Common sense rules of advocacy for lawyers

Foreword

The Author

Chapter 1 Introduction

Chapter 2 The Dimensions of Advocacy
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First Dimension: In the Common Law Countries a Trial is Not an Exercise Designed to Discover the Truth
Second Dimension: Human Beings are Far More Video Than Audio
1 You Must Dress Appropriately
2 Don't Be Seen to Be in To Friendly a Relationship With Your Opponent
3 Don't Smile, Laugh or Joke Without Including the Jury In
4 Appear at All Times to Be Absolutely Sincere
5 Never Convey Any Visual Signal You Do Not Intend to Convey
6 Ensure That Your Factfinder Always Has Something to Look at
7 Use All Kinds of Visual Aids
8 Maintain Eye Contact With the Factfinder
Third Dimension: People Don't Like Lawyers!
9 Stick Rigorously to the Truth
10 Don't Appear to Be Manipulative
11 Don't Sound Like a Lawyer
Fourth Dimension: Time is Valuable
12 Don't Repeat Yourself

Chapter 3 The Mandatory Rules of Advocacy
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13 Mandatory Rule Number One: In Your Opening Statement Avoid All Argument and Stick Strictly to Facts
14 Mandatory Rule Number Two: Be Sure, in Your Opening Statement, to State Enough Facts to Justify the Verdict You Are Asking for
15 Mandatory Rule Number Three: The Advocate Must Not Express His or Her Opinion in Court
16 Mandatory Rule Number Four: As an Advocate, Never Give or Appear to Give Evidence Yourself
17 Mandatory Rule Number Five: Never refer to the Criminal Record of an Accused Person or to Any Offers of Settlement
18 Mandatory Rule Number Six: Never Put Words in the Mouths of Your Own Witness
19 Mandatory Rule Number Seven: In Your Closing Argument Speak Only of Things That Have Been Touched Upon in the Evidence

Chapter 4 Advocacy as Theater
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20 Commit to Being an Excellent Trial Lawyer Don't Do Anything by Halves If You Can't Dedicate Yourself to This, Move Over and Do Something Else
21 Entertain Them
22 Tell Them a Story
23 Think Beginning, Middle and End
24 Always Aim to Maintain Your Continuity
25 Keep It Simple
26 Avoid Detail
27 Work at Eliminating Everything That Can Safely Be Eliminated
28 Be Brief
29 Prepare Them for the Boring Bits
30 Know Your Audibility
31 Vary Your Pace and Vary Your Tone
32 Be Aware of Timing and Use the Power of the Pause
33 Be Vary Careful About Raising Your Voice
34 Stay Out of the Well
35 Don't Get Too Close to the Jury Box
36 Beware of Getting Too Close to the Witness
37 Plan Your Approach to the Witness Stand

Chapter 5 The Psychology of Advocacy
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38 The Material of Advocacy Are Fragile
39 Be Likeable
40 Aim to Create Sympathy Between You and Your Factfinder
41 Newton's Rule
42 Include the Factfinder in! or the Rule of the First Person Plural
43 Prepare Them
44 Always Aim to Be the Honest Guide
45 Don't Ask the Factfinder to Believe the Unbelievable
46 When There Is a Weak Point in Your Case Don't Pretend That It Isn't a Weak Point
47 Don't Misquote the Evidence in any Way at All and Don't Put a Slick Interpretation on Any Part of It
48 Make Sure That You Always Come Across as Being Absolutely Fair
49 Keep Your Objections to a Minimum
50 Take Great Care Getting Your Jury Out of Court for Bench Conferences
51 Demonstrate Your Competence to Your Judge as Early as Possible
52 Practice Listening Intently
53 Stop Dead in Your Tracks as Soon as You Realize Your Sentence Has Become Too Complicated
54 There Must Be an Overall Theme to Your Entire Case and You Should Be Able to Tell the Story in One Compact Sentence
55.1 First Part: As Soon as You Have an Approximate Idea of What a New Case is About Sit Down and Write Your Closing Argument
55.2 Second Part: Sit Down and Write Your Opponent's Closing Argument
55.3 Third Part: Sit Down and Perfect Your Closing Argument
56 Show Them the Way Home

