1 Trial Advocacy Lecture Notes Linda Alinda-Ikanza 2022

TRIAL
LAW DEVELOPMENT CENTER

DEPARTMENT OF POST GRADUATE LEGAL
ADVOCACY STUDIES & LEGAL AID TRAINING
By Linda Alinda-Ikanza,
LECTURE NOTES Head of Trial Advocacy & Moots
BAR COURSE ACADEMIC YEAR 2021/2022
FOREWARD
Dear Students,
Trial Advocacy being a performance skill, the best way to learn is to practice the various skills set.
Therefore, these notes are not intended to replace your practical training. Neither can they be as
exhaustive or authoritative as the various trial advocacy textbooks and reading resources availed
to you. They are merely meant to introduce you to the basic advocacy skills which shall be
covered in our classes and to in some cases cover the unique aspects of practice applicable to
our Uganda jurisdiction.
The principles of advocacy and persuasion are universal and common across diverse jurisdictions.
You are therefore encouraged, if not required, to study all other materials availed in order to
master the principles the of advocacy as the skill’s foundation is knowledge of substantive and
procedural law.
May you grow as you go through the Bar Course.
Linda Alinda-Ikanza,
October 2021.
Table of Contents
Case Analysis ........................................................................................................................ 1
Examination in Chief ............................................................................................................. 7
Documentary Exhibits ............................................................................................... 21
Cross Examination and Impeachment ................................................................................. 28
Trial Objections .................................................................................................................. 35
Opening Statements ........................................................................................................... 38
Final Submissions ............................................................................................................... 45

TRIAL ADVOCACY SKILLS TRAINING AY 2021/2022
TERM 1 WEEK 3
CASE ANALYSIS AND TRIAL STRATEGY
Introduction
Advocates must be story tellers. Because trials are contests where the best story teller wins1.
However, advocates do not tell their stories in vacuums. Unlike other story tellers, the context of
an Advocate’s story is determined by the legal regime that governs the remedy sought in a case.
This can be defined as the detailed examination of the facts and evidence making up the case to
categorise the strengths, weaknesses and develop a corresponding theory and theme for the case.
The story is then designed or arranged to fulfil the elements of a particular cause of action. Every
remedy sought from Court will be based on a certain set of legal principles that give a party the
right or entitlement to the remedy thought. This is also known as a cause of action in Civil
Claims or an Offence in Criminal proceedings. Theories are developed based on the legal
principles which cover a particular set of facts. And once the Theory is developed, it needs a
theme/hook to sell it. First we shall define both Theory and Theme and then we shall discuss a
trial strategies and how they aid in fulfilling the theory and theme of a case.
A lawyer’s initial preparation involves considering and deciding which cause of action their
claim will be founded on. If they are in a criminal trial, they will have to determine the offences
disclosed by the facts. These causes of action will have elements founded by common law
principles, case law or statutes which must be fulfilled or rebutted in order for a particular
element to be obtained. For example, when once gets injured during an accident, their cause of
action could lie in Negligence in a civil claim or reckless driving as a criminal offence. Similarly
the parties on the opposite side would have defences that must also hold up in law.
Once a particular legal principle is identified, then a theory can be developed for both a case or a
defence.
Theory:
There are several ways to define a Theory;
1. Your theory of the case is your version of what really happened and why you should win.
It must be logical, fit the legal requirements of the claims or defenses, but is always
expressed in non-legal terms. When your client is hit from behind in a bar fight and ends
up stabbing two people, self defense is the legal defense. The theory has to express the
dilemma your client faced in compelling, non-legal language. The theory could be that
the accused used a pocket knife to save his life from the kicks and blows of the five
people in a fight at a bar. This theory explains the critical elements to your case — why
your client was afraid, and why a knife in his pocket does not make him a thug. By
Jeffery Robinson in an article titled Opening Statements Become Opening Stories
(with modifications).
2. Your theory is the adaptation of your story to the legal issues in the case. A theory of the
case should be expressed in a single paragraph that combines an account of the facts and
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Quote by Jeff Tilden, American Trial Lawyer at Kampala, August 2018
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law in such a way as to lead the trier of fact to conclude that your client must win.
Modern Trial Advocacy by Steven Lubert 4th Edition.
3. “That combination of facts (beyond dispute) and law which, in a common sense and
emotional way, leads the jury /judge to conclude that a fellow is wrongfully accused (or
should not be severely punished).” - Tony Natale [Supervisory Asst. Federal Public
Defender, Federal Public Defender Organization for the Southern District of
Florida, Miami, FL].
4. “One central theory that organizes all facts, reasons, arguments and furnishes the basic
position from which one determines every action in the trial.” Mario Conte
5. “A paragraph of one to three sentences which summarizes the facts, emotions and legal
basis for the citizen accused’s acquittal or conviction on a lesser charge while telling the
defense’s story of innocence or reduced culpability.” Vince Aprile
6. How the facts fit into the Law. Or why your client should win but explained by the facts.
For example, not “He was negligent” but instead “He didn’t look.” Steve Fury.
WHY HAVE A CASE THEORY?

“EVERYTHNG WE DO AT TRIAL WILL BE CONTROLED BY YOUR CASE THEORY”.
Your case theory controls;

• Your discovery & trial preparation
• Choice of Court / Forum to see remedy
• What’s said in your opening statement
• The evidence you lead.
• What is asked on examination in chief and cross examination
• What’s said in your submissions
To develop and express your theory, ask these three questions:
• What happened?
• Why did it happen?
• Why does that mean that my client should win?
If your answer is longer than one paragraph, your theory may be logical and true, but it is
probably too complicated. A successful theory contains these elements:
• It is logical. It is based on a foundation of undisputed or otherwise provable facts, all
of which lead in a single direction.
• It speaks to the legal elements of your case. All of your trial persuasion must aimed at
a "legal" conclusion. Your theory therefore must be directed to prove every legal
element that is necessary to both justify a verdict on your behalf and preserve it on
appeal.
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• It is simple. A good theory makes maximum use of undisputed facts. It relies as little as
possible on evidence that may be hotly controverted, implausible, inadmissible, or
otherwise difficult to prove.
• It is easy to believe. Even "true" theories may be difficult to believe because they
contradict everyday experience or because they require harsh judgments. An airtight
theory is able to encompass the entirety of the other side's case and still result in your
victory by sheer logical force.
A theory of the case consists of the following parts:

1. The relevant law - The law that applies to the issues which arise in your case.
2. The facts of the crime that are beyond dispute - Those facts which (no matter what you do or
say) will be believed by the fact finder as true. These include those facts which you will be
able to present (through affidavit, direct examination or cross-examination) which the fact
finder would likely accept as true.
3. Common sense - Ordinary people must believe based on their life experiences that the
defense theory of the case is what happened.
4. A Theme - A word, phrase, or simple sentence that captures the controlling or dominant
emotion and/or reality of the theory of the case. These often motivate more decisions by
people than logic. Therefore, a theory of the case should generate feelings in the fact finder
as to what, how, and why the case occurred.
A detailed look at Theme

Some definitions;
1. Best presented in a single sentence, a theme justifies the morality of your theory and
appeals to the justice of the case. It has no independent legal weight, but rather it gives
persuasive force to your legal arguments. Just as your theory must appeal to logic, your
theme must appeal to moral force. Modern Trial Advocacy by Steven Lubert 4th Edition
2. Theme may also be defined as that part of the “story” presented in court which the lawyer
selects and presents because of its particularly persuasive effect in relation to the ultimate
conclusion which the lawyer wants the tribunal of fact to draw. Opinion Writing and
Case Preparation Manual College of Law.
3. Theory consolidates why you should win. Theme is what sells it. Shawna Geiger
4. In 10 words or less conveying how and the moral basis why a Court should decide in
your client’s favour. Or present it as a News Paper Headline.
5. A one sentence distillation of your case theory.
The most compelling themes appeal to shared values, civic virtues, or common motivations. And
each of these have their opposites that can also be contrasted against them.
• Examples of shared values – Truth, Justice, Peace, Mercy, Public Good/Policy, Unity,
Love, Fairness, Defending the Defenseless, Defence of Property etc
• Examples of common motivations – Family, Friendship, Patriotism, Success,
Achievement, Loyalty, Faithfulness and fidelity, etc
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• In a case for breach of contract, where the cause of action is specific performance, your
theory will explain why a verdict is compelled by the law. Your theme can be "They
honour money but not their promise." Or you might try, "You can’t sell some property,
and keep it too."
• In a criminal case, where the accused is an unwilling participant, an example can be

unwilling participant - forced to rob or where the accused is an unwilling accomplice -
victim of fear.
• Once you have developed a theory and theme for your case, then you need a Trial
Strategy. (Frame or Plan).
Trial Strategy
From developing the case theory, to making an opening statement, to the objections made, to the
questions put to witnesses during the examination in chief, cross-examination and re-
examination, to the impassioned final submissions attacking the credibility of an adverse witness,
everything an advocate does and says in the courtroom should be planned in advance, hence the
need for a trial strategy.
Once a theory and a theme been developed, then you must come up with a Trial Strategy or Plan
for your case. Both in terms of the evidence you will lead and challenge and the type of legal
process you will utilize to get the best or most favourable remedy quickly and affordably.
Below are the various parts of the case that make up your Trial Strategy which you must
plan;
1. Planning Your Legal Argument / Submission
Ask yourself these two questions: 'What do I want to say at the end of the case? What evidence
must I introduce or elicit in order to be able to say it? The answers will give you the broad
outline of your entire case.
2. Planning the Presentation of Your Case.

The major task of trial preparation is working with the facts; organising the evidence you have,
identifying and locating additional evidence you need, and planning effective ways of presenting
it. Developing the evidence is an integral part of refining your case theory.
a) Consider Your Potential Witnesses and Exhibits

➢ Evaluate Each Witness Individually
• Factual Weaknesses
• Evidentiary Problems
• Credibility Problems
➢ Evaluate Each Exhibit Individually
• Evidential Problems or Is it admissible.
• Which witness will tender it.
b) Decide Which Witness to Call and their order.
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Irrespective of the number of witnesses available, one should make a positive choice of whether
to call each individual, and not put every potential witness on the stand as a matter of course.
Determination of the order of calling witnesses will be influenced by practical factors beyond
one’s control, such as the times when particular witnesses are available or the rules of
evidentiary foundations that require calling some witnesses before others. However, within these
practical restrictions, the effective ordering of witnesses will help an advocate to present a
logical, understandable case that highlights its strengths and hides its weaknesses as much as
possible.
Consider the following suggestions;

➢ plan to start with a strong, important witness who can describe the event;
➢ start with witnesses who can set the scene, authenticate pictures of it, and describe the
motives of the main actors;
➢ in general, call witnesses in chronological order, e.g., the plaintiff and eyewitnesses first
to describe the accident, then witnesses to prove damages;
➢ call corroborating witnesses after a primary witness has testified; call weak or minor
witnesses in the middle of your case;
➢ if several witnesses are needed to lay a foundation, such as a chain of custody, call them
seriatim;
➢ call lay witnesses first and expert witnesses near the end, since they are generally
drawing conclusions that will not make sense until the Court understands all the facts;
➢ finish with a strong witness. This takes advantage of the principle of recency.
3. Planning Your Cross-Examinations
Anticipate in advance evidence that should be objected to, and places where your opponent may
object to your evidence. You need to decide whether the judge / magistrate will sustain any of
these objections and exclude the information.
4. Suit disposal strategy

After an advocate has planned their case theory and trial strategy, they must come up with a
strategy informed by the above two aspects, on how they shall dispose off the case. These
strategies may defer depending on the nature of the case and below we consider both civil and
criminal prosecution and defence strategies.
Example of Civil Case Disposal Plan

