\-'

Qualitler of All Good Advocatcr

All good advocates-both Crownand defenceGounscl-have
the followingqualitiesin common.Remember,
a trial is a drama,
so if you'replayinga lawyer,you'llwant to get into character
and takeon thesequalities.
tr

.:1

Goodadvocatesareanalytlcal,artlculatr, and confident

Theyhavestrongadvocacyskillsand alwayslistencarefully
to the argumentsof their opponents.
Goodadvocates
act in a professional
manner.Through
their
(the
demeanour
waythey look and act)andtheir clothing
they showrespectfor the court and the peopleparticipating
in the trial.
Goodadvocates
focuson their roleasan advocate.They
dont
personally.
takethe case
Skillfullawyersfocuson the issues,
not on personally
attackingthe opponentTheyassumea
_.neutralattitudeand tone when presentingtheir factsto the
courlTheyavoidusingemotionalor controversial
language.
Goodadvocatesdon't wastetheir time trying to trick the witness.They
focuson the factsand the evidenceto be
effective.
Goodadvocatesarecourteousand respectful.Although
everyoneis eagerto win,good lawyersconsiderthe
opposingteamastheir worthyopponents.
Lawyeradvocatesreferto fellow counselas"my friend."

Are You Rcrdf fof Voru Folc as an Advocatd

O Knowyour purposeand your audience.
O Beprepared.Knowthe case.
tr Focuson the relevantissues.
tr Criticallyanalyzeand breakdown your caseinto easily
digestedchunksthat reflectyour storylineand your ti,"ory
of the case.
A Bebrief and sincere.
tr Do notread.Speakslowlyand clearly.

l
i

lF YouArethc Gnoun
Httorneg./
Pnosecutor/Gounsoll
...
Your purposeis to provethe guilt of the defendantor accusedbeyond
a
reasonable
doubt Thedefendantis presumedinnocentuntil provenguilty.
suit, the purposeis to showon a balanceof probabilitiesthat the
l": "tP
defendant
is liableor negligent.
r Critically anallzeyour case.
I Summarizothe relevantlegalissues"
r What mustlreluprovc to win your case?
r work with pur tea'o to derrclopa common vision and gameplan.
Know the thcoryof youlcaso seepages116and tzt-til laterin this
chapterfor more aboutthc theory of a case.
r Prepareyour closingargumentfirst. By writing your closing
argument
first and havinga clearpurposein mind, yoo
yo* t."ri .*
determineexactlywhat you haveto prove. "rrd
r The crown must dlsclosr (malc known) all evidenceand
exhibits to
defencecounsel.Playfair. Don't makeup evidenceor deviatefrom the
known facts.
r Decideon the order in which witnesseswill testif. The order
should
be consistentwith the storyline and with your team'stheory. For
example,the prosecutorshould establishthat a crime wascommitted
beforehavingthe witnessidentif the defendantasthe perpetrator.
r Meetwith and interview your witnesses.
r lnterview your witnesses.They should be ableto answer
the 5 ws
(What happened?Where?When?Who?\ryhy?)in their own
words.
I Preparelour witnessesfor trial. They should know
when and where
to sit and standand in what order the/ll appearwhencalledupon ro
testify.
r Prepare)our witnesses
for dlrnctexamlnatlonand<ross.examlnatlon.
SeeorganizerI on pageL2O.
r Formulateand sequenceyour questionsfor direct examination
and
cross-examination.
r seechapter 3, pages3s-37,for examplesof question
sequencing.
r Tq/ to anticipatethe opposingcounsel'sarguments.
r Preparecross-examinationquestionsfor opposingcounsel,s
witnesses.
I PreparclouropningstatemenA

3
LaugoF..It lbu Are thc DeFonce
Your purposeis to Protectthc rights of the accusedor defendantand to
.oise iou'bt about the Crown'scase.Remember,your client is presumed
is notrequiredtopfovethedefendanfs
innocentuntil prorrcnguilty.Thedefence
innocence.

