Trial Magazine

I began attending seminars as a young trial lawyer and often left a bit confused by what seemed like contradictory advice from the presenters. One day, I would hear three phenomenal trial lawyers stand up and say, “Repetition, repetition, repetition—repetition is good!” They would talk about how you must tell your story over and over, so the jury gets the point and doesn’t forget it.

The next day, more great trial lawyers would stand before us and say, “If you tell jurors the same thing more than once, they’re going to punish you for it. Repetition is bad.” Jurors are more sophisticated these days, they would say. They are used to watching multiple messages at the same time on channels like CNN, Fox News, and ESPN. If you tell them once, they will remember. And if you tell them over and over, they will get sick of you and your message.

The more experience I gained as a trial lawyer, the more I realized they were all preaching the truth, but an incomplete version of it. Repetition is indeed vital to the success of your client’s case—but only if it’s the right type of repetition. I realized, in other words, that there are two types of repetition—the good kind, which I call positive repetition, and the kind that will kill your case, which I call despicable repetition.

The Two Types of Repetition

Despicable repetition is saying the exact same thing in the same way over and over until it ticks everybody off. It becomes despicable in the eyes of the audience, which is really a problem when the audience is the judge or jury, but it also can create unnecessary ill will with everyone from the bailiff to the witnesses. I’ve done this before—pounded the same nail in the same board over and over until a judge literally said, “I think you got your point made, Mr. Oliver.” And if the judge said it, you know the jurors were thinking it. That’s despicable repetition.

Positive repetition, meanwhile, is delivering evidence or facts in different ways to positively reinforce the story with the jury, judge, witnesses, and anyone else who might become involved in the case.

Creating positive repetition also requires the use of different types of visual aids for different situations. We literally use dozens of different aids in the course of developing a case, and we often use more than one type to convey the exact same message. Jurors are people, and people are different. Some retain information by hearing it; others, by looking at a photo. Some just want the big picture of the case, while others want details. Some want science. Others want art. So, we give them what they want in whatever way they want it.

Planning for the Play

Despicable repetition is easy, which explains why it’s so common. All you do is say the same thing in the same way over and over. Memorize what you want to say. Say it. Repeat it.

Positive repetition involves work. It takes planning, creativity, time, and a team to develop the story and the necessary visual pieces to tell it in the best possible order and most effectively. It’s worth the effort, however, because it serves the client’s best interest. Before we start taking depositions, we create a game plan for developing the case as if it were made up of scenes in a play. This is part of the deposition outline process.

Scene 1 will tell part of the story and involve specific actors and illustrations. Scene 2 will tell another part. And so on. The end of the play is the verdict, but along the way, we need to repeat various aspects of the story, and we want to do it in fresh ways. So, when we map out the depositions, we include a plan for which visual aids we will use with each witness.

When we’re done, we can select the best visual aids from each component and put them together to tell our story in our opening statement, throughout the trial, or even in pretrial situations. We set up large posterboards, and the audience can look at them from left to right just like you would when reading a book. If they are done well, the audience can digest the big picture of our case in 60 seconds or less. They will understand our story without me saying a word.

The ‘Weave’ Approach

My firm occasionally hires jury consultants who use a device that records a mock jury’s response to the case as we present it. All of the jurors have a knob they can turn to the right if what they are seeing and hearing resonates with them or to the left if it doesn’t. We can view our presentation with a graph superimposed on it that shows the collective response of the jury.

I’m not always a big fan of the knobs, but in one particular case, they resulted in a huge shift in how we present cases. This was a big case, and we were doing three days of mock juries—70 different jurors every day. At the time, I followed a standard model by presenting liability, causation, and damages in that order. In other words, I’d spend 10 minutes on everything the corporate defendant did wrong, then 10 minutes on how all that stuff caused something bad to happen, and then 10 minutes on the harms and losses our client suffered.

The first day, I talked about liability and culpability, and the jurors’ knobs went through the roof. They liked this information. It was helpful, and they wanted to hear more. Then, I went to causation and the response leveled off a little, but it was still positive overall. But when I began talking about damages—harms and losses—the graph looked like the stock market during the Great Recession. They didn’t like it. The knobs were telling me to shut up!

