Teaching Trial Advocacy: Inviting the thespian into Blackstones tower

L McCrimmon* & I Maxwell,As printed in (1999) 33 Law Teacher 31.

Introduction1
In a workshop held in the first week of a thirteen week semester, final year law students enrolled in Advocacy, Interviewing and Negotiation were asked to set up a courtroom in the seminar room. We had spent the previous hour experimenting with spatial semiotics; in particular proxemics the analysis of how the arrangement of bodies and objects in space creates certain meanings2, -and kinesics- the analysis of particular embodiments and gestures.3 The students responded with gusto, rearranging furniture, delegating to each other various responsibilities and nominating roles for themselves, carefully attending to the increasingly visible skeins of power and meaning with which the courtroom is invested to distances, eyelines and relative elevations. For the benefit of the thespian,4 the students kept up a running commentary; explaining how the space was set up, who went where, what would unfold. When all was in place (the judge behind her bench, the jury off to the side, the clerk between the bar table and the bench), one student balanced a wooden lectern across two tables, facing the judge. He gathered himself, and leant forward, one forearm resting on the inclined plane of the lectern, the other extended in a gesture pointing towards the bench. And who are you?, he was asked.
*

Senior Lecturer and Director of Clinical Programmes, The University of Sydney, Faculty of Law. Associate Lecturer, The University of Sydney, Centre for Performance Studies.

An earlier version of this article was presented at the Worldwide Advocacy Conference held at the Inns of Court School of Law, London, June 1998. We wish to thank Marlene Le Brun of Griffith University for her comments on an earlier draft of this article. Of course we alone are responsible for its contents. We also thank Beau Buffier for his research assistance, and the New South Wales Law Foundation Scholarship Support Fund for its financial support. The term Blackstones Tower is taken from: William Twining, Blackstones Tower: The English Law School (Stevens and Sons/Sweet and Maxwell, 1994).
2

Proxemics is concerned with what Edward Hall called spatial codes (Edward Hall, The Hidden Dimension, New York: Doubleday 1966). In Halls scheme of proxemic semantics, fixed -feature space involves static architectural configurations: the shape and dimensions of a given space; semi -fixed-feature space: movable but non-dynamic objects such as furniture; and informal space: the ever shifting relation of proximity and distance between individuals (Keir Elam, The Semiotics of Theatre and Drama, 62-63, London & New York: Methuen, 1980).
3

Kinesics takes as its object of analysis body motion as a communicative medium (Keir Elam, ibid., 70), and can be loosely thought of in terms of what is referred to as body language. It concerns itself with questions such as: how do certain configurations of the parts of a body signify? How do they produce mea ning? How do we know that an extended finger means over there? Generally see: Terence Hawks, Structuralism and Semiotics, (London: Methuen, 1977).
4

Dr Ian Maxwell
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The Crown prosecutor we were told. And what are you doing? Addressing the bench. And how do you prepare for this moment? Pause . The student then started to explain how an advocate prepares for trial: the marshalling of facts and exhibits; the preparation of witnesses; the consultation of precedents, statutes, rules of evidence and so forth5 - all the things that law schools excel at teaching. But this is the moment of performance, he was told. The moment when you stand up, open your mouth and, all too frequently, hope that everything will come out right. How do you get ready for that? Silence In this article we discuss preparation for performance through an analysis of the evolution of dramaturgy6 in Western society, and we discuss ways in which acting techniques can be incorporated into advocacy teaching. We demonstrate how ideas about embodied learning can be used to instill in the advocate a sense of argument as performance, and performance as argument. We illustrate how dramatic texts from Shakespeare can be used as paradigmatic examples with which to develop advocacy performance skills. Finally, we consider whether acting techniques constitute legitimate forensic skills, or simply promote the use of unethical trial tactics. Preparation for Performance The trial process embodies three categories of skills and activities: foundation skills; preparation skills; and presentation skills. Pictured diagrammatically, these skills form a pyramid:7

It is important to note that this workshop is held in the first week of the semester that is, before concepts such as case theory, case theme, questioning of witnesses, argument, etc., have been discussed.
6

The word dramaturgy, used in this sense, refers to the study of theatrical form.

This pyramidal diagram of the trial process is adapted from, Jeff Wolfe, Exploring Trial Advocacy, 16 Tulsa L.J. 209, 211 (1980)
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1. 2. 3. 4. 5. 6.

