QUALITIES OF A GOOD TRIAL LAWYER

QUALITIES OF A GOOD TRIAL LAWYER

Definition-

A trial lawyer is an individual of the legal profession who assists his clients to adjudicate their matter before a court of law.

Despite our best efforts it was not possible to get a Black’s Law Dictionary definition. However, the Free Dictionary, whose credibility we are at pains to verify but which verification we are yet to acquire at the moment, offers a definition:

A trial lawyer is a lawyer who specializes in defending clients before a court of law.

It further defines a lawyer as:

“A professional person authorized to practice law; conduct lawsuits or gives legal advice. “

Black’s Law Dictionary defines a lawyer as:

 "A person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law”.

A trial lawyer can therefore be defined as:-

A person learned in the law who practices law and adjudicates their clients’ matters before a court of law.

Qualities

1.     Professionalism-

·       time management

o   A counsel should arrive before the scheduled time in order to save the Court’s time and also because this shows confidence and preparedness.

o   It also passes an image of seriousness with client’s case which may have an impact on the outcome of the case.

o   Time management also involves filing of document in time and bringing in witnesses to Court in time.

·       Maintain the dignity of the profession

o   If judge is already in Court, one should stand, bow respectfully to judge from the doorway before proceeding to seat

o   This is through his conduct and includes observing the decorum that is expected of a legal professional. For example, a trial lawyer should only address the court with permission of court or when required to do so.

o   The dignity of the profession would suggest that the lawyer should observe Court etiquette and act as a professional.

o   Per section 4 of the LSK Act, one of objects for which the Law Society of Kenya is established is to maintain and improve the standards of conduct and learning of the legal profession in Kenya. The LSK has come up with the LSK Digest on Professional Conduct and Etiquette pursuant to this power.

o   Section 81(1) of the LSK Act empowers the council of the society, with the approval of CJ to make rules with regard to the professional practice, conduct and discipline of advocates

·       Should aim to win client’s case but not at all costs.

o   He should always keep in mind that he is not a hired gun and that he owes duties as an officer of the court

o   At the same time, the trial lawyer should zealously prosecute the clients cause but within the bounds of the law, and ethics

 

·       Dress accordingly

o   For example adhere to the Advocates Dress Code released this year.

o   The LSK is mandated under section 4 of the Law Society of Kenya Act as above and this section read together with section 81(1) and section 27 of the LSK Act gives the Society power to make delegated legislation and is the basis on which the LSK makes/made the Advocates dress code revised in January 2013.

 

·       Confidentiality :

o   Information that a trial lawyer obtains about his clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client.

o   Its source is a combination of the law of contract and equity arising from the distinctive relationship between lawyer and client.

o    The lawyer is an agent of the client under the law of agency. In contract, the terms encapsulated in the retainer agreement give rise to this duty.

o   Further, equity prohibits unauthorized use or disclosure of confidential information.

o   In Kenya, sections 135, 136 and 137 of the Evidence Act provide protection for information that is made available to a lawyer during the course of interactions with a client. Such information is subject to legal privilege.

o   Rule 20 of the LSK Digest also provides further guidance on the topic with regard to disclosure to the Police and the Tax authorities.

 

2.     Analytical skills and Issue spotting-

·       Ability to identify the issues from the facts

·       Should have practical judgment

o   A trial lawyer should be able to identify the strong points in case along with the weak points.

o   This way, the lawyer will be able to preempt the opposing sides’ arguments and find the most effective ways to deal with them beforehand

·       The trial lawyer should possess the ability to find the law and use appropriate case law after identifying the issues

·       The trial lawyer should exercise diligence and thoroughness when finding case law. A single decided case can make a huge difference in a case and so if the trial lawyer misses that particular case that could have serious ramifications for the client.

·       When analyzing the facts should be able to identify different angles to argue the matter in the court

3.      Excellent Negotiator-

·       A trial lawyer in any situation needs to explore all potential avenues for resolving disputes, including methods which do not involve litigation.

·       The lawyer should have the ability to settle matters out of court such as cash settlements for civil matters and plea bargains for criminal matters.

·       Negotiations should always aim at getting the best result for the client

 

4.      Credibility-

·       A good trial lawyer should first and foremost be honest to his client and then to the opposing counsel

·       Should be honest with the client concerning the case during trial whether positive or negative.

·       On the same note before taking up the case the advocate should be honest about the case to the client on whether their chances of winning.

·       It is the duty of an advocate to be honest to the court as well and thus should not present false documents etc.

