advocacy is that you never have a trial run, and you never have a second attempt. A re-trail is not a second attempt, because the witnesses are prepared for the old questions ; and if you want to catch them off their guard, you have to think of new ones. This is difficult; and most of my colleagues I think would agree that re-trials tend to be a ritual performance. Because one has to try to ask the correct questions at the first attempt, one has to rely heavily upon professional instinct, which may not be as reliable a guide as one would like to think. The danger is that out of caution one will fall back on conventional tactics of attack and defence. At best this is smart but uninspired; at worst the witness is prepared with his answers and you get nowhere.
It may be that your initial judgment miscalculates, and the victim frankly admits that he was out to get the accused. This is a very damaging admission; but of course your technique for dealing with him afterwards must promptly change. So long as a witness speaks the truth, (unless you bully), you must rely on tentatively pressing him to make the most damaging admissions possible. But you must not press him too far, or you are liable metaphorically speaking to get a four-penny one!
I have tried in this illustration to give the reader a picture of how one may use one's vision of a man's character to reach a decision as to what to do in a very practical situation. I use the word “vision”, because I want to stress that the decision as to what question to ask first is not reached by analysis. The situation is quite different from interviewing a man for a job; then you ask searching questions in the hope that the candidate will reveal directly or indirectly something of himself. In Court all you have are the answers of the witness in his examination-in-chief. You have to make up your mind how to handle him on that alone. Naturally intellect plays a part in working out how you will exploit success, if you get the answer you hope for. But the actual decision about that first question is an instinctive judgment of character, in…