Vail Daily column: The courtroom as theater
August 25, 2015
Everyone likes a good show. Everyone likes to be amused and entertained. Even in the courtroom. Sick as it may be, think O.J. Simpson, Casey Anthony, George Zimmerman and the recent James Holmes trial. And while a case before the court may be gripping in its own right, the performance of the attorneys counts for something too.
One of our assignments in law school was to put on a mock trial in moot court. Let's pause and I'll explain a couple of things. First, "mock" means, as A.I. would say, it's "just practice." Second, "moot" means "of little or no practical value or meaning." Or better still, "purely academic." Moot court is an academic exercise that most, if not all, law students go through to teach them how to put on a trial. So, our assignment was to prepare for and then present a pretend trial, which was delivered in the moot courtroom of the law school and presided over by a couple of honest-to-goodness judges, decked out in their judicial finery.
Usually, a moot court presentation is divided into teams of two. "Usually" in this case meaning at my law school when I was a student there. Other schools may do things differently; for all I know, other schools have a regular scrum in the moot court room.
Anyway, my partner (my co-counsel) was a friend of mine. Let's call him "Paul" (which makes a certain amount of logical sense since his name, in fact, is "Paul").
In the fog of 30 years of faded memory, the case we were provided to prepare and argue involved a guy on a motorcycle who was hit by a car. Our imaginary victim was grievously injured. Paul and I were plaintiff's counsel. Two other students — the black hats in this story — were assigned to defend the hapless and hopeless defendant, the driver of the car.
Oh, I forgot to tell you; there was a jury too. Sure, it was just a bunch of our law school classmates who had better things to do, but a jury nonetheless. Although judges are human, juries are even more so. Because they don't know the law the way a judge does, the lawyer's clever legal maneuvers sometimes elude them. With a jury, it's even more important to keep them: one, awake; two, attentive; and, three, if at all possible, interested.
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A DRAMATIC OPENING
So most trials to a jury (even to a mock jury in a mock trial in a moot courtroom) kick off with an opening statement. The plaintiff's counsel first, then the defendant's, get to offer up a little preview of the coming attraction. They get to share a wee bit o' the case and their theories of just what happened and who should pay the piper.
Most attorneys — even seasoned veterans — after the howdy doodies to the jury, would say something like this: "This case involves a motor vehicle accident." So far, so good; nice and concise. Then, with just a fraction of a scowl mixed with disappointment inching over their face, the lawyer would say, "Mr. So-And-So — the defendant … " (now the crook of a finger would hook scythe-like towards Mr. So-And-So) " … caused the accident." He might next say, "My client, Mr. Fill-in-the-Blank was out on a lovely, clear day. There was nary a cloud in the sky. The roads were dry. Visibility was" (here, a dramatic pause) "perfect."
"Mr. Fill-In-The-Blank was on his motorcycle." Now, you say this because you won't want this jury of upstanding citizens to think Mr. Fill-In-The-Blank is one of "those" motorcyclists, so you edge in, "He was driving home from work." If you're lucky, you add in, "Where he works with disabled children" and "he was on the way from work to visit his poor, ailing, widowed mother." If you hit the jackpot, you drop here, "who singlehandedly raised 16 children, all of whom who (like straight out of Lake Wobegon) are above normal" and if you've won the lottery, you add, "He drives a motorcycle because he sold his car to help support Dear Old Mom."
So far so good.
You pause, looking each juror sincerely in the eye.
"Mr. Fill-In-The-Blank — 'Fill' — had the red light with him. So-And-So did not." You steal a glance over your shoulder at Mr. So-And-So who's sinking like a burnt red sunset into his chair. You lead the jury's eyes over to the scoundrel. "How could he?" you want the jury to be thinking.
"Did So-And-So stop?" Pause. "No. He. Did. Not!"
Now this was before the time of cell phones, so I'll let you fill in for yourself with what So-And-So was diddling that stole his attention.
So, back to Paul.
Paul is saying this, not me. We've divided up the case and the coin flip came up "heads" so I got closing. Closing is when you tie the whole shebang together and summarize for the jury what they heard during the proceedings, what the evidence has shown, and what you, respectfully advise them, justice demands. Closings come last and are like the Death-By-Chocolate-Creamsicle dessert.
Anyway, Paul is on a roll. Here, he absolutely shines.
Here most attorneys would say something like, "So-And-So didn't stop. He ran through the light and hit Fill and launched him twenty five feet into the air before he came down hard on the pavement."
So is that what Paul did?
He did not.
What he did, instead, was this, "So-And-So didn't stop. Didn't even touch his brakes. No skid marks. So screech of rubber on the asphalt to give poor Fill even a moment's warning." Pause. "He charged through the light, crashed into Fill and … " and this was the brilliant part. Paul paused for a long time. He held his breath. He looked at the jury and then sadly down at his shoes. He looked at poor Fill.
Then he began to take long, deliberate steps. And as he began to march off the steps, he said, "And when So-And-So crashed into Fill, he launched him from here … " he marched the steps off slowly until he had crossed twenty five feet across the courtroom, "to here." He stopped, looked back from where he had started and looked again at the jury.
Now, that, my friend, is theater. The jury was on his every word.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, email@example.com or firstname.lastname@example.org.
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