Advocacy and
Litigation Skills
LAD5093
DR. ZULKIFLI HASAN
CONTENTS
CIVIL AND CRIMINAL TRIAL
NATURE OF THE CIVIL TRIAL
NATURE OF THE CRIMINAL TRIAL
PRE--TRIAL STAGES
PRE
PREPARATION FOR TRIAL
THE TRIAL
Nature of the Civil Trial
Private dispute between individuals or entities
Rules of Procedure takes effect once legal
proceedings have commenced
Remedy is the ultimate purpose of the process
Time limits : S 6 the Limitation Act 1953
Exception S2 the Public Authorities Protection Act
1948
Burden of proof: Balance of probabilities
Possible for ADR
Centered on pleadings and disclosure of documents
Nature of the Criminal Trial
Between the society and the accused
Criminal procedure
Burden of proof: Beyond Reasonable doubt
Rules of criminal procedure operate even before
a person charged with an offence.
No pleadings
Issues are disclosed by the charge
PP is vested with the power to direct criminal
prosecution
Pre
Pre--Trial Civil Process
Pre
Pre--action considerations
1. Wtr litigation is the right course of action
2. Is there a cause of action?
3. Remedies available
4. Limitation period
5. Jurisdiction
6. Who to make parties to the action
Pre
Pre--Trial Civil Process
1. Originating process: Writ or OS.
2. Service of the writ
3. Pleadings
4. Judgment in default of appearance, service of
pleadings and Setting aside the JID
6. Striking out the writ and pleadings
7. Interlocutory Injunctions: Motion or exex-parte
application.
8. Discovery
Pre
Pre--trial Civil Process
9. Interrogatories
10. Notice to admit facts
11. Payment into court
12. Security for costs
13. Summons for directions
14. Setting down the action for trial
Pre
Pre--Trial Criminal Process
1. Criminal procedure code
2. Jurisdiction of the court
3. PP: control and direction of all criminal
prosecutions
4. Seizable and nonnon-seizable offences
5. Investigations by the police: FIR
6. Arrest: Power, rights of arrested person
7. Bail: Bailable and non
non--bailable offences
8. Search and seizure: Persons and articles
Pre
Pre--Trial Criminal Process
9. Summons and warrant of arrest
10. The charge
11. Mentions
12. Disclosure of documents by the prosecution
13. Interviewing prosecution witness
Preparation for trial
Foundations:Foundations:1. Elements of the legal action or defence;
defence;
2. Facts which support the legal elements of the
action or defence
3. Rules of evidence and procedure
Preparation for Trial
Legal Research
1. Statutes
2. Case law
3. Law commentaries, text book and articles
Preparation for trial
Witness
1. Choice of witness
2. Order of witness
3. preparing the witness for EIC and CE
4. Ensuring the attendance of witness
Preparation for trial
Documents and other materials
1. Agreed and not agreed bundle
2. Evidence of nonnon-witnesses: affidavits
3. Expert’s report
4. Translation of documents
Preparation for trial
Final step
1. Notifying the client and witnesses of the trial
dates
2. Ensuring the appearance of the accused at his
trial
3. Reviewing the law
4. Reviewing the evidence
5. Keeping the client informed of developments
6. Preparing the client.
7. Arranging interpreter
Preparation for trial
8. Bundle of authorities
9. Exchanging lists of authorities
10. notes of evidence
11. Aids for the use of the court.
The Civil Trial
Mode of trial
1. Judge sitting alone
2. The registrar
Addressing the court
Magistrates and Sessions Court Judges: Tuan
Majistret and Tuan Hakim
High Court: Yang Arif
CJ: YAA
Officers of the Ct: Tuan or Puan
Keywords: Your honour,
honour, the learned judge, his
honour,, learned friend
honour
How to address in court?
“May it please your honour,
honour, my name is…. And
I appear for the pt. My learned friend,…..
Appears for the Dt.
Your honour
honour,, I have concluded my opening
address. With your honour’s leave I will now call
my first witness.
Your honour
honour,, it is after 1pm, I was wondering
whether your honour might consider this to be
an appropriate time to adjourn…
Your honour
honour,, I would be grateful if you would
look at para 4 of the SOC.
Mode of Dress
Prescribed dress codes
1. Must robe in all sittings in open court: HC and above:
Suits for men and dresses for women should be of a
darkish colour
colour..
Shirts and blouses should be white, longlong-sleeved and
high to the neck and jacket should be blakc.
blakc.
Shoes should be black or of a pain color
2. Judge in chambers or registrar/ Magistrate and
Sessions court: Jackets should be worn over a white
shirt for men or a white blouse or a dress of a darkish
colour for women.
The Civil Trial
Order of proceedings
The dt elects not to adduce evidence
The pt opens his case and then adduce evidence
The pt closes his case
The dt states his case
The civil trial
The dt elects to adduce evidence
The pt opens his case and then adduce evidence
The dt opens his case and then adduce evidence
The dt closes his case
The pt closes his case in reply.
The civil trial
2 or more dt none of whom elects to adduce
evidence
The pt opens his case and then adduce evidence
The pt closes his case
The 1st dt states his case
The 2nd dt states his case
The civil trial
2 or more dts all of whom elect to adduce
evidence
The pt opens his case and adduces evidence
The 1st dt opens his case and adduces evidence
The 2nd dt opens his case and then adduces evidence
The 1st dt closes his case
The 2nd dt closes his case
The pt closes his case
The civil trial
Exhibits
Every document put in as exhibit must be
marked and labeled with number.
All exhibits are numbered in a consecutive
series.
Flow Chart For Civil Cases
Registration
Mention
Yes
Advice for Settlement
No
Pleading
Hearing
Judgment
The criminal trial
1. Plea: guilty or claim trial
2. Claim trial: commencement of the trial
proper.
3. Case for the prosecution
The accused may submit: no case to answer
4. Case for the defence
Flow Chart For Criminal Cases
Registration
Mention
Yes
Plea Guilty
No
Hearing
Judgment
Opening Speech
Introductory stage “ May it please your honour’
honour’ my name
is… I appear on behalf of the pt, my learned frind..
frind..
Appears on behalf of the dt
dt.”
.”
Cause of Action, material facts ad issues in dispute. “
Your honour
honour,, the pt’s claim is for personal injuries….”
Recounting the facts in the form of story
Opening speech is to a judge not a jury
Stating facts accurately
Anticipating the defence
Points of law
Modes of proof
Opening the defence
Introductory stage : “ Your honour,
honour, the dt
denies that he was negligent as alleged by the pt.
Challenge the evidence
In criminal: to raise reasonable doubt
In civil: to equalize the probabilities
Statement of material points of his case
Evidence in Chief
Adducing evidence in chief by affidavit
Contain the very words of the witness
Compliance with the rule of evidence
Adducing evidence in chief by witness
Examination-inExaminationin-chief
Cross
Cross--examination
Re
Re--examination
Presentation of documents and other exhibits
Eg.
Eg. “Your honour
honour,, may the letter be admitted into
evidence as exhibit no 1”.
Closing Speech
Objectives:
address the ct on the facts which have been adduced
and related points of law.
Crystallizing the theory of the case= EIC, CE, RE.
Structure
Introduction, Referring to the issues in dispute
Addressing the facts and analysing the legal
principles applicable to those facts
Submission on the conclusions
Submission by the pt on the remedies