EFFECTIVE ADVOCACY
Janice Brennan

I. THE ADVERSARIAL PROCESSAs many of you will know, the criminal justice system in England is adversarial not inquisitorial.
The Prosecution, known as the Crown Prosecution Service (CPS), decides whether to charge the
Defendant with a criminal offence.Although funded by the State the CPS is entirely independent of theGovernment and, indeed, the Police. The investigation into whether a crime has been committed andby whom is conducted by the Police, who then present the results of that investigation to the CPS.
The CPS alone decides whether to charge the Defendant and in making that decision it applies a twostage test. First, is the evidence sufficient to create a realistic prospect of a conviction?If the answer
is no,the Defendant is not charged.If the answer is yes,then the second stage arises― is it in the public
interest to prosecute?For example, the evidence may show clearly that the Defendant has stolen an
item of little value, but the Defendant is terminally ill and about to die. It would not be in the public
interest to prosecute him for a minor crime in such circumstances. If, however, the alleged crime isserious, then neither old age nor ill health will necessarily mean that a charge will not be brought.
Provided that the CPS applies the correct two stage test,the Court will not in general interfere withthe decision reached by the CPS. In overall control of the CPS is the Attorney General, who isaccountable to Parliament.
Once a Defendant is charged,then the expectation is that the case will be brought quickly before the
Court. We have a saying that sums up the position well ― justice delayed is justice denied.Of course
a simple assault is very different from a complex fraud. Nevertheless both the Prosecution and the
Defence are expected to act efficiently so that each case can be brought speedily to trial.
If the Defendant is in custody,Parliament has imposed a custody time limit.No matter how serious
the charge, the trial must start within 112 days of the case being sent to the Crown Court or the
Defendant will be released on bail.The Court does have a power to extend the custody time limit,but
the Judge can only grant an extension in limited circumstances,generally when satisfied that there isa good and sufficient reason for an extension and if satisfied that the Prosecution has acted with all
due expedition.It is simply unacceptable that a Defendant should languish in prison for a long period
before the trial starts. You only have to put yourself or someone you love in the position of the
Defendant to understand the importance of efficient and effective trial preparation.Anyone ofus could
one day be unlucky enough to be the subject ofan allegation.Whether guiltyor innocent,and especially
if innocent, no-one should wait any longer for the trial than is absolutely necessary. The time limit
imposed by Parliament focuses the mind of the Police,the Prosecution,the Court and also the Defence.
Quite apart from the custody time limit, English Judges also have significant case management
powers designed to ensure efficient and speedy justice.
So the CPS alone decides whether to charge a Defendant with a crime. All prosecutions are donein the name of the Queen as Head of State.So,when I commit a crime,or more accurately,when I am
caught,my case will come to Court as the Queen (in Latin,Regina)v (against)Janice Lesley Brennan.
Those of us who prosecute must never forget that we do so in the name of our Queen. It is a serious
responsibility and we must at all times conduct ourselves with the utmost integrity and propriety.
Barrister, BarristersʼChambers, United Kingdom.

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At trial the case will usually be prosecuted and defended by members of the independent Bar,
Barristers. Many of us at the Criminal Bar both prosecute and defend, although obviously not in thesame trial!It is a good way to keep a balance,a sense of perspective and good judgement.I thoroughly
recommend it. The Prosecutorʼ
s task is to present the evidence that supports the charge. As it is theProsecution that brings the case against the Defendant,it is their task to prove the charge if they canby making the Jury sure of guilt.The Defendant has no obligation to prove innocence.The role of the
Defence advocate is to test the evidence and try to undermine it by creating doubt about guilt.
The Judge acts effectively as an umpire. He/she must ensure that the rules are obeyed. He/she
decides which evidence is admissible,if there is a dispute about that between the Prosecution and the
Defence.He/she will tell the jury what the law is that they must apply to the evidence.But it is the Juryand the Jury alone that decides whether the Defendant is guilty or not. The Jury decides which facts
are proved and which are not, which witnesses are truthful and reliable and which are not. The Jurymakes its decision on the evidence presented before them by the Prosecution and the Defence, and itis the Prosecution and the Defence,not the Judge,that chooses what evidence to produce in support oftheir respective cases.