Plaintiff (litigation or ADR) Defence
Obtaining maximum compensation / Adduce evidence challenging entire claims,
recovery Counter claim for own losses
Use both above to reduce liability.
Settling at earliest Settling at earliest
Separate claims / joinder of parties and Technical issues with claims, joinder of
claims. parties and claims
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Example of Criminal Case Disposal Plan
Prosecution Defence
• Choice of charges to prefer / persons to • A "complete denial" strategy (discredit
charge. prosecution evidence type)
• Multiple charges / alternative charges. • A "confession" strategy (plead guilty and
• Consider separate trials / joinder of mitigate sentence)
charges / offences / offenders. • An "admit and explain" strategy. Defence
• Jurisdictional considerations. that exculpates or reduces culpability. Even
if the accused is guilty, depicting a story in
Credibility and reliability of witnesses. a better light could lead to a plea bargain or
even being found guilty on a lesser
charge.)
Further Reading;
Chapters on Case Analysis in all Advocacy Text Books availed.
ALINDA-IKANZA,2021
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Jointly Prepared by Linda Alinda-Ikanza & Paul Mukiibi
EXAMINATION IN CHIEF AND WITNESS STATEMENTS
1.0 MODULE 02: EXAMINATION IN CHIEF AND WITNESS STATEMENTS

1.1 Objectives of this Module:
• To understand the meaning of examination in chief;
• Understand the purpose of examination in chief;
• Understand the meaning of Witness Statements;
• To know the relevance of Witness Statements in a trial process; and
• Understand how to use Witness Statements in a trial process.
1.2 Learning Outcomes:

• To explain the meaning of examination in chief;
• To explain the purpose of examination in chief;
• To illustrate the art of conducting a proper examination-in-chief;
• To explain the relevance of Witness statements in a trial process; and
• To demonstrate the use of Witness Statements in a trial process.
1.3 INTRODUCTION:
The ability to examine and oppose the examination of witnesses in open court in
an adversary setting is the most basic skill of the trial lawyer. Yet the most common
criticism made of trial lawyers is their inability to conduct proper, intelligent,
purposeful examinations and to oppose those examinations.
A good lawyer leads his or her witness to turn evidence into fact and fact into truth.
It’s the duty of Counsel representing the prosecution to ensure that he or she
discharges the burden of proving the case beyond a reasonable doubt (criminal
proceedings). Prosecutors must therefore call witnesses in every trial to prove their
Module 03: Examination in Chief and Witness Statements
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case to the expected standard. This is the same position even in civil proceedings
where the burden of proof is either on the balance of probability or slightly above
the balance of probability but not beyond reasonable doubt. Examination in Chief
is the keystone in the prosecution's arch. It is also important to the defender who
will call witnesses in support of the defensive theory. Direct examination is a vastly
overlooked skill. Unlike cross-examination, there is very little written material to guide
practitioners through the examination of their own witnesses. This is surprising because
cases are actually won or lost on the fruits of direct examination.
Examination in Chief is one of the most subtle and sophisticated form of advocacy.
It is subtle because a good chief examination focuses entirely on the witnesses
and their evidence. The evidence should appear to be flowing effortlessly from the
witness. It should look easy. Whereas the witness should be memorable, the
lawyer should not. Chief examination is sophisticated advocacy because during its
course, counsel is actually presenting their case, while trying to satisfy a multitude
of objectives, such as maximizing the potential of each witness to present all
relevant evidence in as logical, credible, persuasive and accurate manner as
possible, while knitting all witnesses' evidence together in a coherent fashion in
order to prove all the elements of the offence beyond a reasonable doubt.
Examination in Chief thus becomes a starting point for any litigation. In the
adversarial system of our country, it becomes a tool of extracting truth from the
facts.
1.4 Definition of Examination in Chief:

The examination of a witness by a party who calls him shall be called examination
in chief (see Sec. 136 (1) of the Evidence Act). Examination in chief is the first
examination after the witness has been sworn in or affirmed. It is a province of a
party by whom the witness is called to examine him in chief for the purpose of
eliciting from the witness all the material facts within his knowledge which tend to
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prove the party’s case. Examination in Chief is also known as Direct Examination.
This is where you obtain evidence from your own witnesses. You need to ensure
that your witnesses give clear evidence and that they do not talk too fast in order
that notes can be taken. Ensure the witness faces the Judge or Judicial officer
when answering questions and is not looking at you. This will enhance the quality
of their evidence. When asking your witnesses questions, you need to try to elicit
from them only the evidence that is relevant. Always therefore bear in mind why
you are asking your witness a particular question and what you want to hear from
them.
1.5 Objectives of Examination in Chief:
Examination in chief of a witness is intended to achieve a number of objectives;
1.5.1 Major Objectives

a) To determine admissibility of evidence;
b) To prepare a witness to lead evidence in a trial;
c) Present persuasive and credible evidence; and
d) To prove each and every element of the cause of action, offence and or
defence to the expected standard.
1.5.2 Minor Objectives

In addition, you are also trying to achieve the following slightly less essential, but
still important, objectives:
a) Present a logical, complete and coherent theory of your case;
b) Present each witness in the best possible light;
c) Use the evidence of one witness to support another so that a seamless cloth
may be woven of the proven fact;
d) Fill in gaps in the evidence and attempt to explain any inconsistencies;
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e) Shut down potential cross-examination thereby limiting the exposure of your

witnesses; and
f) Allow the defence as little room to move as possible by minimizing the
possibilities of a defence supported through cross-examination of witnesses.
1.6 The Directed Approach to Examinations-in-Chief
1.6.1 Effective questioning techniques

– Use of open ended questions.
- The Difference between closed questions and leading questions
1.6.2 Moving from “open questions” to “directed examination”

– planning the direct examination
– breaking down the topics/issues
– effective problem analysis
1.6.3 Understanding the Importance of Preparation
Most witnesses have no prior experience in testifying. As counsel, it’s your job to
ensure that both you and your witnesses are thoroughly prepared. This includes
fully understanding what evidence needs to be elicited from each witness, and
preparing your witnesses so that they can effectively convey this information. In
this session, you will learn:
• What does an unplanned examination-in-chief look like?
• How to elicit the information you need from your witness
1.6.4 Headlines and transitions
• Why are headlines so important;

• Effective use of headlines to create the outline of a good examination;
• Listening, and looping back;
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• How to be more persuasive;

• Techniques to effectively follow up, clarify and qualify facts; and
• How to keep control of the witness
This session will also include a discussion about practical tips and strategies on
how to make your witness more persuasive.
You’ll engage in hands-on exercises and drills focused on how you should deal
with a witness when they do not provide you with the answer you were hoping for,
and learn strategies for how to manage the following issues:
• The witness who talks too quickly or too softly;
• The rambling witness;
• Dealing with partial or insufficient answers;
• Using notes to help direct questioning;
• Making eye contact, and with whom;
• The importance of pace and strategies for setting the right one;
1.7 Leading Questions
During examination-in-chief the advocate is forbidden from asking their witnesses

leading questions especially on disputed aspects. A leading question is one which
in its phrasing suggests its own answer1. By way of an example, the man wearing
a red and white jumper, wasn’t he? By suggesting the answer to the witness you
reduce the witness' impact. Leading questions are forbidden in examination-in-
chief because the lawyer is not allowed to lead their witness and in effect put words
1
Section 140 of the Evidence Act Cap 6
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into their mouth. When you call your own witness you hope and expect that they
will provide evidence that is favourable to your case and will 'come up to proof'.
As a general rule when you ask your witness questions you should phrase your
questions using simple words and phrases to ensure the witness fully understands
what you are asking them. When questioning your witnesses consider using points
of reference to add variety to your questioning and to move the witness along from
one episode to the next.
For example, 'What happened to the van after it overtook the truck?'
Generally, a leading question suggests the answer, or assumes the existence of a
disputed fact. You are allowed to ask leading questions about non-disputed
matters. An example of the above question as a leading question would be “Did
the Van swerve after overtaking the truck?” or “The Van swerved after overtaking
the truck, didn’t it?”.
1.11 Open and Closed Questions
You can ask your witnesses a variety of open and closed questions. To obtain the
information you require from a witness it will be necessary to use closed questions,
for example, to establish undisputed aspects of the case such as the background
and set the scene and to bring out details or emphasize a particular part of the
story. This more so because some closed questions can be leading in certain
aspects. Open questions are the best in allowing the witness to freely tell their part
of the story or to turn their attention to a subject and then ask the witness to talk
about that subject.
Your questions should be short and concise so when the judge hears the question
and hears an equally short and concise answer, his or her next thought is one of
the “W’s.” Your examination should follow that train of thought.
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For example, if you ask about a meeting, the listener would usually then start to
ask in his or her mind the following questions:
a) When was the meeting held? (Time)
b) Where was the meeting held? (Place)
c) Why was the meeting called? (Reason)
d) Who was present at the meeting? (People)
e) What was discussed at the meeting? (Occurrences/Activities)
f) How was the meeting conducted? (Procedures or processes)
Ask yourself how an event or incident unfolds by putting yourself in the witness’
shoes. Your own mind would likely then follow this 5W and 1H track. So the
questions in court or in an arbitration should follow the same process of
determining the answer and then framing the question.
Do not leave the witness to do all the talking. Oftentimes when reviewing a
transcript in the Court of Appeal, you will see a short question, followed by a half-
page answer. If you read a transcript like that then, in my respectful opinion, the
direct examination has not been properly carried out. One should never lose
control of a witness, and dictating the pace of the evidence is crucial depending on
the ability of the judge or Judicial officer either to electronically or manually make
notes.
There is no reward for speed. Remembering that judges are mere mortals should
be your guiding perspective. Always keep an eye on the judge or Judicial officer
before going to the next question. When the judge or Judicial officer is required to
look at an exhibit or look at one document in a volume of exhibits, make sure that
the judge is at that exhibit before you begin the question related to it.
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1.12 A guide to the actual Examination-in-Chief

Trying out witness examination for the first time can be intimidating. You're there
to either make or break the witness, with only your skills, case theory, and wit. As
Walter Sofronoff QC wrote, it is "a species of unarmed combat"; it's raw advocacy
at its most exhilarating. You can spend years learning witness examination
properly, but it's always good to start with some of the fundamentals. Here are
some top guides to set you on your way.
1.12.1 Start with the Basics

These include skills like speaking clearly and slowly, having good posture and eye
contact, and trying to stamp out your 'gremlins' - things you subconsciously say or
do while speaking, like saying 'um', or clicking a pen. Using plain English is
important, as you're communicating with everyday people. Say " “car” and not
“automobile” for example, to save everyone from becoming confused or distracted
by your vocabulary.
1.12.2 Be nice to the witnesses

Professor Peter Lyons wrote, "the first aim is to strengthen your client's case by
highlighting the good points through the opponent's witness and by putting facts
that the witness will agree with..." – and they won't agree with you if you're being
nasty!
1.12.3 Align the Evidence with the Case Theory

Put simply, its what you have to prove in order to obtain a certain remedy. The
should be the facts arranged to fulfil the requirements of the law. They should be
made of your strongest points that directly address the key elements of the relevant
law. Use this to guide your questioning. You have to ask your witness questions in
a way that enables them to tell their story to the court.
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A good examination plays out like a story. When examining your witness, you want
people to be totally focused on your witness. Try and ask short, simple questions
that allow your witness to tell a story - who, what, when, where, and why. Ask about
events in chronological order.
1.12.4 Control the witness's story telling

While the focus isn't on you, you need to remain in control, so the witness is
directed to cover only the evidence required to speak to the core legal principles
at the heart of a dispute. You can interrupt the witness where it's appropriate to do
so.
1.13 Checklist for an Effective Examination-in-chief or Preparing your

