Advocacy in practice

Description

Full Title Dedication Copyright Preface Table of Cases Table of Statutes Table of Contents 1 Basic techniques of advocacy Strategy Order of proceedings Summary of order of proceedings Written advocacy Pleadings in civil cases Affidavits/witness statements Agreed statement of facts (criminal) Short minutes of order Written submissions Uniform Civil Procedure Rules Tactics The number of witnesses Which witness not to call Prima facie case Courtroom technology AVL applications Tactical considerations for AVL applications General techniques Notes Manner and manners Voice Command of language Confidence Persistence Mileage 2 Preparation and case analysis Introduction The mechanics of preparation The tools of preparation Organisation of the brief Marking the brief Trial notebooks The law and authorities The checklist, or ‘ready reckoner’ Identifying the issues Chronologies Witness and exhibit summaries Conferences Preparing witnesses Advice on evidence Case analysis Performance preparation 3 Opening Introduction Clarity and conciseness The key attributes of an opening statement Open the case broadly Brevity Logicality Do not open high Open the evidence, not the argument Open your case, not that of your opponent Use of aids in opening Opening for the defendant Criminal Civil Duties of counsel Preparation for performance 4 Examination Introduction The aim of evidence-in-chief Witness preparation Modern witness preparation Order of witnesses Legal limits of examination Leading questions Rationale Exceptions to non-leading questions The rule against impeachment The rules against self-serving or prior consistent statements Techniques of examination Affidavits Witness statements Examination from proof Manner Remain in control Style Lead like a layperson Form Content Communication How to recognise a leading question Avoiding leading questions Witnesses in trouble Nervous witness Losing the place Omission Miscellaneous witnesses Calling on a subpoena to produce Good character witnesses 5 Cross-examination Introduction Aims of cross-examination No cross-examination Constructive cross-examination Destructive cross-examination Case analysis and theory Affirmative cross-examination Repetition Omitted topic Misleading context Alternative explanations The curate’s egg Advancing case theory Legal framework Relevance Who may be cross-examined Minor exceptions The extent of cross-examination Collateral issues Unfair cross-examination Ethical restrictions Putting divergences in evidence to the witness General techniques Style Content Control Fields of destruction Challenge Hostility Prior inconsistent conduct Bad character, prior convictions and reputation Attacking the qualifications of an expert Particular techniques Introduction Confrontation or attack Probing Insinuation Undermining Leading on Creating an absurdity Closing the gates The deadly sins of cross-examination Rushing in Beating around the bush Big noting Looking for trouble Going for the jugular Going fishing Dropping your guard Going over the top Worrying about the next question Going back for your hat Slanging the witness Jumping the gun Being willing to wound but afraid to strike Cross-examination on documents 6 Re-examination, rebuttal and reply Re-examination defined Right to re-examine and its limits Object of re-examination Scope of re-examination How to re-examine Rebuttal and reply Civil cases Criminal cases Recent invention Preparation for re-examination Tactics of re-examination Don’t mend holes, mend fences 7 Objections Whether to object When to object What is objectionable? Objections to the question Objections as to the evidence (or answer) Objectionable questions Leading questions General or unspecific questions Unintelligible questions Duplicitous questions Argumentative questions Questions which call for a conclusion by a witness Oppressive questions Irrelevant questions Questions which assume facts not in evidence Erroneous questions Speculative questions Objections to the evidence Privilege Hearsay Unresponsive or volunteered answers Prejudice Opinion evidence The best evidence rule Parol evidence rule Improper re-examination Proving exhibits Objection to matter contained in speeches Improper or unethical objections 8 Closing address Introduction The object of the closing address The structure and parameters of address The introduction The statement The proof The peroration or summary The importance of the address An example analysed Statement Proof Style General techniques Some rules for final address Address the issues Address the facts, good and bad Address the evidence Avoid the law wherever possible Keep it short Do not read The logical address What you do not say 9 Appeals Introduction Preparation Notice of appeal Written submissions What to argue Presentation The beginning Questions from the bench Flexibility and tact Flexibility Tact Watch the bench Expedition Pre-emptive argument 10 Etiquette and ethics Rules of conduct Formal rules of etiquette Behaviour Dress and personal appearance At the bar table Stay behind the bar table or party table Do not approach the witness box Dress the court — do not leave the judge in an empty court Courtesy to other counsel The judge’s chambers Behaviour in court Interruptions Language Beginning ‘Learned’ friend Addressing the bench Never address a judge in the second person Catchphrases Argue to, not with, the judge Semantic abominations Citation of case law Citing other judges Ethical principles Dealing with self-represented litigants 11 Elements 12 Sample cross examinations Introduction Oscar Wilde cross-examined by Carson W A Cadbury cross-examined by Carson W S Gilbert cross-examined by Carson Vaquier cross-examined by Hastings Richard Seary cross-examined by Adams Sir Robert Askin cross-examined by Evatt 13 Extra-curial advocacy Introduction Tribunals generally Mediations Arbitrations Inquests Site hearings Bibliography Index