Module TLI4801
Author Palmer, R & McG.uoid-Mason, D.
Year of Publication 2000
Title Basic Trial Advo :-acy Skills
Publisher Butterworths
Chapter number Chapter 1
Chapter title
Page nL•mbers
The conduct of trial lawyers
3-29 J
This materic:l has been reproduced in thee-
Reserves on behalf of the UNIVERSITY 'JF SOUTH
AFRICA (UNISA)
The material may be subject to copyright under
the Copyrigrt Act no. 98 of 1978. Any further
reproduction or distribution of this ma~erial by you
may be a violation of the Copyright Act.
A single cooy (~rinted or electronic} of the
material may be kept for acade!'nic use only.
, CHAPTER 1
The qualities of good trial lawyers
Thi s chapte r discusses the qualities of good tria l lawyers . The term 'trial
lawyer' (or sometimes 'co unsel') is used in this boo!<. to refe r to both the
advocates' and attorneys' profess ions. General prin cipl es of good advo-
cacy in the broad se nse are discussed. Where appropr iate, refe rence will
be made to th e specifi c qualities required of the advocates ' or attorneys'
profess ions. Simila rl y, in this book the generic term 'judge· is used to refer
to judges of all cou rrs- in clud ing magistrates and regiona l magistrates.
Over th e years a number of qual ities have been suggested as desirab le
For a person LO be a good tr ial lawyer. Th ese qualities can be sum m ari sed
as fol lows:
1. Clarity and orde r of language;
2 Honesty and integrity;
.3 judgeme nt;
14 Objectivity;
1.5 Cou rage;
.6 A Jenness;
I .7 Tenacity;
.8 Sincerity;
.9 Humanity;
. I OHard work; and
. I 1Profess ionalism .
1. 1 Clarity and order of language
Commun ication is the life-b lood of the tri al lawyer 's profess ion . Tria l
lawye rs should be able to put their questions clea rl y and logically to
w itn esses, and when addressing the cou n, should ensure that th ey ex-
press th emse lves with cla rity and in a logica l sequence. Obscure o r am-
biguous questions and arguments presented disjo intedly may irri ta te the
co un, and issues n ot clea rl y presented may ser iously prej udice a cl ient 's
case. A good rul e to remembe r is always to keep questions and sente nces
shon, and to speak slow ly.
3
, 4 Basic Trial Advocacy Skills
1.2 Honesty and integrity
Honesty and integrity are obvious attributes required of trial lawyers in
their role as officers of the court and as a result of duties owed to their
clients. This applies to all lawyers, not only good trial lawyers. A lawyer
who does not act honestly and with integrity at all times not only gets a
bad name, but also runs the risk of being struck from the roll of legal
practitioners if he or she is caught. The lawyer's duty to the court, as well
as the need to disclose all relevant decisions and not to mislead the court,
wi ll be discussed below (see paragraph 2 .1.4).
1.3 judgment
A good trial lawyer must have the wisdom to make appropriate tactical
decisions when conducting a case. Although this should be done in consul-
tation with the client, it is often said that the advocate is a representative
and not a delegate of the client. This means that, subject to what is said
below (see paragraph 2.2.6), the judgment of the trial lawyer rather than
the client should be followed when conducting the case. It is submitted,
however, that in the light of the modern move towards cl ient autonomy in
most professions, lawyers should keep clients well briefed concerning
their strategies. Furthermore, wherever possible, lawyers shou ld give their
clients sufficient information in appropriate language so that they can be
part of the decision-making process. In many instances, however, there is
very little time to make judgments during the cut-and-thrust of the trial,
and a good trial lawyer must have the ability to think creatively on his
feet.
1.4 Objectivity
A good trial lawyer has the ability to cons ider the case dispassionately and
objectively. It has been said that this is easier where there is a divided bar
as advocates, as opposed to attorneys, have no personal ties with their
cl ients . In such instances the advocate is able to give both the cli ent and
the court an objective opinion uncoloured by any emotional attachments
(Du Cann 30). However, even where there is no divided bar, a lawyer
should learn to stand back from his or her client's case in order to analyse
its progress as objectively as possib le. The rules of the advocates' profes-
sion specifically require that an advocate should not become personally,
as opposed to professionally, associated with his or her client's interest,
for example by standing bail for a client (General Council of the Bar of
South Africa Uniform Rules of Professional Ethics rule 3.5.1 ).
1.5 Courage
It has been said that, 'the law is a form of civilized warfare' and the trial
lawyer is 'the modern representative of the medieval champion' (Ou Cann
53). Lawyers must have the courage to stand up for their clie nt 's best
Author Palmer, R & McG.uoid-Mason, D.
