The Nuts And Bolts Of Trial Advocacy
Masters Of Advocacy Lecture By Andrew Hochhauser QC
On 23 March 2010, the SEC was privileged to have Andrew Hochhauser QC present a Masters of Advocacy lecture, modestly entitled: ‘The Nuts and Bolts of Trial Advocacy’. The lecture did much more than merely present the nuts and bolts as the presenter, with 32 years experience at the Bar, treated a packed Inner Temple Hall to an absolute masterclass on the essentials of advocacy. The lecture was broken into three parts: preparation, the opening and cross-examination.
The importance of preparation was summed up in this cautionary note: “Good advocacy begins well in advance of any trial.” Are your pleadings in order? Identify the issues. What are the documents or witnesses of fact going to establish? (“Documents win cases.”) Have disclosure obligations been complied with? If not, why not? “Never forget the value of emails.” Who are you going to call as witnesses and in what order? (“Remember: quality not quantity.”) Are they essential? Are they going to be cooperative? Get witness orders in good time. Avoid drafting long witness statements and multiple statements. Avoid putting words into the witness’s mouth. Get your trial bundles ready as soon as possible and know them back to front and inside out. Identify, flag and highlight the most important documents. Mark your files clearly on the spine and inside cover. (“Organisation is everything.”) Know your opponent’s case better than he or she does. Look up and ask others about your judge.
The purpose of the written opening is to educate the judge. Prepare a reading list. State realistically how long it is going to take him or her to read. Keep it simple. The written opening should be pleasing on the eye. Identify the issues and summarise briefly the rival cases. Avoid putting your case too high. (“It may come back to haunt you.”) Identify the relevant principals and authority. Don’t do a thesis on the law. After you’ve prepared your written opening or closing, even a skeleton argument, put them to one side and come back to them. (“You cease to get snow blind.”) Send it your solicitor. (“Two heads are better than one.”) The oral opening is another opportunity to bring the judge up to speed. Establish what he or she has read. Draw attention to the most important documents and keep it concise.
Ask yourself in preparing and conducting your cross-examination: When this witness leaves the box, what is it that I want to have established with the minimum of effort, minimum of questions? Prepare “a route map rather than a script.” There is no need to take cross-examination in chronological order. Find a style that suits you and is appropriate for the case. Listen to the answers; they are what matter. Put that part of your case that is relevant to that witness’s evidence. Use leading questions. If a witness avoids answering a question, keep putting it until he does. (“Three strikes and you’re out.”) Don’t ask multiple questions. Be firm and persistent but don’t hector or bully. Do not interrupt a witness. Let a good answer hang in the air. Watch the judge’s pen. Never put questions on a false premise. Don’t make speeches or insert commentary.
Following the lecture, John Hendy QC, a regular opponent of Hochhauser, had an opportunity to cross-examine this master of advocacy. How did he deal with difficult judges? Avoid full on confrontations but if it is necessary, do it (“keeping one eye on the Court of Appeal”). How physically does he prepare his cross-examination? By plotting out areas that need to be explored on a sheet of paper and then boiling it down. What was his style of cross-examination? In general, you can catch more flies with honey than vinegar. The style will depend on the case and the witness but find your own style and one you are comfortable with. Which advocate had most influenced his forensic style? John Wilmers QC and the advocates in the Blue Arrow trial. Did he ever wonder whether he was in the wrong job? Once he advised strongly in favour of applying to strike out and was told by the judge that the application was hopeless. Happily, he won eventually in the Court of Appeal. Did he still get nervous? Absolutely. The day before a big case, he gets no more than three hours sleep. (“The day you stop feeling nervous, is the day you are no longer at the top of your game.”)
Hochhauser imparted so many gems of wisdom that it is impossible to do justice in this short piece to all of them. One piece of advice stood out in particular: "Focus on what is important and paint in primary colours." This lecture did just that.