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Trial Skills

Are You Acting in the Courtroom?

By Marsha Hunter

A law student is working on a direct examination during a trial skills program. She is practicing her presentation — how she stands, gestures and speaks. Each time through the examination, she asks exactly the same questions, with identical intonation. She has memorized this part of the trial, so we stop and talk about that.

Why isn’t it possible to memorize questions for trial?

No Comfort in Canned Presentations

While it may seem obvious to seasoned trial lawyers, it is far from clear for many students and young practitioners. There are several reasons one cannot find comfort in a canned examination:

  • You cannot prepare your witness to memorize each answer for ethical reasons.
  • By virtue of being human, your brain is not good at memorizing something and then reciting it aloud. When we speak words we have tentatively memorized, our recall is poor, making us sound uncertain and robotic.
  • Memorization, even if we were good at it, takes a very long time. Busy professionals don’t have time to memorize long passages. Busy professionals don’t have time to memorize short passages with much flair.
  • Since you wouldn’t be able to accomplish the memorization task, you would give up and try reading instead. We aren’t any better at reading than we are at memorizing. You would be stiff and boring.
  • Something would happen in the courtroom to make your script obsolete. A witness would forget, get lost, or otherwise become a problem. New facts might emerge. Someone will object.

You can think of more reasons, I’m sure. But this discussion leads to an interesting question: are you acting in the courtroom? Are you trying to do what actors do, which is memorize, recite (or occasionally read) and become someone else?

It’s All About Execution

Only you, of course, can answer that question. You may feel you adopt a courtroom persona when you walk into a courthouse, becoming someone other than yourself. That’s what actors do — chameleon-like, they portray different people. When you put on your suit and dress shoes, you may feel different. Fine! However you find your way into the job is your business. If you consider yourself to be doing what Denzel Washington or Scarlett Johansson do, or feel as if you are playing a role, I have no argument with it.

My concern is the execution, how you accomplish the tasks of being a trial lawyer. You are certainly performing. You are improvising as you riff off answers, objections and rulings, come up with new ideas, and maneuver to put your overall plan into action. You are an expert in a forum that requires you to be cognitively nimble and extremely well-spoken. Technically speaking, though, it isn’t acting.

Acting is pretending, impersonating, playing different parts, imitating, mimicking and ultimately adopting characters other than one’s own. Actors may play one character by focusing on a physical characteristic, another by exploiting a certain way of speaking, and still another by using a tricky psychological approach. They spend entire careers honing the art of making their performances look and feel truthful and honest. In the courtroom, you are supposed to be truthful, not pretend to be so.

Actors memorize lines, written by professional writers, that make what they say witty, wise, thoughtful, illuminating or simply entertaining. As much as your own courtroom scripts are carefully written, they are far from interesting theater or film material. Don’t assume you can write something entertaining. If your talent lies there, go to Hollywood and get a job with far more vacation.

If you feel as if you adopt an alter ego in the courtroom, OK. Perhaps you are looking for just one consistent character instead of many. You’ll settle for the role of a lifetime and play it over and over. But beware of taking on acting and screenwriting in addition to lawyering.

To prepare for trial, practice your facts, stories, questions and arguments by talking out loud. Your words will change over time, but you’ll grow accustomed to shaping language within the framework of the trial. Sometimes you’ll be more fluent, sometimes less. Once the trial is ready to start, talk more than you write.

Leave acting to Washington and Johansson, and scripting to Shakespeare.

Other People’s Shoes

Thanks to actor and author Harriet Walter, whose book “Other People’s Shoes” got me thinking again about this question of acting in the courtroom. Her in-depth examination of what actors are up to is down-to-earth and brilliant at the same time. Her book makes clear the difference between acting and everything else.

Illustration ©

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Marsha Hunter 2020 Marsha Hunter

For more than 30 years, Marsha Hunter was the CEO and a founder of Johnson and Hunter, Inc., with legal clients in the United States, Canada, Australia, and Europe. Her clients were top ten and top twenty law firms, legal departments at the world’s largest corporations, the United States Department of Justice, and organizations and bar associations from Belfast to Tasmania. Marsha is co-author of “The Articulate Advocate” and “The Articulate Attorney,” her specialty is human factors — the science of human performance in high-stakes environments. Born in Montana and raised in the American West, she lives in New Mexico.

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