just asked how you’d been; but he kissed you goodnight. Is
that right?
A: Yeah, he asked me if he could.
Q: He asked if he could …?
Drew (1990)

5.6 A sequence of three questions

The use of a tripartite list can be used to emphasise a line of
questions. Witnesses will often agree with the first two points on
the list, but realise that agreement with the third point symbolises
completeness. In this extract, again from Drew, the witness is a
co-defendant, with her daughter, on a charge of possessing
heroin. Here, she is describing how her daughter had previously
been in trouble with the police:
Q: What kind of trouble?
A: She was found with some works in her pocket.
Q: Works, eh? Now where did you pick up the slang
expression ‘works’?
A: I’ve heard it used quite frequently.
Q: What’s meant by the term ‘works’?
A: It means, uh, a needle.
Q: A syringe?
A: Yes, sir.
Q: A cooker?
A: Ye – I don’t know about the cooker.
94 Advocacy

Q: Pardon?
A: I don’t know about the cooker.
Drew (1990)

The point that Drew makes is that we have a strong reaction that
three is a complete list. A list of two items may have common
properties. However, it is only when the list reaches three that it is
possible to generalise those common properties. To acknowledge
familiarity with three drug terms would imply greater knowledge of
the language of drug addicts than it would be wise to admit.

5.7 Probing, insinuating and confrontational questions

In The Technique of Advocacy, Munkman identifies three kinds of
questions which are typically used in cross-examination; probing,
insinuating and confrontational questions. He describes a strategy
which uses these questioning techniques which he calls
‘undermining’.
Its object is not to break down the evidence by inquiring into the
facts, but to take away the foundations of the evidence by
showing that either (i) the witness does not know what he is
talking about, or (ii) if he does know the truth, he cannot be
trusted to tell it.
Munkman (1991)

Probing questions are often used to gather further details of a

witness’s account and to test that account against other facts.
They introduce into evidence an account to which the witness is
committed. Often, these questions cover matters which seem
inconsequential. However, they help to create a picture which
may or may not be coherent.
A witness who is telling lies will have needed to think through
his or her story carefully. It is often difficult to anticipate all the
surrounding detail which may be required. A witness account
may, therefore, be richer in texture where it is truthful than where
it is false. That is why witnesses who lie are sensible if they
transpose an experience they have in common to the day in
Questioning 95

question. The alibi of the accused may be that he went to the

dogs with Lefty. Lefty and the accused agree that they will
describe the visit on the previous Friday, since the detail on which
they can be tested will correspond. However, anticipating this, the
prosecution will check what the weather was like on the second
Friday, which dogs were running, who else was there, etc, as
material for the cross-examination. Another rule of thumb for
spotting true accounts is that they often have ambiguities or
inconsistencies. The truthful witness acknowledges these and will
not fill the gap. A false account often points consistently one way.
If you believe a witness is lying, probing questions force them
to invent more lies. The more such detail the witness gives, the
greater the risk of contradiction in later answers. The detail they
give can also be compared with similar detail provided by
witnesses with whom they may have ‘agreed a story’. While the
main points of a story can be rehearsed, the detail may be shaky.
Probing questions can also be used to disguise the main point of
a series of questions.
Take this example of an imaginary cross-examination. The
witness claims to have seen John Doe at The Purple Parrot club
before midnight. The advocate’s ultimate aim is to show that the
witness is mistaken or lying. He knows that, at some point in the
evening, the witness asked where John Doe was:
Q: Why did you go to The Purple Parrot?
A: The pubs had closed and I wanted a drink.
Q: You were in The Goose and Turkey?
A: Yes.
Q: You telephoned your wife at 11.30 from The Goose and Turkey?
A: Well, more like 11.25.
Q: You would accept that the doors of The Goose and Turkey were
closed at 11.30 and that the landlord, while locking up, asked you to
finish your telephone call and leave?
96 Advocacy

A: If that’s what he says.

Q: How soon after that did you go to The Purple Parrot?
A: Straight away.
Q: How did you get there?
A: I walked.
Q: At what time did you see John Doe at The Purple Parrot?
A: Around 11.45.
Insinuating questions are used to put an alternative version of
events, that is, your version, to a witness. The questions to the
alleged rape victim (see the dialogue above, p 92) fall into this
category. Insinuating questions may be subtle, for example:
Q: When you arrived at The Purple Parrot, you bought Richard Roe a
drink, didn’t you?
A: Yes.
Q: You were talking at the bar?
A: Yes.
Q: Did you say to Richard Roe: ‘Have you seen that welsher Doe’?
A: I may have said something like that.
Q: That was after midnight?
A: No, that must have been around 11.45.
Q: Would you accept that it takes 20 minutes to walk from The Goose
and Turkey to The Purple Parrot?
A: Possibly.
Q: You were talking to a woman at the bar for 15 minutes before
speaking to Richard Roe?
A: I had a few words.
Q: And then you were talking to Richard Roe for at least 10 minutes
before you mentioned John Doe?
A: Well, I think I probably mentioned him quicker than that.
Questioning 97

Q: Do you think that it must have been later than 11.45 that you asked
Richard Roe about John Doe?
Insinuating questions can be stronger than this. There may be a
point where you cannot make further progress with the witness.
Here, insinuating questions allow you to put your case to the
witness. In all probability, the witness will answer ‘No’ to each
question; that does not matter. If you are going to challenge a
witness’s account in your closing speech, the witness must have
had a chance to deal with your alternative. The insinuating
question is an effective way of doing this, particularly when it is
used as a series of questions in the ‘inevitable conclusion’
sequence:
Q: You arrived at The Purple Parrot at 11.50 at the earliest, didn’t you?
A: No.
Q: You then spent at least 25 minutes in conversation with various
people in the club, including the woman at the bar and Richard Roe,
didn’t you?
A: No.
Q: You asked Richard Roe if he had seen John Doe well after midnight,
didn’t you?
A: No, it was before midnight.
Q: In fact, you did not see John Doe at The Purple Parrot at all that
night, did you?
A: Yes, I did.
Confrontational questions present the witness with a fact which
they cannot deny, because it has been proved or will be proved
by other evidence; for example, ‘you signed a statement at the
police station?’ or ‘The Goose and Turkey was locked up at
11.30?’. As Munkman says: ‘Confrontation is only firm insinuation
on a massive scale.’ In some instances, depending on the
strength of the evidence you have, the witness can be confronted
in strong terms. For example:
98 Advocacy

Q: You have been paid £3,000 by Mr Big to lie about John Doe being at
The Purple Parrot that night, haven’t you?
A: It’s a lie, I swear to God!
In closing, you can now challenge the witness’s account and ask
the jury whether they found the witness credible.

5.8 Ridicule, repetition and rivetting

In The Art of the Advocate, Richard Du Cann suggests three
additional techniques which may be used in cross-examination.
He calls these the ‘three Rs’: ridicule, repetition and rivetting.
Ridicule might be used to emphasise the inherent unlikelihood
of an answer given in cross-examination. For example:
Q: You spent four hours at The Goose and Turkey drinking and you say
you ran to The Purple Parrot?
A: The drinks are cheaper at The Purple Parrot before midnight.
Q: You needed a drink?
For reasons discussed in Chapter 2, ridicule should be used with
caution. Repetition of a question may emphasise that the
witness’s answer is evasive:
Q: Why did Mr Big give you a cheque for £3,000?
A: I did some jobs for him.
Q: What were the jobs which you did for this £3,000?
A: This and that.
Q: What were the jobs?
A: I can’t remember exactly; it was a while ago.
Q: This is a simple question; what were the jobs which you did for Mr Big
for which you received £3,000?
The other purpose of repeating questions, according to Du Cann,
is the hope that the witness will use the same form of words in
Questioning 99

response. This suggests that the witness may have rehearsed

answers to difficult questions. This technique is more likely to be
effective if the question is returned to after probing the answer
first.
‘Rivetting’ means securing the witness’s commitment to a
particular story. It is by far the most important of this particular
trilogy and will be used in most cross-examinations. It is
particularly effective where the witness has elaborated a lie in
response to probing questions; this prevents the witness
backtracking. Say, for example, that Mr Big has already told the
court that the witness decorated his Kensington flat in January.
Having hooked the witness, the advocate can easily let him slip.

Q: The decorating you did for Mr Big, where was that?

A: It was his house in Newham.
Q: Ah … Now then, Mr Big has already told the court that it was his
Kensington flat! Now you say it was a house in Newham?
A: I’m sorry; I thought you meant the decorating I did last year. This year
it was the Kensington flat.
Follow-up probing questions can prevent the witness from
wriggling off the hook:
Q: Did you paint the Newham House inside and out?
A: Yes.
Q: How did you get there from Clapham?
A: I drove my van up.
Q: This was in January this year?
A: Yes.
Q: Was the weather fine for painting outside in January?
A: There were enough good days.
Q: Did you also wallpaper inside?
100 Advocacy

A: I did.
Q: What wallpaper did you use downstairs?
A: There was a green pattern in the lounge and a plain paper in the
dining room.
Q: And upstairs, what did you use in the bedrooms?
A: Well, those were painted.
Q: How many floors does the Newham house have?
A: Three floors, I think.
Q: Did you paint the third floor also …?
The witness is now firmly rivetted to his position; he painted a
house in Newham this January. He cannot say that it was a flat in
Kensington.

5.9 Enlivening testimony

Your aim in presenting your own evidence is that it should be
complete, coherent, convincing and as interesting as possible.
Avoid long or confusing questions and repetitious questioning of
different witnesses; aim for simplicity and brevity. Save the detail
for where it matters, in the action part of the testimony, not the
background. Aim for vivid description and engagement of the
witness. Avoid using terms which sound unconvincing or
pompous. Common examples of terms to avoid, particularly when
using insinuating or confrontational questions, are ‘I put it to you
that …’ or ’I suggest to you that …’.
There are many ways of changing the pattern of questions,
like, for example, a change of tense:
Q: What did you do then?
A: I got out the car and waited.
Q: Now you are standing by the car, tell us what you see …
Questioning 101

5.10 Pitfalls
Avoid preparing a list of questions. There is a risk that unexpected
answers will cause you to lose your flow. You may even find
yourself being more concerned about the next question than the
answers. Some questions may need to be carefully structured, for
example, technical questions to put to experts.This forethought
will hopefully avoid the embarrassment of being corrected by an
expert. If you put a hypothetical question to an expert, this needs
to be carefully thought out in advance.
It is often said that an advocate should never ask questions
they do not know the answers to. This is certainly true when
asking questions of your own witness. It is also a fine general
principle in cross-examination. However, only rarely will you know
what the other side’s witness is going to say. It is sometimes
difficult to make progress with a witness without a calculated
gamble or two. You should not ask a witness who has made a
damaging point against you what the reasons behind their answer
were. Their explanation may make their answer even more
compelling. Ask questions which gradually develop the evidence
you wish to come out. If your questions are carefully framed, you
can often adopt a different tack before you reach the point where
an unfavourable response would be disastrous. Younger (1977)
argues that there are, however, two instances in which an
advocate may break this ‘Golden Rule’:
Even though he does not know the answers, a good cross-
examiner may ask a question when he does not care what the
answer is. Second, it is possible not to know the answer to a
particular question at the start of the cross-examination, but to
discover the answer by cunning use of preliminary questions to
which the answer is either known or unimportant. The advocate
closes doors, he eliminates possible explanations, and gradually
escalates himself to the point where he does know the answer.
He has learned it in the course of cross-examination and, so, he
may now ask the question.
Younger (1977)
102 Advocacy

When you have got what you want from a witness, leave that line
of questioning. Avoid the temptation of ramming home the point.
The question intended to be the ‘final nail in the coffin’ all too
often provides an opportunity to the witness to explain away a slip
they have made. If you fear that the court has not seen the
significance of a point, you can emphasise it in your closing
speech. It is for the other advocate to decide whether to try to
repair any damage in re-examination.

5.11 Examination-in-chief
So far, this chapter has concentrated on questioning techniques
in cross-examination. Other special considerations apply to
questioning strategies in examination-in-chief. In examination-in-
chief, the objective is to present your evidence so that it is clearly
understood and persuasive:
Direct examination is more important than cross-examination, the
opening statement or closing argument. For unless the outlook is
so dismal that the only hope in litigation is to create confusion, a
coherent statement of the facts by the witnesses is essential to
the jury’s understanding and acceptance of your position …
McElhaney (1976)

As noted above, the new rules continue the practice whereby

witness statements ordinarily stand as evidence-in-chief. This
shifts the element of persuasion from orality to written
presentation. Lord Woolf’s exhortation not to make witness
statements too lengthy, technical or argumentative is highly
relevant. Not only does this waste the court’s time, it diminishes
the persuasiveness of witness statements as evidence.

5.12 Organisation
A chronological order is often the most appealing way of outlining
facts. However, chronology may sometimes be more confusing
than other sequences (logical, topical or ‘inevitable conclusion’;
see, also, section 3.6). Some cases may require a mixture of
Questioning 103

different approaches. In examination-in-chief, a combination of

chronological and topical is often best. Events which dominate are
often recalled first; we then tend to put events into a chronological
context.
This combined approach requires each important event to be
approached separately. The topic is signalled to the witness and
the court and the main elements are brought out; the questioner
then returns to the chronological order. The stock in trade
questions of examination-in-chief are typically the ‘W’ questions;
these help the advocate to ask non-leading questions. For
example:
‘Where did he go?’
‘What did he say then?’
‘Who else was there?’
‘When did you arrive?’
‘Why did you go there?’ and, possibly,
‘Can you show us?’
The pace and flow of questioning needs to be kept up. This helps
to keep up the response rate of witnesses and adds to the
authority of their answers. It also sustains the interest of the
audience. Some advocates use links which give them time to
think, for example: ‘Let me ask you this …’ Try to avoid these and,
instead, pause if you must; you will probably find that, without the
crutch of these devices, you will speed up.
Do not repeat every answer the witness gives. It may ensure
that an answer is not missed but, if done too often, it loses impact.
If you immediately repeat an answer, there is an additional risk
that the witness will qualify what they said. An answer which you
particularly want to be emphasised can be included in a later
question. For example:
Q: Mr A, you have already told me that you noticed the goods in the
defendant’s basket as she left the shop. Can you tell me precisely
where you were standing at that moment?
104 Advocacy

Avoid asking your witnesses to comment on areas they are not

familiar with. Remember that you cannot challenge your own
witness on prior inconsistent statements unless the court is
prepared to declare that witness hostile. Do not ask too many
questions. Their uncertainty on any issue may weaken the impact
of the rest of their evidence or give the other advocate material for
cross-examination. The more questions you ask, the more likely
you are to find an issue on which the witness is uncertain.

5.13 Leading questions in examination-in-chief

In examination-in-chief, leading questions may be used only in
relation to preliminary details (name, address, etc), areas agreed
between the advocates or on points which are not in issue. The
leave of the court may be given ‘so far as justice may require’, for
example, for very young or old witnesses.
So, an opening sequence, using permissible leading
questions, may be as follows:
Q: Your name is Red Ridinghood?
A: Yes.
Q: And you live at Edge of the Forest Cottage at Woodleigh?
A: Yes.
Q: You attend Woodleigh Comprehensive School?
A: Yes.
Q: On 1 June last year you were taking some groceries to your
Grandma?
A: Yes, I was.
Q: Where does your Grandma live?
A: At Centre Cottage, in the middle of the forest.
Q: Did you meet anybody on this journey?
A: Yes, I met a wolf.
Questioning 105

Note that the advocate may guide the witness by the form of
question. The question about Grandma’s house is a transition
from leading to guiding questions before the advocate arrives at
potentially contentious issues.
An open question now would be:
Q: Could you describe this wolf?
However, you may wish to be more specific. If, for example, you
know that the defendant habitually wears a distinctive collar, you
could say:
Q: What was the wolf wearing?
A: He wore a collar.
Q: Could you describe this collar?
You may also guide the witness:
Q: What colour was the wolf’s collar?
It is acceptable to indicate the issue which is of interest or to offer
questions with a limited range of answers where nothing turns on
the answer, for example: ‘Did you speak to Mr X at work on 14
February?’ However, there are advantages in allowing the witness
to give their own evidence when this enhances the credibility of
what is said. For example:
Q: Did you speak to Mr X again after the January incident?
A: Yes.
Q: When was that?
A: Sometime in February.
Q: Can you remember the exact date?
A: I think it was around the 14th.
Q: Where did this conversation take place?
A: At work.
106 Advocacy

It is the opposing advocate’s responsibility to object to

inappropriate leading questions immediately, preferably before an
answer is given. Sometimes, the judge will intervene to warn the
questioning advocate against the use of inappropriate leading
questions. It is important to master the art of asking questions
which do not lead in examination-in-chief:
… if you so conduct your examination-in-chief that your opponent
must sit still, that is a very great triumph; but if you so conduct
yourself that you give your opponent the opportunity of protesting
against leading questions or other irregularities, your influence
begins to go, your control over the jury begins to vanish.
Birkett (1948)

Remember that when you have finished examining a witness the

other advocate may wish to cross-examine. Even the judge may
have a question. You should always indicate that you have
finished by saying: ‘I have no further questions, Your (Lordship).’
You should also indicate to the witness that they should remain
where they are. If the other advocate does not wish to cross-
examine, you may wish to ask if the witness can be released. This
can be particularly important with expert witnesses, for whose
services your client must pay a professional fee.

5.14 Introducing real evidence

In criminal law, real evidence is a document (for example, a
fraudulent cheque) as opposed, for example, to a document
admitted in evidence under s 23 or s 24 of the Criminal Justice
Act 1988 (such as a statement of a deceased person or a
document created or received in the course of trade) or object
which may need to be put in as an exhibit at a trial. Real evidence
needs to be identified by witnesses before it is admitted as
evidence. There must be a foundation in the evidence for the
admission of such items. The main requirement is that they must
be relevant to the issues in the case, but there are also a number
of exclusionary rules covering, for example, hearsay (see May
(1998), especially §1–20 to §1–26; and Grainger and Fealy (1990),
p 50).
Questioning 107

Alternatively, in a civil case, for example, a personal injury

case, where the claimant may have expenses which are not
agreed, the undisputed supporting documentary evidence might
be introduced as follows:
Q: Mr Claimant, did you have any other expenses as a result of this
accident?
A: I did.
Q: Could you tell the court what these were?
A: Yes. I had to attend the hospital for physiotherapy and went there by
taxi.
Q: Did you keep any record of these visits?
A: I always asked the taxi driver for a receipt.
Q: Will you look at the bundle at p 39?
A: Yes.
Q: Are those the receipts you collected for taxi fares to and from the
hospital for your physiotherapy?
A: They are.
Advocate: Your (Honour), this will be claimant’s exhibit P6.
When evidence is disputed, the introduction of real evidence will
be more formal. The other side, forewarned that you wish to put
the evidence in, may wish the jury to retire while the judge hears
the argument. Such evidence may need to be presented to a
witness before it is received in evidence (Stones Justices’ Manual
(1998)). In these cases, the full procedure would be as follows:
(a) request that exhibit be marked for identification
(for example: ‘I request this be marked as a defence exhibit for
identification’);
(b) lay the foundation for admitting exhibit
(it is important to remember the primary criteria of relevance
and admissibility (Stones Justices’ Manual (1998)). If it is a
photograph, for example, ask the photographer where and
when the photograph was taken, and have him confirm that
108 Advocacy

the negative has not been tampered with. An identifying mark

should then be put on it by the clerk);
(c) allow opposing counsel to examine exhibit;
(d) offer exhibit into evidence
(‘defence exhibit 14 for identification is offered in evidence’);
(e) give the exhibit to the trial judge for inspection;
(f) possible voire dire examination of witness by opposing
counsel on the issue of admissibility;
(g) ruling on admissibility;
(h) testimony concerning exhibit; and then
(i) give the jury the exhibit or copy of it.
Note that, in civil law, the definition of real evidence is limited to
‘material objects other than documents’. (See O’Hare and Hill
(1997).)

