This article was published in the Spring 2012 edition of the Oregon State Bar's Litigation Journal.
By the time we graduate from law school, we realize that the most powerful techniques for trial practice are primacy (we remember best what we hear first), recency (remember what we heard last), and repetition. Repetition to a degree is the stepsister of the other two techniques. Perhaps because it is overused or misunderstood.
Make no mistake about it, however—if used correctly, it is powerful.
1. Misuse of Repetition.
When the videotape portraying the police beating of Rodney King was played for the 35th time at trial in the original case before the jury in Simi Valley, California, the jury was so calloused from hearing and seeing it over and over again that the initial reactions of revulsion and horror had drained away. Repetition of the same powerful evidence over and over again can dilute its impact and even result in its having an opposite impact.
As a result of this phenomenon, we should be careful to use strong visceral evidence sparingly. The first time tears come to the plaintiff’s face, the jury is moved by them. By the eighth or ninth time, the tears may well have the opposite effect.
Save, savor, and carefully dole out your powerful visceral evidence. This is not where the trial technique of repetition is effective.
2. Repetition of Theme.
In contrast, however, when you have finally boiled down all your evidence, the facts, and your theories into a simple one-sentence theme, don’t be afraid to repeat that theme throughout the trial.
For instance, if the theme of your case is that the defendant will not pay for the new plant that your client built for it because demand has fallen off for its product and it doesn’t need the plant, don’t be afraid to ask half a dozen witnesses about the undisputed loss of demand.
Here repetition can be helpful and reinforce your message to the fact finder.
3. Skating.
Skating is the trial technique that enables you to dwell on, repeat, and savor great testimony that helps your case.
For instance, in a negligence case against a defendant who has caused an automobile collision, you may discover on cross-examination that the defendant had three beers just before the accident.
This is evidence worth dwelling on, repeating, and savoring. Don’t run the risk of hiding this piece of evidence in a long-winded narrative answer by one witness or limit this evidence to one short question and answer.
The first technique is to repeat the answer in your next question. “After you had the three beers . . . .”
Skating, however, goes further; you can dwell on that answer by asking a series of questions that forces the same answer to be repeated over and over again until you are sure the fact finder (and even sleepy juror number 6) has heard it and will remember it. Here’s a short example based on the answer that the defendant had three beers before the accident:
“Q: Were the three beers that you had light beers or dark beers?
“A: Light beers.
“Q: Were the three beers that you had from the tap or from a bottle?
“A: From a bottle.
“Q: Were the three beers that you had imported or domestic?
“A: Domestic.
“Q: The three beers that you had—did you drink them with a glass or without a glass?
“A: I drank them out of the bottle.
“Q: The three beers that you had—did you drink them slowly or did you drink them fast?
“A: I drank the first fast and the last two slowly.”
You know, the witness knows, and the jurors know that you don’t particularly care whether the three beers were light beers, domestic beers, beers in a bottle, beers served with a glass, or beers drunk fast or slowly. In fact, you have known all this information for some time as a result of discovery. But what you do care about is “skating” over that great evidence, time and time again, until you are certain that repetition will make it memorable.
You are skating . . . but not on ice.