Examination-in-chief

This is where you obtain evidence from your own witnesses. You need to ensure that your
witnesses give clear evidence and that they do not talk too fast in order that notes can be
taken. Ensure the witness faces the Judge when answering questions and is not looking at
you. This will enhance the quality of their evidence. When asking your witnesses
questions, you need to try to elicit from them only the evidence that is relevant. Always
therefore bear in mind why you are asking your witness a particular question and what is
you want to hear from them.
Leading Questions
During examination-in-chief the solicitor advocate is forbidden from asking their witnesses
leading questions. A leading question is one which requires a ‘yes’ or ‘no’ response. In its
phrasing it suggests its own answer. By way of an example, was the man wearing a red
and white jumper? By suggesting the answer to the witness you reduce the witness’
impact. Leading questions are forbidden in examination-in-chief because the solicitor is not
allowed to lead their witness and in effect put words into their mouth. When you call your
own witness you hope and expect that they will provide evidence that is favourable to your
case and will ‘come up to proof’.
As a general rule when you ask your witness questions you should phrase your questions
using simple words and phrases to ensure the witness fully understands what you are
asking them. When questioning your witnesses consider using points of reference to add
variety to your questioning and to move the witness along from one episode to the next. For
example, ‘can you tell us what happened after you saw the car swerve?’
Unfavourable and Hostile Witnesses
You will, at any early stage in the proceedings, take statements from each of your witnesses.
When a witness is giving their evidence through examination-in-chief you would expect
them to give answers consistent with their previous statement. However, in some
situations a witness does not give the answers expected of them.  The witness can then be
declared either unfavourable or hostile.
Unfavourable Witnesses:

 An unfavourable witness is one whose testimony does not advance the case of the
party who called him, despite the witness’s best intentions. A witness will be
unfavourable if they cannot recall some of the facts about their testimony.   If you
come across an unfavourable witness you can ask the court for leave for the witness to
refresh his memory by reading his previous statement. It is very often the case that
cases come to trial many months after the witness has provided a statement.
Therefore, it is important that before your witness gives their evidence that they have
the opportunity to read their previous statements to refresh their memory so that when
they are being asked questions they are familiar with what they said in their original
statement.

 Hostile Witnesses:
 A hostile witness is different from an unfavourable one. Whilst an unfavourable
witness can be potentially damaging to your case, a more serious situation is having
a hostile witness. A witness will be ‘hostile’ if the evidence they give is harmful to
the side calling them and it conflicts with the expectations of that side. A hostile
witness will have no desire to tell the truth and support the case of the party calling
him. An example of a witness being hostile is a witness who has deliberately
changed their evidence since they made their original statement. The party calling
this witness can ask the Judge to grant leave to treat them as a hostile witness.

Open and Closed Questions

You can ask your witnesses a variety of open and closed questions. To obtain the
information you require from a witness it will be necessary to use for example closed
questions to establish the background and set the scene and to bring out details or emphasise
a particular part of the story. Open questions will be necessary to allow the witness to freely
tell their part of the story or to turn their attention to a subject and then ask the witness to talk
about that subject. If you ask more closed questions, you will have greater control.
However, what type of questions you ask will depend on the witness.
 
  
Cross Examination
Cross-examination is the right of the party against whom the witness is called, and the
right is a valuable one as a means of separating hearsay from knowledge, error from truth,
opinion from fact, and inference from recollection, and as a means of ascertaining the order
of the events as narrated by the witness in his examination in chief, and the time and place
when and where they occurred, and the attending circumstances, and of testing the
intelligence, memory, impartiality, truthfulness, and integrity of the witness ....

Counsel should pursue one or more of the following objectives:

1. To develop favorable matters that has been left unsaid on direct examination;
2. To introduce all of a conversation or document, if the witness has testified to only a
part out of context;
3. To demonstrate that the witness is lying;
4. To establish that the witness could not have seen or heard what he claimed;
5. To test the witness's ability to hear, see, remember, and relate with accuracy what he
testified to;
6. To establish the witness's bias or prejudice;
7. To establish any interest, pecuniary or otherwise, the witness may have in the
outcome of the trial;
8. To impair the credibility of the witness, e.g., by inducing him to admit that he made
statements on a prior occasion contrary to his testimony on direct examination, or by
laying the foundation for proof of contradictory statements;
9. To impeach the witness by proof that he has been convicted of a felony;
10. To bring to the attention of the jury that the witness testifies evasively, hesitantly,
belligerently, or so slowly that he seems to be struggling to support his testimony in
chief;
11. To establish that the witness has been coached and has memorized his testimony; 

