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Wednesday, July 27, 2011

Advocacy Essentials for the new Advocate - a Checklist

Preparation steps for a court hearing.

1.  Know your audiences (judge, opponent, jurors, witnesses): their needs and wants.

2.  Know the law: charge/cause of action elements; procedural; and, evidential.

3.  Know the facts you have, know the facts you need, know how to get the missing facts.

4.  Know the strong points of your case.

5.  Know the weak points, such as a poor witness, uncertain facts, environmental force, or an uncertain legal point. Anticipate how your opponent will exploit your case weaknesses and prepare your response.

6.  Interview a witness from his or her ‘most confident’ point.  Listen to the answer and use part of the answer for the next question. Use shapes on a board or paper ( the visual method, see below) to show each topic with the fact points around the shape.  Use other shapes/colours to represent case environment issues, evidence admissibility issues.  Help each witness to understand that you and they are a team, working together.

7.  Plan your courtroom presentation to start and finish with strong points.

8.  Draft your closing remarks with these points in mind:
Start and finish on your strong points;
Anticipate and minimise the effectiveness of your opponent’s likely arguments; and,
Check that you have addressed each element of law with evidence that is good enough for the purpose – have you met the standard of proof?

9.  Prepare and rehearse your opening statement to be a short, interesting statement of the most important facts that you are sure to be able to prove.

10.  Design and rehearse with visual aids, such as reports, diagrams, photographs.  Ensure enough copies of each such aid. Thus one each for: you, the judge, your opponent, the witness.

11.  Provide each witness with an information sheet.  This should remind them about:
Where to meet you, at what time, bringing what things (such as records, food, drink), what to do if delayed;
Who will ask them questions;
How to answer questions (listen to the question, talk to the judge, ask for repeat of question if necessary to understand it);
Having some water to sip while giving evidence;
When the court takes breaks; and,
How to contact you.

12.  Have a check list of your court presentation:  what you will do, what you will need (where is it ?), your proposed order of topics and witnesses.

Visual Method for case preparation and presentation

1.  How any lawyer prepares for, and plans a case, is influenced by personality, training and experience.

2.  ‘Formal’ systems for preparation are usually of the ‘linear’ sort. That is, start with this, then do that, and after that do this.  This approach assumes that the planner has the information before they plan. But lawyers often get the information in unexpected ways and at unexpected times, so a linear approach is not ideal.

3.The visual method has these advantages over the better known ‘linear’ or ‘matrix’ approaches:

1. Deals well with a random approach;
2. Encourages a witness to start with something they remember well, thus builds witness confidence, and leads to better recollection by the witness;
3. Shows where information is missing;
4. Reflects environment and law problems;
5. Encourages thought and discussion about how to order the topics and the witnesses, once all the information is up on the board;
6. Allows for those with a strong visual sense to see the model in either two dimensions ( topics, law, facts), or three dimensions (which adds ‘prioritisation’ of the topics, law and facts, and pays proper regard to the case environment);
7. Should be used both in preparation and case presentation.
8. Flexible enough to be useful to react to the unexpected during a hearing.

4. The steps in using the visual method are:

1. Identify each and every legal requirement and create a randomly placed shape for each element;
2. Identify key facts against each legal requirement and note them around the shape;
3. Identify subsidiary facts that go to prove the key facts;
4. Identify what facts are missing;
5. Determine the priorities of law and fact topics;
6. Identify (evidence) admissibility and (public perception) case environmental issues;
7. Use your map to practise questions, both for chief and cross examination;
8. Prepare visual sheet templates to use with witnesses, both for preparation, and in the court hearing.  [Note that if a number of witnesses are giving evidence about a similar event then the template can be marked up with common points of law and critical facts.]
9. Mark up your visual map for use as a guide at the hearing. For example, use different highlighter pens to show topics or related points.

Working with witnesses


1.  Your witness must be confident that you will ‘present and protect’ him or her.  This is the essence of the team approach.

2.  To develop a witness’s confidence always start an interview from what they remember best.  Build your questions from the strength of their memory.

3.  Show an interest in, and understanding of the witness by your voice and body language.

4.  Agree on the topics to be talked about by the witness.  Be sure that they understand what will be covered in each topic as they give their evidence at the hearing.

5.  Agree on the order of those topics.  Help the witness to understand that the judge needs to hear their story, understand the story, and be persuaded by the story.

6.  Ensure that the witness understands what will happen at the court hearing.  If possible the witness should go to the court room and experience sitting in the witness place before they give evidence.  They and you (or your assistant) should practise:
so that the witness looks in the direction of the decision maker;
how to control anxiety ( eg. moving toes, sipping water, rubbing fingers, piece of paper with vertical message such as ‘SLOW’ written on it);
pausing before answering the question;
how to let you know to ask more questions about some point; eg. “Would you like me to explain”.

7.  Give the witness some written information about their time at court. (See above on  ‘Preparation steps for a court hearing’).


1.  Write out a list of topics and points.  Do NOT follow a list of questions.

2. Never be aggressive or disbelieving until you have exhausted all the advantages of being pleasant and accepting.

3. Listen to the answer, think about your next question, then ask a short question based on the answer and your case analysis preparation.

4.  Use your series of questions to let the decision maker ‘know’ your case.

5. Create a belief in the decision maker that your witnesses and your legal arguments are to be preferred to those of your opponent/s.

hugh.selbyGoogle@anu.edu.au (c) 2011.

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