Examination-in-Chief
1) Know the theory of your case
a) What are the major issues in the case? (start with your pleadings)
b) What is the theory of your case?
c) What evidence do you require to support the theory of your case?
d) Can some of the evidence be obtained through a Request to Admit?
e) What evidence do you need to rebut your opponent’s theory?
f) What do you want to say in your closing submissions?
g) How will the evidence of each of your witnesses add to your closing
submissions?
2) Consider the purpose for which you are calling the witness
a) Can this witness testify to facts that assist you in advancing your case?
b) Are there exhibits that must be introduced through this witness?
c) Is there another witness you are already calling that can testify to the same
facts/identify the same exhibits?
d) Can this witness bolster or detract from the credibility of others that will
testify?
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3) Prepare your witness

a) Before trial, meet with your witness. Review any prior testimony and any
documents you intend to introduce through the witness.
b) Discuss with your witness how the process in court will unfold. Describe to
the witness who she can expect to see in court – i.e. Judge, Court Clerk,
opposing counsel, Court orderly, others.
c) Do not ask the witness to memorize evidence.
d) Do not coach the witness or offer answers to the witness during preparation.
4) Create an outline for your examination

a) What do you need your witness to say?
b) What questions do you need to ask to elicit the necessary information?
c) Consider the order and organisation in which you intend to ask the question
(chronologically; thematically). A good examination should be organized in
chapters guided by the various issues or elements to prove.
d) Consider questions that may be posed in cross-examination which you can
diffuse during examination-in-chief.
1.14 Conducting your Examination-in-Chief

1. Form of your Examination – telling a persuasive story
a) Cover the preliminaries first, non-contentious areas. For example, the
background information on the witness’ profession, job, position etc.
b) Do not ask leading questions on contentious and/or significant issues. It is
always better for the trier of fact to hear the story from the witness and not
counsel.
c) Organize your questions topically, giving the witness and the trier of fact the
opportunity to follow the flow of your examination.
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d) Decide whether it is more persuasive to ask questions in a chronological

order or by theme/issue. The questions posed to the witness must be
presented in some form of order. Do not lurch from topic to topic. This will
confuse the witness and annoy the trier of fact. It will also detract from the
persuasiveness of the witness’ story.
e) Use short, simple language when formulating your questions. Do not use
overly technical language or “legalese”.
f) Often, simple “who, what, where, when, why” questions will allow the witness
to give her evidence in a clear and simply manner.
g) Listen to your witness. Often a witness may give an answer that requires
follow-up. If you are not listening, you will miss that opportunity.
h) Use looping techniques to repeat the key theme or answer in a series of
questions on an important issue. For example, in a case involving a car
accident, where the witness has just answered a series of questions
involving her observations of the accident: “After you saw the Honda rear-
end the Toyota, who did you contact?” This repeats helpful evidence and
provides the witness with guidance as to where you are moving next.
i) Prepare to start and finish strong. Deal with less important and/or more
difficult evidence in the middle of your examination.
j) Humanize your witness by asking questions that will elicit empathy. This
helps to build the witness’ credibility and relate-ability.
k) Where appropriate make use of pictures, diagrams or other demonstrative
aids. This will assist the witness in giving her evidence and will give the trier
of fact a concrete visual, to compliment the witness’ words.
2) Hazards to Avoid during Examination-in-chief

a) Do not ask your witness irrelevant questions. If the answer it elicits is not
important to your overall theme or to rebutting your opponent’s case, do not
ask the question.
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b) While it is important to neutralize bad facts when possible, do not waste your
entire examination-in-chief doing so.
c) Discuss evidentiary issues with your opponent beforehand, so to minimize
objections during your examination-in-chief.
d) Do not ask compound or overly complicated questions such as questions
which contain many facts or technical language. This will only confuse your
witness and the judicial officer.
2.0 WITNESS STATEMENTS
Civil proceedings differ from criminal proceedings in the form of witness evidence
and the process of its preparation. Evidence in criminal proceedings starts with
recording statements at police, gathering necessary exhibits and later on orally
lead this evidence in court. On the other hand, for civil litigation, the law has been
amended to provide for witness statements. These statements contain the witness’
testimony and have to be confirmed at the hearing by a witness and later adopted
as evidence in chief.
The Civil Procedure (Amendment) Rules of 2019 S.I. No. 33 of 2019
Under Rule 5 on the Amendment of Order 43, the above principles have been
codified and made specific provisions for the drafting, filing, service and tendering
of witness statements in court. They also provide for the content that should be
covered by witness statements. Rule 5(10) defines a witness statement to mean
written testimony signed by a witness and filed in court and served on the opposite
party for purposed of having it tendered in court as the evidence in chief of the
witness.
Rule 5(2) provides that a witness must appear in court and take oath before their
statement is tendered as evidence in chief. Rules 5(5) then provides that
statements of witnesses who do not appear in court should be expunged from the
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record. The only except to this being where parties consent to the statement
remaining on record.
Rule 5(3) allows witnesses to correct errors in the statements which do not go to
the substance of the testimony and with leave of court. Rules 5(8) provides for the
content of a witness statement and Rule 5(6) makes the timelines for filing a
witness statement mandatory. Lastly, Rule 5(7) prohibits the hearing of witnesses
without witness statements except with Court’s leave.
2.4 Witness preparation
It is important to note that while witness coaching is prohibited, a process of

witness preparation is permissible and desirable, may extend to advising
witnesses as to the basic requirements for giving evidence, in order to assist
witnesses to give their best at the trial or hearing but risking their evidence
becoming anything other than their own uncontaminated evidence.
The following approach is suggested in relation to any witness preparation process

for the purpose of civil proceedings:
a) Any witness preparation process should normally be supervised or

conducted by a counsel.
b) In any discussions with witnesses regarding the process of giving evidence,
great care must be taken not to do or say anything which could be
interpreted as suggesting what the witness should say, or how he or she
should express himself or herself in the witness box: that would be
coaching.
c) Counsel should only approve or take part in a mock examination-in-chief,
cross-examination or re-examination of witnesses who are to give oral
evidence in the proceedings in question if, and only if:
1) It’s purpose is simply to give a witness greater familiarity with and
confidence in the process of giving oral evidence;
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2) There is no risk that it might enable a witness to add a specious quality

to his or her evidence; and
3) In conducting any such mock exercises, counsel does not rehearse,
practice or coach a witness in relation to his/her evidence.
FURTHER REFERENCES/READING:
1) Chapters in all Trial Advocacy Text Books share on Examination in Chief.

2) The Evidence Act, Cap 6
3) The Magistrate Court’s Act Cap 16
4) The Civil Procedure Rules S.I 1-79 & the Amendment of 2019
<<<<<END OF TOPIC>>>>>
20
LAW DEVELOPMENT CENTRE
DEPARTMENT OF POST GRADUATE LEGAL STUDIES & LEGAL AID
ACADEMIC YEAR 2021/2022
DOCUMENTARY EXHIBITS
Introduction
An exhibit is a document, record or other tangible object formally introduced as evidence in
the court by a party who wishes to rely on such evidence to prove their case. Exhibits are the
only form, apart from the testimony of witnesses, in which evidence can be received. Spoken
testimony typically presents a recitation of the witness's memories and perceptions. Exhibits, on
the other hand, allow the judicial officers to use their own senses and perceptions to be
persuaded of certain facts.
At trial, exhibits enhance or supplement the testimony of the witnesses. Exhibits can make
information clearer, more concrete, more understandable, and more reliable. In all cases,
Exhibits help court see the facts as opposed to being told.
Types of Exhibits
Although the categories tend to overlap and the lines cannot be drawn with precision, it is often
helpful to think of exhibits as falling into these three categories:
• Real or tangible evidence,
• Demonstrative evidence, and
• Documentary evidence.
We shall deal with Documentary Evidence as our Level I.
Documentary Evidence
Documentary evidence generally refer to virtually writings such as letters, contracts, leases,
memoranda, reports, ledgers, printouts, business records, etc. It also includes photographic and
electronic evidence as we shall see below.
The value of documentary evidence cannot be overstated. Intrinsic writings can provide proof of
past events in a way that mere testimony cannot. Imagine a criminal case in which the
defendant has raised an alibi defense, claiming that on the day of the crime he was visiting
relatives in a distant city. The testimony of the defendant and his family is relevant and
admissible to establish the alibi, but it will be subject to vigorous attack on cross-examination. A
signed hotel receipt for the date in question stands to be far more persuasive than any witness
as to the defendant's whereabouts.
Method of Introducing Documents in Trials
Criminal Trials
In Criminal Trials, usually documents are tendered through the testimony of witnesses.
However, to avoid surprise and ambush, the prosecution provides their documents to the
defence through the discovery process before trials. It is best practice for the defence to also
exchange their documents with the prosecution ahead of time.
Civil Trials
In Civil Trials, documents can be tendered and admitted into evidence either by agreement
between the parties at Scheduling or if the documents are not agreed to, by Counsel formally
applying their admission into evidence.
The Civil Procedure (Amendment) Rules of 2019 in amending Order 18 to include Rule 5A now
provide that evidence during civil trials is through witness statements. Rule 5A (8) (j) provides
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that witness statements shall include documents on which the witness relies, that have not
already been agreed to at the scheduling conference; and under (l) shall sufficiently identify any
document to which the statement refers without repeating its contents, unless it is necessary
for identification of the document. This introduces two different ways documents in civil trials
are admitted into evidence;
Agreed Documents
Documents are agreed to if they are not disputed to by the opposite party. The reasons for
dispute usually are because they do not fulfill the various rules of evidence as to authenticity,
relevance, hearsay etc. The commonly agreed to documents will be those that probably involve
both parties or whose existence and accuracy is not disputed. The process of admitting them
into evidence does not require a formal tendering because parties can consent to the
documents as agreed to during scheduling. They are then listed in the Scheduling
Memorandum, compiled into a Trial Bundle and exhibited at Trial.
Disagreed Documents
Where documents are not admitted to by the opposite party, then the party who wishes to rely
on them must formally lead evidence to prove their authenticity, relevance and fulfillment of
other evidential rules and then formerly apply to court for them to be tendered.
Joint Scheduling Memorandums & Trial Bundles

A trial bundle refers to a collection of all the documents to be relied on at a trial by the judicial
officer, witnesses and other relevant parties. When creating a trial bundle, it should be regarded
as being as much part of the presentation of the case as what is said in court.
Trial Bundles serve many uses such as effective presentation of a case and assistance to all
parties handling the documents to enable the hearing proceed smoothly and expeditiously.
The Civil Procedure (Amendment) Rules S.I. No. 33 of 2019 now have detailed provisions for
the conduct of interparty scheduling and preparation of trial bundles under the Second
Schedule. They provide for the bundles to include indexes, be numbered and made in 5 (five)
copies etc. They also provide for the process through which both counsel must corporate in the
preparation of joint scheduling memorandum and trial bundles with a penalty of costs for
uncooperative counsel. The Rules also provide for the treatment of admitted or agreed
documents and disputed or disagreed documents in the bundles.
Note: For your first workshop next week, you will study schedule the said Civil Procedure
(Amendment) Rules S.I. No. 33 of 2019 and conduct the party to party joint scheduling process
as well as create the trial bundle within the firm.
Document References at various stages