Presentation Skills Opening Address Examination in Chief Cross-Examination Objections/motions Entering exhibits Closing Argument Preparation Skills Interviewing/Counselling Fact Finding/issue identification Negotiation and Mediation Legal research Drama Drafting Foundation Skills Communication Planning Decision making Legal Research and Legal Writing Analysis Character Assessment

1. 2. 3. 4. 5. 6.

1. 2. 3. 4. 5. 6.

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Trial advocacy courses modelled on the National Institute for Trial Advocacy (NITA) simulation/critique model of advocacy training8 focus on the tip of the pyramid, the trial itself. Within the context of the NITA model, preparation for performance tends to be confined to case analysis, the development of an effective case theory, and the formulation of a case theme.9 Drama as an integral part of the advocates preparation for trial, is largely ignored. Further, an analysis of the trial/theatrical performance interface is not addressed in other courses in the traditional law curriculum.10 Courses in Law and Popular Culture may provide a theoretical framework for analysing the impact of acting techniques on decision makers,11 and may provide an explanation for the popular conception of advocates as insincere manipulators of truth.12 However, theoretically sound instruction on the performative aspects of the advocates craft has been conspicuously absent from most advocacy courses. This warrants attention, and models of acting should be considered when modifying an existing advocacy course, or when developing a new course. Models of Acting Advocacy the art of persuasion; the art of persuading and leading the mind of the tribunal which has the duty of judgment to the conclusions desired by the speaker13- takes place within the context of a performance. Theatrical elements of courtroom action include:

The NITA model is based on a simulation/critique method in which students perform all of the tasks of trial counsel in a simulated courtroom environment. For a discussion of the NITA method, see: Les McCrimmon, Trial Advocacy Training in Law School: An Australian Perspective , 5 Legal Ed. Rev. 1, 3-6 (1994); Steven Lubet, Advocacy Education: The Case for Structural Knowledge , 66 Notre Dame L. Rev. 721 (1991); Marilyn J. Berger & John B. Mitchell, Re-thinking Advocacy Training, 16 Amer. J. Trial Advocacy 821 (1993).
9

See, for example, Edward Ohlbaum, Basic Instinct: Case Theory and Courtroom Performance , 66 Temple L. Rev. 1 (1993); Daniel G. Linz & Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8 Law & Psychology Rev. 1, 3-7 (1984).
10

To quote a colourful (if somewhat militaristic) analogy: The lawyers boot camp prepares its recruits poorly for the courtroom wars over the hearts of ordinary citizens. Legal education denies emotion. Students are taught the cold logic of inductive reasoning a thought process essential to law review commentary, legal brief writing, and analysis of appellate court decisions But inductive analysis is a poor road map for the courtroom. Jim Perdue, Bringing Drama to the Courtroom, Trial, Sep. 1997, at 50. The study of law and popular culture challenges the fiction that, law derives from dispassionate reason, that it is the product of objective analysis disengaged f rom feeling or desire, and that legitimate decision making cannot occur in the absence of deductive or inductive logic, strict causal analysis, and well-reasoned explanation. Richard K. Sherwin, Picturing Justice: Images of Law and Lawyers in the Visual Media, 30 U. of San Francisco L. Rev. 891, 898 (1996). Robert C. Post, On the Popular Image of the Lawyer: Reflections in a Dark Glass , 75 Cal. L.Rev. 379 (1987) This quote is attributed to Quintilian; see: John Barry, The Ethics of Advocacy, 15 A.L.J. 166 (1941).

11

12

13

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The audience, consisting of the judge, the jury (if there is one), and the public gallery; 14 The format, where [p]rotagonist and antagonist confront one another, presenting conflicting versions of the past and establish a problem to be solved,15 The script, where the advocates, reconfigure reality through strategy, evidence, law and rhetoric;16 and finally The actors, consisting of the advocates for each party and the witnesses. It follows that, for the audience, [t]he courtroom is, or should be, a theatrical space, one which evokes expectations of the uncommon.17 This is not to suggest that the theatre and the courtroom are the same, clearly they are not. In a courtroom the participants are not playing, the stakes are often extremely high, and the resolution is rarely certain. However, this does not detract from the fact that elements common to both do exist. Despite the parallels between the stage and the courtroom, the study of acting techniques has not had a major impact on the way advocacy is taught. Perhaps this can be attributed to the Langdellian view of law as a scientific discipline that prizes rule-orientated doctrinal analysis over andragogic experimentation.18 Over twenty years ago one respected commentator noted: [t]he identification of judicial proceedings as theatre requiring live presentation would seem unexceptional but for the fact that the label has been rejected, as though theatrics were an expendable, intrusive embarrassment to the scientific and businesslike austerities of the courts.19 Whatever the reason, the time has come to acknowledge that the advocate has as much to learn from the thespian as from the scientist.