\,-

r Beglnby carefullyreadingthe Indlctmrnt (the formal written charge)'

It;il indicatethc chargesagainstyour client. (Wheredid it happen?
when did it happen?who is namedin the indictment?what is the
allegedoffence?)
r You may needto researchapplicablelaws.
r Summarizethe relevantlegalissues.
I What must the Crown Provcto get a conviction?
r Anticipatc tho Crown'r argumcnt*'

a
o

t YourpurPoscir to raiscdoubt about thc Crown'scase.How?

r Revealinconsistenciesin the Crown'sevidence.
r Challengethe credibillty or believabitityof the Crown'switnesses
andevidence.
r Demonstratehow the Crown or plaintiffwill fail to provehis or her
case.
r Is it due to insufficient evidence?

) Is it due to a lack of reliable or credible evidenceor witnesses?

r Decide on the order in which your witnesseswill testify. The order
should be consistent with the storyline and your team'stheory of the
case.For example,you should have the accusedtestiff where he or she
was on the date in question before asking another witness to testiff as
to the accused'swhereabouts.
r Meet with and interview your witnesses.
I Prepareyour witnesses.Encourage them to get ready for both direct
examination and cross-examination.Seeorganizer I on page 120.
I Do your witnesseshave credibility issues?ls their testimony
reliable?consistent?
r Know the strengths and weaknessesin your own case.Be prepared for
damagc controll

114

WITHA PURPOSE
SPEAKING

FlouloPCountroom
Exchanges
All exhibits and documents should be passedthrough the
court clerk to the judge, and all exchangeof argumentsand
all dialogue should be directed toward the judge. This constraint on dialogue may feel artificial at first, but it demonstratesto the court, and to everyoneinvolved in or observing
the proceedings,yourrespectfor the judicial process.Remember, lawyer-adyocatesare always representingsomeoneelse.
The flow of courtroom exchangesis a formal reminder of
this "impersonal" nature of advocacy.Advocatesshould not
squareoffwith eachother and argue.

EtiquetteandDeeorum
Courtroom
The parties in any courtroom should be courteousand respectful.Even in a
classroom setting, all participants should observe the formalities of the
proceedingsin order to convey respectand to facilitate the smooth functioning of the process.

I
I
T
I

I
I

Beon time. If youre late,apologizeto the court and to opposingcounsel.

(If you're the judge and you're late,apologizeto both counsel.)
Dressappropriately for your role if you want to be taken seriously.
Do not talk when the clerk is reading the chargesinto the record.
Try not to interrupt. Apologize when you do.
Explain to your witness or client in advancewhen and where he or she
will sit when he or she testifies,and how to addressthe judge (seebelow).
Ask the judge's permission to approach a witness.
Avoid irritating the judge. Being rude or acting inappropriately does
nothing to advanceyour case.

Howto Addressthe trudge,Opposing

and the Accased
Coansel,
Unlessotherwise indicated, mock trials are usually bench trials (trials conducted by a judge alone), and you should addressyour opening arguments
to the judge. If both judge and jury presideover the case,addressthem
both. Here some commonly used phrases.
To makea submissionor to continue:
r "May I proceed,Your Honour?"
To askpermission:
r 'May it pleasethe court."
To conferwith opposingcounsel:
r "May I have the court's indu$ence for a moment

Chapter9 MockTrials

115

Toconferwith thejudge:
I "May I approachthe bench,YourHonour?"
Toapproachthewitnessstand:
r "May I approachthe witness,YourHonour?"
Toreferto opposingcounsel:
a "My friend"or"Counsel."
To referto theaccused:
r The accusedis presumedinnocentuntil provenguilty.Asa courtesyto
the accusedand to showrespectfor the proceedings,
lawyersshould
referto the accusedas"the defendant"and call the personby his or her
formal surname:"Mr./Ms./Mrs.XXX." (In a civil case,the defending
piuty canbe referredto as"the complainant.")

