This will likely be the elephant in the room for courtroom lawyers (aka litigation lawyers), especially those just starting out.
So, how does a trial lawyer prepare for trial?
Now the strategy you’ll adopt in your preparation will depend on whether you’re the going to conduct examination-in-chief or cross examination. I take that you’re conversant with the facts of your brief and already have a direction in which you want the court to perceive the case of your client. Your legal opinion on the case will come in handy (that’s if you took the pains to write one or are you wondering what that is).
Conducting Examination in Chief
Let’s delve right in. If your job is to conduct examination-in-chief, then I’ll say your task is a simple one. You’re required to lead the witness to adopt his witness statement on oath (deposition) and where it applies, tender documents. I suppose you know the questions to put to your witness to get him or her to adopt his/her written testimony as the evidence in the case, or do you need help with that? Alright, I’ll assist. The following are the questions to ask your witness to lead him/her to adopt his deposition:
- Witness, tell the court your name, address and occupation;
- Do you recall making a deposition on ….. date?
- If you see the deposition, can you recognize it?
- How do you intend to do that?
- What do you want the court to do with the deposition?
With that the witness successfully adopts his/her written statement on oath as his/her evidence in the case.
If there are documents to be tendered through that witness, you’ll follow this line of questioning after the witness has adopted his deposition:
- Witness, in paragraph …. Of the statement on oath, you had made reference to …. Document, is that correct?
- If you see the document, can you recognize it? (At this point, the clerk of court will show the document to the witness)
When the witness recognizes the document, you seek the leave of the court to tender the document in evidence and allow the opposing counsel to object if need be for that. If there’s any objection, prepare to respond to the objection. You’ll have to check whether the document is an original, photocopy or certified true copies. I hope you know the effects of those when it comes to admissibility of documents. If you don’t, please research. Where the document sought to be tendered is a photocopy, ensure to lay proper foundation as to where the original is. If the document was electronically generated, ensure that you lay proper foundation to show compliance with Section 84 of the Evidence Act before tendering same. That could be achieved by tendering alongside that document a Statement of Compliance, or stating the facts of compliance with Section 84 in the written statement on oath.
Note that some courts may require you to tender all your documents in a bundle rather that doing that one by one. So what happens if you try to tender a document and the opposing Counsel raised an objection that you can’t really respond to on your feet. I’ll share my trick with you: apply to the court to provisionally admit the document and let parties address the issue in the final address. This will be a fair tackle to all as the court can always expunge (that’s remove from its record) any document that was admitted in evidence which ought not to be admitted, provided that this was the understanding at the trial.
Once you’re done with the tendering of all documents. Kindly indicate that to the court and close your examination-in-chief. The opposing Counsel can now cross examine.
As a lawyer about to descend on the witness through cross examination, I would want to believe that you’re also conversant with your case. This will aid you to question the witness to elicit answers that will build your case. Before you even begin to cross examine, have your ‘why’ for the cross-examination. Are you cross examining to impeach the credibility of that witness; or to cast doubts in the mind of the court about the case of the opposing party. Don’t forget the provision of the Evidence Act on the reasons for cross examination. They should form the critical part of your ‘why’ for the cross examination.
How about as a defence Counsel the document you intend to tender has already been tendered by the claimant? How do you communicate to the court in that situation that you intend to rely on the same document. The procedure is to lead your witness to identify that document and then indicate to the court that the document is already an exhibit before the court.
Wow! I’ve said too much for a short article. I pause here and hope to write to you soon on another interesting topic. See you soon.
Written by Queen Charles Ukpo ESQ