Timing Is Everything

Trial by Nature #9 - Tips to Survival in the Courtroom

A study conducted by a postdoctoral student at Brown University documented acceleration of the chameleon tongue at speeds of 0 to 60mph in 1/100th of a second.

The chameleon expends tremendous energy to strike. The tongue is nearly as long as the reptile’s entire body.


Missing a strike means the chameleon has less energy for the next try. In other words, missing can be costly.

In the courtroom, timing is everything. Any “miss” is a costly one. Timing requires cadence. Execution of timing is one trial skill firmly rooted in pure experience. Perfect timing combines build-up, precision and intimate familiarity with the Rules of Evidence.

The build-up is the equivalent of evidentiary foundation. Build-up is selectively working through your expert’s stellar CV before delving into opinion testimony. It is highlighting the credibility of a fact witness by displaying measures of objectivity and personal knowledge. It is identifying the bloody knife slowly and methodically so the jurors sit on the edge of their seats waiting for the big reveal.

The attendant risks of build-up include both overdevelopment and underdevelopment. Swing the pendulum either way and your timing is off. Like the chameleon, you are left looking for the next meal with depleted energy and wasted time.

To explain, if you spend too much time qualifying your witness, your jury is bored and tuned out. Too little time and you risk losing the chance to solidify your expert and your key points. The same is true with exhibits. Overselling “the bloody knife” when it is just a butter knife with a red speck can destroy trust. Underselling crime scene photos can leave an opportunity on the table. Finding a perfect balance can be difficult


Here are a few suggestions:

Wait for it, wait for it…. What are the 3-5 most important facts in your case? Identify and cultivate them. Resist the temptation to throw it all out there at one time. Some authorities advocate unveiling your entire case in opening. Having sprung a few traps too early, I tend to be more cautious. Keep in mind your best evidence might be contingent on your opponent’s case-in-chief. Anything purely intended for impeachment or rebuttal should be held until foundation is established. Don’t strike too early!

Relaxed flies are easier to catch. Induce relaxation. Does your opponent really think she “got away with murder” during jury selection by going a little too far into the facts of the case? Perhaps you are better off sitting tight and waiting for your turn (and equal latitude). Besides, unnecessary objections are tiresome and irritating. Make your record if necessary, but do keep timing in mind when making objections. Use them judiciously.



When considering witness foundation, the jury is only interested in the basis of the testimony. Nothing more, nothing less. Who is this? What relevant knowledge do they possess? How did they obtain this information? If your biomedical engineer was an Eagle Scout 38 years ago, trust me, nobody cares.

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