II. ADVOCACY TRAINING M ETHODS FOR TRAINEE ADVOCATES AND NEW
PRACTITIONERSFor many years we believed that advocates were born with the necessary skills and that advocacy
could not be taught.We were wrong ― at least as far as the basic skills of an advocate are concerned.
Certain advocacy techniques can be taught and, if taught correctly, can be mastered by just about
everyone.Of course,once those techniques have been acquired,to become the best you will need naturalability and flair and you will find your own personal style. Not everyone can become a world classswimmer, but we can all be taught to swim competently and safely. So it is with advocacy.
The method that we now use to teach advocacy is one that we were introduced to about 20 years
ago by a brilliant Australian Judge, the Honourable M r Justice Hampel. We have adapted it slightly
to fit better with the English style of Courtroom practice. It has been our pleasure in recent years totravel to many countries around the world in order to share our experience of teaching advocacy andto help other jurisdictions create their own advocacy workshops. If any of you would like assistancein setting up your own advocacy training scheme, I would be very happy to discuss it with you later.
The beauty of the advocacy training method is its logic and its simplicity. Advocacy is a performance skill, just like playing a sport or a musical instrument. Effective advocacy requires the ability
to communicate and the ability to persuade. Of course one has to know what the law and the Courtʼ
sprocedures are,but that knowledge will not by itselfmake a person a good or effective advocate.There
are 4 basic elements of the skill of advocacy:i)

The ability to ask clear and simple questions of witnesses;ii) The ability to structure the questioning of a witness or an argument in order to achieve theobjective;iii) The ability to present an argument with clarity and precision;iv) The use of a manner which is attractive to the Court.
How do we teach those basic elements?First of all we watch and listen as the trainee advocate
performs a short piece of advocacy that lasts no more than about 4 or 5 minutes. As the trainee
performs, we assess and we select one aspect, and one only, of the performance that we feel is afundamental aspect that needs to be addressed in order to improve the performance.Our goal is to help
the trainee to perform better,to a higher level of skill,but it must be done one step at a time.You do
not teach new car drivers by placing them in a Formula 1 sports car and asking them to drive at speed
in a Grand Prix!You would instead put them in a low power car and teach them first to drive slowly
in a straight line. Only when they have mastered that technique will you teach them how to reverse.

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Once we have identified the one fundamental aspect of the traineeʼ
s performance that we want toaddress, we then embark upon a six stage review of the performance:i)

Headlineii) Playbackiii) Reasoniv) Remedyv) Demonstrationvi) Replay.
The Headline is a succinct and simple identification of the aspect of the performance that we intend
to focus on. It may be, for example, “Ask one question at a time”. It is designed to be memorable sothat the trainee can later remember and, therefore, apply the lesson being taught.
The Playback is simply a brief reminder to the trainee or what he/she actually said in theperformance that gave rise to the Headline.For example:“You said this to the witness-ʻ
You went to
the Bank,you had a gun with you,you demanded a lot of money,you threatened to kill the staff at thebank, you hit the security guard over the head with the gun, then you ran out and into your getawaycarʼ.”
The Reason explains in simple language whywhat the trainee said was not effective advocacy.Herethe reason would be as follows:“You have asked not one question but seven questions.If the witness
answers “No”, is that “no”to each question or “no”just to the last one,or the middle one or some ofthem?If you want to persuade the Court you will not succeed if you confuse it.”
The Remedy is a practical explanation of how the trainee advocate can do this aspect of theperformance better. For example:“Break down your questions into one discrete area or concept at atime. Require the witness to answer that one distinct point before you move on to the next point,andthen the next and so on until you have finished.”
The Demonstration requires the Instructor to show the trainee how to do that single aspect of theperformance.The Instructor must demonstrate at the level of competence that the trainee realistically
can master. The demonstration is an essential part of the training method because experience has
shown the truth of the old adage:“
Tell me ― and I will forget;explain ― and I will understand;showme ― and I will remember.”
Finally there is a Replay. This is where the trainee has another short attempt at the performance.
It is designed to show the Instructor that the trainee has now mastered this one aspect that was the
subject of the Headline.
Later, when the trainee does a further piece of advocacy, the instructor will seek to improve a
different aspect of the performance.So bit by bit,the trainee learns the different skills required of an
advocate.
This method of instruction works,there is no doubt about it.In my free time when I am not in Court
myself, I teach advocacy to the young members of my profession using this method. It is a tried andtested formula and I thoroughly recommend it to you. My fellow teachers are both practitioners andJudges, each one of us keen to help the next generation of advocates. We ourselves improve as
advocates by the very discipline of teaching. Advocacy is a skill that must be practised constantly andthe best teachers of advocacy are those who themselves work as advocates in the Courts.

