Hang ’em with their own words!

We were halfway through the direct examination of my star witness when I asked, “What did you hear Mr. Thomas say?

Even if you got a “D-” in your evidence class, when you saw that question you instinctively thought to yourself, “Objection! Hearsay!” My question called for the most obvious objection in the world, right? That’s why it’ll probably surprise you that my opponent didn’t jump up from his seat to yell “Objection!” In fact, he didn’t say a word. He just sat there and continued taking notes.

Before you ask, no, he hasn’t been disbarred, and no, he’s not an idiot. The reason he didn’t object was because he couldn’t. Mr. Thomas was my opponent’s client, so the statement was an exception to the hearsay rule: Statements of party opponents (or, as it’s more commonly called, “admissions” or “statements against interest.”)

Admissions, especially when they’re caught on tape, are usually the most damaging evidence your jurors will hear. If you’re lucky enough to have a taped admission from your opponent, there are a number of wonderful things you can do with that evidence. For example, let’s say that you’ve got a 30 minute recording of a statement your opponent gave to the police about the crash. How many different ways could you use that recording? The first and most obvious choice would be to play the entire statement for the jury during your case-in-chief. You’d simply call the police officer to the stand, ask him to authenticate the recording, and then hit “PLAY.” Nothing to it, right?

The next way to use the recording is during cross-examination. Normally, when cross-examining witnesses about prior inconsistent statements, you confront them with the prior statement by reading it aloud from the transcript. Imagine how much more powerful your impeachment would be if the jurors heard the inconsistencies from the witness’s own mouth? It would be a lot more difficult to deny the prior statement, wouldn’t it?

Attorney: “You hoped Mr. Lumbergh would be fired, didn’t you?”

Witness: “No, of course not!”

Attorney: “Publishing the audio statement previously admitted into evidence as Defense exhibit #22…”

[Recording of witness’s voice]: “Lumbergh is a twit. If I had my way, they’d fire him, and stick that coffee mug up his you-know-what…”

Another way to use recorded statements is during closing argument, by playing individual snippets of testimony back-to-back so the jury can compare and contrast the statements:

Attorney: “The day after the murder, John Jones said that he had been home the entire evening. Remember his statement to Ofc. Smith?”

Recording of Jones’ statement: “Dude, I was home all night, I wouldn’t lie to you about that. I swear I was home the entire night. I never left the house.”

Attorney: But the very next day, when he was interviewed again, he made a very different statement, remember?

Recording of Jones’s statement: “I left the house around midnight and went to Krystal’s for some mini-burgers. I was only gone for like 45 minutes or so.”

Reel to reel recorderIn the old days, if you were lucky enough to have a recorded admission you wanted to play in court, the only easy way to do it was to bring your handy-dandy cassette recorder and play the entire statement. But the problem with playing the entire statement is that the recording rarely consists solely of statements against interest. Usually, recorded statements also include lots of self-serving hearsay and irrelevant comments. Out of the entire 30 minutes worth of “admissions,” you may want the jurors to only focus on less than a minute or two worth of testimony.

Back then, if there were any parts you needed to skip (such as suppressed statements) or any parts you wanted to highlight, you’d be stuck hitting the fast-forward button and keeping your eyes on the tape counter until you found what you were looking for. At best, it took too much time to fast-forward to the appropriate spot. At worst, your presentation became a comedy of errors as you fumbled and bumbled with the fast-forward and rewind buttons until anti-climatically reaching your impeachment material.

Luckily, nowadays, you’ve got digital technology at your fingertips which dramatically improves the ease of presenting recorded statements. And the best thing is, you don’t need to spend a fortune on professional editing equipment or fancy software to get the benefits of audio editing. With the help of a free program called Audacity (available for both Mac and PC at http://audacity.sourceforge.net/), you’ve got an easy way to edit audio statements on your laptop. All you need is a digital recording of the witness’s original statement and some basic knowledge about how to cut and paste on a computer. Once you install the program, you’ll see a screen that looks something like this:

Audacity screen capture

The program is pretty easy to use, and they’ve got full documentation on their site. Once you or your assistant learn how to use it, you can do some amazing things with audio statements. For example, here are some of the different ways you can use this program:

Redacting an audio statement to remove irrelevant sections. No longer do you have to worry about the jury hearing irrelevant, suppressed, or improper comments. Simply highlight the improper comment and click <DELETE>. Presto! The statement will be removed, and you can now save the file as a new audio recording.