5.15 Anticipating cross-examination

There is much to be said for having your own witnesses deal with
potentially embarrassing issues in examination-in-chief. It shows
that you are prepared to be open about difficulties; it can draw the
sting of the questioning which will follow in cross-examination;
and it will give your witness an opportunity to put the best light on
events.
It is usually advisable to anticipate what the opposition is going to
try and do to your witnesses and do it yourself before the other
side gets the chance. In other words, to try to steal the thunder of
the opposition; bring out the weak points in your case as soon as
possible and in your own way, rather than try to explain them
away later.
McElhaney (1978)
Questioning 109

However, you need to be careful not to undermine the impact of

your evidence or to open up an area which, while presenting
difficulties for your case, might have been inaccessible to the
other advocate without your lead. Questions to ask yourself are:
‘Is it inevitable that this witness will be cross-examined on this
point and, if so, is it necessary that I prepare the ground in
examination-in-chief? If I leave this question and the other side
raises this question, will it reflect badly on them?’ If the problem
must be tackled, you can confront your own witness with the
difficult point and seek an explanation. In your demeanour and by
your follow-up questions, show that you accept the witness’s
explanation.
For example, in the Rouse case, Finnemore tried to give
Rouse the opportunity to explain his conduct after he left the
incident in Hardingstone Lane and the lies which he had told
during the period before his arrest:
Q: Do you remember giving some explanation of why you did not have
the car?
A: I gave some explanation; what it was, I really could not say.
Q: Was it a truthful one?
A: No, I could not say that very well because it was very lengthy and
long. Another thing too, there were ladies present, and one would
hardly give the whole details in any case.
Q: Were you going to tell about the car?
A: I had not thought about that. They would have to know eventually.
How successful was this attempt to allow Rouse to explain
himself? Could Finnemore have phrased his questions differently
in order to help Rouse put the best face on his actions? What is
the potential for cross-examination on these answers?
110 Advocacy

5.16 Summary
• Keep questions simple and short.
• Use ‘open ended’ questions with great caution.
• Keep leading questions for cross-examination.
• Use probing questions to elicit a witness’s commitment to ‘a
story’.
• Use insinuating questions to put your own theory of the case
to the other side’s witness.
• Use confronting questions only when you can prove your
point.
• Do not repeat a witness’s answers, except as part of questions.
Questioning 111

5.17 End of chapter references and additional reading

Richardson, Archbold’s Pleadings, Evidence and
PJ (ed) Practice in Criminal Cases
(1998) Vol 1 Chapter 8
Sweet & Maxwell
Berlins, M ‘Writ large’
(1992) (1992) The Guardian, 30 September
Birkett, N The Art of Advocacy: Character and
(1948) Skills for the Trial Cases
American Bar Association Journal Vol 34
Denroche, SG Leading Questions
(1963–64) Criminal Law Quarterly
Drew, P ‘Strategies in the contest between lawyer
(1990) and witness in cross-examination’
in Levi, JN and Language in the Judicial Process
Graffam Walker, A (eds), Plenum
May, R Criminal Evidence
(1995) 3rd edn, Sweet & Maxwell
McElhaney, JW An Introduction to Direct Examination
(1976) Litigation Vol 2 No 2
McElhaney, JW Rehabilitation
(1978) Litigation Vol 4 No 4
Munkman, J The Technique of Advocacy
(1991) Chapter 2
Butterworths
Murphy, P A Practical Approach to Evidence
(1992) Chapter 13
Blackstone
112 Advocacy

Murphy, P Evidence and Advocacy

(1998) Chapter 9
Blackstone
O’Hare, J and Civil Litigation
Hill, RN 8th edn
(1997) FT Law & Tax
Butterworths Stones Justices’ Manual
(1998) Vol 3
Butterworths
Younger, I A Letter in which Cicero Lays
(1977) Down the Ten Commandments of
Cross-Examination
Litigation Vol 3 No 2
Zuckerman, AAS The Principles of Criminal Evidence
(1989) Chapter 7
Clarendon
 1

CHAPTER
113

6 Cross-examining

In the case of one who will not speak the truth unless forced to
against his will, the greatest pleasure for the examiner is to extort
from him that which he does not wish to say; but this cannot be
done other than by asking questions which seem wide of the
matter in hand; for to such questions, he will give such answers
as he thinks will not hurt his case; and then, from the various
particulars which he may let slip in this way, he will be reduced to
the point where he cannot deny that which he does not wish to
acknowledge …
Quintillian, Institutes of Oratory

6.1 Aims
Cross-examination is the process whereby a party seeks: (a) to
test the veracity and accuracy of evidence-in-chief given by a
witness called for another party; and (b) to elicit from that witness
any relevant facts which may be favourable to the cross-
examiner. Cross-examination designed solely to discredit the
witness and to destroy or reduce his credibility, sometimes known
as ‘impeachment’, is perfectly permissible.
Murphy (1992)

According to Archbold (1998):

The credibility of a witness depends upon:
(1) his knowledge of the facts to which he testifies;
(2) his disinterestedness;
(3) his integrity;
(4) his veracity; and
(5) his being bound to speak the truth by such an oath as
he deems obligatory or by such affirmation or
declaration as may by law be substituted for an oath …
Archbold (1998), p 958, §8–137
114 Advocacy

The degree of credit his testimony deserves will be in proportion

to the jury’s assessment of these qualities.
The advocate aims to have his or her own evidence accepted and
that of the other side rejected. A secondary aim of cross-
examination is to put your client’s case to the other side’s
witnesses through the use of insinuating questions. The court is
there to evaluate the evidence for both sides and to make a
finding of fact; this cannot be done unless the evidence has been
tested.

6.2 Organisation
Organisation of your cross-examination will depend on many
strategic decisions you make in your planning. In general, as with
opening speeches, you will probably find a topical arrangement
within a chronological framework satisfactory for most purposes.
Your specific approach may only be confirmed during examination-
in-chief and, therefore, you need to build some flexibility into your
plans.
If you decide that you must attack the credibility of the witness,
you can attack their credibility generally or only in relation to
specific testimony. If you are attacking the witness’s general
credibility (for example, their character), you may choose to
confront the witness at the start of cross-examination if your
evidence is strong. You may choose to delay until you see how
the witness performs if your evidence is weak. If you are attacking
credibility in relation to the witness’s recollection of certain
incidents alone, you will organise your attack according to topic
area. (See, for example, Archbold (1998), especially §8–141 to
§8–200.)
As you evaluate a witness in examination-in-chief, you may
think that they are prepared to make concessions. You will wish to
organise your questioning to maximise the effect of these
concessions and, moreover, to try to ensure that beneficial
testimony is not damaged by attacks on the witness’s credibility.
When you are trying to ‘rivet’ a witness into their position (see
Cross-examining 115

Chapter 5), close all escape routes by using probing questions

before moving to insinuating or confronting questions. You should
try to conceal the point of this kind of questioning for as long as
possible.
Younger (1977)

6.3 Style
It is important that you retain self-control. Do not quarrel with the
witness and try to avoid commenting on any answer you are
given. If you comment to try to highlight a point, you will alert the
witness to its significance and may lose your flow. You will have
the opportunity to comment on the evidence in your final speech.
Rarely would you allow a witness to explain or repeat evidence
from examination-in-chief. If it was favourable evidence, you can
only lose by trying to encourage the witness to embellish it.
Your use of leading questions will give you control of the
witness. If they should go beyond the narrow questions you ask,
you can stop the witness. The judge will support your right to
conduct your cross-examination as you see fit. However, he or
she will not usually intervene unless she sees that you are not
content with the way the witness answers your questions. It is
unwise to appeal to the judge to control the witness since you
may be seen to want support in a battle you are losing.
If you observe from examination-in-chief that you have a
loquacious witness, you may try to strike a bargain. For example:
Mr Wolf, I am going to ask some questions about your evidence. I
noticed that your answers to Mr Bumptious’s questions were very
full. You will be able to answer most of my questions with a
simple ‘Yes’ or ‘No’. I hope you understand if I ask you to restrict
yourself to a yes/no answer?
The witness can do little else but agree. If he agrees, but does not
comply, you can remind him of the bargain. If you have a witness
who persistently and unhelpfully rambles on, it is best to have a
prepared speech, such as:
116 Advocacy

Please stop there, Mr Wolf; could you just answer the question I
am asking. If I could remind you, the question I asked was …
If the problem continues:
Mr Wolf, I have asked you once to answer the questions which I
put to you. A simple ‘Yes’ or ‘No’ will do. If I could repeat the
question …
Notice that these formulae do not require any response from the
witness. You are less likely to get into an argument.
However, a witness may sometimes protest that it is
impossible to answer every question with a simple ‘Yes’ or ‘No’.
Your response might be:
Nevertheless, Mr Wolf, you will understand that I am here to ask
questions; your role is to answer the questions I ask. Everyone in
this court will be very grateful if we both do what is expected of
us.
When you cross-examine, your questions should be clearly
understood by everyone in court. Be economical in your
questioning. Try to use short questions and plain words. Rather
than:
For what period of time did you maintain surveillance over the
subject in question?
ask instead:
How long did you watch him?
Cross-examination should be as brief as is necessary to achieve
your aims; a short cross-examination is more likely to make an
impact on the memory. Seek only that information which will
support your theory of the case; do not cross-examine every
witness on every issue. Advocates sometimes believe that they
can win a case by cross-examining; they stagger on, in a losing
battle, looking for the ‘killer punch’:
Daily experience in criminal courts – especially in summary trials
– shows that, apart from exceptional cases, an advocate should
not normally expect to win by one brilliant coup in cross-
examination. An exaggerated view of what can be achieved may
Cross-examining 117

induce an advocate to cross-examine, or to go on with it for too

long, where this is unnecessary, dangerous or actually harmful to
his case. A realistic view will enhance his performance.
Stone (1988)

An overlong attempt to breakdown a witness may suggest anxiety

on your part that the witness’s evidence-in-chief was damaging. If
you must conduct a long cross-examination, you need good
organisation and narrative sense so that the evidence is easily
followed and its significance appreciated.
An advocate must be free to engage with the witness. Again,
prepared questions may prevent this:
Ideally, an examination should be in the form of a ‘spontaneous
conversation’. This cannot be done if the advocate’s head is
buried in his brief.
Du Cann (1980)

A list of key topics, or a mind map, allows you to be flexible. This

allows you to listen to the witness’s responses. Witnesses
sometimes make amazing admissions and contradict themselves,
but advocates appear not to hear. Why? Rather than listening to
the response, they are anxiously looking for the next question on
their list. Edward Carson was nominated by Sir Norman Birkett
‘the finest cross-examiner within my recollection at the English
Bar’. He cites this example of Carson’s quick thinking:
Q: Do you drink?
A: That is my business.
Q: Do you have any other?
Birkett (1948)

That kind of riposte is made possible by careful attention to what

the witness says.
118 Advocacy

6.4 Strategy
The first strategic issue in cross-examination is whether or not
there is a need to cross-examine. If the witness is telling the truth
as they see it, the arguments for cross-examination are reduced.
Do not feel that you must cross-examine every witness. It follows
that cross-examination does not need to last for any particular
period of time. You should look at a witness’s evidence and
decide precisely what the realistic objectives of cross-examination
are; cross-examine efficiently to achieve those objectives and do
no more than is necessary for that purpose.
Effective use of cross-examination is enhanced by
understanding some basic premises about how people act. Most
people tell as much of the truth, as they see it, as they can.
Skilled liars realise that the fewer lies they tell, the easier it is to
manage and protect their position. They are also able to lie
convincingly while showing no physical signs of doing so. Others
may appear untruthful when telling the truth; this appearance may
be due to nothing more than anxiety or stress. For these reasons,
it would be rare for the advocate to comment upon a witness’s
non-verbal responses. This is a part of the advocate’s duty to be
fair to witnesses.
Nevertheless, the advocate will be aware of what impact the
witness is having, particularly on a jury, and may need to adjust
his or her questioning strategy accordingly. The advocate’s
detection of a lie can be put to the witness. This tactic must be
exercised with the utmost caution; do not evoke sympathy for the
witness by an unjustified accusation of lying. The main advantage
of detecting a lie is in the potential for cross-examination on the
point, even if its significance may not immediately be apparent;
people do not lie in court without good reason.
Most witnesses come to believe in the truth of the side for
which they testify. Recollection and retelling are influenced by the
fact that, being called by one side or the other, they have
themselves ‘taken sides’. You may find that a witness called by
Cross-examining 119

the other side is unexpectedly favourable to you. While you can

ask such a witness leading questions, consider whether this is
necessary. The weight of the evidence given may be enhanced if
it is seen to be given freely and not under the pressure of leading
questions.
The credibility of oral testimony depends on the apparent
truthfulness of the witness and the plausibility of what they say;
one without the other does not produce credible evidence. In
assessing witnesses, the judge and/or jury will be affected by their
own prejudices; they may be more affected by a witness’s social
standing or office than by what they say. People of ‘good
character’ sometimes lie for what they believe to be good
reasons. What is within the experience of one juror might seem
incredible to another. What a witness says must be compared
with other evidence or known facts. Although responses to
questions are often misleading, both the answers and the
witness’s demeanour will affect their credibility.
In dealing with witnesses, advocates can adopt either a
friendly or a hostile demeanour. Friendliness may be appropriate
where it is believed that the witness is honest, but mistaken;
hostility may be appropriate where they are believed to be lying.
The benefits of adopting one of these demeanours lies in
conveying the advocate’s attitude to the particular witness to the
court; treating all witnesses with hostility diminishes impact. There
may be occasions where guile will be successful in trapping a
witness who is lying:
He worked with the precision of a surgeon – just the right
pressure, with perfect timing, knowing when to push and when to
withdraw. But he was also the actor – looking significantly at the
jury after a point had been made, rocking back on his heels, then
turning back to confront the witness, eyebrows raised over half
moon spectacles, expressions of both satisfaction and scepticism
to order.
Hain (1976)
120 Advocacy

Hostility by the cross-examiner may backfire because there may

be sympathy for a witness who appears to be hounded by the
advocate; there may even be animosity towards the lawyer who is
hostile. As a defensive reaction, the witness may become even
more committed to the testimony they have already given; has
hostility ever persuaded you to change your mind? Hostility may
be perceived as unreasonableness. Instead, you can show your
disbelief by more subtle means.
Munkman observes that effective cross-examination
alternates between the three main types of question:
A probing question may be followed by a gentle insinuation and
that in turn by a sudden pounce of firm insinuation.
Constructive cross-examination attempts to build on those points
where the witness can be persuaded to agree with your case. If a
medical expert, for example, differs on causation, can they at
least agree that your client’s condition is painful? (See, also,
section 6.7 for some examples of choice of strategy in cross-
examination.)

6.5 Duties of the advocate in cross-examination

Richard Du Cann observes that the power given to an advocate in
cross-examination is great. The advocate asks questions of the
witness, can demand answers and can choose the ground on
which to fight, having seen most of the evidence. This power
should not be seen to be abused.
In criminal cases, the prosecutor has an obligation to establish
the truth, and not just to secure a guilty verdict. The accused
cannot be asked about previous convictions. He loses this ‘shield’
if he gives evidence of his own good character or attacks the
character of a prosecution witness. However, when acting as a
prosecutor, the advocate should not merely put on a ‘neutral’ cap.
The prosecutor remains under an obligation to convince the jury.
As we have seen, this may require him or her to show conviction
and determination. On the other hand, in criminal cases, the
defence has no general obligation to establish ‘the truth’.
Cross-examining 121

In criminal trials, neither prosecution nor defence should allow

witnesses to go beyond answering the question; their response
may not be treated as evidence and, if they reveal certain
information (such as the accused’s convictions), there may be a
mistrial. In civil cases, either side may call evidence to establish a
witness’s ‘general reputation’ for untruthfulness.
Du Cann (1980)
Stone (1995)

6.6 Relating oral evidence to previous statements

You should be aware of the contents of all previous statements
made by witnesses and test oral evidence against such
statements. One of the key tools of cross-examination is
evidential contradiction, usually in relation to previous statements.
Clearly, it is of great benefit to the advocate to show that a
witness for the other side has not told the truth in some material
respect. Sometimes, the opportunity to expose contradiction will
offer itself unexpectedly. In this case, the advocate should expose
the contradiction and should succeed in damaging the credibility
of the witness.
In the excerpt from the Rouse trial below, Birkett was cross-
examining Rouse on the statement he had made to the police that
he felt ‘responsible’ for the death of the man in his car. There are
two things to note in this passage. First, the use that Birkett
makes of the fact that the Police Constable was not challenged on
the substance of the statement Rouse gave. Secondly, towards
the end of the passage, Birkett demands an answer to a question
which he thinks the witness is evading:
Q: You never did anything to try and help when the car was
burning?
A: I could not see if he was there for one thing.
Q: Do you swear that?
A: I swear that.
122 Advocacy

Q: Did you say in the first explanation you made: ‘I saw the
man was inside and tried to open the door?’
A: I cannot say that; I do not remember saying it.
Q: Detective Sergeant Skelly in this court gave evidence, and
it was not cross-examined on, that you said, right at the
outset: ‘… I saw the man was inside and tried to open the
door, but I could not, as the car was then a mass of flames.’
Was that true?
A: I did not go within several feet of the fire. I went towards the
opening of the door.
Q: Was that true?
A: No it was not exactly true; it was not true at all. I did not see
the man.

6.7 A choice of strategies for cross-examination

Probably the best way to illustrate some of the more effective
strategies will be to take some examples from past masters of
cross-examination.
We have noted that in the Rouse trial it was difficult for the
prosecution to establish a motive for murder. Much of Birkett’s
cross-examination, therefore, was aimed at demonstrating the
implausibility of Rouse’s story. What device does Birkett use, in
the following extract, to underline his message?
Q: You ran from 15 yards past the car, where you had been,
down towards the main road, and then turned back to pick
up your case?
A: I did not go as far as the main road – only to there.
Q: But towards the main road, and then turned back to pick up
your case?
A: Yes, two or three yards past the case.
Q: It was fortunate you remembered your case in your panic?
A: Yes. I believe I must have seen it.
Cross-examining 123

Q: But your panic was not so great you could not stop and pick
up your case?
A: Well, I think I saw it, to be quite frank.
One of the key limbs of the prosecution hypothesis in the Rouse
case was that this fire could not have started accidentally. It must
be remembered that the evidence was that the flames from the
car billowed 15 feet high into the air. Colonel Cuthbert Buckle, a
fire loss assessor and prosecution expert, gave evidence that
there had been an intense fire under the bonnet, and that it had
been a continuous fire fed over a period of time, without doubt
from the front of the car. Some of the brass parts at the front of
the car were fused; this would require a heat of 1,850˚F to be
applied for some time. Buckle found that the pipe which carried
petrol from the petrol tank to the carburettor was loose by one
whole turn of the nut. He loosened the same joint in another car
by the same amount; he found that the leak created produced half
a pint of petrol in one minute and 20 seconds.
Was Rouse able to contrive a fire of this intensity and
duration? Did he know how to create a leak in the car’s petrol
system in order to feed the fire for a period of time? Before
tackling Rouse on the cause of the fire, Birkett first had to deny
him the escape route of ignorance. Did Rouse immediately spot
the danger in Birkett’s line of questioning? Did he attempt to
evade the questions designed to establish his technical
capability? What are the three stages of this line of questioning?
Q: You know a good deal about cars?
A: I have had a good many cars.
Q: How many?
A: I should not like to say – quite a number.
Q: Different makes?
A: Yes – I have had two Fords, two Overlands – several cars –
two Morris Minors.
Q: Have you a garage?
124 Advocacy

A: Yes; I built it myself.

Q: With a working bench?
A: I should not quite give it that elaborate name. I use it as a
bench, but it is only a little slab of wood.
Q: Where do you do the working repairs?
A: Yes, I do repairs; but it was not a bench; only a slab of
wood.
Q: Where you do the working repairs. You have a fair working
knowledge of cars?
A: Yes, I think so; a fair working knowledge.
Q: You know all about the engine, and the petrol supply and all
the rest of it?
A: Yes.
Birkett has establish that Rouse ‘knows all about cars’. He then
moves to the issue of the petrol pipe with the loose nut:
Q: You know the union joint that has been referred to in this
case quite well?
A: Yes; I have never seen it quite close. As a matter of fact, it
is right underneath the car.
Q: You never had one loose before?
A: I have only had one previous Morris Minor car.
Q: You have never had, in any car, that union joint loose?
A: Yes.
Q: Leaking petrol?
A: Yes, before now.
Q: Did it come onto the floor of the car?
A: No, the Morris Minor is the only car that has had the union
in that position.
Q: You know perfectly well, do you not, that if you get a loose
joint there you can get quite a steady flow of petrol on to the
floor of the car?
A: If you had a very loose joint.
Cross-examining 125

Why does Rouse admit he knows enough to set a fire like the one
he is accused of setting? Is it candour (trying to stay as close to
the truth as possible), fear of what the advocate might know, a
reluctance to admit ignorance or a desire to show that leaking
union joints are a common phenomenon? Whatever his reason,
as soon as Rouse admits that he has experienced a leaking union
joint before, Birkett quickly follows with a leading question which
secures the admission he requires.
Rouse has now demonstrated knowledge of the means of
carrying out the alleged crime, a key part of establishing
opportunity. When reading this next passage, remember the point
made about a witness who lies; all their answers point one way.
Q: Do you doubt yourself that the flame came from
any other source than that joint?
A: That is a rather technical question.
Finnemore: With all respect, is that a question for this witness?
Judge: The witness is entitled to refuse to answer it if he
likes.
Birkett
continues: Leave it, Rouse. I wanted to put it quite plainly,
because I am going to suggest that one of the
places you lit that car was at that source.
A: I did not light the car. When you say ‘Lit the car’ is it
not evident to anybody that if I had lit the car,
anybody, especially as you admit I have some
knowledge of cars, to light petrol or petrol vapour
you get a flash of some considerable degree,
especially if you loosen a joint. You would have to
wait a minute or so before you strike a light, and in
that case you would get a flash, and in that case,
being near it, striking the match, would be singed;
and that is the first thing the police officers looked
at, and I offered my hands in the first place.
Q: You make the answer that you understand the
problem of lighting petrol quite well?
126 Advocacy

A: I have lit petrol, because I have a blow lamp at

home.
Birkett, in his closing speech, says of Rouse:
You might very well think an innocent man might say ‘I
really don’t know’, but he has got it (an explanation for
everything). He is resourceful, he cannot resist the
temptation to explain.