Chapter 6 The Examination of Witnesses
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57 Think Out in Advance the Answer You Want to Hear and Design Your Questions With a View to Getting That Answer
Think Control –Know What You Want the Witnesses to Say Then Make Them Say It
58 Every Examination Should Consist of a Series of Objectives
59 Never Forget That the Average Witness Speaks From Memory
60 Never Forget You Are Not Dealing With Facts but With What the Witness Believes to Be Facts
61 Go Gently When You Attack a Witness's Recollection
62 Never Turn to a Witness for Help
63 The One Line of Transcript Rule
64 Don't Ask Compound Questions
65 Use Variety in the Format of Your Questions
66 Beware of Demanding the Yes or No Answer

Chapter 7 Direct Examination
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The Rule About Leading Questions
67 The Foundation Rule: Before You May Ask a Witness to Testify on any Topic, You Must Lay a Foundation Showing How the Witness Has Acquired Knowledge of That Topic
68 In Direct Examination, Remember the Rule of Two and Couple Your Questions Wherever You Can
Getting Documents into Evidence
Refreshing Recollection

Chapter 8 Cross-Examination
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28 Be as Brief as You Can Be
69 Stop When You Get What You Want
70 Use Leading Questions in Cross-Examination
71 Pin Down the Witness: Don't Spring the Trap Until the Witness is Inside
72 Keep the Record as Favorable to You as Possible by Moving to Strike Any Inadmissible Evidence
73 Ride the Bumps: Keep Your Dismay a Secret
74 The Minefield Rule: Never Jump Back in Alarm!
75 Don't Cross-Examine at All Unless You Have to
76 Don't Go Fishing
77 Don't Ask Questions to Which You Don't Know the Answer
78 Never Ask "Why?" and Never Ask "How?"
79 Don't Open the Door
80 Don't Let the Witness Repeat Her Direct Testimony
81 Don't Ever Get Into an Argument With a Witness
82 Don't Ask the Fatal Final Question

Chapter 9 Re-Direct Examination
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Salvage, Clarification, and Massacre
83 If You Don't Do Re-Direct Well It's Better You Don't Do It at All
Re-Direct Must Be Done Confidently and Effortlessly

Chapter 10 The Final Argument
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84 It's The Factfinder's Emotion, Not Yours, That Matters
85 Emotion Follows Facts and Not the Other Way Around
86 Too Little Emotion is Fatal: Too Much Emotion is Fatal
87 Acknowledge the Feelings That Have Understandably Been Stirred Up

Chapter 11 Written Advocacy
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Paper Is the Basic Material Used for Written Communication and the Dissemination of Information
88 Lawyers Use Far Too Much Paper
Engineering Language
89 Good Legal Writing is Easy to Read and Interesting, Accomplishing Its Goal in as Few Words as Possible
The "Body Language" of a Document
90 The Appearance of Your Document is Vitally Important
91 White Space is User Friendly
92 Don't Produce a Paragraph Deeper than Four Inches
93 Margins Have an Effect on the Reader
94 Lists of More Than Three Items Should Be Vertical Not Horizontal
95 Use Headings
96 Consider Incorporating Diagrams into Your Writing
Pace and Movement
97 Write at the Pace of a Brisk Walk
98 Pay Great Respect to Chronology in Your Writing
Paper Is the Basic Material Used for Written Communication and the Dissemination of Information
99 There's No Rule of Court Which Requires Your Document to Be a Minimum Length

Chapter 12 Advocacy in the Age of High Technology
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Video
100 Stay Abreast of Technological Advance

Chapter 13 Conclusion

Appendices

* Appendix 1: Why Color Is Critical
* Appendix 2: The Practical Rules at a Glance
* Appendix 3: "How to Succeed as a Lawyer," by Roland Boyd

Index