This seemed bizarre. So, the following day, I tried it again with 70 different jurors and, wouldn’t you know it, the same thing happened. Chapter one: through the roof. Chapter two: kind of leveled out. Chapter three: plunged into a pit.

That night, I decided to do something different. We stayed up late rewriting my entire presentation. We did away with the standard process of presenting each piece in order, and we wove it all together instead. We did a new presentation to 70 new jurors on day three, and for the entire time, those old knobs were through the roof. We leveled out at the highest point possible and never went down. They stayed in the “we love it” zone the whole time.

We’ve been using this “weave” approach ever since, and it has consistently been very effective. We use a number of ways to tell our client’s story, while seamlessly weaving in culpabilities and harms. This can be complicated, but once you have done it, or witnessed it, you find it is usually the best way. It’s really a matter of awareness—of having a Depositions Are Trial mindset so that your team is always thinking about these different parts and how to fit them together.

Depositions Are Trial, an approach our firm has used hundreds of times and with undeniably positive results for our clients, has grown into a new way of thinking and practicing law. In its simplest form, it involves treating depositions as if they are the actual trial. For instance, when we are taking a deposition and get to the wrongdoing, such as there were no brakes on the back axle of the 18-wheeler and it couldn’t stop, we don’t stop there. We interweave culpability (unsafe brakes) with the harms and the losses (the physical injury, the mental injury, the emotional injury, the loss, the death).

What happens when an 18-wheeler with no back-axle brakes can’t stop? Somebody gets killed. A 46-year-old man loses his life. And we weave in damages, too. That same 18-wheeler that had unsafe brakes was also going 70 mph in a 55-mph zone. Well, speeding does what? It makes a wife a widow.

You can see the positive repetition. A 46-year-old man loses his life. It makes a wife a widow. In essence, we’re saying the same thing. But it is positive repetition that weaves in culpability and harms. And we keep adding to it. It leaves two young ladies, one about to graduate high school and one in college trying to become a medical doctor, without a dad. And adding to it. You know what else we learned? The driver never should have been hired. He had so many felony convictions that within the company’s own policies, much less industry standards, he never should have been put behind the wheel. So, now we have an unsafe, unqualified driver in a vehicle without brakes going 70 mph in a 55-mph zone. And what happens? Two little girls, who had their dad their whole lives, now one’s a senior in high school and the other a junior in college, and they no longer have a dad.

The Role of Visual Aids

Visual aids are a key piece of this new approach. We use them to help weave these elements into our deposition testimony in a way that our jurors will respond to as positive repetition and not despicable repetition. All these visuals can be used at the same time, which might happen in a mediation or opening statement. Or we might use different visuals at different times with different witnesses. That way, if we are covering the same or similar content during depositions, the jury will end up seeing different visual presentations and the repetition won’t feel despicable at all; it will be positive.

To illustrate how this works, let’s look at a visual aid we used in depositions (and trial) for a case involving a corporate driver who sped into a construction zone, hit a car that was stopped in the highway behind a flagger, and killed the driver of that car.

One visual recreates three scenes from the final seconds just before the crash. They are taken from the perspective of Arnie, the driver who died. In all three, you can see the 18-wheeler that’s stopped in front of our driver, and you can see our driver’s rearview mirror. The top photo shows what Arnie saw seven seconds before the crash: a white pickup in the distance moving toward him. The middle photo shows that pickup in the rearview mirror about a hundred yards away. And the bottom photo shows the pickup just before impact, at which point the three-quarter-ton truck (now a lethal weapon) nearly fills the mirror.

We knew what Arnie saw because of the information we collected from the scene inspection, phone records, and data downloaded from the computers of the two vehicles. We knew there was a rearview mirror. We knew down to the inch how far away things were from each other during that final moment. We knew exactly what speed the defendant’s truck was going. We knew that three seconds before the impact, Arnie could see this approaching vehicle and that it didn’t appear to be braking. And we know he saw the pickup coming because the computer data downloaded from his vehicle showed that, at one second before impact, he took his foot off the brake, put it on the accelerator, turned the steering wheel to the left, and accelerated in an attempt to save his life.

