CHAPTER 3 "COMMUNICATION TECHNIQUES"
I. THE IMPORTANCE OF EFFECTIVE COMMUNICATION
Every movement and sound you make in a courtroom can communicate a different message to the fact-finder. Perhaps jurors will determine that you are prepared, professional, and intelligent. Perhaps they will listen intently to your every word and ponder your arguments. But what if they do not? What if the judge or jury perceives you to be tired, overly anxious, bored, nervous, unconvinced, uninteresting and, ultimately, not persuasive? You can make sure that your message is heard by communicating effectively at trial.
To begin, every message you send during trial should be imbued with confidence and integrity, the key attributes of a good litigator.
Think of yourself as a walking billboard with a different message appearing each time you move and speak. What message appears when you talk softly in a courtroom? “I’m sorry, I’m nervous.” How about when you mumble? “I’m sorry, I’m not very sure about what I’m saying.” How about when you slouch in your seat or walk tentatively from one side of the courtroom to the other? “I’m sorry, I probably don’t belong here.” Get the point? When you act and speak without confidence, you are apologizing to everyone around you. Do not apologize in the courtroom; there is no reason for it, no one enjoys watching it, and it only interferes with your ability to persuade the fact-finder.
You can demonstrate confidence during trial by knowing and operating within the rules of evidence, procedure, and ethics, by understanding how the judge wants the trial to proceed, and by demonstrating your mastery of the facts of the case. A confident lawyer enters the courtroom knowing what he wants to accomplish, why he wants to accomplish it, and how he intends to do it; he has prepared his examinations, is ready to call and cross examine witnesses, and can argue evidentiary objections at any time. A confident lawyer is also well organized and well prepared; he knows where his exhibits can be found, how they are to be numbered, and which witnesses will introduce them. And, finally, a confident lawyer follows the rules of the trial; he understands which documents can be used to impeach which witnesses, he has chosen his objections ahead of time, and he knows how to explain his objections to the court.
As you can see, competence leads to confidence – and confidence is apparent to the fact-finder. Unpreparedness, incompetence, and disorganization lead to insecurity, which is also obvious and can be damning at trial.
The word “integrity” comes from the Latin integritas, meaning wholeness or soundness, complete in itself. Thus, our concept of integrity has come to mean unsullied, unbroken, and undivided moral principle. In other words, it is a quality of the whole and honest lawyer.
The most important thing you can do to demonstrate integrity in the courtroom is to follow the court’s ethical and procedural rules. Good lawyers, lawyers with integrity, do not break these rules or even attempt to dance around them. Likewise, an honest lawyer does not overstate her case, does not promise evidence that she cannot deliver, and does not make arguments that she cannot support.
Demonstrating integrity also requires that you treat everyone in the courtroom with respect. This includes your opponent, the witnesses, and especially the judge. You do not have to like them, their words, or their actions, but you should respect them by not interrupting them without good cause and by giving them your full attention when it is requested. Do not use bullying tactics to intimidate your opponent or her witnesses. Do not attempt to distract the fact-finder during your opponent’s case. And do not attempt to disrupt opposing counsel’s legitimate presentation or use facial expressions, grimaces, or gestures to “argue” your case while other arguments or examinations are proceeding. Each time you fail to show respect to others at trial, your credibility weakens, and with it your persuasiveness.
You can also demonstrate integrity by learning to lose gracefully. Without likening a trial to a war, remember that you can lose a few battles and still prevail. So, when a witness does not testify exactly the way you predicted, or an exhibit is not allowed into evidence, do not take it out on others or display your frustration – let go and move ahead. Being a good loser has the added benefit of not highlighting your loss for the trier of fact.
A final word about integrity: it cannot be “faked”. It is not a face or costume that you put on and take off. If you are truly committed to trying a case with integrity, it will show; if you are not, the trier of fact will see that as well.
II. NONVERBAL AND VERBAL COMMUNICATION
There are two kinds of communication: “nonverbal” and “verbal”. Nonverbal communication refers to vocal variation, body movement, facial expression, use of space, physical appearance, use of time, and physical context, among other factors. Verbal communication refers to all vocal and written language. Below you will find verbal and nonverbal techniques that, if followed, will make you a more persuasive advocate.
