Sticking Thoughts in Your Jurors’ Brains

Two hunters are out in the woods when one of them collapses.  He doesn’t seem to be breathing and his eyes are glazed.  The other guy whips out his phone and calls the emergency services.  He gasps, “My friend is dead!  What can I do?”

The operator says “Calm down.  I can help.  First, let’s make sure he’s dead.”

There is a silence, then two gunshots are heard.  Back on the phone, the guy says “OK, now what?”

The first time you hear that joke, it’s hilarious.  The second time, it’s still pretty funny.  By the third time, however, it starts to lose its luster.  That’s the danger of repetition.  Yet despite the danger, nearly every trial lawyer I’ve ever met lives by some variation of this theme: “You’ve got to repeat your most important fact three times before the jurors will remember it.”

Indeed, it’s true:

Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.

Every trial lawyer knows that repeating information makes it easier for jurors to remember.  However, experienced trial lawyers also know that just because something is important once, that doesn’t necessarily mean anybody wants to hear it again. 

That’s the paradox of repetition.  Repetition helps us remember, but it can also bore us to sleep.  As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep.  Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.

Andy Warhol's Marilyn MonroeFirst, modify each repetition.  Unmodified repetition is a surefire cure for insomnia.  The repeated information needs to be different than the first version.  You can’t simply repeat it, because that’s not only boring, it’s condescending.   Basically, unmodified repetition tells your jurors, “You dummies probably didn’t get this the first time, so I’m forced to repeat it for you.”

To avoid that problem, make sure that your second iteration differs from the first.  For example, if you made your first point with oral direct examination, consider making your second repetition with a different medium, such as a demonstrative aid, video testimony, or a physical exhibit.

Second, repetitions need to get better.  Each version should increase in strength.  Start with your weakest iteration.  Each successive repetition should be stronger, otherwise we lose our interest.  For example, you could start with the verbal testimony, then add the photo, then add the demonstrative exhibit.  Or you could start with the tamest description, and progress towards the strongest and most visceral description.  You want to increase the intensity.  If you start with a 10, your next witness can’t be a 9, because even though normally a 9 might be great, it doesn’t work in this situation.

It’s like watching Raiders of the Lost Ark, and then following it up with a double-feature showing of Indiana Jones and the Temple of Doom and then Indiana Jones and the Last Crusade.  They’re both enjoyable movies, but they’re a bit of a letdown after watching the original.  If you’re gonna repeat something, the second version needs to be more memorable.  Think Godfather II and The Empire Strikes Back, rather than Jaws II and Rocky II.

Third, keep it interesting. That principle is a little vague, but important nonetheless.  You can repeat information all day long, just so long as you keep the jury’s interest. But the moment it stops being interesting, you’ll lose them. Take the Rocky franchise for example.  All of the movies are basically the same (Rocky faces unbeatable opponent, Rocky does montage training sequence to the best workout music ever written, Rocky fights the unbeatable opponent, “Yo, Adrian!”), yet despite the repetitive nature of the scripts, millions of people enjoyed all of the films.  (Well, except for Rocky V — that one really sucked).

The same thing is true with Toy Story II, Spiderman III, and the James Bond franchise.  Not only don’t audiences mind the repetition, they actually enjoy it, because each new version is interestingYour jurors feel the same way.  They don’t mind hearing the same information a second or third time, just so long as you hold their attention. 

The importance of repetition during trial can’t be overstated.  Jurors may miss an important point the first time it’s presented, so it’s usually essential to repeat the point a second or third time.  However, you can’t afford to lose the jury’s attention by mindlessly repeating the same information over and over again.  But if you vary how you repeat the information, improve each repetition, and keep things interesting, your jurors will remember all of the important details in your case.