6.8 Ending a cross-examination

The ending of a cross-examination will be remembered by those
trying the issue of fact. For this reason, it may be important in
assessing the credibility of a witness. Consequently, a cross-
examination should not ‘fizzle out’. Even if the witness’s evidence
has not been destroyed, the advocate can still end on a high note.
The use of a line of insinuating questions is a good option for
closing the cross-examination of an important witness for the
other side. This is the end of Birkett’s cross-examination of
Rouse:
Q: I am suggesting to you that yours was the hand that fired
that car.
A: It was not.
Q: And that at the time you fired that car your companion,
picked up upon the road, was unconscious.
A: No.
Q: And that he was unconscious by your hand.
A: No.
Q: And that he had been thrown into that unconscious position,
face forwards, into the car which you were to light.
A: Most decidedly not. I should not throw a man. If I did a thing
like that, I should not throw him face forwards. I should think
where I put him, I imagine.
Birkett’s final point to Rouse was:
Cross-examining 127

Q: And you lied for two days.

A: The lies that you put to me I will admit; yes.

6.9 Cross-examining expert witnesses

An advocate cross-examining an expert may appear to be at a
disadvantage because he or she is generally asking questions the
answers to which lie in the expert’s domain, not his or her own.
However, assuming that the necessary preparation has been
done, there are several approaches which can be effective in
cross-examining an expert witness:
(a) narrowing the basis of the expert’s opinion to assumptions of
questionable validity, thus forcing the expert to adopt an an
illogical or extreme position;
(b) identifying the basis of particular assertions and examining the
assumptions underlying each element;
(c) demonstrating that the expert’s opinion was formed without
access to basic information or was based on inaccurate
information;
(d) showing errors in calculations; and
(e) ridiculing the status, experience or qualifications of the expert.
Hypothetical questions can be used for the first two of these
options. For example, if an expert says that concrete was
inadequate for use in a coach park, hypothetical questions might
show that it would be suitable for a car park. This establishes that
it is the use to which the concrete is put, rather than the concrete
itself, which is the basis of the expert’s opinion that the ‘concrete
is inadequate’.
The advocate has the choice of several styles of cross-
examination for experts; destructive, neutralising and utilising:
(a) destructive cross-examination attacks the witness on the
grounds of their credentials, their experience or their expertise;
128 Advocacy

(b) neutralising cross-examination leaves their credibility intact,

but marginalises the impact of their testimony; and
(c) utilising cross-examination uses the other side’s witness to
boost the credibility of your own expert.
Baldwin classifies these different styles of cross-examination in
terms of the degree of risk carried by different strategies:
Low risk strategies include:
(a) corroborating cross-examination: the expert is asked to agree
with points in your favour;
(b) discrediting cross-examination: exploiting strong material
suggesting lack of foundation for the expert’s opinion or
improbabilities in their opinion.
Medium risk strategies include:
(a) raising a question over qualifications: a mechanical engineer
may have technical qualification, but does it relate to the
specific problem?
(b) exploiting inconsistent testimony: previous answers
inconsistent with known facts, ordinary human experience or
with lay witness testimony;
(c) establishing that facts were not revealed to the expert.
High risk strategies include:
(a) probing with no particular aim;
(b) personal attack on the expert’s credentials;
(c) claiming lack of foundation for the expert’s opinion from weak
material (and, thus, arguing on the expert’s ground);
(d) emphasising only ‘your opinion’.
Baldwin (1984)

Let’s look at a fairly low risk strategy for cross-examination of a

medical expert. Assume that the defendant’s medical expert in a
personal injury case says in examination-in-chief:
Cross-examining 129

In my opinion, Mary Smith suffered no permanent injury as a

result of the accident on 5 May.
The expert’s advocate may continue by asking for the basis of the
opinion. He may not. He may know that his expert will stand up
well to cross-examination on this point. Instead, he wants you to
ask for the basis for the opinion. Your cross-examination may
struggle because you are being asked to embark on a high risk
strategy. You may sit down with the witness ahead. An alternative
is to continue as follows:
Q: Doctor; how many times did you examine Mary Smith?
A: One time.
Q: Doctor, would it surprise you if I were to tell you that Dr
Jones examined Mary Smith 23 times over the course of
two and a half years?
A: No.
Q: Is Dr Jones a respected member of the medical profession?
A: Yes, he is.
Q: Thank you very much, Doctor. That’s all I have.
Greenwald (1983)

(See, also, McElhaney (1977).)

Finnemore called forensic experts on behalf of Rouse, among
whom were Herbert Bamber and Arthur Isaacs. Both argued that
the fire could have started accidentally. Birkett cross-examined
the first, Herbert Bamber. What kind of cross-examination is this:
destructive, neutralising or utilising? What degree of risk do you
think it carries?
Q: Have you had much experience of fires with regard to motor
cars?
A: There are quite a number of cases where I have been
called in to try and find out the reason of certain car fires,
but that is all.
130 Advocacy

Q: Your principal avocation is collisions between motor cars, is

it not?
A: Not all together – crane accidents, and all sorts of
engineering matters.
Q: Again, in this particular region when you are called to give
evidence, it is usually upon a collision and the result of a
collision between two cars?
A: Yes, very frequently.
Q: As to fires in cars you have not had much experience in that
department?
A: Not as much as fire assessors, naturally. I myself would of
course pay the greatest respect to the opinions of men of
experience like Colonel Buckle [the prosecution expert].
Arthur Isaacs, engineer and fire assessor, volunteered evidence
for the defence having seen reports of the proceedings. The main
point he wished to make was that the finding that the nut on the
union joint was a whole turn loose was a phenomenon invariably
observed after intense fires. He explained that metal distorted as
it cooled to produce this effect. This was a witness with
considerable experience of car fires who also offered a plausible
explanation of how the fire could have started:
He [the dead man] puts his left knee on the seat of the car and
rests his hand on the steering wheel to pick up the can from the
driver’s seat. Lifting the can up it is possible that he overbalanced
and fell forward on his face, with the result that the petrol – I am
assuming the top was fairly loose – was spilled over the place – a
good deal of it – and from what he was smoking, a cigar or
cigarette, the fire would take place. The cigar would ignite the
vapour which would be made the moment the vapour mixed with
the air.
The next excerpt is taken from the cross-examination of Isaacs.
Remember in reading it that, whenever possible, the start of a
cross-examination should make an impact. The audience is most
alert at that point; the witness may be apprehensive; it is an
Cross-examining 131

opportunity for the advocate to secure a psychological advantage

and to fix an image of the witness in the mind of the jury. What
kind of cross-examination is this next example: destructive,
neutralising or utilising? What degree of risk do you think it
carried?
Q: What is the co-efficient of expansion of brass?
A: I am afraid I cannot answer that question off-hand.
Q: If you do not know say so. What do I mean by the term?
A: You want to know what is the expansion of metal under
heat?
Q: I asked you what is the co-efficient of the expansion of
brass. Do you know what that means?
A: Put that way I probably do not.
Q: You are an engineer?
A: I dare say I am. I am not a doctor, nor a crime investigator,
nor an amateur detective. I am an engineer.
And, later:
Q: If a nut is loosened, is it loosened because it is expanded
by heat and so be enabled to be loosened?
A: That is right.
Q: Therefore, do you not think it is important in telling a jury in
so important a case that conclusion, that you should know,
within limits, how much brass expands when subjected to
heat?
A: I do.
Q: But you do not know?
A: Yes, I tell them I do not know.
In his speech to the American Bar Association, Sir Norman Birkett
recalled that particular cross-examination
132 Advocacy

Any case of notoriety always brings out people from all parts of
the land volunteering to give evidence … And there was I rising to
cross-examine him, and whether it was inspiration or what it was I
do not know, but my first question to the man was certainly not in
the brief. I said: ‘Tell me sir, what is the co-efficient of expansion
of brass?’ And he didn’t know. I am not sure I did, but he couldn’t
ask me questions and I could ask him, and he didn’t know. And
from that moment of course, it was easy.

6.10 Cross-examining police officers

There are special difficulties in cross-examining police officers.
Gone are the days when their evidence is beyond suspicion and
rules for cross-examining police witnesses on their own credibility
are well established (see Archbold (1998), especially §8–127 to
§8–128). However, unjustified attacks on the honesty of police
officers will antagonise the court:
There is a growing tendency among some young advocates to
give vent to privately held views, often political in nature, by
questioning police officers in an openly insulting tone. An
emotionally motivated advocate always damages his own case.
Bartle (1983)

While recent experience shows that some police officers do lie,

remember that error is more common than dishonesty. Friendly
cross-examination is more likely to elicit acceptance of the
possibility of error. Your approach can be subtle; suspend
judgment until you hear what the officer has to say. If, for
example, the evidence of several officers bears remarkable
similarities, you might ask the following questions:
• have you discussed the case with colleagues?
• did you do that before or after making up your notes?
• how soon were the notes made up?
• what was the nature of the discussion?
Cross-examining 133

• who was there?

• was my client’s role in the incident discussed?
What progress you make will depend on the answers you get.
You might find that different officers give different responses to
the questions. That may, in itself, give you the material you need
for your closing speech.
Obviously, it is vitally important to be aware of the Codes of
Practice made under the Police and Criminal Evidence Act 1984,
as amended, because under s 78(1) the prosecution may be
denied the opportunity to present evidence which, in the
circumstances, ‘including the circumstances in which the
evidence was obtained’, would cause an ‘adverse effect on the
fairness of the proceedings’. Code of Practice C (governing
detention and questioning of suspects) and Code of Practice E
(governing the tape recording of statements) are particularly
relevant to the admissibility of confessions.

6.11 Re-examination
The right to re-examine your witness after cross-examination
arises only in relation to points covered in cross-examination.
Whether or not to re-examine is not an easy decision. You may
draw attention to points on which you think the cross-examiner
scored. You are not allowed to lead the witness and they may be
mystified about what it is you are hoping they will say. Your
mutual confusion may make the situation worse. Sometimes, you
may wish a witness to expand an answer which the cross-
examiner cut off. If a witness has given evidence in cross-
examination which you think was a slip of the tongue, you may
have to bite the bullet, particularly if the point was important.
The following is Finnemore’s re-examination of Arthur Isaacs,
in which he tries to undo the damaging insinuation against
Isaacs’s competence:
134 Advocacy

Q: Do you know, from a metallurgical point of view, why a nut

which is subject to intense heat, afterwards, when it cools,
is in fact loose? Do you know of the metallurgical
explanation or not?
A: No, I cannot say that I do.
Q: But you say, from your experience, that it happens?
A: Yes, in every case that I have had.
Q: You do not profess to be a metallurgist?
A: No, not at all.
Finnemore’s questions try to re-establish Isaacs’s credibility as an
expert. They suggest that Isaacs’s inability to answer Birkett’s ‘co-
efficient of expansion’ question is because it relates to knowledge
that is not part of his own discipline. Note the naming of the
discipline in question, ‘metallurgy’. Thus, the thrust of Finnemore’s
re-examination is that Isaacs is a competent engineer, not an
incompetent metallurgist.

6.12 Summary
• Always cross-examine with a purpose in mind and only
question enough to fulfil that purpose.
• Use probing questions to force the witness to commit to a
position.
• Be civil, but ensure you control the witness.
• Listen carefully to responses.
• Use a ‘hostile’ approach with caution.
• Try to end a cross-examination powerfully.
• Select from destructive, neutralising and utilising strategies
when cross-examining experts.
Cross-examining 135

6.13 End of chapter references and additional reading

Butterworths County Court Practice
(1998) Butterworths
Richardson, Archbold’s Pleadings, Evidence and
PJ (ed) Practice in Criminal Cases 1998
(1998) Vol 1 Chapter 8
Sweet & Maxwell
Baldwin, S Jury Argument
(1984) Trial Vol 20 No 4
Birkett, N ‘The art of advocacy: character and skills
for the trial of cases’
(1948) American Bar Association Journal Vol 34
Du Cann, R The Art of the Advocate
(1993) Chapter 6
Penguin
Greenwald, J Let Me Ask You This ... Some
(1983) Thoughts on Cross-Examination
Trial Vol 19 No 6
Hain, P Mistaken Identity:
(1976) The Wrong Face of the Law
Quartet
McElhaney, JW Cross-Examining Expert Witnesses
(1977) Litigation Vol 3 No 4
Munkman, J The Technique of Advocacy
(1991) Chapter 5
Butterworths
Murphy, P A Practical Approach to Evidence
(1992) Chapter 14
Blackstone
136 Advocacy

Stone, M Cross-Examination in Criminal

(1995) Trials
Butterworths
Younger, I A Letter in which Cicero Lays
(1977) Down the Ten Commandments
of Cross-Examination
Litigation Vol 3 No 2
 1

CHAPTER
137

7 Summarising and Concluding

Sincerity is the cornerstone of an effective jury address. Do not

be carried away by ostentation and flamboyance. Do not let the
jurors feel that you are trying to be superior to them. Do not talk
at them – reason with them.
Levy (1981)

7.1 The importance of summary

Even in the simplest case, in which there have only been 10
minutes of argument, there are merits in a short review of the
issues prior to a submission. Often, a Master will say to the
solicitors ‘Do you have anything more you wish to say?’ and both
will say ‘Master, no’. This is a chance to deliver the speech that
you will have prepared on the assumption that everything would
go well. You could respond by saying:
‘I am grateful Master. For me to succeed with this application I
must establish three things; first …’
Be concise, but show you know exactly what you are doing. Show
you expect to win. Make it difficult to turn you down. If the Master
had made up his mind, you might just change it. In concluding any
presentation to a court, it is important to review what has gone
before accurately and fairly. Some lawyers think that the result
has already been determined by the time any concluding remarks
are made. However, there are others who firmly believe in the
power of summaries to convince; moreover, there are, no doubt,
some cases in which the issues are so finely balanced that the
ending determines the outcome.

7.2 Closing speeches to juries

A closing speech to a jury should be prepared before trial; as with
any other closing submission, it should be based on what you
138 Advocacy

expect to have proved. Obviously, you will make adjustments

according to the evidence which has been presented. You will, for
example, be able to comment on the evidence given by particular
witnesses. The total effect of damage done by cross-examination
may not be obvious to the jury. Here is your opportunity to weave
the materials and evidence into coherent argument. The style
should be conversational, streamlined and functional. Your
oratory should not be ornate; your aim should be to convince the
jury that your client has a good case, not that you are a brilliant
advocate:
Argument must be approached from a practical standpoint, in
keeping with reality, as against the old notion that oratory is
golden and irrefutably persuasive.
Levy (1981)

In setting out to persuade, the ideal format would be one to one

discussion, the atmosphere would be solemn and you would be
earnest. While you need some emotion, keep this well under
control. James McElhaney has written about an incident in an
American case in which the defendant was charged with illegal
gun running. The defence advocate was using the device of the
rhetorical question to try to ‘weave a spell’ over the jury:
The defendant’s final argument was that the prosecution simply
had a ‘paper case’. The defence lawyer was trying to weave a
spell. He would pick up document after document, holding each
aloft while shouting the rhetorical question: ‘What does this
prove?’ Finally, to nail it down, he picked up a whole handful and
shouted: ‘What do they all prove?’ Juror number five answered
the defence lawyer’s question out loud: ‘Illegal dealing in guns?’
McElhaney (1985)

Would you say that this advocate’s mistake was:

(a) risky use of the rhetorical question; or
(b) trying to manipulate the jury?
Which would you say is the worse mistake?
Summarising and Concluding 139

If you have laid your emotional groundwork, you will have

identified and played to your emotional strengths throughout the
trial; now is the time for the logical argument which justifies the
jury’s emotional pre-disposition towards your case. Talk to each
member of the jury by maintaining eye contact with each one. You
can often assume that the jury will be split and that some will
convince the others. If you can identify potential leaders, you may
choose to look at them a little more frequently precisely because
you hope that they will be more persuasive. Do not let the jurors
think that you feel superior to them. Acknowledge, if you like, the
difficulty of their task.
One QC writes of a lawyer who, in his closing address,
warned the jury ‘not to play God’. The author was later told by a
juror that many members of the jury were deeply offended by the
remark.
Martin (1967)

Organise your material carefully. Every good jury address since

the time of Cicero has had three parts: an introduction; the
argument; and, finally, peroration (the last part of a lengthy
speech).

7.3 Closing speeches to juries for the defence

7.3.1 Introduction
The introduction may be used to underline the grave
responsibilities they have assumed and the dangers of erroneous
conviction.
You can reinforce this with an outline of the basic principles
which they are bound to apply, such as the presumption of
innocence. Remember that research in the US found that
successful defence lawyers often used vague language and
included discussion of vague concepts in their speeches (see
section 1.7). ‘Reasonable doubt’ is a classic example of a suitably
140 Advocacy

vague concept. In the first paragraph of his closing speech in the

Rouse case, Finnemore moved swiftly to the burden of proof:
You will perform this high task of citizenship committed to you on
the evidence which has been called in the case during this week.
I refer straight away to the main guiding and dominating issues in
the trial, and, I suggest to you, they show that the case for the
prosecution has completely broken down, falling utterly short of
that amount of legal proof which is needed. Rouse is entitled to a
verdict of acquittal …
You may wish to emphasise the important role that these basic
principles play in guaranteeing the civil liberties of the jurors as
well as those of your client. You may, at this stage, remind the
jury of the indictment and explain what the prosecution needs to
prove in relation to each part.
You may choose to attempt to convey confidence by telling
the jury what they should do. Some writers on advocacy warn
against this. It is human nature when someone says ‘You cannot
convict this man!’ to think ‘Oh yes we can’. However, if you weave
the judge’s likely instructions to the jury into your speech, their
confidence in you may increase when the judge repeats those
points. Hopefully, the instruction will also trigger recollection of
what you told them on that point.
You may choose not to dwell on the burden of proof, but,
instead, to be positive in advancing your own theory of the case.
Frank Cicero argues that saying ‘the prosecution have not proved
their case’ is not a psychologically appealing argument. What
does ‘reasonable doubt’ mean to a jury? What does it mean to a
lawyer, for that matter?
Cicero, De Oratore

Your introduction should also prepare the jury for your argument.
Wherever possible, refer to the client by name; do not refer to him
as ‘the accused’ or ‘the defendant’. By personalising your client, it
is probably easier to make points about his or her rights and the
Summarising and Concluding 141

jury’s duties to a fellow citizen. There may be particular

circumstances which need to be dealt with. Not every defendant
is a wholly sympathetic person. The jury may need reminding that
they are trying the accused for the offence charged and on the
evidence presented, not on press speculation, notoriety or
personal appearance. You should, however, have confidence that
the jury will do its duty. If you are able to present your client as
someone of ‘good character’, make the most of this. A jury will
readily accept that someone who has habitually maintained a
good record in his dealings will not suddenly change character,
either by committing an offence or by lying on oath.

