Gillian Drake
The Advocate of the Maryland State Bar Association
October, 1998 (Vol. IV:1)
Acting for Lawyers

What does acting have to do with being a lawyer? Everything! If you can act, you will win your cases. If you can't act, you can always handle trusts and estates. Or patents.

Before you decide that acting is unlawyerlike, let me tell you a few things about acting. Acting is not histrionics, emoting on cue, or flailing your arms. Acting is communicating. An actor uses his eyes, voice, body, imagination, mind and will to persuade an audience to believe in a story. A trial lawyer does the same thing.

Actors and trial attorneys both worry about performance. They both perform in public arenas where "the camera is always rolling" and where their slightest falters are exposed to intense public scrutiny. At least actors are given scripts; lawyers must write their own, and direct, produce, and stag e the performance, all within exacting deadlines. With so much time and effort put into trial consulting and so much riding on the outcome of a trial, why risk it all on a performance that is second rate? By practicing a few basic acting skills, you will learn to be more relaxed, more natural, and most of all more believable with juries and clients.

Fine Tuning Your "Instrument"

Actors consider their minds and their bodies as their "instruments" which they must always keep in fine tune. They "tune" their instruments by developing technical skills, such as voice and breath control, and such other abilities and traits as creativity, spontaneity, motivation, enthusiasm, love of people, etc. To maintain fine tuning, actors must work daily on their voice, concentration, physical strength, relaxation and flexibility.

The best courtroom attorneys also are at home in their bodies. Even those l awyers who are not in the best physical shape appear relaxed and capable of expressing a wide range of emotion. Their nimble minds, colorful language, and fertile imaginations seem to be natural gifts. If you think that you are not so naturally endowed, remember, these attributes can be developed and learned.

In all of our workshops and seminars, we begin with a vocal and physical warm-up. A beautiful, free voice and a relaxed and energetic body are a delight to hear and see. A warm-up also frees lawyers from the rigidity of their "left brains" (wherein all the legalities and yellow pads dwell) and puts lawyers in the more experiential "right brains," the part where personality and performance live. Voice work also promotes relaxation and energy -- the two prime ingredients of performance. This is not Eastern mystical supposition, or artsy philosophy, but well known to all successful athletes and well documented by American physicians. See The Relaxation Respons e by Herbert Benson, M.D.

Actors realize that breathing is essential to all facets of their work. Breathing will cure almost all signs and symptoms of stage fright, from shaky knees to dry mouths, from mental confusion to stifled creativity, from tiny voices to overbearing ones. Actors also know that good breathing is the source of agile voices, enormous energy and stamina, extraordinary concentration, openness and flexibility, and even moments of inspiration.

Learning the simple techniques of breathing, relaxation, concentration and vocal production is easy and mechanical, It might take a few practice sessions to correct all the years of bad habits. However, like all muscular disciplines (i.e. running, tennis and playing the piano), practice makes perfect. The benefits are extraordinary.

Owning The Story and Credibility

After the actor does his "chores" of breathing and vocal and physical warm-ups, the next step in the rehearsal process is to begin to own the story of the character he is going to play. The same is true for the advocate: The jury must believe that you believe what you are saying.

"Story" is anathema to most attorneys. The word connotes a made-up version, an untruth, a tale. Nevertheless, to be effective at trial, you must be a good storyteller. You must be able to shape your clients's "truth" into a story that the jury can follow. Since the beginning of time, man has passed on the essential truths of life in the form of a story -- from the Bible, to the novel, to TV sitcoms. Stories are what our minds, imaginations, and hearts respond to best.

There are many ways "into" a story. Actors are trained in many different approaches because each story has "its own way in" and each actor responds to different stimuli within the story or character.

Miming the Story.

Often the director asks the actor to "physicalize or mime the events of the story without using words. For the lawyer this also works. It brings up many questions and possibilities that the client or witness may not think or offer, It brings you closer to the events, personalities, and problems of the case as you reenact the physical reality you are asking your jury to imagine and accept.

