EMPHASIS ON DIRECTAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 73, No. 13 (NOVEMBER 1, 1987), pp. 116-117Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759604 .

Accessed: 12/06/2014 18:25

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

American Bar Association is collaborating with JSTOR to digitize, preserve and extend access to ABA Journal.

http://www.jstor.org

This content downloaded from 195.78.109.54 on Thu, 12 Jun 2014 18:25:50 PMAll use subject to JSTOR Terms and Conditions

Litigation

EMPHASIS ON MRECT BY JAMES W. McELHANEY

Some people simply cannot do it

right. Former President Harry S. Tru man was a perfect example. He had trouble reading speeches with the proper emphasis; everything he said had a wonderfully flat Missouri twang. So, according to legend, his

speech writers took to putting in structions to the president in his speeches, advising him how to de liver them. The next thing that hap pened was that Mr. Truman was in the middle of a nationally televised address on the budget, and he found himself saying, "Raise your voice here, Harry."

Emphasis?making something stick out so that it is noticed?is one of the keys to effective persuasion. But in trial, too many lawyers use the Ugly American method of emphasis. Like boorish tourists, they seem to think that if they keep repeating something loudly and slowly, they will get their point across. The results are more painful than effective.

Emphasis on direct examination

presents a special challenge. Except in unusual situations, direct exami nation is the time the spotlight should be on the witness, not the lawyer. The witness, not the lawyer, does the tes

tifying. But when it comes time to make sure that some crucial bit of

testimony gets the proper attention, it is the lawyer who must do some

thing about it. Fortunately, there are some techniques that work better than the Truman cure.

ORGANIZATION Just as youth is wasted on the

young, the beginning of direct ex amination is usually wasted on intro ductions. And the beginning is

important. The psychological princi ple of primacy is that what is heard first is more likely to be believed. If

you have a point that is truly essen

James W. McElhaney is the Jo

seph C. Hostetler Professor of Trial Practice and Advocacy at Case Western Reserve University School

of Law. He is a Senior Editor of Lit

igation, the journal of the Section of Litigation, and is the author of the

regular column, Trial Notebook.

^J ^ ^^^^ ^'' ^ ^ ^ smo11

tial to your case, one place to put it is in the very beginning?followed by the introduction. The end is a special place, too. According to the principle of recency, what is heard last is most

easily remembered. And if you must include something that you do not

want stressed, bury it in the middle.

HEADLINES The traditional way to introduce

a new topic on direct examination is to ask a convoluted question in tor tured legalese:

Q. Directing your attention to the evening of October 27,1 ask you

what, if anything, were you doing on that occasion?

Nothing that bleak is required. Instead, try using a headline. Tell the

witness?and everyone else?what

the new topic will be: Q. / want to ask you about the

evening of October 27. Tell us where you were at about 9:00 p.m.

The headline does a lot of good things. It lets the jury see your organ ization, so it makes direct examina tion easier to follow. Second, it keeps the witness on track. Third, it helps

you emphasize what is important.

SUSPENSE Suspense literally means hold

ing something up. People are in sus pense when they know something is coming and want to find out what it is. While that definition seems ob vious, it is the key to using suspense successfully. The jury will not be kept in suspense unless they know some

thing important is on the way. Although letting them know that

something is coming can be done by implication, probably the easiest way is to do it directly, right in front of everyone. In this example the only extra preparation necessary is to tell your witness (who in this case is an

orthopedic surgeon) not to give the plaintiff's prognosis until you ask for it directly. That lets you put it in sus

pense:

Q. Doctor Preston, one question before we get started. Will you be able to give us your professional evaluation of Joe Wilson's chances

for ever getting out of his wheel chair?

A. Yes, I will.

116 ABA JOURNAL / NOVEMBER 1, 1987

This content downloaded from 195.78.109.54 on Thu, 12 Jun 2014 18:25:50 PMAll use subject to JSTOR Terms and Conditions

Litigation

Q. I want to go into your eval uation of Joe Wilson in just a min ute, Doctor, but first I need to ask you some questions about your professional background.

