We were halfway through the direct examination of my star witness when I asked, “What did you hear Mr. Thomas say?”

Even if you got a “D-” in your evidence class, when you saw that question you instinctively thought to yourself, “Objection! Hearsay!” My question called for the most obvious objection in the world, right? That’s why it’ll probably surprise you that my opponent didn’t jump up from his seat to yell “Objection!” In fact, he didn’t say a word. He just sat there and continued taking notes.

Before you ask, no, he hasn’t been disbarred, and no, he’s not an idiot. The reason he didn’t object was because he couldn’t. Mr. Thomas was my opponent’s client, so the statement was an exception to the hearsay rule: Statements of party opponents (or, as it’s more commonly called, “admissions” or “statements against interest.”)

Admissions, especially when they’re caught on tape, are usually the most damaging evidence your jurors will hear. If you’re lucky enough to have a taped admission from your opponent, there are a number of wonderful things you can do with that evidence. For example, let’s say that you’ve got a 30 minute recording of a statement your opponent gave to the police about the crash. How many different ways could you use that recording? The first and most obvious choice would be to play the entire statement for the jury during your case-in-chief. You’d simply call the police officer to the stand, ask him to authenticate the recording, and then hit “PLAY.” Nothing to it, right?

The next way to use the recording is during cross-examination. Normally, when cross-examining witnesses about prior inconsistent statements, you confront them with the prior statement by reading it aloud from the transcript. Imagine how much more powerful your impeachment would be if the jurors heard the inconsistencies from the witness’s own mouth? It would be a lot more difficult to deny the prior statement, wouldn’t it?

Attorney: “You hoped Mr. Lumbergh would be fired, didn’t you?”

Witness: “No, of course not!”

Attorney: “Publishing the audio statement previously admitted into evidence as Defense exhibit #22…”

[Recording of witness’s voice]: “Lumbergh is a twit. If I had my way, they’d fire him, and stick that coffee mug up his you-know-what…”

Another way to use recorded statements is during closing argument, by playing individual snippets of testimony back-to-back so the jury can compare and contrast the statements:

Attorney: “The day after the murder, John Jones said that he had been home the entire evening. Remember his statement to Ofc. Smith?”

Recording of Jones’ statement: “Dude, I was home all night, I wouldn’t lie to you about that. I swear I was home the entire night. I never left the house.”

Attorney: But the very next day, when he was interviewed again, he made a very different statement, remember?

Recording of Jones’s statement: “I left the house around midnight and went to Krystal’s for some mini-burgers. I was only gone for like 45 minutes or so.”

In the old days, if you were lucky enough to have a recorded admission you wanted to play in court, the only easy way to do it was to bring your handy-dandy cassette recorder and play the entire statement. But the problem with playing the entire statement is that the recording rarely consists solely of statements against interest. Usually, recorded statements also include lots of self-serving hearsay and irrelevant comments. Out of the entire 30 minutes worth of “admissions,” you may want the jurors to only focus on less than a minute or two worth of testimony.

Back then, if there were any parts you needed to skip (such as suppressed statements) or any parts you wanted to highlight, you’d be stuck hitting the fast-forward button and keeping your eyes on the tape counter until you found what you were looking for. At best, it took too much time to fast-forward to the appropriate spot. At worst, your presentation became a comedy of errors as you fumbled and bumbled with the fast-forward and rewind buttons until anti-climatically reaching your impeachment material.

Luckily, nowadays, you’ve got digital technology at your fingertips which dramatically improves the ease of presenting recorded statements. And the best thing is, you don’t need to spend a fortune on professional editing equipment or fancy software to get the benefits of audio editing. With the help of a free program called Audacity (available for both Mac and PC at http://audacity.sourceforge.net/), you’ve got an easy way to edit audio statements on your laptop. All you need is a digital recording of the witness’s original statement and some basic knowledge about how to cut and paste on a computer. Once you install the program, you’ll see a screen that looks something like this:

The program is pretty easy to use, and they’ve got full documentation on their site. Once you or your assistant learn how to use it, you can do some amazing things with audio statements. For example, here are some of the different ways you can use this program:

Redacting an audio statement to remove irrelevant sections. No longer do you have to worry about the jury hearing irrelevant, suppressed, or improper comments. Simply highlight the improper comment and click <DELETE>. Presto! The statement will be removed, and you can now save the file as a new audio recording.

Extracting admissions from longer statements. Let’s say you don’t want to replay the entire witness statement, but only want to replay a small snippet. Audacity makes it easy to extract those admissions from extended audio recordings. Here’s all you’d need to do:

1. Go to <PROJECT> and click <IMPORT AUDIO>.
2. Choose the audio recording you want to import.
3. Use the selection tool to highlight the audio segment you want to export. (It’s almost the same as highlighting a paragraph in Word and clicking “Copy”)
4. Click <FILE> and scroll down to <EXPORT SELECTION AS WAV>
5. Choose a filename for your recording. (It’s easier to retrieve the correct statement during trial if you use descriptive titles for each file, such as “The Light was Red” or “The Light was Green”).
6. Click “SAVE”

That’s it! Now you have a standalone .WAV file of the admission that you can play on any computer. Be creative and think of how you could use those admissions. Could you use them during settlement negotiations by burning a “Greatest Hits” CD for your opponent? (“Here are the six times during depositions where C.E.O. admits to liability.”) Or import the statements to your iTunes playlist, so you can quickly click on the correct statement to impeach witnesses during cross-examination?