Extracting admissions from longer statements. Let’s say you don’t want to replay the entire witness statement, but only want to replay a small snippet. Audacity makes it easy to extract those admissions from extended audio recordings. Here’s all you’d need to do:

  1. Go to <PROJECT> and click <IMPORT AUDIO>.
  2. Choose the audio recording you want to import.
  3. Use the selection tool to highlight the audio segment you want to export. (It’s almost the same as highlighting a paragraph in Word and clicking “Copy”)
  4. Click <FILE> and scroll down to <EXPORT SELECTION AS WAV>
  5. Choose a filename for your recording. (It’s easier to retrieve the correct statement during trial if you use descriptive titles for each file, such as “The Light was Red” or “The Light was Green”).
  6. Click “SAVE”

That’s it! Now you have a standalone .WAV file of the admission that you can play on any computer. Be creative and think of how you could use those admissions. Could you use them during settlement negotiations by burning a “Greatest Hits” CD for your opponent? (“Here are the six times during depositions where C.E.O. admits to liability.”) Or import the statements to your iTunes playlist, so you can quickly click on the correct statement to impeach witnesses during cross-examination?

Maybe you want to use the statements during closing to compare and contrast what different witnesses said about the same events: “What was their understanding of the performance metrics for promotions? Let’s hear what the CEO, Jon Smith, had to say [PLAY CLIP #1]. But the CFO, Jane Smith, said something entirely different [PLAY CLIP #2].”

Statements of party opponents, especially recorded ones, can be some of the most powerful evidence you’ll ever admit. But just as with every other exhibit or testimony that you’ll ever offer into evidence, it’s not enough to simply understand what you should show to the jury. To get the most out of your evidence, you’ll also need to master knowing when you should admit it and how you should publish it. Learn how to use an audio editing program like Audacity to extract your admissions, and you’ll be able to play them to maximum effect for your jury.

Adding Impact to Opening Statements

Every single second of every single moment of his opening statement was filled with the sound of his voice which when you think back upon it you have to admit you were kind of amazed because there wasn’t a single comma or period or pause I mean did this guy even need to breathe it didn’t seem like it because he just kept going and going and going without regard to oxygen or jury expectations or even the court reporter it was almost as if he was afraid that the thought of pausing would let someone else start talking and that would simply be unacceptable for him so rather than pausing for even a moment and letting you think about what he was saying he just kept talking and talking and…

Unfortunately, many trial lawyers’ opening statements and closing arguments seem to feel like this.

Pause for a second!They either have such a poor understanding of the pause’s importance of pausing or don’t know how to effectively pause that you’re tempted to say, “Whoa, buddy! Stop! Take a breath before you pass out!” One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

“WHY SHOULD I PAUSE?”
Imagine reading a newspaper without a single comma, period, or paragraph indentation – just word after word after word. How far could you read before losing your train of thought?

An opening statement or closing argument without any pauses feels exactly the same way to your jurors.

Do you want the jury to remember your message? To understand it? Do you want them to take the message into the jury deliberation room, and incorporate it into their verdict? If so, you need to give them a chance to stop and reflect upon what you’re saying. Here are three reasons why you need to effectively pause during your opening statements and closing arguments:

A pause lets us think. Many trial lawyers ask rhetorical questions during closing argument, but then move immediately to their next sentence without pausing. This robs the jury of their chance to think about how that question should shape their verdict or how it might apply to their deliberations. Pausing for a moment lets the audience answer the question and wrap their minds around your message.

A pause helps us feel. During opening statements, you often describe emotional scenes of great pain, fear, or loss. The best trial lawyers describe these moments with such clarity that the jurors feel exactly what happened to the clients and, on their own initiative, place themselves in the clients’ shoes. (Notice that I said, “on their own” — please don’t think I’m encouraging you to make any arguments that violate the Golden Rule!) After describing an emotional scene, give the jurors a moment of silence so that they can absorb its impact and “feel” the same experience.

A pause helps us absorb ideas. Your message travels at the speed of sound. Even in the largest of courtrooms, it travels from your mouth to the jurors’ ears almost instantaneously. But often, it takes a few extra seconds for your message to travel the last few inches from the jurors’ ears to their brains. Pause for a moment, and you’ll give your message enough time to complete its journey.

“WHEN SHOULD I PAUSE?”
There are several opportunities in every opening statement and closing argument where you might consider pausing:

  • After you’ve said something important
  • After you’ve asked the jurors a rhetorical question
  • When you want the jurors to think
  • When you’ve asked the jurors to remember a moment in
    their past or envision a common experience
  • When you hit an emotional moment
  • As a transition between points

Look through the outline of your opening statement or closing argument to find moments where your jurors need to mentally “breathe.” Notate your outline or make a mental note, so that you purposely pause at the appropriate moment.

“HOW DO I EFFECTIVELY PAUSE?”
Even when they purposely pause during their presentations, most trial lawyers underestimate the amount of time that they’ve paused. What seems like an eternity of silence before the jury may, in fact, last only a second or two. Here are three tips for holding your pauses for maximum impact:

Count silently. “One Mississippi, two Mississippi, three Mississippi, four Mississippi…” and then resume.

Look around. Make eye contact with at least three different members of the jury before continuing.

