Things were going great.  You’d picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped.  Now, halfway through the direct examination of the day’s final witness, things are still going exactly as planned.  Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice.  But then, midway through your examination, something unexpected happens when you ask this crucial question:

Q. “What is the worst fraternity on this campus?”

A. “Well that would be hard to say, sir.  They’re each outstanding in their own way…”

Every other time that you’ve asked this question during your pre-trial preparations with this witness, he’s been quick to identify the offending fraternity.  But now, his brain seems to have gone blank.

[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn’t expect.  If you try to ignore it, the bad answer will destroy your case.  If you try to lead the witness to the correct answer, your opponent will object.  What do you do?  What do you do?”

First things first: DON’T PANIC! Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses.  The worst thing you can do at this point is to give your jurors the impression that you’ve just lost the case.  Chances are, the witness’s incorrect answer isn’t nearly as fatal as you think it is, so put on your poker face.  If you freak out, the jury will amplify the importance of the negative answer.  Just keep your cool — you can fix this.

The next step, before you start jumping through evidentiary hoops trying to refresh the witness’s recollection or establish a past recollection recorded, is to ensure that your witness really doesn’t remember.

“What do you mean, ‘ensure that he doesn’t remember’?  Of course he doesn’t remember, because otherwise he would have answered my question correctly!”

Actually, that’s not necessarily true.  Often, witnesses know the correct information, but the reason why they don’t answer correctly is because we ask them lousy questions.  Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory.  For example, set some parameters for your question, and make it easier for the witness to answer:

Q. “Based on their GPA’s and disciplinary records, what is the worst fraternity on this campus?”

A. “Oh, that would be Delta house, sir.”

Sometimes, that’s all you’ll need to do to get the right answer.  But if rephrasing the question doesn’t work, you can also try asking for the information in a different manner.  Are there other questions you could ask that get the same answer?  Consider stacking those questions on top of one another:

Q. “Who dropped a whole truckload of feces into the swim meet?”

A. “Delta house.”

Q. “Who delivered the medical school cadavers to the alumni dinner?”

A. “Delta house.”

Q. “Every Halloween, the trees are filled with underwear.  Every spring, the toilets explode.  Which house is responsible for these shenanigans?”

A. “Delta house.”

Q. “What is the worst fraternity on this campus?”

A. “Delta house, sir.”

Q. “Of course I’m talking about Delta, you TWERP!”

It’s not as graceful as the first method,  but it still gets you to the correct answer without having to ask any leading questions.  But let’s say none of these rephrasing techniques are working.  Regardless of how you rephrase the question, your witness still can’t remember.  What do you do then?  When you’ve exhausted rephrasing techniques, the next step is to refresh the witness’s recollection.

Jurors understand that witnesses sometimes need help remembering details.  For example, if I asked you what you were doing on July 10th of last year, you probably wouldn’t be able to remember.  But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did.  That’s the reason why the rules of evidence allow witnesses to refresh their recollection.  Here is the process you’ll need to follow to help your witnesses remember:

Step 1. Show that the witness can’t remember.

Q. “What is the worst fraternity on this campus?”

A. “I can’t remember.”
A. “I don’t know.”
A. “I cannot recall.”
A. “I used to know, but I can’t think of the answer right now.”

Showing the witness’s lack of memory is an essential step that can’t be overlooked.  Unless you can show that the witness doesn’t remember, you won’t be allowed to refresh his recollection.  There’s a world of difference between the witness who can’t remember and the witness who remembers the wrong answer.  You can’t refresh a witness’s recollection simply because he’s giving you a bad answer.  (You can impeach him, but you can’t refresh his memory.)

Step 2. Show that the witness previously remembered the information.

Q. “Did you used to know which fraternity was the worst on campus?”

Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”

Q. “DId you previously remember which one was the worst?”

Step 3. Ask the witness if there’s anything that would help refresh his memory.

Q. “Would it refresh your recollection to look at your report?”

A. “Yes, if I could review my report, that would help me remember.”

Q. “Is there anything that would help you remember?”

A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing ‘Shout,’ I think that would refresh my memory.”

Q. “What do you need to help you remember?”

A. “If you’d let me smash a beer can against my forehead, that always triggers my memory.”

The important thing to remember about refreshing memory is that you’re not limited to showing the witness documentary evidence.  Typically, you’re going to use written documents to refresh witnesses’ memories, but understand that you’re not limited to paper exhibits.  If there’s anything that helps the witness remember, you should be permitted to use it to refresh their memory.

During this step, it’s often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember.  For example, let’s say you’re dealing with a police officer who makes lots of DUI arrests each year.  By the time the case reaches trial, it’s understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he’s worked.  Before he uses his report to refresh his memory, you’d want to ask him about the report.  “How soon after the arrest did you write the report?  Why did you write it?  How detailed does it have to be?  How accurate are you when you write it?  What details do you include?  Is it intended to help you remember details about the case months, years, or even decades afterwards?”  By asking those details, you help show the jurors that the refreshed memory will be accurate.

Step 4. Show the refreshing item to opposing counsel.

Step 5. Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he’s finished.

Step 6. Ask the witness if his memory has been refreshed.

