When I was a self-represented litigant, one of the things I feared the most was how to present our case at trial. I was a law student at the time. I had taken courses on Civil Procedure and Evidence Law, and I knew how complex these areas of law were. In particular, I was very concerned about the strategies lawyers have in examination and cross examination of witnesses. How would a self-represented litigant be able to defend herself against a lawyer on the other side, when she’s ignorant of the skills and tactics lawyers possess?
Recently, I discovered two really great books on advocacy. The first one is titled “The Devil’s Advocate. A Spry Polemic on How to be Seriously Good at Court” (3rd edition,Sweet & Maxwell, 2015), written by a British barrister, Iain Morley Q.C. This book is a compilation of tips that Mr. Morley has accumulated from his decades of practice. This is an amazing book. It grabs you right from the start. It’s written in plain English. Mr. Morley writes “The book should read like I’m talking to you, with colour and enthusiasm.” And it does.
The layout in this book is very unique. There is only a paragraph or two on each page, with lots of white space, which makes it very easy to read. There are lots of phrases that are printed in capital letters for emphasis. It looks like a small book, but it is jam packed with tons of insightful tips on advocacy. My favourite chapter, of course, is the one on cross-examination. He gives you ten tips (rules), and examples to illustrate each one. What is really surprising to me is that he advises the reader that the general rule is not to cross examine a witness (p. 229). He goes on to say that in real life, it’s just not what it’s like on television. I would have thought that in our adversarial system, cross examination is a procedure that every litigator looks forward to applying at every hearing!
The second title that deserves high praise is James C. Morton’s “Procedural Strategies for Litigators” ( 3rd edition, Lexis Nexis Canada 2015). Like “The Devil’s Advocate”, this book is small in size, but hugely informative. During law school, I was naively impressed by how each rule has specific purposes, which ultimately seeks to promote fairness to all parties. Of course, once I went into practice, I realized how many of the rules are used in a tactical manner that has little to do with the original purpose of the rule! This book describes many such tactics. One example is the “dump truck” strategy, used in the discovery phase of a proceeding. Although fairness dictates that both sides ought to produce and disclose their evidence prior to trial, what ends up happening is that a party can purposely overwhelm the other side with large volumes of documents in an attempt to frustrate them. There are examples of numerous other tactics in this book and how to counter them. My favourite is the section that includes how to deal with bullies, an issue that unfortunately comes up on a frequent basis these days.
I highly recommend both titles. These books are an excellent resource for all litigants and lawyers. Happy reading this summer!