Apart from court procedures to produce documents, documents go through different stages
before forming part of the court record. These include;
i. Annextures to Pleadings or Documents on Police Investigation Files
When attached to court pleadings or provided to Defence Counsel.
ii. Identified Documents
When witnesses have introduced them to court but for one reason or another are not
competent to tender them or the documents are not in admissible forms
iii. Exhibit
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When competent witnesses have introduced the documents and an application has
been made successfully to accept the documents into evidence, they are marked
accordingly by the court. This process can also be achieved by parties agreeing to the
documents at Scheduling and marking the agreed documents as Exhibits.
Foundations
Just as testimony, a witness cannot tender a document unless the document fulfills various
evidential rules. This requires that various backgrounds and foundations must be established to
prove that a witness is competent to tender the documents and that the documents are
admissible before the witness can be taken to specific documents.
Main elements of foundations that affect the credibility of documentary evidence include;
• Originality,
• Privilege (where a party is law allowed to decline providing evidence),
• Authenticity,
• Relevance,
• Hearsay,
• Evidential challenges with the document
The process of tendering the document into evidence is only necessary where documents have
not been agreed to by the parties. However, a document being agreed to does not mean that
their evidential evidence has been proved and or admitted too. Therefore, the foundation and
relevance of documents must nevertheless be adequately and comprehensively covered even
when documents are agree to.
Where witness statements or affidavits are used, the statement must still demonstrate that;
• They are competent to tender the documents;
• The documents are authentic;
• Any evidential challenges of the documents are dealt with; and
• Their relevance is explained.
Pay attention to the form of questioning depending on the part of the Trial; documents
tendered through examination in chief must be by use of open ended questions to avoid leading
the witness while questions on cross examination may be by use of leading questions.
“Dancing” with Documents

To control the hearing, an advocate must move with efficiency and confidence. Avoid the
fumbling, gambling and abandoning control to guess work or “to whom it may concern”.
One way to establish credibility when representing a client is by being organised and prepared.
There is no better way to show this than how you handle your documents. Consider the
documents your partner in a dance where you must be in sync with the documents and all your
audience at every step of the “dance”.
FOUNDATION FOR SPECIFIC DOCUMENTARY EXHIBITS

Apart from agreements, letters, receipts, reports, newspapers and other ordinary paper
exhibits, there are exhibits which the law requires special foundation for. We shall cover some
of them below;
Pictures:
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A photograph is more relevant when it fairly and accurately depicts a relevant scene at a
relevant time. Therefore, the focus in analyzing foundation for photographic evidence is
whether the relevant view seen by the witness is fairly and accurately depicted in the
photograph. Where there is no witness that can testify as to whether the picture accurately
shows what that witness saw, the admissibility of the photo is placed in doubt. How do we
know the photo wasn’t photo shopped, or is taken at a different place and time and even of
entirely different event? When a witness has testified that a depiction is fair and accurate, the
evidence gains credibility and the burden of proving any faults with the evidence shifts to the
opponent, who must present evidence that the depiction is unfair itself, or has been presented
or altered in some unfair way. This special foundation must therefore be led.
Audio & Video Recordings:

Audio recordings have for long been used and admitted in evidence and are the commonest in
our Ugandan jurisprudence. In order to submit sound recordings as evidence in court, it must be
established that the audio recording is an authentic representation of the conversation it is said
to record.
In addition to the above, the Justice Stephen Mubiru in ARUA HIGH COURT CIVIL APPEAL No.
0006 OF 2013 - TWAHA SEBBI OLEGA vs. ALIDRIGA ADINAN (reported on https://ulii.org/)
held that the evidentiary value of a recording depends in large measure on who said what, but a
court’s ability to use that information depends upon two qualities of the recording: audibility
and intelligibility. Audibility relates to whether the listener is able to hear what is on the
recording. Intelligibility relates to whether the listener is able to understand what the
conversants said. These two tests therefore require that audios fulfil Section 88 of the Civil
Procedure Act which stipulates that English is the official language of Court and be translated if
not in English. Therefore Audio recordings used in our jurisdiction commonly include a
transcription of the contents and additionally, a translation of the transcription if not in English.
A video recording is in law regarded as a document and it has been decided by courts that there
is no difference in principle between a tape recording and a photograph. See the above decision
by ARUA HIGH COURT CIVIL APPEAL No. 0006 OF 2013 - TWAHA SEBBI OLEGA vs. ALIDRIGA
ADINAN. He further guides that being a document, like any other document being offered in
evidence, a recording must be authenticated: a witness must offer evidence establishing that
the object is what that witness claims it is. He held that the basic process for foundation of
admission of recordings or, on the opposition side, to deny admission of audio evidence
requires that the following be shown;
1. It must be shown that the mechanical transcription device was capable of taking
testimony.
2. It must be shown that the operator of the device was competent to operate the device.
3. The authenticity and correctness of the recording must be established.
4. It must be shown that changes, additions, or deletions have not been made.
5. The manner of preservation of the record must be shown.
6. Speakers must be identified.
7. It must be shown that the testimony elicited was freely and voluntarily made, without
any kind of duress.
The above process also applies when the audios are electronically obtained. This was discussed
by Justice Margaret Mutonyi in GULU HCT/02/CV/EP/0001/2014 AMONGIN JANE FRANCIS
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OKILI vs. LUCY AKELLO & Another (reported on https://ulii.org/). She held that before
accepting electronic evidence, a court will determine if the evidence is relevant, whether it is
authentic, or hearsay, or whether a copy is acceptable or the original is required. Further that
like any other evidence the proponent of electronic or digital evidence must lay the proper
foundation which makes the evidence reliable. Courts are mainly concerned about reliability of
such digital or electronic evidence. The foundation should include the following:
1. Reliability of the equipment used.
2. The manner in which the basic data was initially entered.
3. The measures taken to ensure the accuracy of data as entered.
4. The method of storing the data and precautions taken to prevent loss or alteration.
5. The reliability of the computer programs used to process the data.
6. And the measures taken to verify the accuracy of the program.
7. What software was used to preserve digital evidence in its original form and to
authenticate it for admissibility?
8. The competence of the person who accessed the original data.
9. This person must be competent to do so and able to give evidence explaining the
relevance and implication of what he did. And finally,
10. An independent third party should be able to examine the process and achieve the same
results.
The test for authenticity was codified by the Electronic Transactions Act 2011 S.7 (2)(a) which
provides that “for the purposes of subsection 1(a) (which talks of the original form) the
authenticity of the data message shall be assessed (a) by considering whether the information
has remained complete or un altered except for addition of an endorsement and any change
which arises in the normal communication.”
Section 8 of the same Act then provides for the admissibility and evidential weight of electronic
record. It provides that “ the authenticity of the electronic record system in which an electronic
records system is recorded or stored shall in the absence of evidence to the contrary be
presumed where (a) there is evidence that supports a finding that at all material times, the
computer system or other similar device was operating properly or if it was not, the fact of its
not operating properly did not affect the integrity of the electronic record and there are no other
reasonable grounds to doubt the integrity of the electronic records system.
Electronic evidence that does not fulfill these tests is not admissible or if admitted is of no
evidential value.
Emails, Website Materials and Social Media Evidence

S.5 of the Uganda Electronic Transactions Act 2011 provides that information shall not be
denied legal effect, validity or enforcement solely on the ground that it is wholly or partly in the
form of data message.
This provision has made Emails and other soft copy evidence admissible once printed. The same
tests for authenticity apply.
The decision of Justice Madrama in COMMERCIAL COURT CIVIL SUIT NO 161 OF 2010 DIAN GF
INTERNATIONAL LTD vs. DAMCO LOGISTICS UGANDA LIMITED & Another (reported on
https://ulii.org/) expounds on the form and preservation emails must be accorded in order to
be given full evidential weight as Exhibits.
The same applies to articles on the internet and social media evidence such as facebook,
twitter, instagram and the post of the like plus Whatsapp Messages.
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Points to note about the Tendering Process
• Most objections to documents being tendered arise from the lack of evidential foundations
and therefore the remedy may be to lead the witness or call another witness to address the
gaps.
• Documents that are identified are not part of the evidence and counsel tendering them
must endeavour to address the objections upheld and re-apply for their admission as
exhibits. Justice Mubiru in the Olega case above explained that identified items were not
exhibits and they therefore did not from part of the body of evidence to be evaluated.
• Even where objections to documents are upheld or over ruled, counsel may challenge such
rulings on appeal and it would be up to such an advocate whether to challenge such a ruling
right away or on appeal against the whole judgement.
• It is possible to tender a document through an opposite party’s witness through cross
examination only then the aspects discussed above are fulfilled with the usual cross
examination techniques of controlling the witness by the use of leading questions when
developing the required foundation.
• When documents are adduced by affidavit evidence or witness statements, the foundations
discussed above must be fulfilled in the written testimony or evidence. Otherwise, the
evidence attached is then not admissible or of any weight.
• Admission of evidence does not amount to conceding to the evidential value of it. Aspects of
authenticity and other evidential rules can still be challenged in cross examination and or
submissions and the evidence found wanting expunged from records or not relied on.
SAMPLE CHECKLIST FOR TENDERING EXHIBITS DURING EXAMINATION IN CHIEF

A checklist of the process of tendering evidence which a party wishes to rely on but the
opposite party disagrees or disputes. The same applies when such evidence is attached to
affidavits or written testimony.
1. Ask the witness question(s) that establish that he is competent a right witness.**
2. Ask the witness question(s) that establish the existence of the exhibit.
3. Ask the witness question(s) that establish sufficient foundation that the witness is able
to identify the exhibit.
4. Ask the witness question that how they would be witness be able to identify the exhibit?
E.g. “If I showed the question, how would you be able to identify it?”. (Have the witness
identify the document in several ways.)
▪ Date the document was authored
▪ Who authored the document
▪ Who has custody of the document
▪ Who signed the document
▪ What other features identify the document such as;
• Contents
• Features
• Letterhead
• ID number
• Handwriting
5. Make an application to the judge to approach and show the witness the exhibit.
• Request that the witness examine the exhibit.
• Have the witness identify the exhibit; e.g. “What are you holding?”
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6. Ask questions to have the witness reconfirm the earlier features they relied on to
identify the exhibit. It may seem like a repetition but it is not. The first set of
identification questions in Step 4 is to demonstrate that the witness is familiar with a
document before they see it. While the second set of questions in this Step 6 is to
confirm that this is the document they were referring to earlier. The aspects asked are
to describe the document now that it is in the witness’ hands. E.g; If the exhibit is a
letter;
▪ What is the date on the document
▪ Who was the document from
▪ Who authored the document?
▪ Who signed the document
▪ Describe the other features of the document such as;
• Contents
• Features
• Letterhead
• ID number
• Handwriting
7. If necessary, establish any additional foundation to tender the exhibit, for example;
o Originality
o Relevance
o Authentication
o Hearsay Analysis
o Accuracy; etc….
8. Provide opposing counsel with a copy of the exhibit or establish for the record that
counsel already has a copy, also provide judge with a copy or request the Judge and
opposite counsel to turn to a particular page of the trial bundle containing the exhibit.
9. Apply to the Judge to have the exhibit marked and tendered into evidence.
10. Respond to any objections made by opposing counsel regarding the exhibit and wait
for a ruling on the objections.
11. If the objections are over-ruled, wait for the exhibit to be marked by the Judge and
given an exhibit number.
12. After it is marked, use the exhibit and its content persuasively.
**The first and second step may be inter-changed depending on the exhibit.
Further Reading / Demonstration;

• Relevant Sections of applicable laws such as;
✓ Evidence Act Capt 5
✓ Civil Procedure Act Cap 71
✓ The Electronic Transactions Act of 2011
✓ The Electronic Signatures Act of 2011
✓ The Civil Procedure (Amendment) Rules S.I. No. 33 of 2019
• Relevant sections of Modern Trial Advocacy – Steven Lambert
• Relevant Sections of Civil and Criminal Bench Books.
• All Case mentioned in the above notes.
2021, ALINDA-IKANZA
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CROSS EXAMINATION & IMPEACHMENT
Introduction & Legal Basis