A. Nonverbal Communication Techniques
You have undoubtedly heard the expression, “actions speak louder than words”. This sentiment holds true in trials as well; nonverbal messages are often more believable than verbal messages. Thus, you should be constantly conscious of the nonverbal messages you send during a mock trial.
1. Stay in role at all times
During trial, assume that the trier of fact is watching your every move and facial expression.
To make a positive first impression, pay particular attention to your physical appearance, including your grooming and dress. Your posture and voice may also determine how you are perceived. As a litigator, you are a professional advocate who has agreed to represent your client to the best of your ability; slouching and mumbling will not do. Each time you stand, stand fully erect. Each time you speak, speak loud enough so that every person in the courtroom can hear you. In short, demonstrate the purpose and intent of each action and sound you make during trial so that your poise befits your professional role.
This leads to an important corollary: be cautious that your posture and voice do not overstep the bounds of your professional role. Yes, you should appear comfortable and confident during trial, but do not allow your comfort or confidence to translate into informal or arrogant behavior. It is never appropriate to lean back at counsel table with your hands behind your head and, especially, not with your feet elevated. Also, do not lean on the counsel table, chin in hand, or lay your head on the table. The same goes for the other solid structures in the courtroom; do not use them as a crutch, seat, or leaning post. At all times, remember that you are in the courtroom in a professional capacity and that the fact-finder is watching.
2. Be careful not to upstage witnesses
All actors know the rules about upstaging one another while they are performing. Well, the same rules apply to the courtroom. As your client’s advocate, you never want to detract attention as your witnesses testify; the opposite holds true for the opposing witnesses whose testimony you hope to diminish.
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Stand at the back of the jury box during direct examinations to encourage your witnesses to make eye contact with the jurors and to speak loudly enough so that every juror can hear their testimony. Stand in the middle of the courtroom during cross examinations to better control opposing witnesses and to draw attention to yourself, upstaging the adverse witness.
During opening statements and closing arguments, begin in the middle of the courtroom and move about the courtroom to signal transitions and to emphasize important points. As you move, be careful never to turn your back directly to the jury for more than a second or two. Experienced trial attorneys are so conscious of this faux pas that they apologize to the jury when it happens.
3. Make eye contact with the witnesses and fact-finder
Another concept actors understand is the importance of eye contact. From your own experience you have undoubtedly learned that the best way to convince someone that you are sincere and honest is to look them in the eyes when you are speaking. A trial is no different. A lawyer who looks at the jurors while addressing them is more likely to be believed than one who does not.
A particularly powerful use of eye contact during witness questioning is to look at the fact-finder and pause for a moment when one of your witnesses gives important testimony during a direct examination, as if to say, “Did you hear that?” Or, shoot them a knowing glance when you make a particularly damning point on cross examination, as if to say, “Can you believe this guy?” Of course, as with any trial technique, overuse will tend to backfire.
Eye contact is much more than a useful tool of persuasion; it is also a great way to make sure the jurors are listening to, and understanding, your case. In other words, do not just look at the jurors occasionally – make it a habit to watch them throughout the trial. Just as the jurors will be evaluating your actions and reactions throughout the trial, you should study theirs to determine whether they are following and understanding the testimony.
4. Use body movement to explain and emphasize points
Like your eyes, your body can be a valuable tool of persuasion throughout a trial. You can use your fingers to signal numbered points in your argument by lifting them one at a time as you argue. You can also hold out each of your hands with your palm facing up when comparing two arguments and asking the fact-finder to weigh one more heavily than another. You can move from one place in the courtroom to another during your argument to signal a transition in your argument or to differentiate between items in a list.
For instance, going back to our fire truck case, assume that the plaintiff’s attorney wants to argue in closing that the defendant’s negligence is demonstrated by three facts established at trial: (1) he was in a hurry that morning; (2) his mind was focused completely on the business meeting to which he was heading; and (3) he did not notice the fire truck and pull over, unlike the other cars on the road. While counsel could make all of these points while standing in the same position, his argument will be stronger and more memorable if he uses movement in the courtroom to signal his transitions from point to point. Starting at one end of the jury box, counsel could argue all the facts brought out at trial that prove the defendant was rushed that morning. When he is ready to move on to his next point, counsel could move towards the center of the jury box and give a transition such as, “The second way we know the defendant was negligent was because his mind was completely focused on his business meeting as he drove to work that morning.” And so on.
