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Acting Technique for the Courtroom

By Mark A. Drummond, Litigation News Associate Editor

It was several years ago, about this time of year, when I had some time to kill in a mall. I wandered into one of those pop-up calendar kiosks and thumbed through a quote-of-the-day desk calendar for parents raising teens. For some reason, I remember this quote: “Teenage boys try on many faces, trying to find the face that fits them best.” What faces have you tried on in court? Have they all worked?


At a recent trial-training program, I critiqued a talented and articulate young advocate. I won’t tell you her real name, but knowing she had a sense of humor, I told her that I could tell whether we were going to get “Good Betty” or “Bad Betty” simply based on whether it was a direct or cross. She adopted two completely different personas, one  for each of those two tasks. Everything about her changed—her tone, her pace, her movement, and her facial expression. It was a real Jekyll and Hyde performance.


So which Shakespeare quote works best for the advocate in court? Is it best to try on different masks or to just be true to yourself—or is there something in between?


It Is OK to Vary the Pace
David Berg, in his must-read book for every trial lawyer, tells this story on himself, “Early on, I cross-examined everyone like they were axe murderers, including school teachers and old ladies: ‘Exactly what do you mean, you were tending your roses?’ and, ‘Quit fiddling with your oxygen tank.’”


I once told a young attorney that he could not treat every witness on the other side of the case as if divine providence placed that person on this earth for the sole purpose of messing with his case. He would go after an 80-year-old occurrence witness to a traffic accident with a vengeance and a hostility that should perhaps be reserved only for the cross of an admitted pedophile.


Remember, chances are good that not everyone on your side is a saint—nor is everyone on the other side a sinner. At the risk of barding you with a bunch of Shakespeare, I bet he would advise you to “Fit the cross to the witness, the witness to the cross.”


“Be yourself—your most prepared, professional, sincere and respectful self,” advises Christina Plum, Milwaukee, cochair of the ABA Section of Litigation’s Young Advocates Committee. “I encourage the students [in my law school oral communications course] to work with their natural speaking styles and personalities. That doesn’t prohibit them from changing their speaking styles, but they must remain true to how they communicate generally, to avoid being perceived as actors rather than advocates.”


In my experience, both before and after moving to the bench, most young advocates leave their personality at the courthouse door. They are simply not themselves in court. They are bright, engaging people during the coffee break, but when they walk into the courtroom, everything changes. How they walk changes, how they talk changes.


Speak Plainly and Directly
“Before and after” becomes “prior and subsequent.” No one ever “gets out of a car,” they “exit a vehicle.” No one ever “knows” or “sees” anything in court, they are “aware of” or “observe” things. I tell young attorneys that the test of what words they use in front of a jury, or a judge for that matter, is whether they use the words in real life. In real life, you never say “I submit to you the toast is burnt” or “Dear, are we going to the movie prior or subsequent to dinner?” You can go your entire legal career never once saying “prior” or “subsequent” and you would be no less professional. I have never heard two jurors complaining, “Did you hear that in there, ‘before and after’! What ever happened to ‘prior and subsequent’?”


Test this theory. We live in an era of courtroom drama on television, and that is what the jurors are watching. Take an hour to watch one of those shows. I would expect you won’t hear a lot of “priors and subsequents” being thrown around.


For most young advocates, their biggest problem is that they feel they need to “act” like a lawyer. This usually means the adoption of a stilted way of communicating so that everyone within earshot knows he or she is in the presence of a person who went to law school.


Maintain a Consistent and Sincere Persona
A second persona problem is the shifting, inconsistent persona.


There are attorneys who are blissfully unaware that the other people riding the elevator with them may be jurors. I cannot count the number of times that I have overheard counsel, outside the courtroom, say something akin to, “Great chip in on 17 Reggie, see you at the club on Thursday?” only to then go into court and exclaim, “I am outraged by counsel!”


“People can see if you are sincere, and false sincerity does no good,” counsels Paul Mark Sandler, Baltimore, cochair of the Section of Litigation’s Litigation Institute for Trial Training. “A jury can tell how you feel about your client and your case. Your words, your body language must convey the sincerity and the purpose of your case. I try to convey that this is our most important case, we feel for and are fighting hard for our client.”


I have been in a few plays for our local community theater, and people often remarked what a great combination that was—an actor and a trial lawyer. I usually responded that I really had to watch myself, for if the jury ever perceived I was acting, that was, by definition, false.


When have you been the most persuasive in your life? My guess is that it was an emotional event where you had a lot at stake—asking someone on a first date, defending yourself from a false accusation, or persuading a child to take another path. I tell young attorneys they probably have a wider range in real life than what they display in the courtroom. I then tell them they must take those same tools they used when persuading someone outside the courtroom and bring it inside the courtroom.


“That is what I mean by personal advocacy,” agrees Sandler. “In one sentencing it went a little too far when the judge told me that he did not appreciate this particular crime and acted as if I was the one being sentenced. I had to remind the judge I was going home to dinner and it was the client being sentenced. Of course, he caught on right away and readily agreed.”


Studies on communication tell us that most of the meaning in the English language comes from inflection and visual cues, as opposed to the actual words. The phrase “I love you” is almost totally dependent upon how it is said. Jurors and judges can quickly tell if you truly believe in your client and your case.


When I speak to civic groups, I am usually asked how an attorney can represent someone he or she knows is guilty. My response always is that, although attorneys may not believe their client, they do believe in our court system and their role in that system. They can do their job because they truly believe that their job is to put the prosecution to their burden of proving every element beyond a reasonable doubt; thus, they believe in their case and their obligation, whether or not they actually believe their client.


Deal with “Personality Plus”
At the far end of the bell curve are those attorneys who have personality plus and may need to dial it back a bit until the jury knows them better. This applies only to a very small percentage of attorneys. Most attorneys have the opposite problem.


A close friend of mine who, by his verdicts and the judgment of his peers, is one of the most successful trial attorneys to be found, is one of those rare people who are just brimming with personality. When he advises younger attorneys cut from the same cloth, he tells them that early in his career, he lost a lot of cases because he had not learned to give the jury some time to get to know him.


In short, it appears that the wisdom from both Hamlet and As You Like It apply. We must be true to ourselves, or we come across as mere actors.


Real life, of course, gives us many roles—spouse, parent, friend, counselor, teacher—and in these roles we become very good at arguing for our own cause. Our clients deserve no less. Our clients deserve the same passion we tend to reserve for ourselves. The true advocate knows this.


 

Resources


  1. David Berg, “The Trial Lawyer: What It Takes to Win” (ABA Publ. 2006) at http://tinyurl.com/LNw12-Berg.
  2. If you would like to cure yourself of jargon forever, read footnote 1 in U.S. v. Marshall, 488 F. 2d 1169 (9th Cir. 1973).

 

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