Cross examination is the process for testing the veracity and accuracy of the testimony of a
witness. It is perceived as the riskiest part of the trial. Usually viewed as a contest between the
lawyer and witness by the fact finder, poor cross examination can end up adding weight or
attracting sympathy to your opponent’s case.
The legal basis/justification for cross examination can be found in the Evidence Act and
Precedents.
Section 137 (1) of the Evidence Act provides for the order of examination as follows; that
witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-
examined, then (if the party calling them so desires) reexamined.
Case Law also on the other hand emphasizes the duty to cross-examine. Every cross-
examination must comply with an important rule of practice. The rule is that you must cross-
examine on every material fact in dispute. This rule is derived from the decision in Browne v
Dunn (1893) 6 R. 67, H.L cited with approval in our John Kayibanda v Uganda [1976] H.C.B 253.
It was held that evidence that is not challenged in cross-examination by the party against whom
it has been adduced is generally accepted by court as true unless it is contradicted by other
evidence.
Cross-examination is the symbol of adversary justice systems, a constitutional right in criminal

cases and an aspect of due process in civil cases.
Aims of cross examination

Section 145 of the Evidence Act provides for lawful questions in cross-examination as follows;
When a witness is cross-examined, he or she may, in addition to the questions hereinbefore
referred to, be asked any questions which tend—
(a) to test his or her veracity;
(b) to discover who he or she is and what is his or her position in life; or
(c) to shake his or her credit, by injuring his or her character, although the answer to those
questions might tend directly or indirectly to incriminate him or her, or might expose or tend
directly or indirectly to expose him or her to a penalty or forfeiture.
Cross examination provides an opportunity to highlight inaccuracies in, and generally discredit,
the testimony of an adverse witness.
• To destroy the material parts of the evidence in chief.
• To weaken the evidence in chief, where it cannot be destroyed.
• To elicit new evidence helpful to the party cross examining.
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• To undermine the witness or shake his credibility.
Apart from the above, the primary aim of cross examination is to tell your story through the
witness and not only to discredit the witness. Therefore, during cross examination, you the
lawyer, are the witness.
The decision to cross-examine

Note the emphasis in Section 137 above that a witness is cross examined if the adverse party
so desires.
Where it is impossible to achieve any of the above aims, do not cross examine.
The Lawyer must look and listen to determine if the evidence to challenged has any of the
following characteristics;
• Contradicts prior testimony of the witness;
• Conflicts with the testimony of other witnesses;
• Conflicts with documentary evidence;
• A hesitant, nervous or uncertain response on a key point;
• Addition or omission of facts on an important issue; and
• An actual admission
• Be alert to the contradictions, inconsistencies, hesitation, exaggeration,
unresponsiveness and parroted or selective answers.
• Do I really need to ask this witness any questions, or can I save it for another witness?
• Has this witness hurt my case? If yes, where exactly? -
• Can this witness really help me? Where?
• Can I really reverse or weaken the harm caused by this or some other witness by
questioning this witness?
• Is this witness basically honest? -Is this witness knowledgeable?
• Is this witness vulnerable? Where exactly?
• Know When Not to Stand Up at All. Don’t if testimony is:- not damaging, not germane to
any important issue, is indeed devastating but you have no weapons of mass
impeachment
The Content of Cross-examination

Section 137 (2) of the Evidence Act, provides the cross-examination need not be confined to the
facts to which the witness testified on his or her examination-in-chief. Despite this allowance
for wide-open cross-examination, questions must nevertheless concern relevant issues in the
case.
Hence the wording of Section 147 above on “lawful questions” during cross examination which
by implication alludes to the fact that some questions may not be allowed. This wide-open
approach to cross is mainly in English Law and other jurisdictions insist on very narrow room for
cross examination.
Cross examination therefore has rules and ethical restraints which we shall cover in the end.
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Preparation for Cross-examination
To prepare for cross examination, the lawyer should;
• Have thorough knowledge of one’s own case
• Effective anticipation of the adversary's case
• Familiarity with the witness’ testimony.
• Gathered from witness statements
• Gathered from affidavits
• Meticulous notes from attentive listening during trial
• Investigation of the case, the facts, the pleadings, the evidence and the law.
• Prepare a thorough outline of the objectives and areas to be covered
• Develop credibility and trust with court
To accomplish the above, consider the following preparation tools;

Writing down all the questions
Write down all the questions so that you sharpen your specific questions. This helps in getting
the correct form of the question right as well as with brevity (concise and exact use of words in
writing or speech). When it comes to the actual examination, do not read from the list as that
takes away from the chance for eye contact.
Outlines
Use notes not in the form of written questions mentioned above but an outline to remind
yourself of the points that you intend to make on cross-examination and to ensure that you do
not inadvertently omit anything. Here is an example of an outline in a Fire Truck Accident case;
Background
i. Business consultant
• Sole proprietor
• Clients are important
• Timeliness and efficiency
ii. Locations and distances
• His home
• His office Parking lot
Accident
i. Plans for day
• Left home at 7:55 a.m.
• Meeting at 8:30 a.m.
ii. Weather
iii. Fire truck
• Didn't see
• Didn't hear
• Didn't stop
Post-accident
i. Phoned office/important client
ii. Didn't call ambulance for plaintiff
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An outline like this is very easy to follow, organized to tell the story and to provide a visual
pattern that allows you to keep your place. Even when you lose your place, the sparsity of
words makes recovery that much simpler.
Referencing your outlines

Lastly, reference your outline with the sources of the information for the points you want to
make. This will help you refresh a witness’ memory or know exactly where to find the basis of
your information. These are usually previous statements, contracts and documents and other
records that inform the lawyer on what answer to expect.
Techniques of cross-examination
There is no one correct method of cross-examination. A lawyer can use different techniques for
different witnesses. However, to tell your client’s story through an adverse witness, the
essential goal of cross-examination, the technique is witness control. The best way to control a
witness is through;
Use of leading questions

Section 140 of the Evidence Act defines a Leading Question as one that suggests an answer.
And Section 142 of the Evidence Act specifically allows the use of leading questions in cross
examination. A non-leading question invites the witness to wander away from your story.
Use of Short Questions
If a question contains more than a single fact or implication, it is not short. Divide it. If a
question is more than ten words long, it is not short in execution. Try to shorten it.
Ask enough questions to develop a topic
This topic is normally taken from the outline guiding the lawyer.
Avoid Ultimate Questions
It will often be tempting to confront an adverse witness with one last conclusory question: "So
you just ignored the fire truck, didn't you?" Resist this temptation. It may unravel all the work
you may have accomplished. Instead, save that conclusion for your final submissions at the end
of the trial. Another common mistake is for the lawyer to attempt to make that argument there
and then such as “May the Court please note that the witness has admitted ignoring the
truck……” This is not the place for any
argument or submissions.
Listen to the Witness and Insist on an Answer
There are many reasons why a witness can refuse to answer a question on cross examination
which is mainly refusal to agree with a lawyer or being evasive or elusive. The lawyer must insist
on an answer and this requires that they would have to pay attention and listen to the answer.
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Questions that lose control.
The most common reason why a witness may refuse to answer a question or agree to the
answer suggested by the lawyer is because the lawyer would have lost control of the witness.
This is usually because of the form of question such as the following;
• Non-leading Questions; The cardinal rule on cross-examination is to use leading

questions. You can control a witness this way:
Q. You were thirty feet away from plaintiff's car when you first applied your brakes,
correct? But you lose control when you ask:
Q: How far from the plaintiff's car were you when you applied your brakes?
• "Why" or Explanation Questions; Asking a witness to explain is the equivalent of saying,
"I've grown tired of controlling this cross-examination. Why don't you take over for a
while?"
• Fishing Questions. Fishing questions are the ones that you ask in the hope that you might
catch something. Do not ask questions to which you do not know the answers.
• Long Questions; These multiply a witness's opportunity to find something to disagree with
and the lawyer will not know what exactly the witness disagrees with. The more words you
use, the more chance there is that a witness will refuse to adopt them all.
Questions to Avoid;
• I put it to you (that you crossed the road);
• I suggest to you (that you crossed the road);
• My client will say (that you crossed the road);
• Are you trying to persuade the magistrate/judge/jury (that you crossed the road)?
None of these is a proper question, even if you add at the end: “What do you say to that?”
Although you may have heard these questions used so many times, you should never use them.
Never. One judge described such a question as “ineffectual”. Not only is it ineffectual, the
question does not address an issue in the case.
Cross-examination Strategy
It is important to have a strategy for your cross examination. Such as one following this order; 1
• Friendly information; be friendly and portray a kind demeanor first. It may be cross
examination, but you don’t have to be cross. This is usually achieved through collection or
confirmation of background information.
• Affirmative Information; After exhausting the friendly information, ask questions that build
up the value of your case rather than tear down the opposition's.
• Incontrovertible Information: You can now proceed to inquire about facts that damage the
opposition's case or detract from the witness's testimony, so long as they are well-settled or
documentable. On these questions a witness may be inclined to hedge or quibble, but you
can minimize this possibility by sticking to the sort of information that ultimately must be
conceded.
• Challenging Information; It is unlikely that a witness will cooperate with you once you begin
challenging her memory, perception, accuracy, conduct, or other aspects of her testimony.
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Therefore, it is usually desirable to proceed through friendly, affirmative, and
uncontroverted information before you begin to take sharper issue with the witness.
• Hostile Information; Hostile information involves confronting the witness directly. You may
be able to extract the necessary answers to hostile questions, but certainly you can
eliminate all hope of cooperation both then and thereafter. Hostile questions involve
assaults on the witness's honesty, probity, peacefulness, character, or background. "Didn't
you spend time in prison?" "You never
intended to live up to the contract?" "That was a lie, wasn't it?"
Because of the above progression, control of a witness is paramount. Pick your first points
carefully. Start with easy scores and save the difficult points for later. This ensures that you are
efficient and able to add something helful or of importance that creates a good first impression
on the Judicial Officer. In order to do so, you must throw out the week, medium and
unnecessary points that will not bear any fruit. When it is necessary to deal with challenging or
hostile information, avoid the temptation to “pull the trigger” in cross examination. That is
asking the conclusions. This will give the witness and his lawyer the “chance to clean up their
testimony”. Save the conclusions for submissions.
Hallmarks of Good Cross Examination

• It Must Be Absolutely Admissible
• It Should Be Central to Your Theory
• It Should Evoke Your Theme
• It Must Be Undeniable
• It Must Be Stated with Conviction
The Ethics of Cross Examination