A strong cross examination technique is to walk closer and closer to a witness during each series of questions. So, begin a line of questioning at a point away from the witness box, and then move closer as you finish each series of questions, turning and going back to the starting point for each new topic.
Likewise, you can signal a new line of questioning during direct examination by pausing for a moment and then moving purposefully a few steps in any direction; the silence and movement will reinforce each other, making it clear that one topic has ended and another is about to begin. In the same way, you can emphasize an important point by stepping closer to the trier of fact during opening statements and closing arguments.
Note that important points should not be made while you are walking since your audience might pay more attention to your motion than to your words. Instead, use a transition sentence while you are moving toward the fact-finder, then stop, pause a moment, and deliver your crucial point while standing perfectly still. The contrast will emphasize the issue even more.
Two cautions about movement must be given. First, be careful never to invade a witness’s or the jurors’ personal space. As a rule, you should avoid getting closer than three or four feet to any other person in the courtroom. Second, be sure your movements are deliberate, since that is the best way to concentrate since it only serves to distract the fact-finder from your verbal presentation.
5. Minimize reliance on notes
When it comes to the use of notes at trial, students participating in mock trials can learn a great deal from studying and understanding the actions of actual trial attorneys.
Trial attorneys nearly always refer to their notes when questioning witnesses and addressing the finder of fact. They do this because they have an obligation to their clients to try the case to the best of their ability.
If a lawyer forgets to elicit a crucial fact during the testimony or to make a persuasive argument in closing, real and serious consequences may result. Most obviously, an innocent defendant could be wrongfully convicted or a guilty defendant could be wrongfully set free.
Good lawyers therefore take concrete steps to ensure that they do not forget anything important at trial. On the other hand, experienced trial attorneys recognize that the overuse of notes can sometimes detract from their ability to persuade the fact-finder.
Reliance on notes reduces an attorney’s ability to make eye contact with the witnesses and with the finders of fact. As we discussed in the previous section, eye contact is essential to persuasion. If a lawyer reads every question she asks a witness on direct, the examination will seem more like an exercise and less like a conversation. Also, reliance on notes inhibits an attorney from effectively using movement in the courtroom to explain and emphasize important points. In short, if any portion of a lawyer’s presentation at trial is read directly from her notes, she will appear either less confident and, ultimately, less persuasive.
Like actual trials, mock trials present an unfortunate dilemma when it comes to the use of notes. Students need to use notes. On the other hand, although there are no real-life consequences if a student inadvertently leaves out important information in a mock trial, doing so could affect the fact-finder’s verdict (if given) or the scores awarded by the judges. Unfortunately, in many mock trials, students are actually marked down for using notes. This may be because students who use notes in mock trials are perceived as less persuasive since they cannot make eye contact as often or move around as much as a result. But it may also be simply because students who use notes appear less prepared for trial than their empty-handed counterparts. The truth is, the better prepared all of the participants in a mock trail are, the harder it is for judges to differentiate between their performances to pick a winner. So, all other things being equal, judges may give higher scores to students who do not use notes.
What is the answer to this conundrum?
Some students memorize their examinations and arguments. While this certainly takes away the need for notes, it brings up other possible problems. First, memorizing the content of examinations and arguments can be more damaging to your persuasiveness than using notes. There is nothing worse than realizing that you have just made an argument during your closing about facts that did not come out during trial. This sort of a mistake will stick out like a sore thumb to everyone in the room, most notably the judges. Also, when a statement is memorized it may still seem stilted, since it went straight from paper to prose. Another problem with memorizing the content of your examinations and arguments is that you will be less prepared for and able to deal with interruptions that may occur at trial. A student who memorizes direct examination questions, for example, runs the risk of panicking if asked to rephrase a question or elicit the testimony in a different manner.
The better alternative to rote memorization is to come to the same conclusion that trial attorneys inevitably reach: notes are a necessity, but reliance on them is not. Yes, it is possible for an exceptional attorney to try an entire case without using notes and without missing important points – but most attorneys are human, after all, and even attempting such a feat may be reckless. Thus, in order to avoid leaving out important information but also to avoid relying on their notes to the detriment of their persuasive ability, trial attorneys have developed a few solutions that allow them to meet their obligations to their clients.
