Trial as Theatre

• Think of the following roles, which trial participant would best fit these:

– Producer of the play:– Writers of the play:– Performers in the play:– Audience:

Section A: Preliminaries

Part III:

The Trial

Trial is Theater

• Trial – the presentation of an idea (why a client should win), to an audience (jury), through the medium of performers (witnesses).– What really happened, the jury never sees. They hear

about it and see it play out in trial.• Truth is what the audience perceives.• What the jury sees and hears is what counts.

– The Trial Lawyer acts as the director.• The audience begins the play knowing nothing, and they will

only know what the director presents.• How something is presented is at least as important as what

is presented.– It is your job to get the jury to accept your truth as the

truth.

The Director – The Lawyer

• Lawyer’s Jobs– At the center of the play, but is NOT the

center stage.– Works with the script but is NOT responsible

for writing all of the script.– Why?

• Witnesses are center stage since the “truth” comes through them.

• Litigants are the writers• The client is the ultimate winner or loser

The Director – The Lawyer

• Jobs continued– The lawyer smoothes out the rough edges, works with

the witnesses, arranges for stage blocking and props (exhibits), rehearses the play and at trial stands by to make sure everything goes as planned.

– The lawyer does his work behind the scenes.• Legal theater is unique

– The lawyer is always on stage• Their presence has an effect on jurors.

– Legal theater is competitive• A lawyer is primarily concerned with the presentation of his

client’s side, but they must be concerned with the other side at all times.

The Director – The Lawyer

• Presence of the lawyer– This is the most important quality.

• Includes attitude and technique

– Presence is really the appearance of being comfortable with what you are doing.

– Presence is appearance• It is something we identify in others from the “outside” without

any real knowledge of how the person feels “inside.”• What we see on the outside reflects how the person feels on

the inside.• The lawyer exhibits presence by how he/she looks,

addresses everyone in the courtroom, sitting in his chair, in other words all activity that takes place in the courtroom.

The Director – The Lawyer

• Presence continued– Presence comes when you appear comfortable even though you

might not be comfortable.• A lawyer should have a possessive attitude

– The idea of control of the area is very useful.– Courtrooms and judges exist solely as tools and servants to the

resolution of a dispute.– Courtrooms and judges – assist lawyers in presenting the client’s cause

to the jurors.• The courtroom is yours, once you have decided to do something in

that courtroom, you do not need to apologize to anyone for doing it, only if you have offended someone.

• Only restrictions– Rules of legal theater– The other attorney who believes as you do

• **Remember the courtroom has an adversarial system – two lawyers trying to win the day in competitive discussion**

The Director – The Lawyer

• Rules of the courtroom– The rules of ethics, evidence and procedure keep the

competition from becoming a brawl.– The judge’s power comes from these rules.– The rules control the activities of the lawyer, so they

must understand the rules.– The adversarial system works because of the honor

of lawyers.– Order of importance:

• Ethics• Evidence