7.3.2 The argument

You will review the evidence for both sides. In your review, you
should not go into the detail of what every witness said; instead,
summarise the main point of their evidence. Organise it in a way
which makes it accessible. Evidence presented in a haphazard
way is confusing and does not help you to make a persuasive
argument. If your review is difficult to follow, the jury may become
bored and stop listening.
A typical order for the argument stage is:
(a) destruction of case for the prosecution; and
(b) deploying evidence for the defence.
One way to begin your review is to go through the prosecution’s
case, highlighting those elements where the evidence falls short
of the required standard of proof. Appeal to the jury’s experience
and common sense. List the improbabilities of the prosecution
case; things which the jury would expect to be satisfied of if the
client was guilty. Often, this will involve subjecting the evidence to
quite minute analysis and advancing a theory of the case which
best explains that evidence. Here, for example, is a small part of
Lewis Hawser’s analysis in the Hain case:
The glasses are a crucial point in this case, and for this reason:
[boys 1 and 2] have said that they are quite certain that the thief
142 Advocacy

in Werter Road was wearing glasses. I am putting it to you that

they are quite wrong in this. I have not suggested that they lied
about it, but because they thought that the man in the
Volkswagen might be the same man, and he was wearing
glasses, they thought back and assumed that the first man had
been wearing glasses …
Hain (1976)

Notice how Hawser avoids calling the boys liars. This illustrates a
point well made by Keith Evans. Courts will invariably find
explanations of contradictions more acceptable where an
innocent explanation of the contradictions is plausible. This is
what Evans calls ‘showing them the way home’ – allowing the
court to reach ‘the right decision’ without having to decide that the
other side must be lying.
Evans (1992)

Improbabilities can be posed as questions both for the jury to

consider and for the prosecution to answer. This is particularly
effective when you know there is no answer. However, even when
there is a credible response, it forces the prosecution onto your
ground, and this may involve some adjustment of the prosecution
closing speech.
If the offence was robbery, for example:
(a) was any money found?
(b) was there evidence that the client had been spending large
sums of money?
(c) did the client need money for some purpose?
It may also be necessary to explain any adverse facts which may
trouble the jury. Anticipate any closing by the other advocate and
steal their thunder by confronting their best points. If there is
accomplice evidence against your client, for example, you might
find that this evidence is convincing. How can you best explain
that evidence? The accomplice was there; the only lie he needs to
remember is the one which implicates the accused. It is easier to
Summarising and Concluding 143

be convincing when telling only one lie. What is his motive for
lying? The motive might be grievance, the hope of a light
sentence for himself or protection of a friend. You should have a
good idea of which explanation the jury will find most plausible
after cross-examining the accomplice.
Having cast doubt on the prosecution case, outline the
defence theory of the case. Be careful not to refer to ‘the theory of
the case’ because, to a juror, this sounds like ‘lawyer speak’ for a
plausible story. You are not telling a plausible story; you are
telling the jury what really happened.
If the accused was not called to give evidence, it is probably
best not to mention this unless you are able to say that he gave a
full account in a statement and does not wish to add to this.
Where the accused does testify, this fact should be referred to
as a sign of his innocence. If the accused was a good witness,
you can suggest that ‘only an innocent man could withstand such
an excellent cross-examination’. If, however, the accused was a
poor witness, this can be explained by the strain which he was
undoubtedly under. Look at this short extract from Finnemore’s
closing speech in the Rouse case. What do you think is the
subtext of each sentence?
He has told his own story, though he was not bound to give
evidence, and he has been subjected for three hours to a minute,
searching and vigorous cross-examination. Nothing new came
out, and the story that he told remained as it started, and was, in
substance, the same story that he told in his statement at
Hammersmith. You might think that he was voluble and excitable;
you know from Dr Telling that is his temperament. He is suffering
from a head wound he received in the war and was facing the
most trying ordeal any man could be called on to face. You must
ask yourselves, is his story true? Panic is a well known thing, and
you all have sufficient knowledge of human nature to know that it
is not unlikely for some people, in the face of sudden emergency
and terror, to lose their nerve and, instead of helping, to become
possessed with the idea of getting away as quickly as possible …
144 Advocacy

In most cases, the accused will be spared having any criminal

record put before the court unless and until a finding of guilt has
been made. However, there may be instances where the defence
uses a criminal past as part of its case. One such example is the
Mancini trial, in which Birkett appeared for the defence. Birkett
used Mancini’s criminal record to explain his behaviour on
discovering his girlfriend’s battered body in their flat. Mancini had
destroyed evidence, carried the victim’s body around in a trunk
and tried to arrange an alibi before his arrest. Birkett’s explanation
for this conduct was that Mancini believed that the police would
think that he was involved in his girlfriend’s murder because of his
criminal record.
You may have the opportunity to bolster evidence which was
attacked by the prosecution. Alibi evidence, for example, will often
be provided by the family or friends of the accused and is liable to
be viewed with suspicion for that reason. This can be explained to
the jury in terms which they can readily understand. For example:
If any of you gentlemen were accused of having committed a
crime at three o’clock in the morning, is there anyone who could
prove where you were at that time other than your wife?
Martin (1967)

Sometimes you may have the luxury of time to prepare your

closing argument in advance. Advance preparation does not
mean that you should write out exactly what you would like to say.
You can use your time to think carefully about the organisation of
your material. You might, for example, use a topical approach,
looking at both defence and prosecution evidence in relation to
each incident. This was the approach adopted by Finnemore in
the Rouse case. Here is a topical map of his argument which I
have constructed based on his speech:
 Summarising and Concluding 145

Mind map of closing speech in the Rouse trial

Evidence for start of Car unattended; Position of body =

fire = inconclusive interfered with inconclusive

Been seen by PC
Prosecution No evidence of physical
forensic injury to victim

Proximity to village
Defence
4 EVIDENCE
Risk of recognition

Carburettor lid
3 No attempt to hide
blown off by fire
CIRCUMSTANCES
Petrol union joint
often loose after fire Burden of proof on prosecution
‘beyond reasonable doubt’ not met

5 1
INTRODUCTION 2
PERORATION Story ‘bizarre’
(1) incredible story ‘fictional’
(2) lack of motive ‘improbable’ MOTIVE?
(3) likelihood of panic ‘unbelievable’
(4) absence of evidence of
Wish to disappear
violence
(5) absence of evidence of
source of fire
(6) location of incident No evidence
having been seen Why?
by policeman shortly
before
Why murder?
146 Advocacy

7.3.3 Peroration
At this stage of the closing speech, the advocate may make a
final appeal to the emotions of the jury in a way which is
consistent with the mood of the trial and the evidence which has
been presented. Such an appeal must be finely judged. It should
never be overstated. Finnemore, in the Rouse trial, finished his
closing speech in this way:
But do not forget that your first duty is to that man, to see that he
is not convicted unless and until you are all convinced that the
evidence is so strong and so certain that it leaves in your minds
no reasonable doubt whatever.
Let me conclude by reminding you of your great responsibility.
You are the judges of this case and you alone decide it. I have
put the case for the prisoner before you, but I cannot share your
responsibility. My learned friend will sum up to you the case for
the prosecution, but he cannot share your burden. Not even my
Lord, who will direct you on the law and guide you, can share it
on the evidence. It is yours alone. And it is the individual
responsibility of each of you. When your foreman returns the
verdict, he returns it for all of you, but it is really 12 separate
verdicts for which each must account to his own judgment and
conscience. No man can be convicted in this country until all 12
jurymen say: ‘We are satisfied beyond all reasonable doubt.’
Consider your verdict, as you will look back on it in weeks to
come. You are the final judges and your decision is irrevocable.
Birkett’s closing speech in the Mancini trial is widely regarded as
a classic example of the art. His final three sentences provide a
flavour:
And members of the jury, in returning that verdict [‘Not guilty’] you
will vindicate a principle of law – that people are not tried by
newspapers, not tried by rumour, not tried by statements made of
love or notoriety, but tried by British juries, called to do justice and
decide upon the evidence. I ask you for, I appeal to you for, and I
claim from you, a verdict of ‘Not guilty’ … Stand firm.
What are the differences, in your view, in the style and substance
of these two examples of endings?
Summarising and Concluding 147

7.4 Closing speeches to juries for the prosecution

The prosecution case to a jury will follow a very similar sequence
to that outlined above. You will recall that research has shown
that the prosecution benefits from a direct approach and forceful
language (see, also, section 2.7); this display of certainty is no
doubt calculated to sweep away any doubt which the jury may
have about the case. Birkett, in his closing speech in the Rouse
trial, paid compliments to Finnemore for his handling of the
defence and continued:
… this evidence conclusively, decisively, completely, beyond any
human doubt, indicates that the accused, in the early morning of
the 6th November, in that deserted lane, committed a deliberate,
a calculated and a horrible murder. My learned friend says: ‘Let
the prosecution tell you the motive.’ The motive, if motive there
be, is locked in the accused’s own heart, and there is no power
under heaven which enables me to unlock it. My learned friend
has asked me to do an impossible thing – to satisfy you as to
motive. My learned friend says: ‘Let the Crown satisfy you
beyond all reasonable doubt where the light was put in the car.’ If
this was murder, there is only one man who knows with surety.
My learned friend says: ‘Don’t convict this man until the Crown
does the impossible …’
Analyse the extract above. What is it which makes it persuasive?
What is the significance of the content of the paragraph in relation
to its location in the speech as a whole?
Now ask the same questions about the following passage of
argument:
My learned friend put the accused before you as a truthful man,
despite the record of lies, invented, say the defence, because of
panic. But you may think that, in the accused, you have a man of
resource, and you may think that the decisive thing in this case is
the evidence that he gave. And you may test it by one or two of
the most important matters. After two days, this truthful man
made his statement to the police and said: ‘I saw the man inside
the car and tried to open the door.’ Did he make a mistake about
a thing like that? Then, in the witness box, he said: ‘I could not
148 Advocacy

get near it, I never saw the man, and the doors were both shut.’ Is
that the truth? … As to the time, you may make a mistake, as to
the precise place, you may make a mistake, and as to the
distance from a village, you may make a pardonable mistake; but
the dead man – the companion of the night – he did not make a
mistake …
Below there follows an example of Birkett’s use of a rhetorical
question. What, to your mind, is the significance of this rhetorical
question, posed by Birkett in relation to Rouse’s evidence, in
terms of: (a) presentation; and (b) substance?
One factor in this very remarkable case which you may consider
to be particularly remarkable is this: do you think, upon reflection,
that it is very remarkable that the accused had got a complete
explanation for the theory of an accident – namely petrol and
match?
Was this a ‘safe’ question in the circumstances? If so, what
makes it ‘safe’?
The jury in the Rouse trial took only one hour and 15 minutes
to find him guilty of murder. He was sentenced to death. His
appeal to the Court of Appeal was dismissed. On 11 March 1931,
the day after Rouse’s execution, a letter from Rouse was
published in the Daily Sketch. In it, Rouse admitted the murder. It
is curious how the detail confirms many of the tentative inferences
the prosecution had drawn. Rouse had intended to ‘disappear’.
The dead man was a vagrant whom he had offered a lift. He had
believed that fire would prevent identification and disguise the
forensic evidence. He also thought a fire would be less noticeable
on Guy Fawkes night, the night of the murder. He had strangled
the man, loosened the petrol union joint and taken the top off the
carburettor. He then doused the man with petrol and made a trail
of petrol to the car which he lit with a match. He had intended to
walk to Northampton and catch a train to Scotland. When he saw
the men on Hardingstone Lane, he knew his plan had miscarried.
He hesitated at the top of the lane before deciding to go back to
London.
Summarising and Concluding 149

7.5 Summary
• Prepare your closing speech before the hearing.
• Be brief but persuasive.
• Do not lecture.
• Divide your speech into introduction, argument and peroration.
• Explain how the adverse evidence should be interpreted.
• Finally, deal with the other side’s case and give an overview of
your own.
150 Advocacy

7.6 End of chapter references and additional reading

Cicero, F Non-Defensive Final Argument
(1982) for the Defence
Litigation Vol 8 No 3
Du Cann, R The Art of the Advocate
(1993) Chapters 10–11
Penguin
Evans, K Advocacy in Court
(1995) A Beginner’s Guide
Blackstone
Hain, P Mistaken Identity: The Wrong Face of the
(1976) Law
Quartet
Levy, EJ The Closing Address
(1981) by Defence Counsel
Criminal Law Quarterly Vol 24
Martin, GA Closing Arguments to the Jury
(1967) for the Defence in Criminal Cases
Criminal Law Quarterly
McElhaney, J Illegal Dealing in Guns
(1985) Breaking the Spell
Litigation Vol 12 No 1
 1

CHAPTER
151

8 Advocacy in Practice 1

Criminal proceedings

Example 1: making an application for bail

8.1 Context
Under the Bail Act 1976, as amended, there is a presumption in
favour of bail, and reasons should be given for refusing it. On an
application for bail, either the prosecution or the court can raise
objections; these usually emanate from the police. The defence
advocate will usually have an opportunity to cross-examine the
police officer on the reasons for the objection. The reasons
typically relate to the seriousness of the charge, the possibility
that the defendant will not appear at the hearing, the continuation
of enquiries or possible interference with witnesses. The defence
advocate will then make an application which addresses any
objection. In considering the application, the magistrates should
bear in mind not only the seriousness of the offence and the
safety of the public, but also the evidence against the accused.
Previous convictions should not be read out in court but must
be adduced in writing. Where the accused has a prima facie right
to bail, magistrates must give written reasons for refusal. If bail is
refused by magistrates, you should discuss with the client the
prospects of renewing the application at a later date. Application
can be made either to the High Court (s 22 of the Criminal Justice
Act 1967 and Rules of the Supreme Court Ord 79 r 9) or to the
Crown Court, where the accused is in custody for sentence or trial
in the Crown Court, or is appealing to the Crown Court (Criminal
Justice Act 1992). If bail is granted subject to sureties entering
undertakings, these undertakings can be entered into before the
magistrate. If sureties are not present in court, the undertakings
can be given later to the magistrates or their clerk, a police officer
152 Advocacy

who is at least of the rank of inspector or the governor of a prison

or remand centre (see, also, Bail Act 1976, Sched 1, para 9A).
Once bail has been granted, the prosecution can request that it
be reconsidered on the basis of fresh information (Criminal
Justice and Public Order Act 1994, amending s 5B of the Bail Act
1976) and that it should either be revoked or that new terms
should be imposed.

8.2 Preparing for a bail application

Since, for practical purposes, the first application for bail probably
has the best chance of success, choose your time well and
counsel your client accordingly. In preparing to make an
application, there are a number of sensible steps which should be
taken to give your client the best opportunity of being granted bail.
In addition to sureties, you will wish to investigate the possibility of
the client agreeing to the following:
(a) residence at a particular address (for example, with a relative
or at a bail hostel);
(b) giving an undertaking to keep away from a particular locality or
to report to a local police station;
(c) curfew; and
(d) surrender of passport.
From discussion with the parties involved, you should be sure that
you can answer the following questions.
First, once you have talked with your client, you should be
able to answer the following:
(a) what are the client’s previous convictions (if any)?
(b) has he ever committed an offence while on bail?
(c) can he provide security for bail?
(d) does he have a surety?
(e) is this an offence for which he is likely to be granted bail?
(f) is he likely to get a prison sentence (against which time spent
on remand will be counted)?
Advocacy in Practice 1 153

(g) what are the possible prosecution objections and what

conditions to bail might the prosecution set?
(h) does the client understand the implications of possible
conditions and is he prepared to accept them?
After talking with the proposed surety, you should be able to
answer the following:
(i) does the surety understand the implications of standing as
surety?
(j) how much can he raise and from what source?
(Note: courts prefer a surety to have readily accessible money;
not, for example, the equity in a home.)
(k) what is his relationship with the accused?
(l) does he understand the consequences of the accused
absconding?
(m)what capital/savings does he have?
(n) what other liabilities does he have?
(o) how soon could the money be made available?
If there is a probation officer, you should ask:
(p) does he anticipate any problems or objections and how can
these be met?
(q) has he any practical suggestions for changing the client’s
circumstances in order to meet possible conditions?
(r) can he offer any practical assistance in improving the client’s
prospects?
(s) you might also ask the officer in the case whether the client
has ever absconded or committed offences while on bail.
At this point, you should evaluate the case and ask yourself: how
realistic are the prospects on this charge, with these facts, with
these antecedents and with the proposed sureties?
Next, you should discuss the case with the prosecutor:
(t) ask for details of evidence against your client;
154 Advocacy

(u) check antecedents against your client’s account;

(v) ask for details of possible objections to bail;
(w) suggest bail conditions which may address these concerns (if
appropriate).
Make a final analysis of arguments for and against granting bail:
(a) was the alleged offence likely to be a ‘one off’?
(b) have the client’s circumstances changed and, if so, how?
(c) how might any change in circumstances make the client a
‘good risk’?
(d) how strong is the case against your client?
Be realistic:
(e) deal with the circumstances of the offence, underlining any
positive points in your client’s favour, particularly the strong
chances of acquittal or the limited likelihood of a custodial
sentence;
(f) outline any circumstances which would support the notion that
your client will appear at subsequent hearings, for example,
family, employment or community ties;
(g) propose conditions which will address legitimate concerns
about this client’s entitlement to bail;
(h) deal with consequences of refusal for employment, family, etc.

8.3 Structure
The structure and content of a bail application depend to a large
extent on the practice of the particular court and the objections
which are raised to bail.
Having heard the objections, you will then need to respond to
them in a logical order or, if there is one main objection, break it
down into its component parts and deal with each in turn.
Advocacy in Practice 1 155

If you have been forewarned of objections, you will be able to

plan a structure for your response. Whether or not this has been
possible, you may wish to begin by challenging the validity of the
objection(s).
In some cases, however, you may feel that such a challenge
is unlikely to have any real chance of success. In such cases, you
should concentrate on measures which can meet the objection.
Finally, you will draw attention to the defendant’s personal
circumstances and the personal, domestic and employment
consequences of a decision to deny the defendant his liberty.
At the end of your speech, you will introduce any sureties.

8.4 Style
In bail applications, it is important to remember that the court may
have legitimate concerns about granting bail to your client. This is
one of those occasions where subtlety usually prevails over a
strong presentation. The court may need to be re-assured that the
decision to grant bail will not be one they might regret. Napley
advises that:
When applying for bail, both in cross-examination and argument,
remember that your best chance of success lies in displaying
such moderation and responsibility that the objections are made
to look more unreasonable and unjust.
Napley (1991)

Example 2: making a plea in mitigation

Bartle describes the plea in mitigation as ‘probably the most
important function of the advocate at the magisterial level of the
judicial structure’. A plea in mitigation is made after conviction on
a ‘not guilty’ plea or after a plea of guilty. Even if your client is
pleading ‘not guilty’, it is wise to prepare the plea in mitigation in
advance, in case the defence is not successful.
156 Advocacy

8.5 Context
8.5.1 The Criminal Justice Act 1991
The Criminal Justice Act 1991, as amended, aims to provide ‘a
coherent framework for the use of financial, community and
custodial punishments’. The main points relevant to mitigation
are:
(a) the guiding principle for deciding sentence is proportionality of
custodial sentences to the gravity of the offence;
(b) pre-sentence reports (see section 8.6) prepared by probation
officers are now mandatory, except in limited circumstances;
(c) the court may not pass a custodial sentence unless the
requirement of ‘seriousness’ is satisfied (see section 8.5.2),
where:
• the offence is a violent or sexual offence, and a custodial
sentence is necessary to protect the public;
• the court combines two offences, provided that these two
offences are ‘associated’;
• where a community sentence is justified, the accused’s
consent to a community sentence has been refused
where such consent is required;
(d) the Act is generally intended to increase the use of non-
custodial sentences by an increased use of community orders
as alternatives to custody; and
(e) fines are now more closely related to ‘ability to pay’.

8.5.2 Who hears a plea in mitigation?

Magistrates hear cases which must be tried summarily. The most
serious offences, such as murder or robbery, are heard by a
judge and jury in the Crown Court. With offences which are triable
either way, magistrates may proceed with committal proceedings
if they feel their powers of sentencing are inappropriate for the
particular offence. Alternatively, they may hear the case and then
Advocacy in Practice 1 157

commit it to the Crown Court for sentence. Broadly speaking,

magistrates convicting an adult offender of one offence which
would have been triable on indictment may impose a sentence of
six months imprisonment and/or a fine of up to £5,000 for any
offence triable either way. In relation to two or more offences,
magistrates can impose an aggregate term in prison of 12 months
and/or fines of £5,000 for each offence. In considering the gravity
of the offence, it is these powers which they will have in mind.
(See, also, Emmins on Criminal Procedure (1997).)

