Yesterday was an historic day in the U.S. House of Representatives. For more than eight hours, Democratic and Republican members of the body gave short alternating speeches for and against the motion, before impeaching Donald Trump for abuse of office and obstruction of Congress. Watching the livestream on background as I worked in the office, I was quickly struck by how each side kept saying the same things over and over again. Democrats, in somber tones, repeated the facts and the timeline that we have all become familiar with, while Republicans, in emphatic expressions of disbelief, decried the process and the politicization. The speeches were driven, of course, by each member wanting their moment of history. But before too long, the numbing repetition of it all led me, as interested as I am, to simply put it on mute and wait for the vote.
The problem of repetition, or perceived repetition, can be an acute issue in the courtroom as well. Whenever I conduct interviews with jurors after the conclusion of a trial, that is almost always the number one criticism jurors have of lawyers: “Don’t repeat yourselves so much.” Judges can also have a quick trigger on the reaction of “I’ve heard this already.” The best solution, of course, is to be judicious about your content and keep repetition to a minimum. But it can be difficult when you also want to make sure that the factfinders get what they need in order to understand and trust your case. In addition to avoiding actual repetition, litigators also need to reduce the appearance of repeated content. Audiences can hear it as a replay even when there’s a nuance of a difference. So in this post, I’ll share four quick ways to signal that your information is new and not a repeat of what they have already heard.
Say, ‘Here Is What You Have Not Heard’
As I shared in a recent post, it is a good attention-regaining strategy to simply say, “Here is something that you haven’t heard yet.” You might believe that jurors would assume that about all your content, but when you have both sides and multiple sources speaking on the same general topics, it may not always be clear when content in genuinely new. In particular, in a Defense opening statement, it’s useful to focus on facts, issues, or perspectives that the other side has not yet brought up:
Now, at this stage, it wouldn’t be surprising if you were getting tired of hearing about this issue. But there is one fact you have not heard, and it is an important one.
Say, ‘But Wait, There’s More’
It is a common strategy in sales pitches: Once you get to the point where your target might be seriously thinking about whether to buy or to pass on your pitch, the seller disrupts that process with a sudden new feature: “But wait, there’s more…if you order now, you get six steak knives at no additional charge.” As I have written before, that tactic of saving a fact or an argument for later can work in litigation as well. Adding an appeal at the moment your audience might be wavering helps to say, “Pay attention, this is new.”
At this point, you have heard several good reasons to believe this testimony is not accurate. But there is one more reason we have not gotten to yet…
Say, ‘We Need to Look At This In a New Way’
It is the nature of legal presentations that you often cover the same issues with different sources. You covered it in opening, now you need to back it up using a witness, and ultimately you will use it in an argument in closing. To a lawyer, that is checking the proper boxes, but to a juror, it can sound like repetition. Ideally, when an issue is covered more than once, emphasize how it is being covered in a new way at this stage.
We have heard about this event, but have not yet heard from those who were present at the time, so let me ask you a few questions.
The previous witness testified about the problem from an engineering standpoint, so now let’s look at it from a manufacturing perspective.
You have seen all the evidence, but now in the closing, it is our job to put the pieces together.
Make Your Structure Explicit
A final and important way of combatting the perception of repetition is to keep announcing your main points. By keeping your structure explicit and including the use of transitions and signposts, you create the sense for the audience that we are continuously moving on to something new. Even if there is overlap in substance, and some repetition, the use of a sequence that you continue to convey to your audience helps to regain attention periodically. Clear and explicit structure is also the best way to avoid repetition in legal writing: Cover it well, cover it once, and give it a heading so the reader knows when it is covered.