On 21-3-2011, Mr. Hugh Selby presented a talk titled The Advocates Journey – From First Steps to Greatness.
A total of 133 participants attended the said seminar.
As a brief introduction, Mr. Hugh Selby is a professional advocacy trainer and is attached to the Australian National University College of Law program. He teaches and writes about court craft (a range of techniques that are useful to advocates and witnesses in courts and tribunals). He trains experienced advocates and expert witnesses, police and law students, drawing upon teaching methods he has developed over the years. He has been teach advocacy technique to lawyers since 1986 and has taught in Australia, Malaysia, Japan and the USA.
He started the talk by handing over a 3-page summary to the participants regarding the aspects he would be covering. It was highlighted to the participants that on the said summary, there is an empty column on the right. The purpose of which is for participants to make their notes. He then advised that such a format ought to be adopted in submissions to enable the judge to make notes as well.
It was emphasised throughout the talk that underlying the advocate’s art is the ability to control each and all of one’s self, the space, the interaction with any witness and the emphasis, timing and flow of the issues that are taken up in questioning or submissions.
The following areas were discussed during the course of the talk and summarised as follows:
1. Maintaining the illusion of Confidence
· The movement of the toes of the advocate ought to be synchronized with the speed on his/her voice hence ensuring that he or she does not speak too fast or too slow;
· Drinking a glass of water to buy time to think;
· Preparing a checklist on points where the advocate knows he/she will forget in a situation where he/she is anxious;
· Have the witness to face the judge to enable facial recognition;
· The advocate is to look towards the direction of the judge and not the witness;
· Prepare a list of the topics and areas before the start of trial. This will enable the the judge and the witness to know what will generally transpire during trial.
2. One adaptable Case Map from first fact gathering to the Federal Court
· During the course of determining legal issues, one is advised to write one’s thoughts on a board in non-linear and randomized placement of circles. The purpose of this is no one particular fact / issue is given priority;
· Once the legal issues are determined, facts should then be assigned to each issue to ascertain what is there and what is missing;
· The priority of issues, facts and witnesses should be in the following sequence:-Best – Worst – Second Best
· The rule of thumb is to always have the 2nd best issue, fact and witness as the last.
3. The what, why and how of the Communications Triangle
· Always create and sustain confidence in the witness;
· The unfavourable aspects of the witness’ evidence ought to be sandwiched between the best aspect and the 2nd best aspect.
4. Crafting each Witness’ Story
· The story should progress from one dimensional (the simple, open questions), to two dimensional (adding motion and time), to three dimensional (adding depth);
· Participants were advised to picture themselves as the parrot on Captain John Silver’s shoulder. Instead of Captain John Silver, the participant is to visualize him/her on the witness’ shoulder, bringing the witness through the sequence of events as if he/she is going through it himself/herself;
· The advocate should avoid leading on an issue by going back / out to a neutral place and then crawling back towards that goal;
· The advocate should declare the topic or that there is going to be a change of topic before embarking on it;
5. Cross Indoctrination
· Starting your submissions in the guise of questions put to the opponent’s witness;
· Do not prepare a list of cross examination questions as the advocate would find himself/herself restricted;
· The opponent’s witness’ total response (what they say and how they say it) is the fuel for the advocate’s next question or line of questions;
· Success is when the judge answers your questions before the witness because then the judge has persuaded him or herself;
· If the advocate is experiencing a ‘brain freeze’ moment, his/her perception of time is wrong. The key is to look ‘wise’ and not panic;
· After the court proceedings, the advocate should take a moment to reflect and analyse what went well and what went wrong. The advocate should learn from this self-reflection.
6. Taking Charge in the moment
· Moments of brilliance reflect the emotional intuition that is the sum of the advocate’s experience;
· To build the mental reference library i.e. to read a witness requires an active and reflective thinking approach;
· Technique is generic, style is personal;
· Never under-estimate the power of silence the advocate has on a witness.
Prepared by: Choo Dee Wei
The following areas were discussed during the course of the talk and summarised as follows:
1. Maintaining the illusion of Confidence
· The movement of the toes of the advocate ought to be synchronized with the speed on his/her voice hence ensuring that he or she does not speak too fast or too slow;
· Drinking a glass of water to buy time to think;
· Preparing a checklist on points where the advocate knows he/she will forget in a situation where he/she is anxious;
· Have the witness to face the judge to enable facial recognition;
· The advocate is to look towards the direction of the judge and not the witness;
· Prepare a list of the topics and areas before the start of trial. This will enable the the judge and the witness to know what will generally transpire during trial.
2. One adaptable Case Map from first fact gathering to the Federal Court
· During the course of determining legal issues, one is advised to write one’s thoughts on a board in non-linear and randomized placement of circles. The purpose of this is no one particular fact / issue is given priority;
· Once the legal issues are determined, facts should then be assigned to each issue to ascertain what is there and what is missing;
· The priority of issues, facts and witnesses should be in the following sequence:-Best – Worst – Second Best
· The rule of thumb is to always have the 2nd best issue, fact and witness as the last.
3. The what, why and how of the Communications Triangle
· Always create and sustain confidence in the witness;
· The unfavourable aspects of the witness’ evidence ought to be sandwiched between the best aspect and the 2nd best aspect.
4. Crafting each Witness’ Story
· The story should progress from one dimensional (the simple, open questions), to two dimensional (adding motion and time), to three dimensional (adding depth);
· Participants were advised to picture themselves as the parrot on Captain John Silver’s shoulder. Instead of Captain John Silver, the participant is to visualize him/her on the witness’ shoulder, bringing the witness through the sequence of events as if he/she is going through it himself/herself;
· The advocate should avoid leading on an issue by going back / out to a neutral place and then crawling back towards that goal;
· The advocate should declare the topic or that there is going to be a change of topic before embarking on it;
5. Cross Indoctrination
· Starting your submissions in the guise of questions put to the opponent’s witness;
· Do not prepare a list of cross examination questions as the advocate would find himself/herself restricted;
· The opponent’s witness’ total response (what they say and how they say it) is the fuel for the advocate’s next question or line of questions;
· Success is when the judge answers your questions before the witness because then the judge has persuaded him or herself;
· If the advocate is experiencing a ‘brain freeze’ moment, his/her perception of time is wrong. The key is to look ‘wise’ and not panic;
· After the court proceedings, the advocate should take a moment to reflect and analyse what went well and what went wrong. The advocate should learn from this self-reflection.
6. Taking Charge in the moment
· Moments of brilliance reflect the emotional intuition that is the sum of the advocate’s experience;
· To build the mental reference library i.e. to read a witness requires an active and reflective thinking approach;
· Technique is generic, style is personal;
· Never under-estimate the power of silence the advocate has on a witness.
Prepared by: Choo Dee Wei