During the election season we all get a bit tired of slogans and catchphrases, but these tools can be very useful at trial. Keep alert for any catchphrase that comes up at trial or during discovery and be prepared to exploit it for all it’s worth.
Here are a few examples of how catchphrases can be used to your advantage:
- If an expert has used “quick and dirty” to describe his initial opinion, use that phrase over and over again.
- If an executive has described a dangerous condition as of “no concern to Acme,” return to that characterization as often as possible.
- If the prosecution is depending on a felon and proven liar as their chief witness, ask each government agent about the extent of this informer-witness’ misdeeds and then establish the agent’s reliance on the informer, followed by the question: “And [the informer] was an honorable man?” The agents will be forced to admit that the informer was not an honorable man, but must be trusted in this case.
Just as politicians love to seize on a catchphrase used by their opponent, your catchphrase will ideally come from the mouth of an adverse witness.
If a witness excuses error by describing it as “an innocent blunder,” ask that witness, and other hostile witnesses, about every additional error or misjudgment: “Was that an ‘innocent blunder’?” If a government police agent excuses sloppy practices by claiming to have been in a “hurry,” use that word again and again in asking about other careless practices. If a defendant in a criminal case defends some of his actions by claiming that “Charlie forced me,” the prosecutor should ask over and over whether Charlie “forced” the defendant to do other bad acts the witness admits.
But never lapse into sarcasm when using catchphrases on cross-examination. The jury may be put off by heavy-handed questioning and the judge may find the questions argumentative.
Keep your eye on the catchphrase goal: getting the jury to seize on the catchphrase as descriptive of an entire issue.
This is just one of many helpful trial strategies and tactics discussed in CEB’s Effective Direct and Cross-Examination, chap 1.
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