8.5.3 Criteria for sentencing

A speech in mitigation should address the court on the scale of
the gravity of the offence, and it should bring to the attention of
the court relevant mitigating circumstances. An advocate should
prepare and deliver a plea in mitigation with a clear understanding
of the legislative framework within which sentencing takes place.
It is equally important to be aware of the manner in which judicial
discretion may be exercised.
Section 1(2) of the Criminal Justice Act 1991 allows the court
to pass a custodial sentence only where the offence and one
other offence associated with it are so serious that only a
custodial sentence can be justified.
In all cases, the most severe sentences must be reserved for
the ‘worst examples’ of the particular offence. The provisions in
relation to young offenders should be noted (Wassik and Taylor
(1991)). The scale of sentences for offences of each type is
deduced from the decisions of the Court of Appeal in similar
cases. Two cases are rarely identical in all their circumstances
and there is always a discretionary element in sentencing
decisions. The Court of Appeal’s sentencing decisions do not
create precedents as such; they offer guidelines.
According to Bartle (1983), magistrates are predisposed to
impose a custodial sentence in cases involving:
(a) violence causing injury to people, particularly to police officers
or other public servants carrying out their duties;
158 Advocacy

(b) possession of an offensive weapon, particularly where the

weapon is a knife;
(c) supplying, or offering to supply, a ‘Class A’ drug;
(d) theft by an employee from an employer;
(e) prolonged course of fraud or dishonesty;
(f) commission of a further similar offence during the currency of
a suspended sentence; or
(g) certain crimes outraging public morals, such as living on the
earnings of a prostitute or sale of pornography at great profit.
The Criminal Justice Act 1991 gives no guidance on the
identification of specific offences which are serious enough to
justify custodial sentences, although s 29(1) provides that neither
previous convictions nor failure to respond to previous sentences
shall be considered as reasons for a custodial sentence.
Following the Act, the options for sentencing are:
(a) absolute or conditional discharge;
(b) supervision order;
(c) attendance centre order;
(d) curfew order;
(e) probation order;
(f) community sentence order;
(g) suspended sentence; or
(h) immediate custodial sentence.
Offence seriousness is the sole criterion for deciding whether a
‘community sentence’ should be imposed. There is the additional
criterion of public protection before sentencing an offender to
custody for violent or sexual offences.
The sentence should be proportionate to the gravity of the
offence. The sentence should not be increased beyond the
appropriate point on the scale simply because the defendant has
Advocacy in Practice 1 159

previous convictions or has pleaded not guilty. Previous

convictions do not increase the ‘seriousness of the offence’.
However, before the Criminal Justice Act 1991, there was some
evidence that judges occasionally increase the tariff sentence
because of aggravating features. Under s 2(2)b of the Criminal
Justice Act, the court can increase the length of the sentence for
violent or sexual offences to such longer term (not exceeding the
statutory maximum) as is necessary to protect the public.
However, in general, the effect of previous convictions is more
likely to be a decrease in the potency of any mitigation.
The longer and more regular one’s pattern of offending, the less
mitigation one can expect. This progressive loss of mitigation
continues to the point at which there is no mitigation to be lost.
Fitzmaurice and Pease (1988)
(See, also, May LJ in R v Fraser (1982) 4 Cr App R (S) 254.)
Having established the appropriate maximum sentence for the
particular circumstances in which the offence was committed,
mitigation potentially reduces the sentence below the standard
sentence for those circumstances.
Emmins on Criminal Procedure (1992) identifies three ways in
which mitigation can affect sentence:
(1) reduction of punishment (shorter prison sentence, smaller fine
or fewer hours of community service);
(2) different form of punishment (community sentences instead of
prison); and
(3) alternative to punishment (hospital orders).
Under s 3(3) of the Criminal Justice Act, information about the
offender must not be taken into account in determining the length
of a custodial sentence. However, the court must take into
account information about the offender in deciding which
community order or orders are ‘most suitable for the offender’
(ss 6(2)(a) and 7(2)).
160 Advocacy

8.6 Procedure
After a plea of guilty or a finding of guilt, there are three main
stages before sentence is passed.
First, the prosecution will make a statement outlining the facts
of the case. In the Crown Court, this statement will be based on
committal statements and will contain relevant details about the
offence and the arrest and questioning of the accused by the
police. The prosecution are under a duty to present the
circumstances fairly. Nevertheless, they will concentrate on any
features which suggest that this is a ‘bad’ example of this type of
offence. On some occasions, it may be necessary to challenge
facts alleged by the prosecution. If, after a not guilty plea, it
appears that the defence is denying facts which are necessary
elements of the charge, the defendant will be invited to change
his plea. If the offence is admitted, but aggravating features are
denied, the judge should hear the evidence on the point or hear
submissions from the advocates in order to resolve the conflict. If
the judge does base a decision on submissions though there is
conflict in the different versions of the facts, the defendant’s
version should be preferred wherever possible.
However, the judge should hear evidence where there is a
dispute as to facts which could affect sentence ( R v Newton
(1982) 77 Cr App R 13). If the judge does have a ‘ Newton
hearing’, and decides against the defence on the disputed facts,
the accused may lose some of the mitigation he might receive for
a guilty plea.
Emmins on Criminal Procedure (1997)

Next, police evidence is taken regarding the defendant’s

character (previous convictions) and antecedents (background
and circumstances). The police officer, having taken the oath, will
read out the information or answer leading questions from the
prosecution advocate. In the magistrates’ courts, the procedure
may be less formal, with a Crown Prosecution representative
merely handing in a list of previous convictions. It is the intention
Advocacy in Practice 1 161

of the Act that antecedents should play a smaller part in

determining sentence. However, it is not clear to what extent the
principle of ‘progressive loss of mitigation’ has been retained by
s 29(1) for repeat offenders (Wassik and Taylor (1991), p 27; see,
also, Criminal Justice and Public Order Act 1994).
Under the Practice Direction [1966] 1 WLR 1184, the
antecedents cover:
(a) the accused’s age and date of birth;
(b) his or her education and previous and present employment;
(c) the date of the arrest and details of whether he or she has
been detained or bailed since arrest;
(d) a summary of his or her previous convictions and the date of
last discharge from prison; and
(e) his or her domestic circumstances.
The defence may challenge any information given in the
antecedents, in which case, the prosecution must establish the
particular fact by producing evidence.
The next stage is for the court to call for pre-sentence reports.
The Criminal Justice Act 1991 requires that the court obtains and
considers a pre-sentence report before imposing a custodial
sentence (s 3(1)) or making a probation order with additional
requirements, a community service order or a combination order.
Pre-sentence reports are prepared by probation officers, who
are bound to offer a ‘professional and impartial assessment of the
offender’s family, education and employment background and of
social, motivational and other circumstances related to the
offending’. Under s 6(7), the report should include indications of
‘suitable’ community orders which might be made. However, the
report will generally avoid recommending particular kinds of
sentence.
Any character witnesses should be called to give evidence at
this point.
162 Advocacy

Finally, the defence will present its plea in mitigation before

sentence.

8.7 Lessons from research

Empirical research on sentencing can provide useful clues for
preparing a successful plea in mitigation. In The Psychology of
Judicial Sentencing , Fitzmaurice and Pease list a number of
factors found in other research. Aggravating features typically
relate to the way in which the crime was committed. Most of the
mitigating factors relate to the personal characteristics and
circumstances of the offender. Note that some factors appear in
both lists. This is because many factors have two faces. The fact
that a victim was a friend, for example, is aggravating (breach of
trust) and mitigating (the offender may not be a risk to the public
at large). How to use these factors, therefore, depends on the
circumstances of the case.

Aggravating factors

Offender continued criminal activity after arrest.

Offender showed erratic/irrational behaviour in offence.

Offender showed bizarre/depraved behaviour in the offence.

Police state arrest was difficult.

Offender under influence of drugs at time.

Offender under influence of alcohol at time.

Offender a person of high status in community.

Offender a person of no fixed abode.

Instant offence repeats an earlier offence.

Instant offence is of different type from earlier.

Military record shows proven military crime.

Offender does not express remorse, for example, found guilty, but pleaded not
guilty.
Advocacy in Practice 1 163

Victim was particularly vulnerable.

Injury to victim was unusually extensive.

Damage to property was unusually extensive.

Multiple injuries to victim.

Victim is/was friend.

Victim is relation.

Victim presses for heavy penalty.

Evidence of planning of the crime.

Much similar crime in district lately.

Mitigating factors

Offender is younger than usual for this crime.

Offender offers/has made restitution.

Offender assisted law officers in solving other crimes.

Offender has exceptionally good employment record.

Offender had been drinking at time.

Offender of low intelligence.

Offender’s wife a serious problem/family difficulties.

Prior mental treatment.

Physical handicap of offender.

No arrests or convictions.

No arrests or convictions except as juvenile.

No previous crimes of same kind.

No previous crimes, but only arrests.

Provocation seems likely.

Victim is/was a friend of offender.

Victim asks for leniency.

164 Advocacy

Political motive for crime.

Others involved apparently leaders.

Property recovered by police.

Prison would cause exceptional hardship to offender’s dependants.

Fitzmaurice and Pease (1988)

Under the Criminal Justice Act 1991, s 3(3)(1), the court must
take into account all known circumstances of an offence, both
aggravating and mitigating, but, when deciding whether or not the
sentence should be custodial, the defendant’s background is
immaterial except in so far as it impacts on the circumstances of
the offence as an aggravating factor. It seems likely, however,
that future clarification will allow other mitigating points to be
made before a custodial sentence is passed.
Thomas (1992)

For the present it is assumed that relevant considerations may

include provocation, lack of premeditation and ‘pressure akin to
duress’. (Wassik and Taylor (1991), p 25). However, s 28(1) of the
Criminal Justice Act gives the court a discretion to consider
mitigating factors which do not relate to the seriousness of the
offence. It is, therefore, thought that the courts will continue to pay
regard to the range of personal circumstances which are often
included in mitigation speeches.
Emmins on Criminal Procedure (1997)

Research carried out prior to the Criminal Justice Act 1991

analysed the factors mentioned in a sample of mitigation
speeches. Circumstances relating to the offence were more likely
to occur in speeches where there was a plea of guilty because the
circumstances of the crime were not previously before the court.
In order of frequency, these factors were:
(a) has job/good job/in work now;
(b) good work record;
Advocacy in Practice 1 165

(c) minor role/part played by defendant;

(d) sorry/apologises/contrite;
(e) co-operated with police/admitted offence;
(f) settled relationship with family/family responsibilities;
(g) no previous conviction;
(h) minor offence of its type;
(i) kept out of trouble since last offence some time ago;
(j) relatives present in court;
(k) drink/judgment marred by drink;
(l) accepts must be punished/go to prison/offers compensation;
(m)defendant was in financial difficulties. Has pleaded guilty;
(n) unlikely to do it again (view of others). In custody now.
There is a striking correlation between these factors and those
traditionally appearing in pre-sentence reports (see section 8.4).
Emmins regards four types of mitigation as ‘especially common
and cogent’: age; previous good character; a plea of guilty; and
co-operation with the police. More can be said about each of
these and you are recommended to consult a specialist text (see,
for example, Emmins on Criminal Procedure (1997)). In general,
the value of tables like these is that they are indicative of what
experience has revealed are successful mitigation points.

8.8 The audience

Research shows that magistrates’ sentencing objectives do not
vary significantly according to sex, age, education or religious or
political affiliation. Further, whatever their sentencing objectives,
their perceptions of the appropriateness or effectiveness of
various sentencing options are reasonably consistent. A large
majority think that prison has no ‘treatment value’; instead,
imprisonment is the sentence chosen to mark the seriousness of
the offence, or to protect society or as the last resort where the
166 Advocacy

offender has failed to respond to other forms of disposal, for

example, probation or community service. The most significant
factor influencing the choice of probation is the potential benefit to
the offender. Community service represents a halfway house;
67% of magistrates regard it as an effective treatment and 47%
regard it as punishment. However, the major factor in choosing
community service is the belief that the offender can benefit from
it.
Henham (1990)

The Criminal Justice Act was intended to increase the punitive

aspects of ‘community sentences’ and to reduce the relevance of
a failure to respond to other forms of disposal (see s 29(1)).
Different magistrates are responsive to different points which
may be made in mitigation. Some courts even develop
reputations for particular propensities; a folklore builds up
whereby experienced advocates will say: ‘Such and such a court
is tough on drink driving.’ If you have experienced colleagues, you
should ask them about their experience of the court in question.
Be conscious that their perception is personal to them; it is always
worthwhile you sitting through a morning in any court where you
may have to conduct advocacy on a regular basis.

8.9 Preparation
In preparing a plea in mitigation, you should take the following
steps:
(a) consider the charges and any statements;
(b) interview the client to discover his version of events and his
views on the case;
(c) consider whether the offence/s have been committed;
(d) consider the appropriate plea;
(e) warn your client of any difficulties in a ‘not guilty’ plea;
Advocacy in Practice 1 167

(f) warn your client they must not plead guilty if they did not
commit the offence;
(g) work out what the prosecution alleges are the circumstances
of the offence; and
(h) if the plea is ‘guilty’, discuss whether there are any mitigating
factors which should be brought to the attention of the court.
You may run through a checklist of possible factors:
(1) advise on the likely impact of mitigation with regard to
the circumstances of the crime and previous offences;
(2) consider whether any character witnesses are willing
to give evidence, what they would be prepared to say
and whether or not their evidence would be beneficial
(are they of ‘good character’?); and
(3) if your client is remanded for a pre-sentence report,
advise on the effect of the report and impress on the
client that this may be an opportunity to improve his
position, for example, by getting a job.
You should analyse the aggravating features of the crime. Ask
yourself the following questions:
(a) does the accused accept the facts asserted by the prosecution
or might a ‘Newton hearing’ be necessary? (See section 8.6.)
(b) what is the maximum sentence for an offence of this type and
what sentencing guidelines are there, if any?
(c) what would be ‘the worst type’ of this kind of offence?
(d) what factors indicate that this is not an offence of the worst
type?
(e) what aggravating features, if any, are there?
(f) what factors suggest a custodial sentence may be necessary?
(Do the public need to be protected from this defendant?)
(g) what mitigating features are there?
(h) what sentence is the court likely to pass on this defendant?
168 Advocacy

8.10 Structure of a plea in mitigation

Many advocates structure the plea in mitigation around comment
on the antecedents and the facts of case. They then move to
consider the sentence which is appropriate in the particular case.
It is a general principle that, whereas prosecuting counsel must
never refer to sentence, the pleader in mitigation should try to
suggest an appropriate course of action to the court.
Hyam argues against this ‘compartmentalised approach’. He
suggests that pleas in mitigation should flow entirely from
sentencing guidelines, the facts being subordinate to the
argument rather than its basis. This is, in essence, a topical
organisation based on convincing the court that the
circumstances of the crime suggest a sentence which is less
severe than the norm for that offence. All facts or matters which
do not ring true, cannot be corroborated or which are unrelated to
sentencing guidelines should, Hyam suggests, be omitted, or at
the very least treated with extreme caution. This approach is
certainly consistent with the aims of the Criminal Justice Act 1991.

8.11 Content
The content of a speech in mitigation depends on the
circumstances. You may wish to focus on the background
reasons why the accused committed the offence or his prospects
for the future. Employment, reconciliation, marriage or parenthood
are all circumstances which offer reasons why offenders may wish
to change the present direction of their lives.
If the crime was one of violence, provocation or there was a
pre-existing relationship with the victim, such circumstances may
suggest that the defendant is not a risk to the public at large.
Remorse, particularly coupled with guilty plea, is good mitigation.
Signs of remorse are generally more potent than expressions of
remorse. So, for example, where compensation has been offered,
the magistrates may be more inclined to defer sentence to allow
the defendant to make restitution or to impose a fine coupled with
Advocacy in Practice 1 169

suspended sentence. Where recompense has been made, it is

wise to have some evidence of this in court.
Issues of race and gender have for some time been the
subject of some controversy and suggestions that women and
ethnic minorities are disproportionately punished are not
uncommon. Section 95 of the Criminal Justice Act requires the
Secretary of State to publish information to help courts to perform
‘their duty to avoid discriminating against any persons on the
ground of race or sex or on any other ground’. Whether or not the
advocate chooses to gently remind the court of this ‘duty’ is a
question of whether or not the issue of race or gender may be
made relevant to the circumstances of the offence.
Much should be made of the previous good character of the
accused; this applies to both the client and his witnesses. The
consequences for the accused’s dependents of his imprisonment
are also of some relevance. There is little strength in an argument
for a return to the family if the wife and children are beaten by the
accused. For the same reason, the presence and support of the
accused’s family is helpful. Concentrate on the circumstances of
the offence and persuade the court of the accused’s remorse,
good intentions and willingness to co-operate if, for example, a
community sentence is imposed. Since the most common
disposal is a fine, it is worth taking instructions on the amount
(including possible compensation) which the accused could afford
each week. It is also important to understand the method of
calculating ‘unit fines’. (See Wassik and Taylor (1992), especially
para 3.2; on content, see, also, section 8.8.)

8.12 Style
8.12.1 Balanced argument
Avoid resting everything on one argument, but try to avoid being
seen to throw everything in; ‘the same old litany of excuses’ is not
persuasive. Do not automatically adopt any recommendations
which appear in reports before the court; be realistic. It may be
170 Advocacy

that the probation officer is inexperienced and is over-optimistic in

suggesting probation for the particular offence. Note carefully any
questions which the court asks the probation officer; this will often
give you an indication of the court’s views on sentencing
possibilities.
You may lose credibility if you fail to recognise a problem and
cannot independently support an argument for a result that you
propose. If you appear frequently in the same court, your
credibility is a vital asset. It is your professional responsibility to
maintain it. You may recognise that the bench would regard a
prison sentence as necessary so as to mark the gravity of the
offence. Having accepted that premise, you can then go on to
argue that the sentence should be suspended. Mitigating
circumstances can often be woven into a submission based on
sentencing guidelines. This will avoid the pitfalls of a presentation
which seems all too familiar to the bench.

8.12.2 Attitude
It is obvious that you must appear as if you believe completely in
this defendant and in what you say. However, beware conveying
the impression that you are ‘sympathetic to crime’ or a ‘defence
hack’; avoid slang which suggests a lack of professional
detachment from offenders.

8.12.3 Links and phrases

Remember to outline your objective at the start, for example,
‘… Sir, I shall try to persuade the court that a fine would be an
appropriate sentence in these circumstances’; then move to the
circumstances of the offence, for example, ‘… my client accepts
that this is a serious offence and sincerely regrets his
involvement. However, I think there are several factors which
suggest that this is not a case at the higher end of the scale …’.
Then mention any good points in mitigation, for example, ‘… Sir,
you will have noted that not only did my client plead guilty but he
Advocacy in Practice 1 171

assisted the police in the recovery of the goods …’. Conclude by

noting your best points and suggesting an appropriate course of
action.

8.13 After sentence

It is good practice to explain to your client the implications of the
sentence. This may require some anticipation and research on
your part. Part II of the Criminal Justice Act 1991 introduced a
scheme for release from prison on licence. Archbold summarises
the period which the offender may expect to serve in prison (see
Archbold (1999)). The client may also need some explanation of
the practical consequences of the sentence, for example, where
to pay the fine, what will happen if it is not paid or if there is a
breach of a conditional discharge.

Practice exercise: planning a plea in mitigation

Prepare a plea in mitigation based on the following documents.
You may find it useful to practise presenting the plea, using a
colleague as ‘judge’ and others to observe and offer constructive
criticism of your performance.
[Y = year M = month]
Assume that the offence was committed in M 0.

Background
Lorna Bee pleaded guilty in M 2 at Anytown Magistrates’ Court to
a charge of theft from ‘Mothers’ Ware and Baby Care’, a self-
service store in the Anytown Shopping Centre. She was observed
by an assistant hiding items of children’s clothing under a large
overcoat. The overcoat was placed over her arm and she carried
a plastic bag under the coat. She was stopped just outside the
store by the assistant and was found to have an adult’s patterned
skirt and two pairs of children’s dungarees (size for age 4–5). The
total value of these items was £98 and there were no other items
172 Advocacy

in the bag. The bag itself was from another store in the Shopping
Centre. She refused to return to the store and a fracas developed,
during which she struck the assistant across the face. A security
guard from the shopping centre arrived and Lorna was escorted
to the manager’s office while the police were called.

ANYTOWN POLICE

Convictions recorded against............. CRO No........................

Charged in name of........Lorna Bee........

