From the Bench: Trial advocacy skills – How important are they? | OPINION

Posted at 1:14 PM, November 9, 2022 and last updated 1:39 PM, November 9, 2022

By Judge Ashley Willcott

ATLANTA (Court TV) – A licensed attorney, who has earned the equivalent of a law degree and has been admitted to practice law in a particular state, can give legal advice and represent a criminal defendant in court. However, does a license guarantee the attorney has developed the essential trial advocacy skills to represent their client effectively?

Coming from a former judge and trial lawyer, trial advocacy skills matter. Few trial attorneys walk into their first trial with a concrete understanding of these basic skills, but they can be learned and honed.

What’s trial advocacy? It’s a combination of the strategies and techniques an attorney uses to prepare and present evidence in a criminal case. It is part science and part art. Lawyers have been studying and developing practical trial advocacy skills since the profession began, and it’s often taught at law schools nationwide.

So, what are the basic tenets of successful trial advocacy?

Opening Statements

Opening statements preview the case for the jury. It’s not an argument; it’s a roadmap. An attorney skilled in trial advocacy will spend hours, if not days, developing a theme for their opening statement that tells a compelling story based on the facts. The opening remarks create the theme, outline the theory of what happened, and provide context to the roles of witnesses, victims, and the defendant. The opening statement should start and finish strong, as the jury will most likely remember what the attorney said first and last.

Direct Examination

A talented trial attorney uses questions and answers to tell a story through witnesses in an engaging, organized, and straightforward manner. On direct examination, the attorney can ask non-leading or open-ended questions: who, what, when, where, how, why, describe, or explain. They elicit responses using conversational language and action words explaining what happened and why to the jury.

Cross-Examination

On cross-examination, an attorney can ask yes or no questions, focusing the jury on critical points. One fact, one statement asked as a question to control the witness. Trial advocacy programs maintain that an attorney should keep cross-examination to a minimum of three points.

The goals of cross-examination include:

  • Repairing or minimizing damage from the direct examination
  • Enhancing your case
  • Distracting from your opponent’s case
  • Establishing a foundation
  • Discrediting direct testimony
  • Discrediting the witness

And the golden rule of cross-examination? Only ask a question if you know the answer.

Closing Argument

Closing arguments should be the most exciting part of the trial. They also take the most preparation. A strong closing argument highlights the story’s critical portions, explains what they mean, scrutinizes the credibility of the witnesses, and uses jury instructions to outline why the law supports the desired verdict. The argument incorporates the theme from the opening statement and conveys a moral imperative. It is the one opportunity for the attorney to convince a jury what the evidence proves and why their client should prevail.

 

Trial Advocacy Matters!

Few litigators walk into their first trial with a solid foundation of these core skills. 

Litigators who continue to practice and hone their trial advocacy skills differentiate good trial attorneys from great ones. 

Do you think most trial attorneys are well-equipped with strategic trial advocacy skills when trying criminal cases? How critical are these skills for attorneys to effectively represent a client? 

Let us know on social media @courttv #fromthebench

 

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