Podcast - Direct Examination: Looping and Bookending

Narrator: You are listening to The Trial Lawyers Handbook, a courtroom preparation podcast series brought to you by Holland & Knight. This series is hosted by litigation attorney Dan Small and is based on a longstanding article series he co-authored with United States District Court Judge, Dennis Saylor, from Massachusetts Lawyers Weekly. Listeners of this series will gain a fresh perspective on how attorneys can address various trial preparation issues and set themselves up for success in and out of the courtroom.

Dan Small: In an ideal world, every direct examination would be perfectly coherent, a clear story told in chronological order, with no digressions. And with all the important things emphasized to just the right degree. In real life, of course. The pieces don't always connect up so neatly. You, as counsel, know how it's supposed to fit together, but the jury doesn't know and may not be able to follow where your presentation is going. Some cases are so complex that they need to be dealt with in a dramatically clear fashion. The American Bar Association recently published a book that I wrote of true stories of trials that I've done over the years. The book is called Lessons Learned from a Life on Trial. Landmark cases from a veteran litigator and what they can teach trial lawyers. One of the cases I talk about is the lengthy criminal trial where I represented former Louisiana Governor Edwin Edwards. The case was so complex that the court had it tried in chapters, essentially different pieces, different parts of the government's allegations, and we would do many openings and start a new chapter. Most cases aren't quite that bad, but there always is a need to help the jury follow along and keep up. Two devices that help mitigate that problem are looping and bookends. Transitional statements. Looping is a technique in which the examiner adds a portion of the previous answer to a question. It has two purposes one. It can help the narrative be tied together, and two, it can help underscore helpful testimony. Looping may be very simple when most lawyers use it routinely. For example, what happened next? We held a meeting in Chicago to work out the details. Who was present at that meeting in Chicago? Mr. Smith, Mrs. Jones and me. Or it could be dramatic. What did you see next? I saw the car hit the baby carriage. After the car hit the baby carriage. What happened next? I saw the driver get out and run away. Used in moderation. Looping is a useful technique. However, like any technique, if you overdo it, it can quickly become less effective. If everything is important, then nothing is important. That's an important rule for everything in trial. If everything is important, then nothing is important. Repetition can also quickly become tedious. Why did you go to college? I attended Northwestern University. When did you graduate from northwestern? In 1977. After your graduation from northwestern? In 1977. What did you do? I attended Harvard Law School. After you graduated from northwestern in 1977 and attended Harvard Law School. What did you do? Enough already. After a few hours of this, most jurors will be pleading inwardly for mercy. Use the technique from time to time, but don't overdo it. Bookends are the transitional statements that mark the end of one part of your story and the beginning of another. Think of your narrative as having chapters, hopefully smaller than in the Governor Edwards case, but every case has chapters of some kind, like a book with headings that alert the reader to a new subject. Although technically not a question, lawyers are almost always permitted to use short transitional statements to help the jury understand when the topic of questioning is about to change, or when you've left the main storyline and want to return. For example, I've been asking you some questions about your background, and now I want to turn to the day of the accident. Let's return to the May 16th meeting. These statements are quite helpful and therefore generally allowed. Don't make them argumentative. You've been telling us about the devastating injuries that you suffered at the hands of the defendant. And now I want to ask you about your severe financial loss. That may be a bridge too far. Save it for closing argument. These two concepts, looping and bookends are not found in any rule book or case law. Yet they can be important aids to an effective direct examination. Like all tools though, use them only for the proper purposes and only in moderation. Don't spoil their value.

Narrator: Thank you for listening to The Trial Lawyers Handbook, a courtroom preparation podcast series brought to you by Holland & Knight. For more information on courtroom preparation, please email Dan.Small@hklaw.com or visit hklaw.com/Daniel/Small.