January 01, 2013

Opening Statement: The Black Box

Most trial work has much in common with the intimacy of performing on a small stage.

William R. Bay

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I just returned from a trip to Nashville, where my daughter performed in her senior opera at college. I’m obviously biased, but I thought it was great. My kids were often part of theater productions in high school and college. There were musicals with orchestras, dramatic productions with big casts, and concerts in beautiful theaters. But my favorite shows took place in the black box.

It is a different kind of theater—smaller than the big stage. It’s a simple performance space where the audience surrounds the actors on three sides. There’s no raised stage, no velvet curtain, no orchestra pit, no balcony, and no mezzanine. The walls are black. The floor is bare. The sets and technical aspects are simple. The audience sits on chairs or small risers directly in front of the stage, often just a few feet from the performers. This is stripped-down, extremely intimate theater where the focus is on the story and the actors.

In the black box, the actors pace the stage just a few feet away. They are close enough to touch. If I stick my legs out, I could easily trip one. Under the bright lights, I can see the actors sweating as they tussle with each other and perform their pratfalls. When they deliver their rapid-fire punch lines and soliloquies, I see the spit fly.

This intimate theater facilitates a unique relationship between the actors and the audience. We see them literally at arm’s length. It’s remarkable. It can’t be easy to perform in such close proximity to an audience. Every flaw is visible. Every flubbed line is exposed. The actors are surrounded by distractions. Just three feet away, audience members sneeze and cough. They whisper. They shift in their seats. But the actors have to maintain focus. They are close enough to view, hear, and even feel the instant reviews of their performances—apparent from the delight, discomfort, or boredom on the viewers’ faces—and yet they must soldier on, remember their lines, and hit their marks. It’s a transformative experience for both the actors and the audience.

It occurs to me that most litigators do their lawyering in conditions like the black box theater. The majority of the time, we’re not handling high-profile cases where TV trucks swarm the courthouse steps. Our names don’t appear above the marquee. No one is beating down our doors, asking us to appear on CNN and espouse our client’s position. We practice off the main stage before small audiences with no orchestra or elaborate sets. Like a playwright, our clients simply want their stories to be heard. So we take on the roles of actor and director to give life to those stories. Through the witnesses we present and the cadence and power of the words we choose to narrate the story, a human drama plays out on a small stage.

We handle voir dire, evidentiary issues, motions in limine, and objections. Even in routine litigation tasks, the spotlight is on us. Our clients see us advocate for them. The judge listens and watches us from the bench. The jury picks up on every facial expression we make. Opposing counsel reacts to our every movement, argument, and nuance. Like the actors walking the stage in the black box, we are exposed.

But that exposure has its benefits. It forces us to be authentic and genuine. At such a short distance, fakery is easy to detect. It also builds incredible focus and discipline. We ignore squabbles over discovery or posturing by others. We drown out the distractions and focus on the task at hand. We remember the next line. We stay focused on doing our best for our client.

Despite the challenges and the pressure, the chance they could misstep and face immediate, unrelenting scrutiny from a wall of people just a few feet away, the experience in the black box was incredibly rewarding for my kids. It energized them. I think the same is true for litigators.

It’s not easy representing clients in litigation. But it’s a critical role we play in our society, one that we’ve been called to perform, day in and day out with pride and perseverance. Thanks for your dedication to your craft and for risking intense and personal scrutiny to bring your clients’ stories to life. Our profession and world are better for it.

Break a leg.

William R. Bay

Chair, Section of Litigation, and partner at Thompson Coburn, St. Louis.