Trial Procedure and Advocacy
What the exam tests
Trial Procedure and Advocacy tests preparation of a case theory, opening, examination-in-chief, cross-examination, objections and closing submissions.
Core rules
- Begin with a case theory: a short, coherent explanation of what happened, why the law gives the client a remedy, and what the evidence will prove. The opening should be a concise roadmap, not argument.
- Examination-in-chief uses non-leading questions. Cross-examination uses leading questions and must put the party’s case to the witness, in accordance with Browne v Dunn; otherwise the witness may be recalled or the submission excluded.
- Re-examination is confined to matters arising from cross-examination. Objections must be timely and based on relevance, privilege, hearsay, form or unfair prejudice.
- Closing submissions should apply the law to the evidence, address weaknesses and use the burden of proof. The advocate must not misstate evidence or law.
Worked example
A witness gives a new explanation in chief. In cross-examination, counsel puts the earlier inconsistent statement, gets the witness to accept it, then asks the court to prefer the contemporaneous document. Because the inconsistency was put in cross-examination, the submission is fair. If counsel had kept it for closing, the witness would not have had a chance to explain.
Traps
Leading in chief; failing to put the case; arguing in opening; objecting too late; re-examining outside the scope; misstating a document; badgering a witness.