"I found the closing argument of the prosecution overly repetitive and slightly annoying."
"Excessive evidence to prove case loses attention of jurors"
"They repeated a lot…"
I recently promised you tips gleaned from my do-it-yourself jury surveys. The responses above are typical of the number one critique jurors have of attorneys to the question "What part of the advocacy, or presentation in the case, did you find not persuasive?"
So how do we combat this but still serve our clients and avoid worrying about directed verdicts? In some cases, if the proposition to be proved comes from varied sources, we need to be repetitive to be persuasive. In addition, we want to make sure that the judge knows that we have proved the point, especially if it is an element for which we have the burden.
When I tried cases, I would always construct a proof chart. Along the vertical axis of the proof chart I would put all of the propositions I wanted to prove. For example, let's say I have a case where I want to show that the reason the plaintiff's injuries did not heal was due to the fact that he did not go to all his physical therapy appointments.
I have the physical therapy schedule of 50 appointments as ordered by the plaintiff's own doctor. I also have the physical therapist's records, which show that he missed 19 appointments.
One proposition on the vertical axis is "missed physical therapy." Now, across the horizontal axis at the top I list all the possible sources for that information. In my example, sources for that proposition may be: (1) plaintiff's admissions in his deposition; (2) plaintiff's wife's admissions in her deposition; (3) plaintiff's own doctor (who prescribed the therapy); (4) the defense IME doctor who has reviewed the case; (5) the physical therapist; and (6) admissions set forth in a request to admit facts.
Therefore, I could potentially make the jury hear that he missed the May 17, 2012, appointment from 6 different sources. Do I want the jury to hear that he missed this one appointment from 6 difference sources? No—that would be too repetitive.
The proof chart allows me to do a cost/benefit analysis. Who would be the most effective, but perhaps most risky, person for this proposition? The answer is the plaintiff himself. It would be most effective for him to admit he missed this appointment. However, it is also the most risky because he may try to throw in some legitimate-sounding excuses, which are impossible to impeach.
Unless you have done an excellent job at the deposition closing all possible escape routes, then it is hard to impeach on excuses, such as "I was sick," "my daughter was sick," or "we were all on a mission trip with our church.
Who would be just about as effective, but less risky? The plaintiff's own doctor. The doctor who prescribed the physical therapy and the doctor who, when shown the physical therapy records, would have to admit that the plaintiff did not follow what was prescribed.
So, instead of the jury hearing it six times, they will hear it two or three times, but from the most damaging sources. In this case, they will hear it from (1) the physical therapist when foundation is laid for the records (low risk/high yield); (2) the plaintiff's own doctor (medium risk/high yield); and, if you want to take the risk, (3) the plaintiff (high risk/high yield).
In addition to the proof chart, the only other way I have found to combat repetitiveness is to admit that it will happen and why it will happen. I would tell juries in voir dire or in my opening statement that, from time to time, I may be repetitive. I would ask them to hold that against me and not my client. If given the latitude, I would also tell them why I needed to do it.
If people are warned something is going to happen, the impact is less. The best example is when a child has done something wrong and goes up to the parent and says "Mommy, or Daddy, I made a mistake." The parent's gut reaction is to forgive them even before they know what they've done.
Now, a jury may not reach the point of forgiveness as quickly as a parent, but being forewarned is certainly forearmed. In voir dire, I would say "There will be a lot of evidence in this case from both sides, some of which may be repetitive. Do you think you can listen to each witness even though they may be covering the same ground as another witness?"
On opening, I would say "There will be three witnesses that we will be calling to testify about the events of May 7, 2008, and although it may seem repetitive, all three will testify to these facts." Finally, if I have read the jury well and noted eye-rolling or sighs when presenting my case, I may offer on closing, "Now ladies and gentlemen, I know that I plowed the same field several times with several witness, but if I did not do that, I would not being doing my job. The number of witnesses who saw the same thing is an important part of this case, so please hold that against me and not Ms. Green (client's name)."
"The visual aids, such as the diagrams and the pictures and the written words on the posters describing what happened during the procedure, seemed to tell the story."
"The detailed written report shown on the screen . . . was very informative and helpful."
"The use of the computer, overhead projector, and screen were effective."
All of the above were responses to the question "What part of the advocacy or presentation of the case did you find particularly effective?" This ranks as the number one tool that jurors like in my surveys.
Our society is quickly becoming one made up of visual learners. We used to use our phones to talk to people. Now we use our phones to look at texts or emails.
Studies show that people remember 80–90 percent of what they both see and hear and only 10–15 percent of what they hear. Only by making your case visual does it truly come alive.
I believe an attorney has not adequately prepared for trial unless he or she has created a timeline of events. The next step after creating the timeline is to place that timeline on an actual calendar to see when those events occurred.
When the events are placed on a calendar you can see the events as they relate to other events, such as major holidays or weekends. Moreover, by placing them on a actual calendar, you can also see the gaps in time, which may be just as important or more important than the events themselves.
When you see events in your case on a calendar, you can ask questions, such as "Would that really have happened on a Sunday?" or "right before a three-day weekend?" or "Why wouldn't they have said something before two weekends went by?"
Another visual aid for juries, judges, or arbitrators is a cast of characters. A simple list of who the players are, their roles in the case, where they work, and which side they are on is a valuable tool for anyone trying to sort out issues.
Finally, if you have taken the time to make your case visual, you must be very sure that whoever decides your case can see what you see. In a jury case, at a minimum, you need to go to the actual courtroom and look at your visuals under the lighting conditions in that room. You do not want to do this on the first day of trial.
What may look great on a high-resolution, high-pixel, back-lit computer screen may wash out completely when projected on a screen or on a wall at 4:00 in the afternoon with the sun setting in a courtroom with a western exposure. Trust me on this—what appears yellow on your computer screen may not look yellow when projected on a wall. They need to be able to see what you saw when you put all of this together.
You also do not want to have to be locating plugs, arranging tables, or putting up screens in the morning when you also may have to argue motions and pick a jury. Ask the judge or the court administrator for a time that you can come into the actual courtroom and spend a couple of hours tweaking your visuals.
Once you've done this, you must also have at least one other way to show them your visuals just in case a bulb blows, the power fails, or a computer crashes. Nothing impresses more than an attorney who is so well prepared that he or she can pivot to a blow-up or perhaps an overhead projector in the event of disaster.
Mark A. Drummond is an associate editor for Litigation News and associate circuit court judge of the Eighth Judicial Circuit of Illinois.
Keywords: jury survey, repetition, persuasiveness, visual aids