// At trial, pace matters.

It especially matters during jury trials, where lingering on a point can be the difference between winning and losing.

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But it also matters in bench trials. Judges are, after all, human. If you want them to remember something, linger on it.

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This is quick impeachment, and thus not very effective:

“You’ve since admitted what you said in your deposition was wrong. Is that correct?”

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But this is long, slow, painful impeachment, which is far more effective:

“I know that you’ve since changed this testimony, but you originally said X at your deposition?”

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“X was your best recollection at the time?”

“You knew you were under oath when you testified to X?”

“When you said X, you believed you were testifying truthfully and accurately?”

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“You weren’t trying to deceive anyone?”

“But now you’ve decided that X was wrong?”

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“In fact, X was wrong at the time that you swore under oath that it was true?”

Or some such thing.

Both of these lines of cross-examination make exactly the same point.

But one will stick in the listener’s memory: The leisurely cross-examination occupies more time; it develops more slowly; it reveals itself painfully and repeatedly (though always in different words, so as not to be redundant).

The same is true of any point that you want a jury to really understand.

Not:

“You crossed the street at 3 p.m.?”

If it matters:

“Let’s talk about February 15 at 3 p.m. February 15 was a sunny day?”

And several more questions, setting the stage, giving the background, and letting the jury stew in it.

Finally: “At 3 p.m. on February 15, you crossed the street?”

As another form of stress, if you want to emphasize a point, you can refer back to it repeatedly. Thus, here’s a bad cross-examination:

“What happened next?”

“What happened next?”

“Tell us what happened next.”

“Can you tell the jury what happened next?”

And here’s the same thing, stressing a point that matters:

“After you saw Jarndyce, did you walk across the bar toward him?”

“After you walked across the bar toward Jarndyce, did you pull out a knife?”

“After you walked across the bar and pulled out a knife, did Jarndyce ask the bartender for a drink?”

“After you walked across the bar and pulled out a knife, did the bartender pick up a bottle of bourbon?”

“After you walked across the bar and pulled out a knife, did the bartender pour Jarndyce a bourbon?”

“After you walked across the bar and pulled out a knife … ”

It’s all the same thing, but one version sticks in the jury’s memory, and the other does not.

Which means one examination is effective, and the other is not.

Which means one version could lead to victory at trial, while the other might not.

At trial, pace matters.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

Topics

Biglaw, In-House Counsel, Mark Herrmann, Trials