Maybe you want to use the statements during closing to compare and contrast what different witnesses said about the same events: “What was their understanding of the performance metrics for promotions? Let’s hear what the CEO, Jon Smith, had to say [PLAY CLIP #1]. But the CFO, Jane Smith, said something entirely different [PLAY CLIP #2].”

Statements of party opponents, especially recorded ones, can be some of the most powerful evidence you’ll ever admit. But just as with every other exhibit or testimony that you’ll ever offer into evidence, it’s not enough to simply understand what you should show to the jury. To get the most out of your evidence, you’ll also need to master knowing when you should admit it and how you should publish it. Learn how to use an audio editing program like Audacity to extract your admissions, and you’ll be able to play them to maximum effect for your jury.

Share This

Every single second of every single moment of his opening statement was filled with the sound of his voice which when you think back upon it you have to admit you were kind of amazed because there wasn’t a single comma or period or pause I mean did this guy even need to breathe it didn’t seem like it because he just kept going and going and going without regard to oxygen or jury expectations or even the court reporter it was almost as if he was afraid that the thought of pausing would let someone else start talking and that would simply be unacceptable for him so rather than pausing for even a moment and letting you think about what he was saying he just kept talking and talking and…

Unfortunately, many trial lawyers’ opening statements and closing arguments seem to feel like this.

They either have such a poor understanding of the pause’s importance of pausing or don’t know how to effectively pause that you’re tempted to say, “Whoa, buddy! Stop! Take a breath before you pass out!” One of the most powerful tools in your opening statement and closing argument toolbox is the well-placed pause. Often, that brief moment of silence following a profound thought can be more important that the words themselves.

“WHY SHOULD I PAUSE?”
Imagine reading a newspaper without a single comma, period, or paragraph indentation – just word after word after word. How far could you read before losing your train of thought?

An opening statement or closing argument without any pauses feels exactly the same way to your jurors.

Do you want the jury to remember your message? To understand it? Do you want them to take the message into the jury deliberation room, and incorporate it into their verdict? If so, you need to give them a chance to stop and reflect upon what you’re saying. Here are three reasons why you need to effectively pause during your opening statements and closing arguments:

A pause lets us think. Many trial lawyers ask rhetorical questions during closing argument, but then move immediately to their next sentence without pausing. This robs the jury of their chance to think about how that question should shape their verdict or how it might apply to their deliberations. Pausing for a moment lets the audience answer the question and wrap their minds around your message.

A pause helps us feel. During opening statements, you often describe emotional scenes of great pain, fear, or loss. The best trial lawyers describe these moments with such clarity that the jurors feel exactly what happened to the clients and, on their own initiative, place themselves in the clients’ shoes. (Notice that I said, “on their own” — please don’t think I’m encouraging you to make any arguments that violate the Golden Rule!) After describing an emotional scene, give the jurors a moment of silence so that they can absorb its impact and “feel” the same experience.

A pause helps us absorb ideas. Your message travels at the speed of sound. Even in the largest of courtrooms, it travels from your mouth to the jurors’ ears almost instantaneously. But often, it takes a few extra seconds for your message to travel the last few inches from the jurors’ ears to their brains. Pause for a moment, and you’ll give your message enough time to complete its journey.

“WHEN SHOULD I PAUSE?”
There are several opportunities in every opening statement and closing argument where you might consider pausing:

• After you’ve said something important
• After you’ve asked the jurors a rhetorical question
• When you want the jurors to think
• When you’ve asked the jurors to remember a moment in
  their past or envision a common experience
• When you hit an emotional moment
• As a transition between points

Look through the outline of your opening statement or closing argument to find moments where your jurors need to mentally “breathe.” Notate your outline or make a mental note, so that you purposely pause at the appropriate moment.

“HOW DO I EFFECTIVELY PAUSE?”
Even when they purposely pause during their presentations, most trial lawyers underestimate the amount of time that they’ve paused. What seems like an eternity of silence before the jury may, in fact, last only a second or two. Here are three tips for holding your pauses for maximum impact:

Count silently. “One Mississippi, two Mississippi, three Mississippi, four Mississippi…” and then resume.

Look around. Make eye contact with at least three different members of the jury before continuing.

Get uncomfortable. Pause for one second longer than feels comfortable. The pause won’t be nearly as long as you think it is. You’ll feel uncomfortable, but your jurors won’t.

Effective trial lawyers know how to pause at the right moment and hold their pauses long enough to let jurors think, feel or respond appropriately. When you master the skill of pausing in your openings and closings, you’ll enhance the impact of emotional moments in your case and will help your jurors absorb the important issues in your case. It may feel uncomfortable at first, but before long, those pauses will become a natural part of your repertoire, and an essential element of your winning arguments.

Share This

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.

Share This