Miming the events also helps you to identify the dramatic high points in the story far better than if you simply thought about the story.

A Mind's Eye Walk.

Get totally relaxed and imagine the entire story from beginning to end, first from your client's perspective, then from the opposition's point of view, and then, perhaps, from a witness' point of view. With your "mind's eye," walk through every corner of the story, every encounter, every nuance. See it, hear it, smell it, taste it, touch it. This is what you will want the jury to experience. Nothing captivates the emotions and fixes in the memory better than a story filled with tangible, sensorial, identifiable images. Through concrete imaging, you can get the jury to see your story however you want them to see it and remember it that way. That is the essence of persuasion.

Free Association.

After you have met the client and imagined the story, jot down your random first-impressions and gut reactions - the more subjective and crazy the better. What weather did the client bring into the room? How does this situation smell? If the client were a food, what would he be - or a musical instrument, or an automobile? Write down those first seemingly inappropriate impressions: "He's a hungry, wet rat on the prowl"; "She reminds me of an old towel - rough in some places and soft in others"; "This case is a tired old shoe."

How you reacted initially may be exactly how the jury will react when they first hear about the case or view your client. You can then work to reinforce favorable impressions and negate unfavorable ones. But you must write down your first impressions right away or else you may find that as you begin to prepare your case, the left brain will assert itself and you may lose the pungency or even the impression itself will slip away.

Freewrite.

Another way to find your connection with the case is to do a freewrite. This means to sit down at your desk and begin to write about the case for at least ten minutes without stopping. I recommend 30 minutes for lawyers. Do not stop for punctuation, misspelled words, bad grammar. If you get stuck, write "I'm stuck" or the client's name until you get unstuck - but NEVER STOP. Eventually, the editor in your head will cease to dominate and surprise feelings and new approaches will come to you. You will begin to get a feeling for the case; it will begin to become your case.

After the clock has stopped, read it over, cross out the "I'm stuck, make it readable and save it. Out of this freewrite will come phrases, images, and metaphors that you will be able to use throughout the trial and in your closing.

Identity.

Think back in your own life when a similar kind of thing happened to you. It does not have to be an exactly similar event. For instance, perhaps your client is accused of fraud. When were you ever accused of trying to put one over on someone? Perhaps you once tried to put money in a busted parking meter and then decided, "To hell with it, IÕm staying put. It's not my fault the parking meter's broken." And then, of course, you get a ticket. You go to traffic court and try to explain, but the judge wonÕt listen, etc. etc. Find some incident in your life that has some parallels. Do a short freewrite on that incident and save that, too. Often you can describe the incident in your own life to make y our point and make the jury appreciate your empathy for your client.

Urgent approach.

Try to tell your "story" to an associate in one minute. What is the most important thing this person must know in order to understand? Be disciplined. Bring a stop watch. It can be very illuminating and can improve your very performance by the energy it takes to do it right.

Vocal or Musical Approach.

This is by far the most abstract. However, I remember working with a young associate who had hidden her sense of humor and imagination. No matter what I did, she would repeat her opening statement in the exact same flat tone of voice, emphasis and lack of enthusiasm. Finally, she conceded that there was a part of the story that reminded her of the title song from "Jesus Christ Superstar" - reverential, modern haunting and sarcastic. We then started putting the story into the form of an opera. The beginning was slow and taunting; then, it became a little more rhythmic and the "lyrics" more biting; then, it swelled to a rock & roll at the climax, and we finished with a Bach-like chorale finish. She sang her little opera. When she returned to her opening statement, it retained the opera's rhythms, colors, & size.

The point is, not everyone of these suggestions will help you, but one might. And if these don't, find your own subjective way into your case. Close your eyes and imagine how you dream. Do memories return to you in pictures, colors, sounds, smells? Find it through your senses.

Applying Acting to Trial Strategy

Acting is not all imagination and intuition. It is a carefully planned series of objectives that the actor has set up for himself to accomplish throughout the course of the play. When rehearsing, the actor asks himself questions for each scene and for the overall play: "What does my partner want from me? How much does he want it? What do I want him to do after I'm done?" This is the beginning of developing a performance strategy. You must engage your audience, gain their trust, and have a very specific approach to them as people and as an audience.