• Questions that mislead, confuse or are designed to induce determination by bias, or
other prejudgment outside the evidence, baseless stereotype or prejudice external to
the evidence.
• Questions are improper if unduly annoying, harassing, intimidating, offensive,
oppressive, humiliating, and repetitive or in tone or manner that is belittling, insulting.
• Don’t ridicule or be sarcastic or discourteous with the witness unless you are positive
that the witness’ credibility has already been totally destroyed before the court; Uganda
v Festo Baze and Another [1972] H.C.B. 222.
• Avoid the expression of personal animosity toward opposing counsel and witnesses
regardless of personal opinion.
• Avoid obstructive tactics, including: bringing frivolous objections, unfounded objections
intended only to disrupt opposing counsel.
• Don’t attempt to proceed in a manner previously barred by the court.
• Don’t ask improper questions.
• Don’t attempt to introduce inadmissible evidence.
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• Don’t use dilatory actions or tactics, create prejudicial or inflammatory argument or
publicity.
Impeaching a witness
While the general cross examination of witness deals with the weakness of the opponent side’s
case, impeachment dwells on the credibility of a specific witness.
Section 154 of the Evidence Act provides for various ways the credit of a witness may be
impeached by the adverse party.
The general areas that can be covered therefore include;
• Lack of or deficient personal knowledge.
• Lack of reliability.
• A witness with selective memory or deliberate omission of information not in their
favour.
• Show bias / interest / motive / personal interest / character / omissions etc
• Prior inconsistencies such as behavior and statements.
Impeachment in cross-examination is very effective on strong points; it will probably antagonize

the court on minor matters. An unsuccessful impeachment impeaches the lawyer! Never
attempt to impeach a witness unless you are sure of success.
Enjoy your cross examination workshops.
ALINDA-IKANZA © 2021
Further Reading
Please read the Chapters on cross examination of the various materials provided.
Demonstration Resources
1. The following Youtube Videos also demonstrate techniques in witness control and focused
lines of questioning that accomplish specific conclusions;
• https://www.youtube.com/watch?v=bHd_UlebyoM - Complete exchange between Sen.
Kamala Harris and Attorney General William Barr
• https://www.youtube.com/watch?v=eV0n7vYbwIk - Rep. Al Green Questions HUD
Secretary Ben Carson
• https://www.youtube.com/watch?v=7rcVtBcvCTo - Oscar Pistorius appears to change
defense under cross examination
• https://www.youtube.com/watch?v=7ZFO2KBdqlU – University of Winsdor Faculty of
Law Cross Examination Training Video 5B
• https://www.youtube.com/watch?v=ocRkn35deA4 – University of Winsdor Faculty of
Law Cross Examination Training Video 6
34
TRIAL OBJECTIONS
Introduction
“[a] legally-driven attempt to prevent the admission of evidence (typically) or argument (sometimes) on
the basis that the impugned evidence violates some aspect of the law of evidence or the rules of
procedure.” Igor Ellyn, QC, CS, FCIArb. & Belinda E. Schubert How to Make In-Trial Objections Less
Objectionable, (2011).
Objections are the means by which evidentiary disputes are raised and resolved. Objections may be made
to an attorney's questions, to a witness's testimony, to the introduction or use of exhibits, to a lawyer's
demeanor or behavior, and even to the conduct of the judge. Modern Trial Advocacy, 4th Edition.
The Purpose of objections

• To keep testimony fair and honest.
• Controlling information getting onto the court record
✓
Preventing inadmissible evidence
✓
Preserving the record for proposes of appeal
✓
Provide the court with an opportunity to rectify erroneous rulings
• To protect your witness
• To ensure proper questioning
• To eliminate waste of time
• To gain tactical advantage
✓
Provide a witness more time to think
✓
Break up the testimony of an opposing witness
Examples of possible objections

• Objections to the form of questions; Leading questions, compound questions, argumentative
questions, questions previously asked and answered, repetitive questions, questions calling for
narrative answers, ambiguous or unintelligible
• Objections as nature of evidence; Irrelevant, immaterial, hearsay, lack of personal knowledge,
assuming facts not in evidence, etc. As well as Objections to Exhibits being tendered; Admissibility,
lack of foundation, not authenticated, improper copy, etc.
• Improper conduct of counsel or court
Preparing for objections

• Preparation and anticipation
• Keen knowledge and understanding of substantive as well as procedural law
• Anticipate the testimony of each witness
• Anticipate all documents and exhibits.
The decision to object

• Failure to make a timely objection might be construed as a waiver on appeal. Francis Masaba v.
Uganda[1992-93] H.C.B. 17
• A trial is not an evidence class: it’s a battle for credibility.
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• Object strategically (only if;-)
✓
There is a legal basis
✓
The proffered testimony or exhibit will be detrimental to your case.
• Testimony and evidence that both hurts your case and is objectionable.
• Judge / Magistrate may view you as obstinate or obstructive.
• Judge / Magistrate may think you are incompetent.
• Question is readily fixable.
✓
Allows opposing counsel the opportunity to explain the value of the evidence objected to.
✓
Focuses the presiding judicial officer's attention on the impugned evidence.
• There will be times in a trial when an objection may have merit in law but be harmful tactically.
Factors to consider
• Will the evidence I hope to keep out hurt my client’s case if it is admitted?
• Is the evidence I hope to keep out relevant to the case?
• Which rule of evidence does the impugned evidence offend?
• Is the evidence or tactic my opponent is using unfairly ambushing my client?
• If I object, will the presiding judicial officer think I am interfering unfairly?
• Can I rely on the presiding judicial officer to know that this evidence is not relevant??
• Will the evidence I hope to keep out hurt my client’s case if it is admitted?
• Is the evidence I hope to keep out relevant to the case?
• Which rule of evidence does the impugned evidence offend?
• Is the evidence or tactic my opponent is using unfairly ambushing my client?
• If I object, will the presiding judicial officer think I am interfering unfairly?
• Can I rely on the presiding judicial officer to know that this evidence is not relevant??
• Will the presiding judicial officer think there is something to hide?
• How should one make the objection?
• What if the objection is not sustained?
• Should I hold my objection because I have evidence which I may be unable to call if the objection is
accepted?
• Is the presiding judicial officer even paying close enough attention that he or she understands the
significance of the question?
• What exactly will the witness say in response to counsel’s question if there is no objection?
The timing of objections

• As the grounds for objecting become apparent
✓
The legal basis for the objection
✓
Sufficiency of the factual basis
• Don’t interrupt the question posed by the opposing counsel
• But don’t wait until the answer is on the record before objecting
• If the grounds for doing so become apparent only after the answer is given, move court to strike the
offending portion off the record.
Making the objection

Note: If there is one essential rule in arguing objections, it is that counsel should not argue with, or even
address, each other. It is the judge who will make the ruling, and the judge who must be convinced. It is
ineffective, distracting, and even insulting to the court when counsel turn to each other to argue their
objections:
• Quickly rise and, as you stand, announce to the court, “Objection, your honour / your Lordship.”
• Court will usually acknowledge you and invite your comments
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• If counsel opposite remains standing, you may wish to add, politely, "Your Honour, I will give counsel
a moment to be seated before I specify the grounds of my objection".
• State your objection clearly, simply and directly.
• Wait for a response from the Judge / Magistrate.
Responding to an objection
• Don't be resentful. See it as an opportunity for you to rephrase questions better.
• Concede. (If the objection has merit).
• Rephrase the question.
• Withdraw the question or comment that is the subject of an objection.
• Argue on basis of limited admissibility e.g. evidence tendered only for identification.
• Direct response.–Answer the objection with the law supporting the question or submission
• Receive a ruling, favourable or unfavourable, with professional courtesy and dignity.
Important to Note:
• Be certain actually to obtain a ruling on every objection. If none is given, politely insist on one. E.g.
“Your Honour may we please have a ruling on the objection raised.”
• The role of each counsel after a ruling on an objection; the party against whom the objection is made
must make sure the evidence nevertheless makes it to the record while the party who raises the
objection must make sure the offending evidence is not brought onto the record another way.
Ethical and conduct issues

• Ethical issues frequently arise in the context of making and meeting objections. Because the objecting
process is one of the most confrontational aspects of the trial, it often tests counsel's reserves of good
will, civility, restraint, and sense of fair play. The three most common problems are discussed below.
• Don't use it only as a tactical device to interrupt an opponent's examination, cross-examination,
argument or opposing counsel’s concentration.
• Not to be used, to make opposing counsel look bad or to exhibit your superior knowledge of the law
of evidence.
• Act politely and civilly at all times.
• When opposing counsel has an objection: stop your examination, be seated, and permit opposing
counsel to make the objection.
• Don’t bicker with your opponent.
• Don’t be rude.
2021 © ALINDA-IKANZA
37
POST GRADUATE BAR COURSE 2021/2022
ADVOCACY SKILLS TRAINING
OPENING STATEMENTS
Introduction
Opening statements introduce the Court to the parties’ competing theories of the case.
Opening statements generally are fairly short, and focused on the key facts each party will
present. They are told in chronological order, as much like a story as possible. They help the
Court understand the nature of the dispute, focus on the key evidence, and place witnesses
and exhibits in their proper context. Our laws provide for opening statements in both criminal
and civil cases as follows;
Legal basis
TOPIC & LAW PROVSION
Opening Statements in M.C.A. Section 131 (1): Opening and close of case for prosecution
Criminal Cases before and defence - The prosecutor and the accused person shall be entitled to
Magistrate Courts - address the court at the commencement of their respective cases.
Opening Statements in Section 71. Opening of case for the prosecution.
Criminal Cases before When the assessors have been chosen, the advocate for the prosecution
the High Court – shall open the case against the accused person and shall call witnesses
T.I.A and adduce evidence in support of the indictment.
Section 74 (1) Defence:
The accused person or his or her advocate may then open his or her case,
stating the facts or law on which he or she intends to rely, and making
such comments as he or she thinks necessary on the evidence for the
prosecution; and the accused person may then give evidence on his or her
own behalf or make an unsworn statement, and he or she or his or her
advocate may examine his or her witnesses, if any, and after their cross
examination and re-examination, if any, may sum up his or her case.
Opening Statements in Rule 2 – On the day fixed for the hearing of the suit, or on any other day
Civil Cases – C.P.R to which the hearing is adjourned, the party having the right to begin shall
Order 18 state his or her case and produce his or her evidence in support of the
issues which he or she is bound to prove.
Rule 3 – The other party shall then state his or her case and produce his
or her evidence and may then address the court generally on the whole
case.
Purposes of an opening statement
Courts in Uganda do not treat opening statements as mandatory, mainly due to time
constraints and lack of an established practice for doing so. As well as due to the lack of
Advocates’ skill in presenting opening statements. However, since the law allows for them in
both criminal and civil cases, an advocate needs to prepare to make an opening statement, for
the following reasons;
• It helps the advocate to formulate and be in position to present a clear picture of the case;
- its major events, participants, instrumentalities, disputes and contentions.
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• It helps the advocate to plan an approach that will arouse the interest of the Court in his or
her case and general theory so that the Court remains alert to the evidence. If the Court
becomes bored (or worse, if it becomes antagonistic), it may be inattentive while the
advocate presents his or her witnesses.
• It helps the advocate to plan an approach that will build rapport with the court, addressing
the court in a way that communicates the advocate’s sincere belief in his or her cause.
• For the defence, the opening statement presents the opportunity to keep the court
reminded that there will be or are two sides to the case so that the Court does not make up
its mind too soon.
• It provides the first opportunity to package and present one’s case as a cohesive whole.
• In this context, preparing one’s case as if one will be required to make an opening
statement helps the advocate in planning a strategy that will direct the attention of the
court to the nuances of the proposed evidence in such a way as to make the usual
piecemeal presentation of testimony more understandable as it is received.
The nature and content of an opening statement

Proper opening statements are not arguments. Opening statements are supposed to be limited
to informing the court of the facts the advocate intends to prove. It is not an opportunity to
tell the Court that you have the evidence on your side, but to show / demonstrate it.
The purpose of an opening statement is to inform the court in a general way of the nature of one’s
case so that it will be better prepared to understand the evidence. The advocate is supposed to
limit himself or herself to a discussion of the anticipated evidence and what the main issues are.
The advocate may not argue about how to resolve conflicts in the evidence, nor discuss how to
apply the law to the facts, nor attempt to arouse the emotions of the court. To avoid turning into a
witness when giving this evidence, phrases “The evidence will show”, “We shall call Mr. Mukasa
who will testify that ……..” or such similar phrases in the future
tense may be adopted by an Advocate when introducing facts that will be testified on by
witnesses.
The Prohibition Against Argument

