A

Abigail, 193
Acknowledge feelings, (R 87), 164
Actors and acting, 38, 39
Adrenaline, 47
Advocacy, honest, 7, 75, 203
Advocacy in the age of high technology, 196-199
American liberty, 42, 203
Angry shareholders, 68
Anxiety on part of jury, 49-50
Anything? Something? questions on direct, 122
Appearance, personal, 10
Appearance for documents (R 90), 177
Approval, prior, from the judge, 32
Arguing with the witness, (R 81), 148
Argument in opening statements, (R13), 24, 25
Aristotle, 162, 185
As lean as you can make it, 52
As soon as you have an approximate idea of what your case is about sit down and write your closing argument, (R 55 I), 85
Audience, captive, 43
Average juror, 71
Avoid detail, (R 26), 50

B

Back-tracking out of trouble, 143
Badge language, 173
Baghdad, 168
Balance of inclination, judge's, 30
Barren patches, 54
Be aware of timing and use the power
of the pause, (R32), 57
Be brief (R 28),
Brevity, 19, 52, 134, 192, 194
Be likeable, (R 39), 66
Be real, 67
Be your own kind of advocate, 41
Beginning, middle and end, (R 23), 46
Bell, Alexander Graham, 196
Beware of demanding the Yes or No answer, (R 66), 110-111
Beware of getting too close to the witness, (R 36), 60
Bicycle, police officer on, 151-152
Blank, mind going, 46
Body energy, 59
Body language, 9-10
Body language of a document, 176
Boilerplate, 174, 192
Boring bits, 54
Brevity, 19, 52, 134, 192, 194
Brisk walk, writing at the pace of a, (R 97), 185
Broadway, 38
Browsing, importance of, 41
Bullying the witness, 60, 110, 129
Burden of proof, 18
Bureaucrats, 98
Butcher paper, 13

C

Cab-rank rule, 28
Campbell, Lord, 29
Captive audience, 43
Checklist, 86
Childhood response, 45
China, 168
Choreography, 61
Chronology, respect for, (R98), 187
Civil defense final argument, 164
Clarification, 154
Closeness,
   To jury box, 59
   To witness, 60
Clothing, advocate's and witness's, 10
Coffin nails exception, 81
Color, 10-11, Appendix 1, 205
Commitment, (R 20), 40
Competence, demonstrating your, (R51), 79
Compound questions, 109
Compressing the theme, 85
Computers, 196-199
Contamination by engineering language, 171
Continuity, always aim to maintain your, (R 24), 46
Control of witnesses, 98
Corralled by the prosecutor's evidence, 17
Coupled questions, 118, 121
Credibility of witness, 34, 35
Criminal defense, 17
Criminal record, no referring to, (R17), 32
Cross-examination, 128-152
   Purposes of, 129
   Rules of, see "Rules"

D

Dedication to advocacy, 40
Demonstrate your competence as soon
as possible, (R 51), 79
Detail, avoiding, 50
Diagrams, 182-183
Dickens, Charles, 48
Dilution of testimony by leading questions, 34, 114
Dimensions of Advocacy, the, 6-22
   Human beings are more video than audio, 7
   Not a search for the truth, 6
   People don't like lawyers, 15
   Time is valuable, 19
Direct examination, 114-125
Dishonesty of witness, 130, 132
Documents,
   Appearance of, (R 90), 177
   Getting into evidence, 122-124
   Minimum length of, 191
Don't appear to be manipulative, (R 10), 18
Don't ask compound questions, (R 64), 109
Don't ask questions to which you don't know the answer, (R 77), 145
Don't ask the fatal final question, (R 82), 148
Don't cross-examine unless you have to, (R 75), 143
Don't demand: invite, 70
Don't get into an argument with the witness, (R 81), 148
Don't go fishing, (R76), 144
Don't let the witness repeat her direct testimony, (R 80), 147
Don't open the door, (R 79), 146
Don't repeat yourself, (R 12), 21, 81-82
Don't smile, laugh or joke without including the jury in, (R 3), 12
Don't sound like a lawyer, (R 11), 18
Don't tell them everything the witnesses said, 161
Don't seem to be in too friendly a relationship with your opponent, (R 2), 11
"Do you know why you were asked to come to court?", 120
Drama, 43
Dress, of advocate and witness, 10, Appendix 1, 205
Dropping the voice, 58
Duty and privilege, 42