in Coun9
SSanding
Standing in court showsrespect.Knowing where and when to stand or sit
savesthe court time.
I If yor.rlrea lawyer, stand when you addressthe judge, and remain
standing while the judge speals to show the judge that you are listening.
Standing clarifies who is speakingand who should be listening, and
helps track the flow of conversation.Sit down when the exchangeis
finished.
r If you're the defencelawyer, stand with your client when the indictment
is read and when the defendant entershis or her plea. Don't sit
reviewing your notes and leave your client to stand alone at this
significant time.
r Do not stand when another lawyer is standing unlessyou are rising to
voice an objection.
r Tbketurns speakingand sit down when it is not your rurn.

Introdace Yoanfeam
fudges like to addresslawyers by name. Introduce your team. Each lawyer
should stand, spell his or her proper or surname, and give the initial of his
or her given name.
Example
r "May it pleasethe court ...Your Honour(s) ... [proper or surnameand
initiall, appearing as counsel for the defendant Mr./Ms./Mrs. XXX."
r "May it pleasethe court ... Your Honour(s) ... [proper or surname
and initia|, appearing for the q5orney general."

116

WITHA PURPOSE
SPEAKING
+

YOURCASE
PREPIRIIIG
,-u
Not.sBeforeyou beginthis section,you andyour teamwill find it helpful to visit the followingfigures:
r "The Elements
(Chapterl, page1l)
of Reasoning"
r "Preparingfor Thinking in Action:A MasterTemplate"(Chapter2,
pages2l-23)
r "GettingStarted:KnowYourPurpose"and"Tlpes of Questions"
(Chapter3, pages30 and31)
r "ActiveListeningModel" (Chapter4,page43).
Youwill alsofind "QuestioningTechniques"
in Chapter3 and"Researching and OrganizingYourPresentation"
in Chapter5 helpful.

Knouthe PurposeoFYourArgunent:
What'sYourTheorg?
The theoryof your caseis your team'sversion of the story asit relatesto the
indictment and the legal issuesin the case.Your theory must be supported
by evidencebased on the facts in the case.Build your argument around
your theory.
To convince the judge and/or jury of your theory, you will haveto determine what you have to prove and how you will prove it. For example, to
prove the indictment, the Crown might have to demonstratethrough evidenceor the testimony of the witnessesthat the accusedintendedto cause
harm. These are the legal issuesthat have to be proven to convince the
judge ofyour theory.
A persuasivetheory has three elements:
r It is logical.
r It is basedon evidence.
r It is simple and compelling.
Develop your theory by asking yourself thesethree questions:
1. What happened?
2. Why did it happen?
3. Why does that mean my client should win the case?
Organizers2,3, and 4 on pagesl2l-123 will help you and your team
organizeyour theory.
In one paragraph,summarize the answersto the three questionsabove.
Keepthe paragraphsimple,logical, and relevant.If it takesyou longer than
a paragraph to explain your theory it's probably too complicated.Strive to
*
be preciseand concise.

