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Criminal

Mastering the art of the killer cross

Toronto criminal lawyer John Rosen has defended some of Canada’s highest-profile murder cases and, when it comes to cross-examining witnesses, he has a particular reputation for being skilled and tenacious.

Now, after 45 years of practice – during which he’s become one of this country’s top advocates – Rosen is sharing with young lawyers the knowledge that has contributed to his successful career.

In a highly sought – and free of charge – private seminar called “Critical Thinking for Cross-Examination,” Rosen tutors criminal lawyers – and a few civil litigators – who want to improve their courtroom dueling abilities.

“Cross-examination is the most important weapon in the trial lawyer’s arsenal,” Rosen tells AdvocateDaily.com. “It is the acid test for truth in any trial and particularly criminal trials. Effective cross-examination depends on the critical thinking and analysis that goes into preparing for trial. You cannot advocate a theory of innocence or limited culpability without first doing that sort of critical analysis of the case.”

Rosen, senior partner at Rosen Naster LLP, describes the course that he offers in the firm’s boardroom as an “attempt to teach the critical thinking process that goes into the ‘killer cross’ that is often needed to win a case.

"The critical thinking involves identifying your client's problem, looking for the evidence that supports your theory, attacking the evidence and ultimately advocating your position for the jury."

He says there’s a need for this sort of skills teaching as none of the law schools or the Law Society of Upper Canada, which governs lawyers, offers any post-graduate course on cross-examination – “a key component in the trial process."

“There really isn’t a mechanism to formally teach how to think about the case,” he tells the online legal news service. “The proof of my success is in the improved performance of each of my students, which is something they report, but that is probably impossible to measure.”

Rosen, who is perhaps best known for his defence of schoolgirl killer Paul Bernardo in the mid-1990s, started offering his course a few years ago. Class size is limited to eight to 10 young lawyers who have some trial experience.

The students meet with Rosen one Saturday a month for six months between January and June. He uses real cases, typically sexual assaults and simple homicides, to demonstrate his points. “I try to break down the entire process using real events from the first meeting with the client to the conduct of the trial,” he tells AdvocateDaily.com.

Rosen says he often thinks about the advice he got many years ago from an older lawyer: “Control the facts and win the case.”

He explains the trial process as reconstructing the past in the present within a tightly controlled paradigm of procedures and rules of evidence. “Cross-examination flowing from a critical analysis of the case is the key to that process,” he says.

Rosen adds that the success of his first class raised another problem. “After the first group graduated, they wanted to continue to learn whatever I had to offer.”

As a result, he now mentors a group of graduates monthly on another Saturday morning. “I also have to carry on my own practice and prepare my own cases, so it’s a lot of work, but the satisfaction I get in seeing my students improve as advocates is worth the effort.”

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