The most basic rule of opening statements is that “argument” is prohibited. There are two
tests; -
(i) whenever an advocate makes a statement, which is of nature that a witness could take
the stand and make the same statement, it is not argument. However, if the rules of evidence
would prevent such testimony, or if no such witness exists, the remarks are argumentative.
(ii) If it is something the advocate intends to prove, it is not argument. If however the
advocate makes a statement that is not susceptible of proof, it is argument. As long as
opening remarks will assist the court in understanding the evidence, they are permissible.
However, when they turn distinctly partisan asking the court to resolve disputes, make
inferences, or interpret facts favourably to the speaker, the remarks are argumentative. For
example, an advocate cannot refer to his or her witnesses as “good and truthful”, discuss how
the evidence will satisfy a legal standard, make negative judgements about the adversary or
refer to the other party in scurrilous terms.
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The Prohibition against Exaggeration and misstatements
The advocate is expected to make a full and fair statement of the party’s case and the facts
the party intends to prove. The most basic rule is that an advocate may not misstate or
exaggerate one’s evidence. The advocate cannot promise evidence he or she cannot deliver.
An advocate should not use colourful labels that characterise facts in a way distinctly
favourable to one’s side. For example, the prosecutor cannot characterise a crime as a
“rampage of terror” or “unspeakable evil’.
Limited or no discussion of the law

It may contain a brief statement of the main legal issues on which the case depends, but not a
detailed discussion of the law. One should not go further and argue how the law is supposed
to be interpreted. In the same vein, pleadings may be referred to only if doing so will explain
the procedural posture of the case, clarify the factual contentions, or help identify which
issues are contested and which have been admitted
Discussion of the facts

Opening statements are supposed to be limited to summaries of the basic facts one intends to
prove. Three rules follow from this:
i. one may not misstate, overstate or exaggerate the evidence. The most common
mistake in an opening statement is overstatement: An advocate can make no greater
mistake in an opening statement than deliberately or carelessly to overstate his or her
case. The deliberate inclusion of matters which cannot be established by admissible
evidence. Overstatement takes several common forms: - discussing the opponent’s
case, discussing evidence of doubtful admissibility and discussing the testimony of
uncertain witnesses, where one doubts about exactly what a witness will say, or even
if the witness will show up at all.
ii. one may not refer to inadmissible evidence, and
iii. one may not discuss evidence one expects the opponent to introduce that will not
be part of one’s own case. An advocate may not refer in an opening statement to
evidence that would be inadmissible at trial. An advocate may refer to any evidence
that he or she has reason to believe is admissible and intends to offer. An advocate
may not anticipate the opponent’s defences nor talk about the facts the opponent
intends to prove and how he or she will rebut them, except if the party represented
plans to offer the evidence. This is because in that situation, one lacks a good-faith
basis that the statements will be supported by testimony, since one not have control
over whether the opponent will call a particular witness or elicit testimony on a
particular defence.
Exhibits;
An advocate may be permitted to use exhibits during opening statement. Exhibits that the
advocate reasonably believes will be introduced during the trial logically are evidence just
like witness testimony, and should be allowed to be disclosed them to the court. Exhibits that
will be offered during trial, such as weapons, autopsy photographs, and bloody clothing may
be permitted at court’s discretion.
40
Other objectionable content of an opening statement
Making emotional appeals for sympathy for one’s own client, or antipathy toward the adverse
party. Although an advocate can discuss facts that have emotional content, such as the extent
of a plaintiff’s injuries, one cannot go outside the relevant evidence. For example, a
plaintiff’s advocate in a personal injury case may discuss how the plaintiff has suffered
because there is a claim for compensation for pain and suffering. The advocate though may
not discuss how hard it has been on the plaintiff’s family Appealing to racial, ethnic or other
cultural prejudices. This is usually done by linking one of the parties to a disfavoured group,
e.g., suggesting that the accused is a member of a street gang. Discussing wealth, poverty,
insurance, or anything else connected to a party’s ability to pay damages, e.g., that the
defendant was not a large corporation, but a small family - owned business. Personal attacks
on the opposing advocate, e.g., that defence counsel would try to confuse the Court.
Referring to other similar cases or one’s own experience, e.g., informing the court that the
defendant had previously lost a similar negligence case.
Structure of Opening Statements

Introductory remarks
An advocate usually begins an opening statement by introducing himself / herself and the
client(s), and conveying the purpose of the opening statement. One will frequently use an
analogy to explain what an opening statement is, such as, “an opening statement is like the
cover of a jigsaw puzzle box that previews what the finished puzzle will look like.” They also
commonly include the disclaimer that what is said in opening statement is not evidence.
Present the Central theme

A good presentation of an opening statement needs a central theme. Themes can be found in
the elements of your case or in the characteristics of your client that arouse natural sympathy
or coincide with universally admired principles.
Themes should be positive, reflecting the strengths of one’s case. In general, one should stay
away from “negative” themes which focus on a weakness in the adversary’s case. Negative
themes may seem petty. For example, if one represents an accused in a criminal case where
the victim’s identification is shaky and the police did a poor investigation, one may be
tempted to focus on the weaknesses of the State’s case with the theme “the blind leading the
blind.” However, if the accused has a plausible alibi, one is probably better off with a less
clever, but more positive theme, such as “You can’t be in two places at once.”
A summary of the case told as a story

The body of the opening statement is the client’s version of the story of what happened. It is a
narrative of the facts from the client’s point of view. One should bear in mind that this is an
introduction. It must be simple rather than complicated, and focus on the important facts
rather than the peripheral details.
One must bear in mind also that one is recreating an event that happened a number of months
or years ago. The focus is on the past event; who did what to whom, what were their reasons,
and what was the consequence. The focus is not on the trial to come. It does not matter how
one will prove the facts, but focus on the facts themselves.
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A straightforward, chronological order is the safest, easiest, and most natural way to tell a
story. A chronology is not just a recitation of facts. The advocate’s main task is to paint a
vivid mental picture of what happened. The words one uses and images one creates should be
chosen not only for their technical accuracy, but also for the effect they will have on the mind
of the Court. If the advocate can create effective images that the Court will understand and
remember; they will bring the story to life. This is especially important for conveying an
accurate picture of emotions, pain, or a complex series of events difficult to describe in
simple words.
Remarks that summarise the nature of the case, state the advocate’s theme of the case, and
arouse the interest of the Court, e.g.: -
“On 12th July, 2015, John Mugabi walked into Bukasa New Health Clinic through
the front door to have a minor operation to remove a growth on his arm. One week
later, 19th July, he was carried out of the back door, dead. What happened in that
short week to turn a routine operation into a life and death struggle, and why it
never should have happened, is what this case is all about.”
Introduction of Actors, Places and Instrumentalities

The advocate should then introduce his or her client and other important witnesses and set the
scene. By giving this background information first, the advocate does not have to interrupt
the summary of events to explain who certain people are or to describe a location or
instrumentality. The advocate should devote considerable thought to what he or she will say
about his or her client that personalises and humanises him or her, and makes the court
sympathetic toward the client at this stage.
The purpose of opening statement is to describe the incident, not to describe the upcoming
trial. Therefore, the advocate should introduce the Court to the people who actually played
out the crime or other event, not the witnesses who will later describe it. In doing so, the
advocate should bear in mind that the role they played is important to the Court’s
understanding of who they are.
Compare the following two examples:
i. Another important witness will be Mukasa Kalema. Mr. Kalema is married,

lives here in Nakawa, and works at the National Water and Sewerage
Corporation Office in Bugolobi. He will describe what happened at the scene of
the accident.
ii. Another important person is Mukasa Kalema. Mr. Kalema was driving the
National Water and Sewerage Corporation Pick-up truck which was smashed in
the back by Kagoro’s truck.
The first tells the Court nothing that is important about the case; the second introduces the
Court to one of the critical people involved, the man who caused the wreck.
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The Court also will be better able to understand the events if they know the goals and
motives of the participants, and any obvious factors affecting credibility. The advocate
should add any of this additional information only if he or she can do so briefly. For
example;
“Another important person is Mukasa Kalema. Mr. Kalema was driving the
National Water and Sewerage Corporation Pick-up truck, trying to reach quickly at
the Jinja Road Roundabout, where a broken heavy duty water pipe had caused a
serious traffic jam, when his car was smashed by Kagoro’s truck.”
The advocate should familiarise the court with the important locations, times, and
instrumentalities involved. The same kinds of considerations apply. One’s goal should be not
just to mention them, but to make them real to the Court. Locations can be pictured from the
perspective of the client or eyewitness; instrumentalities and machines can be made to appear
as complicated devices, difficult to control, or as simple extensions of the will of the
operator; and times can be related in terms of memorable events such as holidays or
mealtimes. For example:
“Let me set the scene for you: It is 7:45 on Monday morning. People are driving to
from home to their offices. Mukasa Kalema gets into this Pick-up truck [holding up
a photo] and drives to the Jinja Road Roundabout [displaying diagram of the
scene]. This is where the accident happened.”
Identification of the disputes

It is helpful to describe the main factual disputes between the parties in an opening statement.
It is usually acceptable to mention the points of contention in order to help the Court focus on
the real disputes, but not to start arguing about how they should be resolved. For example; -
We are claiming that Kagoro’s injuries were caused by the defendant. We will offer evidence
to show that the defendant was did not check his rear mirror before joining the road when he
colluded with Kagoro’s boda boda seriously injuring him and sending him to the hospital. In
the pleadings filed before trial, the defendant asserted that he was driving safely and is
therefore not responsible for Kagoro’s injuries. Thus, you will have to decide one central
question — was the defendant driving carelessly? That’s the issue we will be focusing on.
Address the weaknesses

Every case taken to trial will have some inherent weaknesses; gaps in the evidence, witnesses
who lack credibility, the absence of corroboration on an important issue, unavailable
witnesses, and so forth. Trial practitioners unanimously agree that weaknesses one’s case
should be disclosed in the opening statement. By bringing them out oneself in as positive a
manner as possible, one takes some of the sting out of them, appears honest, and lessens the
negative impact when the opponent points them out.
This does not mean one should tell the Court about every piece of conflicting evidence, every
possible line of impeachment, or anticipate disputes the adversary may raise. These are not
weaknesses in one’s own case. Rather, one must bring out and explain away key weaknesses
that will emerge from one’s own presentation of evidence or that inhere in one’s theory of the
case, regardless of what the opponent does.
For example, suppose that your client is accused of being at fault in an accident, and had just
left a restaurant where he had consumed a couple of beers. This is a major problem that you
must deal with but not overemphasize. One could say;-
43
“At 9:00 pm, Kagoro left Kati Kati, and got into his car to head home. The car was
in good condition, and Kagoro was alert and not tired. He had drunk two beers with
his dinner, but was still in full control of his faculties. He would not have driven if
he had been feeling any effects from the beer. Kagoro won’t even drive with a cell
phone on.”
Conclusion and request for a decision

