Emphasis

It is difficult to pay attention and distinguish the important points when evidence is provided in court. One person asks questions while the other answers them. Both may have different agendas and objectives. (Contrast it with a lecture that is, or should be, planned to develop in a comprehensible and memorable manner over a limited period, possibly with visual aids.) If it is a cross-examination then the lawyer wants the witness to say some things that the witness and/or his or her counsel would rather he or she did not. If the witness had already said, in suitable terms, all that the cross-examining lawyer wanted the court to hear, then there would be no need to ask a single question. To get the witness to say what he or she wants said the lawyer must be subtle. A direct challenge is liable to be met with a direct contradiction. A safer approach is to help the witness to say what you want him or to say, and then draw the judge or jury's attention to that. For example, it is not very wise to warn the witness:

'The next question will be critical. I am going to invite you to say something that, if you do, will seriously compromise your credibility before this court. Now, what...?'

Rather the lawyer can ask the question, using sequencing and, if and when the witness does say what was wanted, draw attention to it.

That is all the lawyer needs to do. He or she is drawing the jury's attention to what has just been said. And he or she is being polite and generous, so it cannot be seen as a bad thing. The judge and jury are working hard to distinguish the important from the unimportant evidence, and to remember the former. The lawyer should not, at the stage of asking questions, be commenting on the evidence. But if it is so short, and as apparently innocuous as such brief responses, who is to complain? The lawyer is helping the judge or jury to remember key words and answers from that witness. Selection is an important skill for the advocate.

Another method, allowing the lawyer to choose which of the witness's words are to be emphasised and thereby become more memorable, involves the use of summaries. A witness could be asked:

'Would you agree that the three key points from your evidence are: one..., two . . . , three . . . ?'

Of course the witness may not, and certainly does not have to, accept those three points. However, in such circumstances it would be reasonable, and human, for an anxious witness to accept the lawyer's suggestion. Of course the lawyer will have carefully chosen the points in the question, and the language used to describe them. And the judge and jury are likely to be grateful, as a lot of evidence has been summarised into manageable chunks for them. The summary points should be relatively easy to remember. And, as the witness has agreed them, the judge and jury do not have to worry about those points being controversial. But the lawyer has selected words perhaps, but not necessarily, used by the witness earlier in his or her evidence, and used them to represent the witness's evidence.

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