Bias, interest and motive:
a) Bias and prejudice are particular tendencies or inclinations that a person has that prevent him to from being impartial. A person is biased in favour of or prejudiced against some person or position. This usually involves exposing a family, personal or employment relationship that renders the witness incapable of being impartial and objective.
B) Interest refers to the witness possible benefit in or determinant from the outcome of a particular case. Most commonly, though not always the witness interest is financial. Since human greed is one of the most common motivations, demonstrating it can a powerful adverse effect on the witness credibility.
C) Motive is the urge that prompts a person to think and act in ascertain way. Common examples are greed, love, hate and revenge. Each, in the right circumstances, can be a compelling emotion. Where such a motive can be effectively suggested, it is a powerful weapon because, like bias and interest, it taints the credibility of the witness, regardless of how plausible his testimony might appear to be.
Prior inconsistent statements: Raising prior inconsistent statements is the most frequently used impeachment method at trial. More than any other impeachment method, however, impeaching with prior inconsistent statements requires a precise technique to be effective before the judge. Following are the various kinds of earlier statements: prior testimony, written statements, oral statements, omissions.
Techniques: The impeachment technique must be both structured and simple. The basic structure involves three steps-commits, credit, confront. First, commit the witness to the fact he asserted on direct, the one you plan to impeach. Use the witness actual answer on direct when you commit him, since he is most likely to agree with the actual answer, rather than a paraphrasing.
Second, credit, that is build up the importance of impeaching statement. Direct the witness to the date, time place and circumstances of the prior inconsistent statement, whether written or oral. It is usually more effective to show the witness his prior written statement and make him admit having made or signed it. Building up the impeaching statement also involves showing that the statement was made when the witness memory was fresher and under circumstances showing that statement was seriously made.
Third, confront the witness with the prior inconsistent statement by reading the appropriate parts to the witness and asking him to admit having made it. Use the actual words of the impeaching statement. If you are using a length statement such as deposition, tell opposing counsel the page you are reading from. You can also have the witness read the impeaching statement, but this usually is not as effective, since the witness will not be as forceful in reading the impeaching section.
Finally, project your attitude! Your attitude during the impeachment signals to the judge what its attitude should be. Is your attitude that the witness was lying, confused or forgetful? If lying, broadcast it by using a suitably hard demeanor. If confused or forgetful, broad cast it by suing a more sympathetic tone. Your attitude during the impeachment also should be consistent with your attitude during closing arguments when you discuss the witness inconsistency.
Contradictory facts: A crossexaminer may wish to show that certain facts are different from what the witness claims. This is usually called impeachment by contradiction. How the fact is asserted on cross-examination determines whether you are under an obligation to prove up the asserted fact if the witness denies it.
SUBMISSION OF ARGUMENTS:
The important duty of a trial court advocate is to submit oral and written arguments. From this basic duty flow the following the basic duties, skills and qualities to be possessed to submit arguments:
The manner of Addressing a Judge in a Court of Law: In most cases, it is proper to call him ‘Your Honor’. Once you decide to address the judge in court, you should be standing behind the table, never sitting. Keep your arms dangling beside your body and resist the urge to talk with your hands; likewise, try not to shuffle your feet or dance nervously in place. The judge will be watching you for signs of unease, which is never a good thing if you’re the defendant. Furthermore, make sure you always look him or her in the eyes – it’s only polite.
The Judge Speaks: All of that is well and good when you need to address a judge in court, but don’t forget how to behave when the judge is talking. Magistrates don’t like to be interrupted, while he or she is talking. Likewise, don’t try to argue with his or her decision – it won’t go well, and you’ll only serve to sink your case farther into the mud. Instead, wait until after court to learn how to contest a judge’s ruling.
Get Permission: If you are in the middle of a court proceeding and have something pressing to say, it is best to address the judge directly and ask if you can speak. This is the best way to earn his or her respect, and shows you understand the court system and how you should behave. Never speak out of turn or when you haven’t been asked a question.
How to write an argument: Richard K. Neumann, Jr., professor of law at Hofstra University in New York, tells how to write a simple, single-issue legal argument:
| 1. | statement of your conclusion; | ||
| 2. | a statement of the rule that supports the conclusion; | ||
| 3. | proof of the rule through citation to authority, through explanations of how the authority stands for the rule, through analyses of policy, and through counter-analyses; and | ||
| 4. | Application of the rule’s elements to the facts with the aid of supporting authority, policy considerations, and counter-analyses, thus completing proof of the conclusion.* | ||
Other qualities:
1) Know the court: Each judge has his own approach, perspective and dimension of legal rules, policy and principles. Therefore, it is utmost important to follow the court and its approach in dealing with similar kind of cases. It helps to understand whether judge’s emphasis is on facts or law.
2) Know the facts: Trial lawyer shall master facts of his case and he must read not only the file he is carrying but also entire case file and docket proceedings, Interlocutory orders and other records in the court file. For this purpose, he must have conferences with parties and lawyer more than once and gain his confidence. Let him come out openly, there will be many untold miseries, facts and hidden aspects and material which record does not disclose. Seek for further additional material, in support and formulate points, Conceptualize the case.
3) Know the law: Lawyer must have sound knowledge in relevant law and more importantly in the evidence act and appreciation of evidence. He must have updated knowledge of recent case and approach of law of the issue in hand. It is preferable to cite the case law which judge deciding the appeal pronounced the judgment. More importantly, procedural laws such as civil procedure code and criminal procedure code.
4) As each case is unique and there are no two same cases, lawyer equipping with rich and varied knowledge subjects like History, Economics, and Psychology etc, sound knowledge in jurisprudence and its application to given case, help him give new insights to policy behind law and thereby to distinguish his case with cases against him and provide inputs to make submission for necessity of new approach in resolving the problem.
5) Other skills and qualities: Opening statement would seize the attention of overloaded or distracted decision makers of the case. The point of attention is either merits of the case or justice in the case. Pay attention to judge rather than reading from notes because the audience in trial court is judge alone. Honesty and integrity of advocate though ethics to be adhered but they are also skills which guard reputation and act as additional force for arguments submitted.