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III. THE BENEFITS OF EARLY CASE STRATEGY PLANNING
Knowing how to formulate a question or how to advance an argument is only part of our task asadvocates. To be effective and persuasive we need to identify what our goal is and how we seek toachieve it. We know the verdict that we want the Judge or the Jury to reach, but how do we say the
Court can legitimately reach that decision?What is our strategic route map to that conclusion?Whatis the argument which logically leads to that conclusion and that conclusion only?This is what we call
Case Theory or Case Strategy.
It requires a close examination and analysis of the available evidence.Is it complete?Are there gaps
in it which are capable of being filled?Is the evidence credible?Is it consistent with other evidence orundermined or contradicted by other evidence?Or does it fit together well?Is this particular witness
both honest and reliable? Is there scope for mistake or confusion? Only by asking yourself suchquestions at an early stage are you able to form a judgement about the way ahead.It means not merely
taking the evidence at face value,but thinking about it more deeply,constantly probing and assessing.
An effective and persuasive Case Strategy or Theory is one which is:i)

Consistent with the evidence;ii) Consistent with the law;andiii) Consistent with common sense.
If it is not consistent in those three ways, it is not a valid Case Theory and the Judge or Jury will
have to reject it. If done early, this approach will not only allow time for further evidence to beobtained,but it will also allow for a better judgement to be formed as to the likely success of the caseat trial. From an advocateʼs point of view, it allows you to put forward a persuasive and compellingtheory in your opening speech, which you are able to maintain throughout the trial.

IV. CONTINUING PROFESSIONAL DEVELOPMENT FOR EXPERIENCED
ADVOCATES
It was not until 1999 that the Bar Council for England and Wales introduced the concept of
mandatory continuing professional development (CPD)for experienced practitioners.I was appointed
a member of the first CPD Board,later becoming its Chairman.I still have very mixed views about theconcept.
The rationale behind the idea was that the public was entitled to be satisfied that members of the
Bar were maintaining and improving the knowledge and skills that they acquired when they firstqualified as Barristers.After all,nobody would want to be treated by a doctor who was ignorant of all
the advances in medicines since he/she became a doctor 40 years ago.
The difficulty that the Bar Council faced was how to ensure that each barrister was indeed stillcompetent to practise.The knowledge and skills which I need as a criminal practitioner,who conducts
trials in Court before Juries five days a week, are very different from those of, say, a commercial
practitioner, who may only rarely appear in Court and then only before an experienced and seniorJudge. The solution that the Bar Council reached was to leave it to the personal judgement of eachbarrister precisely what further professional development was needed,provided that it amounted to atleast 12 hours of training per year.
But therein lies the weakness of the scheme.No competent professional would dream of not keeping
up to date with the law; nor would such a person allow his/her skills to fall below an acceptable
standard.Such a professional does not,therefore,need to be required to undertake further training as
he/she would do it anyway. The less than competent practitioner, however, cannot be forced to
improve if he/she does not want to. Such a person can be made to attend a lecture, for example, butcannot be made to pay attention to it.

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So while I cannot fault the logic behind the concept of compulsory continuing professional development,I do have veryreal concerns about its efficacy.I look forward to learning about your experiences.