The first thing all trial attorneys learn is not to write detailed notes. For instance, if each question in a direct examination appears in a lawyer’s notes in this form, “Please tell us, Dr. Harris, what sort of clinical training you have,” the lawyer will be tempted to read each question in that form at trial. The better way for counsel to remind herself to ask the doctor about his clinical training is simply to write, “Clinical Training?” in her notes. This form provides direction at a quick glance and forces counsel to ad-lib the question, which will make it seem more conversational and sincere.
Another solution is simply practice. As you might have learned through participation in music or sports, practice makes permanent. If an attorney practices her direct and cross examinations and her opening statement and closing argument enough, she will only need to resort to her notes occasionally to check to make sure she has covered every necessary topic. In this case, she is better off leaving her notes at her counsel table and referring back to them only when necessary.
Smart trial attorneys also make use of their co-counsel, if available. In this case, the attorney gives a copy of each of her examinations and arguments to her co-counsel. Then, when she loses her place or has finished her examination, she simply takes a minute to walk to counsel table and ask about the next topic or to ask whether anything was left out. Short interruptions such as these, if noticed at all, are easily forgiven by the trier of fact.
If you are participating in a highly competitive mock trial, particularly those that involve months of preparation, you can and should use these same approaches. Whatever notes you use should be kept as simply written as possible and you should keep your notes away from you as you perform your examinations and arguments. Most importantly, you should practice working with the case so much and so often that the facts become ingrained in your mind. The combination of all of these efforts will keep you relatively note-free but still afford you flexibility in dealing with interruptions and surprises at trial.
B. Verbal Communication Techniques
While closely monitoring your nonverbal communication at trial, be sure you are also getting the most mileage out of your verbal communication. Follow the steps outlined below to become a more persuasive speaker.
1. Show respect to the judge
Regardless of whether the fact-finder in your mock trial is a judge or jury, you must always address the presiding judge with deference (regardless of whether she is a real-life judge). Address the judge as “Your Honor” or “Judge” and always stand when you do so. Likewise, honor every ruling the judge makes and do not attempt to argue with the judge.
2. Use powerful speech
Intuitively, you already know that powerful speech is more persuasive than powerless speech. Powerful speech is free of vocal pauses, qualifiers, intensifiers, and dull adjectives. As with any skill, you can learn to speak more persuasively by training yourself to use only powerful speech. The following techniques will help you get started.
a. Take the lead out
Vocal pauses or fillers, such as “um” and “uh” are sounds used by speakers to avoid silence. Any student who has sat through a lecture knows that these sounds can be annoying and even downright distracting.
Silence, as opposed to vocal pauses, adds drama to your speech and slows its rate, allowing you time to process your thoughts and the listener time to absorb your argument. The trick to replacing vocal pauses with silence is simple. First, become aware of your use of vocal pauses. Then, practice isolating your vocal pauses and consciously eliminate them from your speech. Eventually you will notice how effective and dramatic long pauses can be. What seemed like an eternity of silence to you while speaking will sound like a natural pause to the listener.
b. Say what you mean and mean what you say
Qualifiers and intensifiers are used in speech to soften or strengthen the meaning of language. In ordinary conversation, people tend to qualify or temper their ideas as a matter of politeness or convention and exaggerate or intensify their ideas to signify emphasis. Examples of qualifiers are “probably,” “sometimes,” “perhaps,” “maybe,” and “you know what I mean?” Examples of intensifiers are “really,” “very,” “highly,” and “especially.” During casual exchanges, use of qualifiers and intensifiers hardly raise an eyebrow.
Trials are different. Trials are about persuasion. Trials are about certainty. Trials are about asking the fact-finder to reject the other party’s claims and to enter a verdict in your client’s favor. Whenever you use qualifiers or intensifiers in your speech during trial, your credibility is decreased and the trier of fact is less likely to be persuaded by your words. The following excerpts from closing arguments are illustrative:
COUNSEL: The prosecution has probably not met its burden of proof in this
case and therefore you should think twice before finding the
COUNSEL: It is crystal clear that the prosecution has definitely not met its
burden of proof in this case and therefore you absolutely must
find the defendant not guilty.
