Definition trial advocacy

Examples of Criminal advocacy in a sentence Criminal advocacy , including communication skills, case preparation and non-trial advocacy, focusing on client care and interviewing, bail applications and pleas in mitigation. Criminal advocacy means advocacy in all hearings arising out of a criminal prosecution of whatever nature and by whomsoever brought, including a private individual.

Advocacy means advocacy on behalf of an individual or family, and not on behalf of a cause or a group of people. Criminal history means the list of a defendant's prior convictions and juvenile adjudications, whether in this state, in federal court, or elsewhere. Administration of criminal justice means performance of any of the fol- lowing activities: Detection, apprehen- sion, detention, pretrial release, post- trial release, prosecution, adjudication, correctional supervision, or rehabilita- tion of accused persons or criminal of- fenders.

The administration of crimi- nal justice shall include criminal iden- tification activities and the collection, storage, and dissemination of criminal history record information. Violent felony means any offense that, if committed by an adult, would constitute a felony and:. Specified criminal activity means any of the following offenses:. Violent crime means a forcible felony, as defined in Iowa Code section Drug-related criminal activity means the illegal manufacture, sale, distribution, use, or possession with intent to manufacture, sell, distribute, or use of a controlled substance as defined in Section or the Controlled Substance Act [21 U.

Public health authority means an agency or authority of the United States, a state, a territory, a political subdivision of a state or territory, an Indian tribe, or a foreign government, or a person or entity acting under a grant of authority from or contract with such public agency, including the employees or agents of such public agency or its contractors or persons or entities to whom it has granted authority, that is responsible for public health matters as part of its official mandate.

Licensed health care professional means a person who possesses a professional medical license that is valid in Oregon. Licensed health care practitioner means a physician, as defined in Section r 1 of the Social Security Act, a registered professional nurse, licensed social worker or other individual who meets requirements prescribed by the Secretary of the Treasury.

Students who enroll in this offering may count the credits towards the JD experiential learning requirement. Students may not drop a course if they do not have an offer to enroll in a different JET course. Most courses are limited to 72 students. Class attendance is required in each course every day of the term, beginning Monday, January 6th. Students should make their travel plans accordingly.

Students should not take on other work commitments during the term. Please note Introduction to Trial Advocacy will not satisfy the Trial Advocacy Workshop pre-requisite requirements for upper-level clinics.

In the U. The Petition was brought under S. Legal Notice 6 of After an exhaustive analysis of judicial authorities within and without Kenya, the Court adopted and approved 10 benchmarks as set out in Locabail UK Ltd v. Bayfield Properties Ltd [38] :. In any case of automatic disqualification on the authority of Dimes and Pinochet [39] cases a a judge should recuse himself from the case before any objection is raised;. The same should be the case, if for solid reasons, a judge feels embarrassed hearing a case;.

It is highly desirable, if extra cost, delay or inconvenience is avoided by the judge recusing himself at the earliest stage before the eve of the day of hearing.

Parties should not be confronted with a last minute choice between adjournment after a valid objection. In any case not giving rise to automatic disqualification or personal embarrassment, where a judge becomes aware of any matter that could arguably give rise to a real danger of bias, it is desirable for disclosure to be made to the parties in advance of hearing.

If an objection is made, it is the duty of the judge to consider it and exercise his judgment upon it. A judge would be wrong to yield to tenuous or frivolous objection, same would be the case for ignoring an objection of substance.

Where the facts of a case lead to apprehension of reasonable suspicion test, the Court of Appeal adopted the principle set out in the Constitutional Court of South Africa in The President of the Republic of South Africa v.

In Re JRL exp CJL Re , [42] the Australian High Court observed that although justice should be seen to be done, the judicial officers discharge their duty to sit and do not, by ceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking disqualification of a judge, they would have someone who would decide their case in their favour. In Re Ebner v, Official Trustee in Bankruptcy , [44] where the Australian Federal Court asked the question why it should be assumed that the confidence of fair minded people on the administration of justice is to be shaken by existence of a pecuniary interest of no tangible value but not the wastage of resources and delays caused by setting aside judgment on the ground that the judge is disqualified for having an interest.

As observed by Callaway JA, the judge should not accede to unfounded disqualification application. The Court therefore came to the conclusion that test of whether an objective onlooker might have a reasonable apprehension of bias is clearly a more satisfactory one and thus applied it in this matter.

The Court further observed that where a judicial officer is challenged for possible bias, the challenge assumes a higher dimension in that it is a collateral attack on the administration of justice as a whole and ceases to be a personal affair to the judicial officer.

