Training

Soon, we shall start offering courtroom practice skills training

5-DAY 5-COURSE TRIAL ADVOCACY SKILLS TRAINING

COURSE OUTLINE

Objective

 Most developing countries have no structured Continuing Legal Education and no recognisable trial advocacy skills training. The ultimate objective of this trial advocacy skills training therefore, is, first to build the capacity of legal practitioners, make them more effective in conducting trial proceeding for success, and second, to bring to the attention of busy legal practitioners the new developments in law and practice. There is a growing cadre of litigating lawyers in Africa entering the field without the faintest idea of litigation theory or the Anatomy of a Trial. The young lawyer dreams only of delivering a ‘Killer Cross Examination’. This training will highlight the salient points of the Anatomy

 Delivery

 The training is delivered within the context of adult learning principles recognizing that learning is a continuous process within the individual, the work teams and institutions. Although the training material includes PowerPoint slides, the learning process has is timed and spaced to allow participants absorb and retain enough material to develop or enhance their advocacy skills and courtroom etiquette.

This involves activities in which participants share their knowledge and experiences; activities that allow participants to practice the skills being learned. The focus is on helping participants apply what is learnt in the training in their litigation; whether they are building a case docket, preparing for examination in chief or conducting an examination in chief and other stages of the trial process.

The design and delivery of these lessons take full cognisance of the basic adult learning principles. The activities have been selected and developed to reinforce these principles. Their primary and ultimate goals are to get participants interested and let them know throughout the training that they will benefit from each lesson. Both these goals stimulate participants to learning and an incentive to sustain their attention and focus. Activities at the beginning of the lesson being interactive generate the initial interest, acting as an acquaintance or sustaining convivium among participants and creating a friendly, open and supportive environment. For the trainer, they are used to gauge the common level of skill, competence and expectations of participants to set a tone and level of difficulty of the lesson that does not overwhelm the less competent or frustrate the competent; especially for lessons that are delivered to a mixed group of lawyers and non-lawyers.

Activities in the middle or at the end of the lesson reinforce this open and supportive learning atmosphere but they are also designed to give participants a continuous and direct feedback experience of what they benefit from the lesson. Participants are, thus, able to identify why and how they will use their improved knowledge or competencies in their work. The activities are designed to help behavioural change in the approach to and conduct of litigation.

The continuous direct feedback, the realisation of the importance and how to apply the new knowledge to their work and the open and supportive environment spur the participants to set appropriate expectations, helping them to retain much of what they learn. These elements of the training inspire participants to readily associate new information with something they already know; seeing that the learning materials are familiar to what they know; and they can see how the new information is beneficial in their job.

Courses

 There are five Courses, the first two are compulsory because the rest of them depend on the work done and design of the Litigation Strategy in the first two courses: Case Initiation; Building the Case Docket; Briefs and Submissions; Examination in Chief and Cross Examination.

Context

 The objections, counter-objections, Court reprimands, apologies and frequent Court directions in the on-going Constitutional Case is a manifestation of the dire need for improvement in Trial Advocacy skills. Using adult learning principles, KAMUDONI NYASULU, Law Consultants, a member of the Continuing Professional Development Certification Service, UK now offer this training.

CASE INITIATION (Compulsory)

Description

 This Course will identify itself as the first, little known, little appreciated phase of the Anatomy of Trial. It will show why the current practice of stakeholders working in silos is ineffective because each stakeholder believes that once it has passed on the matter to the next silo, its job is done. Stakeholders include; (a) desk officers, (b) scene workers, (c) case workers (initial investigators or persons recording statements from claimants), (d) investigators, and litigation Counsel (including prosecutors).

 This Course takes learners through some of the activities that are imperative to initiate and later build a case including; (a) Counsel and all stakeholders must identify the mandatory skills required in each silo and give the personnel orientation on them, (b) Counsel must start planning and organising the case through dialogue with all stakeholders; (c) Counsel must prepare a ‘Case Initiation Report’ to guide this dialogue because the ‘report’ invariably contains ‘sprouts’ of the case theory and rudiments of litigation strategy, (d) the dialogue must apply the prevailing political, socio-economic circumstances of the community where the conduct occurred, because it is against this that Counsel will continuously review the truth of the story of Counsel’s client for logic and common sense. The dialogue must begin to reflect on the possible theories of the case of the adverse party.