E

Edison, Thomas, 196
Eliminate everything that can be safely eliminated, (R 27), 52
Emotion, (R 84-87), 161-166
Energy, 69, 165-166
Engineering language, 170
English cab-rank rule, 28
English courtroom, 58
Enough facts to get the verdict you want, 26
Entertain them, (R 21), 44
Entertainment--tools for, 45-58
Erskine, Thomas, 29
Ethical questions about clothing, 11
Every day discipline, 41
Every examination should consist of a series of objectives, (R 58), 101
Evidence,
   Getting documents into, 122-124
   No evidence from the advocate, (R 16), 31
   Rules of, 6
   "The evidence will show", 26
Exclusionary rules, 6
Eye contact, 15
Eyebrows, 10

F

Face and facial expression, 10
Fair, always appear to be, (R48), 77
Feelings, 163-166
Final argument,
   Generally, 160-166
   In civil defense case, 164
   In criminal case, 71-72
First Dimension of Advocacy, 6-7, 64, 146
First Person Plural--Rule of, (R 42), 73
Fishing, don't go, (R 76), 144
Flogging the trivial point, 131
Footnotes, wage war on, 186
Forehead, 10
Forms of questions, 109
Foundation Rule, 115-122
Fountain pen, 196
Fourth Dimension, 19-22
Freight train cars, 101-102

G

Get him to commit himself, 138
Go gently when you attack a witness's recollection, (R 61), 107
Good legal writing is easy to read, (R 89), 174
Grand Canyon, 169, 191
Grunt, nod, or shake of the head, 34

H

Headings, (R 95), 182
Hearing is believing, 8
Hemingway, Ernest, 48
High technology, 196-199
Hollywood, 38
"Home", 87
Honest Guide, (R 44), 75-79, 111, 194
Honesty, 7, 75
How? and What? questions in direct examination, 115, 117

I

If you don't do re-direct well, it's better you don't do it at all, (R 83), 155
"Ignored her to death--twice!", 84
Iliad, 185
Imitation, no need for, 41
In pari delicto, 18
In the hills and dales of Killarney, 19
Include the factfinder in, (R 42), 73
Inconsistency of testimony, 137
Individuality, 41
Insecurity, 21
Interpretation of perception, 105
Invite, don't demand, 70
Irresistible advocacy, 102

J

Johnson, Dr. Samuel, 16
Joking, 12
Jury box, getting close to, 59
Jury not a committee of inquiry, 6
Jury out of court during bench conferences, 78

K

Keep it simple, (R 25), 48
Keep the record favorable, (R 72), 139
Keep your dismay secret, (R 73), 141
Kindergarten performance, 68
Kindest interpretation, 67
Know your audibility, (R 30), 55

L

"Lack of conscience", 16
Laughter, 12
Lawyer, don't sound like a, (R 11), 18
Lawyers, people don't like, 15, 35
Lawyers' language, 18, 19, 172
Lawyers use far too much paper, (R 88), 169
Laying a foundation, 115-122
Leading questions,
   Generally, 33, 110, 114, 119
   Exceptions to the prohibition of, 114-115, 156
   In cross-examination, (R 70), 135
Leave them wanting more, 53
Liars being unmasked, 64
Likeable, be, (R 39), 66
Lincoln, Abraham, 191
Listening, practice intent, (R 52), 80
Listening willingly, 67
Lists, horizontal and vertical, (R 94), 179
Look at, give them something to, (R 6), 13
Lord Campbell, 29

M

Magic in advocacy, 44
"Magic words", ending re-direct, 157
Maintain continuity, (R 24), 46
Maintain eye contact, (R 8), 15
Make sure you come across as absolutely fair, (R 48), 77
Making decisions, 89
Making the judge suspicious, 30
Mandatory Rules,
   Enough for verdict, 26
   Facts only, 24
   Foundation Rule, 36, 117
   No evidence, 31
   No leading, 33
   No opinions, 27
   No references to record or offers, 32
   Speak only of what is in evidence, 35
Manipulative, don't appear to be, (R 10), 18
Margins have an effect on the reader, (R 93), 179
Mark Antony exception, 82
Mark Twain, 25, 36, 193
Massacre, 155
Materials of advocacy are fragile, (R 38), 65
Medea, 185
Memory, 105-106, 130
Mind going blank, 46-47
Minefield, the rule, (R 74), 142
Mirror, 9
Misquoting evidence, (R 47), 76
MOASTE, 123-124
Monaghan, Brian, 83
Movement, 58
Movement in writing, 184-187
Moving to strike, (R 72), 139-140
Murphy method, the, 121-122

