Common Sense Rules of Trial Advocacy

Best practices, principles and tips for effective trial lawyering.

Adapted from Common Sense Rules of Advocacy for Lawyers by Keith Evans.


Tell a Story 

Keep it Simple

Avoid Detail

Eliminate Everything that can be Safely Eliminated

Be Brief

Prepare Factfinder for Boring Bits and Weaknesses in Case

Find the Theme in Your Case and Be Able To Tell the Story in One Compact Sentence

Get to your weak point before your opponent does

Opening Statement

Avoid Argument; Stick to Facts

You are permitted to explain the law insofar as necessary to make the facts comprehensible.

Tell a compelling story.

Mention only relevant facts.

Say what the evidence is expected to prove. Go straight to the story. 

State enough facts to justify the verdict you are asking for.

Examination of Witnesses

Plan what answers you want to hear and design questions with a view to get them

Every examination should have a series of objectives

Aim to get the witness to say A, B, C and consequently D. You must know in advance exactly what A, B, C and D are. Each is an objective.

Decide in advance what the overall objective for each individual witness is.

Witnesses speak from memory 

Witnesses can thus be wrong because of wrong interpretation of what they perceived or wrong recollection.

Keep questions to no more than one line

Don’t ask compound questions

Direct Examination

No leading questions in direct examination – examination-in-chief. 


  • Opponent consents
  • Undisputed facts
  • Indisputable facts
  • Getting a denial
  • Laying a foundation – how the witness knows the what.

Lay the foundation showing how the witness acquired knowledge on the topic

Use coupled questions – how & what.

Pair questions which are general then specific.

Getting documents into evidence


  • Mark document
  • Opposing counsel – show it to them
  • Approach witness after asking court
  • Show witness document
  • Testimony – get witness to confirm document made by or relevant to witness
  • Evidence – move to admit into evidence

Refreshing witness’s memory

Ask witness if something might jog her memory.

Ask court for permission to mark the document.

Show document to opponent.

Show document to witness and ask witness to read silently.

Ask witness if it jogs her memory.

Repeat original question.


Two objectives of cross-examination: 

  • Show that the testimony is not safe to rely on.
  • Get testimony out of witness which is useful to your case.

Why would a witness be unreliable?

Witness could be wrong, forgetful or dishonest.

Witness could be wrong because she interpreted wrongly from what she perceived. 

  • Identify the hard facts in witness’s testimony.
  • Map out perimeter of uncertainty in witness’s testimony, i.e. outside of the hard facts.
  • Explore the perimeter of uncertainty and elicit a lot of “don’t know” or “don’t remember” answers. It will make the testimony appear less reliable.

Use prior inconsistent statements (e.g. in pleadings, answers to interrogatories, affidavits, correspondence, documents) to show witness’s forgetfulness.

Show the witness the statement and get her to agree that there is an inconsistency.

Don’t harp on inconsequential inconsistencies.

Do not ask the witness to explain the inconsistency.

Three reasons why a witness may be dishonest.

  • She has a direct personal interest in the outcome.
  • She has a bias in favour of her side.
  • She is plain malicious. (Rare.)

Stop questioning when you get what you want.

Pin down the witness.

  • Show the witness’s testimony is internally inconsistent.
  • Show the witness’s testimony is inconsistent with what she has said before.
  • Show the witness’s testimony is inconsistent with other evidence.
  • Show the witness’s testimony is plainly unbelievable by sensible people.

Before pinning the witness down, make sure she’s commits herself to the account she’s now giving before showing the inconsistency.

Move to strike out any inadmissible evidence from the record.

This is important for the possible appeal.

Never ask questions you don’t know the answer to.

Never ask “why” or “how” questions. 

Don’t open a can of worms.

Don’t let the witness repeat her direct testimony. 


Three objectives: Salvage, Clarification and Massacre.

Rehabilitate the witness and ask the ‘why’ and ‘how’ questions.

Clarify the evidence if it was confusing.

Massacre opponent by opening further the can of worms.


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