14

Milner S. Ball, The Plays the Thing: An Unscientific Reflection on Courts Under the Rubric of Theatre (1975) 28 Stanford L.Rev. 81, 86-88. 15 Ibid., 88.
16

Marilyn J. Berger & John B. Mitchell, Re-thinking Advocacy Training, 16 American J Trial Advocacy 821, 836 (1993). See also: Milner S. Ball, op.cit., n. 14; Suzanne Shale, The Conflicts of Law and the Character of Men: Writing Reversal of Fortune and Judgment at Nuremberg , 30 U. of San Francisco L.Rev. 991, 992 (1996), in which it is noted that, [j]ust as drama has its texts, and the realization of text in theatrical performance, so too, with its written texts and the spectacle of the court, does law.
17

Milner S. Ball, op. cit. n. 14.

18

For a discussion of Langdells influence on Australian legal education see: Marlene Le Brun & Richard Johnstone, The Quiet Revolution: Improving Student Learning in Law , 18-23 (Sydney: Law Book Company, 1994). Generally see: Richard Neumann Jr, A Preliminary Inquiry into the Art of Critique, 40 Hastings L.J. 725 (1989); Carrie Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education or The Fem -Crits Go To Law School, 38 L. Legal Ed. 61 (1988).
19

Milner S. Ball, op.cit., n. 14.

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Almost all theories of acting contain techniques that can be adapted for use by the advocate,20 however three models warrant detailed consideration: the classical/Galenic model, reception theory and Japanese no Theatre. Two of the models, the classical/Galenic model and reception theory, are derived from Western theatrical orthodoxy, and the third, Japanese no Theatre, comes from outside the Western tradition. Through an analysis of these three models, techniques that can be used to assist an advocate to prepare for a persuasive performance can be identified. Perhaps more importantly, we can also identify techniques that should not be taught; namely those which produce the overt, histrionic performances that are anathema to both judges and juries. The Classical/Galenic Model The classical/Galenic model evolved from four primary sources: the observations of Plato and Aristotle, the writings of Roman students of rhetoric and, subsequently, the pneumatic theories of Galen of Pergamum. This is the dominant folk-theory of acting circulating in Western culture and one that holds considerable authority amongst inexperienced actors and advocacy students. Despite its prestigious pedigree, acting techniques based on this model of performance are generally not appropriate for the training of the advocate, as it is productive of overt, histrionic performance. That said, the appropriate use of acting techniques to prepare for courtroom performance requires an understanding of the evolution of the classical/Galenic paradigm. Plato developed a sophisticated analysis of performance. In The Ion he writes of the power of the rhapsode (the deliverer of poetry; the actor): There is divinity moving you, like that contained in the stone which Euripides calls a magnet, but which is commonly known as the stone of Heracles. This stone not only attracts iron rings, but also imparts to them a similar power of attracting other rings; and sometimes you may see a number of pieces of iron and rings suspended from one another to form quite a long chain; and all of them derive their power of suspension from the original stone. In like manner the Muse first of all inspires men herself; and from these inspired persons a chain of other persons is suspended who take the inspiration the spectator is the last of the rings which receive the power of the original magnet The rhapsode and the actor are the intermediate links, and the poet himself is the first of them. The spectator is not theorised as anything other than the final link in a chain; a passive receiver of the power of the original magnet. This, coupled with Aristotles concept of catharsis, has formed the basis of western dramaturgy for nearly two-and-ahalf millennia.21

20

For example, Stanislavskis work on superobjectives closely parallels the notion of theory of the case. See: Constantin Stanislavski, An Actor Prepares, 271-280 (London: Methuen [trans Elizabeth Hapgood Reyonds (1937), 1980]). 21 The Aristotelian concept of catharsis refers to the purifying or relieving of the emotions by art: Websters New World Dictionary, College Edition, 231 (The World Publishing Company 1966). It is interesting to note that Aristotles writings were not actually based upon a first hand experience of theatre, but are an after -the-fact, rather formalist analysis. Ronald Vince argues that Aristotle was basically a literary critic, rather than a theorist of performance: Ronald Vince, The Aristotelian Theatrical Paradigm as Cultural-Historical Construct, 22, Theatre Research International 1, 38-47 (1997).

