Lawyer Monthly - October 2021 Edition

WWW.LAWYER-MONTHLY.COM | OCT 2021 42 Dale M Fiola Founder, Law Offices of Dale M Fiola 200 North Harbor Boulevard, Suite 217, Anaheim, CA 92805 T: (714) 635-7888 | (714) 635-7887 E: dmfiolaw@gmail.com www.dalefiola.com Have you seen an increase in this phenomenon during your career? Yes. As the number of attorneys is on the rise and the number of real worthy cases is beginning to plateau, attorneys are more aggressive in attracting business. This is most apparent when one sees the proliferation of billboards springing up around most cities and TV commercials extolling the virtues, records and monetary awards of the area’s legal practitioners. Has the COVID-19 pandemic and the introduction of remote hearings had an effect on this kind of performative lawyering? Yes. The effect is fewer jury trials and scaled down performances before judicial officers. Remote hearings have softened the bravado of counsel that usually is reserved for juries. Do you feel that this kind of role-playing is generally beneficial or detrimental to a lawyer’s performance? It can be both. The most important consideration is to know how and when to use role-playing. I started public speaking when I was 12 years old and have been able to develop it over the years. No one wants to see a “staged” performance that seems manufactured and artificial. One should never lose sight of the following – “You, as the attorney, must truly believe in every aspect of your client’s case.” The words you choose in Court need to support that belief entirely. Why might a trial attorney find it helpful to adopt a different persona in the courtroom? As Sun Tzu stated in The Art of War, “Victorious warriors win first then go to war, while defeated warriors go to war first and then seek to win.” One’s persona just before battle carries a lot of swagger with the opposition. If the attorney is well- prepared for trial and the opposition knows it, this becomes a compelling incentive to settle the controversy. If the case does not settle, the attorneymust adjust to their opponent’s delivery skills. In other words, if the opposing attorney is a pathos pleader, a talented attorney will adjust their tone level accordingly to manifest a calm and controlled delivery. If the opposing counsel is bent on using logos, that same attorney might act to refute the logic by focusing on the human characteristics of the parties involved. The sensibilities of the parties have a lot to do with why the parties are in court in the first place. It is important that the attorney develop a contrasting courtroom style from their opponent’s that will make their case stand out. This is not gamesmanship but using a tactical approach for delivery of their case to the trier of fact. Have you ever consciously or unconsciously shifted personas in the courtroom yourself? Yes. Every case is different: different facts, laws, parties, judge, jury, and courtroom. An attorney certainly doesn’t want to act like King Lear when the scene is set for Much Ado About Nothing. Changing personas can work effectively but must be based upon two important caveats: do not lose your credibility to the trier of fact or transgress ethical requirements. Tonal adjustments are necessary on direct or cross-examination. When dealing with a minor or someone who is quiet and meek, a more subdued approach to examination should be followed. When dealing with an opposing party who is openly hostile in their responses, a more striking and pungent cross examination is advisable. was exceedingly polite to me. There was no question that the media had a definite impact on the courtroom demeanour of the Judge and the attorneys involved. It is written in our social DNA that we must look and sound our best on camera. The era of selfies is instructive on this point. As soon as the lens is pointed in our direction, there is a knee-jerk reaction to smile. Why, in your opinion, do attorneys act in this way in the courtroom? Is it influenced by Hollywood and popular perceptions of lawyers, or is it more of a product of the profession’s culture? It is hard to separate an attorney from their case. They want to win at all costs. Winning means more legal business, a good image, better referrals and legal standing. Part of the image the attorney wishes to cultivate is that they have all the trappings of success: fancy offices, cars, homes, expensive dress suits and a sophisticated staff. There is no question Hollywood has had a significant effect upon legal performance. To Inherit the Wind, To Kill a Mockingbird, A Few Good Men, Perry Mason, LA Law and many other movies and television series have inspired generations of people to become lawyers and, seemingly, influenced them to act as the characters we have loved for so long. This is a classic display of “life imitating art” when those movie buffs want our lawyers to represent us as the characters that we have idolised in film. This has led to clients having a distorted view of how lawyers perform based on the movies they have watched. This is readily apparent in divorce proceedings where the dynamics are missing for theatrical elocution which is normally reserved for criminal or civil rights proceedings. Most of the divorces are quietly resolved in chamber conferences and off-site conference rooms with signed marital settlement agreements without a single word being “fired” in open court. This leaves some of the spouses suspicious that their attorneys did not fight as hard as they could have for an equal division of the property or child custody/visitation. Hollywood has created a false firebrand of law.