Chapter 7 Case Preparation

In crime, everything starts and ends with the charge.

The charge may be in a summons, or it may be a count on an indictment.

Before you do anything else, find out what the charge is.

As crime is my area of practice, we will proceed with preparing a criminal case. But in civil cases, the pleadings are central - before you do anything, read those.

Don't think for one second that principles in this book do not apply to the courtroom in civil work.

You'd be way wrong.

So we'll work with crime. And I hope the civil people can join in.

A brief lands on your desk - thump. It is for the Crown Court.

Don't mess about with witness statements, unused material, correspondence, photos - or even your instructions. None of these things just yet.

GO STRAIGHT TO THE INDICTMENT.

It will tell you two things:

WHAT MUST BE PROVED

and

TO WHAT STANDARD.

Usually the burden of what must be proved is on the prosecution. Not always. Check the relevant statute. Trading standards prosecutions are examples of where the burden can lie partially on the defence. Always be aware of the burden and standard of proof.

Always.

The following may sound crushingly obvious, but it is surprising how often advocates do not identify precisely what needs to be proved.

It can actually be useful to write it out.

If the allegation is for example ‘assault occasioning actual bodily harm’, the issues to prove are:

Was there actual bodily harm?

To whom?

Was it caused by an assault?

By whom?

Was the assault unlawful?

Of course, there are more complicated variations on this theme for different offences, but the principle is a good one - CLEARLY IDENTIFY THE ISSUES in the indictment or pleadings - and write them out.

Once we know what has to be proved, we move to HOW IT WILL BE PROVED.

The answer is by the witnesses.

The case will be proved by the witnesses, not by the advocate. This may be obvious, but people often lose sight of this.

The witnesses give the evidence in order to prove the indictment. The advocates will later argue over whether the witnesses have succeeded against the burden and standard of proof.

So: witnesses offer facts, and then advocates comment on the facts.

Now it is time to read the witness statements.

Not before.

Because now we know what the witnesses need to say to prove the issues, we read their statements to see if they do actually say it.

Again, it is surprising how often advocates simply never apply the evidence in the statements to each of the elements of the counts on the indictment.

Do the witnesses prove the elements of each count? Look carefully at this.

Instantly we can now see every weakness - particularly if there is evidence missing. If defending, you will have identified case flaws - if prosecuting, you will need to produce an advice on obtaining further evidence.

But it is not only evidence which is missing that we notice. We also notice the sections in the witness statements on a crucial issue which are vague - or unsatisfactory - or...well...nudgeable. We begin to sense where the lines of attack against the prosecution case will be easiest.

Now read all the papers.

Only now.

Read the proofs, and correspondence, and disclosed unused material, and so on. Reading it now means you can link what you read more clearly to the issues.

As a rule of thumb, in an ideal world, read all the case papers THREE TIMES before marking them.

There is no magic in the number, but at least you will really know the case now, and any marks on the papers will be geared toward a firm purpose, rather than idle under-linings of what later seems obviously irrelevant and mildly annoying if anyone else has to deal with the case papers.

Once you have read the indictment, found what has to be proved, looked up the law, examined whether the witnesses prove what must be proved, read all the papers three times,

Now

WRITE

THE

CLOSING

SPEECH.

That's right. Write the closing speech.

Do it now.

Not at the end of the trial. Not at the beginning of the trial.

But now, way before even going to court.

Obviously, the precise words will change as the trial proceeds. But THE PURPOSE OF DOING THE CLOSING SPEECH WHEN YOU RECEIVE THE BRIEF IS IT LIGHTS UP PRECISELY WHAT YOU WANT FROM EACH WITNESS.

Please follow the bouncing ball here - preparing your closing speech long before court means you identify what, in an ideal world, you want to be able to say in the end to the jury - so, here you are, mindful of the elements of the indictment which need to be proved, you are preparing the very comments on the evidence which ideally you want to be able to offer on the elements of the indictment - having read the papers three times, you see with an eagle eye where the strengths and weaknesses lie in proving the indictment - so, with the cunning of Wellington facing Napoleon, you prepare in advance how you will emphasise those strengths and cure those weaknesses - you now have a MAP - you have identified the comments you want to make, which means you have a map of what facts you need to get to be able to make those comments - as you know, the facts come from the witnesses - so now you know who needs to say what - and more, you also know how you want to draw out the facts, in just the right way, with just the right emphasis, so that you can eventually make the planned comment - so, c’mon, keep up, keep following the ball: you now know what facts you want, from whom, with what colour, in order to make your devastating comments, prepared in advance, which ought to win the case.

Once you know what comments you want to be able to make to the jury at the end of the trial based on the evidence you will seek from the witnesses, it is

easy,

easy,

easy

to work out precisely what you want from each witness.

And this means that by preparing the closing speech, you find the natural consequence is that instinctively you prepare your examination of the witnesses.

