TRIAL TACTICS AND TECHNIQUES

Stevensons LLP

OBA Conference April 9, 2010
INTRODUCTION

You can get mixed messages reading too many advocacy manuals and texts1. For example, some will advise you when opening at trial to be thorough and heavy on the documents, and others will advise you to be short and sweet. In closing some will advise you to make limited written submissions in a fashion akin to bullet points and others will advise you to file a detailed written statement both at the beginning and end of trial.
Some people recommend that you make detailed oral and written submissions covering every material point. Others will recommend that your submissions should be limited in scope so as to allow the judges to develop the argument for themselves: on the psychological basis that a judge’s own thoughts are more likely than your submissions to be incorporated in the judgment. The plethora of advocacy-related education courses and programs would suggest that advocacy skills can be learned. I believe this is true to a certain extent or this paper would not be useful.
Nonetheless, the lifeblood of advocacy is experience. And a lot of experience is a prerequisite to being a successful advocate.

This article further examines the experience and the style of defense lawyers. It will take you through the tactics in timing utilizing case samples for consideration as well as laying out five points of advice when seeking to expedite a trail.

Should you or should you not make an objection and what are some of the common objections made? When should you challenge an expert?

Page 10 of this article:

The Goudge Report (2008)20 on flaws in Ontario’s forensic pathology system had much broader implications for civil and criminal justice in Ontario. It sets out fertile ground for objections to expert evidence. In the context of criticizing the pathologist, Dr. Smith, the Inquiry identified 10 criticisms, all of which can be relevant in any case:
(i) he failed to understand his role was not to support the crown (or party
retaining him) (this goes to bias and may affect both weight and
admissibility);
(ii) he failed to adequately prepare for court (this would be relevant to the
weight of his evidence);
(iii) he overstated his knowledge in a particular area (this may be relevant to
his qualification as an expert or to weight);
(iv) he gave anecdotal evidence which was inappropriately unscientific (this
goes primarily to the weight of his evidence);
(v) he failed to give a balanced view of the evidence and was dogmatic and
was unduly certain (this again goes more to weight);
(vi) he was unprofessional and gave unwarranted criticism of other
professionals (this again goes more to weight);
(vii) he testified on matters outside his area of expertise (this should be the
subject of an immediate objection);
(viii) he gave opinions which were speculative, unsubstantiated and not based
on (pathology) findings (this goes to weight);
(ix) he used loose and unscientific language (again, this goes to weight); and
(x) he lacked candour and honesty (again, this goes to weight).
The Goudge Inquiry established that the complexities of forensic pathology often led to ineffective cross-examination. You must be thoroughly prepared in the particular area of expertise to perform a competent cross-examination.

This article will also take you through your written submissions before and after the evidence has gone in. It will assist in providing direction for both opening statements and closing arguments.

How can one utilize the transcript fully for cross examination purposes? Examine twelve suggestions for this.

There is also an array of excellent resources attached and labeled Schedule A as well as examples of transcripts in the section labeled Schedule B.

Page 35 of article:

Executive Summary

The Death Of  A Child And The Criminal Justice System

This explains the devastation and impact involved on the families who have lost a child coupled with the travesty of being wrongfully accused of being responsible for it.

Dr. Charles Smith is rightly used as an example of medical misdiagnosis complicating an already difficult time for a family. What was his role as an expert and what were his failings in providing evidence?

The article explores ten of these pertinent failings, which not only permeated the cases Dr. Smith was involved in but have been repeated with so many other so called expert evidence.

Page 40 provides an analysis on the roles of the Coroners, Police, Crown and Defense and then moves on in Page 41 to give insight as to the role the court plays. Seven points are elaborated on regarding ways to assist the court with this oversight.

Regarding wrongful convictions on Page 42 I quote:

In my view there is one set of cases in which further review is justified. Simply put, the changes in pathology knowledge concerning shaken baby syndrome and pediatric head injures over the last two decades provide cogent reasons for a carefully constructed review of these cases.

For full PDF article please see Source:

http://www.stevensonlaw.net/TrialTactics.pdf