Year of Publication 2000
Title Basic Trial Advo :-acy Skills
Publisher Butterworths
Chapter number Chapter 1
Chapter title
Page nL•mbers
The conduct of trial lawyers
3-29 J
This materic:l has been reproduced in thee-
Reserves on behalf of the UNIVERSITY 'JF SOUTH
AFRICA (UNISA)
The material may be subject to copyright under
the Copyrigrt Act no. 98 of 1978. Any further
reproduction or distribution of this ma~erial by you
may be a violation of the Copyright Act.
A single cooy (~rinted or electronic} of the
material may be kept for acade!'nic use only.
, CHAPTER 1
The qualities of good trial lawyers
Thi s chapte r discusses the qualities of good tria l lawyers . The term 'trial
lawyer' (or sometimes 'co unsel') is used in this boo!<. to refe r to both the
advocates' and attorneys' profess ions. General prin cipl es of good advo-
cacy in the broad se nse are discussed. Where appropr iate, refe rence will
be made to th e specifi c qualities required of the advocates ' or attorneys'
profess ions. Simila rl y, in this book the generic term 'judge· is used to refer
to judges of all cou rrs- in clud ing magistrates and regiona l magistrates.
Over th e years a number of qual ities have been suggested as desirab le
For a person LO be a good tr ial lawyer. Th ese qualities can be sum m ari sed
as fol lows:
1. Clarity and orde r of language;
2 Honesty and integrity;
.3 judgeme nt;
14 Objectivity;
1.5 Cou rage;
.6 A Jenness;
I .7 Tenacity;
.8 Sincerity;
.9 Humanity;
. I OHard work; and
. I 1Profess ionalism .
1. 1 Clarity and order of language
Commun ication is the life-b lood of the tri al lawyer 's profess ion . Tria l
lawye rs should be able to put their questions clea rl y and logically to
w itn esses, and when addressing the cou n, should ensure that th ey ex-
press th emse lves with cla rity and in a logica l sequence. Obscure o r am-
biguous questions and arguments presented disjo intedly may irri ta te the
co un, and issues n ot clea rl y presented may ser iously prej udice a cl ient 's
case. A good rul e to remembe r is always to keep questions and sente nces
shon, and to speak slow ly.
3
, 4 Basic Trial Advocacy Skills
1.2 Honesty and integrity
Honesty and integrity are obvious attributes required of trial lawyers in
their role as officers of the court and as a result of duties owed to their
clients. This applies to all lawyers, not only good trial lawyers. A lawyer
who does not act honestly and with integrity at all times not only gets a
bad name, but also runs the risk of being struck from the roll of legal
practitioners if he or she is caught. The lawyer's duty to the court, as well
as the need to disclose all relevant decisions and not to mislead the court,
wi ll be discussed below (see paragraph 2 .1.4).
1.3 judgment
A good trial lawyer must have the wisdom to make appropriate tactical
decisions when conducting a case. Although this should be done in consul-
tation with the client, it is often said that the advocate is a representative
and not a delegate of the client. This means that, subject to what is said
below (see paragraph 2.2.6), the judgment of the trial lawyer rather than
the client should be followed when conducting the case. It is submitted,
however, that in the light of the modern move towards cl ient autonomy in
most professions, lawyers should keep clients well briefed concerning
their strategies. Furthermore, wherever possible, lawyers shou ld give their
clients sufficient information in appropriate language so that they can be
part of the decision-making process. In many instances, however, there is
very little time to make judgments during the cut-and-thrust of the trial,
and a good trial lawyer must have the ability to think creatively on his
feet.
1.4 Objectivity
A good trial lawyer has the ability to cons ider the case dispassionately and
objectively. It has been said that this is easier where there is a divided bar
as advocates, as opposed to attorneys, have no personal ties with their
cl ients . In such instances the advocate is able to give both the cli ent and
the court an objective opinion uncoloured by any emotional attachments
(Du Cann 30). However, even where there is no divided bar, a lawyer
should learn to stand back from his or her client's case in order to analyse
its progress as objectively as possib le. The rules of the advocates' profes-
sion specifically require that an advocate should not become personally,
as opposed to professionally, associated with his or her client's interest,
for example by standing bail for a client (General Council of the Bar of
South Africa Uniform Rules of Professional Ethics rule 3.5.1 ).
1.5 Courage
It has been said that, 'the law is a form of civilized warfare' and the trial
lawyer is 'the modern representative of the medieval champion' (Ou Cann
53). Lawyers must have the courage to stand up for their clie nt 's best
