Handout of a 2021 Lecture on

ADVANCED ORAL ADVOCACY SKILLS

IN THE COURTROOM

By: Hon. ZENAIDA N. ELEPANO

Court Administrator (ret.)
Professorial Lecturer II, PHILJA
Commissioner and OIC, LEB

I. INTRODUCTION

A. “The trial skills we will know best aren't the ones we've
been taught. They are the ones we have taught ourselves
by trial and error.” (Ray Moses, Esq.)

B. To be a skilled trial lawyer, you need: (1) knowledge

of law and procedure, (2) intuition, (3) fairness and
integrity, (4) dedication to the justice process, (5)
preparation, and (6) skill in applying the applicable law,
procedure and rules of evidence in the context of the facts
of the case.

C. Skills building: - preparation (readiness), performance

(execution), analysis (evaluation), and correction
(perfection).

E. Ground Rules in Oral Advocacy:

1. The opposition in court trials is the adversary not the
enemy.
2. In a contested trial, you must act ethically and with
civility toward opposing counsel.
3. Remember that your case must have a theory just as
the opposing party has his theory.

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4. Think positively.
5. Ensure that the rights and obligations of a witness are
observed as guaranteed under Sec. 3 of Rule 132. These
are:

a. the right to be protected from irrelevant, improper

or insulting questions and from harsh and insulting
demeanor;
b. the right not to be detained longer than what the
interest of justice will require;
c. the right not to be examined except only as to
matters pertinent to the issue;
d. the right not to give an answer that will tend to
subject him to a penalty for an offense, unless
otherwise provided by law;
e. and the right not to give an answer that will tend to
degrade his reputation unless it is the vary fact at
issue or from which the fact in issue may be
presumed.

II. THE TRIAL

The procedure for trial before Philippine courts is

governed by Rule 30 for civil cases and Rule 119 of the
Revised Rules of Court, and the Guidelines for
Continuous Trial (AM No.15-06-10-SC,) for criminal
cases. the Judicial Affidavit Rule applies generally to
civil, criminal and administrative cases.

B. DEVELOPING THE CASE FOR TRIAL -

Case development: the process of sifting through and
scrutinizing all the facts and data you have gathered
through informal and formal means (informal,

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through client’s and witnesses’ narratives; and
formal,through, depositions, admissions/stipulations):

A. Construct a Theory of the case (a Factual Theory

and a Legal Theory).

1. In formulating the factual theory, identify the

important and useful facts, to distinguish them
from those that are not, to build a case that is
legally sufficient and factually compelling. To
do this:
i. Assess and construct the elements of
your client’s claim. Determine the
factual elements of the claim that must
be proved by evidence to support your
client’s case.
ii. Establish the facts by evidence
necessary to support your client’s
claim..
iii. Separate the important evidence -
admissible, relevant, reliable (survives
the test of time) and resilient (survives
adversarial testing), trustworthy,
from the unimportant.

2. What is your Legal Theory of the case?

Determine the applicable law and
jurisprudence.

B. Build a case scheme. What is the core truth? The

essence and soul of the case? Draw from slogans,
literary sources, pop culture such as movies,
current events, a play on words, a catchy rhyme.

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 C. Maintaining Control Over The Trial -
1. Have mastery of the facts, and ensure ready
access to sources of information – data, statistics,
authorities.

2. Present your witnesses (as well as

identification/authentication of exhibits, Sec. 5 of
Rule 132) through their Judicial affidavits in lieu of
direct testimony to tell your story:

• Prepare witness folders, complete with copies of

exhibits and prior statements.
• Know the elements you must prove and which
witnesses will provide the key testimony.
• Do not waste the court’s time. Always have enough
witnesses ready to fill the day. Be organized.
Prepare and arrange all your exhibits. Test all
equipment, e.g., powerpoints, pictures to be flashed
on screen, ahead of time -- and retest it every day.
*Be an effective storyteller.

D. The Direct Examination -

Three objectives of direct examination by a lawyer:
a. To tell the court about his/her client’s claim or
defense by sufficient evidence;
b. To convince the court of the integrity, admissibility,
relevance and sufficiency of the object evidence of
the party, and the credibility of his/her witnesses;
and
c. To countervail in advance the evidence of the
opponent.

E. Techniques for Oral Direct Examination:

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a. Call a witness respectfully, as: Mme. Or Mr.
Witness. An expert witness should be called
by his/her professional title: Dr., Inspector,
Officer, Father or Reverend, Sister (if a nun) .
b. Ask the witness the purpose of being in court.
c. Move on to the testimony, let the witness tell
her story thru Q and A in her/his own words
d. Do not ask leading questions unless allowed
under Sec. 10 of Rule 132 (witness is ignorant,
a child of tender years, feebleminded, deaf-
mute, hostile, or a witness of the adverse
party.) Do not ask misleading questions.
e. Ask Clear and Understandable questions.
(Begin question with What, Who, Where,
Why, or How)

f. Ask Looping or Double Direct questions – This

means making the answer of a witness part of
your next question.

