Having observed numerous courtroom proceedings over the years, both as advocates and from the bench, my law clerk and I have concluded that there are many parallels between theatrical productions and courtroom advocacy. A productive experience in the courtroom involves careful consideration by the advocate of plot direction, themes, narrative arcs, and character studies—quite simply, the theater of it all! Here are some lessons that litigators may take away from stage and screen.
Content producers target specific audiences; the typical fan of Marvel movies may not be first in line to buy tickets for Rigoletto. So, too, in the courtroom. By design, most jurors will consist of laypeople with middle-American tastes, who are new to the courtroom experience and lack familiarity with legal jargon and proceedings. In contrast, the judge is a seasoned critic and a quick study, who needs less time to get up to speed. Advocates should adjust their presentations to the audience accordingly.
For instance, a lawyer addressing a jury should take the time to refine her story-lines and themes, so that even a juror who sleeps through the second act can still recall who the party is and what it seeks. Lawyers should think thematically, based on whether they are representing the underdog, the wrongfully accused, the reasonable everyman who simply wants what is owed, or an unpopular party. The other side will also craft narratives, so lawyers should make theirs compelling enough that—whatever the facts—the jury simply cannot let the opponents win.
To that end, a lawyer preparing for a jury trial should screen-test her presentations before non-lawyers and think carefully about the “casting” of the trial team. A miscast role can cost millions of dollars in expensive reshoots to fix, and can completely change the success of a film or play; the same is true in the courtroom, but a do-over—a mistrial or reversal after appeal—is undesirable. Many winnable trials are lost due to trial attorneys’ blithely marching through witnesses and outlines—which cost thousands or sometimes even millions of dollars to prepare—without thinking through how they are being perceived by the jury. Will jurors be displeased when lead counsel stands up and calls the next witness, having hoped instead for someone else at counsel table? Lawyers should fairly evaluate their likability factor, and if they are not particularly likable, how to overcome that. Before lawyers take their show on the road, they should test their and their witnesses’ likability and their case themes before a mock jury or someone willing to share hard truths about how they play.
In contrast, judges usually will not hold it against a party if they dislike the lawyers, but lawyers should still take care to tailor their presentations for the judge’s consumption. They should adjust the scale of their production according to the significance of the hearing; not every appearance should be treated like it is center stage at Carnegie Hall. Lawyers should prioritize efficiency and avoid excessive exposition. Too often, attorneys will begin an argument by reciting fundamental and well-settled points, when there is no need to start with Genesis and recite decades of accepted precedent to justify routine application of a rule of law. Similarly, lawyers should avoid belaboring arguments once made; if the judge raises a new topic, lawyers should follow the judge’s lead.
For complex hearings with multiple issues or motions, lawyers should consider coordinating with opposing counsel ahead of time to make the presentation run seamlessly. PowerPoints can be effective, but they are often overused and are too long, resulting in rushed, and therefore less effective, presentations as lawyers hurry to get through all the slides. Slides should be selective, uncrowded, and interesting. Presentations with animation are often all of these things.
As in the theater, preparation is the key to success in the courtroom. This includes anticipating and thinking through every detail of the presentation, from one’s choice of seat at counsel table, to wardrobe and props. The goal is to be seamless, with the mechanics and puppet wires that bring the scene together invisible to the audience. Otherwise, the jurors—who, it cannot be stated enough, notice everything—will be distracted from the true star of the show, the evidence.
Lawyers should start simply, learning how to pronounce people’s names correctly. Otherwise, lawyers come across as sloppy and uncaring, and run the risk of confusing the jury. Lawyers should visit the courtroom ahead of time and learn how to use the courtroom technology, to avoid awkward fumbles from ruining their flow with a witness. When the courtroom technology inevitably goes haywire, lawyers should be prepared to improvise and make it work the old-fashioned way; paper copies, extra highlighters, pens, Post-It notes, and the like should all be in the lawyers’ tool kit.
If a lawyer is using a paralegal or associate to publish and highlight exhibits, they should rehearse together, and then rehearse some more. It is a dream to watch a skilled examination with an attorney and document wrangler who have clearly practiced. Exhibits appear at just the right moment and key takeaways are highlighted, and then they vanish so they don’t linger too long. The jurors’ heads move almost in unison, from the examining attorney, to the display screens, then to the witness, anticipating the response. The converse—stage directions recited out loud, “next slide . . . next slide . . . next slide”—is, by comparison, torturous.
As to witnesses, lawyers should take care to prepare them so they know what to expect and are not overcome with stage fright. It is critical, however, not to overprep them, lest they come across as canned and insincere. Nervous witnesses may appreciate being taught a few choice phrases to keep in their back pockets, but they cannot become a crutch. We recall a witness who responded to almost every question on cross-examination with “I couldn’t say one way or another,” which likely left the jury wondering about the truthfulness of what the witness did testify confidently about.