The 10 Commandments during cross examination:

 Be Brief
 Use Plain Language
 Ask Only Leading Questions
 Prepare
 Listen
 Avoid Argument
 Avoid Repetition
 Avoid Witness Explanation
 Limit Questioning
Re Examination
The purpose of re-examination is to give the witness an opportunity to explain any
matters raised during cross-examination and is therefore limited to only those
matters that were raised during cross-examination. It is not another opportunity to go
through the evidence provided.
An example of when re-examination might be necessary would be where the cross-
examination has perhaps shown the witness’ testimony to be muddled and confused.
Alternatively, you might want to use re-examination if during the cross-examination
inconsistencies have appeared between a witness’ testimony and a prior statement.
You can use re-examination to highlight flaws and/or inconsistencies in the other
side’s case or alternatively to attempt to correct anything during cross-examination
which potentially could be damaging to your case.

The questions which are asked should be in context to the facts relevant to the case and not
beyond it. Leading questions can only be asked during cross-examination and not
during examination-in-chief or re-examination unless and until the court allows.
WHAT IS A PLEA IN MITIGATION?
Before the Court passes sentence, you or your lawyer will be given an opportunity to
speak. This is called presenting a plea in mitigation.
The plea in mitigation is made to the Court after the prosecution has outlined the facts of the
offence, provided the court with the offender’s criminal record (if any) and allowed for
victim impact statements to be delivered to the Court.
The objective of the plea in mitigation is to persuade the Court to provide the most lenient
possible sentence it can be reasonably expected to give for that offence.
Matters that should be covered by your lawyer in a well-crafted plea in mitigation include,
but are not limited to:

 Reference to the likely range of the sentence, and what is known as the “starting point
sentence” – ie the average sentence for the offence committed.
 The circumstances of the offence, stressing in particular any mitigating factors, such
as threats.
 The offender’s age.
 The offender’s state of health, particularly if the offender is suffering from any mental
illness that may have contributed to the circumstances of the offence, whether the
offender is suffering from any long-term illnesses that may impact his or her ability to
sustain a custodial sentence, and if there have been allegations that the offender is a
drug addict or alcoholic what treatment has been undertaken since the offence, and
how a sentence may be able to assist the offender to obtain the treatment that they
may need to continue.
 Whether the offender has co-operated with police and or the prosecution, and
particularly if a guilty plea was entered at an early stage.
 Whether the offender has demonstrated any remorse.
 If the offence has involved damage to or stealing or goods, whether any restitution has
been made.
 The character of the offender, particularly if the offence is a first offence.
 The domestic circumstances of the offender.

Submissions can also be made about the sentence that the Court could impose.  For
example, if the Court is considering a fine, it would be useful for it to know that the offender
is not working and will have difficulty paying a fine.  The Court can then consider giving a
community work order instead.

CHARACTER REFERENCES
These can be over-rated but in essence, it is better to have them than not to.
Again, with the assistance of a good lawyer, well-written character references can have a
persuasive influence on the Court.
Factors to consider when looking at character references include the following:

 The standing of the referee within the community.

 Any reference should, among other things:
o consider the nature of the offence, that is acknowledge the office in the
reference;
o be addressed to “the Presiding Magistrate” (or Judge as it may be);
o clearly acknowledge the referee’s specific awareness of all off the charges;
o express how long the referee has known the offender;
o express how the referee came to know the offender (ie social, work, academic
setting);
o express positivity in relation to the offender’s character.

 
 
 
 
 
 

 Legal Opinion Writing

The legal opinion should be written following a structure. It should be entitled OPINION or
ADVICE and contain the title of the case in the heading. The first paragraphs should serve
as an introduction to the legal opinion, laying out the salient facts and what you have been
asked to advise about.

