Canadian Criminal Trial Advocacy/Preparing for Trial
The preparation for trial can be summarized generally into
- develop the theory and theme(s) for your case
- outline the elements that you need to prove to be successful in your case
- select the witnesses and exhibits you will call
- match at least one witness to each of the elements needed to be proven
- evaluate the witnesses based on their purpose, and
- identify problems they may present
- outline cross examinations of the otherside's witnesses
- review your theory, themes,and outlines
Organizing the File
There are a number of endorsed methods of preparing and organizing materials for trial. There is:
Trial Brief and Notebook
A trial brief and trial book are documents that contain all the materials that you will need for trial.
The trial brief consists of all official documents and materials relevant to the trial matter. That should be on hand during the trial proceedings.
This should include:
- the indictment or information that outline the charges
- a summary of the case
- investigation materials
- police notes
- witness statements
- medical/expert reports
- court orders
- other official documents (driving abstracts, etc.)
- demonstrative evidence
- legal memos
- case law
The trial book contains mostly the advocates work-product. This includes:
- a to do list
- witness list
- elements of the offence and an analysis of them
- Exhibit list
- notes for any motions
- outline of opening address
- notes for witness examinations
- notes of evidence to present
- outline of closing address
- notes on the charge to the jury
- potential grounds of appeal
The advocate must consider whether to prepare motions for the commencement of trial and equally whether motions from the opposing side are to be anticipated.
Motions to be considered at the outset:
- exclusion of witnesses
- exclusion of evidence (notice required)
- directed verdict
- change of venue
- quashing the indictment
Counsel should prepare all essential witnesses who provide non-trivial evidence in trial.
The most important goal is to refresh the witnesses memory of the incident. Counsel should speak with the witnesses and review the facts of the case and have them review their prior statement.
Counsel should also consider:
- the order in which to call witnesses
- whether the client wishes to testify
Effective Presentation and Style
A trial, in many respects, is a performance with as much drama as is found on TV or on film. Likewise, persuasion exists not just on the level of the substance of a presentation but also in the form of presentation. As such, the advocate's style of presentation can be just as important as the actual content and structure of an argument. An effective style may come naturally to some, but others will need to practice and refine their presentation to be an effective advocate.
An effective advocate will have control over their voice and body language while presenting. It is a whole package.
Confidence is key. You must appear to be in charge from the very beginning.
There are certain necessary qualities of an effective voice.
- speak slowly
- speak clearly
- speak loudly
Qualities of good body language:
- look the person you are addressing in the eye
- good posture
- take up space with your body
Much of a person's communication comes from non-verbal sources. A nervous tick or a habit that connotes uncertainty or weakness will have an impression on the audience. Negative unconscious body language must be eliminated.
Actions that should be avoided:
- fidgeting with papers
- looking down too much
- rocking back and forth
- too much politeness and deference
Use of Notes
While having prepared materials for trial are essential, it is generally said that extemporaneous presentation is more effective and persuasive.
- JW McElhaney, Trial Notebook
- David Baum, Art of Advocacy Preparation
- LR booth, "Throw away your trial notebook" (1988) 24 Trial 53