Engineering Construction Limited and Others , [47] an application was made for the disqualification of the presiding judge, Hon. Justice Lakha, claiming it unwise for the judge to have had two luncheons with Mr. Esmail, advocate for the first respondent. The Court analyzed a number of English authorities and came to the conclusion that there is automatic disqualification for any judge who has direct pecuniary or proprietary interest in any of the parties or is otherwise closely connected with a party that he can truly be said to a judge in his own cause.

Unconsciously setting the tone for Home Pack Caterers the Court held that surmise, conjecture or suspicion is not enough and that personal knowledge of counsel does not disqualify a judge, otherwise there would be few judges who would not be disqualified. Thus the Challenged judge rejected the application for his disqualification.

On 6 th February , the Kenya Government was upbraided very publicly for attempting to force two judges to step down from hearing a case in which it is a very interested party the case related to the nomination of members to the East African Legislative Assembly. In the February ruling, the EACJ expressly accused the Attorney General of Kenya of bringing the recusal applications against the two Kenyan Judges as a time-wasting ruse in order to allow the Kenyan Government to amend the Treaty to its desired ends.

The Judges of the EACJ say categorically, we are constrained to say that any reasonable court would conclude as we are inclined to do, that this application was brought more out of a desire to delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing.

In our view, this is tantamount to abuse of court process, and we would be entitled to dispose of the application on that finding alone.

In other words, the Government of Kenya was attempting to interfere with the administration of justice at the EACJ, by changing its constitutive statute to favour it as a party before the EACJ.

Hence in Attorney General of the Republic of Kenya v. The issue in this case was therefore whether the two judges would have recused themselves before hearing the interlocutory application and if that is the case then the consequent order should be set aside. The Court, agreeing with S.

Rugby Football Union case observed that where a recusal application comes before a court constituted by several judges, subject to the judge whose recusal is sought giving his individual decision on the matter, all the judges constituting coram for the case have a collective duty to determine if there is sufficient ground for the judge to recuse himself from further participation from the case. In the instant case the applicant waited until the interim application was decided before raising the aforementioned objection.

The applicant while bringing the application to Court, was at the same time seeking an amendment to the EAC Treaty on the subject-matter before the court, resulting in the court coming to the conclusion that the application was brought more out of a desire to delay the hearing of the reference than a desire to ensure that the applicant receives a fair hearing. Dress Code. Know your judge. Different judges have different views about issues of dress. Mary Angawa J requires that advocates before her court must always be fully robed.

Familiarize yourself with the dress code for the Law Society of Kenya. This plays an important role in the overall poise of the advocate in court. Modes of address. How you address judicial officers and fellow cousel. In court, always use polite language. Avoid asking the court direct questions. Make a habit of thanking the court. Even when disagreeing with the court, do it with respect.

Agree politely. Always be respectful and polite. Time management. Dressing the court. If you are the last advocate in court, do not leave the court alone. If you have to, seek the permission of the court. By Keith Evans. The business that goes on in the trial process is to get the tribunal to arrive at an opinion favorable to your client.

It is not a duel, as such, but rather a carefully controlled presentation. It is however advised that we avoid dishonesty, lies and concealing information.

Some of the rules of evidence achieve the objective of, not necessarily finding the truth, but of something else. We are essentially seeking the truth in accordance with the law. We may or may not, in the course of it, arrive at the objective truth. If we do, well and good. If not, those are the rules. Refer to the case of O. Criminal court found him not guilty, yet the civil court found him liable for wrongful death. In a criminal matter, the standard of proof is beyond a reasonable doubt.

In a civil court, it is on a balance of probabilities. Nevertheless, although it is not a device to discover the objective truth, it is not for the lawyer to engage in dishonesty. Dimension 2: The human animal is far more video than audio.

If, on the other hand, they see something connected with what they are hearing, as they are hearing it, they remember 50 percent. Dress appropriately.

Do not be seen to be in too friendly a relationship with your opponent. This is particularly important in courts where you know your opponents well. Even if you are the greatest of friends outside the courtroom, it is your duty when in the courthouse to conceal this. Plain courtesy is enough. Be pleasant but not friendly. The reason for this ought to be clear: if the tribunal should happen to see you, outside court or on your way to the courthouse, in an obviously friendly encounter with your opponent, and then see you, in court, in an adversarial situation with the same person, they are going to wonder about your sincerity.