V. ADVOCACY TECHNIQUES BEFORE LAY JURIESAND PROFESSIONAL JUDGES
Those of you who are advocates will know only too well how our approach will differ dependingon whether we are appearing before an experienced,professional Judge or before a Jury comprised ofmembers of the public. A professional, legally trained Judge will pick up a point very much quicker
than a Jury, sometimes before you have even articulated your point. A Judge can master complex or
copious material with comparative ease. A Judge will not have difficulty in understanding expert
evidence. A Judge may engage in a dialogue with you from which you can gauge whether he/she hasformed a favourable or unfavourable view of your argument.
A lay Jury on the other hand is an unknown quantity.You have no idea of their experience or levelof understanding of either the evidence or the argument you are advancing.They may find the prospectof expert or complex evidence utterly terrifying.But,the advantage of a lay Jury is that they lack thenatural cynicism of a case hardened Judge. They have an abundance of common sense and an
experience of life far wider than that of a Judge.They are perhaps more amenable to persuasion andgood advocacy.
So what techniques can you employ to assist a lay Jury and, therefore, enhance your prospects ofsuccess?Clarity,simplicity,brevity and a measured pace of delivery― these are perhaps the key skills.
Clear, everyday language is essential. We lawyers may understand our own jargon and shorthandterms ― members of the public will not.If the Jury cannot understand what you say,they will certainly
not be persuaded by your argument.
I firmly encourage brevity on the part of an advocate. How often have you had to endure a long,dull speech?I very much hope that mine is not one of those!!I know only too well how easy it is for
my attention to wander when I am bored, how sometimes I have to struggle to stay focussed or evenawake.Professional Judges are far better able to deal with dull speeches than ordinary members of the
public on a Jury. The current young generation has an especially short attention span. They use
Twitter to communicate ― 140 characters. They send text messages. Or use Facebook. M any do nothave the patience even to read a book.They exist on sound bites and short snapshots of information.
They cannot sit down for dinner without constantly checking their smartphones.Advocacy has to takeaccount of this new style of life.
So get to the point. Look at each member of the Jury as you address them. It is far harder forsomeone to lose attention when you have eye contact with them.Make what you say interesting.Speakslowly.They need not only to hear what you have to say,but also have an opportunity to absorb it andbegin to process it in their minds. Make them feel a part of what you have to say. For example,
sometimes when I am about to make a point about a piece of evidence, I will preface my remark by
a comment such as this:“I suspect,members of the Jury,that you will already have identified this odd
feature in the evidence. You will no doubt have asked yourselves, how can that be true?”It can beproductive occasionally to flatter the Jury in this way,to make them feel that you regard them not only
as intellectual equals, but perceptive and thoughtful too.

VI. SIMPLIFY THE INDICTMENT
In England the very first thing that the Jury hears in a trial is the Indictment, that is the charges
that the Defendant faces.Often there may just be one charge,for example,murder or rape.But we all
have experience of trials where there are many, many charges upon which the Jury has to reach averdict.I think that the most that I personally have had to deal with is about 40 charges in a case where
the Defendant had been committing sexual offences for more than 50 years against four generations of
his family.
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magnitude of their task,afraid that they will not understand the case and scared that they will become
confused.If you allow them to panic,they will quickly conclude that they could never,ever be sure of
the Defendantʼ
s guilt and they will decide at the outset that their verdicts will be ones of Not Guilty.
The more that you can simplify the Indictment,the charges,the better.It may be productive to selecta few charges only to represent the most serious conduct of the Defendant rather than seek to have aseparate charge for every possible crime the Defendant has committed, whether serious or not.
When I prosecute a complex case,I frequently prepare what I call a “Guide to the Indictment”,thatis a short document which describes in non-legal language what the misconduct in each charge is.It isa practical document designed purely to assist the Jury, and indeed the Judge, to understand thecharges more easily.