Get uncomfortable. Pause for one second longer than feels comfortable. The pause won’t be nearly as long as you think it is. You’ll feel uncomfortable, but your jurors won’t.

Effective trial lawyers know how to pause at the right moment and hold their pauses long enough to let jurors think, feel or respond appropriately. When you master the skill of pausing in your openings and closings, you’ll enhance the impact of emotional moments in your case and will help your jurors absorb the important issues in your case. It may feel uncomfortable at first, but before long, those pauses will become a natural part of your repertoire, and an essential element of your winning arguments.

How to Develop Powerful Case Themes

Your case theme can have a major impact on the jury. When you develop a powerful case theme, you give the jurors a lens through which they will view the evidence in your case. For example, in a rape case, one side might frame the case as the story of “a controlling man who refused to take ‘No’ for an answer and forcibly raped a young woman” while the other side says the case is about “a woman overcome by remorse and regret after a consensual one night stand.”

Depending on which case theme the jurors adopt, they will start looking for evidence that supports that viewpoint. That’s why it’s so important to invest time developing your themes. The better your theme “hooks” the jurors, the more likely you are to win.

Unfortunately, many trial lawyers never create strong themes for their cases. They know they’re supposed to use themes, but they have no idea how to develop them, or even where to start looking for ideas, and so they never use them. In this article, you’ll discover a great resource for developing case themes.

If you go to the movies on a regular basis, you probably see dozens of movie posters every year advertising the upcoming attractions. Using splashy graphics, powerful images, and the draw of seeing your favorite celebrity, Hollywood does its best to grab your attention, spark your interest, and arouse your desire to go see the movie. In addition to the imagery, however, they also use another powerful technique to promote the movie. That technique is the use of a tagline.

A tagline is simply a short phrase or two that helps explain the movie. A good tagline will resonate with the moviegoer, sticking
in his head even after he walks away from the poster, and subtly push him to go see the movie. Every once in a while, however, someone writes a great tagline, and it jumps to the forefront of our collective conscience. Here are a few examples of great taglines:

  • “In space, no one can hear you scream.” (Alien)
  • “You’ll believe a man can fly.” (Superman)
  • “We are not alone.” (Close Encounters of the Third Kind)

These types of taglines don’t write themselves. Every year, Hollywood spends millions and millions of dollars promoting their films, hiring some of the best copywriters available to develop great taglines. That’s great news for you, because you can develop some of these taglines into incredibly powerful case themes, without having to spend millions of dollars developing them.

In this article, you’ll find dozens of different taglines taken from movie posters and promotional pieces. Read through them (or,
better yet, read them aloud) while thinking about your case. They’re not arranged in any particular order, and they’re not
necessarily the best (or the worst) movies ever created, but they’ll serve as a great jumping-off point for writing your own themes.

  • “The first casualty of war is innocence.” (Platoon)
  • “With great power comes great responsibility.” (Spiderman)
  • “Revenge is a dish best served cold.” (Kill Bill)
  • “Get ready to root for the bad guy.” (Payback)
  • “If Nancy doesn’t wake up screaming, she won’t wake up at all.” (Nightmare on Elm St.)
  • “Being the adventures of a young man whose principal interests are rape, ultra-violence and Beethoven.” (A Clockwork Orange)
  • “If you can’t be famous… Be infamous.” (Chicago)
  • “His whole life was a million-to-one shot.” (Rocky)
  • “His triumph changed the world forever.” (Gandhi)
  • “This time he’s fighting for his life.” (First Blood)
  • “He’s having the worst day of his life… over, and over…” (Groundhog Day)
  • “It was the Deltas against the rules… the rules lost!” (Animal House)
  • “There’s everything you’ve ever known about adventure, and then there’s The Abyss.” (The Abyss)
  • “The snobs against the slobs.” (Caddyshack)
  • “Every man dies. Not every man really lives.” (Braveheart)
  • “If adventure has a name… It must be Indiana Jones.” (Indiana Jones and the Temple of Doom)
  • “Get in. Get out. Get even.” (The Italian Job)
  • “Just because they serve you doesn’t mean they like you.” (Clerks)
  • “Somewhere, somehow, someone’s going to pay.” (Commando) [Feel the alliteration? Can you use similar repetitive word sounds?]
  • “The truth is out there.” (The X-Files)
  • “There are degrees of truth.” (Basic)
  • “Lie. Cheat. Steal. Rinse. Repeat.” (Matchstick Men)
  • “Four friends made a mistake that changed their lives forever.” (Sleepers)
    “When friendship runs deeper than blood.” (Sleepers)
  • “Fifty million people watched, but no one saw a thing.” (Quiz Show)
  • “When he said ‘I do,’ he never said what he did.” (True Lies)
  • “Fear can hold you prisoner. Hope can set you free.” (Shawshank Redemption)
  • “Seen from a distance, it’s perfect.” (Life as a House)
  • “Not that it matters, but most of it is true.” (Butch Cassidy and the Sundance Kid)
  • “Their only crime was curiosity.” (Hackers)
  • “His story will touch you, even though he can’t.” (Edward Scissorhands)
  • “There’s a good reason some talent remains undiscovered.” (Waiting for Guffman)
  • “Everybody loved him… Everybody disappeared.” (Jerry Maguire)
  • “He was never in time for his classes… He wasn’t in time for his dinner… Then one day he wasn’t in his time at all.”
    (Back to the Future) [Do you feel the power of the “3-peat”? Is there a phrase you could repeat occasionally throughout your opening?]
  • “Don’t answer the phone. Don’t open the door. Don’t try to escape.” (Scream)
  • “No one stays at the top forever.” (Casino)
  • “It’s a hot summer. Ned Racine is waiting for something special to happen. And when it does… He won’t be ready
    for the consequences.” (Body Heat)
  • “Freedom is not given. It is our right at birth. But there are some moments when it must be taken.” (Amistad)
  • “United by hate, divided by truth.” (American History X)
  • “An outrageous story of greed, lust and vanity in America.” (Bonfire of the Vanities)
  • In the heat of passion two things can happen. The second is murder.” (The Postman Always Rings Twice)
  • “Every dream has a price.” (Wall St.)
  • “It’s not who he is underneath but what he does that defines him.” (Batman Begins)
  • “He didn’t come looking for trouble, but trouble came looking for him.” (El Mariachi)
  • “He’s out to prove he’s got nothing to prove.” (Napoleon Dynamite)