Is your advocacy some sort of act in court, some kind of game? The use of jokes is a very delicate matter. Nothing is as off-putting as seeing laughter and joking in front of you without knowing what is going on and being able to share in the fun. If you fail in this even one time, you undermine your chances for the whole of the rest of the case.

Never convey any visual signal that you do not intend to convey. The use of visual aids. Where appropriate, where suitable, use visual aids to make a point. Maps, diagrams, charts, etc. A case can be built or collapsed on this. Eye contact. Maintaining eye contact with the tribunal is important. Differentiate this from perpetual staring. Eye contact depicts honesty and conviction. Dimension 3: People do not like lawyers. Stick rigorously to the truth.

Dimension 4: Time. Therefore it is important to observe all matters of time. These include brevity, punctuality, etc. Rule 1: The advocate must not express his or her opinion in court. The story must come from the witness, and not the advocate. Your submission is only dependent on the evidence tendered.

NEVER express your opinion or view. Rule 2: The advocate must never give, or appear to give evidence in a case. Lawyers do not give evidence in court. This is the basis for the rule against posing leading questions. Asking leading questions in x-examination is however allowed.

Rule 3: In your final speech, speak only on things which have been touched upon in the evidence. Do not appear to fill gaps that may be there in the evidence already tendered by you. Phrase your questions in such a manner that you want your witness to either agree or disagree with you [52]. These questions re intended to bring out your case theory. Rule 5: You must never refer to the criminal record of an accused person or to any offers of settlement.

This can be qualified where matters such as the criminal record are relevant. Therefore, stick to relevance. It is unethical for a lawyer to bring to court without prejudice correspondence. Rule 6: Never put words into the mouth of your own witness.

Stick only to what the witness said. When examining your own witness, ask everything you need to establish your case theory. Never leave anything hanging, even to ask in re-examination. This will backfire should the opposing counsel choose not to cross-examine your witness. There is a lot of human psychology that goes into the trial process.

Tip 1: Be likeable. People like people who are likeable. At any rate, be slightly more likeable than your opponent. Tip 2: The sympathy rule. Conduct yourself in such a manner as to attract the sympathy of the fact finder. Never get into a confrontation with the fact finder. They are then more likely to listen to you willingly, put the kindest interpretation to what you say, feel reluctant to deny you what you ask and the tribunal will feel inclined to overlook your mistakes.

Tip 3: The rule of equals and opposites. The rule is simple. Tip 4: Include the fact finder by use of 1 st person plural. Think we never they, us never you. Tip 5: Prepare the tribunal. Point out the weaknesses of your case yourself. These makes you, first of all, appear honest and also steals the thunder from your opponent by diluting their attacks. Tip 6: Always aim to be the honest guide. Always come across as being absolutely fair.

Keep your objections to a minimum. This involves the initial interview meeting between the lawyer and the client. To be effective interviewers, the. Key objectives:. Establish a good relationship with the client. Obtain adequate information and reach a conclusion. Preparing the client for an interview. You need to have all the vital materials you will need for the interview.

This includes the requisite documents and stationery. You must have read through the interview in advance. Setting up the appointment - You must have set the appropriate date, time and location for the meeting. The location must be comfortable as well as formal. Confirming the appointment and requesting information. Details of the meeting and the agenda should be confirmed to the client through a formal letter from the firm. It is important to gather all the requisite documents for the interview and reviewed them prior to the interview.

Preparing the interview location. This is important to make the client comfortable. The location should be comfortable, clean and free of clutter. Interruptions should be kept to a minimum. Client consent must be obtained before recording the interview.

Preparing an instructional folder for the client. Consider all documents and checklists for all the information that will be relevant to the client. Handling the client interview.

This handles how you welcome the client, make them feel comfortable, how you ask the questions and the advice you offer. Listening and questioning. Active listening. Do not interrupt constantly. Reflect on what you have been told, summarize findings to the client. Observe body language. Advising the client.

Outline the options, both legal and non-legal. Assist the client in making an informed decision. Take instructions on the client wishes, do not try to persuade them. Explain any follow-up to be undertaken by the advocate, including payments. Confirm that the client agrees with the course of action. Provide an idea of the timelines and what will take place. Tell the client what they can expect from you.

Politely end the meeting and courteously escort them out. Top tips for client interview. Establish a good rapport. Be attentive to what the client is saying, do not appear disinterested. Pay attention to the non-verbal signals the client puts out.

Clarify what the client tells you by paraphrasing the story and the questions. Exercise active listening. Offer the proper advice but let the client decide.

