Every day, in courtrooms across the country, young attorneys are conducting brilliant examinations.
During direct examination, they’re asking questions that grab the factfinder’s attention, paint a vivid picture of the scene, and elicit facts that persuade judges and jurors to believe the witness’s version of events. During cross-examination, they’re pinning witnesses down on inconsistencies, impeaching witnesses’ credibility, and showing jurors why the witnesses’ stories can’t be believed.
Yet, all of these direct and cross-examinations suffer from a tragic flaw.
What’s the tragic flaw in all of their examinations? Regardless of whether it’s the cross-examination of an inconsequential witness, or the direct examination of their star witness, all of their examinations are concluding on a weak note, rather than building to a powerful and persuasive crescendo.
That’s because they all finish in exactly the same way: Just as the direct or cross-examination reaches a crescendo, the lawyers stop and say, “Your Honor, may I have a moment to confer with co-counsel?” Then they walk back to counsel table, speak in hushed tones, announce, “No further questions, your Honor,” and tender the witness to opposing counsel.
Why do these otherwise smart and skilled attorneys ruin their examinations this way?
The reason is because they’re afraid they might miss an important issue or case-winning impeachment point, so they turn to their “spare brain” and ask for help. Even though these conversations almost always sound the same (“Did I miss anything?” “No, good job”) it’s still important to have them, because if you do ever miss an important point, you’ll be able to correct the problem before concluding your examination.
But despite their importance, you don’t want these conversations to be the last thing your jurors remember about your examination. Instead, you want to finish on a high note, so that you can take advantage of the theory of recency during your examination. (Here’s the theory of primacy and recency in a nutshell: In communication, what you hear first and last you’ll tend to remember better than the stuff you hear in the middle.)
To take advantage of recency during your next examination, don’t wait until the very end of your examination to ask for help. Instead, keep a handful of questions on a major topic in reserve before asking to confer with co-counsel. Once you’ve concluded your off-the-record conversation, return to the lectern and hit the witness with your final series of questions. Much like the encore at a concert, this series of questions will be more memorable, because it stands out from the rest of your examination. All that’s left to do is smash a guitar against the witness stand, so that when you walk offstage your jurors will be left with the impression that your examination was a “smashing” success!