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The first set of texts that address directly the question of actorly performance are those written by Roman students of rhetoric. Quintilian, for example, in his institutio oratorio, explains that, the prime essential for stirring the emotions of others is first to feel those emotions oneself if we wish to give our words the appearance of sincerity, we must assimilate ourselves to the emotions of those who are genuinely so affected, and our eloquence must spring from the same feeling that we desire to produce in the mind of the judge.22 The result will be that, when we pretend that the persons concerned themselves are speaking, the personal note adds to the emotional effect. For then the judge seems no longer to be listening to a voice bewailing anothers ills, but to hear the voice of the unhappy victims, men whose appearance alone would call forth his tears 23 Drawing on Aristotles belief that a strong imagination begets the event itself,24 Quintilian argues that, in lieu of the requisite experience leading to that emotional state, the advocate may instead draw upon visiones.25 Somewhere in the middle of this process the counterfeited emotional state, brought on by the orator through the skilful deployment of the imagination, becomes real. At such moments feigned emotion becomes indistinguishable from genuine feeling.26 The classical physiologist, Galen of Pergumum, elaborated on the aesthetic principles of Plato, Aristotle and Quintilian.27 For Galen, Platos chain of magnetic alignment working through the actor becomes instead an elaborate series of biochemical reactions, organised around processes of internal combustions: the vital spirit, or pneuma flows from the speaker, through the aether, reacting in the lungs of the receiver. The actor, then, is able to transform the air through which he moved, animating it in waves of force rippling outward from a centre in his soul. His passions, irradiating the bodies of spectators through their eyes and ears, could literally transfer the contents of his heart to theirs, altering their moral natures.28
22

Quintilian, The Institutio Oratoria, Book VI: 26-27 (H.E. Butler trans., Cambridge, Mass: Harvard University Press, and London: Heinemann, 1960).
23

Ibid., Book VI: 26.

24

Fortis imaginato generat causum: Aristotle, The Poetics, Chapter XVII. (T.S. Dorsch trans., London: Penguin Books, 1965).
25

In Quintilian, The Institutio Oratoria, Book VI: 29 (H.E. Butler trans., Cambridge, Mass: Harvard University Press, and London: Heinemann, 1960).
26

Joseph R. Roach, The Players Passion: Studies in the Science of Acting, 25 (Newark: University of Delaware Press, 1985).
27

Written in the second century AD, Galens work became medieval and Renaissance doctrine (Roach, ibid., p. 27).
28

Roach, ibid., p. 27).

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Acting based on the classical/Galenic model involves the use of histrionic gesture for example, long, held poses, back of hand to brow, etc., and abrupt shifts.29 In 17th century England, this model became the dominant paradigm for acting.30 Later, playwrights of the Restoration tended to produce playscripts which, today, appear to be ridiculously melodramatic, with extraordinarily abrupt changes of emotional tenor and a lack of psychological motivation.31 Through an analysis of this model of acting, which understands performance in terms of a biomechanistic cause and effect, a single principle of persuasion emerges: if the audience is not feeling what the actor is feeling, the actor (or advocate) needs to emote more intensely to achieve the desired effect. The result an overt, histrionic, unpersuasive performance. Reception Theory and Japanese no Theatre In reception theory and Japanese no Theatre we find techniques which can be used to help an advocate prepare for a persuasive performance. In the 18th century Denis Diderot, in his text, The Paradox of Acting, suggested that, contrary to the emotive performance espoused in the classical/Galenic model, a cool-headed actor32 was better able to produce in the audience a passionate response. For Diderot, acting was not a one-way process. Rather, [i]t is [the audience] who feel; it is [the actors] who watch, study, and give us the result.33 According to Diderot, this was the paradox of the actor; the actor did not have to be really experiencing that which he or she claimed to be experiencing in order for the audience to feel that the actor was undergoing that experience. By drawing attention to the active role that the audience plays in a given performance, Diderot anticipated developments in what has become known as reception theory.34 Rather than simply understanding the spectator as the passive recipient of a chain of inevitably unfolding events, as is advocated in the classical/Galenic model, reception theory recognises the active

29

Roach notes that: Within a given role an actor would be expected to effect sudden, highly visible transitions between passions in the length of a speech or even a single line.[P]laywrights demanded that actors depict the passions as sudden and violent metamorphoses. Joseph R. Roach, ibid., p. 42.