VII. OPENING SPEECHESThe next stage in an English trial, after the Indictment has been read to the Jury, is for theProsecutor to make an Opening Speech.My goodness,have I heard some bad opening speeches during
my 34 years at the Bar!Dull, difficult to follow,unengaging,lacking in confidence.For a Prosecutor,
an Opening Speech is a most potent weapon in your armoury. It is your very first opportunity to put
your mark on the case, to begin to persuade the Jury that your case theory is correct and that the
Defendant is indeed guilty. The moment that you open your mouth to speak you will have the rapt
attention of everyone in the courtroom. Do not waste that magic moment. Tell the jury at once what
the case is about. Grab their attention and keep it. Let me give you an example:“Members of the Jury, the 21st of August was a perfectly ordinary night for 75 year old Mary
Jones. She had a cup of tea and then went to bed at 10 oʼclock. But she did not sleep for long.
Just after midnight there was a massive bang on her front door. She put on her dressing gown
and went down to open the door. There in front of her was a man she had never seen before.
Covered in blood and with a knife protruding from his back.Before he could utter a single word,
he collapsed on the ground and died.The Prosecution saythat it was this Defendant who plunged
that knife into his back and killed him. Your task, members of the Jury, is to decide if theProsecution can prove that it was him.”
Have I captured your attention and interest? I hope so. Compare then that introduction to an
Opening Speech with this bad example:“Members of the Jury,the Defendant is charged with murder.M urder is a common law offence.
It is the unlawful killing of another person.Unlawful means without legal justification or excuse.
The Prosecution must prove that when the Defendant killed the victim, the Defendant either
intended to kill him or intended to cause him grievous bodily harm.Grievous bodily harm means
really serious bodily harm. The Prosecution has the burden of proving the Defendantʼ
s guilt.It
must make you sure of his guilt.That is a very high standard of proof.Nothing less will do.He
does not have to prove his innocence.If the Prosecution does not make you sure of his guilt,heis entitled to be found not guilty.”
That example is what I describe as a dull law lecture. It does not inspire any interest in the case,it does not suggest any particular confidence on the part of the speaker and it almost indicates that a
not guilty verdict is appropriate. Once you have lost the attention of the Jury it will be very hard toregain it. So instead my advice is to seize the initiative and maximise the potential that an Opening
Speech presents you. Tell the Jury the story, do it with confidence and flair, inspire them with yourenthusiasm.

VIII. EFFECTIVE PRESENTATION OF EVIDENCE
If done well,the Opening Speech whets the appetite of the Jury for the evidence.How you present
that evidence can make a big difference to the ability of the Jury to understand it and be persuaded by
it. If you can, start with a strong, interesting witness. Do not begin with difficult to follow, technicalevidence ― leave that until later. If you have a potentially weak witness,it may be wise to sandwich

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him/her between two stronger witnesses.Part of proper case preparation involves an assessment oftheorder in which you should call your witnesses.There is no obligation to start with the victim.Let me
again give you an example:
A woman alleges that the Defendant raped her.When interviewed by the police the Defendant saysthat not only did she consent to sexual intercourse with him, but that she instigated it. In addition to
the woman,you also have a witness who was driving down the road where the incident happened.His
evidence is that he saw a woman run out into the path of his car and force him to stop.He noticed that
her clothes were torn and that she seemed terrified and distraught,barely able to speak other than to
say the one word “Police, police”. Why not call him as the first witness?It sets the scene beautifully.
He has no motive to lie.He cannot be attacked in cross-examination in the way that the victim can be.
It is a strong note on which to begin your evidence.It enhances the credibility of your victim before sheeven gives her evidence.

IX. THE USE OF PRESENTATIONAL AIDS
We do not use these nearly as often in England as I believe we should.Language is a wonderful tool,
but sometimes not as effective as a photograph,a map or a plan.If you want a Jury fully to understandjust how big a quantity 5 kilograms of cocaine is when a Defendant says I did not know that that wasin my suitcase,let them see the actual bag of cocaine.Let them touch it,hold it in their hands,feel its
size and weight. When a Defendant says I forgot that I had a knife in my hand when I struck out atthe victim, let the Jury hold the knife, see its length, gauge its weight and get a sense of just how
difficult it is to “forget”that it is there.
A few years ago I prosecuted a Defendant for causing the death of two young people by his
dangerous driving.There were a substantial number of eye witnesses to the crash.When I prepared thecase and read the various witness statements,I found it very easy to get confused about which vehicle
was where on the road at any particular time.I quickly realised that there was a high likelihood that
the Jury would also become confused and that,once confused,they could not be sure of guilt and wouldfind the Defendant not guilty. I decided to ask the police to prepare for me a big display board and anumber of small magnetic toy cars in different colours.The police were sceptical of my request.They
said that no-one had ever asked them for that before,that they really didnʼt think it was necessary,andso on. I am sure that they thought to themselves:“Silly woman!”
I made my Opening Speech not from myusual position in the Courtroom,but standing bythe display
board.As I explained to the Jury the sequence of events that led to the crash between the Defendantʼ
s
car and the car with the two deceased, I moved the toy cars across the board. The Jury and Judge
watched intently.I could tell that they were able to follow the story that I was relating to them.When
the time came for each witness to give evidence,the board was placed by the witness box and I asked
them to show on the board what they remembered each vehicle doing.The visual effect was far moreproductive than the mere spoken word. Indeed being able to see this representation of the incident as
it unfolded actually seemed to help the recall in the witnessesʼminds.As a consequence,their evidence
was coherent and compelling. By the end of the trial the sceptical police officers were completely
persuaded of the effectiveness of this visual aid and have used it many times since in other trials.
Such presentational aids can be used in all types of trials.If you want to show how a Defendant haslaundered criminal money around the world through numerous bank accounts in different countries,
why not illustrate it, transaction by transaction, on a computer screen in front of the Jury?A picturetells a thousand words. A picture is memorable in a way that words may not be.
M any, many years ago when I was just a baby barrister I represented the Defendant, a balletcompany, in a civil case. The claimant was a dress maker who had been hired by the ballet company
to make the dresses for the ballerinas. The costumes did not fit and so the ballet company refused to
pay for them. I decided that the photographs of the dresses did not adequately demonstrate just how
poorly fitted they were and so I arranged for the dancers themselves to come to Court dressed in the
costumes.Each time the ballerinas did certain dance moves,a breast would be exposed.The Judge wasvery quickly persuaded of the validity of the defence!