1
Chapter9 MockTrials

117

and
PutttngIt lll Togethen
YourStrategg
Planning
a case.Onewayto apTherearemanydifferentwaysto PrePare
proachyour caseis to think of your argumentasa giant puzzle,
CollectivelSteammembersmustvisualizethewholepuzzl*the
theoryof what happened,andwhy.Eachmemberof the teamholds
a pieceofthe puzde. For the best fit, eachpersonon the team should havea
good working knowledge of trial procedure,the casematerials and exhibits, and where and how his or her individual piece fits into the puzzle.
It is critical that eachperson on your team understandthe purposeof his
or her role and how all of your performancesfit together to illustrate your
theory. The theory is the glue that holds your team'sargument together.
Here are some effectivestrategiesfor critically analyzingand constructing a compelling argument.
1. GetOrganizrd"
r Work cooperatively.Invite each member to talk about the case.
r Speakwith your fellow team members with a clear purpose in mind.
r Selecta team captain or lead counsel to act as the task master.It will
be his or her responsibility to keep your team organizedand on task.
r Set short-term deadlinesfor chunking and breaking down the tasks.
This will help overcomethe temptation of endlesstallc
r Divide the team into pairs to work on focusedor complementarytasks.
For example,the person who deliversthe opening statementshould
consult with the person who deliversthe closing argument to make
sure that what was promised at the start was actually accomplished.
2. Gct Startcd
r Begin by carefully reading the indictment or the charges.Understand
your goal-what you haveto prove (if you're the prosecution) or what
you have to raise doubts about (if you're the defence).Clearly identify
the legal issues.
r Readthe caseinformation carefully.
r Visualize the storyline or the timeline of events.
r Develop and agreeon the theory of your case.
r Work out a common strategyon how to effectivelydeliver a
compellingcase.
r Draw on one another's insights to outline your argumentsand help
one another write out the type and sequenceof questionsfor both
direct examination and cross-examination.
r Presentyour evidenceand testimony in a logical and effectivesequence.
r Enter an exhibit through the testimony of a particular witness.For
example,an expert toxicologist would testifr about a certificate of
analysis.
]

118

WITHA PURPOSE
SPEAKING
r Prioritizeyour evidence.Startwith and endwith strongevidenceor
the weakerevidencein the middle.
testimony,and de-emphasize
r Individually,and asa team,brainstormthe strengthsandweaknesses
of eachwitnesswho will testiff.SeeorganizerI on page120.
Eachwitnessshouldbe familiarwith the team'sstrategyand theory
of the case,and know exactlyhow eachwitnessis expectedto
contributeto advancingthe argument.
Agreeon the orderof importanceand in what orderthe witnesses
shouldtestify.
and write down the questionsfor directexamination
Sequence
basedon the strengthsof your witnesses'testimony.
questions,
and write down the cross-examination
Sequence
weaknesses.
focusingon the opposingwitnesses'

gi:

During cross-examination,ask questionsto challengethe witnesses'

credibility. Questions can revealinconsistencies,contradictions, and
reliability or credibility issues.
Coordinate the opening statement and the closing argument.
Remember:Make sure that your team'stheory is consistently
reinforced.

3. Practlsc,PractlscrPractlsr
Compelling arguments are spoken,not read.You will need to practise
your delivery your voice techniques,and the overall presentation of
your performance (seeChapter 6).
Don't wait until the last minute to complete the essentialwritten
component.
Aim to get the preparation work done in a timely fashion so that you
haveplenty of time to practise.
Hold a scrimmage among the members of your team. Run through
the performance from beginning to end. See"Trial Outline and
SampleTime Frame" later in this chapter.
Switch hats. Both the prosecution and the defenceshould practise
playrng the role of opposing counseland cross-examinetheir own
witnessesas a way of preparing for the opposing team'scrossexamination.
"b

DEILII{CWrflt HtHtBtrS
EnteringandllandlingExhibits
Each exhibit needs to be properly entered into the court record through
the court clerk. Number your team'sexhibits for organizational purposes.
All exhibits should be shown to opposing counselbefore they are shown to
the witness.This stageis usually done before the trial.

o
I

q
Chapter9 MockTrials 119

Shouingthe Exhibitto the Wtness

brieflydescribetheorhibit andshowit to thewitness.
Usingneutrallanguage,

\-

Example
r "Ms. Doyle,I am handingyou exhibit2,which is a notedatedMay 16."
Do not say:"Ms. Doyle,I am handingyou exhibit 2, which is a notedated
May 16,describinghowthe defendantagreedto handoverthe goodsat no
extracharge."

the Exhibit
IdentiFging
Askthewitnessto identifr theexhibit in his or her own wordsandto erplain
how he or shecameto be familiarwith it. Thewitnessshoulddescribethe
exhibit in somedetail.
Example
Q. "Ms. Woods,haveyou everseenexhibit 3 before?"
I haveseenit manytimes."
A. "Yes,on previousoccasions,
Q. "What is exhibit3?"
A. "It's a noteI receivedfrom DuganTravelwhenI receivedmy plane
tickets."
Q. "How is it that you recognizeit?"
A. "I recallthe distinctiveimageon the coverwhenI took it out of the
envelope."
After the witnesshasfully describedthe exhibit,askthe judge:"Your
Honour,maythis bi markedasdefenceexhibit 3?"
, ,1{a
\mlt
t?