Whether you will actually get them to say what you want in the witness box, through your questioning technique, is another matter for later discussion. But at least you now know what you would like them to say, and can gear your preparation toward thinking about exactly how, and with what questions, you will get them to say it.

WRITE THE proposed CLOSING SPEECH OUT.

Some people think this can be a simple mental exercise.

Not true.

Write out the points you want to make.

Succinctly.

Be bold.

Assume each witness will give you everything you seek: anger, inaccuracy, exaggeration, admissions of guilt, tears, agreement with whatever you suggest - imagine you will get whatever you want.

Assume the best for your case, whether prosecuting or defending.

Ask yourself, in an ideal world, what comment could there be, what evidence would there be?

Write out the points.

Reflect on them.

Now delete a few as being completely unrealistic - like where you are hoping the witness will confess to being an outright liar, which never happens, except on tv.

Feel your way toward what is achievable in court. Here is where you need judgement - the all-important ‘j-word’.

Write out your points again, noting how they are now focusing more keenly on what is realistic rather than what is fantasy.

Keep it real.

You have to understand people - you have to have a feel for personalities - you have to know how, to an extent, to get under a person’s skin, and wear their soul, seeing the world through their eyes, and feel their fears and prejudices - you have to have read the great works of literature, to have seen plays, to have watched good films, and been part of messy situations, either in them or observing them - you have to have a grasp of the human condition, and be more often right than wrong, in working out what everyone is thinking, and feeling, and who is stirring, and who is fair, and who is mean, and who is the victim, and who is playing, and who is lying, even to themselves - like I say, you need judgement, which is a talent, which I cannot teach you - but you can improve it, by reading, and watching, and developing the uber-sensitivity which is the hallmark of the true courtroom Greats.

So, as you prepare your closing speech, having identified what you would want in an ideal world, now ask yourself, realistically, what in the real world can I get the witness to say, which will help the case.

How about write out your points three times - again there is no magic in the number, but at least you now have a pretty clear idea of what you want to be saying to the jury, and therefore what you want to hear from the witnesses.

Now prepare your examination of the witnesses.

But never before the closing speech has been written.

So what do we now know?

If prosecuting, we know what each witness must say to prove the charge, we know what comments we want to make in our speech; and we can guess where the defence is most likely to attack. We therefore know now with what clarity, with what emphasis, with what compelling anguish, we wish the witnesses to give evidence of a material fact. And we know what is realistic.

And if defending, we know what areas to cross-examine, and we know what we want. Do we want the witness to appear a liar, or simply mistaken, or just likeably unreliable? We have identified who appears weak, where they appear weak, what answers most assist our case, what pieces of evidence to pluck from the statement and loudly emphasise, what pieces to deny, what pieces to avoid and if possible exclude, and above all, we know what not to ask in case we stupidly get the witness firming up what is already weak. And we know what is realistic.

With each witness, we have now identified a task. The task is this - please tattoo this on your forearm:

ELICIT FROM EACH WITNESS ONLY WHAT YOU NEED FOR THE CLOSING SPEECH.

Neither more nor less.

Hours of pointless examination and cross-examination have successfully been avoided, and our two advocates are honing like hawks straight onto the real issues.

Have you ever noticed how really able senior advocates actually look like hawks.

Eyes hooded,

Leaning slightly forward,

Head slightly bowed,

Each question focusing like a predator.

This is how you want to be, and you start by knowing precisely what you want to achieve during the case. And this means preparation. And preparation means doing your closing speech long before getting to court.

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Remember, lawyers are always in danger of being very dull indeed, sometimes appearing to be creatures from another planet, with enormous vocabularies and an utter inability to say something simple.

Juries are normal people. Lay magistrates are normal people. Sometimes we can find ourselves in an ivory tower and we forget what normal people think.

We get locked up in lawyerly machinations.

Don't.

So, when preparing your closing speech, BOUNCE YOUR IDEAS OFF NORMAL PEOPLE - see what they think - are you making sense or disappearing up your own ego.

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Ask your partner.

Ask your non-lawyer friends.

Do you think this argument in my closing speech is credible?

Do you think saying this in a speech works?

If the answer is no, find out why.

Welcome back to the real world.

The best advocates are those who know enough of the law, can do all the persuasive techniques, but for all that, they have not forgotten every lawyer’s favourite 1950s’ friend, ‘the man on the Clapham omnibus’.

Never forget him. Keep him close.

In England, good jury advocates read The Sun.

No kidding.

They may not buy it, but they read it.

The paper is very much in tune with the way a lot of people think.

Keep in touch with the man who reads The Sun and sits on the bus in Clapham.

And after you have bounced your ideas off your friends, where necessary, rewrite that closing speech.

Ok, so where are we...

I've focused heaps on the closing speech because it defines what you do during the trial. Like I say, it's your map.

Now I want to focus on preparing the examination of witnesses.