Put the client at ease about your capabilities; be clear about the fees and the time scales and guidelines. Never give guarantees. Starts with a lawyer listening to the client. Importance of legal research. Research process. Understanding and analyzing the facts. Identifying the legal issues and arranging them in order of relevance. Classifying the legal issues. Case law. Defining the scope of the research problem. Develop a research strategy. Sources of information.

Develop a research plan. The research plan. Creating a research plan. Writing up a plan. Research tools. Libraries, primarily, law libraries. Generating search terms which will be informed by the instructions and the nature of the case in question. Develop a case file and a notebook. Case file contains;. The instruction notes. Minutes of meetings. Court attendance sheets.

All requisite documents such as evidentiary documents. Trial notebook contains;. This is used by the advocate to record the list of documents needed in the document.

It should also contain the organization of the trial process. It should also contain outlines such as examination outlines, motions, orders, etc. Understand the court. Always keep copies. Always have alternative strategies. Definition of a demand letter:. This is a formal letter written by the advocate on behalf of a claimant demanding that some action be taken [53]. It is aimed at avoiding litigation.

For example, in a monetary claim, it can be written to demand unpaid monies in order to avoid unnecessary litigation. Its contents derive from the initial client interview in order to set out clearly what the claimant wished to obtain. Order 3 Rule 2 d of the Civil Procedure Rules places the letter of demand as one of the documents accompanying a suit. As an advocate, you are barred from making any demands for your own payment in the first letter.

A notice of intention to sue comes in government proceedings. Summary of accounts — all the details associated with the action sought.

This should include a description of what was to be done, what has not been done, when it should be done. Clarification of the demands —. Time of response - make it clear the time period within which the recipient should respond. Consider factors such as postage time. Consequences of non-compliance — Be specific and clear as to what action you will take should there be non-compliance. Do not be angry or threatening. Expedite the matter in order to avoid litigation.

Do not be insulting. Always keep it objective and professional. Do not make empty threats. Avoid using many adjectives of being over descriptive. This is to avoid being emotive.

Timeline for payment and compliance — in the conclusion, state the exact the timeline for compliance. Signature — this is for authentication and should be handwritten. There is no prescribed length, but it should be precise, to the point and not too long. Be assertive, concise and straightforward. Suppose you need to take out urgent proceedings where there is no time for a demand letter, can one be exempted?

In reference to Anton Pillar orders, etc. Elements of negotiation [55] :. Relationship: Negotiation involves relationships. It is important when we need the consent of others to achieve our ends, when we can meet our ends better by involving others, or when unilateral means are not morally, socially, or politically acceptable.

Negotiation is interactive. Communication: A central process in negotiation is communication. This can take place implicitly in bargaining processes, or more explicitly in different kinds of conversation.

Communication should not be taken for granted. Alternatives: Things you can pursue away from the table. Interests: What is important to you that you can achieve in the negotiation.

You get at them by asking, "Why? Options: Tangible steps that serve interests and can be part of an agreement. Legitimacy: Sources of justification such as legal standards or precedents, professional norms, market value, social or economic standards e. Commitment: How do we guarantee we both will follow through on our agreement? Without prejudice statements. Communications made between parties with the intention that they not be used against the party in litigation.

Evidence Act s 23 provides for this rule. By express consent of the parties,. City of Hippo v Desmond Peters. Criminal Procedure Code S The advocate for the prosecution shall open the case against the accused person, and shall call witnesses and adduce evidence in support of the charge.

Issues such as reasonable doubt are discussed at the closing. Analysis of the case in general is discussed in the closing argument. The request to the court to find in your favor should not be made at the beginning. Do not make reference to evidence you do not have, and character evidence should not be introduced at this point. Opening statements generally are fairly short, and focused on the key facts you will present.

They are told in chronological order, as much like a story as possible. They help judges understand the nature of the dispute, focus on the key evidence, and place witnesses and exhibits in their proper context. A well-planned opening statement serves as a road map of the trial. While opening statements should generally be short, their length and detail vary widely with the complexity of the case. The more complicated the case, the longer and more detailed your opening will need to be.

If a party chooses to give an opening statement, the party with the burd en of proof will usually present its opening statement first. Under order 18 Rule 1 of the Civil Procedure Rules, the plaintiff has the right to begin unless the court otherwise orders.

Thus, even when a statute seems to set a specific order for opening statements, the trial judge has discretion to change the order of opening remarks in unusual circumstances. One such unusual situation is a multi-party lawsuit. Where several counsels represent multiple plaintiffs or defendants, or the case involves a third-party complaint, the order of statements customarily is resolved among the parties at pretrial conference.