The followingorganizerscanhelpyou identifythe strengthsandweakof eachwitness,developyour theoryof the case,and organizeyour

nesses
argumentandpresentationat trial.

12O

SPEAKING
WITHA PURPOSE

ORGANIZER
lc Wltncsr

rra
u
2
ul
t!

ul

z
o
F
3
I
ul
ra

o
c

. . f

STRENGTHSDlrect examlnation
(prloritlze4 relevant evidencel

WEAKNESSES
Crosg-examinatlon
(prloritlze4 relevant evidencel

WITNESS
#I
1.

W|TNESS
#r
t.

2.

2.

3.

3.

4.

4.

5.

5.

W|TNESS
#2
l.

WITNESS
#2
l.

2.

2.

3.

3.

4.

4.

5.

5.

WITNESS
#1
1.

WITNESS
#I
t.

2.

2.

3.

3.

4.

4.

5.

5.

WITNESS
#2
L

WITNESS
#2
1.

2.

2.

3.

3.

4.

4.

5.

5.

t\
Chapterg MockTrials 121"""

Casr citatlon:
Indlctment or chargcr: 1 .
2.
(maybemorethan
3.
one charge)
the storyline.
Readthe case.Visualize
Filloutthe entirechart,anticipatingyouropponent'stheory'

I5
Chapter9 MockTrials

123 .

{$ ArgumcmOutUfr
ORGANTZEF
PROSECUTTOT{

DEFENCE

Openingstatmsnt
we haveto prove.
Keylegalissue(s):What

Opcnlng statement
Keylegalissue(s):
Whatwe haveto prove.

1.

1.

2.

2.

3.

3.

4.

4.

one paragraph)
Theory(approx.

Theory(approx.
one paragraph)

Overuiewof anticipated evidenceand

testlmony
Witness#l
(includeexhibits)

Overvlewof antlclpated evidenceand

testimony
Witness#1
(includeexhibits)

Witness#2
(includeexhibits)

Witness#2
(includeexhibits)

Witness#3
(includeexhibits)

Witness#3
(includeexhibits)

Closingargument
Closingargument
r Reviewyourtheory
r Reviewyourtheory
r Reviewthe evidenceof eachwitness:
r Reviewthe evidenceof eachwitness:
whatdid he or shesayor do to advance
what did he or shesayor do to advance
yourargument?
yourargument?
r Showthe courtwhatthe evidenceyou
r Showthe courtwhat the evidenceyou
presentedproves
presentedproves
Ask for the verdlct sought
Thankthejudge/juryfor listening

Ask for the verdlct sought

Thankthejud ge/juryfor listening

.124

WITHA PURPOSE
SPEAKING

Are You Ready to Present Your Case?

n Knowyour roleand purpose.
A Knowthe factsofthe case.
the
D Coordinateyourteam.Sharethe vision.Visualize
storyline.
D Developa simple,compellingtheoryof what happenedand
why.
Decideon the orderof witnesses.
Planand writeyourclosingargumentfirst.
Planand writeyouropeningstatement.
D Designand sequenceyourquestionsfor directexamination
and cross-examination.
D Listrelevantexhibits.
factual
and prepareeachwitness,assessing
Evaluate
in his or hertestimony.
and inconsistencies
weaknesses
D Anticipatepossibleobjectionsfrom opposingcounsel.
ldentiff credibilityproblemsin yourcase.

o
u
a

tr
tr
B

Prepareeachwitnessfor cross-examination.
story
and reworkyourclosingargument.What
Re-evaluate
willyou havetold?Howwill you haveprovenit?