Despite familiarity with the phrase “less is more,” lawyers can’t seem to help themselves – they ask question after question after question.
That this irks jurors is beyond doubt. As one article written by a jurist who interviewed hundreds of jurors reported,
The most important theme that came through on evidence presentation: do not repeat what you’re saying. The jurors really, really despise repetition, because they feel like you’re talking down to them. They feel like you think they’re stupid if you keep repeating matters over and over.
Here are some examples of what they said:
“Repeating of the question 304 times”
“Repeated the same thing over and over.”
“Stop asking the same questions over and over.”
“Lots of repeating, same thing—okay, we get it.”
“Would like to see attorneys question the witness without repeating the
same question three different ways and then summarizing.”
“The lawyers constantly rephrasing sucks.”
So the jurors get it. You don’t have to ask the same questions and you shouldn’t ask the same things over and over. Again, they feel like you’re talking down to them. That you think they’re stupid if you keep asking the same thing over and over. And back to the other common theme, you’re wasting their time. They don’t like their time wasted.
So you should ask clear and relevant questions. They don’t like lengthy, compound, or convoluted questions; they like short, clear, and easy to understand questions.
The Honorable Amy J. St. Eve, WHAT JURIES REALLY THINK: PRACTICAL GUIDANCE FOR FUTURE TRIAL LAWYERS, 89 Fordham La.Rev. 2623, 2630 (2021).
Yet lawyers can’t resist. In one post-conviction case, trial counsel was asked why he questioned the detective who interrogated counsel’s client, a cross-examination that elicited only extremely damaging information including the belief that the client was lying. Counsel’s response (verbatim from the transcript)? “That’s what they said to me when he was finished testifying, do you have any cross-examination? And I thought I better do some.” N.T. 12/27/2004, 56-57.
So it was with some relief that I read the news coverage of the Ghislaine Maxwell trial. When the defense team called a co-worker to say that Maxwell and financier/predator Jeffrey Epstein had growon apart and spent little time together at work, the prosecution cross was a pristine one, the bext example possible of “less is more.” As reported by NPR, “the prosecution simply asked, did you ever work at Jeffrey Epstein’s home in New York or Palm Beach? Espinosa responded, no. And the prosecution said, no further questions, which elicited some laughs in the courtroom.”
It is no laughing matter – but the one question cross is indeed a lesson for all of us. What could be more effective – one question confirmed the witness’ complete lack of familiarity with what went on outside of the workplace. Make your point and sit down – the jury gets it.