Neither of these statements is particularly effective; the former is imbued with uncertainty and the latter is suspect of exaggeration. Do not use qualifiers at trial; if you appear uncertain that your side should prevail, you cannot expect the fact-finder to be certain either. Likewise, if you are so confident in your argument that you want to add an intensifier, fight the temptation and let the argument speak for itself. “Because the prosecution has not met its burden of proof, the defendant is not guilty.”
The use of powerful speech also applies to the testimony of your witnesses. For example, expert witnesses should testify in straightforward, unequivocal terms, avoiding language that unintentionally qualifies or hedges their opinions.
Here is an example of how the use of powerful language can strengthen the testimony of an expert witness. First, consider a “weak” answer.
ANSWER: My best estimate at this time is that the restaurant chain would
probably have earned approximately $3.2 million.
In fact, the witness has conducted an exhaustive study and is completely certain, within the bounds of professional competence, that $3.2 million is the correct figure. That certainty can be better expressed through more powerful language:
ANSWER: I have calculated lost profits at $3.2 million.
ANSWER: The result of my study is a determination of lost profits in the
amount of $3.2 million.
Of course, if the expert’s conclusions really are tentative or provisional, counsel should not attempt to have the witness testify otherwise.
3. With descriptive language and legalese, be mindful of your audience
a. When the fact-finder is a jury
Use descriptive language to keep the attention and interest of the jury. This is not to say that you should change the meaning of the facts by using more colorful language; instead, be creative in your use of language to bring the established facts to life and to allow the jurors to visualize the scene. As we discussed in Chapter 2 (“Case Preparation”), the story you tell at trial can make or break your case. Whatever story you tell, make sure to keep it interesting – the best explanation for the events in the case is worthless if it falls on deaf ears.
Avoid the use of complex legal terms in jury trials. The members of any given jury are not likely to have independent knowledge of the area of law in question at trial. Most jurors are laypersons who have only been exposed to the law through the media or social interaction with attorneys. Laypersons are often skeptical and mistrustful of lawyers they do not know. All of these effects are minimized through the use of simple language. By talking to the members of the jury and not above them, you will succeed in explaining the law and earning their trust – improving your persuasiveness.
b. When the fact-finder is a judge
Judges are not as easily swayed by drama and emotion as jurors. Real-life judges hear so many cases that after a while they become somewhat immune to gruesome crimes; they are no longer shocked by events that might horrify the members of a jury. Thus, while your can and should use descriptive language when presenting your case to a judge, be mindful not to get too wrapped up in drama or emotion.
You may use legalese when addressing a judge, but you should still explain legal terms simply to demonstrate that you understand them. Be careful when you do this, however, that you do not adopt the same tone you might use when talking to a younger sibling or cousin; it is safe to assume that the judge understands these concepts.
4. Make use of the effects of primacy and recency
Primacy and recency refer to a widely accepted phenomenon that people tend to remember best those things that they hear first and last. So, put your strongest arguments first and last so the jurors will remember them. This applies to every stage of a trial, including discrete subparts within your witness examinations and arguments. Without confusing the trier of fact or neglecting to lay foundation, always try to put your two strongest points at the beginning and end to maximize their impact. In our intersection case, for example, the presence of the fire truck may well be the most important part of the plaintiff’s testimony. It should therefore be introduced early in her direct examination and alluded to again at the end.
A helpful corollary to the idea of primacy and recency is what might be called “interment.” If the first and last points are remembered best, then it follows that the midpoints will be remembered least. In every trial there will be information that you believe you must mention but that is embarrassing or potentially counterproductive. The principle of interment tells you that the safest approach, therefore, is to bury this material deep in the middle of the examination or argument.
Of course, the concept of primacy does not necessarily refer to the very first words out of your mouth. In your direct examinations, for example, there will be a sort of preamble where you ask the witness to introduce himself and generally warm up before you really begin. Therefore, it may be helpful to think of primacy as applying to the substantive beginning of the argument or witness examination, not to the introduction.
5. Use repetition and duration to emphasize your most important points
Repetition and duration are also related concepts; they are used to emphasize the significance of certain information.