Date Court Offences Sentence Date of release

Y4 Anytown Theft Fined £50
Probation
Y2 Anytown Possession Probation
cannabis

Pre-sentence Report
to the
Anytown Magistrates’ Court
Name:...Lorna Bee.... Age........2 2..........
Address.........................
DoB......1.8.1970.....
Present Offence(s) (i) Theft
(ii) Assault

1 Lorna Bee is known to me, having previously been on

probation for six months in connection with a conviction for
theft in Y 4 and for one year following a conviction for
possession of cannabis in Y 2.
Advocacy in Practice 1 173

2 She is currently living in a flat on the Anytown Estate. The

accommodation comprises a sitting room, kitchen and
bathroom. Ms Bee sleeps on a convertible bed in the sitting
room.
3 Both Ms Bee’s parents are dead, her mother dying when she
was a child and her father dying five years ago. She has a
married sister, Gwen, who is four years older than her and
who lives in Nothertown, a 15 minute bus ride from Ms Bee’s
flat. Ms Bee is close to her sister who virtually cared for the
family after their mother died. Ms Bee had a regular boyfriend
whom she stopped seeing in M 3. In M 1, she discovered that
she was pregnant by this man, but she has not told him and
has no desire to re-establish the relationship.
4 Ms Bee left school at the age of 16 having gained four CSE
passes, one at Grade 1. She is currently employed as a
counter assistant in the delicatessen of ‘Grocery Superstore’ in
the Anytown Shopping Centre. Only part time work is currently
available to her there and she works three mornings a week.
Her net pay is £60 per week. She had hoped to obtain full time
employment and has been promised this by the store manager
when the next vacancy arises. Her rent, inclusive of services,
is currently £25 per week. Her first conviction was for theft
from her employer. She is a bright woman who has recently
enrolled at Anytown Further Education College to study law
and sociology ‘A’ levels part time. She is hoping to go onto
higher education in due course.
5 This is Ms Bee’s third offence. She has previously responded
well while on probation. She tells me that she had no intention
of taking anything from ‘Motherware and Babycare’. She had
finished her morning shift and was merely wandering around
the shopping centre ‘in a kind of daze’ before going back to
her flat. She says that she has been concerned about how she
would provide for her child and was feeling anxious and
disorientated that morning. She does not deny that she placed
items in her bag or that she intended to avoid paying for these.
174 Advocacy

She was still feeling in a trance like state when the shop
assistant grabbed her arm. She admits that she is impulsive
and reacted badly to what she regarded as the unpleasant
manner of the shop assistant who was calling her names and
pulling her back towards the shop. She deeply regrets her
actions. She is anxious and concerned about her pregnancy,
about how she will provide for herself and her baby and how
the child’s arrival will interfere with her educational plans.
6 A further probation order would provide Ms Bee with the
opportunity to closely examine the reasons for the type of
impulsive offence within the context of this office’s ‘Offending
Behaviour Group’. A new weekly programme for women starts
at the beginning of next month and lasts for a period of six
weeks. Individual supervision would subsequently be provided
and would provide the support that Ms Bee needs in relation to
the birth of her child and encouraging her to continue her
studies.
A suitable community placement would also be available for
Ms Bee and, after the birth of her child, she could be assisted
with making suitable childcare arrangements.

1 Present a plea in mitigation based on the brief facts appearing

here.
2 Consider what evidence you may wish to call:
(a) as prosecutor; and
(b) as defence advocate.
Advocacy in Practice 1 175

8.14 End of chapter references and additional reading

Richardson, Archbold’s Pleadings, Evidence
PJ (ed) and Practice in Criminal Cases
(1998) Chapter 5
Sweet & Maxwell
Bartle, RP Advocacy in the Magistrates’ Court
(1983) Law Institute Journal Vol 57
Chapman, J Interviewing and Counselling
(1993) Cavendish Publishing
Sprack, J (ed) Emmins on Criminal Procedure
(1997) Chapter 1
Blackstone
Fitzmaurice, C and The Psychology of Judicial
Pease, K Sentencing
(1988) St Martins
Henham, RJ Sentencing Principles and Magistrates’
(1990) Sentencing Behaviour
Avebury
Holin, CR Criminal Behaviour: A Psychological
(1992) Approach to Explanation and Prevention
Falmer
Hyam, M Advocacy Skills
(1995) Chapter 4
Blackstone
Morton, J Defending: The Lawyer’s Practical Guide
(1984) Chapter 8
Beattie
Napley, D The Techniques of Persuasion
(1991) Sweet & Maxwell
176 Advocacy

Shapland, J Between Conviction and Sentence:

(1981) The Process of Mitigation
Routledge/Kegan Paul
Thomas, DA The Criminal Justice Act 1991:
(1992) Custodial Sentences
Criminal Law Review 232
Wassik, M and Blackstone’s Guide to the Criminal
Taylor, RD Justice and Public Order Act 1994
(1995) Chapter 1
Blackstone
Wassik, M and Blackstone’s Guide to the Criminal
Taylor, RD Justice Act 1991: The 1991 Act in the
(1994) Courts (as amended by the Criminal
Justice Act 1993)
Blackstone
 1

CHAPTER
177

9 Advocacy in Practice 2

Civil proceedings
This chapter will concentrate on one example of advocacy in civil
proceedings: an interlocutory application for judgment in the High
Court. This example will be worked through as a simulated
application under Rules of the Supreme Court Ord 14. All the
necessary facts and materials for this exercise are included
below.

9.1 Context
An example of a simple interlocutory application is a plaintiff’s
summons claiming summary judgment on the ground that there is
no arguable defence to the claim. Most interlocutory applications
are heard by masters in the High Court or district judges in the
County Courts. Like some judges, officials dealing with
interlocutory applications can develop fearsome reputations
amongst advocates appearing before them. It is sensible to
maintain good relations with these officials. It is relatively easy for
novices to get off on the wrong foot and for the official’s
impatience to compound their problems.
In the Queen’s Bench Division, once actions are assigned to a
master, that master will deal with interlocutory applications in that
case. Masters cannot grant injunctions and, if an interlocutory
injunction is required, the application must be to a judge, probably
in the judge’s chambers. Additionally, there are practice masters
on duty to deal with ex parte applications, consent orders and the
like.

9.2 Preparing for an interlocutory application

Circumstances will vary between different applications and
officials. You may be offered a seat or be left standing. Assume
178 Advocacy

you will stand unless invited to sit. Each official may expect the
application to proceed in a particular way. Some may ask for
affidavits to be read; others may ask to be addressed on
particular points. It is important, therefore, to be flexible and
adaptable.
Prepare a chronology so that you thoroughly understand the
sequence of events and can find relevant details and their place
in the story without flicking through bundles of documents.
Prepare notes of your main points rather than a speech or series
of speeches.
Remember that it is for the party initiating the particular
process to ‘lead off’. Even where an usher has handed the master
a note of the names of those appearing, the opening should effect
introductions.

9.3 Simulation exercise

The practical exercise which follows is a simulation of an
application for summary judgment in a High Court action. Both
solicitors and barristers can attend on such a summons, but it is a
common advocacy task for solicitors. The exercise will be based
on group work. You will need personnel for three roles: the
claimant’s solicitor, the defendant’s solicitor and the master.
Each application will take between 10 and 15 minutes to hear.
If it appears to the master that the argument will take longer than
this, the summons may be adjourned for a special appointment.
The exercise will probably be more successful if there is an
opportunity for preliminary discussion of common problems.
Depending on the circumstances, a group can be divided into
three subgroups, each comprised entirely of people who will play
the same role, for example, all claimant’s solicitors. Each group
could have approximately 20 minutes for discussion of problems
identified in preparation. This is the kind of exercise which can be
conducted before a small audience, even if others have to
conduct it later; it is beneficial to see how others tackle the same
task. Alternatively, assuming at least three groups of three, each
Advocacy in Practice 2 179

participant can adopt another role after each application, that is,
so that each claimant’s solicitor becomes the master and so on. In
this way, each participant will play all three roles.
Having assigned the roles, each participant should have an
opportunity to prepare. Before the simulation, the ‘advocates’
should conduct the following preparation:
(a) draft an outline of the facts in simple narrative form;
(b) research the law and relate it to the issues;
(c) deduce the client’s goals by reference to the orders which a
master can make in these circumstances;
(d) identify the best and worst outcomes from your client’s point of
view and the costs implications of particular orders;
(e) identify the arguments which you will use and which the other
side should use at a hearing of this application; and
(f) identify procedural or documentary errors.
The ‘master’ should conduct the following preparation:
(a) familiarisation with the purpose and broad structure of Pt 24 of
the new Civil Procedure Rules;
(b) identification of basic procedural requirements;
(c) identification of possible orders which may be made on an
application and of the possible orders for costs which may
follow from each; and
(d) analysis of what each party must establish in order to
obtain/resist judgment.
The papers which would normally accompany such an application
would be the application notice (this would indicate the purpose of
the application and the place and time when it will be heard), the
claim form, a witness statement or affidavit sworn by the claimant
in support of the application and, usually, an affidavit from the
defendant in reply. These documents may have exhibits attached
to them. Only those documents which are essential to the
exercise are included here; the witness statement for the
defendant and exhibits. Assume that the claim form was issued
180 Advocacy

on day 49 and claimed damages in the sum of £25,645 for 2,225

videos sold and delivered to the defendants, interest and costs.
You should assume that the claimant’s affidavit in support of the
application is in the standard form and claims that the money is
still due and owing, and that the defendant notified an intention to
defend the claim. Assume also that the claimant’s documents
conform to the requirements of the Practice Direction (Summary
Disposal of Claims), para 2.
With this kind of exercise, it is difficult to provide confidential
instructions for each advocate. You will have to infer these from
the circumstances. You should, therefore, be prepared to make
appropriate concessions according to your own judgment.
Obviously much will depend on your preparation. One thing
which you should prepare to deal with is the costs arising from the
hearing of the application. It is possible that one or other side will
be awarded the costs incurred up to the date of the application or
only those costs incurred in connection with the application. In
general, the successful party addresses the court first on the
question of costs. Where interlocutory proceedings are
inconclusive, costs may be ‘reserved’ until a subsequent hearing.
An application like this draws on the advocate’s preparation of
the facts, the relevant substantive law and the procedure. It is
also an opportunity to practice basic presentation skills. Because
the three central characters interact with one another, this will test
your ability to remain calm, to think of counterarguments and to
pursue your case under pressure. The dates on all papers
proceed from day 1, which is the date the defendant placed an
order for videos to be supplied by the claimant. In reality, of
course, the actual date would appear. Please assume that the
summons is heard on day 60.
It is important to determine the scope of the application and
the possible outcomes. Note that the test is whether ‘the
defendant has no real prospect of successfully defending the
claim or issue’ (CPR Pt 42.2(a)(i)) and ‘there is other reason why
the case or issue should be disposed of at a trial’ (CPR Pt
24.2(b)). Note also the orders that the court can make (Practice
Direction (Summary Disposal of Claims), para 5), which include
Advocacy in Practice 2 181

judgment, dismissal of the application or a conditional order

including payment into court (para 5.2). The provisions for costs in
para 9 should also be noted, as should Pt 45 of the Civil
Procedure Rules.
Assume that the application is in the High Court and that the
heading and formal parts comply with the requirements of the
Practice Direction (Witness Evidence), para 17.

Between
MINIMARK VIDEO SUPPLIES plc claimant
–v–
CHIAN DRASCULA
trading as
CHIANDRAS VIDEO RENTAL defendant
____________________
Witness statement of Chian Drascula

Witness statement in reply to Application under Pt 24 of the Civil

Procedure Rules
I, Chian Drascula, retailer, trading as Chiandras Video Rental of Farm
Cottage, near Dearsdan, Hertfordshire, am the Defendant in this action
make oath and say:
1 I have read a copy of the affidavit of Hilary Spondack.
2 For the reasons set out, I deny that I am indebted to the claimant in
the sum of £25,645 claimed in the particulars of claim or that I was so
indebted at the start of this action.
3 I am advised by my solicitor and believe that the particulars of claim
discloses no reasonable cause of action against me.
4 I am the proprietor of Chiandras Video Rental and Chiandras Videos.
Both of these are registered businesses. The former is a video rental
shop in Hatfield and the latter is a wholesale business.
182 Advocacy

5 I did telephone the claimant’s sales department on (day 1) and I

placed an order for 225 videos, all with different titles.
6 On (day 14) the videos were delivered. My cousin was helping at my
warehouse on the Wharton Trading Estate. He took delivery of the
videos and signed for them, although he did not know that I was
expecting to receive them.
7 When he told me the following day what had happened, I thought he
had made a mistake. It was not until I visited the warehouse seven
days later that I discovered that 2,225 had been delivered. My cousin
was unable to find the invoice and so I could not check what had
happened immediately. Subsequently, I did manage to find it and I
refer to the exhibit marked ‘CD 1’.
8 On (day 30) I telephoned the claimant’s sales department and told
them that there had been a delivery error and that they should pick
up the videos. I was told that the videos had been delivered and
signed for and that, as far as they were concerned, we owed them
the money. However, I have never ordered more than 150 videos at
one time from the claimant.
9 I immediately wrote to the claimant and a true copy of my letter and
of the reply I received and I refer to the exhibit marked ‘CD 2’.
10 In all the circumstances, I have a good defence to this claim.
11 All of the matters in this witness statement are within my own
knowledge except for those matters set out in paragraphs 4 and 5
relating to information supplied to me by my cousin.
12 I believe that the facts stated in this witness statement are true.

Signed: Chian Drascula

Advocacy in Practice 2 183

This is the Exhibit marked ‘CD 1’ referred to in the witness statement of

Chian Drascula.

SALES INVOICE No 8004

CHIANDRAS VIDEO RENTAL

To 2,225 videos (various titles) as

per your telephone instructions
listed on the accompanying sheets. £25,645
(inclusive of VAT)

If payment is made within 14 days, customers may deduct 10%.

Received in good condition.

Signed: R Marted
per C Videos
184 Advocacy

This is the Exhibit marked ‘CD 2’ referred to in the witness statement of

Chian Drascula.

Chiandras Video Rental

Quaint Alley, Hatfield
(day 30)
Minimark Video Supplies
234–44 King’s Cross Road
London NW1

Dear Sirs

I received an order of videos from you a little while ago. I only just
noticed that you have delivered too many videos here and I have
to suggest that you should come and take them back. They are all
still in very good condition. If you would kindly ring me, I will
arrange for someone to be at the delivery address to hand them
over to you at whatever time is most convenient. I have to say I
am sorry that this has happened and hope that we will continue to
do business in the future.

Yours sincerely

Chian Drascula

C Drascula
Advocacy in Practice 2 185

Minimark Video Retail

234–44 King’s Cross Road, London NW1
(day 32)

Chiandras Video Retail

Quaint Alley
Hatfield Our ref D/C9276/pd

Dear Sir

Thank you for your letter dated (day 30), the content of which is
noted. We regret that we must insist on payment within 28 days
from delivery as per our standard terms. If you should have any
difficulty with this, please telephone the writer (quoting the above
reference) to discuss the matter further.
Yours sincerely

P Dickens

P Dickens
Account Controller
186 Advocacy

9.4 Evaluating your performance

The following guidance notes are based on the written standards
for the Legal Practice Course and include some elaboration of
what each may imply in this particular context. One way of
evaluating the performance is peer assessment; this can be
supported by tutor feedback where available. Probably the most
efficient way is for the master to offer constructive criticism, on
each occasion, of the advocates appearing before him or her
during the concluding debrief and feedback stage:
(a) ‘Demonstrate an understanding of the ethics, etiquette and
conventions of advocacy’:
• both advocates address the master as ‘Master’;
• the claimant’s advocate introduces himself or herself and the
defendant’s advocate and the purpose of the application. For
example:
‘Master, my name is Mr David Wright and I am applying
for judgment under Pt 24 of the Civil Procedure Rules on
behalf of the claimant. Ms Amelia Wrong is appearing on
behalf of the defendant …’;
• the claimant’s advocate hands over the claimant’s
documents;
• the claimants’ advocate inquires whether the master wishes
to read the papers, have them read or have the main points
outlined;
• the claimant’s advocate introduces the claimant’s case in the
manner indicated by the master and indicates any errors of
substance or form;
• the defendant’s advocate responds in like manner (that is, by
reading the defendant’s affidavit or outlining its main points);
• both advocates respond to any questions from the master;
• both advocates make a final submission to the master if
requested to do so indicating, if necessary, any material
matters of fact, procedure or law which have not previously
been raised;
Advocacy in Practice 2 187

• defence submissions usually follow substantive argument.

The claimant’s advocate makes his or her final submission in
response;
• the master makes an order in relation to substantive issues;
• if appropriate, both advocates make a submission as to the
appropriate order for the costs of the hearing; and
• the master makes an order for the costs of the hearing.
(b) ‘Structure and present in simple form the legal framework of the
case’ and ‘structure the submission as a series of propositions
based on the evidence’:
• indicate the legal principle(s) which will determine the
outcome of the summons;
• indicate the material facts; and
• present the issues for determination in a form which is
comprehensible and logical in the context of the particular
application.
(c) ‘Identify, analyse and assess the specific communication skills
and techniques employed by the presenting advocate’:
• maintain an upright posture unless invited to sit by the
master;
• maintain appropriate eye contact with the master;
• indicate the point(s) in issue;
• speak simply, succinctly and sufficiently to convey their
client’s case in relation to each point;
• recap on points made, questions asked or issues raised as
appropriate;
• respond cogently to any questions asked by the master;
• be courteous without being ingratiating;
• be assertive in conveying the points they wish to make; and
• resist being badgered into conceding crucial points.
See, also, Chapter 10 (section 10.5) for some further feedback on
your conduct of this exercise.
188 Advocacy

9.5 Reading in support of the exercise

Grainger, I and An Introduction to the New
Fealy, M Civil Procedure Rules
(1999) Cavendish Publishing
 1

CHAPTER
189

10 Evaluation and Reflection

Anybody taught only what to learn has been prepared for the
present, which will soon be the past; anybody who has been
taught how to learn has also been prepared for the future.
Houle (1980)

10.1 Reporting back to your client

Once a case has been heard, the decision has to be explained to
the client. For the solicitor advocate, this role is particularly
significant. A barrister may be able to explain an adverse decision
by witnesses ‘not coming up to proof’ (not giving their evidence as
their proof of evidence suggested they would). A solicitor
advocate, on the other hand, may have interviewed the witnesses
himself or herself; indeed, she will often have handled the whole
case. This underlines the importance of planning and of
identifying strengths and weaknesses so that the client knows in
advance what the risks are. If the case fails, the client should
have been warned of the particular risk.

10.2 Continuing to learn from your own experiences

At law school, it is relatively easy to obtain constructive criticism of
practical performances. The more experienced you become, the
more difficult it is to obtain good constructive criticism from your
peers. If you are to continue to improve at any skill, you need
critical feedback. Your only resource for self-development may be
your own capacity for critical reflection on the things you do. To
utilise and develop this resource requires practice, commitment
and a very clear idea of both the overall objectives and the
detailed objective of every piece of advocacy you do. What was
my objective in that submission? Did I advance my objective?
190 Advocacy

What was my objective in cross-examining that witness? How did

that objective contribute to achieving my overall objective? We all
stop improving when we feel smug. Many of us, unless we
receive sure indications that our performance is below the mark,
may begin to feel smug. How can you avoid this and continue to
learn?

10.3 Finding practice exercises

It does not require a lot of careful preparation to practise basic
advocacy techniques. If you have access to case files of any kind,
it is a relatively easy task to take a statement out, assign the role
of that individual to one or other of you and conduct an
examination-in-chief or cross-examination of that ‘witness’. There
is a story of a famous American lawyer who conducted cross-
examinations of works of art in galleries at weekends, practising
organising the sequence and style of questions. In one case, his
junior counsel had made a poor job of a cross-examination one
morning. During the lunch break he had her cross-examine a tree;
in the afternoon she was brilliant (she said)!
A lot of ungraded feedback (formative assessment) and repeat
performance is necessary before a real improvement in skills is
evident. A common problem in skills courses is that tutor
feedback is often only given fully and individually at the point of
formal assessment (summative assessment). Following final
assessment, there may be few, if any, opportunities to build on
the valuable learning experience which summative constructive
criticism can provide.
There are many ways of mitigating the problems of limited
feedback. The involvement of a tutor is not a necessary
precondition for any one of these methods to work.
Evaluation and Reflection 191

10.3.1 One alone

Speeches and submissions can be usefully practised on your
own, preferably in front of a large mirror. This is particularly helpful
for getting an impression of body language, especially eye
contact. If you can look yourself in the eye for long periods and
keep track of your points, you will be doing well! Do not be overly
concerned about what you see; remember that we are often our
own worst critics.
You can also evaluate your own planning by reading case
papers and organising issues into suitable sequences. Several
exercises are suggested in this book which you might try to work
through. Here for example, is a mind map for the issues in the
Rouse trial which you should have attempted at the end of
Chapter 3.
 192 Advocacy

Mind map of issues in the Rouse trial

Cause of death Location of body Bailey and Brown

(identification)

Accident possible? MEDICAL Others?

