This post has been created by Monesh Kumar, a third year law student from Guru Gobind Singh Indraprastha University, New Delhi.
“Art is not advocacy and advocacy is not art”-Erica Jong
The foible in today’s law graduate is not in a deficient knowledge of law but that he has little training in dealing with facts or people “the material of which cases are really made”. There is hardly a graduate who knows how to ask questions — simple, single questions, one at a time, in order to develop facts in evidence either in interviewing a witness or examining him in a courtroom. And a lawyer who cannot do that cannot perform properly — in or out of court.
Scope and importance
The purpose of trial advocacy is a vital; it is to satine the transition from the study of law to the practice of law. It teaches one how to be a skilled and able litigator. Trial advocacy enforces on the paramount rules of successful trials and courtroom etiquette.
Trial advocacy is the art of coaxing. Trial advocacy is the “constitution of fact extraction, legal reasoning, strategic judgment, and impactful speech, structured by the rules of professional responsibility, evidence, procedure and substantive law”. Cases are not won or lost merely by applying a particular principle of law or legal rule. Rather, these principles and rules become effective only in the hands of an advocate who supports them with a strong factual foundation and proffers them with impactful and articulate argument.
Law school also offers the unique opportunity to practice advocacy skills through a variety of regional, state, and national competitions. Such competitions include “mock trials,” which promote training in trial advocacy by providing students with a forum to exercise and demonstrate their skills and knowledge of evidence, trial techniques, and strategy. Each competition consists of a fact pattern involving either a criminal or civil issue. Utilizing the fact pattern, students prepare for and conduct a simulated trial from pretrial motions through closing arguments. Practicing lawyers and judges serve as the presiding trial judge, and score students’ performances on such criteria as whether the student- team presented a cohesive theory of the case, developed direct examination testimony in an interesting and coherent fashion, effectively controlled the witness on cross-examination, exhibited knowledge of evidentiary rules in making or meeting objections, and expressed such knowledge in a clear and succinct manner.
Faculty in-charge narrates to the students a simple fictitious case. Opportunity is given to students to select various roles/characters required for mock trial such as victim in the case, accused person, punch witnesses, prosecution witnesses, defense witnesses, Police officials, court officials, Public Prosecutor and defense counsel and Judge.
Once the student selects his role in the mock trial, students with the help of faculty members are required to research the area, identify procedural requirements, create necessary information, develop strategies in examination of witnesses and prepare the sequence of procedure to be followed in the trial. Thereafter students will practice in the presence of faculty the full pre and trial procedure as it occur in the real court. At least 15 to 20 students are necessary to conduct mock trial. Students practice the complete procedure for a period of one week. Once they are comfortable with the full trial, they do the final mock trial in the presence of other students of the college, faculty and other interested persons. One student is required to moderate the entire incident from the beginning till the end of the trial. The moderator will high light the provisions of IPC, CrPC and IE Act as and when they are necessary, in each and every trial stage.
When the Judges enters, everyone in the court should stand and remain still until the Judge tells everyone to be seated. The Judge shall call the Court to order, will announce the case by the names of the parties and shall ask the advocates to approach the bench for a pre-trial. The Pre-Trial is a formal meeting between the Judges and the advocates to answer any questions and clarify any points of confusion in order to make the trial progress rhythmically.
Opening statements should briefly tell judges of the nature of the facts of the case. The advocate should then briefly outline the facts and circumstances that brought the case to court. The advocate should tell the court which witnesses he will be calling and the advocate should summarize the key facts to which each witness will testify. He should also identify the importance of any documents that will be introduced during testimony. The advocate should conclude with the remedy or request for relief they seek. The opening statement should not contain too much detail; excessive detail is likely to tire or confuse the Court. The opening statement should not exaggerate the prosecution’s case or refer to specific evidence. Instead, it should state what the advocate anticipates will be presented at trial.
The purpose of the defendant’s opening statement is to deny that the prosecution and to brief up the facts from the view point of the defendant. The defense advocate should then tell the Court the general theory of the client’s defense and discuss the facts that weaken the plaintiff/prosecution case. The advocate should outline what each witness will testify and then conclude. The defense advocate should avoid repeating facts which are not in dispute. Like the plaintiff/prosecution, the defense should not make an opening statement that is argumentative or exaggerated.
Calling witnesses and direct examination
As the name suggests, the witnesses are summoned and direct examination is when the advocate asks his/her own witness questions on behalf of the party the advocate represents. The purpose of direct examination is for the advocate to present the evidence necessary to warrant a decision by the Court which is favorable to the client. All of the elements of a law or criminal charge must be brought into evidence through the testimony of witnesses or through documents.
Each direct examination is followed by a cross examination. During cross examination the advocate for the opposing party asks questions of the witness. Cross examination allows the opposing advocate an opportunity to secure admissions from the opposing witness that will tend to prove his/her client’s side of the case. The advocate asks questions of the opponent’s witnesses in an attempt to discredit those witnesses and negate the opponent’s case.
In closing arguments, the advocate should summarize the highlights of the witness’ testimony and the documents as they support his/her client’s case and should use those facts to undermine the opponent’s case. During the closing argument, the advocate should try to establish a persuasive link between the facts of the case and the law. Advocates are not allowed to discuss evidence that has not been admitted at trial during the closing argument; therefore, it is important that all of the advocates on a team cooperate to ensure that all of the evidence important to the client’s case has been brought out during examinations.
Legal advocacy is an art that surpasses the courtroom walls. It is difficult to conceive of a legal practitioner who does not, in some way and at some time, utilize the skills of advocacy i.e. analyzing facts and submitting arguments. Even the technical skills of trial advocacy, such as courtroom etiquette and attitude, learning how to express questions to draw out a favorable response, and making an effective oral presentation. Law school courses in trial advocacy provide the student with practical and smart skills upon graduation i.e. the ability to deal with facts and people.