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Using the Present Tense to Bring Your Case to Life

 

by Elliott Wilcox

 

No matter how exciting the next Super Bowl will be, it will lose its impact when you watch it on DVD.  Why?  The plays will be the same, the players will be the same, and the coaches will be the same.  Why will you care less about the replay than you do about the live event?  The difference between the two is suspense.  When you watch the replay, you already know the outcome.  It doesn'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 court, you talk in the past tense because you're describing events that have already happened.  You already know the conclusion - but your jury doesn't.  This is the first time they've heard about the events.  To bring certain areas of your questioning to life, switch to the present tense.  The jury will feel that things are happening 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?  Every sentence was 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."

Practice Point for Opening Statements: Read through your draft and look for phrases written in the past tense.  Shift the language of your opening statement 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.

 

You can also use the present tense during direct examination.  When you ask 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. 

 

Practice Point for 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.


WANT TO USE THIS ARTICLE IN YOUR EZINE, WEBSITE, OR BAR ASSOCIATION PUBLICATION? You can, as long as you include the following blurb with it: Elliott Wilcox publishes Trial Tips Newsletter, a free weekly e-zine for trial lawyers that reveals simple, effective, and persuasive techniques to help you win more trials, guaranteed.  Sign up today for your free special report: “How to Become the Best Trial Lawyer in Your Courthouse – The Top Ten Tips for Trial Lawyers,” at www.TrialTheater.com

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