N

Never ask Why? and How? in cross-examination, (R 78), 146
Never convey any visual signal you don't intend to convey, (R 5), 12
Never forget that the average witness speaks from memory, (R 59), 105
Never forget you are not dealing with facts but with the witness believes to be facts, (R 60), 106
Never jump back in alarm, (R 74), 142
Never refer to criminal convictions, (R 17), 32
Never refer to offers of settlement, (R 17), 32
Never turn to a witness for help, (R 62), 107
Newton's Rule, (R 41), 69-73
Nicest side, your, 66
No opinion from the advocate, (R 15), 27-30
Nose,
   Lines around, 10
Not obliged to listen to you, 43

O

Obligations, 26, 75
Objectives in the examination of witnesses, 101
Obstacles, 89
"Oh, that. We were told about that", 74
One line of transcript objective, (R 63), 108
Opening statements, 24-27
Opening the door, (R 79), 146
Opinions and preferences, 7, 64, 65
Opinions from the advocate, 27-31
Outstanding lawyering, 173
Overhead projector, 14, 194

P

Pace,
   Of speaking, 56
   Of writing, 184-187
Paine, Tom, 29
Pairing questions, 118-122
Paper, 168 et seq.
   Lawyers use too much, (R 88), 169
Papering opponent to death, 193
Paragraphing, 178
Pause, 47, 57
Peasants' Revolt, 15
People don't like lawyers, 15-16
Perimeter of Uncertainty, 130-131, 145
Pin down the witness, (R 71), 137-138
Pin-drop silence, 68
Plan your approach to the witness stand, (R 37), 60
Planning, 52, 85-86, 102
Plumed helmet, 172, 180
Police are the good guys, 71-72
Polyester, 10
Practice listening intently, (R 52), 80
Preferences and opinions, 64, 65
Preparation, 41, 42, 85-86, 101-103
Prepare them, (R 43), 74
Prepare them for the boring bits, (R 29), 54
Presentation designed to persuade, 7
Private advocacy, 21
Psychology of advocacy, 64-93
Pulling strings, 98

Q

Questions,
   Correct forms of, 109
   Fatal, final, 148-152
Paired, 118-122
   To which you don't know the answer, 145
   Use variety in the form of, (R 65), 109
Quill pen, 197

