Unconscious Effective Practices

This article was published in the Winter 2018 edition of the Oregon State Bar's Litigation Journal.

Anyone who has prepared to run a marathon or has become a serious bicyclist knows that you tend to become introverted, introspective, and egocentric. For instance, you worry about whether you’ve placed sufficient oil between your toes to avoid chafing and whether you’ve been able to remove an additional two ounces of weight from your bicycle. So an effective trial practice requires great attention to detail and at times what must seem to be an introverted, introspective, and egocentric approach to the practice.

Discussed below are a few effective practices that most of us regularly employ unconsciously. In an effort to improve our skills of persuasion and to enable us to pass those skills on to those who will follow us, it makes sense from time to time to stop and analyze what good trial practitioners do automatically.

a. Generally.

Impact points in questions can have a substantial effect on the persuasiveness of the presentation of evidence.

Clarity and emphasis are generally improved by placing your impact point near the end of a sentence. The impact point is the word or phrase that you are trying to emphasize, the point that the questioner is attempting to draw to the fact-finder’s attention. For instance, if the questioner is trying to draw to the fact-finder’s attention the time of day (perhaps because the witness was late for work, which begins at 8:30 a.m.), the questioner might ask:

On the other hand, if the point to be emphasized is the kind of car that the witness was driving, the question would be asked:

The impact point belongs as close to the end of the sentence as you can place it without twisting your syntax because once you have communicated your point of emphasis, the listener tends to stop listening. Put another way, the purpose of your sentence is to get to your impact point. Once you have gotten to it, end the sentence. Keeping impact points in mind generally assists the questioner in shortening his or her sentences and avoiding rambling, complex sentences that often obscure the very point that the questioner is attempting to make.

b. On cross-examination.

Particularly on cross-examination the impact point should be at the end of the sentence, leaving the witness no time to think. Returning to the question:

That phrasing leaves the witness no time to think before answering the question. The fact-finder will notice any unusual hesitation, and it will cause suspicion. In contrast, if the point of emphasis were placed in the middle of a longer complex sentence, the witness would have several seconds to think of a response before answering. A less effective question would be:

c. On direct examination.

Just the opposite practice should be undertaken with your own witness on direct examination, particularly if the witness is nervous. You want to give the witness as much time as possible to answer questions and not present the impact point at the last second unless you are sure that the witness is ready to handle the question. For instance, if you want to know what the witness saw on the morning of May 14, 1998, at the corner of the intersection, you might ask:

d. Greater emphasis for impact points.

Impact points can be further emphasized by a number of other speaking techniques, including:

• Change of pace
• A pregnant pause before the emphasis point
• Change in the tone of your voice
• A slight nod of your head
• Turning your body toward the fact-finder and pausing.

The number of means available to draw emphasis to your impact point is limited only by your imagination. The lesson is to stop and consciously determine the "point" that you are trying to make with each question and then deliberately structure the question to increase or decrease the "impact" of the point.

One’s eyes are often the most powerful means of communicating. Actors and actresses know that credibility and persuasion arise only when you put aside your script and look at the other actors and actresses with whom you are communicating. Similarly, seasoned practitioners use their notes to only a limited degree as they realize that looking at the witness or looking at the fact-finder is too powerful a technique to be lost by dependence on a script.

Impact points again can be emphasized with the use of the eyes. If a particularly important question is being asked of a witness being cross-examined, why not turn to the fact-finder and engage the judge’s or jury’s eyes as you ask the question and make your impact point. If necessary, ignore or turn your back on the cross-examined witness. Your eyes draw the fact-finder’s attention to your point and subtly communicate that this is a point of importance and emphasis.

The most accomplished trial lawyers do not speak words; they paint images. They use the language to draw a word picture, which the fact-finder can easily imagine based on his or her experience. Often the specific technique is to use an analogy or a simile.

For instance, your expert witness should be prepared well enough to describe the "unanticipated outward vector of lateral stresses on the fission chamber’s brittle ceramic containment wall" by an analogy that likens the action to a "rock smashing through a living-room picture window." The fact-finder is able to cut through the scientific jargon and understand the analogy and the point. Each of us can easily imagine a rock smashing through the picture window of a home. Although each of us may be envisioning a different living room, a different picture window, or a different size of rock, the image is nonetheless vivid and allows the witness and the witness’s lawyer to have a private dialogue with each of the listeners.

During the course of a hearing or a trial, a memorable image can often be drawn or may even arise as a matter of happenstance. For instance, the witness whose cellular phone rang in his briefcase while he was testifying might provide a rare moment of comic relief. In closing argument, the image of that witness can best be resurrected not by describing the witness’s background, but by simply reminding the fact-finder of the memorable incident:

Immediately the fact-finder will have in mind the image of the witness to whom you are referring. Similarly, if you want to refer to the expert’s testimony about the vector and stresses, don’t repeat the technical analysis; simply remind the fact-finder of the expert who testified about the interaction of the stresses being like "a rock smashing through a living-room picture window."

The beauty of images is that not only do they communicate powerfully in the first place, but also, once an image has been established, the repetition of that image can immediately bring to mind the witness, the result of the experiment, or the point to be made.

All of us are faced with two challenges as we attempt to master the art of persuasion. First, finding the time to prepare with the sufficient detail to be sensitive to issues such as impact points, use of the eyes, creating images, and using our passions. Second, stopping when we see an accomplished practitioner employing these methods and analyzing what was done, how it was done, and how it should be modified to work best for us. All of this inevitably leads to introversion, introspection, and egocentricity.