Two hunters are out in the woods when one of them collapses. He doesn’t seem to be breathing and his eyes are glazed. The other guy whips out his phone and calls the emergency services.

He gasps, “My friend is dead! What can I do?”

The operator says “Calm down. I can help. First, let’s make sure he’s dead.”

There is a silence, then two gunshots are heard. Back on the phone, the guy says “OK, now what?”

The first time you hear that joke, it’s hilarious. The second time, it’s still pretty funny. By the third time, however, it starts to lose its luster. That’s the danger of repetition. Yet despite the danger, nearly every trial lawyer I’ve ever met lives by some variation of this theme: “You’ve got to repeat your most important fact three times before the jurors will remember it.”

Indeed, it’s true:

Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.
Repetition makes it easier for jurors to remember important details.

Every trial lawyer knows that repeating information makes it easier for jurors to remember. However, experienced trial lawyers also know that just because something is important once, that doesn’t necessarily mean anybody wants to hear it again.

That’s the paradox of repetition. Repetition helps us remember, but it can also bore us to sleep. As the trial lawyer, your goal is repeat the information often enough that your jury remembers it, but without putting them to sleep. Here’s the good news: You can repeat repeat important information without boring your jurors, just so long as you follow a few simple guidelines.

First, modify each repetition. Unmodified repetition is a surefire cure for insomnia. The repeated information needs to be different than the first version. You can’t simply repeat it, because that’s not only boring, it’s condescending. Basically, unmodified repetition tells your jurors, “You dummies probably didn’t get this the first time, so I’m forced to repeat it for you.”

To avoid that problem, make sure that your second iteration differs from the first. For example, if you made your first point with oral direct examination, consider making your second repetition with a different medium, such as a demonstrative aid, video testimony, or a physical exhibit.

Second, repetitions need to get better. Each version should increase in strength. Start with your weakest iteration. Each successive repetition should be stronger, otherwise we lose our interest. For example, you could start with the verbal testimony, then add the photo, then add the demonstrative exhibit. Or you could start with the tamest description, and progress towards the strongest and most visceral description. You want to increase the intensity. If you start with a 10, your next witness can’t be a 9, because even though normally a 9 might be great, it doesn’t work in this situation.

It’s like watching Raiders of the Lost Ark, and then following it up with a double-feature showing of Indiana Jones and the Temple of Doom and then Indiana Jones and the Last Crusade. They’re both enjoyable movies, but they’re a bit of a letdown after watching the original. If you’re gonna repeat something, the second version needs to be more memorable. Think Godfather II and The Empire Strikes Back, rather than Jaws II and Rocky II.

Third, keep it interesting. That principle is a little vague, but important nonetheless. You can repeat information all day long, just so long as you keep the jury’s interest. But the moment it stops being interesting, you’ll lose them. Take the Rocky franchise for example. All of the movies are basically the same (Rocky faces unbeatable opponent, Rocky does montage training sequence to the best workout music ever written, Rocky fights the unbeatable opponent, “Yo, Adrian!”), yet despite the repetitive nature of the scripts, millions of people enjoyed all of the films. (Well, except for Rocky V — that one really sucked).

The same thing is true with Toy Story II, Spiderman III, and the James Bond franchise. Not only don’t audiences mind the repetition, they actually enjoy it, because each new version is interesting. Your jurors feel the same way. They don’t mind hearing the same information a second or third time, just so long as you hold their attention.

The importance of repetition during trial can’t be overstated. Jurors may miss an important point the first time it’s presented, so it’s usually essential to repeat the point a second or third time. However, you can’t afford to lose the jury’s attention by mindlessly repeating the same information over and over again. But if you vary how you repeat the information, improve each repetition, and keep things interesting, your jurors will remember all of the important details in your case.

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The case was more serious than most.

The defendant was accused of sexually molesting a young child, and the evidence against him was strong. There was hardly a dry eye in the courtroom as the young girl described what the defendant had done to her. As the doctor described the girl’s injuries, you could feel the jurors’ horror turn to rage. By the time the detective testified about the defendant’s remorseless confession, the jurors were ready to convict and execute the sentence themselves.

Once the prosecutor had rested her case, the defense attorney rose and moved for a judgment of acquittal (directed verdict). That’s when things went awry.

Normally, in a case as strong as this one was, the motion for judgment of acquittal should have been merely a pro forma motion. But now, the judge was seriously considering granting the motion for acquittal. Why?

The defense attorney hadn’t attacked the strength of the molestation evidence. Instead, he said that the prosecutor hadn’t put forward any proof that the offense had occurred within the county lines. In every criminal case, the state needs to prove that the court has jurisdiction over the subject matter.

The prosecutor’s face turned ashen. She realized that the defense was right - she hadn’t proven venue. If she couldn’t quickly think of something, this case was going to be dismissed…

How can you avoid the same problem with your case?

Here’s an incredibly easy technique you can use to ensure you never lose a case because you omitted an essential element of your case: The Checklist!

“A checklist?”

That’s right. The same thing that helps you navigate your way through the grocery store can help you win your next trial. But your trial checklist is even more important than your grocery list. In trial, the stakes are high, emotions are high, and your mind is racing at breakneck speed. If you were ever going to accidentally overlook something, this would be the perfect opportunity. You’ve probably heard it said that “the faintest pencil mark is better than the sharpest memory,” right? That’s especially true during trial. So rather than risking an oversight, prepare the checklist while your mind is calm.