If the parties are unable to set the order themselves, the trial judge will do so. The party with the most to gain will usually go first for plaintiffs, and the party with the primary liability or the largest financial exposure will usually go first among defendants.

Another instance in which the plaintiff may not begin is where the defendant admits the facts alleged by the plaintiff but raises an objection on a point of law, for example if a plea of limitation or res judicata is raised. The defendant may also begin if he admits the facts alleged by the plaintiff but states that the plaintiff is not entitled to the relief claimed.

Given the overwhelming significance of this stage of the trial, counsel must deliver a powerful, potent, and persuasive opening statement. The general purpose of an opening statement is to provide the judge with a statement of the facts counsel intends to prove.

The four main purposes to be accomplished in opening statements can be summarized as follows:. This continues the process of establishing bonds with the judge that was begun in the voir dire. Permissible Content. During opening statement, the defendant is allowed to:.

Counsel may:. For additional considerations and objectives in making an opening statement, see infra. Impermissible Content. Counsel is generally given wide latitude in opening statements, but it is improper for counsel to engage in argument.

The rule is easy to state, but it is hard to define argument precisely. In theory, the opening statement should be a non-argumentative description of the facts. The advocate must use an objective form in presenting the opening statement but may deliver it with great commitment and fill it with hidden argument. The objective form simply means that obvious argument should be eliminated. Counsel should not argue the credibility of witnesses, weigh the competing evidence, or discuss in detail the application of the law to the facts.

A brief reference to the law in describing the issue is permissible. A discussion of any point should be fact-based, and phrased in an objective form. How the opening begins is so important that it must be structured to grab the attention of the judge when it is at its highest point and then begin to direct the judge through the evidence that you will be presenting. Start Strong. To accomplish this, consider beginning the opening with a short statement that gives the judge a capsule of the case in two to three dynamic statements.

For example;. Have a theme. Given the elusiveness of the spoken word, a theme is crucial in the opening statement. Most listeners forget the particulars of any oral presentation within a few minutes after they hear it. If the statement is built around a theme, however, the listeners are likely to remember it.

But what is a theme? It is an overall point that runs throughout the presentation, receiving reinforcement as different aspects of the message are presented. It is a short, simple concept that states a capsule of your case. It is not simple repetition of the same small point, but a consistent overall message that is drawn from smaller points.

The theme of the opening statement should carry throughout the trial. Identifying the theme of your case is something that should be done when you first take the case — not the night before, or during lunch right before opening statements are to begin, or never at all.

What is it that you feel the case is all about? Why is it important? If you had to explain the case in 30 words or less, what would it be? If you had to explain it to your child when they ask you what the case is about, how would you explain it in a short, concise statement?

If a neighbor asks what kind of case are you working on, how would you tell them what the case is about? Your answer is your theme. A strong thematic beginning is also important because most people have a short attention span. If you can capture their attention in that span, you can hold it, but once their minds wander, it is hard to draw them back. An appropriate theme in most cases is built around the facts. For example, a lawyer who expects to build her case around key documents could fashion an introduction that emphasizes the reliability of written evidence, present a narrative built around the preparation and execution of the documents, emphasize the documents in describing the evidence, and close with a reference to the credibility of the written word.

The theme depends on the facts and equities. It should be linked to the key points that must be proven under the law. Further, you should ensure that the theme is real: that it can be drawn from, and supported by, the facts. It must be consistent with universal concepts of fairness and what is right.

A theme provides mental organization that enables a judge to look for evidence that fits the theme. That is why you must develop a theme that taps into the collective unconsciousness of the judge. The right theme helps judges rationalize any and all of the case conflicts and gives them the means to justify the desired result. Some examples of themes: Life, liberty and property; Good vs. Explaining and arguing, while great at showing our rhetorical skills, is not as persuasive as storytelling.

A cold listing of facts that each witness will testify to fails to persuade. Facts stacked on facts producing a rack of facts, while it will give the judge an outline of the case, it generally will not be effective in persuading him.

Information does not tell us what we always want to know or need to know. It is recognized that when people receive random data or unconnected facts, it seldom leads to understanding or knowledge. Data does not equal understanding, and understanding is the key to persuasion. Tell a story. Rather than concentrating on the descriptions of the witnesses and what they will say, counsel should deliver a narrative description of what happened — a story. Telling a story is one of the most persuasive means of communication.

How this is done is through a story to tell the information, the evidence you have, so that the judge will understand it, and its relationship to the theme.

How we persuade is how we deliver and tell our story to the judge.