Q. “Having reviewed your report, does that refresh your memory?”

Q. “Did smelling the stale beer and listening to ‘Shout’ help you remember what fraternity is the worst on campus?”

Q. “Now that you’ve smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”

[If the item doesn’t refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won’t be able to use the “Refreshing Recollection” predicate.]

Step 7. Once the witness has refreshed his memory, re-ask your original question.

Q. “Now that you’ve refreshed your memory, please tell us, what is the worst fraternity on campus?”

A. “That would be Delta house.”

It’s a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he’s testifying from his refreshed memory, and not merely reading aloud from the document.  The jury wants to see that the witness has an independent memory of what happened, and isn’t merely parroting what he just read.

Hopefully, you’ll never run into the problem of having a witness forget what to say.  But, if you decide to try cases in the real world, sooner or later, it’s bound to happen.  When it does, use these quick tips to help refresh your witness’s memory, and your case will be back on track before anyone even notices.

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When I was a kid, we didn’t have HBO, Netflix, or Movies-on-Demand. Back then, if you wanted to watch a movie, there were only two choices. You could either go to the theater, or watch whatever was being televised on network TV.

When it came to broadcast TV, you didn’t have any control over which movies would be shown, but at least one movie was guaranteed to be re-broadcast every year. From 1959 to 1991, The Wizard of Oz was an annual television tradition. First shown on the big screen in 1939, The Wizard of Oz is one of the most famous movies ever created, and is adored by legions of fans. Some of the characters in the film, such as Dorothy, The Cowardly Lion and The Tin Man, are among the most beloved characters in movie history. But one of the characters in the movie is portrayed as one of the most evil characters ever written. The filmmakers went so far out of their way to label her as being wicked that they actually call her the “Wicked” Witch of the West. They did such an excellent job of selling her “wickedness” that generations of moviegoers have recoiled at the sound of her cackling laugh and promises to “…get you, my pretty, and your little dog, too!”

But here’s an interesting question: What if she wasn’t really wicked, but merely portrayed that way by a biased storyteller?

In 1995, Gregory Maguire decided to set the story straight in his book, Wicked: The Life and Times of the Wicked Witch of the West. In this version, he reveals the Wizard of Oz as a corrupt government leader intent on subjugating his citizens, depicts Glinda the Good Witch as a self-absorbed snob, and tells a much different story about what really happend on the road to Oz. Most importantly, we learn that Elphaba, who will later become known as “The Wicked Witch of the West,” is not an evildoer, but merely a crusading animal rights activist intent on saving defenseless creatures from the Wizard’s maniacal plans. This version of the story was so so powerful that it was adapted into a wildly successful Broadway show, simply entitled Wicked, that became a Broadway hit in 2003 and proceeded to break box office records around the world.

Here’s the important lesson for trial lawyers to note. There are always two sides to every story. Although both stories in this case were built around similar characters and similar “facts,” they lead to wildly divergent conclusions. In one story, she’s the most “wicked” person in the kingom. In the other, she’s a kind, caring individual who’s character has been assasinated by a corrupt government.

As John Quincy Adams once said, “Whoever tells the best story wins.” In this case, both storytellers did remarkable jobs of pulling in the audience and constructing plausible, persuasive stories, but in the courtroom, only one storyteller can prevail. As a trial lawyer, it’s your job to tell your client’s story persuasively so that you win.

However, when you’re creating a persuasive storyline in court, you’re going to face a few limitations that most storytellers will never encounter. Most importantly, you’re not permitted to change the facts, re-cast the characters, or make stuff up. (As I’ve said before, “your facts are your facts.” If you try to change them, you’ll lose your license to practice.)

So if you can’t change your facts, how can you tell a persuasive story?

One of the most important things you can do is change how you frame your case. Framing makes a tremendous difference. If I show you a picture framed in a cheap plastic frame, you might think to yourself, “Eh… it’s alright, but nothing special.”

But, if I take that same picture to the frame store, get it matted, framed, placed behind non-glare glass, and framed in an elegant wooden frame, you might think, “Wow! That’s an amazing picture!”

Nothing about the picture changed — only the way it was framed.

How you frame your case makes a huge difference. Your facts are your facts, but the way you frame your story makes a tremendous difference in how the jury will view it. One of the most important lessons you need to keep in mind when framing your case is that your jurors don’t want to fight against inertia. They like to leave things the way they are, and not challenge their views of the world. The more you force them to fight their natural instincts, the more difficult you make your job.

For example, think about a case involving police brutality. Most of your typical jurors think that the police officers in their community are good, honest people doing a difficult, thankless job. If you try to frame your case as a story of “cops are bad,” then you’re swimming upstream, fighting against the jurors’ instinctual beliefs. However, if you reframe your story as “Cops are good, and the best way that we can continue to protect the good cops is to point our fingers at the bad ones,” you can use their instinctive beliefs and attitudes to your benefit. Same facts, different story.

The next time you go to court, your client will be depending upon you to tell (and to sell) his story to the jury. Don’t merely recite a bland story for them — pick through the facts so that you can tell the most persuasive story possible. Don’t accept the common thinking that your client is “wicked” — spend as much time as necessary thinking about how to reframe your facts, and you’ll be able to tell a story that portrays your client in the most positive (and persuasive) light possible.

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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.

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