E.g. Q. You said the man with the gun talked

with you. What did he say to you?
A. He said: Hand me your bag.

(The looping question:)

Q. After he said: “Hand me your bag”,
what did you do?

g. Use Blocking and headlining (one topic for a set

of questions, and an introduction for each topic to
alert the court and the witness about the next set
of questions);

E.g. “Now let us go back to the event you

mentioned that happened on Christmas
Day last year, ….”

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 h. Personalize a witness to build rapport with the
court (ask relevant questions about her family, life,
her values, etc)

i. Incorporate PATHOS . A well-placed question on

how the witness feels can humanize her
testimony.

j. Set the stage: lay the foundation by eliciting

background information for the court to have a
full perspective and fully appreciate the
forthcoming testimony on the critical events in the
case.

k. Fully develop the action sequence - telling the

story by Q and A

l. Use demonstrative aids and visual/audio exhibits,

power points, such as maps, graphs, enlarged
photos of the crime scene, of the victim and the
injuries, videotapes, audiotapes, CCTV, Diagrams.
m. adopt a confident winning attitude

II. Adverse Examination/Cross-Examination (Sec.

6,Rule 132)
The Purpose of Cross-Examination -

Cross-examination can strengthen your case in three

general ways: (1) it can reveal factual support for your
theory of the case that would otherwise not be available
(2) it can seek to bring out information supportive of the
evidence brought out on your direct examination of other

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witnesses; and (3) it can seek to demonstrate that the
witness being cross-examined should not be believed.

Here are some helpful techniques that you may use:

A. A trial attorney preparing to cross-examine an
expert witness must
1. read and summarize beforehand the report or
other prior statement(s) of the expert witness in
the case.
2. determine what school the expert graduated
from, and see if some of the professors who taught
the expert have different opinions that may be
introduced and compared to the expert’s opinion
at trial.

B. Cross-Examination of an Expert Witness

1. Put into doubt the expert witness’s credibility.
To do this, you should attempt to expose the
expert’s biases.
2. Attack his or her qualifications.
3. Make the expert your witness.

*Don’t overdo the attack. You may be making the

witness an underdog, and arouse sympathy by
the court for him. Choose only two or three
major areas of attack at trial.

II. Impeaching a Witness:

Under Rule 132, Sec. 11, impeach by
contradictory evidence, by evidence that his general
reputation for truth, honesty and integrity is bad,
inconsistent statements, or by evidence of a particular
wrongful act - that he has been convicted of an offense.

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A. Demeanor in Cross-Examining a Witness in
General:
1. Approach the witness and start the examination
with a pleasant face and a gentle and courteous
manner.

2. Use simple language as much as possible. Be

conversational. Don’t ask complex or complicated
questions.

3. Never use sarcasm; don’t ridicule a witness on

account of his poverty, illiteracy, gender or physical
disabilities. This will antagonize not only the witness
but the judge as well.

4. Never allow your client to interfere in your

examination. Remember you are in charge of it. To
prevent this situation, come to court prepared. Use
notes if need be.

5. Always keep your wits around you. Don’t lose your

cool. Be inscrutable and don’t react to what the
witness says.

6. Do not ask any question unless you have an

objective or purpose in mind. This may give the court
the impression that you are fishing for evidence and
that you are not prepared.

7. Never argue with the witness. Arguments are

proper in the memoranda or briefs.

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8. On cross-examination, never ask a question the
answer to which you do not yet know. (In conducting
an oral direct examination, never ask your own witness
by asking: Are you certain? Are you sure?)

9. When you have the answer you want on cross, don’t

ask the witness to explain! Stop already when you get
your desired answer. If the witness attempts to
explain, cut it short by saying, “Thank you, Mr/Mme.
Witness. Let me now proceed to the next question.”

10. Ask Statement of Fact Questions (A Statement of

Fact which does not end in a question mark but when
spoken is unmistakably a question. It asks the witness
to confirm what the lawyer is stating.

Example:
“Mr. Witness, you were at the karaoke bar
before the shooting started.”
“And at the bar, you saw the accused seated
at a nearby table.”

11. Don’t lose time and energy by dwelling on

irrelevant or minor matters

12. Hide the objective of your cross-examination.

Don’t be too transparent because that will give the
witness an idea of what you intend to do with him and
his testimony.

I shall now discuss –

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IV. TANFORD’s 20 BASIC PRINCIPLES OF
EFFECTIVE TRIAL ADVOCACY (Note: My Thanks
to James A. Tanford [2006] who allows his Basic
Principles on Trial Advocacy to be freely reprinted,
quoted, criticized and used, as long as properly
attributed.)

1. When arguing a point, be brief. Focus on the key

points of your argument.

2. Be positive. Do not use weasel words or hedge

words such as maybe, perhaps, I guess, it appears,
somewhat, whatever, etc. Emphasize the strengths of
your case, rather than the weaknesses of your
opponent's.