To do this, we have to understand the difference between FACTS & COMMENTS. You have to really get this - apologies if you’re there already, but you may be ahead of others, and I am leaving no one behind.

A witness gives a fact. An advocate makes a comment.

A fact is descriptive. A comment is prescriptive.

A fact is detail. A comment is argument.

An advocate needs a fact from a witness upon which to base his comment to the tribunal, as to why the fact means he should win the case.

No fact, then no comment.

So you want the fact to come out with just the right amount of colour and emphasis for the comment to be later attractive.

Let's look at an example.

You are prosecuting a burglar. It is a fact from the witness that there was an observation of the burglar at 10ft for 10 seconds in street lighting. The comment you want to make is that the witness was therefore able to see the burglar clearly to be able to identify him, so that there has been no mistaken identification.

It is not enough to establish there was an observation at 10ft for 10 seconds in street lighting. You want more for the comment to be persuasive.

What date was it?

5 February.

What time was it?

6pm.

Was there any light?

There was street lighting.

Was there any natural light?

It was dusk.

How dark was it?

Not that dark, getting dark.

Could you see?

Yes.

Why?

There was street lighting and it was not yet that dark.

How far was the man you saw from the street lighting?

10ft.

Why do you say 10ft?

Because I'm good at distances.

What colour was the street lighting?

Orange.

What's your eyesight like?

I was wearing my glasses.

With glasses, what's your eyesight like?

Very, very good.

How long did you see the man?

10 seconds.

How do you know it was 10 seconds?

I remember it was quite a long time.

How long is quite a long time?

At least 10 seconds.

Why 10 seconds?

It was long enough to take in everything about him and remember him.

What part of him could you see?

His whole body.

Could you see his upper half?

Yes.

What of his upper half could you see?

His chest, his arms, his face.

How much of his face could you see?

All of it.

In what direction was he looking?

Toward me.

What of his face could you see?

His eyes, his nose, his mouth, his hair.

What effect did the street lighting have on what you could see?

It helped me to see.

To see what?

His face.

How much of his face did the street lighting help to show?

All of it.

So, please describe his nose?

It was long and thin.

Your questions have teased out important facts from the witness, which give colour and life to the story told.

Now we have the perfect comment, based on the evidence we have teased out, which has bolstered the simple observation of the burglar’s face for 10 seconds at 10ft in street lighting:

It is respectfully suggested there is no mistaken identification. The distance was 10ft, over a period of 10 seconds. Let's count 10 seconds to remind ourselves of how that is ample time to see and remember a man's face Remember how the observation was long enough for the witness with good eyesight while wearing glasses to observe, as he put it, everything about the burglar. Moreover, the street lighting was working, the witness has sufficiently clear recollection even to remember it was an orange colour, and it must have been working well for the witness to tell us, not merely he saw the face, but to specify he saw the nose, mouth, eyes and hair. The nose was long and thin. Think how delicate a feature is the nose - you wouldn't recall seeing that unless the lighting was good - and that you'd seen the nose clearly. There can be no doubt the witness had an excellent view of the burglar.

We work our comments around the evidence we elicit. We identify what evidence we need for the comment, with what colour, with what emphasis. Therefore, we elicit the evidence to make the later comment.

We identify what facts help us, and then we go get them from the witness. There is a symbiotic relationship, fact and comment revolving around each other. But remember, one is from the advocate, the other is from the witness, and the advocate only gets enough of the one to make the other:

You get just enough of the right facts to make the later comment.

Don’t ask the witness unnecessary questions.

Understand this.

If you don't comprehend the importance of avoiding unnecessary questions, ask around your colleagues. You need to really understand it, as the comment you propose to make governs everything you do in court. It tells you what you ask and it tells you what you avoid.

Your closing speech,

prepared long in advance of the trial, weaves the comment you want to make with the facts you want to hear.

Like I keep saying, that proposed closing speech is your MAP.

It tells you where you are going, what you have to do, where the other side will attack, and where you have to get to.

It tells you everything you will want to do at trial.

And the trick is to be within 80%.

Your actual closing speech should be within 80% of your proposed closing speech - if it is not, then something has gone wrong with how the evidence has emerged at court, meaning you’ve been slack at witness control - which you will learn more about shortly.

So, get this, really get this, really really get it:

1 By preparing your proposed closing speech, you identify the comment you want to make;

2 From the comment you want to make, you identify the facts you want to hear;

3 From the facts you want to hear, you identify the questions you want to ask, and of whom.

It's that way round.

It is not, not, not:

NOT, from what the witnesses say under loose questions, you then wander about identifying what the facts are; and from what the facts are, as they emerged willy-nilly, you then identify what comments you think you should make; and from the comments that seem available because of how the evidence has emerged willy-nilly, you then craft your closing speech.

No ! - IT IS THE OTHER WAY ROUND !!!

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