The litigator has a number of different audiences: the jury, the judge, the gallery, and the opposing counsel. Your performance begins at the courtroom doors, and you must enter the room with a performance strategy as well as a legal strategy.

First, you must define what you will be doing most - i. e., getting the jury to decide in your favor, of course. However, you should define this objective in one active sentence that is specifically about your jury.

For instance, recently I was in Florida working with forty public defenders. We were all using the same hypothetical case about a street kid, Willie Madison, who was accused of murder. Willie was an okay kid. Some of the witnesses said he was knocked out at the time of the murder; others said he was there when the victim was knifed.

I asked the public defenders what their overall strategys would be. Half the class argued for humanizing Willie, the other for discrediting the StateÕs evidence. The argument heightened when I said they could choose only one side.

We redefined their overall strategy in terms of their jury: "The most important thing my jury must understand is that Willie is a good kid and that he could not and would never kill anyone and did not."

Once we nailed down a unified overall objective , then we had to decide how we would achieve the goal. Again, I cautioned them to put it in terms of their jury!: "What do I want them to feel and what will I do to, with or for them to get them to feel that way?"

An opening statement is often a reflection of the strategy you will take throughout the course of the trial. In the Willie Madison case, we developed a possible plan of action or performance outline for the opening statement:

Introduction: I want the jury to feel safe with Willie by introducing him, by showing my regard for him, and getting them to befriend Willie.

Story: I want the jury to feel confident in Willie's actions by walking them through the critical events with me.

The opposition: I want the jury to feel distrustful of the prosecution by exposing their one-sided investigation and poking holes in their faulty logic.

Summary: I want the jury to feel good about what they must do for me and Willie by rallying them against victimization and empowering them to do the right thing.

Expressing your objectives and actions in this way will inform your courtroom performance. For instance, if you choose to rally your jury in the last section of your opening, then without thinking about it, your voice, body, and vocabulary will become positive and uplifting. But, instead, you chose to close by charging the jury to live up to their civic duty, your voice and body will reflect that mood or attitude -- more formal and authoritative. If you remind yourself of these simple actions, you will be able to affect your jury, not just logically but emotionally.

Actors and lawyers must both be able to think on their feet and be flexible enough to switch direction mid-run. No strategy is ever executed exactly as planned, because people and events are unpredictable. Therefore, flexibility is the only way to maintain control over a situation. Because others are playing out their own strategies, you, must always keep in mind your overall objective, but be willing to abandon your own plan of action to accomplish it sometimes. Imaginative flexibility, like physical flexibility requires stretching, developed and strengthened by practical use and frequent exercise. Mental flexibility entails quick response to stimuli which often takes commitment and time to bring to a heightened capacity.

During rehearsals, actors refine these skills by experimenting with different strategies, keenly listening to others and trying new things with the character. Outside of rehearsal they read, watch, spend time with people and exercise. Physical flexibility can enhance imaginative flexibility.

Actors take courses in interesting subjects outside of their expertise - art appreciation, psychology, dance. They take extra classes in the basic tools of their craft - voice, movement, meditation, and improvisation.

Improvisation is a kind of acting technique which is entirely spontaneous and creative. It combines extemporaneous performance with on-the-spot problem solving and flexes the muscles of imagination, public persona and adaptability. This would be an ideal course for a litigator.

The Five E's Remember that all audiences, whether in a courtroom or an auditorium, want five things: to be engaged, entertained, enlightened, evoked and exhorted:

• To engage them you must initiate a relationship with them each and reestablish it every time you address them
  
• To entertain them you must only tell your story well and credibly
• To enlighten them you must help them see how your case relates to their lives directly or through a vivid metaphor
• To evoke in them a visceral response to the main legal theme by crafting a simple, sexy summary sentence
• To exhort them you must help them feel they are on a mission and urge them to take appropriate action