R

Railroad freight train, 101, 102
Raising your voice, 57
Reagan, Ronald, 66
Real, being, 67
Recollection, 105-107
Record, keep it favorable, (R 72), 139
Re-direct, 154-157
Remingtons, 196
Repetition, 21-22, 81-82
Resentment, 20, 35, 50
Ride the bumps, (R 73), 141
Right, where before there was wrong, 88
Robbins, Harold, 48
Rogers, Will, 16
Rule of Law, 203
Running in harness with jurors, 73
Rules
   Acknowledge the feelings that have understandably stirred up (Rule 87), 164
   Aim to create sympathy between you and your factfinder (Rule 40), 67
   Always aim to be the honest guide (Rule 44), 75
   Always aim to maintain your continuity (Rule 24), 46
   Appear at all times to be absolutely sincere (Rule 4), 12
   As an advocate, never give or appear to give evidence yourself (Rule 16), 31
   Avoid detail (Rule 26), 50
   Be aware of timing and use the power of the pause (Rule 32), 57
   Be brief (Rule 28), 52, 134
   Be likeable (Rule 39), 66
   Be sure, in opening statement, to state enough facts to justify the verdict you are asking for (Rule 14), 26
   Be very careful about raising your voice (Rule 33), 57
   Beware of demanding the yes or no answer (Rule 66), 110
   Beware of getting too close to the witness (Rule 36), 60
   Commit to being an excellent trial lawyer. Don't do anything by halves. If you can't dedicate yourself to this, move over and do something else (Rule 20), 40
   Consider incorporating diagrams into your writing (Rule 96), 182
   Demonstrate your competence to your judge as early as possible (Rule 51), 79
   Don't appear to be manipulative (Rule 10), 18
   Don't ask compound questions (Rule 64), 109
   Don't ask questions to which you don't know the answer (Rule 77), 145
   Don't ask the factfinder to believe the unbelievable(Rule 45), 76
   Don't ask the fatal final question (Rule 82), 148
   Don't be seen in too friendly a relationship with your opponent (Rule 2), 11
   Don't cross-examine at all unless you have to (Rule 75), 143
   Don't ever get into an argument with a witness (Rule 81), 148
   Don't get too close to the jury box (Rule 35), 59
   Don't go fishing (Rule 76), 144
   Don't let the witness repeat her direct testimony (Rule 80), 147
   Don't misquote the evidence or put a slick interpretation on any part of it (Rule 47), 76
   Don't open the door (Rule 79), 146
   Don't produce a paragraph deeper than four inches (Rule 92), 178
   Don't repeat yourself (Rule 12), 21
   Don't smile, laugh or joke without including the jury in (Rule 3), 12
   Don't sound like a lawyer (Rule 11), 18
   Emotion follows facts and not the other way around (Rule 85), 162
   Ensure that your factfinder always has something to look at (Rule 6), 13
   Entertain them (Rule 21), 44
   Every examination should consist of a series of objectives (Rule 58), 101
   Foundation Rule, the--Before you ask a witness to testify on any topic, you must lay a foundation showing how the witness has acquired knowledge of that topic (Rule 67), 117
   Go gently when you attack a witness's recollection (Rule 61), 107
   Good legal writing is easy to read and interesting, accomplishing its goal in as few words as possible (Rule 89), 174
   If you don't do re-direct well it's better you don't do it at all. Re-direct must be done confidently and effortlessly (Rule 83), 155
   In cross-examination, use leading questions (Rule 70), 135
   In direct examination, remember the rule of two and couple your questions whatever you can (Rule 68), 118
   In opening statement, avoid all argument and stick strictly to facts (Rule 13), 24
   In your closing argument, speak only of things which have been touched on in the evidence (Rule 19), 35
   Include the factfinder in. The rule of the first person plural (Rule 42), 73
   It's the factfinder's emotion that matters, not yours(Rule 84), 162
   Keep it simple (Rule 25), 48
   Keep the record as favorable as possible by moving to strike any inadmissible evidence (Rule 72), 139
   Keep your objections to a minimum (Rule 49), 77
   Know your audibility (Rule 30), 55
   Lawyers use far too much paper (Rule 88), 169
   Lists of more than three items should be vertical, not horizontal (Rule 94), 179
   Maintain eye contact with the factfinder (Rule 8), 15
   Make sure you come across as being absolutely fair (Rule 48), 77
   Margins have an effect on the reader (Rule 93), 179
    Never ask "why?" and never ask "how?" in cross-examination (Rule 78), 146
   Never convey any visual signal you don't intend to convey (Rule 5), 12
   Never forget the average witness speaks from memory (Rule 59), 105
   Never forget, you are dealing with facts but what the witness believes to be facts (Rule 60), 106
   Never put words into the mouth of your own witness (Rule 18), 33
   Never refer to the criminal record of an accused or to any offers of settlement (Rule 17), 32
   Never turn to a witness for help (Rule 62), 107
   Newton's Rule (Rule 41), 69
   Pay great respect to chronology in your writing (Rule 98), 187
   Pin down the witness: don't spring the trap too soon (Rule 71), 137
   Plan your approach to the witness stand (Rule 37), 60
   Practice listening intently (Rule 52), 80
   Prepare them (Rule 43), 74
   Prepare them for the boring bits (Rule 29), 54
   Ride the bumps: keep your dismay secret (Rule 73), 141
   Show them the way home (Rule 56), 87
   Stay abreast of technological advances (Rule 100), 199
   Stay out of the well (Rule 34), 59
   Stick rigorously to the truth (Rule 9), 17
   Stop dead in your tracks as soon as you realize your sentence has become complicated, then start over (Rule 53), 80
   Stop when you get what you want (Rule 69), 135
   Take great care getting your jury out of court for bench conferences (Rule 50), 78
   Tell them a story (Rule 22), 45
   The advocate must not express his or her opinion in court (Rule 15), 27
   The appearance of your document is vitally important (Rule 90), 177
   The materials of advocacy are fragile (Rule 38), 65
   The minefield rule: never jump back in alarm (Rule 74), 142
   The one line of transcript rule (Rule 63), 108
   The planning rule--parts 1, 2, and 3 (Rule 55), 85
   There must be an overall theme to your case and you should be able to tell the story in one compact sentence (Rule 54), 83
   There's no rule of court requiring a document to be of minimum length (Rule 99), 191
   Think beginning, middle and end (Rule 23), 46
   Think out in advance the answer you want to hear and design your questions with a view to getting that precise answer. Re-phrased, Think control--know what you want the witnesses to say, then make them say it (Rule 57), 97
   Too little emotion is fatal: too much emotion is fatal (Rule 86), 163
   Use all kinds of visual aids (Rule 7), 13
   Use headings (Rule 95), 182
   Use variety in the format of your questions (Rule 65), 109
   Vary your pace and vary your tone (Rule 31), 56
   When there is a weak point in your case don't pretend it isn't a weak point (Rule 46), 76
   White space is user-friendly (Rule 91), 178
   Work at eliminating everything that can be safely eliminated. (Rule 27), 52
   Write at the pace of a brisk walk (Rule 97), 185
   You must dress appropriately (Rule 1), 10

