The use of technology, demonstration boards, and illustrations is essential in getting cases to present to today’s jury. Boredom is deadly. Getting the jury’s attention requires all of the skills and resources learned while trading.
“Son, if you want to be a trial attorney, you never give up acting.” This was the advice given to me by legendary Alabama litigator Frank Burge when I successfully applied for my first job straight out of law school. His strict tone kept me from straying from my resume, which reflected a career as a professional actor working on Young and the Restless and Santa Barbara, as well as a Masters in Performing Arts from USC, flaws rather than an asset to which too Black has faded, and I have taken this advice to heart over the decades of successful testing that followed.
In acting, proper preparation is key to excellence. For every minute on stage and on screen, there are hours of script and character studies, rehearsals, sets and costumes. As a student actor, that meant rehearsing until midnight and still getting up for an early morning class. As a professional soap opera actor, preparation meant working twelve hours a day on the set before receiving a script, so that all evening spent preparing to film several episodes the next day. Being unprepared as an actor was a major sin, especially in soap operas. A rerun because an actor failed to make a name for himself or blow a line takes significant crew time. Too many mistakes and the writers will soon be plotting your character’s untimely death. Precision is important. I still remember being punished by a director on the Santa Barbara set for missing my target on a camera shot by twelve inches. Though my role in the setting was minor, the scene had to be re-shot from above, each having to double the work because of my mistake. In short, being professional meant being prepared.
As a litigation attorney, the “over-preparation” approach has considerable advantages. Opening arguments and closing arguments are rehearsed and often recorded on video and checked. Just like a film, the case will be shown to focus groups and sent back for reworking to achieve maximum impact in the shortest possible time. Directors, like lawyers, often find that the material they find powerful and powerful has less impact and power when shown to an audience. Scenes that were previously overlooked are brought to the fore. Nothing made it to final production until it was first tested. This audience-oriented approach is equally suitable for preparing studies. As lawyers, we learn to think critically and at least intellectually in our own perception. This has its advantages when breaking a case or writing a letter, but it often gets in the way of communicating with a less critical audience. As a result, what we as lawyers think is an audience often doesn’t work. What we think is a brilliant argument creates a confused, distracted look on our judges’ faces. Testing these arguments in focus groups teaches us humility and brings us closer to the core of emotional decision-making, which is far more compelling than the “brilliant” arguments we conjure up at our desks.
A good actor lives on and stimulates the imagination. In the actor, the actor’s voice and body are formed into the voice and body of the portrayed character through imagination. This in turn stimulates the imagination of the audience, who perceive the actor as a character. A basic requirement for acting training is improvisation exercises, in which there is no script and the dialogue and the plot are dictated by the scene. The ability to fully immerse yourself in the imaginary reality of the scene is critical to good improvisation. When it works, it’s difficult to tell apart from script drama. In acting there is a constant expression of “being in the moment”. Simply put, at the moment when there is no discernible difference between the imagination and the reality. As a result of this repeated exercise and training, I tend not to think in logical processes of factual details, but in visions and scenes. Similar to the way a film unfolds, my cases are presented and presented through a sequence of places with dialogue and action. With this approach, customer and witness interviews detail where those scenes are occurring, who is speaking, and what is being said to get the audience right there. When you think of cases where scenes progress, you are telling your client’s story more than just providing evidence. If the witnesses are emotionally committed to the scenes as they are told, the jury pays attention to it. When the jury sees this story unfold, they are far more likely to invest in writing a just ending to the story when it comes to completing the judgment form.
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Actors spend hours with vocal coaches and dance instructors to develop their tools of the acting trade, focusing on the body and voice as the basics of communication. For decades I have been advising law students and attorneys on the importance of voice and body language for effective persuasion. You can make the best-written and most persuasive argument, but if your voice and body don’t tell the same story, you lose. A decade ago, while watching the president’s debates, the poll leader made the better-founded arguments. But when I looked at the candidate’s body language, my hands were folded just below the waist, conveying insecurity and discomfort. The opponent’s hands were fluid and working in accordance with the points made, and the cadence and emphasis of the voice supported the arguments. If you just read the words on paper, the front runner made the better arguments, but in performance they were the clear loser because the body and voice weren’t on board. The better performer later became the front runner and won the presidency. Litigation attorneys must force themselves to critically analyze what their bodies and voices are saying. As you videotape yourself, you’ll see the “umm” and “uhh” delays, as well as the faint parallel hand gestures, defensive stances, and distracting shuffles that destroy your convictions.
When I quit acting to pursue the law, the audience’s attention span was about as long as a sitcom, or thirty minutes. With the advent of social media, Google search, and instant messaging, it gets billed generously in three minutes. Keeping it interesting is a challenge. I still remember the first track I ever got in one piece in high school. Full of youth and nerves, I had problems with my acting and it showed. I noticed the director kept adding props for the stage and increasing the activity on the stage. Finally, I asked why I was so preoccupied with all the things in my hands and he bluntly replied, “If you can’t act, we’ll hide it behind the props.” As my acting improved, the point was made well. The use of technology, demonstration boards, and illustrations is essential in getting cases to present to today’s jury. Boredom is deadly. Getting the jury’s attention requires all of the skills and resources learned while trading.