We used the recreated photos during the depositions of the plaintiff’s crash reconstruction expert, the defendant driver, the defendant corporation’s representative, and the construction zone eyewitness to show liability (how the wreck happened); recklessness and punitive conduct (the corporate vehicle never slowed its speeding into a construction zone); and conscious pain, suffering, mental anguish, and pre-death terror (a horrific way to die—and to see it coming).

We also used an animated video, narrated by the crash reconstructionist, during the depositions and live testimony of the defense experts and witnesses, to recreate what happened. It starts with a construction worker holding a sign that warns drivers to slow down and stop. A car, an 18-wheeler, and the driver who ultimately died all approach and stop. Then it cuts to the view from the defendant’s windshield. It shows what that driver would have seen if he had been paying attention: fields on his left and right, a long stretch of flat highway, then an orange cone and sign warning about the construction, then another cone and sign, then a third cone and sign, then the stopped vehicles—one of which was an 18-wheeler with a stainless-steel silver trailer.

Finally, we see two views of the crash, one from ground level and one from overhead, both of which include a timer counting down the final six seconds to impact and six seconds of post-impact views. We used the animated video made possible by the crash reconstructionist’s testimony to tell the story of the event and weave culpability into damages.

We also used a posterboard—which we put in the conference room next to the crash scene visuals during most of the depositions—with a photo of the victim standing with his daughter, who is wearing her white graduation cap and gown. Next to the photo is a graphic that shows the corporate defendant’s hiring policy and all the reasons hiring the driver went against the policy. The policy, for instance, says the corporation shouldn’t hire someone with convictions for assault and battery, terroristic threatening, or defaced firearms, and yet the driver who caused the wreck had convictions for all of those.

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The Depositions Are Trial approach, in its simplest form, involves treating depositions as if they are the actual trial.

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We used the hiring policy graphic and graduation photo to show that, because the company violated its policy, a daughter lost her loving father. This is an example of how the Depositions Are Trial approach combines deposition video clips from the same or multiple witnesses at trial to tell the story. In this case, we paired a 90-second clip of the corporate warehouse manager testifying that he knew about the felony convictions with a 30-second clip of the same man holding a graduation picture and testifying that this should not have happened.

Next, we had a graphic showing a cell phone screenshot of text messages next to a painting by the victim. We used this to demonstrate that, because the defendant was texting while driving, the victim will never paint again, and the emotional story behind all of his future paintings will never reach the people who knew him.

We used all those visual aids to set up our client’s story during our opening statement, weaving in culpability and compensatory damages along the way. But we also used them during live witness testimony and some depositions. Our crash reconstruction expert, for instance, had to give his opinion as to what the computer downloads from the vehicles showed and then apply those facts to the visual aids.

We also deposed the superintendent of the construction zone and had him build a model of the crash site using toy models of orange cones, warning signs, and a little man holding a stop sign. We filmed that deposition from two angles (one overhead), and even though it provided the same information as other visual aids, it was positive repetition.

That’s the ultimate example of weaving culpability and damages together with positive repetition. I hope as you read this you were thinking about your next case, your next set of depositions, your next trial, and how your facts will apply to this example using your client’s story.

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Sach D. Oliver is a trial lawyer and CEO of the Oliver Law Firm in Rogers, Ark., and can be reached at soliver@oliverlawfirm.com. This article contains adapted excerpts from Depositions Are Trial by Sach D. Oliver (AAJ Press® 2024), copyright © 2024 Sach D. Oliver and the American Association for Justice.

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Depositions Are Trial will teach you how to up your preparation and execution, ultimately treating each deposition as if it’s going to be played out in court. Sach guides you through setting and executing goals, creating a well-defined plan, and telling the story you want told through depositions. Learn tactics on word choice, visual strategy, motivating witnesses to tell the truth, and much more. Each chapter ends with a punch list of goals for readers to apply what they’ve learned. With its practical approach and focus on actionable steps, this book is a must-read for any trial lawyer looking to enhance their game and make their case in the best possible way. Purchase your copy at: https:/www.justice.org/resources/publications/aaj-press/depositions-are-trial.