‘Petrol fed’ AUTO FACT Driver to

London
Origin of fire?
FORENSIC Circumstances
SITUATION (1) 2 pm
Photographs EVIDENCE (2) off main road – lost?
Police oral (3) seen policeman
evidence shortly before
To (4) victim burnt beyond
Northampton recognition
(5) did R know man in
car?
Bailey and Brown

3 and 4

oo Problems
(1) man unknown
o (2) evidence circumstantial

Rouse Motive?
(1) disappearance?
(2) none?
To (3) man not a ‘stranger’
London (4) insurance
Character Why go to London if
(1) clean record wanted to disappear?
(2) war service
Why go to see people he
(3) secure job
(4) married knew?
(5) extra-marital Policeman saw R and his
relationship passenger
(6) illegitimate children
Accident?
Murder? (1) no eye witness to event
(1) why flee scene? (2) petrol – man smoking?
(2) why not report incident? (3) panic?
(3) why take briefcase? (4) is evidence consistent?
Evaluation and Reflection 193

Exercise 1
Here is another example for you to think about. In Chapter 4 (on
planning), there was a section concerned with possible cross-
examination strategies in the Hain trial. Here is a small sample of
Lewis Hawser’s technique. You will recall the importance of the
identification evidence of three boys who had joined the chase
after the robber and later identified Hain as the man chased.
Hawser, who was Hain’s counsel, started his cross-examination
of the first boy as follows:
Q: Are you colour blind?
A: No.
Q: So you know the difference between blue and brown?
A: Yes.
Q: When the events were taking place it was daylight?
A: Yes.
Q: You said the shirt was white with blue checks?
A: Yes.
Q: Others whom the thief actually passed have said the shirt
he was wearing was white, cream or off white. Was that
correct? [No answer] If someone who was passed by the
thief on the pavement said the thief’s shirt was white, cream
or off white, would you agree that was a correct
description?
A: No.
Q: When you were sitting outside this court yesterday, you
were talking to [boys 2 and 3] about the evidence you were
going to give in this case, weren’t you?
A: No.
Q: I’ll repeat the question, were the three of you together
outside this court?
A: Yes.
Q: Were you talking about the case?
194 Advocacy

A: [Pause] Yes.
Q: Were you talking about when you first joined the chase?
A: Not as far as I remember.
Q: You were, weren’t you?
A: I wasn’t … [pause] … maybe [boys 2 and 3] …
Q: Were any of you talking about when you first joined the
chase?
A: Yes.
Hawser cross-examined the bank teller as follows:
Q: You have just told us very fairly that you must have seen
about Peter Hain on television.
A: Yes.
Q: It was clear that you knew Peter Hain had been arrested
and charged with this offence?
A: I did, from the radio.

Ask yourself what considerations influence the future direction of

each of these two cross-examinations and try to outline a plan for
each.

10.3.2 One to one

Another important way of continuing to improve performance is to
give feedback to each other – one as advocate and the other as
witness, judge or master, depending on the nature of the task.
The non-advocate can give structured feedback to the advocate
according to pre-determined criteria. A slight variation on this
theme is one to one plus observer(s). This is particularly useful
before a formal assessment where you have access to the
grading criteria. It also enables you to highlight any problems with
criteria which can be explored with tutors before the assessment
takes place.
Evaluation and Reflection 195

10.3.3 Goldfish bowl

This method of soliciting feedback requires one or two people to
conduct an exercise in front of the rest of a group; the performers
are in the ‘goldfish bowl’, the rest outside.
There are potential difficulties with this method. However, it is
particularly useful where the group know each other well and
have demonstrated an ability to deliver constructive criticism.
Usually, it is only the most confident and prepared people who are
willing to do it; sometimes (but not always), they need the practice
the least. The rest are conscious of their own shortcomings and
feel unable to comment, particularly if their comments are
adverse. As a demonstration, it has value, but, if the criticism is
not skillfully delivered, the volunteers may become discouraged.

10.3.4 Group work

This is a variation of the goldfish bowl. For this, everyone, except,
possibly, the tutor, gets in the goldfish bowl. It might be used as
follows.
Select a performance, cross-examination, for example, and
select one student as the witness. Everyone else plays either an
examiner-in-chief or a cross-examiner advocate. Both groups of
advocates get into a huddle and decide on an examination and
cross-examination strategy. The witness, meanwhile, prepares for
his or her role, thinking about how he or she will answer particular
questions and thinking about inconsequential background detail
for her character (someone good at ‘imaging’ is ideal for this).
Examination-in-chief is conducted first and then the cross-
examination follows. Each advocate conducts the examination of
the witness taking up from the place where the last advocate
finished. Each advocate finishes at a pre-arranged signal from the
tutor. Each advocate is stuck with the mistakes of those who went
before. The tutor may decide the cross-examination is such a
shambles that you need to start again. In this case, you can
196 Advocacy

analyse the errors and discuss strategy changes. As the exercise

proceeds, you may want to add an opposing advocate to object
and a judge to rule. One advantage of this method is that it
involves everyone in planning and delivery. Although involving so
many players does not imitate cross-examination in real life, the
process is fun and places all participants on an equal footing. This
maximises opportunities for learning from one another.

10.3.5 Observation
Another suggestion for improving your own performance is to
watch an advocate, either in court or on video, and to analyse her
performance. Make notes of major strengths and weaknesses, or
concentrate on one aspect of the performance and analyse it
carefully.

10.4 Giving and receiving criticism

In my experience as a teacher, students give excellent feedback
on the content of legal argument, but startlingly basic feedback on
the skills of presenting that argument. The comment ‘That was
very good’ is not much use to anybody.
Constructive criticism should analyse the elements of
performance one by one, according to whatever criteria are
appropriate or available. If none are available, it can be a very
useful exercise to devise criteria for assessment for yourself. The
process of group discussion often exposes different perceptions,
helps to isolate those elements of performance which are crucial
and encourages people to discuss knowledge or experience
which would otherwise remain personal.
Some of us are defensive about taking criticism, particularly
when we think it is unfair. Worse, some of us think that our peers
have nothing to teach us, particularly if we think they are less able
than we are. It is a mistake to hold these attitudes in general, but
particularly so in relation to advocacy. Anybody, even those
Evaluation and Reflection 197

unschooled in the law, can tell us if they followed our argument,

whether we were fluent, whether we were persuasive. Significantly,
only a non-lawyer can give us honest feedback as if they had been
a juror listening to our presentation.

10.4.1 Receiving constructive criticism

If you are on the receiving end of feedback, try to remember the
following points:
• use positive body language, for example, an open stance
(arms unfolded);
• acknowledge fair criticism; remember it is another’s perception
of you, and that you cannot fully appreciate how you are
perceived by others. Ask for clarification and elaboration, for
example, ‘You said that my delivery was too slow; did you feel
that was the case all the way through?’ or ‘What did you think
the effect of the slow delivery was in this exercise?’;
• do not argue with the person giving feedback; wait until they
have finished before deciding whether to respond;
• if nothing positive is offered, ask what you did well, ask for
comparison with previous performances;
• recap on the feedback in full;
• thank the person for their feedback; indicate which comments
are not accepted and why; and
• ask for advice on how to improve.

10.4.2 Giving constructive criticism

Giving constructive criticism is a highly skilled task. Bear the
following points in mind:
• focus on what was observable; do not offer opinions about
underlying attitudes or feelings or things which cannot be
changed, for example, ‘You don’t seem like a very confident
person and, therefore, you don’t come across very well’ is
198 Advocacy

poor feedback. The focus of the feedback should be to explain

exactly how it was that he or she did ‘not come across very
well’. Was it his or her voice, words, movement or delivery, or
was her style inappropriate for the particular task?
• identify and acknowledge those elements of the performance
which were competent or better than competent; give
examples of behaviour which was successful;
• be honest in offering criticism; and
• do not be patronising or flippant.

10.5 In conclusion: evaluating the Chiandras simulation

exercise
In conducting any particular exercise, the issues you raise will be
very important. You may be feeling very confident until the other
advocate or the master raises a point you have not noticed. If you
cannot respond, your level of performance may decline rapidly.
Let us look at the application for summary judgment exercise
in Chapter 9. The following are points which you should have
considered in the course of your preparation:
• the invoice is signed on behalf of ‘Chiandras Videos’, not
‘Chiandras Video Rentals’;
• the defendant admits ordering 225 videos; can judgment be
entered for part of the claim?
• there is no time specified for payment (a standard form
affidavit in support of the application would merely say that the
sum was due and owing). In those circumstances, when would
the purchaser become liable to make payment?
• the order as to costs will depend on the order made on the
application; if the action is continuing, the costs of the
application may be reserved until the full hearing. Otherwise,
costs are usually awarded to the ‘successful’ party.
Evaluation and Reflection 199

Analyse the reasons for the decision:

• did you focus on the strengths of your case?
• what was the main reason why the case failed?
• did you correctly identify this aspect of the case as a
weakness?
• how did you attempt to mitigate this weakness?
• with the benefit of hindsight, what else should you have done?
• how, if at all, did the other side capitalise on this weakness?
• had you anticipated their argument and their approach?
• what responses did you make to their arguments?
• what indications did you receive that your arguments were
heard and understood?
• was the outcome justified given the evidence and arguments
presented and the applicable law?
• what can you learn from this encounter? What would you
change if you could do it all again?
Finally, analyse your own presentation skills:
• was your language assertive?
• did you work from notes?
• were you sincere, coherent, logical?
• were your materials well organised?
• did you cope with interference to the pace and continuity of
your delivery?
• did you maintain eye contact?
200 Advocacy

10.6 End of chapter references and additional reading

Guirdham, M and Enterprise Skills for Students
Tyler, K Chapters 1, 3, 9
(1992) Butterworth Heinemann
Houle, CO Continuing Learning in the
(1980) Professions
Jossey-Bass
Schein, EH Professional Education: Some New
(1971) Directions
McGraw Hill
 1

CHAPTER
201

11 The Framework of Professional

Advocacy Training

11.1 The training of advocates

One of the most dramatic changes to have occurred in legal
practice in recent years, certainly since the first edition of this
book was published, is the broadening of rights of audience in
higher courts. Formerly the preserve of barristers, the Law Society
was given power to accredit solicitors for appearances in the High
Court, Court of Appeal and House of Lords. Most applicants had
to pass a rigorous course which required that they both pass
written tests in evidence and perform advocacy. The numbers of
solicitors qualifying were quite low, although the present Lord
Chancellor has resolved to abolish distinctions in advocacy rights
between solicitors and barristers. Nevertheless, the structure for
advocacy training established by the Law Society, as required by
the Courts and Legal Services Act 1990, provides a useful guide
to the performance standards that prospective advocates should
expect to achieve at different stages in their education and
training.
The Bar scheme continues to revolve around a generous
amount of time devoted to advocacy on the Bar Vocational
Course, the experience gained through pupillage and new
requirements for Continuing Professional Development in the first
three years post-qualification. One measure of the importance
now attached to advocacy is the fact that Bar Vocational Course
students must pass advocacy to pass the course and cannot have
a failure in advocacy condoned. If solicitors acquire the same
rights of audience as barristers, it can be expected that similar
provisions will be introduced into the Legal Practice Course (LPC).
The sections that follow are based on the scheme that the
Law Society produced following the extension of solicitors’
potential rights of audience under the Courts and Legal Services
Act 1990. They are followed by examples of advocacy
202 Advocacy

assessment instruments drawn from some of the Bar Vocational

Course schemes. The chapter ends with a three part assessment
instrument developed as part of research conducted by the author
for the Institute of Advanced Legal Studies’ Legal Skills Research
Group. The advantage of this scheme is that it can be used for
assessment, including self-assessment, at different levels of
advocacy experience.

11.1.1 The Law Society’s framework for advocacy training

The Law Society’s scheme provides that, on completion of their
training contracts, trainees should be competent to exercise the
rights of audience available to solicitors on admission to the
profession. This means that, during the various stages of
preparation for practice, trainees acquire experience which
enables them to understand the specific communication skills of
the advocate and the techniques and tactics of examination with
the ethics, etiquette and conventions of the professional
advocate. By the end of the training contract, it is anticipated that
trainees should have made an interlocutory application before a
district judge. In order that all solicitors should be ready to
exercise full rights of audience, the aspiring solicitor must
progress through a number of stages, commencing with the Legal
Practice Course.

11.1.2 Legal Practice Course

The Law Society training scheme provides that, during the LPC,
trainees will be instructed in the general principles of advocacy
through role plays and other simulations. They will be given
instruction on the appropriate pre-trial procedures and
proceedings and, through simulation, how to make interlocutory
applications before a District Judge. As a consequence, they will
be able to:
• interview a client;
• identify the client’s goals;
The Framework of Professional Advocacy Training 203

• identify and analyse factual material;

• identify the legal context in which to put the factual issues
which have arisen;
• relate the central legal and factual issues to each other;
• identify each party’s perspective;
• state, in summary form, the strengths and weaknesses of the
case from each party’s perspective;
• develop a case presentation strategy;
• outline the facts in simple narrative form;
• prepare, in simple form, the legal framework for the case;
• formulate a coherent submission based upon the relevant
facts, general principles and legal authority in a structured,
concise and persuasive manner;
• identify, analyse and assess the specific communication skills
and techniques employed by the presenting advocate;
• demonstrate an understanding of the purpose, techniques and
tactics of examination, cross-examination and re-examination
to adduce, rebut and clarify evidence; and
• demonstrate an understanding of the ethics, etiquette and
conventions of advocacy.
It is intended that trainees should, in addition, be able to advise a
client on the appropriate pre-trial procedures and proceedings,
understand the crucial importance of preparation and the best
way to undertake it, and assist in the preparation and conduct of
pre-trial procedures and proceedings.

11.1.3 A comment on vocational stage training in

advocacy
Over the few brief years that have passed since the creation of
the Bar Vocational Course and the LPC, great strides have been
made in skills training. As a result of higher degrees of
204 Advocacy

competence in tutors, students are generally more willing and

able to take skills sessions seriously. Their ability to participate
credibly in role play has also improved immensely. Some
students, however, still find it difficult to pretend and their inability
or refusal to play the role irritates tutors and assessors and
usually leads to poor marks. The best advice is to take skills
exercises on vocational courses deadly seriously, avoid joke
names on pleadings for example, and treat other students and
tutors in a role as complete strangers.
Most vocational course assessments in advocacy are based
on a submission, or short speech. Typically, this will either be
performed to camera or to a tutor role playing an arbiter of some
description. It is important not to be lulled by the artificiality of this
setting. The vocational courses, by and large, value performances
that mirror those associated with professionals in the field. But,
particularly because of the format, it is still possible to see student
performances in advocacy that amount to little more than reading
out a prepared speech. Such attempts typically receive poor
marks. Indeed, a consensus is emerging that amateurish
performances such as this should fail. It is, therefore, increasingly
important that vocational course students should be able to
present a submission from headings and key points.

11.1.4 Professional Skills Course

Trainees are required to take the Professional Skills Course
(PSC) during their training contract. The advocacy component of
the course is one of the elements most widely praised by trainees,
although how the course is organised depends very much on the
training organisation concerned. The intention of the Law Society
is that the Professional Skills Course trainees are given
experience, through simulation and role play, that will enable
them to:
(a) use the specific communication skills and techniques
employed by the presenting advocate;
The Framework of Professional Advocacy Training 205

(b) demonstrate the techniques and tactics of examination, cross-

examination and re-examination to adduce, rebut and clarify
evidence;
(c) act in accordance with the ethics, etiquette and conventions of
the professional advocate.
As a consequence, they will be able to:
• exercise rights of audience available on admission;
• create the conditions for effective communication with the
client, witnesses, other advocates and the triers of fact and
law;
• use language appropriate to the client, witnesses and the
triers of fact and law;
• speak and question effectively;
• use a variety of presentation skills to open and close a case;
• use a variety of questioning skills to conduct examination-in-
chief, cross-examination, and re-examination;
• listen, observe and interpret the behaviour of the triers of fact
and law, the client, witnesses and other advocates, and be
able to respond to this behaviour as appropriate;
• prepare a witness for examination and cross-examination;
• present a coherent submission based upon facts, general
principles and legal authority, in a structured, concise and
persuasive manner;
• present a submission as a series of propositions based on the
evidence;
• organise and present evidence in a coherent and organised
form; and
• identify and act upon the ethical problems that arise in the
course of a trial.
It will be noted that the main additional requirement of the
advocacy standards for the PSC is that students must actually be
206 Advocacy

able to demonstrate an understanding of the techniques of cross-

examination through performance. The LPC only requires that
students demonstrate such understanding in theory. Additionally,
the PSC extends the range of application of advocacy skills.
Therefore, trainees are expected to be able to question a variety
of witnesses in the appropriate manner, for example: expert
witnesses; hostile witnesses; biased, untruthful or mistaken
witnesses; sympathetic witnesses; identification witnesses; a
witness with previous convictions; a witness who has made a
prior admission; and child witnesses. This philosophy of extending
the range of the skills the apprentice advocate has, rather than
the basic skills themselves, pervades the PSC. As a result of the
PSC, therefore, it is intended that trainees should be able to apply
the skills in a wide range of cases, that is, cases or transactions in
the criminal courts and the civil courts and in one of the following
more specialised areas: family cases, industrial tribunals,
planning inquiries, other statutory tribunals or alternative forms of
dispute resolution.

11.1.5 The training contract

The Law Society’s training scheme for advocacy provides that,
during the training contract, trainees should be given practical
opportunities that will enable them to understand the principles
involved in preparing, conducting and presenting a case, including
the need to:
(a) identify the client’s goals;
(b) identify and analyse relevant factual and legal issues and
relate them to one another;
(c) summarise the strengths and weaknesses of each party’s
case;
(d) plan how to present the case;
(e) outline the facts in simple narrative form; and
The Framework of Professional Advocacy Training 207

(f) formulate a coherent submission based upon facts, general

principles and legal authority in a structured, concise and
persuasive manner.
The scheme also suggests that, to help trainees develop these
skills, they could be required to:
(a) help advise on pre-trial procedures;
(b) help prepare case before trial;
(c) in the company of one of or more lawyers;
(i) attend the magistrates’ court to observe trials, bail
applications, pleas of mitigation or committal;
(ii) observe the conduct of a submission in chambers or
examination, cross-examination and re-examination in
open court;
(d) observe proceedings in family cases, industrial tribunals,
planning tribunals or other statutory tribunals, or the use of
alternative forums of dispute resolution; or
(e) as training progresses, and under appropriate supervision,
take a more active role in the conduct of a case. This could
include interlocutory applications before a master or district
judge.
It is also suggested that supervisors should discuss the progress
of a case with trainees and review with them the performance of
advocates appearing in the case. The scheme advises that
supervisors should review the trainee’s own performance,
drawing attention to those aspects that could be improved.