On your checklist, you should list every element you must prove to win your case. For example, let’s say you are prosecuting someone for the crime of Battery. (Don’t worry, defense attorneys, this article isn’t just for prosecutors and plaintiff’s lawyers - I’ll show you how the checklist can help you, too). Here in Florida, to prove a simple battery, you need to show that the defendant “touched or struck the victim against his will.” But you also need to prove that the defendant is the person who did it, and that the crime occurred within the court’s jurisdiction. Here’s how you would organize your checklist:

As your witnesses testify to each element, you check it off the list. Before you rest your case, re-examine the list to ensure that every element has been proven. In this example, you wouldn’t want to rest your case yet, because you can quickly see that no one has identified the defendant as the person who committed these acts.

Using a checklist benefits defense attorneys, too. As the witnesses testify to each element, you check it off. When your opponent rests their case, if they haven’t put forward any proof of an element, you can focus your argument for JOA or directed verdict on the missing element. Defense attorneys can also use the checklist to present affirmative defenses, ensuring that you’ve met every element of the affirmative defense before you rest your case.

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Unfortunately, in the sexual molestation case, the prosecutor hadn’t prepared a checklist. That’s why she found herself frantically asking for the court’s indulgence to re-open her case and prove the missing element. The judge, perhaps feeling that a case of this magnitude should be decided upon its merits, rather than on a technicality, allowed her to re-open the case, and she quickly showed that the crime had been committed within the county lines,

She was lucky. Don’t expect that you’ll be that lucky, too. On less serious cases, I’ve seen judges grant the judgment of acquittal to teach young prosecutors an important lesson. It’s certainly effective - I’ve never seen any of those attorneys repeat the same mistake. You, however, don’t need to suffer a judgment of acquittal or a directed verdict to learn the lesson. Prepare your checklist before trial, keep track of the testimony as witness’s testify, and you’ll never omit an essential element of your case.

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On television, the life of a trial lawyer life is always filled with excitement, isn’t it? For example, on a typical episode of Boston Legal, whenever Alan Shore goes to court, he either vigorously cross-examines a witness (and wins his case), or delivers an impassioned closing argument (and wins his case). After court, he returns to the office, where he gains a new client (whose case is always scheduled for trial tomorrow), strikes up a romance with one of the beautiful new associates, and then finishes the day by enjoying Scotch and cigars on the balcony with his best friend, fellow superstar lawyer Denny Crane.

That’s a typical day in the life of most trial lawyers, right?

In reality, the life of a trial lawyer isn’t that exciting. Sure, we may spend more time in court than the TV lawyers do, but those superstar courtroom moments are few and far between. If you’re like me, much of your time in court is probably spent twiddling your thumbs, waiting for judges to call up your case.

Each week, I typically spend at least a dozen hours in court. Rather than let it become wasted time, I always try to keep my eyes and ears open for anything that might help you persuade jurors, win trials, or become a better trial lawyer. I also try to keep my ears open for any phrases that might detract from your ability to persuade or that might make you sound foolish. Over the past few weeks, there’s been one particular phrase that’s been grating on my ears. It’s a phrase that you’ve probably heard countless times in court. Heck, you’ve probably even said it (I know that I have) without realizing how much it can detract from your persuasive power.

Here’s the phrase: “As an officer of the court…”

“Wait a second,” you’re probably saying, “What’s so terrible about that? Doesn’t that phrase show proper respect for our role in the courtroom?”

Yes, it does, but the attorneys I heard weren’t using it to show deference to the court or respect for the profession. Look at how they used it:

“As an officer of the court, I wanted to let you know that I did attempt to coordinate depositions with Ms. Thomas, but we were unable to agree upon the meeting location.”

“I know this has been a contentious case, Judge, but as an officer of the court, let me say that I never asked my assistant to ignore Ms. Jenkins’ vacation schedule when planning the timing for motion hearings.”

“As an officer of the court, let me assure you that I met with my client several times before today’s plea conference to discuss the ramifications of his plea.”

Basically, they were asking to be trusted because of their position as an officer of the court. To boil it down to its most basic level, they were saying, “Trust me… I’m a lawyer!”

When lawyers draw attention to the fact that they’re credible because they’re “officers of the court,” it always causes me to question their credibility. I guess it’s the equivalent of a criminal suspect telling the police officer, “Officer, let me be honest with you…” When you hear him say that, what do you assume he’s going to do next? That’s right — you assume that he’s going to lie!

When someone calls attention to the fact that they’re being honest, we usually start to question everything else that they say. When a lawyer speaks in court, it is presumed that they’re telling the truth. But when you draw attention to that fact, it loses its persuasive power.

Judges shouldn’t be persuaded by your position or your title. Your credibility must be intrinsic. You need to demonstrate an “affidavit quality:” What you say must be true, simply because you are saying it. If you possess that “affidavit quality,” then you won’t have any need for superfluous (and unpersuasive) language. If you don’t have it, then no label exists which could make you credible.

The next time you speak in court, don’t rely upon your position or your title to persuade. Demonstrate that “affidavit quality” by letting your character and your credibility speak for you, and you’ll be the most persuasive lawyer in the courtroom.

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