No matter how exciting the next Super Bowl will be, it will lose its impact if you you watch it on a TiVo or DVR re-run.
But why? The plays will be the same, the players will be the same, and the coaches will be the same. Why would you care less about the replay than you would about the live event?
The difference between the two is suspense. When you watch the replay, you already know that the outcome has been decided. It won’t have the same sense of excitement. When you watch something unfold for the first time, however, it still has a sense of urgency and excitement to it. “Will it end safely?” “Will they survive?” “What’s going to happen next?”
In the courtroom, you probably talk in the past tense during opening statements and direct examination because you’re describing events that have already happened and reached finality. You already know the conclusion – but your jury doesn’t. This is the first time they’ve heard about the events. If you want to bring certain areas of your questioning to life, you need to switch your language to the present tense. By switching to the present tense, you’ll help your jury feel that things are happening right now.
The first opportunity you’ll have to use the present tense technique is during opening statement. To get the full effect, read this sample opening statement aloud:
“You’re standing on the corner of Indiantown Road and Central Boulevard, next to the Mobil station. It is very early Tuesday morning – almost 3 o’clock in the morning. To your left, stopped at a red light, sits Officer Ron Jones, a sixteen year veteran of the Jupiter police department. In a few moments, his life will be changed forever.
“Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red. Officer Jones begins moving forward, accelerating at a regular pace. That’s when you see the Ford Expedition driving eastbound. The driver of that large Expedition doesn’t stop for the red light. He doesn’t slow down. He drives into the intersection at approximately 65 miles per hour – nearly 20 miles per hour faster than the speed limit sign to your right.
“Officer Jones doesn’t have a chance to avoid the oncoming SUV. The front left corner of the Expedition slams into the passenger side of his patrol car. You hear the sound of metal slamming into metal. The car spins completely around – a 360 degree turn. Shattered glass flies in all directions. Finally, both vehicles run out of energy and come to a complete stop.
“Approaching the driver of the Expedition, the first thing you notice is the strong odor of alcohol on his breath…
“Ladies and gentlemen of the jury, the driver of that Expedition is seated here in this courtroom – he is the defendant, Oscar Caswell. On October 13, 2004, he was driving while under the influence of alcohol. He struck and crippled Ofc. Ron Jones. Today we will prove that he committed the crime of DUI – Serious Bodily Injury.”
Did you feel that all of the events were happening right now? If so, it’s because every sentence you read was phrased in the present tense:
- “Overhead, you see the eastbound lights on Indiantown Road change from green… to yellow… to red.”
- “The front left corner of the Expedition slams into the passenger side of his patrol car.”
- “You hear the sound of metal slamming into metal.”
Here’s a quick practice point you can immediately integrate into your opening statements: Read through your opening statement draft and look for any phrases written in the past tense. Once you’ve identified any past tense verbsm shift the language to the present tense so that the events are happening right now. Put the jurors in the scene. Take them there. Let them watch the action unfold. Your jury will perk up and pay more attention.
Using present tense language isn’t limited to the parts of trial when you’re doing all the talking. You can also use the present tense during direct examination. By asking questions in the present tense, your witnesses will answer in the present tense as well, breathing more life into their testimony.
Q. “Officer, which direction is that blue car driving?”
Q. “How fast is he driving now?”
Q. “He swerves towards your car – what do you do now?“
Don’t phrase every question in the present tense – that’s the same as highlighting every word on a page. If you overuse this technique, you will diminish its power. Instead, use the present tense to highlight the most action packed portions of your direct examination.
Here’s a final practice point for using present tense language to improve your direct examination: Don’t tell the witness you are going to do it – just switch to the present tense when you get to the part of their testimony you want to highlight. Nine times out of ten, the witness will shift their testimony to the present tense and won’t even be aware that they did.