3. Be clear about what you want.

4. Keep it simple. Concentrate on the five or ten most

important facts in your case. Use simple language
rather than legalese.

5. Provide details. This is not inconsistent with

simplicity. Simplicity means concentrating on the main
issues and ignoring the rest.

6. Provide motives. Don’t just say that someone did

something. State why.

7. Use the Rule of Threes. If it’s important, do it three

times. This is a rhetorical tool.

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E.g.
“The baby didn’t just die, he suffocated, then he
turned blue, and died.”

‘’It wasn’t just a preventable tragedy, it was a

preventable, inexcusable, and avoidable tragedy that
wouldn’t have happened if simple precautions had
been taken by the accused.”

“It’s not just the breathalyzer that proves the

defendant was drunk, the arresting officer and
eyewitnesses corroborate it.

8. Start strong. Psychologists have confirmed what

first impressions are important. You should focus on
something you especially want the court to pay
attention and give credence to. (Rule of Primacy)

9. End strong. Have a big finish. The final thirty

seconds of each phase of your trial, each motion, each
direct and cross-examination, -- are also critical times
when you especially want the court to remember what
your witness said. (Rule of Recency)

10. Admit your weaknesses. You can disclose them in

a way that makes them appear trivial. Psychologists
opine that you will be more persuasive if you bring out
both sides of an issue yourself than if you adopt the
approach of trying to hide obvious points of
vulnerability.

11. Use themes. Find themes that relate to the elements

of your case or the characteristics of your client that

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arouse natural sympathy or coincide with universally
admired principles. You can come up with a clever title
for your theme. For example,
a. David and Goliath -- if you represent an
individual against a large corporation.
b. Fighting city hall -- if you represent a
person who has been the victim of inflexible
policies of government bureaucracies or the
unreasonable decisions of faceless officials.
c. Caught in a sea of red tape -- if you
represent a small business trying to comply
with contradictory and arbitrary
regulations and laws.
d. Law and order -- if your case is weak on
sympathetic factors, but your client's actions
were legally justified. If you are weak on the
facts, pound on the law; if you are weak on
the law, pound on the facts. If you are weak
on both, fat chance you will lose your case.

12. Use chronological order. Do not use flashbacks.

It’s going to be difficult enough for the court to follow
your case.
13. Use illustrations. Long recitations of facts and
information are boring and hard to keep straight, so
use both visual aids and literary allusions.

14. Use language carefully. Use words that personalize

your witnesses and depersonalize your opponent's.
Note that what is important here is the choice of noun,
not adjective.

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15. Be professional. Wear a dark suit. This goes for
both female and male lawyers. Be formal rather than
informal. Maintain a good body posture. Be respectful
of others in the courtroom at all times. Stand when the
judge enters or leaves the room. Address the judge as
"Your Honor" and address all witnesses as Ms, Mme,
Mister plus last names.

16. Have a personality. Colloquially, the term is

“urbanidad” This is not inconsistent with
professionalism. You can be professional and
courteous of others without becoming a boring,
wooden stick or a robot. When socializing out of
court, tell an engaging story, recite a poem or parts of
it, wear a rose in your lapel, and laugh when something
funny happens. Be human, not a stuffed animal.

17. Use as few notes as far as possible. A codigo for

cross-examination is helpful. But don’t read the entire
thing so that your cross becomes artificial, or
robotical.

18. Watch your voice. Your voice is important -- try to

be a good actor. Speak clearly. Vary your pace, pitch,
tone and loudness. Keep up the pace of your speech,
without letting it get so fast the judge cannot follow
you. On the other hand, slow, dull, monotonous speech
is boring. (I am a great fan of Dr. Seuss. I read all of
his books. In reading them I discover the importance
of pacing. Of cadence. I advise you to read aloud his
book Green Eggs and Ham. You will learn a lot about
pacing, pitch and tone.)

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19. Always remember that the case is about facts, not
law. The court doesn’t care about the legal
technicalities, and neither should you.

20. Always take the high road. Don’t take cheap shots.
Avoid argumentum ad hominems. Don’t appeal to
racial or ethnic prejudice. Avoid sarcasm. Do not be
rude, abrasive, or obnoxious.

21. And in trial court oral arguments, never, ever, use

a lectern. This isn’t an appellate argument.
IV. CONCLUSION

E N D
References:
Kosovo Trial Handbook;
Trial Skills by Ray Moses, 2000
The Art and Science of Trial Advocacy, by Perrin, Caldwell and Chase, 2nd Ed,
LEXIS-NEXIS, 2011:
James A. Tanford [2006], Basic Principles on Trial Advocacy

MCQ FOR 2021 LECTURE ON ORAL ADVOCACY IN

COURT

QUESTIONS AND ANSWERS ON ORAL ADVOCACY

IN COURT:

INSTRUCTIONS: CHECK THE CORRECT ANSWER

1. Oral Advocacy is
_____a. a rule of procedure and a strategy
_____b. a science and an art
_____c. a presentation and a science

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