The conclusion should summarise the theme of one’s case and ask the Court for a specific
decision, but it cannot be argumentative. This is a difficult line to draw. It usually is
permissible to suggest that the evidence adds up to a favourable verdict, as long as this is
done simply and not at great length.
Ethics of Telling a Client’s Story;
A Final word on telling a persuasive story is in the words of the Honourable Sir Malcom
Hilbery in his book Duty and Art in Advocacy.
In the majority of cases, however, it is not in the seclusion of chambers that a man hopes to
pass, or does pass his professional life. Rather, it is in the practice of advocacy in open
Court. Here it is that he will find himself daily and hourly called upon to be obedient to the
code. Here he must perform his two-fold duty, on the one hand his duty to his Client, and on
the other his overriding duty to the court. For the Client, he must present the Client’s story as
attractively as it can be put. But it is the Client’s case, not something of his own invention,
which he must present. His duty is to make the best of the material with which he is provided.
The facts will be put before him in his instruction, and in the proofs of the witnesses. ……..if
he may inadvertently by design suggest to the witnesses what their evidence ought to be if the
cause is to be won. The result may be that the Court is deceived and an injustice is done.
Further Reading;
All sections on Opening Statements from the Books in our General Reading List.
Opening statements videos
1. https://www.youtube.com/watch?v=wO2WGJK5vPU - Mock Trial Step-by-Step: Opening
Statements
2. https://www.youtube.com/watch?v=jNR5p0oeA90 - Prosecutor Linda Dunikoski Gives
Opening Statement to Jury in Yung Vito Murder Trial
3. https://www.youtube.com/watch?v=0wAIKy8GvYQ - Extra: Prosecution's opening statement
in Mueller murder trial
4. https://www.youtube.com/watch?v=IzU2Zo37tpg - Mueller defense attorney's opening
statement
5. https://www.youtube.com/watch?v=G6O51yZAOgA - Examples of Persuasive Opening
Statements Charles Ross
6. https://www.youtube.com/watch?v=s9AwFbmLQ5Q - Patti Mock Trial: Prosecution,
Opening Statements
7. https://www.youtube.com/watch?v=05uaOrBdtbE - Mock Trial University: Opening
Statement | How to Deliver an Opening Statement
8. https://www.youtube.com/watch?v=9mfqzj9nOi8 - Part 3: Arbitration - Opening Statement
from Employer
2021 © ALINDA-IKANZA
44
FINAL SUBMISSIONS
Introduction
Submissions are made in civil and criminal cases, civil and criminal applications, and preliminary
objections. Generally, every time the Court needs to make a decision, Counsel will be given an
opportunity to address the Court by making their arguments and those arguments are called
submissions. (See: O.18 r 2 C.PR; S. 131 MCA; S. T.I.A; Rules 27 and 28 of the Court of appeal
Rules; rules 27 and 28 of the Supreme Court Rules.) Final submissions take place after all the
evidence has been presented.
Submissions are an important aspect of trial advocacy. A good case can be easily lost at the final
submission stage just as a marginal case can still be won through final submissions.
Order of addresses
Criminal Trials
In a criminal trial, after the close of the accused person’s case, the accused person is entitled to
address the court, and the prosecutor then is entitled to reply; but if the accused person
adduces no evidence or no evidence other than evidence given by himself or herself, the
accused person is, subject to section 112 and subsection (3) of the M.C.A, entitled to the right
of reply (See section 131 (2) of the Magistrates Courts Act).
In trials before the High Court, if the accused person, or any one of several accused persons,
adduces any evidence, the advocate for the prosecution is entitled to reply (See section 77 of
the Trial on Indictments Act.
Civil Trials
As regards civil suits, counsel for the plaintiff will be the first to present the final submissions,
the defendant’s advocate will then present his or hers. After the defence has presented its final
submission, the advocate for the plaintiff has the opportunity for a rebuttal submission.
Purpose
Written or oral arguments to persuade a court or tribunal to decide a matter in your client’s
favour. They constitute an opportunity for each party to summarise the evidence, tie it together
with the relevant law and key themes, in order to convince the court why his or her position
should prevail. The goal is to establish a persuasive link between the facts of the case and the
law.
Structuring the Final Submission.

The process of formulating final submissions starts from the day the advocate first picks up the
file, from the moments when the advocate first starts contemplating the case, and from the first
time the advocate looks into the eyes of the client, prepares a theme, a theory and strategy. An
45
advocate preparing for submissions though must be extremely flexible and must listen carefully
during the trial. The advocate should take notes throughout the entire trial in order to refer only
to evidence which has actually been admitted into trial. Albert Krieger said about final
submissions that “its genesis is in the foresight, the imagination, the dexterity, and the wit of
the lawyer. It is shaped from the clay of the first meeting with the client, formed with the
preparation for trial, and fired in the kiln of the trial itself.” (Albert Krieger is an American
defence lawyer. He is a nationally recognized expert on cross examination. He was the recipient
of the National Association of Criminal Defence Lawyers’ 1995 Robert C. Heeney Memorial
Award as well as their Lifetime Achievement Award in 1987).
The most important aspect of a good final submission is the ability to organise arguments and
place them into a structure that allows for an effective presentation of those arguments. The
arguments should be an organised, well reasoned presentation which emphasises the strengths
of the client’s case and addresses the flaws of the opponent’s case.
Example of outline for structuring defence skeleton arguments in a criminal trial;
1. Start with a convincing statement that the accused did not commit the offence, (or did so
but with a lower degree of culpability).
2. Lay out for the court what is at issue in the case (and maybe even what is not).
3. Lay out the defence case theory [Reiterate your theory of the case].
4. Argue the law [Explain the law and show how the evidence satisfies all legal requirements
for a decision in your favour]
i. The Presumption of Innocence
ii. The Burden of Proof
iii. Standard of Proof / Beyond a Reasonable Doubt.

iv. The elements / ingredients of the offence.
v. Other Case Specific legal principles, e.g. evidential ones.
5. Argue the Facts [in relation to each of the ingredients]. I
i. Facts in Evidence [Emphasize favourable evidence].
ii. Arguing facts that directly undermine evidence presented by the state.
iii. Arguing facts that affirmatively promote your case theory.
iv. Absence of Facts [Rebut opponent’s allegations].
6. Attacking the Integrity of the Investigation
7. Conclusion [Suggest specific ways for the court to resolve the case].
Example of outline for structuring defence skeleton arguments in a civil trial;
1. Brief introduction i.e what the matter is about
2. State the burden and standard of proof
3. Tackle each issue/ingredient/ground of the case/application
i. State the law on every point,
ii. Cite written law first,
iii. Then cases bear in mind which authorities are binding and which are persuasive
iv. Try to distinguish authorities cited by the other side
46
4. Apply the law to the facts as presented in the oral evidence or affidavits
i. Highlight the strength and credibility of your evidence e.g corroboration, impressive
demeanour of witnesses, withstanding cross examination e.t.c
ii. Contrast your evidence with the evidence of the opposite side on those points.
iii. Show the weaknesses
iv. Explain inconsistencies and contradictions in your evidence.
v. Show that they are minor.
vi. Highlight the major inconsistencies and contradictions in the other party’s evidence.
5. Conclude by suggesting ways for the court to resolve the issue /ground in your favour.
When to concede
• If the law and evidence are not in your client’s favour, be prepared to concede
• You may abandon an application
• You may concede an application i.e not oppose it
• You may advise a client to plead guilty
• You may advise the DPP to withdraw a case
• You may advise a plaintiff to withdraw a case or accept a settlement
• You may advise a defendant to concede liability and mitigate damages or accept a
settlement
• Plea in mitigation/allocutus (See Uganda v Charles Eliba [1978] HCB 273) & the
sentencing guidelines)
• Consider non-custodial sentences e.g caution, community service, fine
Hallmarks of an effective final submission

• In general, a good final submission has the following characteristics:
• It clearly tells the court what decision you want and why.
• It is logically based on the evidence.
• It is consistent with common sense.
• It accounts for all of the important evidence.
• It concentrates on the most important items of evidence.
• It avoids becoming bogged down in reviewing uncontested or trivial matters.
• It explains both why you are right and why your opponent is wrong.
• It uses specific evidence and specific legal principles, not generalizations.
• It appeals to the court’s sense of fairness and justice
Style of presentation
Present the final submission in a style which one is comfortable with. Some advocates prefer a
loud, strong style while others prefer a calm, persuasive presentation. It is important for the
advocate to settle on a style that is comfortable and appropriate to the client’s case.
The advocate should not read from a written text of the argument, though an outline or
skeleton arguments may be helpful.
47
Remember good argument is not just oratory; nor is oratory necessarily good argument. The
goal is not to win an academy award for dramatic performance.
What to avoid during final submissions

• A good final submission must be passionate and heartfelt while avoiding the following
pitfalls;
• Making or providing improper statements or citations of the law.
• Misstating the evidence. Stick to the record and do not give evidence from the Bar.
• Invite speculation about unproved facts.
• Stating personal beliefs.
• Suggest that the appellate courts will correct any mistakes the court makes.
• Improperly exciting prejudice, passion, or sympathy, e.g by using inflammatory language.
Avoid any derogatory remarks about opposing counsel or the opposing party.
• It is not a time to show off. If the advocate makes the submission about himself or
herself and his or her achievements, by talking at the court instead of with it, by being
condescending in voice and mannerisms, by telling the court what to do instead of
showing it the way and letting it get there on its own, the court will be put off.
• Avoid lengthy final submissions, they can result in a number of undesirable
consequences: your major point may become lost in a mass of trivial issues, the court
may become bored and stop listening, arguments may become disorganised, or you may
even raise doubts about your own case. Stick to the time allocated to you for oral
submissions. Stick to the prescribed length of written submissions
Further Resources
• Quick guide to oral advocacy
https://www.youtube.com/playlist?list=PLX5UauD6HM_Mfmf3SVGTK1xT2n9sWIYYw
• Extract from Persuading Judges by Antonio Scalia.
• Sections of all materials on making Oral or Closing Arguments / Final Submissions.
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TRIAL

LAW DEVELOPMENT CENTER

May you grow as you go through the Bar Course.

Examination in Chief ............................................................................................................. 7

Documentary Exhibits ............................................................................................... 21

Cross Examination and Impeachment ................................................................................. 28

Trial Objections .................................................................................................................. 35

Opening Statements ........................................................................................................... 38

Final Submissions ............................................................................................................... 45

WHY HAVE A CASE THEORY?

Your case theory controls;

A theory of the case consists of the following parts:

A detailed look at Theme

• In a criminal case, where the accused is an unwilling participant, an example can be

2. Planning the Presentation of Your Case.

a) Consider Your Potential Witnesses and Exhibits

b) Decide Which Witness to Call and their order.

Consider the following suggestions;

3. Planning Your Cross-Examinations

4. Suit disposal strategy

Example of Civil Case Disposal Plan

EXAMINATION IN CHIEF AND WITNESS STATEMENTS

1.0 MODULE 02: EXAMINATION IN CHIEF AND WITNESS STATEMENTS

1.2 Learning Outcomes:

Module 03: Examination in Chief and Witness Statements

1.4 Definition of Examination in Chief:

Module 03: Examination in Chief and Witness Statements

1.5 Objectives of Examination in Chief:

Examination in chief of a witness is intended to achieve a number of objectives;

1.5.1 Major Objectives

1.5.2 Minor Objectives

Module 03: Examination in Chief and Witness Statements

e) Shut down potential cross-examination thereby limiting the exposure of your

1.6 The Directed Approach to Examinations-in-Chief

1.6.1 Effective questioning techniques

- The Difference between closed questions and leading questions

1.6.2 Moving from “open questions” to “directed examination”

1.6.3 Understanding the Importance of Preparation

• What does an unplanned examination-in-chief look like?

• How to elicit the information you need from your witness

1.6.4 Headlines and transitions

• Why are headlines so important;

Module 03: Examination in Chief and Witness Statements

• How to be more persuasive;

• The witness who talks too quickly or too softly;

• The rambling witness;

• Dealing with partial or insufficient answers;

• Using notes to help direct questioning;

• Making eye contact, and with whom;

1.7 Leading Questions

During examination-in-chief the advocate is forbidden from asking their witnesses

Module 03: Examination in Chief and Witness Statements

1.11 Open and Closed Questions

Module 03: Examination in Chief and Witness Statements

Module 03: Examination in Chief and Witness Statements

1.12 A guide to the actual Examination-in-Chief

1.12.1 Start with the Basics

1.12.2 Be nice to the witnesses

1.12.3 Align the Evidence with the Case Theory