The concept of repetition holds that the more times you repeat a fact, the more likely it is to be believed, remembered, and understood by the fact-finder. Thus, your most important points should arise again and again throughout the testimony to ensure that they are retained. Repeating information can be tricky at trial since you are not allowed to ask the same witness the same question twice due to the “asked and answered” objection. To avoid an objection, employ your creativity to fashion several slightly different questions, each stressing the same point.
How do you decide which facts are sufficiently important to bear repetition? To answer this question consider your theory and theme and repeat only those facts that answer are crucial to your theory and those that best evoke your moral theme.
In our fire truck case, the gist of the plaintiff’s theory is that she stopped for a passing fire truck while the defendant did not. Her single most important fact is the observable presence of the fire truck. Thus, the words “fire truck” should be inserted at every reasonable point during the examination. At the close of her testimony you want to have created the image that the fire truck dominated the scenery. How many different ways can the witness describe the fire truck? In how many locations can she place it? How many times can she use it as a reference point for other testimony?
Similarly, the concept of duration states that the more time you spend on a topic, the more important it will seem. For example, as we stated above, the most important point for the plaintiff in the fire truck case is the presence and noticeability of the fire engine. Thus, although the plaintiff’s initial observation of the truck could be established in a single question and answer, the importance of the subject dictates greater duration for this part of the direct examination:
QUESTION: What did you see as you drove south on Craycroft Road?
ANSWER: I saw a fire truck.
QUESTION: Describe it, please.
ANSWER: It was your basic fire truck. It was red, and it had firefighters
riding on it. It had lights and a bell.
QUESTION: Were the lights flashing?
ANSWER: Yes, and it was sounding its siren.
QUESTION: How far away were you when you first noticed the fire truck?
ANSWER: I would say almost a block away.
Repetition and duration can easily be overdone and misused. Dwelling on something does not require beating it into the ground. Even the most crucial, compelling, climactic evidence can be trivialized by extended overtreatment. Likewise, if too many facts are repeated, repetition will lose its impact. Thus, use repetition and duration, but always use them with restraint. Remember that emphasizing everything is the equivalent of emphasizing nothing.
6. Use reflective questioning to illustrate time, distance, and intensity
One technique for creating a mental image in the jurors’ minds is called reflective questioning, an approach that uses the pacing of language to evoke time, distance, or intensity. The timing or duration of an event, for example, is often crucial in a trial; one side claims that things happened quickly and the other asserts that they were drawn out. It is possible to use the pace of questioning to support your particular theory. Speaking rapidly makes events seem faster, closer together, more intense, and more disorganized. Speaking slowly makes things seem slower, further apart, more reasoned, and more relaxed. Thus, you can reflect the story that you want to tell by varying your pace as you proceed with your argument or questioning.
Assume that you represent the defendant in our fire truck case. His defense is that the fire engine appeared only a moment before the collision and that he just didn’t have enough time to stop his car. The goal of the defendant’s direct examination must be to re-create that scene by collapsing the time available to react to the fire truck. Hence, you will ask only a few, fast-paced questions:
QUESTION: When did the fire truck first become visible?
ANSWER: It approached the intersection just as I did.
QUESTION: What was the very first action that you took?
ANSWER: I slammed on my brakes.
QUESTION: How much time did that take?
ANSWER: Less than a second.
Note that this direct examination proceeds quickly, emphasizing both shortness of time and immediacy of response. This result will be enhanced if you fire off the questions, and if the witness doesn’t pause before answering.
In contrast, the plaintiff will claim that there was ample time for the defendant to stop. Her direct examination should therefore be drawn out in order to demonstrate exactly how much time there was:
QUESTION: Where was the fire truck when you first saw it?
ANSWER: It was about a quarter of a block away from the intersection.
QUESTION: How far away from you was it?
ANSWER: About one hundred yards.
QUESTION: How many other cars were between you and the fire truck?
ANSWER: Three or four.
QUESTION: What did they do as the fire truck approached?
ANSWER: They all stopped.
QUESTION: How long did it take those other cars to stop?
ANSWER: Normal stopping time – a few seconds.
QUESTION: What was the first thing that you did?
ANSWER: I started to pull over to the side.