Bringing a Missing Witness to Life

Have you ever had to present a deposition or interview transcript to the jury?  How did you do it?  Some time ago, I was asked to help a friend present the transcript of an interview in a murder case he was prosecuting.  There were just a few problems with presenting the interview to the jury:

  • The interview was conducted in Spanish, not English, so he couldn’t play the original audio recording
  • Not everything in the interview was relevant to the case, so the jury would only be allowed to hear a limited portion of the interview.
  • Our rules of evidence place limitations on the admissibility of transcripts in criminal trials, so he couldn’t just admit a redacted copy of the transcript and ask the jurors to read it.
  • He resolved those problems by asking the two detectives to re-read their portions of the interview, and asking me to read the defendant’s statements.  Between the three of us, we tried to take the jurors back to the interview room, so they could hear exactly what was said.  Here are five tips I learned to help you present deposition or interview transcripts more effectively:

    1. Ask someone else to help you.  If he had read all three parts of the transcript himself, he would have run the risk of either confusing the jurors or boring them to tears.  By asking the three of us to read our individual parts, he eliminated the risk of the jurors confusing who said what, and made it more interesting for the jurors.

    2. Highlight the witness’s lines.  By taking a highlighter to all of my lines, I could easily see what I was supposed to read next.  That’s especially important when you’re reading from a back-and-forth exchange.  Highlighting all of the witness’s lines ensures they won’t miss any lines and also ensures there won’t be any awkward pauses while you wait for your reader to realize he’s supposed to be speaking.

    3. Clearly mark any stopping points.  If you’re only reading portions of the transcript, use the highlighter or a red marker to draw a line across the entire page where they’re supposed to stop.  When witnesses are involved in a quick back-and-forth exchange, they can get caught up with reading their lines, and miss the small “Stop!” marks written in the margins.  Don’t risk the chance of your witness reading irrelevant or inadmissible testimony to the jury.  Clearly and boldly mark where they should stop.

    4. Tab the appropriate pages.  Just like on the radio, you want to prevent the courtroom from filling with “dead air.”  When your witness is flipping through pages of the transcript, trying to find what portion he’s supposed to read next, it breaks the flow of your presentation and gives the jurors’ minds an opportunity to wander away.  Prevent “dead air” by tabbing the witness’s transcript, so he clearly understands which portion to flip to next.  Combined with the highlighting, this little bit of extra effort will make it much easier for your witness to smoothly present the transcript.

    5. Ask your “reader” to read the transcript beforehand.  By reading the transcript in advance, they’ll note any grammatical difficulties or pronunciation difficulties they might encounter.  You want to make sure that they can pronounce the words and capture the flow of the language.  Think about reading any of Shakespeare’s works aloud – you wouldn’t want to pick up the text and just “wing it.”  By reading the document in advance, your reader will discover if there are any words they can’t quite wrap their mouth around.  They’ll be able to fix the problem beforehand, so that your courtroom presentation flows smoothly.

    Ideally, if you know a witness won’t be available, you’ll want to set up a multi-camera recording of his deposition so that the jury can hear exactly what the witness said and see exactly how he said it.  However, when those recording set-ups are unfeasible or too expensive, enlist the help of a friend to read the transcript to the jury.  Done well, the results can be almost as effective as taking the jurors back to the scene.

    Avoiding Gunfights During Cross-Examination

    If you were in the police academy, one of the most important things you would learn is how to keep safe when you’re out on the street.  To stay safe, you’d want to learn how to prevent verbal confrontations from escalating into physical fights, and how to prevent physical fights from escalating into knifefights or gunfights.  As it turns out, one of the easiest ways to prevent situations from escalating to the next level is by keeping your emotional level lower than the perp’s emotional level.  (One of the other things you learn in police academy is how to use cool words like “perp.”)

    For simplicity’s sake, let’s assume that the scale for emotional levels runs between 0 and 10.  At level 0, you’ve got the Dalai Lama on quaaludes.  You’re calm, cool, and collected, and nothing in the world can upset you.  At the other end of the spectrum, imagine Bill O’Reilly and Keith Olberman battling for control of the country’s political mindset in a winner-takes-all steel cage death match battle royale.  At this level, you’re angry that you can’t get angrier — everything upsets you.

