Criminal Law

Courtroom advocacy – an acquired skill

By Randy O'Donnell, Associate Editor

Understanding the nuances of the courtroom is knowledge acquired through experience, says Toronto criminal lawyer John Rosen, whose career spans five decades and includes some of the most high-profile murder trials in the nation's history.

Rosen, founder of Rosen & Company Barristers, uses the most Canadian of analogies to illustrate this point.

“You could be the biggest hockey fan in the world, and you could have watched every Leafs game in the last 20 years. That’s great. But sitting there with someone who actually played in the NHL, and having them explain the subtleties of what’s actually happening on the ice, it's a different game,” he tells AdvocateDaily.com.

“And with young lawyers, that’s what is missing. They often don’t have someone to give them the perspective of decades of lessons learned in the courtroom.”

For the next six months, Rosen will share with young lawyers — each with some trial exposure — the experiences that have contributed to his successful career.

One Saturday a month, 10-12 lawyers — mostly criminal defence counsel and some civil litigators — will attend the free sessions, conducted mainly in the Rosen & Company boardroom.

The course, which began in 2013, is taught between January and June. Each session provides bricks and mortar for the piece that follows.

Actual cases are used to illustrate the subject matter, taking the young lawyers through the complete process — from the initial client meeting to conducting a trial.

Participants commit to attending each session so that no building block is missed. These include:

Interacting with the client

“You get to know and understand the client, and get as much information as you can to inform your investigation and preparation. In other words, in talking to the client, you get an idea about the theory of the case,” Rosen says.

“At the same time, you’re starting to train the client from the beginning to think about testimony, and being cross-examined. You don’t do it during the first interview, but you develop a relationship with the goal of preparing the client well for trial."

Disclosure

“How does the material you have inform your role as an advocate? You think about how you are going to use this information, if at all, at trial,” Rosen says. “It should stimulate your thoughts about the case — what areas need to be further investigated.

“Also, you have to use the material to go back to the client, and sometimes challenge their version of events, getting an explanation for what’s alleged. Or if a witness says one thing and a client says another, getting insight into why there are differences. Is the witness lying? What do you know about the witness? How can we refute their statements?”

Conducting a preliminary hearing

“You have to clearly understand your goals for the preliminary hearing,” Rosen says. ”What are you trying to achieve, and how does that fit into all the preparation you’ve done to that point? You also have to project that into the future, and how what happens at the preliminary hearing can work to your advantage at trial.

“There are tactical considerations — how much to reveal, how much not to give away, how to approach the cross-examination of witnesses at a preliminary hearing, which is very different than at trial.”

Trial preparation

“You develop your goals, and you spend a great deal of time thinking about the prosecution’s case, and how they’re going to call it, and what their goals are so that you can develop your strategy to meet their attacks on your position,” Rosen says.

“It isn’t just a matter of attacking, it’s also defending, or as they say, the thrust and parry of combat in the courtroom.”

Conducting a cross-examination

Rosen calls it the most critical of all the advocacy skills. It can make or break your case, he says. Preparation is key.

”That’s why the course is called Critical Thinking for Cross-Examination. You have to be inventive, and you have to consider what the production is going to look like. That should start to be formed during your early preparation stages,” Rosen says, adding that a critical analysis of the case is integral and that cross-examinations stem from that evaluation.

Preparing the client for examination-in-chief and cross

“You must do it in an ethical way. You can’t woodshed the client, but you can certainly discuss with them their explanations and evidence, and how best to get it across,” Rosen says. “The client has to buy into your vision of the case so that when it is their turn to take the stand they are not testifying about a case they know very little about.

“The other part of that lesson is discussing with them the need to protect the record for the purposes of a possible appeal.

“A trial is a reconstruction of past events. An appeal is an autopsy of the trial. If you understand that then you realize the importance of making sure the record is very clear,” he says.

When possible, Rosen also likes to take the young lawyers to the empty court of Justice John McMahon. There, he encourages them to view the room from different vantage points such as the judge’s chair, the witness stand, the jurors’ box, and the prosecution desk.

“It allows you to observe things from a different frame of reference. We talk about how to use the courtroom itself as part of your advocacy skills,” he says. “I find it very helpful because when lawyers go to court, they always see it from one perspective, and it’s always better to have a wider view.”

Now into his seventh year of presenting the seminar, Rosen says each group bring its own skill sets and cases, making each session unique.

“I learn quite a bit because I hear what their challenges are, and it forces me to think about that particular issue. You sort of bounce ideas around, and learn that way,” he says. “I’m not saying it’s the only way, but we find that it works, and it’s my contribution to the profession.”

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