Here are some more taglines pulled from lawyer movies:

  • “The truth can be adjusted.” (Michael Clayton)
  • “Justice has its price.” (A Civil Action)
  • “Sooner or later a man who wears two faces forgets which one is real.” (Primal Fear)
  • “There have been many courtroom dramas that have glorified The Great American Legal System. This is not one of them.” (My Cousin Vinny)
  • “Power can be murder to resist.” (The Firm)
    “They made him an offer he should have refused.” (The Firm)
  • “A district attorney out for a conviction. A new lawyer out of her league. A young boy who knew too much.”
    (The Client)
  • “No one would take on his case… until one man was willing to take on the system.” (Philadelphia)
  • “In the heart of the nation’s capital, in a courthouse of the U.S. government, one man will stop at nothing to keep his honor, and one will stop at nothing to find the truth.” (A Few Good Men)
  • “This man needs the best lawyer in town. But the problem is… he is the best lawyer in town.” (…And Justice for
    All)
  • “Sometimes it’s dangerous to presume.” (Presumed Innocent)
    “Some people would kill for love.” (Presumed Innocent)
  • “The story of what four men did to a girl… And what the town did to them!” (Town Without Pity)
  • “Some people will do anything for money.” (The Fortune Cookie)
    “Some people will do anything for $249,000.92.” (The Fortune Cookie)
    [The first phrase is a common theme that all of your jurors have eard before, but the second phrase is more specific. Does it feel more powerful hearing the actual number?]
  • “Nothing matters more than winning. Not even what you believe in.” (The Candidate)
  • “There are two sides of this mystery. Murder…And Passion.” (Jagged Edge)
  • “An act of love, or an act of murder?” (Body of Evidence)
    “This is the murder weapon. Her name is Rebecca.” (Body of Evidence)
  • “They locked him up. They crushed his spirit. But they couldn’t hide the truth.” (Murder in the First)
  • “You may not like what he does, but are you prepared to give up his right to do it?” (People vs. Larry Flynt)
  • “In a world of lies, nothing is more dangerous than the Truth.” (Shadow of Doubt)
  • “The first scream was for help. The second is for justice.” (The Accused)
  • “Suppose you picked up this morning’s newspaper and your life was a front page headline… And everything they said was accurate… But none of it was true.” (Absence of Malice)[This is obviously an improper Golden Rule argument, but you could re-write it to focus the attention on your client]
  • “On the other side of drinks, dinner and a one night stand, lies a terrifying love story.” (Fatal Attraction)
  • “Trials are too important to be decided by juries.” (The Runaway Jury)
    [PLEASE don’t use this one in court!!!]

Taglines, catch-phrases, and themes have a powerful persuasive effect in the courtroom. Invest some time developing your case theme, and then try it out in public. Don’t just tell your colleagues and assistants about the theme. Share the theme with your friends and family. Ask the checkout clerk at the grocery store what she thinks about it. Ask your mechanic if the theme makes sense to him. Tell it to your bartender or the person on the barstool next to you. The important point is to refine your theme until it captures the essence of your case, giving the jurors a compelling lens through which to view the trial. Continue refining your theme, and you’ll soon become the most persuasive trial lawyer in the courtroom!