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.

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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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