    So let’s say that you’re a rookie cop out on the street dealing with someone at level 5.  To prevent the situation from becoming more violent, you’d want to keep your emotional level lower than theirs, preferably at least 2 levels lower.  By talking slower, being quieter, and acting calmer than the other person, you can hopefully defuse the situation by bringing the other person’s emotional level down to yours.

    But what if you decided to approach the person on the same emotional level, or even worse, at a higher level?  When you’re at a more intense level, then the other person will usually rise to the challenge and increase their level, too.  For example, if the other person is calm, but you start yelling at them, they’ll ratchet up their emotional level and start yelling at you.  In return, you’ll get angrier, and start yelling louder or more profanely.  Before long, if one of you doesn’t step back, you’ll find yourself in a physical confrontation (or worse).

    That’s why good police officers are able to avoid physical confrontations, because they know how to keep themselves “below” the other person’s level, and ensure that the situation is resolved peacefully.

    But here’s the funny thing about police officers…

    Despite all of their training about de-escalating confrontations with people out in the streets and avoiding violence by keeping their emotional level below the antagonist’s level, many of them seem to do the exact opposite when they walk into a courtroom!

    Have you ever witnessed a defense attorney cross-examine a police officer?  It often sounds like this:

    Defense lawyer: Good morning, officer.  I’d like to ask you some questions about your report.

    Police officer: !@%$#%@ you, I want to punch you in the face.

    Okay, that’s a bit of an exaggeration.  But if you’ve spent much time in the courtroom, chances are you’ve seen a witness fall apart during cross-examination by letting their emotions get the best of them.  It’s not just police officers — expert witnesses, corporate officers, lay witnesses — anyone can lose their cool in the courtroom.

    For example, here’s the deposition of a CEO who got a little upset during his deposition:

    (Ultimately, he and his lawyer were fined $29,000 for his actions during the deposition.)

    Unfortunately, when your witnesses lose their temper during cross-examination, jurors lose respect for the witness.  In an instant, your witness can move from “trusted observer” to “biased jerk,” forcing the jury to discount everything he says.  (It’s not just witnesses, either.  If you lose your temper with a witness, even when the witness deserves it, you’ll sacrifice your credibility with the jury.)

    So how can you prevent emotions from taking control in the courtroom?  How do you ensure that your witnesses come out on top by keeping their emotional level lower than the cross-examiner’s?

    The first thing to do is to help your witnesses understand how untrustworthy they look when they lose their cool.  Videotape the witnesses during your mock cross-examinations back in the office, and make them watch the videotape.  Often, nothing needs to be said.  For many witnesses, this is the first time they’ve ever seen themselves on video, and once they see how undignified they look when they get upset, they’ll understand why you want them to monitor their emotional level.

    Once they’ve seen how they look when they get upset, the next step is to help them understand what is triggering their anger.  Is it a specific factual topic?  The examiner’s tone?  An implied (or explicit) accusation?  By identifying the triggers, you’ll prepare your witness to anticipate when they’ll get upset during cross-examination, and help them avoid the confrontation.

    You’ll also want to teach your witness which tactics your opponent uses to get under people’s skin and trigger their anger.  Many attorneys are one trick ponies.  Rather than using solid cross-examination skills, these lawyers will rely on raising their voice, rapid-fire questions, attacking integrity, misstating the witness’s name or rank, forcing the witness into “I don’t know” responses, staring down the witness, or other “tricks” that anger the witness.  If your witness is prepared, they’ll know to expect the lawyer’s trick so they won’t be taken by surprise and can maintain their calm exterior.

    Finally, you’ll want to prepare your witnesses for what they should do when they recognize that they’re starting to lose their cool.  Remind them to slow down, take a breath, and pause before answering.  Whatever it takes, they need to keep their emotional level lower than the cross-examiner’s.  If they can’t, the jury will ignore what they say, and their testimony will be worthless.