·       The trial lawyer should maintain the implicit trust that exists between advocates and the Court.

·       A trial lawyer is not a mere agent because unlike an agent who has no moral and ethical obligations to anyone but his principal, the lawyer has ethical and moral obligations to a multiplicity of stakeholders.

 

5.     Excellent Legal Writing and Legal Research Skills -

·       A good trial lawyer should be have the ability to write creative and persuasive legal arguments

o   Legal writing is not an isolated skill, but an integrated part of the well-recognized task of learning to think like a lawyer and so the good trial lawyer must first and foremost think like a lawyer.

·       The lawyer should be able to draft documents necessary for court litigation.

·       Research skills

o   The lawyer should carry out extensive research into a case before taking it up and at all stages of the litigation thereafter

o   The trial lawyer should possess strong investigative skills

·       The trial lawyer should be organized

o   They should be able to organize the material appropriately

o   They should be able to draft and file the necessary documents in an organized and well thought out manner

6.     Sincerity

·       Should believe, or at least appear to the Court to believe, in the client’s case 100% and defend it with zeal

·       Should be willing to handle clients matters with the attention that the case demands

·       The trial lawyer should be willing to go beyond the instructions issued by the client in a bid to protect the client’s interests

 

7.     Consistency and Reliability-

·       A trial lawyer should build reliability by first always keeping the client up to date with progress of the case

·       They should do so with consistency and develop a relationship of trust with the client

·       It is important for the purposes of building a good reputation for a trial lawyer to avoid dipping his hands into the client’s funds

·       A trial lawyer should always be dependable when conducting his obligations to the client for instance not fail to make an appearance in court

 

8.     Perseverance and Persistence-

·       A good trial lawyer should be able to fight notwithstanding the difficulties experienced in the case

·       He should be willing to follow the client’s matter to its logical conclusion

·       He should be able to handle any bumps on the road

 

9.     Creative

·       Should be able to make compelling arguments in Court both oral and written

·       Should have a command for story telling as Shakespeare said ‘all the world is a stage and we are mere players’

·       Be able to make judge doubt opposing counsel submissions with his sharp thinking and creativity

10.  Confidence

·       The trial lawyer needs to be convincing when presenting matter before the court

·       It is also important that the lawyer is composed when put on the spot

·       The trial lawyer should possess excellent oratory skills-

o   This implies that the lawyer should possess a good command of the official languages: English and Kiswahili

o   The lawyer should also be audible in court

·        

11.  Interpersonal Skills-

·       Should be able to read the psychology of the court as well as that of the client and opposing counsel and act accordingly

·       The trial lawyer should act in a civil manner regardless of the ill feelings that their clients may have towards other people

o   He should be able to disagree without being disagreeable. The lawyer need not result to antagonistic or acrimonious behavior.

o   Whether orally or in writing, vulgar language, disparaging personal remarks or acrimony toward other counsel, parties or witnesses should be avoided at all costs.

o   Lawyers should require that persons under their supervision conduct themselves with courtesy and civility

·       Should be able to relate with other people well so as not to prejudice his client. A trial lawyer who has personal issues with the trial judge for example, puts his client’s case at risk of bias.

 

12.  Communication-

·       Use language that is respectful and that communicates their point effectively.

·       Ability to use plain English effectively when addressing both the client and the Court.

·       Keep the client up to date on the case at all times

·       Good listening skills so that they can be able to get the instructions of the client right

·       Communicate with opposing counsel and inform them of any evidence they have and so on

 

13.   Tenacity-

·       Advocate should not embark on a case unless he is ready to justify it

·       Prepared to defend the action until all proper arguments in favor of it have been exhausted at all court levels permissible under the rules

 

 

CROSS EXAMINATION OF WITNESSES

CROSS EXAMINATION OF WITNESSES

1)      What is cross examination?

2)      The Statutory basis of cross examination

3)      The Techniques to be employed.

4)      A Good  Cross examination.

5)      Preparation of Cross examination.

6)       Desmond Peter’s case- Skit.

CROSS EXAMINATION

Cross examination is the questioning of a witness by the adverse party. It is a right not a privilege and if a person is denied the right, the denial can vitiate the proceedings.

 The aim of cross-examination is to disqualify the case of the adverse party and try to obtain favourable admissions from the witness.  Cross examination need not be confined to matters raised in the examination in chief.  A witness may for instance be asked questions to test his or her accuracy, veracity or credibility.  They may also be asked questions to discover who they are and what their station in life is, all one is seeking to do is to discredit the witness.  Annoying questions can be asked and it is up to the court to exercise discretion if they are unnecessarily offensive if they go more than to prove the matter.