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X. HOW TO MAKE EXPERT EVIDENCE INTELLIGIBLE
The variety of our work often requires us to master complex expert evidence. Medical experts,
financial experts,fingerprint experts,DNA experts,blood spatter experts,facial mapping experts,roadtraffic collision experts, aviation accident experts, structural engineering experts, the list constantly
grows.You will have come across all of these and no doubt many more too.The first difficulty we faceis to understand the reports ourselves!We will frequently have to read and re-read them before we cangrasp precisely what the expert has said. Until we ourselves understand it, we cannot even begin to
make it intelligible to a lay Jury or even to certain Judges. We cannot expect a Jury to accept theevidence of a witness if they do not understand what the witness is saying.
Long before the trial starts I tryto meet the expert and ask him/her to explain to me in simple terms
what this area of speciality is all about.Only when I am able to put it in my own straightforward way,using as few technical terms as possible,will I be happy.If I do not understand it,how can I expect tohelp the Court to understand it?When I make my Opening Speech I will endeavour to explain to theJury whatever the topic is in those simple words and I will tell them only as much as they need to know
in order to understand the case.
When the expert witness is in the witness box,very often I ask him/her to start with the conclusion
he/she has reached, for example, “The blood inside this babyʼ
s brain was most likely a result of anincident of violent shaking which took place not more than 48 hours previously.”This is like the boldheadline in a newspaper.It sets the scene and is memorable.Then I will work backwards to elicit fromthe expert witness what clinical findings caused him/her to reach that conclusion.Again I shall makethe expert explain it in very simple language. Sometimes a presentational aid assists, for example, ababy doll or a model of a skull. Even if the Jury finds it a little difficult to understand all of the
explanation of the expertʼ
s reasons for reaching the conclusion,the Jury will not forget the conclusion
itself.
It is equally important when you have to cross-examine an expert to use the simplest possible
language so that the Jury can understand and follow your line of argument.Everything we do in Court
should, of course, be done at a measured pace, but that is especially so when dealing with highly
complex concepts.

XI. CROSS-EXAM INATION TECHNIQUESIt is only on television that you will see a cross-examiner force a witness to say “
Yes,Iʼ
m guilty,I
did the murder.”But, you donʼt have to obtain a confession to achieve your purpose. Short directquestions that put the witness on the spot are especially productive. Sometimes the most effective
question is the single word:“Why?”
A good cross-examination needs to be planned meticulously.It is like a ballet.For it to flow well,it needs to be choreographed. Your first question is extremely important because it sets the tone forwhat follows.Your first question is the one most eagerlyanticipated bythe Jury,probablybecause they
too have watched many television programmes!!As you begin with the rapt attention of the Jury,it isvery important not to lose it by asking a pointless or unnecessary question.Cut out anything that does
not matter and instead get straight to the point. The shorter and more direct your question, the lessscope there is for the witness to avoid answering it ― and if he/she does seek to evade the question,then that will be at once apparent to the Jury, who will draw the obvious conclusion.
One error which many advocates make is to ask what we call multiple questions,that is,more than
one question at a time.It is unproductive.The witness will not remember all of the questions and will
choose to answer only the one that is most favourable to him/her.By limiting yourself to one question
at a time, you maintain the opportunity to build your cross-examination up and increase the pressure
on the witness bit by bit.Of course the witness is not going to agree with everything you ask,but,by
asking your questions firmly, confidently, slowly and succinctly, you are likely to create in the mindof the Jury the impression that your case theory is the correct one. What you want is for the Jury tohear your question, process it in their heads and think to themselves:“Thatʼs a good question,”then61