Lawyers should think about wardrobe and nonverbal communication. Jurors—captive, perhaps bored, and deprived of their smartphones—are hungry for distractions and will scrutinize lawyers closely. The best actors know that acting is more than simply reciting lines; the way an actor moves, holds herself, and responds to others all convey information about the character she is portraying and her motivations. A lawyer can likewise choose her role and own it. If a lawyer wants to be perceived as a confident, capable trial attorney, she must act like one from the moment she walks in the courtroom. That may include speaking in an emphatic, clear voice and wearing professional attire without excessive flash or jewelry. We once observed a trial, involving highly technical subject matter, in which the plaintiff’s lead counsel presented himself as a learned, bookish, professorial type, complete with slightly mussed hair and an old, unfashionable jacket. It gave a certain air of credibility to the role he was playing, more becoming of a university researcher, concerned only with scientific truth, as opposed to a lawyer merely advocating for his client. However, a word of caution: Unless counsel is a truly gifted actor, he should avoid crafting a “trial persona” that dramatically departs from his own mannerisms and vocabulary. Jurors will notice and judge the artifice harshly.
Whatever the chosen costume and characterization, counsel should make sure it is deliberate and intentional for the message meant to be conveyed. The same is true for witnesses. In a criminal trial, a defendant was accused of illegally obtaining funds, which she then used to purchase designer handbags and expensive shoes. She showed up to trial wearing very high, red-heeled stilettos; and as she testified, she gesticulated animatedly, showing her large gold statement rings. Every answer she gave was punctuated with a flash of gold. As one might imagine, the takeaway was not that this was a simple woman disinterested in material goods, but rather someone whose attraction to luxury goods could have plausibly motivated the crime.
If a case involves speakers of foreign languages, selecting the right interpreter is vitally important. We recall a criminal case with three cooperating witnesses, each with lengthy rap sheets but varying proficiency in the English language. All three testified. The witnesses who testified wholly or partially in their own words in English came across as tough and thuggish, while the one who spoke through an interpreter seemed gentle and kind, very likely because the interpreter was a gentle, soft-spoken, grandfatherly man, whose interpretation in English for the witness had an amazing rehabilitative effect on the testimony, turning an unlikable person into the reverse. Selection of the interpreter is highly significant but is usually handled as an afterthought.
It’s no wonder why film and television producers mine legal proceedings for their productions; the courtroom is a natural stage for the study and resolution of conflict, whether dispassionate business disagreements or dramatic interpersonal affairs. The best trial lawyers know and exploit this fact and will strategically invoke tension to capture jurors’ attention, emphasize key evidence, and undermine the other side’s theories.
Lawyers should approach their strategy the same way a director adapts a script to stage or screen. Counsel should think about the compelling building blocks in the narrative—what are the key facts that are necessary to convince another that the position being advocated is correct? Lawyers should ask themselves how they can present these facts in a compelling way, such that the judge or jury will remember them and their significance. Lawyers must remember that jurors are hungry for some sort of distraction from the typical monotony of jargon and legal proceedings, and will delight at the first sign of some entertaining, but relevant, excitement.
Lawyers must reevaluate their exhibits and demonstratives through the lens of the judge or typical juror. They should avoid spreadsheets and dense financial records, and simplify the main points to punchy charts and diagrams. Excessive detail in presentations will not be appreciated or absorbed. When in doubt, simplification is best. In the same vein, lawyers should avoid excessive reading or playing of depositions.
Cross-examination is the natural place to bring drama to the courtroom. To be most effective, one should be efficient and focused. Counsel should resist the urge to cross the witness on every single point of dispute in the witness’s testimony; doing so will only dilute the impact of the truly significant points. Instead, lawyers should do the minimum necessary to lay a foundation, expose the inconsistency or point of dispute, and then move on. Done effectively, cross-examination can be brutal and breathtakingly effective, and can obliterate a witness’s credibility. If not done efficiently, the takeaways are muddled, the points scored are cheap or confusing, and jurors may be left uncertain as to what, exactly, they were supposed to have learned from the exchange. It’s crucially important to know how to impeach a witness with a prior statement; attorneys often do it clunkily or on the smallest of inconsistencies, which loses drama. Similarly, it is virtually impossible to impeach a witness testifying through an interpreter; either don’t bother or choreograph it in advance.
Each case has a story. By thinking carefully about how to tell that story clearly, efficiently, and, when appropriate, dramatically, effective advocates will capture the attention of the judge and jury and ensure the best chances for success.
