A good prior inconsistent statement is supposed to be the “Holy Grail” of cross-examination techniques. Unfortunately, many cross-examinations fall upon deaf ears because the trial lawyer doesn’t do an effective job of building up the importance of the prior inconsistent statement. In this quick video, you’ll learn how to maximize the impeachment power of your prior inconsistent statements.

Please take a moment to leave a comment below and let me know what you think about the video. Also, please let me know what topics you’d like to learn about in future training videos, so I can help you win your next jury trial.

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Admit it… You’re a little surprised at how quickly this trial has progressed, aren’t you? You thought it would take at least a week to try this case, but thanks to some stipulations from opposing counsel (and the judge’s continual prodding to “Move it along, counsel”) you’ve managed to pack 47 witnesses and 137 exhibits into a mere four days of testimony.

Now it’s time for your closing argument. You rise from your seat, walk to your power position in the well of the courtroom, and begin weaving together the individual snippets of testimony into a seamless story.

There’s only one problem. As you refer back to testimony from earlier in the week (“Remember when Bill Smith was telling you how the product was designed? He said that unless you held it with both hands, it would kick back and hit you in the mouth?”) you notice a quizzical look on the jurors’ faces.

They’re thinking to themselves, “Bill Smith… which guy was that? Was he the guy with the blonde hair who testified on Monday? The rough looking guy from yesterday? Jeez, I can’t remember who he was.”

Let’s face it, even in a short case, it’s not always easy to differentiate between all the different witnesses. But luckily, there’s a quick and easy solution you can apply that will make it easy for your jurors to remember who said what.

Here’s the solution: Get photos of all the witnesses.

Then, when it’s time for your closing argument, you can show the jurors the photo, and refer to the witness’s earlier testimony. The great thing about this simple trick is that when you use a computer projector to show the photo (accompanied by highlights of their testimony), it’s like they’re testifying again. Here are some quick examples:

“If you don’t hold the XP-500 with both hands, it will kick back up and hit you in the mouth.”

- Bill Smith
Expert Witness

 

 

“It would cost over $30,000 to make
each one safe.”

- Larry Cohen
SafeCo’s CEO

 

 

“I told the plaintiff to take the pills without food or else she’d get sick. She said, ‘Whateva, I’ll do what I want’ and walked out of our office.”

- Susan Lustre
Nurse in Dr. Mike’s office

 

You can photos of the witnesses from their websites, company sites, university sites, etc., but the most effective type of photo you can use is a photo snapped the same day the witness testifies, so their clothing and hairstyles look the same for the jurors.

Studies show that it’s easier to remember something when we both see it and hear it. By showing photos of the witness, you’ll spark the jurors’ memories of the witness while also highlighting the important parts of their testimony. By making it easier for your jurors to remember the highlights of your case, you’ll make it easier for them to return the verdict your client deserves.

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As a trial lawyer, you know that it’s not enough to merely limp across the finish line and get your exhibits admitted into evidence.  If you want to win, your exhibits need to persuade the jurors.  Unfortunately, the persuasive effect of your exhibits can be diminished by a sloppy presentation or a bumbling attempt to introduce the exhibit into evidence.

Getting exhibits into evidence is easy.  Here’s all you have to do:

1. Pre-mark the exhibit
2. Show it to opposing counsel
3. Show it to the witness
4. Ask the right predicate questions
5. Ask the court to admit the exhibit
6. Let the clerk mark the exhibit into evidence

That’s all there is!  But when I’m coaching trial lawyers how to work with exhibits, one of the more frequent problems that I see is the inability to artfully introduce exhibits into evidence.  Most of the trial lawyers I’ve seen tend to stumble and trip over their own words when they reach step #5.  It’s not because these attorneys don’t know what they’re doing or because they’ve never taken an Evidence course.  Typically, there are two reasons why their attempts to introduce evidence fall flat:

The first reason is because many attorneys don’t understand the difference between their role and the judge’s role during trial.  Hang around the courthouse for an afternoon and you’ll probably hear a lawyer say something like this:

“Your Honor, at this time we would admit Plaintiff’s Exhibit ‘A’ for Identification into evidence as Plaintiff’s Exhibit 1.”

But lawyers don’t get to “admit” anything into evidence — that’s the judge’s job.  The judge is the gatekeeper who determines which exhibits will be admissible and which ones will not.  The first step to smoothly admitting exhibits into evidence is to understand that we can only “offer” exhibits into evidence.  Once you understand that only the judge has the power to determine whether or not the exhibit is “admitted” into evidence, you’ll never make this mistake again.

The second (and far more common) reason why trial lawyers falter when introducing exhibits is because they don’t practice saying the “magic phrases” that judges need to hear before admitting evidence.

As you know, in persuasion, it’s not just what you say, it’s how you say it.  Whenever you ask someone to do something, one of the things they’ll consider in deciding whether or not to grant your request is how confident you appear when you ask.  Compare these two requests:

Example #1: “Um, Your Honor, we would, uh, move the photo of the accident scene, I mean, um, Plaintiff’s Exhibit ‘A’ for identification, into evidence, I mean we would ask you to admit it into evidence.”

Example #2: “The Defense moves what’s been previously marked as Defense Exhibit ‘C’ into evidence as Defense 5.”

Your evidence has a better chance of being admitted when you appear confident that it should be admitted.  If you seem hesitant or unsure of yourself, your opponent thinks, “{!firstname_fix} doesn’t seem positive that this exhibit should be admitted into evidence.  I should probably object…”  To smoothly and persuasively move exhibits into evidence, you need to become comfortable with the language of admissibility.  Examine these sample phrases and pick one that you’d like to use in court:

• “Your Honor, I ask that what’s been previously marked as Plaintiff’s Exhibit ‘A’ for Identification be admitted into evidence as Plaintiff’s #1.”
• “At this time, we offer Plaintiff’s ‘A’ (for identification) into evidence as Plaintiff’s exhibit #1.”
• “The Government at this time, Your Honor, would move to introduce Government’s Exhibit No. 23 into evidence.”
• “Your Honor, we’d offer Defense Exhibit 1701 into evidence.”
• “Your Honor, I move that Plaintiff’s Exhibit ‘A’ be introduced into evidence.”
• “We offer Exhibit ‘A’ into evidence.”
• “Your honor, I would like to submit People’s exhibit ‘A’ into evidence.”
• “We would ask the Court to admit State’s Exhibit ‘R’ for Identification as State’s #12.”

Once you find the phrase you’d like to use, write it down on a separate piece of paper that you’ll take with you to trial.  Obviously, you’ll want to memorize the phrase, but post a copy of it inside your trial notebook or tape it to the lectern (just in case!)

It’s not enough to merely know the magic words: You must be completely comfortable with them so that the words appear natural and flow easily from your tongue.  After you memorize your preferred statement, you need to practice reading it aloud.  Your initial reaction is to probably skip this step, but don’t.  Just like the actor who practices his lines aloud until he owns the lines, you should practice your statement aloud they become your words.

The last thing you want is to stumble or trip over the phrase when you’re trying to be persuasive, so practice saying it aloud until it’s second nature.  Follow these simple steps, and soon you’ll be uttering the magic words of admissibility with ease!

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