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turn to the witness and silently say:“Letʼ
s see you answer that if you can.”Once you have asked what you need to ask,shut up!The danger for all of us advocates is that welike the sound of our own voices. We think that we can improve on the answers we have alreadyobtained. We are wrong!Stop when you have done what you set out to do. We have all made themistake of asking one question too many ― and undermining all that we had previously achieved.
Donʼt restrict yourself to a pre-prepared list of questions.It is not a play at the theatre where each
person follows a pre-determined script. Of course as part of your case preparation you will haveanticipated what the witness is likely to say,nevertheless,until you actually hear the answer and see
how the witness gives that answer, you cannot know for sure what he/she will actually say. A good
advocate is a good listener. Sometimes the witness will blurt out a remark that he/she did not mean
to say.It may be highly significant.If you do not pause to listen but instead plough ahead with the nextquestion on your list,you will miss it and lose it for ever.If the answer is particularly damaging to thewitness,then silence for a few moments is the best technique.Let that damaging answer sink into theminds of the Jury.Your silence is the non-verbal equivalent of underlining the answer with a thick red
pen.

XII. CLOSING SPEECHES
M any that I have heard are dull,dull,dull.If the audience is bored,their attention will wander andit can be very hard to get it back again. Merely repeating to the Jury the evidence that they havelistened to is not only dull, but it treats them as complete idiots. You might just as well say to them:“I know you heard this evidence,but I think you are extremely stupid and so I will tell you the evidence
again.”Advocacy is the art of persuasion.The closing speech is your opportunity to show the Jury why
the evidence points to the conclusion you wish them to draw, why they should rely on one witness orpiece of evidence and reject another. It is a time to reason with them, not to lecture them. In my
experience Juries particularly dislike being told by lawyers what they must do.They are highly likely
to do the complete reverse to show their objection if you are foolish enough to try to bully them!!
Remember that they are lay people, not lawyers.
Remember too that some of them will be especially nervous about the importance of their function.
It is indeed a heavy responsibility to sit in judgement of our fellow citizens and as a result some jurors
worry enormously about making a mistake. Some will be tempted to say “
not guilty”purely because
they are too frightened to say “
guilty”in case they are wrong. A technique which I employ is to go
straightaway to my first point ― no introduction, no preamble, just the first matter I want them toconsider.Sometimes I do it by way of a rhetorical question,for example,“Why would the Complainant
make up an allegation that the Defendant raped her,if he did not?What possible gain does she get froma false allegation? Why would she choose to put herself through the ordeal of a trial if it did not
happen?”M y objective is to get the Jury to think in the way I want them to. By posing the question,
but not supplying the answer, I allow them to believe that they are working out the answer forthemselves.This flatters their intelligence and acknowledges their independence.They do not feel that
I am telling them what to do.
I will never sayto a Jury:“You must believe this particular witness or accept this piece ofevidence.”
That is to bully them. Instead I might say something like this:“It may be that when you heard thiswitness you thought to yourselves:that sounds credible.”Or I might say:“
No doubt you have alreadythought of this point yourselves”and then I go on to mention my point!Treat the Jury as your equals.
You will be amazed at how perceptive they are,how good they are at judging witnesses and assessing
evidence,how sometimes they spot something that we experienced advocates have missed!None of us
has the monopoly on wisdom and certainly not me!

XIII. CONCLUSION
It is a privilege to be an advocate in Court.I enjoy my career enormously.We never stop learning
more about our art.I very much hope to have the opportunity to listen to your experiences and to learn
from you how to do my work better.

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