11.2 Higher rights of audience

Solicitors in private practice were able to apply for a qualification
to conduct advocacy in higher courts from 8 December 1993
when a range of provisions came into force, including:
• Practice Rule 16A (solicitors acting as advocates);
• the Law Society’s Code for Advocacy;
208 Advocacy

• Practice Rule 16B (choice of advocates);

• guidance on choice of advocate (for inclusion in the Client
Care booklet);
• guidance on the interpretation of para 4.1(e) and paras 2.4
and 2.5 of the Code for Advocacy; and
• the Higher Courts Qualification Regulations 1992 (Law
Society, 1992).
Currently, a higher courts qualification may, under the 1992
Regulations, be granted to solicitors with ‘appropriate judicial or
higher court advocacy experience’. For those who cannot claim
such experience, higher courts qualification is in two stages. The
first stage is to ‘satisfy the [Law] Society that they are suitably
experienced and suitably qualified to exercise rights of audience
in the proceedings relating to the qualification for which they have
applied’. Following this, the Law Society issues a certificate of
experience and eligibility to proceed to either the Test of Evidence
and Procedure in the Higher Criminal Courts and/or the Test of
Evidence and Procedure in the Higher Civil Courts. Passing the
test is normally a prerequisite for attending the appropriate
course/s. Candidates who have passed the test and the course,
and who have practised for three years, may be awarded:
(a) the Higher Courts (All Proceedings) Qualification, which
permits the holder to conduct advocacy in all courts and in all
proceedings;
(b) the Higher Courts (Criminal Proceedings) Qualification, which
permits the holder to conduct advocacy in the Crown Court in
all proceedings, and in all criminal proceedings in other courts;
or
(c) the Higher Courts (Civil Proceedings) Qualification, which
permits the holder to conduct advocacy in the High Court in all
proceedings and in all civil proceedings in other courts.
It is beyond the scope of this book to consider these provisions in
detail. In any event, the regime for awarding solicitors higher
The Framework of Professional Advocacy Training 209

rights of audience may soon be swept away by proposals to give

those qualifying from either branch of the legal profession equal
rights to appear in courts. Much of this regulation will, however,
remain. The two new practice rules, the Code for Advocacy and
the guidance notes on choice of advocate, apply to all advocacy
and not just to that in higher courts. Additionally, there are some
matters that are relevant to advocacy in general that are worth
mentioning. Practice Rule 16B, for example, provides, inter alia,
that:
A solicitor who provides both litigation and advocacy services
shall as soon as practicable after receiving instructions and from
time to time consider and advise the client whether, having
regard to the circumstances, including:
(i) the gravity, complexity and likely cost of the case;
(ii) the nature of the solicitor’s practice;
(iii) the solicitor’s ability and experience;
(iv) the solicitor’s relationship with the client
the best interests of the client would be served by the solicitor,
another advocate from the solicitor’s firm or some other advocate
providing the advocacy services.
The additional material to be included in Client Care: A Guide for
Solicitors suggests that the client’s primary concerns will be
choice of advocate and cost and that they should be provided with
adequate information with which to make an informed choice on
these matters. Paragraph 4.1 of the Code for Advocacy requires a
solicitor not to accept a brief if:
• they lack the necessary experience;
• they will have inadequate time to prepare;
• the brief seeks to limit their authority;
• they would be unable to maintain professional independence;
• they have been responsible for actions that are in dispute; or
• there is a risk of a conflict or a breach of confidence.
210 Advocacy

The structure, content and assessment methods of the Higher

Rights Course are set out in Sched 4 to the Regulations. The
Schedule provides, inter alia, that the aim of the course is that
participants shall perform competently as an advocate in the
relevant higher courts and that the course should, therefore,
enable a participant to:
(a) prepare an action for trial;
(b) develop a case presentation strategy;
(c) identify admissible evidence to be used in the presentation of
a case, and make submissions concerning the admissibility of
evidence;
(d) examine, cross-examine and re-examine witnesses effectively
and in accordance with the rules of evidence;
(e) demonstrate a sound understanding of the Law Society’s
Code for Advocacy and of courtroom formalities;
(f) formulate and present a cohesive argument based upon facts,
general principles and legal authority in a structured, concise
and persuasive manner;
(g) analyse personal and other advocates’ performances to
assess their effectiveness, and take the action necessary to
deal with identified weaknesses; and
(h) draft pleadings relevant to the conduct of proceedings in the
relevant courts, including applications for leave to appeal and
notices of appeal.
Higher Courts Qualification Regulations 1992, Sched 4(1)
The Framework of Professional Advocacy Training 211

11.3 The Bar Vocational Course

In common with the solicitors, the Bar is taking the issue of
advocacy very seriously. The Inns of Court, for example, are now
providing training schemes for members. As with the LPC, the Bar
Vocational Course is now offered by a number of providers so
that it is difficult to generalise about issues of teaching,
performance and assessment. Below, however, there is a set of
advocacy assessment criteria which describes the behaviour
required to meet the criteria set.
 CRITERIA GUIDELINES MARKS
212

1 Effectively prepare the The student should demonstrate an understanding of:

case by understanding (a) the relevant law
the relevant law, facts (b) the relevant facts
and issues and by (c) the relevant issues
planning the submission (d) the objectives of the submission 5
2 Make a submission The submission should:
which is appropriate, (a) deal with all matters which would affect the decision of the court
relevant, and legally and (b) not deal with matters which would not affect the decision of the court
factually sound (c) address the issues before the court
(d) show an awareness of the possible decisions that the court could reach
(e) make suitable use of relevant documents
(f) refer properly to relevant cases, statutes and rules of procedure where necessary
(g) be factually and legally accurate 15
3 Structure the The student should:
submission in a clear (a) demonstrate an awareness of the stage the proceedings are at
and logical way (b) cover the ground efficiently within the time limits
(c) take each point in a sensible order
(d) give each point its due weight and significance 10
4 Deliver the submission The student should:
clearly and fluently, (a) speak at a suitable pace
using appropriate (b) make sensible use of pauses
language and manner, (c) avoid excessive hesitation
referring to notes when (d) speak clearly and audibly
necessary or desirable (e) maintain suitable posture and body language
(f) avoid excessive reference to notes and/or verbatim reading of notes 10
5 Make a submission The student should:
which is effective and (a) make use of the law and facts to achieve the desired objective
persuasive (b) advance meritorious arguments and avoid unmeritorious arguments
(c) deal appropriately with any weaknesses in his or her case
Advocacy

(d) display confidence in his or her arguments

(e) limit the impact of opposing arguments 10
The Framework of Professional Advocacy Training 213

Some students may find a more chronological scheme of

assessment useful. The assessment instrument following, for
example, outlines the criteria applied to a simple submission, the
staple diet of vocational course assessments.

11.3.1 Advocacy assessment criteria

GOOD/FAIR/POOR/NO ATTEMPT

ORGANISATION

1 Introduction
Applicant:
Introduces self and explains nature of application.
OR
Respondent:
Outlines nature of opposition.

2 Begins argument by:

Applicant:
Briefly describing nature and history of the action.
OR
Respondent:
Summarising basis of opposition.

3 Identifies and summarises relevant documentation.

214 Advocacy

4 States relevant issues concisely by:

• highlighting relevant facts;
• identifying issues in dispute; and
• summarising correctly the relevant law and/or
procedure.

5 Concludes arguing logically and concisely for or against order

sought.

6 Speaks effectively, using:

• sufficient volume;
• clear enunciation; and
• suitable pace.

7 Maintains suitable courtroom demeanour including suitably

formal language.

COMPETENT/NOT COMPETENT
The Framework of Professional Advocacy Training 215

11.3.2 A multi-level assessment scheme

Given the comprehensive ‘standards’ which now exist for
advocacy and the large variety of assessment schemes applied,
students may find it useful to have a checklist. This reduces the
many goals to a simple and flexible scheme of assessment which
can operate at different levels of assessment, is easily understood
by advocates and assessors, and which is adaptable to different
advocacy or training contexts. This particular assessment
instrument is divided into three component parts. It can be used
for a live performance assessment or, with some notes and
supporting materials, for self-evaluation using a video and
materials. What this particular instrument does not contain is a
detailed description of each behaviour. This is to avoid confusion
arising from: (a) the multiplication of criteria (listing, for example,
discretionary actions or behaviours to avoid); and (b) a failure to
distinguish between the criteria in terms of their importance.
216 Advocacy

11.3.3 Multi-level assessment instrument for advocacy

1 ANALYSIS

CRITERION BEHAVIOUR NOTES

1 Identifies the goals of the advocacy

2 Develops a case presentation strategy, based on the

reconciliation of the available evidence, which is
consistent with the goal of the advocacy, rules of court
and the Code of Conduct for advocacy

3 Identifies a communication strategy appropriate to the

forum and audience for the advocacy

2 PRESENTATION

CRITERION BEHAVIOUR NOTES

1 Presents the case in a manner which is consistent with

the case presentation strategy

2 Identifies the issues in the case and explains the way in

which principle and authorities apply to those issues

3 Argues consistently and persuasively for a particular

conclusion

4 Assists the court and upholds the standards of the

profession by observing the Code for Advocacy and
any other ethical requirements and the etiquette
appropriate to the relevant forum
The Framework of Professional Advocacy Training 217

3 QUESTIONING

CRITERION BEHAVIOUR NOTES

1 Observes the rules and conventions governing the

questioning of witnesses according to the form of
examination (that is, the use of open, closed or leading
questions)

2 Asks questions in order to elicit answers which support

the conclusion argued for or in order to minimise the
impact of evidence which is contrary to that conclusion

3 Selects an effective strategy for cross-examination of

each witness, depending on the type of witness and the
evidence that the witness has given

4 Employs different kinds of questions as appropriate

11.4 Conclusion
There is always a risk with checklists that they are interpreted
mechanistically and that they inhibit, rather than encourage,
flexibility and spontaneity. A recent meeting of external examiners
for the Bar Vocational Course emphasised that those with fluency
and clarity, a clear sense of purpose and a sense of structure, a
good grasp of facts and legal materials and a working awareness
of ethical issues were likely to score highly in advocacy exercises.
Examiners were more impressed by students who were able to
capture something of the ethos of an actual performance than
those who sacrificed ‘performance skills’ for the security of their
prepared script. Effective advocacy requires that representatives
take a few personal risks in order to create a good impression.
Awareness of this is becoming an important factor in assessment
at the vocational stage of legal education.
218 Advocacy

11.5 End of chapter references and further reading

The Law Society Professional Standards Bulletin
(1994) No 10, p 1.
 219

Index
1

Accused Antioch competence

character ..............120, 141, 144 criteria ........................19, 20–21
testimony by....................143–44 Appearance ..........................17–18
Address, terms of ..................34–36 Audience
Advocacy higher rights of
conduct..............................29–41 audience ....................207–10
evaluation of interaction..........................15–16
performance ..............186–88, plea in mitigation ............165–66
189–99 sense of audience ....................2
opening ............................71–86
planning ....................2–3, 45–68
Bail
in practice
application for..................151–55
civil proceedings ........177–88
context........................151–52
criminal
preparation for............152–54
proceedings ............151–74
structure ....................154–55
questioning......................89–110
style ..................................155
see, also, Cross-examination;
Examination-in-chief Bail Act 1976......................151, 152
summarising and Bar Vocational
concluding ......................137–49 Course ............201, 203, 211–17
training in ........................201–17 Body language ......................16–17
Affective thinking..........................77
Aggravating factors..............162–63 Character and
Alternative defences antecedents ................120, 141,
civil cases..........................47–48 144, 160–61
criminal cases ..................48–49 Circumstantial
Anchors, psychological..........77–78 evidence......................80–81, 84

Antecedents Civil cases

see Character and antecedents interlocutory
application ..................177–88
220 Advocacy

duties of advocate Conduct ................................29–41

in cross-examination ........121 conflicts of
introduction of duty and........................36–37
real evidence ....................107 lawyer and client ..............29–33
opening speeches ............85–86 lawyer and
planning and the court ......................33–36
organisation..................47–48 lawyer and
witnesses......................37–40
Civil Procedure Rules ..........37, 71,
89, 179 Confidence and nerves ........18–19
Claimant, opening Conflicts of duty,
speeches ................................85 conduct and ......................36–37

Client Confrontational
interviewing ......................45–46 questions ....................94, 97–98
lawyer’s Constructive
conduct and..................29–33 criticism ..........................196–98
personalisation of............140–41 giving ..............................197–98
reporting back to ..................189 receiving................................197
Closed questions ............45–46, 90 Context
Closing speeches ................137–49 bail application ................151–52
closing speeches civil cases..........................47–48
juries ..........................137–39 criminal cases ..................48–49
defence ......................139–46 interlocutory
prosecution ........147–48, 160 application ........................177
importance of plea in mitigation ............156–59
summary ..........................137 questions ................................89

Clothing..................................17–18 Court, lawyer’s

conduct and ......................33–36
Cognitive thinking ........................77
Competent performance, Courts and Legal
elements of........................19–20 Services Act 1990 ................201

Concluding Criminal cases

see Closing speeches advocacy in
practice ......................151–74
Index 221

bail application ................151–55 expert witnesses ............127–32

making plea in hostile witnesses ..............91–92
mitigation ....................155–74 leading questions in ........92–93,
duties of advocate in 115, 119
cross-examination ......120–21 organisation ....................114–15
introduction of pitfalls ..............................101–02
real evidence ....................106 police officers ..................132–33
opening speeches ............73–74 probing, insinuating
defence ........................83–85 and confrontational
prosecution ......73–74, 75–82 questions ....................94–98,
planning and 115, 120, 126
organisation..................48–49 re-examination
Criminal Justice Act 1967 ..........151 after ............................133–34
relating oral evidence
Criminal Justice
to previous
Act 1991 ..............156, 157, 158,
statements..................121–22
159, 161, 164,
ridicule, repetition
166, 168,
and rivetting ..............98–100,
169, 171
114–15
Criminal Justice and strategies ........................118–20
Public Order Act 1994 ..........161
choice of ....................122–26
Criminal Procedure and expert witnesses ........127–32
Investigations Act 1996 ..........33 police officers ............132–33
Criticism ..............................196–98 style ................................115–17
giving ..............................197–98
receiving................................197
Defence
Cross-examination ..............113–34 civil cases ........................47–48,
advocate’s duties ............120–21 85–86
aims ................................113–14 closing speeches ......73, 139–46
anticipating ......................108–09 argument ....................141–45
as context for introduction ................139–41
questions ............................89 peroration ........................146
ending ............................126–27
222 Advocacy

criminal cases ..................48–49, planning witness

73, 83–85 evidence ......................49–54
bail application............151–55 opinion evidence ....49, 52–54
duties in cross- witnesses of fact ..........50–52
examination................120–21 prosecution outlining
opening speeches ............83–86 admissible evidence ....78–81
plea in mitigation ............155–74 confronting weaknesses ..79–81
presenting strengths ..........79
questioning......................89–110
Emotion
peroration ..............................146 Examination-in-chief ..................102
presenting to persuade ..........13 anticipation of
cross-examination ......108–09
Ethical conduct
as context for questions ..........89
see Conduct
leading questions in ........104–06
Ethos ..............................................1 organisation of questions......103
Evaluation of
Exercises
performance ..................186–88,
on evaluation ..................190–96
189–99
goldfish bowl ....................195
assessment criteria
group work..................195–96
for Bar Vocational
observation ......................196
Course................212, 213–16
one alone....................191–94
finding practice
one to one ........................194
exercises ....................190–96
interlocutory
giving/receiving
application ..................178–85
criticism ......................196–98
evaluation of ..............198–99
learning from
narrative ................23–25, 65–67
experience..................189–90
planning plea in
reporting back
mitigation ....................171–74
to client ............................189
planning witness
Evidence evidence ............................52
circumstantial ..............80–81, 84 presenting to
introduction of ................106–08 persuade ..........20–22, 23–25
Index 223

Experience, Interlocutory
learning from ..............189–90 application ......................177–88
Expert witnesses ......49–50, 52–54 context ..................................177
cross-examination ..........127–32 evaluation of
performance ..............186–88
exercise ..........................178–85
General Council of the preparation......................177–78
Bar, principles of
ethical conduct ........................29 Interviewing clients ................45–46
Introductions ....................71–73, 75
Goldfish bowl technique ............195
Group work ..........................195–96
Law Society
Client Care ......................30, 209
Hearsay......................................106 Code for Advocacy ........29, 207,
Higher Courts Qualifications 208, 209
Regulations 1992............208–10 Guide to the
Hostile cross- Professional Conduct
examination ....................119–20 of Solicitors..................29, 30,
31–32, 33, 36
Hostile witnesses ..................91–92
Higher Courts Qualifications
Hypothesis development ......54–60
Regulations 1992 and ......208
legal and
training in
technical disputes ........58–59
advocacy ............201, 202–07
ulterior motives..................59–60
Lawyer
Hypothetical
client and ..........................29–33
questions ..................90–91, 127
court and ..........................33–36
witnesses and ..................37–40
Identification ..........................50–52 Leading questions ................91–93
Imaging technique ......................23 in cross-examination........92–93,
Insinuating questions......94, 96–97, 115, 119
120, 126 in examination-
in-chief........................104–06
Interaction ..............................15–16
Legal disputes........................58–59
224 Advocacy

Legal Practice Observation ..............................196

Course (LPC)..........201, 202–03 Open questions ..............45–46, 90
Logos ............................................2 Opening speeches ................71–86
civil courts ........................85–86
Materials criminal courts ..................73–74
keeping..............................63–64 defence ........................83–85
organisation ......................62–63 prosecution ......73–74, 75–82
introductions................71–73, 75
Merits of cases ............................60
style ..................................74–75
Mind map for
presentation ..........................5–6 Opinion evidence ............49, 52–54
Organisation
Mitigation
see Planning and organisation
see Plea in mitigation
Motives, ulterior motives........59–60
Pacing ..........................................14
Parallel phrases ....................11, 12
Narrative
exercises on..........23–25, 65–67 Pathos ............................................1
planning and Pauses for effect....................14–15
organisation..................64–67 Perjury....................................31–32
presenting to persuade ....22–23
Peroration ..................................146
Nerves....................................18–19
Persuasion
Non-verbal communication elements of............................1–2
appearance ......................17–18 ethos ....................................1
body language ..................16–17 logos ....................................2
emotion....................................13 pathos ..................................1
exercise on........................20–21
Planning and organisation ....45–68
pacing......................................14
bail application ................152–54
pauses ..............................14–15
client ..................................45–47
posture ....................................15
contexts ............................47–49
voice ..........................................8
civil cases ....................47–48
criminal cases ..............48–49
Index 225

cross-examination ..........114–15 Police

development of bail and..................................151
hypothesis ....................54–60 cross-examination
legal and technical of police officers ........132–33
disputes ....................58–59 evidence on
ulterior motives ............59–60 antecedents
interlocutory application ..177–78 of defendant ..............160–61
materials Police and Criminal
keeping ........................63–64 Evidence Act 1984 ................133
organisation..................62–63
Posture ........................................15
narrative/story-telling ........64–67
Presenting to persuade ..........1–25
plea in mitigation ............166–67
appearance ......................17–18
exercise ......................171–74
body language ..................16–17
presenting to persuade ........2–3
competent
mind maps........................5–6
performance ................19–20
outline ..................................4
confidence and
questions ........................102–04
nerves ..........................18–19
theory of the case ............60–62
elements of
witness evidence ..............49–54
persuasion........................1–2
opinion evidence ....49, 52–54
ethos ....................................1
witnesses of fact ..........50–52
logos ....................................2
Plea in mitigation ................155–74 pathos ..................................1
audience..........................165–66 emotion....................................13
content ............................168–69 exercises ..............20–22, 23–25
context ............................156–59 interaction..........................15–16
exercise ..........................171–74 mind map for
lessons from research ....162–65 presentation......................5–6
preparation......................166–67 narrative ............................22–23
procedure........................160–62 outline of presentation ..........4–6
structure ................................168 pacing......................................14
style ................................169–71 pauses ..............................14–15
personal style ............................7
226 Advocacy

planning and Questioning..........................89–110

organisation......................2–3 context ....................................89
posture ....................................15 enlivening testimony ............100
repetition ....................11, 13–14 hypothetical
sense of audience ....................2 questions..............90–91, 127
structure and introducing real
organisation ..........................7 evidence ....................106–08
voice ..........................................8 leading
words ..................................8–13 questions ....................91–93,
for impact......................10–13 104–06, 115, 119
open and closed
Primacy effect ....................7, 73–74
questions ................45–46, 90
Probing questions ..........45, 94–96,
organisation ....................102–04
115, 120
pitfalls ..............................101–02
Professional probing, insinuating
Skills Course ..................204–06 and confrontational
Proof, burden of ........................140 questions ............94–98, 115,
Prosecution 120, 126
rhetorical................................138
closing speeches ....147–48, 160
ridicule, repetition
duties in cross-
and rivetting ..............98–100,
examination................120–21
114–15
opening
sequence of
speeches..........73–74, 75–82
questions ......................93–94
introductions ......................75
see, also, Cross-examination;
outline admissible
Examination-in-chief
evidence ....................78–81
outline legal
issues ..............................82 Re-examination after
stating issues cross-examination ..........133–34
of fact ........................77–78 Reasonable doubt ....................140
summary of facts..........75–76
Repetition
Psychological anchors ..........77–78 presenting to
persuade ................11, 13–14
Index 227

questioning ........................98–99 Technical disputes ................58–59

Research, on plea Theory of the case,
in mitigation ....................162–65 formulation of ....................60–62
Rhetorical questions ..................138 Training in advocacy............201–17
Ridicule ........................................98 Bar Vocational
Course ....................201, 203,
Rivetting ................99–100, 114–15
211–17
higher rights of
Sentencing, criteria for ........157–59 audience ....................207–10
Silence, pauses ....................14–15 Law Society ............201, 202–07
Legal Practice
Solicitors, higher rights
of audience ....................207–10 Course (LPC) ....201, 202–03
Professional Skills
Statements
Course........................204–06
see Written statements
training contract ..............206–07
Strategies vocational stage
cross-examination ..........118–20 training........................203–04
choice of ....................122–26
expert witnesses ........127–32
police officers ............132–33 Ulterior motives......................59–60
undermining strategy ..............94 Undermining strategy ..................94
Structure and organisation
bail application ................154–55 Voice, presenting
plea in mitigation ..................168 to persuade ..............................8
presenting to persuade ............7
Style Witnesses
bail application ......................155 expert witnesses ..............49–50,
cross-examination ..........115–17 52–54, 127–32
opening speeches ............74–75 hostile................................91–92
personal style ............................7 lawyer’s conduct and ........37–40
plea in mitigation ............169–71
228 Advocacy

planning witness Words

evidence ......................49–54 presenting to persuade ......8–13
opinion evidence ....49, 52–54 words for impact................10–13
witnesses of fact ..........50–52 Written statements,
questioning......................89–110 relating oral evidence
see, also, Cross-examination; to previous statements....121–22
Examination-in-chief