Lawyer Monthly - October 2021 Edition

OCT 2021 | WWW.LAWYER-MONTHLY.COM 41 How can the act of role-playing or shifting personas manifest in the courtroom? It is no accident that the best trial litigators are storytellers. This is not to say they dabble in fiction or create a false narrative. What those litigators have learned over their years of practice is they have to keep the trier of fact – namely, the jury – interested in the case. Once a juror disconnects from the case, he or she only half-listens or doesn’t listen at all. At the time of deliberations, that juror may have a totally different view of the case from those who listened attentively. It can seriously hamper a fair trial. A trial litigator knows the secrets of how to keep the jury listening: they have to be a good storyteller. That ability to tell the story as the facts support requires a certain level of role-playing. Let’s face it. A trial must be interesting, if not entertaining, to keep the court and the jury hinged to it and the facts spun from the evidence. That philosophy is imbued in almost every aspect of our lives. As the American psychologist William James wrote in 1890, “there is no such thing as voluntary attention sustained for more than a few seconds at a time.” This, then, requires the trial litigator to hone their skills to make their case sound appetising to these courtroom listeners and viewers. He or she will use a complement of electronic gadgetry to engage the interests of the jury using demonstrative evidence, graphic reproductions of scenes and objects, expert witnesses and computer- generated images (CGI). The more the trial litigator utilises this sophisticated technology, the more likely the jury will “go along for the ride.” By changing the method of the delivery of proof during trial, the jury In what ways does this change the atmosphere or affect the key listeners in a case? During the criminal murder trial of People v. Orenthal James Simpson, I attempted to visit the courtroom but was turned away because I was not a person of interest. What I saw outside the courtroom was astonishing and circus-like. Cameras and news trucks were stationed outside the courthouse and in adjacent parking lots. Camera cables ran through the corridors of the courthouse and into Judge Lance Ito’s courtroom. The attorneys involved in the case were mentioned nightly in news broadcasts across the country. Those attorneys became household names in the press, including each member of the Dream Team. Whether one was a juror, witness or just a casual observer, there was no mistaking it; the dynamics in place captivated everyone’s attention, including the jury. There was no safe haven from paying attention to the trial. To a lesser degree than the OJ Simpson case, I represented a police officer on a case that went national. I spoke with the assistant to a well-known network newscaster who wanted a picture of my client. I refused the picture but instructed the network that if it wanted to hear the truth it should show up at court on a specified date. To my surprise, on that date, a film crew came to the courtroom to hear me argue. I have had previous appearances before the Judge and found her to be a little unruly when she would abruptly “cut off” argument of counsel to move her calendar along. She had cut me off on earlier occasions wearing her glasses. But, on this occasion, in the presence of the camera lens, the Judge took off her glasses, smiled intently and allowed me to argue as long as I liked. She will be pulled into each new visual or audio display reshaping their interest in the case. The more controversial or high-powered a case is, the more the trial litigator role- plays to a larger audience. It is only human nature for the attorney to up-scale his or her presentation to parade their skills in front of the media or larger courtroom audiences. In 2003, I had a case in federal court and I was plaintiff’s counsel against a governmental entity. Through the four to five days of jury trial, there were no more than three or four US attorneys in the audience at all times and no one else. That changed when the central female witness alleged to have engaged in sexually inappropriate conduct in the workplace took the stand. Other courtroompersonnel and a couple of busloads of high school students attended my cross examination of this witness. The courtroom ballooned in size from 4 to about 120 spectators. I felt the pressure to “pull out all the stops” and do the best I could to cross examine that witness. I could easily equate my feelings with the pressure that Clarence Darrow must have experienced when he squared off against William Jennings Bryan in the Scopes trial. Any lawyer who has been to trial has quickly learned the difference between how a courtroom operates in real life and how it is portrayed in literature and film. But to focus on the differences is to overlook some uncanny similarities – particularly in how attorneys model themselves after the lawyers of fiction and deliver their presentations with intentionally dramatic flair. This month we have the pleasure of hearing from lawyer, author and producer Dale M Fiola, who explores how a litigator adopts a ‘storyteller’ persona in the courtroom. What is behind this phenomenon, and how does it affect attorneys’ performances at trial? “ It is no accident that the best trial litigators are storytellers.