GPSolo Magazine - September 2005

Method Acting for Lawyers

The best lawyers understand that every trial is inherently dramatic. By the time of the trial, which is the only aspect of the conflict that the jury sees, each side has woven its own dramatic tale of the event, casting its client as the protagonist, the hero, the good guy, and the other side as the villain, the antagonist, the bad guy. The jury is called upon to determine which of the stories is true, within the appropriate degree of probability.

Advocates have much in common with actors. For actors and lawyers, the key to a winning performance is not what they say but how they say it. The key to great advocacy, like great acting, is authenticity. Drawing from experience is a basic element of the contemporary actor’s craft. In method acting, the actor reads the script with an eye toward understanding the character, then assimilates the character into his or her own emotional makeup and life experience. Even though the character and the story are fictional, the actor’s performance is based on his or her own truth. It is the truth of the actor’s performance that conveys the truth of the story and induces the audience to believe and become involved in it.

Great trial lawyers employ this same authentic approach. Trials, regardless of the nature of the issues at stake, always have an emotional component. Lawyers must somehow find ways to appeal to the fact-finders on an emotional level. Instead of simulating emotions by playing the “role” of the angry, disappointed, grieving, or frustrated lawyer, good advocates, like good method actors, bravely allow the jury to see that they are human beings who feel what the facts of the case really cause them to feel. Instead of adopting a courtroom demeanor, such lawyers recognize that they are engaged in a real human drama and that the judge and the jurors are real human beings who react to evidence as real human beings. Authentically sharing or even anticipating their reaction is effective advocacy.

Of course, the best lawyers are great storytellers. Good lawyers, like good storytellers, take disjointed, sometimes inconsistent information from a variety of witnesses and transform it into a coherent, persuasive human narrative. The craft of storytelling helps to establish a theory of the case, a plausible explanation of the underlying events presented in the light most favorable to the client. Storytelling also develops the trial theme, the lawyer’s mechanism for adding moral force to the desired outcome, appealing to the jury’s sense of right and wrong by explaining who did what to whom, and why.

In your opening statement, you want the jury to feel your interest, your passion, and your comfort with your own position. What jurors want to hear is your story of the case and your feelings about the matter.

When you talk to the jury, look at the jurors. Like an actor in live theater, pay attention to how the audience is receiving you, and adjust your delivery accordingly. The subtle signals you pick up from the jurors will tell you what you might need to repeat, emphasize, or downplay.

Also pay attention to your own body language, and not just when you speak. You don’t need to stand at attention like a guard at Buckingham Palace, but pay attention to your posture. Show respect for where you are and what you are doing. You owe respect not only to the jury and the judge but also to the courtroom itself and your place in it.

Don’t forget that even when you’re not speaking, you’re not invisible. You must be conscious of how you look to your audience at all times. Jurors will certainly notice how you conduct yourself, in the spotlight or not. It’s important to know how to be still. But when your own enthusiasm spurs you to approach the jury to make better contact or raise your hand to emphasize a point, by all means, do it. Being still as a statue doesn’t make you serene—you may just seem to be made of stone.

When sitting at counsel table, keep your hands open and relaxed on the table, not in your lap. Like cops, observers in the courtroom want to see your hands at all times. Don’t clasp your hands behind your back or in front of you. It makes you look childish and guarantees that you won’t be able to use them to help you make a point. Never use your hands to cover your face. In fact, don’t touch your face. Such habits are incredibly distracting. Keep still. Stay calm.

Even the most experienced actors have to deal with stage fright. But being a lawyer who can’t keep stage fright under control can seriously impair your performance. There are simple ways to deal with stage fright. Remember that the jury is more important than you are. Your purpose is to make them feel comfortable and to help them understand the case in the right way. Your own fear is contrary to your purpose.

Pretend that the jurors are your guests; you’ll forget your own fear if you’re trying to make sure the jurors feel welcome and important. Breathe as deeply as you can, concentrating on inhaling to a count of four and exhaling to a count of eight, for a series of ten breaths. Consciously relax your shoulders while you breathe. Consciously relax your jaw. Never act or feel rushed. Express every important word, and speak so that the whole room can hear you. If you feel pressured to hurry, deliberately slow yourself down.

Pretend that the people who are listening couldn’t intimidate you if they tried. Believe in your position and believe the story you are telling. If your true fear is that you will fail in front of your colleagues, remind yourself that your feelings about the case are for the jury, and that no one else matters. Your colleagues don’t deliberate and they can’t deliver a verdict. In the courtroom, they are irrelevant. Pay attention to your voice. Controlling your vocal inflection helps communicate your ideas, and it automatically helps you control your breathing.

Although you should never write out your arguments, rehearsal, as with acting, is critical. Tell and retell the story. Do this alone or draft an audience. If having an outline helps you not to miss a point you must make, jot down single words or key phrases rather than a script of the entire argument. Be sure to prepare—and use—a list of props. Not having the right demonstrative at the right moment makes you look amateurish and disorganized. Don’t forget to add your opponent’s props, if you can use them to your advantage, to your own list. Review your list at the beginning of every trial day. Recheck your prop list before each witness takes the stand.

Jurors don’t care about abstractions, figures, corporate administration, and contractual terms. They care about right and wrong. With a little practice, you can use the spellbinding power in words to persuade juries of the rightness and justice of your cause. All you have to do is play your part.

Kathleen B. Havener practices with Hahn, Loeser & Parks LLP in Cleveland, Ohio. She can be reached at kbhavener@hahnlaw.com.

For More Information About the Section of Litigation

- This article is an abridged and edited version of one that originally appeared on page 48 of Litigation, Summer 2005 (31:4).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/litigation.

- Periodicals: Litigation, quarterly journal; Litigation News, bimonthly newsletter; Litigation Update, monthly e-mail newsletter; committee newsletters (all Section members may join three committees at no additional cost).

- Books and Other Recent Publications: More than 30 titles in print, including McElhaney’s Trial Notebook, 4th ed.; Business Torts Litigation, 2d ed.; Discovery Problems and Their Solutions; Electronic Evidence: Law and Practice; Model Jury Instructions: Patent Litigation; Questions from the Bench; Effective Appellate Advocacy; Examining Witnesses, 2d ed.; Model Witness Examinations, 2d ed.; The Trial Lawyer: What It Takes to Win; Internal Corporate Investigations, 2d ed.; Fighting Injustice (Michael Tigar); The Attorney-Client Privilege and the Work-Product Doctrine, 4th ed.; Persuasion: The Litigator’s Art; The Litigation Manual, 3d ed.; Model Jury Instructions: Construction Litigation.

 

 

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