Best Way to Learn Advocacy

[JustHereNotStaying]

Hello everyone,

I was wondering what’s the best way us students can learn to refine our advocacy? I have taken the advocacy course in my law school, done the moots etc. I’m asking what can you do during articling (I’m in criminal law and will be working for duty counsels office). I get it I will get court time, but probably wash/set date court. Where can I learn to properly cross examine/examination in chief Etc? I was considering shadowing defence lawyers. but was told you really need to find someone good which is hard to find. 

[Hegdis]

Well, you were told right. THE best way to learn is to do it; the second best is to watch it being done properly.

Don't shrug your shoulders at "they can be hard to find". Here's how to go about it. Ask the lawyers around you who they would hire if they were arrested for murder. Get their top three. That should give you an overlapping list of a half dozen or so counsel. Send their office an email. "Hi, I'm a student looking to watch a trial and get a sense of how direct and cross examination are done. I was wondering if you have anything coming up that I might observe, or any other suggestions. Thanks very much for your time!"

You can also talk to Crown. Ask if they or anyone in their office has a trial coming up that looks like it will go ahead; ask for their advice. People want to be helpful.

Keep in mind no one knows for sure that a trial will proceed until the morning of; lots of things resolve last minute, or accused abscond, or courts don't have time. But keep at it because it's entirely worth it.

[Hegdis]

Here's the pointers for preparation. Keep in mind I am in BC so some of my terminology will be different if you are elsewhere but the concepts are the same.

Any criminal file has three documents you need to review and know:

1. The charging document. In lower courts it's an Information. In upper courts it's an Indictment. For now, just know the charging document: "On or about this day, in this place, this person did this thing contrary to this legislation."
2. The Report to Crown Counsel. This is the typed police report sent to Crown in order to get charges approved. Most Crown will be better familiar with this document than with anything else in the file; it's how they frame their approach to the file. This is a sensible approach, but for unprepared Crown it means they can miss things. It's the various police officer typed statements, witness statements, and a narrative of what happened. Usually includes any criminal record.
3. Police handwritten notes of the investigation. This document is where a lot of defence counsel find their defence: in the gaps, in the mistakes, in the contradictions.

There's also potential exhibits like photographs, videos, copies of documents (like an ID or a bank statement or car insurance etc), certificates of analyst (if drugs). These foundational documents can also differ from what is in the RTCC.

So the approach you want to take is knowing the RTCC, and then comparing everything in there to the rest of the file. This is your basis for cross examination. What did the police mis-state, miss, fail to do, or do wrong? How does it compare to their notes? The other evidence? 

Next consideration: what is the law about how the police can behave? Did they get it wrong? Did they arrest too fast? Did they fail to make sufficient observations / get confirmation of ID? Did they elicit evidence from your client after 10(b) was invoked? This is the next consideration.

Finally, you want to get instructions from your client. IF they are likely to take the stand, you need to know ahead of time what they will say. What in the disclosure we've been discussing corroborates your client's version of events? Make sure it's put to the police officer first so it's properly in the record. And if your client claims a bunch of things happened that the officer has not recorded or testified to, recall the rules of evidence: you MUST put that version to the Crown witnesses, or risk your client's evidence being given no weight.

[Vizslaw]

I would also just add that, while it may be ideal to only observe the pinnacle of trial advocacy from the best of the best, there may well be some value in just observing trials. Sometimes you can learn a lot from watching a lousy examination in chief or cross-examination. There are a lot of different styles/methods out there and I think it's just as helpful to see what works versus what doesn't. Granted, it may be hard to distinguish between those two for now, but I still think being exposed to trials and contested hearings is good just for the sake of being exposed to trial advocacy and seeing what piques your interest.

Watching a terrible cross may inspire you to go home later and think about how you would deal with that witness, rather than just watching someone dismantle the Crown's case with surgical precision but be left wondering how the hell it happened or how you will do that one day.

Anyway, I agree with @Hegdis just my two cents on exposure to advocacy in general.