There is nothing fancy about it, but it starts the jury thinking about what is coming next.

PAUSES Silence is one of the most pow

erful forms of emphasis. So long as you look as if you are doing it on pur pose, you can stop for as long as you like and the courtroom will belong to you. But, if you are embarrassed or look confused, the silence will not last long. Someone else will fill it.

TONE OP VOICE You do not need to raise your

voice; dropping it for emphasis ac

tually works better. When you drop your voice, people have to work harder to listen, and they will, but only for a little while. If listening be comes too much work, they will turn their minds to other things.

MOVING Everyone knows that pacing is

distracting. But that does not mean you have to stand in one spot throughout direct examination. Pro vided you are not appearing before one of those unfortunate judges who thinks it is important for lawyers to stay behind the lectern, purposeful movement helps break the monot ony. (And if you are before one of the unfortunate judges who wants you to remain still, use an exhibit as a rea son for moving at the right time.)

REPEATING THE ANSWER It is improper just to repeat what

the witness says in the hope that will help it sink in. Done to excess, it will bring an objection that should be sus tained. Even if there is no objection, habitually echoing the witness an noys the jury. So what in the world is the idea?

James W. Jeans has a marvelous suggestion for how to repeat the an swer the right way in his book, Trial

Advocacy (West, page 224, 1975). When the witness uses a phrase that you want repeated, make that phrase part of your next question:

"Q. Did you see the plaintiff be fore the accident occurred?

A. Yes, I saw her when she

darted right in front of my car.

(There's the magic phrase.) Q. How fast were you traveling

when this girl darted right in front of your car?

A. Approximately 20 miles per hour.

Q. And where in the street were you traveling when this girl darted right in front of your car?

A. About two feet from the cen ter line."

EXHIBITS Pictures, maps, diagrams and

sketches can often make points all on their own. Chosen well, they create their own emphasis. But they can also emphasize testimony. One particu larly effective technique is to have the

witness go through a segment of his testimony without the demonstra tive exhibit. Then when the exhibit is introduced, you can have him go over the highlights again, this time using the exhibit.

RE-ENACTMENTS Re-enactments can be power

ful?and dangerous, too. The lore of the law is filled with stories about courtroom demonstrations that have backfired. Impulse is the road to dis aster. The way to stay out of trouble is to plan re-enactments, rehearse

them with the witness and keep them simple. If you want to show that the witness had a good opportunity to see the defendant, have him stand as far away from the defendant as he was on the night of the fight; do not have him re-enact the fight.

PRESENT TENSE You may not believe this will

work, so try it on someone who does not know what you are about. The results are impressive.

We usually examine witnesses using the past tense. After all, most testimony (other than some expert opinions) deals with the past, not the future. And naturally, our witnesses answer us in the past tense as well. But if you start asking questions in the present tense, about four out of five witnesses will start answering in the present tense.

The effect on the testimony is striking. Everything seems more alive, and it is, because the witness is reliving the event, and the jury is going through it with him.

But what if it does not work? About one time out of five the wit ness will keep talking in the past tense even though your questions are in the present. It does not matter, because the effect of the change in verb tense is subconscious. No one but you will know that the witness has stayed in the past; everyone else will be con centrating on the content of the tes timony. But even the present tense of just the questions will have a subtle impact on the jury.

There is a cardinal rule to follow if you use this technique: Never tell the witness you are going to do it. Simply switch to the present tense when you come to the part you want to emphasize.

One final note. Whatever tech niques you use, emphasis on direct examination is like underlining in a book. Be sparing. Pick what is worth stressing, but do not overdo it. If you want something to be noticed, you cannot underline everything.

ABA JOURNAL / NOVEMBER 1, 1987 117

This content downloaded from 195.78.109.54 on Thu, 12 Jun 2014 18:25:50 PMAll use subject to JSTOR Terms and Conditions