Trial Advocacy

Description

PLEASE NOTE:  The course is limited to 30 students, with preference given to final year students, followed by penultimate year students, then by date of Application to Enrol.

Students MUST Apply to Enrol by Friday 22 October 2021. If you are interested in enrolling in this course you must have already passed LAWS307 Principles of Evidence, or be concurrently enrolled in LAWS307 in Semester Two, 2021.  

Students concurrently enrolled in LAWS307, and approved into LAWS359 prior to the final results for LAWS307 being released, need to be aware that should they subsequently fail LAWS307 in Semester Two, 2021, the Law School will withdraw them from the LAWS359 summer school course.

This skills course deals with the task of the advocate, case analysis, techniques of persuasion, the rules of advocacy, trial preparation and the conduct of the trial including; opening addresses, examination in chief, cross examination of witnesses, production of exhibits and closing addresses.

Classes will include substantive lectures, student performances of assigned problems and demonstrations of trial skills.  Student performances for an opening and closing address will be video taped and reviewed by the lecturer.

The intended scope of lectures in the trial advocacy course, subject to time available is as follows:

1.  The Golden Rules of Advocacy and Advocacy as Theatre
This lecture concerns the dimensions or fundamental truths in the world in which you as an advocate will operate in.  These dimensions are known as the “golden rules of advocacy”.  Further important rules are discussed under the heading “advocacy as theatre”.  This covers such concepts as entertaining your audience, learning how to maintain your continuity, realising the concept of story-telling and how to construct your case to capture your audience’s attention.

2.  The Psychology of Advocacy
This is where we learn that as an advocate we are attempting to win the fact finders preferences and their opinion, and if we succeed we win the case.  Once this is realised one can readily appreciate that one’s opinion is often fragile and delicate and that these are the materials that we as advocates have to work with.  This in turn produces a number of golden rules of advocacy under this heading which will be discussed and debated.  The concept of Theory of the Case is also taught.  As an advocate you will learn that one never proceeds to trial without a plan and one never does anything inconsistent with one’s theory of the case.  You will learn how to develop a theory of the case using raw materials of a trial, namely, the facts, law, evidential issues and your opponent’s theory.

3.  Trial Preparation, Pre-Trial Issues and The Opening Address
During this lecture we will discuss preparing for trial and pre-trial issues and then move to talking about delivering opening addresses.  The preparation for trial segment will include such topics as how to physically prepare the material for trial, to completing a trial folder and exhibit folder.  We will also cover how one prepares a witness for trial and how to prepare oneself for trial.  A detailed lecture is given on the content of an opening address and how this should be written and delivered.  A demonstration of an opening address is given by the lecturer using the case book.  Students must write an opening and video tape themselves delivering an opening address as one of their assignments.

4.  Closing Addresses
A full lecture will cover the creation and delivery of a closing address.  The closing address is the culmination of the trial.  Everything is directed to your closing address.  One must have one’s closing address firmly in mind prior to starting the trial.  That is why this topic is covered before one looks at the examination of witnesses.  The difference between a closing address for criminal and civil trials is highlighted.  The lecturer will deliver a closing address during class for the students.  Students are expected to write a closing address and video tape themselves delivering a closing address as one of their assignments.

5.  The General Rules for Examination of Witnesses
Rules for examining witnesses are discussed before moving on to the discreet topic of examination in chief.  Students will learn how to construct questions to achieve the answers sought and how to ask questions of their own witness.  The lecturer will demonstrate an examination in chief.  Evidential issues and rules concerning this skill are discussed during this lecture.

6.  Practical Examination of Witnesses
During this lecture students will be asked to demonstrate and take turns at examining a witness giving evidence in chief.  The case book R v Jordan will be used for this exercise.  Students will be critiqued so as to learn what they are doing right and what can be improved.  This will benefit not only themselves but the whole class.  This practical session will ensure that all students have been given the opportunity to practice this skill prior to the mock trial exam.

7.  Objections and Cross Examination
Students will learn how to object and whether one should object during the course of a trial.  This will be discussed and debated and students will learn that the primary reason to object is to exclude improper evidence and will learn what that encompasses and why one objects to certain evidence.  Students will learn how one physically objects and the common grounds used to support a formal objection raised during the course of an opponent’s examination of a witness.  Reference will be made to the Evidence Act 2006.  

The topic of cross-examination will also be discussed in detail.  Students will learn its purpose and the golden rules of cross examination.  Students will learn how one cross examines a witness and how one should deal with different types of witness.  Again reference will be made to the Evidence Act 2006.  Extensive discussion will occur regarding prior inconsistent statements and how one impeaches a witness.  There will be demonstration of cross examination by the lecturer.

8.  Practical Cross Examination Techniques
During this lecture students will demonstrate cross examination using the case book R v Jordan.  Students will be critiqued by the lecturer.

9.  Practical Cross Examination Techniques
During this lecture students will again demonstrate cross examination techniques by actively participating using the case book.  This practical session will ensure that all students have been given the opportunity to practice this skill prior to the mock trial exam.

10.  The Use of Exhibits and Re-Examination
Different types of exhibits and their appropriate usage will be the topic of this lecture.  Students will learn how to introduce an exhibit into a trial and learn about what evidential issues arise when one seeks to introduce an exhibit.

The topic of re-examination will also be covered during this lecture.  Students will learn about re-examination and this will be cross referenced to the Evidence Act 2006.  Students will learn how to re-examine a witness and when and under what circumstances one should re-examine ones own witness.

11.  Workshop
During this lecture students will be asked to practice leading and cross examining witnesses.  Matters such as the theory of the case, tactics and how one prepares for a trial will be discussed with an emphasis on preparing the students in a very real way for the upcoming mock trial exam.  

12.  Plea in Mitigation and Expert Witnesses
Depending on time the delivery of pleas in mitigation during a sentencing will be lectured upon.  Students will learn the purpose of a plea in mitigation, the concepts an advocate must cover during such a process and how to deliver a plea in mitigation will be discussed.

The art of examining and cross examining an expert witness will also be covered.  Questioning techniques for such a witness differ from questioning a lay-witness.  These two topics may not be covered if there is insufficient time.