Learning Outcomes

 Learners will leave this course understanding: the platform for continuous dialogue between individuals, teams and supervisors; inputs for effectiveness and efficiency; tools to develop Counsel’s, teams’, and individuals’ performance. Learners will improve in the collection of advocacy oriented complete information; subjecting every piece to cogency and admissibility. Learners completing this Course should have a full understanding, and knowledge of the benefits of this phase of the Anatomy of Trial

 BUILDING THE CASE DOCKET (Compulsory)

Description

 This Course, the critical phase of the Anatomy of Trial, like Case Initiation, is compulsory giving the role and purpose of Counsel and the team: in reviewing competencies, skills, resources required for the trial; the effectiveness of Counsel participating in the building blocks of case, so as to understand each block to appreciate the entire case, the tool to persuade the Judge that Counsel’s (Counsel’s client’s) version of the facts represents the truth; developing the theory of the case, focusing on the strengths and weaknesses of each element; and in developing the chronology of ‘The Story’.

The Course highlights: the legal framework, especially where such framework obviates the need for adducing evidence of the whole transaction; and the procedural framework.

Learning Outcomes

 The learners will gain a robust appreciation of, acquire and develop tools that will engrain in their litigation the utmost litigation requirement of preparation upon preparation and more preparation; and that Counsel understands a case better if involved in putting it together. The learners will understand that even excellent case advocacy in opening, examination, cross or closing arguments is subservient to a well-built case. Learners will be refreshed and re-oriented to adhere to rule of law and good governance tenets; primacy of the Constitution and an Act of Parliament; limits to exercise of rights and freedom; examination of the liability, type and role played of the adverse party.

 BRIEFS AND SUBMISSIONS

Description

 This is the ‘Omnibus’ phase of the Anatomy of Trial, covering pre-trial, trial, sentencing or assessing of damages and asset recovery or execution. It sets out: the required skills for case commencement, finalisation of the ‘Trial or Litigation Strategy’, ‘Theory of the Case’, ‘Opening Statement’, and the ‘Theme of the Case’. It sets out: the roles and types of briefs and submissions each building on the previous; the elements of each type; how each type is presented; presenting issues and not flaws and errors of the case; to advance Counsel’s theme and theory of the case, and the ultimate goal and purpose of persuading the Judge that Counsel’s story is the truth.

Learning Outcomes

 The learner gains tools for a fuller understanding of the full case and issues for trial, helping Counsel to prepare the case for trial readiness to achieve Counsel’s goal and purpose and the goal and purpose of litigation. The learner shall be to develop tools: to re-arrange facts into persuasive and vivid story telling; to keep the judge alert; and to deliver ‘killer opening statements.

 EXAMINATION IN CHIEF

Description

 This Course represents the Ultimate of the phases of the Anatomy of Trial. Equipped with tools from the ‘Case Initiation’, the ‘Building of a Case’ and the ‘Briefs and Submissions’ Counsel delivers, before the Judge, the ‘Theme of the Case’, the ‘Theory of the Case’, Counsel’s ‘Purpose in Litigation and ultimately the ‘Purpose of this Litigation’. This Course highlights the primary purpose of the trial including how to deal with: the scene where the cause of action arose; the complaint; the full facts; oral or documentary; the purpose of examination in chief as not being merely to place facts and documents before the court but aligned to the overall theory of the case and litigation strategy; preparation of witnesses and evidence presentation plan; the pace and order of witnesses; leading questions; and possible unfavourable and hostile witnesses. This Course also guides Counsel to communicate well; and tender documents.

Learning Outcomes

 The learners will appreciate that: client, Counsel and witnesses must be fully familiar with the case; presentation of evidence takes a different order and chronology from how it was gathered; the purpose of examination in chief is to put evidence before the judge so that he can interpret it in Counsel’s favour; evidence must be presented to enhance the judge’s understanding of Counsel’s (client’s) case; Counsel must maintain control of the witness; it is Counsel’s challenge to deal with unfavourable or hostile witnesses; and that Counsel must generate interest, grab the attention of the judge

CROSS EXAMINATION

Description

 This phase of the Anatomy of a Trial is also a reverse symbiotic trial tool for both parties. This Course highlights that examination and cross-examination must relate to relevant facts although cross examination need not be confined to the facts to which the witness testified (limited in civil litigation). It is a difficult part of litigation Since the ultimate goal for Counsel and litigation is to persuade the judge to find that Counsel’s version of the facts is the truth, the greatest vehicle for testing such truth is Cross Examination. This Course emphasises that: Counsel must strive to discredit or undermine adverse party; weaken or discredit witness testimony; cross examination is not the time for discovery and therefore Counsel must take great care not to ask questions to which Counsel does not know the answer; questions should be to elicit information from the witness that will advance the ‘Theory of the Case’, therefore Counsel must assess if the witness has: hurt Counsel’s case; been credible; will be a difficult witness to control. This Course also guides learners to: be brief; listen to the answers; avoid a quarrel with the witness; always ask leading questions; adapt to and control each witness.

Learning Outcomes

 The learners will develop tools: to prepare cross examination in advance, guarding against asking fishing questions, knowing when to cross, when not to cross, when to stop cross, to control a witness on cross; and understand the general approach rules to cross examination