QUESTION: How long did that take?
ANSWER: Five seconds or so.
QUESTION: What did you do after that?
ANSWER: I brought my car to a stop.
QUESTION: How long did that take?
ANSWER: Well, I applied my brakes right away, and it took a few seconds
for the car to stop.
QUESTION: Then what happened?
ANSWER: That’s when the other car rear-ended me.
QUESTION: How much time elapsed between the moment when you first saw
the fire truck and the time that the defendant’s car hit yours?
ANSWER: At least ten or fifteen seconds.
7. Use nouns and verbs in place of adjectives
The most evocative words used in trials are nouns and verbs. This may seem counterintuitive; many lawyers think that adjectives are the best words for conjuring a mental image. But the fact is that adjectives tend to convey judgments, which can make them more argumentative and, thus, undependable to the fact-finder. Nouns and verbs, however, do not suggest a belief about something but rather a description of the thing itself.
Suppose, for example, that someone told you that a certain automobile was “ugly.” The adjective “ugly” conveys an aesthetic judgment. Depending upon the speaker and the circumstances, you might agree with the characterization or you might not. Adding an intensifying adverb does not help. “The car was really ugly.” Even with inflection, adjectives and adverbs tend to lack intrinsically descriptive power. They convey opinions but not the bases for those opinions.
Now suppose that the same person told you that the automobile’s paint had peeled off of the doors and that its hood was so rusted that you could see right through to the engine in several places. The windshield was covered by a spider web of fracture lines. The tailpipe dragged on the ground. One fender was missing and another was replaced by a mismatched part from a different model. The hubcaps were gone and the trunk was held down with bungee cords. These nouns and verbs (helped out by an occasional participle) tell the whole story – that car was ugly!
8. Use apposition to compare related facts
Apposition refers to placement or juxtaposition of important facts in a manner that emphasizes their relationship. Again looking at the intersection case, a strictly chronological direct examination might have the plaintiff begin by explaining where she was headed on the morning of the accident. Assume now that she was going to an art exhibit that would not open for another hour. The importance and value of this seemingly innocuous fact can be heightened tremendously by opposing it to the conduct of the defendant immediately following the accident. Imagine the impact of contrasting the plaintiff’s unhurried trip with the following information about the defendant:
QUESTION: Where were you going on the morning of the accident?
ANSWER: I was going to the Art Institute.
QUESTION: Were you in any hurry to get there?
ANSWER: It wasn’t going to open for an hour, so I was in no hurry at all.
QUESTION: What did you do immediately after the accident?
ANSWER: I asked the defendant if he was all right.
QUESTION: What did the defendant do immediately following the accident?
ANSWER: He jumped out of his car and started talking on his cell phone. He
shouted that he would talk to me later, but first he had to cancel an
9. Use headlines for emphasis and transition
Believe it or not, trials are just plain dull to most observers. Argument is seldom gripping, and most witness examinations tend to drag on and on. Burdened by the millstone of tedium, the attorney’s task is twofold. First, you must do your utmost to make it all as interesting as possible. Second, you must develop means to let the fact-finder know when something interesting (and truly important) is about to happen. This last responsibility can be aided by the use of headlines, transitions, and signals.
A newspaper headline is printed in bold type so that it will draw the readers’ attention to the story below. A lawyer’s headline serves the same purpose. It alerts the fact-finder to the significance of the information that is about to follow. Although lawyers lack the advantage of distinctive typeface, the phrasing of headlines can perform the same function. In direct examination, a relatively modest headline might take this form:
COUNSEL: Let’s talk about your training now, Dr. Harris.
A much bolder headline during an opening statement could be:
COUNSEL: This case is about broken promises. Let me tell you about the
And the equivalent of a screaming banner might come in final argument:
COUNSEL: The defendant is a murderer and here is the fact that proves it.
A transition is a specific type of headline, one that signals the end of one subject and the beginning of another. Transitions are particularly helpful when the movement is from a boring or technical area into something more substantive. For example:
COUNSEL: As I told you during the opening statement, the real heart of this
case is damages. I want to show you now just how inflated the
plaintiff’s claim really is.
Or, during a direct examination:
COUNSEL: Doctor, now that we have talked about your qualifications as an
expert, let’s move on to the opinions you reached in this case.