Section 145 - lists cross examination as one of the three methods of examining witnesse.

Section 154 – leading questions may be asked.  If a question is asked of a witness in cross examination which relates solely to the credit of the witness, the court has a discretion to compel or not to compel the witness to answer the question, the court decide whether a witness should answer a question that relates primarily to their credit this is provided for in Section 157  in exercising the discretion to compel or not to compel, the court weighs the extent to which the imputation casts on a person’s credit is proximate to the suit.

Section 163 gives ways of impeaching the credit of a witness in cross examination.  You call the witness to testify to the unworthiness of credit of a particular witness. You can also call proof that a witness has been bribed or that the witness has accepted the offer of a bribe or any other corrupt inducement to give evidence.  You could also impeach by proving former statements oral or written made by the witness which are inconsistent with any part of the witnesses evidence. 

In cross-examining, there is no specific method of operation.  It depends on the witness you are dealing with. 

Every question should fulfill a substantive, technical or emotional role:

Substantive: question resulting in testimony or facts related specifically to the crime charged.

Technical: questions must be technically legal under the jurisdiction's rules of evidence; question should be phrased carefully to elicit the desired response.

Emotional: questions should always have an emotional impact on the fact finder; the emotional impact may stem from the substantive nature of the question or how the question was presented by the attorney.

Cross-examination is a targeted attack on the prosecutor's theory of the case. The focus should be on the attorney, leading the witness to answer the questions to support the defense's theory. During cross-examination the defense attorney seeks to persuade the jury that the witness' testimony is:

1. inconsistent with other testimony or evidence
2. biased against the defendant
3. the result of a witness' personal motive
4. demonstrates that the witness (if a co-defendant) had the opportunity to commit the crime
5. illustrates the witness' lack of knowledge of the facts and the evidence, or
6. shows the witness' inability to see, hear, perceive, and observe important parts of the incident

THE STATUTORY BASIS OF CROSS EXAMINATION

1)      The Constitution of Kenya, 2010 under article 50 (2) (k) states that, "Every accused person has the right to a fair trial which includes the right to adduce and challenge evidence.

2)      The Evidence Act, Cap 80, Laws of Kenya gives guidelines on cross-examination

Section 151-166 of the Act

3)      Criminal Procedure Code, Cap 75 Laws of Kenya (Section 302) states that, "a witness called for the  prosecution shall be subject to cross examination by the accused person or his advocate , and to re-examination by the advocate for the prosecution.

 

TECHNIQUES TO BE EMPLOYED

1)      (1) The most important facts to bring out on cross examination are facts that help you prove your case:

Favourable testimony on a contested issue. Occasionally, a witness called by your opponent to testify against you on one issue will possess significant information you need to help prove a contested issue. If the favourable testimony was mentioned on direct, you can reemphasize it on cross. If the matter was avoided, then you should bring it up on cross-examination unless the topic cannot be raised because of limited scope rules.

Testimony corroborating your main witnesses. It often will be possible to elicit testimony on cross-examination that enhances the credibility of your witnesses by corroborating parts of their testimony. The possibilities are endless. It can be as simple as eliciting testimony that your witness was present at the scene, or as complex as bringing out evidence of the truthful character of one of your witnesses. The most fruitful line of inquiry is likely to concern the opportunity for your own witnesses to observe the events.

An adverse witness, especially one who uses a diagram of the scene to aid his or her direct examination, always should be able to corroborate that there would have been a good line of sight from another location. Using opposing witnesses to corroborate the actions of your client also is important. For example, if opposing witnesses saw your client trying to avoid an accident, rendering assistance to the victim, or driving safely just before it occurred, or if they overheard your client's explanation of the events, you should bring out these facts.

Testimony consistent with your theory of the case. Rarely are more than a few issues really contested in a trial. The controversy usually boils down to a few disputed facts. Even if nothing else is possible on cross-examination, you always can elicit testimony about those uncontroverted facts that form part of your theory of the event

 (2) If the witness has hurt you, you will also want to impeach the witness's credibility.

The witness has a personal motive to testify falsely based on bias, prejudice, or interest. The witness has previously been convicted of a crime, which shows the witness to be the type of person who would lie. Prior inconsistent statements may indicate that the witness has lied on one occasion. Prior inconsistent statements cast doubt on how well the witness is able to remember the events.

