Not all testimony is created equal. Regardless of whether your witness testifies for minutes, hours, or days, you probably won’t need the jurors to remember everything that he says. Sometimes, a single word or phrase may be all that’s needed to turn the tide of the entire trial. Usually, however, there will be only a handful of images that you need the jurors to retain. If you can get the jurors to remember (and believe) those essential highlights, your witness examinations will be a success.
Unfortunately, jurors sometimes miss those essential highlights of testimony. When they miss those highlights, it’s the same as if your witness never testified. Jurors aren’t robots programmed to pay full attention to your case, so their attention levels rise and fall throughout the day, they get distracted by other sights and sounds inside the courtroom, and their minds wander. If you expect jurors to remember (and believe) those testimonial highlights, you need to ensure that they actually hear the testimony. One of the best ways to accomplish that is through the use of repetition.
For example, let’s imagine that your client was caught up in the middle of a bar fight. He’s accused of hitting someone with a beer bottle, knocking him unconscious. The other man is 6’4″ tall and weighs 220 pounds. Your client (5’2″, 140 pounds), admits to hitting the man, but claims that he was acting in self-defense.
During direct examination, your first witness testifies, “As soon as I heard people yelling, I looked over and saw the big guy pounding on the little guy.”
You’re probably thinking to yourself, “Wouldn’t it be great if I could repeat that phrase a few times to guarantee that the jury clearly sees this image?” After all, the image of “big guy pounding on the little guy” goes a long way towards helping establish the validity of your self-defense claim. By repeating the phrase, you can be assured that even if a juror misses the phrase the first time it’s mentioned, he’ll be sure to hear it the second or third time it’s repeated.
But how will you get the witness to repeat the phrase?
You could tell the witness, “Please repeat your answer so we guarantee that the jury hears it,” but your opponent will jump from her seat and exclaim, “Objection! Asked and Answered!”
You could feign deafness and say, “I didn’t quite hear your answer, please repeat it for the jury,” but not only will you draw the same objection, your credibility will also take a negative hit.
Even if you rephrase the question (“Who was pounding on who?”) or ask the witness to repeat just a part of the phrase (“Who was pounding on the little guy?”) your opponent will still successfully object to the repetition.
So how can you repeat the phrase without drawing “Asked and Answered” objections from your opponent?
The answer is simple. You’re not going to repeat your question, and you’re not going to ask the witness to repeat the answer. Instead, you’re going to ask three brand new questions, asking for three new pieces of information. Using these new questions, the jury will hear your important phrase not once, not twice, but three times.
Here’s how it works. First, identify the phrase that you want the jury to hear again. In this example, the phrase you want repeated would be, “Big guy pounding on the little guy.”
Next, think of three new pieces of information you can ask about. Why three? Because any more and it feels like overkill, any less and it feels incomplete. The information you’re seeking doesn’t need to be very important, it just needs to be temporally related to the event. Here are some examples to get you started:
- “Where were you standing?”
- “Where were they standing?”
- “Who else was there?”
- “What were you doing beforehand?”
- “What did you do afterwards?”
- “How did people react?”
- “What did you hear?”
Finally, “loop” your valuable phrase into each of the questions:
- “Where were you standing when you saw the big guy pounding on the little guy?”
- “Who else was in the room where you saw the big guy pounding on the little guy?”
- “What did you do after you saw the big guy pounding on the little guy?”
Because these questions seek new information, they’re not objectionable. The new information may not be dramatically important, but that’s not the point. You’re not asking the questions because you want the jurors to focus on where the witness was standing or who was standing nearby — you’re asking the questions because you want to burn the image of “big guy pounding on the little guy” into the jurors’ minds.
This technique can be very effective for highlighting important testimony, just be careful not to overuse it. Just as a highlighter can help you identify the important portions of a textbook, it loses its effectiveness when you highlight every word on the page. Save this technique to highlight the two or three most important portions of your witness’s testimony, and you’ll ensure that the jurors remember what you need them to remember.