It is important to write in plain English wherever possible. A good legal

opinion will avoid archaic language and legalese. Perfect grammar,
punctuation and precision of language are essential.
Clarity defines good writing. A legal opinion will often contain a complicated
set of facts which will have to be sorted into specific legal issues and defined
in legal terms. Clarity of expression is therefore vital. Clarity of expression can
only be achieved through thorough planning and thought.
A thorough plan will lead to a logical structure. Any legal opinion will be
conveying a particular point, but that point will inevitably need to be broken
down into sections. Each section will culminate in an opinion and each opinion
must be fully explained and justified. Clarity of legal writing also requires
conciseness. This does not necessarily imply brevity, but once the point has
been made, nothing more need be said. Having said that, completeness and
total accuracy is vital and conciseness should not come above giving full and
precise advice.
Formulation of a Legal Opinion
A request for a legal opinion will usually come in written form. Such a request
will usually include any documents in the case. The request for a legal opinion
will include at least one and usually a number of questions which the legal
advisor is being asked to address. 
A legal opinion will often have the over arching question of does the client
have a good and viable case.  This is clearly the most important question to
any client and must be approached with honesty and directness. If the client’s
case is not viable they must be advised of this in the course of the legal
opinion, if there is something which can be done to improve the client’s
prospects of success, a good legal opinion will spell this out very precisely.
Numbered action points are one way of achieving clarity in this regard.
Lay out the pros and cons of a particular course of action, but always come
down on one side or the other.. Giving a percentage chance of success at the
beginning of a legal opinion is one way of being clear about what you think the
client’s prospects are.
Drafting a legal opinion can and should always be split into two processes:
The thinking process and the writing process.
The Thinking Process
The first thing to do is to digest and organise the facts. There will be facts in
any case which are relevant and pertinent to the case and facts which are not.
A legal opinion must focus on the relevant facts, but it may also be
necessary to specifically advise that certain things are not relevant. The first
stage will be about organising the facts of the case into these categories.
 
Other types of cases will involve different legal frameworks, but whatever the
legal issue, the legal opinion must be continuously advising on the strength of
the client’s position in the case. One question which is implicit in every request
for a legal opinion is ‘what should be done next?’ This should be decided at
the planning stage and should inform the legal opinion throughout.
What should also be borne in mind throughout the planning stage should be
the opposing case. A legal opinion will be useless if it considers the client’s
case in isolation. Evidential issues must also be considered. A good legal
opinion will always address how a particular factual situation can be proved.
The Writing Process
The legal opinion should be written following a structure. It should be entitled
OPINION or ADVICE and contain the title of the case in the heading. The first
paragraphs should serve as an introduction to the legal opinion, laying out the
salient facts and what you have been asked to advise about.
At this point, many legal opinions will set out the main conclusions and advice
and the overall opinion. This is good practice as it will encourage focus
throughout the legal opinion and the reader will be able to read the following
paragraphs knowing where they are leading. A percentage chance of success
can be included in this section if appropriate.
The subsequent paragraphs should set out your reasons for reaching the legal
opinion which you do in the opening paragraphs. This is where the legal
structure will come in. Each issue should be taken in its logical order. Each
section should include you opinion on that issue and the reasons for it.
There are certain rules of structure which ought to be followed for the sake of
consistency in legal opinions.  One example of these is that liability should be
dealt with before quantum in civil claims. If there are two or more defendants
take each of the defendant’s liability in turn before turning to quantum.
The concluding paragraph of a legal opinion ought to be a ‘Next Steps’
paragraph advising the instructing solicitors of what needs to be done to
strengthen the client’s case.
Using the Law in a Legal Opinion.
There is no need to set out basic principles of law with which the reader will be
familiar. Otherwise, authorities should be cited to support propositions of laws
and when doing so a full citation should be given. It is important to prioritise
the authorities cited in a legal opinion in order of importance to the point being
addressed. If a particular case is central to your reasoning, the basis on which
the case was decided should be set out fully in the legal opinion. Always cite
the most authoritative case on the point of law being dealt with. For example,
there is no point citing a Court of Appeal judgment which has been overruled
by a subsequent House of Lords case.
With regard to statute, much of the same advice will apply. If there is a
statutory provision which deals directly with the subject of the legal opinion
then this should be clearly stated and its effects fully explained. Of course
care must be taken to ensure that any statutory provision being cited is in
force at the time of writing the legal opinion.
In summary, any legal opinion should be written with the reader in mind. It
should be clear, well reasoned and as concise as it is possible to be without
sacrificing completeness. A logical structure based on the legal principles
being discussed is vital to clarity. Any piece of legal writing should be read
before submission to ensure against grammatical or typographical errors
which will detract from the communicative value of the work. Above all, the
advisory purpose of a legal opinion should be borne in mind at all times.