S

Salvage, 154
Samarkand, 168
Search for truth, 6, 7, 64
Sergeant Sullivan, 19
Shakespeare, William, 36
"Shall we assume . . .?", 73
Shareholders' meeting, 68
Shopping list, 86
Show them the way home, (R 56), 87-93
Side-bar conferences, 78
Simon, Sir John, 16
Simple, keep it, (R 25), 48
Simplification, 48-52
Sincerity, 11, 17, 66
Sit down and perfect your closing argument, (R 55 iii), 86
Sit down and write your opponent's closing argument (R 55 iii), 86
Square feet of transcript, 21
Statistics about messages, 8-9
Stay abreast of technological advances,
(R 100), 199
Stay out of the well, (R 34), 59
Stick rigorously to the truth, (R 9), 17
Stop before they've had enough, 53
Stop dead in your tracks as soon as you realize your sentence is too complicated, (R 53), 80
Stop when you get what you want, (R 69), 135
Sympathy Rule, (R 40), 67, 189
Story-telling, 45

T

Tabulations, 181
Take great care getting your jury out of court for bench conferences, (R 50), 78
Taking advantage,
   Of the Second Dimension, 13
   Of the Fourth Dimension, 21-22
Technology, 196-199
Television, 48,57
Tell them a story, (R 22), 45
Testimony,
   Devaluation and dilution of by leading questions, 34, 110, 114, 115, 120
   Don't let the witness repeat her direct, (R 80), 147
   Inconsistency of, 137
   Unreliability of, 129
Theater, advocacy as, 38-61
Theme of the case, (R 54), 83-85
Think choreography, 61
Think out in advance the answer you want to hear and design your questions with a view to getting that precise answer, (R 57), 97
Thinking and feeling, 66, 67
Third Dimension, 15-19
Tightly controlled presentation, 7
Time, 19-22, 102, 188
Timing, 57
Tone of voice, 57-58
Too little, too much emotion, (R 86), 163
Tools to keep the factfinder entertained, 45-58
Total sincerity, 17
Tourists, 88-89
Tradition, 172
Transcript, the one line of transcript objective, (R 63), 108
Trap, don't spring the trap too soon, (R 71), 137
Tredecator, 76
Trunk of the tree, 87
Truth, 6, 7, 64, 97
Twenty-two word sentence, 49
Twain, Mark, 25, 36, 193

U

Unbelievable, don't ask them to believe the unbelievable, (R 45), 76
Uncertainty, Perimeter of, 130-131, 145
Unmasking liars, 64
Unnecessary weight, 52
Unprepared witness 119
Unreliability of testimony, 129-130
U.S., goldmine of legal literature, 41
Use all kinds of visual aids, (R 7), 13, 182
Use headings, (R 95), 182

V

Vary your pace and vary your tone, (R 31), 56
Video Dimension, 7, 176-184, 198
Video recorder, 10
Video, 197-198
Visual signals, (R 5), 12
Voice, 55-58

W

Washington, George, 48
Way, show them the way home, (R 56), 87-93
Weak points, 76
Well, the, 59
"Were you lovers?", 162
When is advocacy called for?, 175
When there is a weak point in your case, don't pretend it isn't a weak point, (R 46), 76
White space is user-friendly, (R 91), 178
Why? and How? in cross-examination, 146
Witness stand, 60
Witnesses,
   Control of, 97-100
   Dishonesty of, 130, 132-133
   Examination of, 96 et seq.
   Unreliability of, 129-130