10. Use enumeration when addressing related points
Finally, the technique of enumeration might be the most effective of all. You might recognize this phenomenon from your classes. As soon as the lecturer announces that there are “three reasons” or “four rules” or “six characteristics,” every person in the room picks up a pen and begins to take notes. It seems that little serves to concentrate the mind more than the onset of a numbered list. Take, for example, this portion of a closing argument:
COUNSEL: There were three different moments at which the defendant
could have avoided this accident. Let me explain them to you.
Or, this portion of an expert’s direct examination in a civil case involving the calculation of lost profits:
QUESTION: Dr. Harris, what is your opinion of Dr. Gupta’s study?
ANSWER: There are three basic problems with Dr. Gupta's study.
QUESTION: What are those problems?
ANSWER: First, she projected profits on the basis of only two factors.
Second, she faile to consider location, which should have
been the most important element. Third, she doesn’t seem
to recognize that population growth can be extremely uneven.
Counsel can now ask the witness to explain each of these three points. Note that the introduction of each point will reinitiate primacy and therefore heighten the fact-finder’s attention.
. . .
11. Do not be overly thankful
We see this all too often. For some reason students feel compelled to thank the presiding judge and the witnesses constantly during mock trials. While it is natural to thank someone for doing something they did not have to do, you should not thank the participants of a trial for simply doing their job. Judges rule on objections – that is their job. Do not thank a judge for ruling on an objection. Witnesses answer questions – that is their job. Do not thank a witness for answering a question.
While you can and should be polite at all times during a mock trial, do not be overly thankful. After a while, your thankfulness will be distracting to everyone in the courtroom.
12. Resist the temptation to respond to witnesses’ answers
Another mistake beginners often make during mock trials is responding to witnesses’ answers, whether on direct or cross examination. This example is not at all uncommon:
QUESTION: What did you do next?
ANSWER: I opened the door to see if anyone was inside.
QUESTION: That makes sense. Then what did you do?
Technically the lawyer’s response in this example is impermissible commenting on the evidence and it merits an objection that “Counsel is testifying.” This example is even more common:
QUESTION: Isn’t it true that you then opened the door to see if anyone was
ANSWER: Yes, that’s right.
QUESTION: Okay. But you did that without a search warrant for the premises,
Like the previous example, this lawyer’s use of the word “okay” is not proper.
The bottom line is that as much as lawyers like to believe that they are having a conversation with the witnesses at trial, lawyers’ opinions, beliefs or reactions to the testimony provided are not relevant.
III. COMMUNICATING WITH PICTURES AND DEMONSTRATIONS
The saying “a picture is worth a thousand words” is true. Even the best speakers cannot convey detailed information as well as a picture or, for that matter, a diagram, a chart, or even a list. Therefore, whenever you can, you should use visual aids when presenting your case.
A. Make Use of Exhibits
Consider whether the testimony in each of your direct examinations can be illustrated with an exhibit. If a witness is going to testify about a pivotal document, have it enlarged or publish it to the fact-finder so they can look at it during the witness’s testimony. If the witness is going to testify about the events at the scene of the crime and a map of the scene has been provided in your case file, enlarge it so the witness can use it to explain what happened.
Then, return to these exhibits in your closing argument. Any item that has been admitted in evidence may be read aloud, displayed, or enlarged for use during closing argument. Counsel can underline key passages in important documents or can array various documents side by side. This last technique is particularly useful to demonstrate relational concepts such as contradiction or continuity.
You may also use exhibits in your opening statement, but only if you are sure they are admissible.
B. . . .
C. Conduct Demonstrations
You can also ask witnesses to reenact crucial events or to re-create important sounds by asking, for example: “Please show the jury exactly how the defendant raised his hand before he struck you.” “Please clap your hands together to show us how loud the sound was.” “Please repeat the plaintiff’s words in exactly her tone of voice.”
Demonstrations bring the facts of a case to life by giving the fact-finder the opportunity to see and hear exactly what the witness experienced. In addition to being more interesting than regular testimony, demonstrations have the added benefit of providing truer depictions of events. Without a demonstration of how an event occurred, each person in the courtroom could interpret the witness’s testimony differently.