Inability to recall collateral details of similar importance may cast doubt on the reliability of a witness's memory. For this kind of cross-examination to be successful, the facts forgotten must be of equal importance to the facts remembered. If a witness claims to remember a startling event ("I saw the defendant pull a gun and shoot two people."), it probably will be a waste of time to ask if the witness remembers what other people were doing.

Bring out testimony that is impossible or inconsistent with common sense (but don't confront the witness about it).

Establish inconsistencies with other, more credible, witnesses.

 

(2) Avoid high-risk topics.

a) Safe topics are those where you have a reason to believe that the witness will give a favourable answer and you have the ability to refute a bad answer:

You are asking for information the witness has previously given in a statement or deposition that would be admissible as a prior inconsistent statement if the witness testifies differently.
You are asking about information the witness should know which is also contained in admissible exhibits, such as photographs or records of criminal convictions.
You are asking about information the witness should know that other more credible witnesses will testify to.

b.) Medium-safety topics are those where the nature of the case raises a likelihood that the witness will give favourable testimony, but you have no direct way to refute a bad answer. Use them cautiously.
You are asking for facts consistent with human experience where an unfavourable answer would contradict common sense.
You are asking the witness about facts in situations in which the witness assumes that an independent refutation witness is available.
You want the witness to confirm something implied in a prior statement, but the witness has not previously been asked directly about it.
You are seeking to prove that something did not happen because the witness says nothing about it in an otherwise detailed prior statement. For example, if a police officer's accident investigation report is silent on whether your client had been drinking, there is likelihood that the officer will admit that there was no evidence of intoxication. Common sense tells us that a police officer would have reported intoxication.

c.) High risk topics are those where you engage in wishful thinking. Circumstances suggest that a witness might know something relevant, but the witness has never said anything one way or the other. Thus, you have no solid basis to believe the witness's testimony will actually help you, but the witness also has never explicitly said anything to the contrary, so (you think) maybe the witness will unexpectedly provide favourable evidence.

DO'S AND DONT'S DURING CROSS EXAMINATION

What does a good cross-examination question look like?

Leading Questions may be asked

Simple and brief

Non-argumentative. Ask about facts, not conclusions.

Use the witness's own words whenever possible.

Break your topics down into the smallest possible units, and ask about each one separately.

Ask only one fact per question.

Do not repeat damaging direct examination.

Don't ask the witness to explain an answer.

Keep your objective hidden.

Listen to the answers carefully.

 

Dont's.

Do not harass the witness.

Do not allow the witness to explain the answers.

Do not get baited your opponent.

Never ask a question unless you are sure of the facts.

 

 PREPARING TO CROSS-EXAMINE.

Assemble the file before trial. You should have with you in court, in one file, all the necessary documents for cross-examining the witness:

 1) your written cross-examination questions;

 2) all prior statements, depositions, or other writings of the witness that could be used to impeach inconsistent trial testimony;

 3) any exhibits or certified copies of convictions you may want to introduce.

Listen to the direct examination. Never assume a witness will testify in exactly the same way at trial as the witness did in a deposition. Witnesses occasionally will say extraordinary things or may open the door to previously inadmissible evidence that you may miss if your attention is focused elsewhere.

Decide whether to abandon any planned questions. Based on the direct examination, you may face a decision whether to forgo questions because they were covered on the direct examination. Generally, of course, you should proceed with your planned cross-examination. Repetition of favorable evidence is a good idea.

 

 

However, in three situations you may choose to forgo a line of questions:

ü  You may have to drop some topics because your opponent limits the scope of the direct examination;

ü   You may decide to forgo impeachment if the impeaching effect of some prior act is explained away;

ü  The witness may unexpectedly put evidence in a more favorable light than you expected, and might retract it or dilute it if you repeat the question on cross-examination.

Decide whether to impeach by prior inconsistent statement. Obviously, you cannot know in advance whether a witness will give direct testimony inconsistent with prior statements. Listen during direct examination, and decide whether it is worth impeaching any inconsistencies. In general, the only statements you are concerned about are those where the witness changes from favorable to unfavorable testimony. If the witness gives inconsistent statements on unimportant issues, you probably should forgo impeachment, unless you can string together a lot of small inconsistencies.

 

 Difficult or evasive witnesses.

Ask the witness to limit his or her answers to "Yes" or "No"

Move to strike volunteered or evasive portions of the testimony

Ask the judge to instruct the witness to limit his or her answers to "Yes" or "No"

If a witness evades your question, repeat the question or have it read back.