30

The classical/Galenic model appears in a number of texts. Thomas Heywood, in 1612, for example, wrote of acting as a species of rhetoric a science of persuasion incorporating a practical psychology (Roach, ibid., p. 30). In his Life of Mr Thomas Betterton (1710), Charles Gildon writes of the strange sympathetic infection emanating from the actors eyes, striking those of the audience, capable of setting them on fire too with the very same passion. Charles Gildon, The Life of Mr Thomas Betterton (1710; reprint New York: Augustus M. Kelly, 1970).
31 32

Roach, ibid., p. 30. Denis Diderot, The Paradox of Acting, 18, 20 (New York: Hill and Wang). Ibid., 18.

33

34

Willmar Sauter, Approaching the Theatrical Event: The Influence of Semiotics and Hermeneutics on European Theatre Studies, 22, Theatre Research International 4 (1997).

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participation of the audience in creating meaning. The audience actively generates meanings, including emotions, by reading the signs which the actors produce, rather than by being passively infused with a mysterious sympathy, pneuma, or irradiation.35 Models of acting developed outside the Western tradition support reception theory. Zeami Motokiyo, a 14th century Japanese playwright, actor and teacher, wrote the foundational practical texts of Japanese no Theatre.36 Zeami believed that effective acting relied not so much upon a formal, one-way process, wherein the actors genuine emotional state would communicate through the aether to the audience, but upon a constant process of reflection and monitoring of the spectator. For Zeami, [t]he professional actors most immediate performance goal is to impel and maintain the interest of his37 audience [S]uccess in arousing this state of interest in the spectator arises from the actors ability and skill at arousing a rather specific set of feelings anticipation, wonder, surprise and delight.38 In this model, actors need to develop the capacity to perceive the mood that exists at any given performance, on any given day. [O]n the basis of [the] feel for this mood, [actors] can then shape [their] performance to make it all the more effective.39 This will help the actors establish a strong and immediate rapport with [their] audience, whereby [they] can lead them more directly into experiencing the revelation of the nature of the character [they are] portraying.40 At every point actors must be aware of the effect they are having upon their audience, and be able to produce the appropriate gesture or inflection of voice in order to move the spectator along to the desired state of emotion and understanding. The [actors] task is not to express [their] own emotions directly, but to create a series of audience-involving moods.41 The process is decidedly two-way, involving a complex series of feedback loops between two discrete states of being that of the actors and that of the spectators. The actors are involved in a dialogue with the audience, not simply in the production of a flow of discourse. In reception theory, and in Japanese no Theatre, we find tools appropriate for training advocates. Advocates must understand that their courtroom performance does not exist in isolation; it always involves an audience. The most important performative skill advocates need to learn is not how to feel, as emphasised in the classical/Galenic tradition, but rather how to lead the emotion and understanding of the audience. This is particularly relevant in jurisdictions where an advocates performance space consists of the confined area behind the bar table.

35

Joseph R. Roach, op. cit., n. 26. Mark Nearman, Feeling in Relation to Acting: An Outline of Zeamis Views . 1 Asian Theatre Journal, 40 (1984). Only men perform Japanese no Theatre Mark Nearman, op. cit., n. 36. Ibid., at 43. Ibid., at 44. Ibid., at 45.

36

37

38

39

40

41

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How can Theories of Acting be Incorporated into Advocacy Teaching? The thespian should be invited into Blackstones Tower. In the course referred to in the introduction to this article, students participate in a two-hour workshop designed by Ian Maxwell. The workshop starts with a few very simple exercises in proxemics and kinesics: we get people to move through a space, ask them to stop and talk to their classmates, and then instruct them to freeze in order to analyse their body language with respect to each other. Without being proscriptive, it is possible to encourage students to understand how their proximity to each other (proxemics) and their own embodiment (kinesics) conveys, or creates, particular meanings for others. The students then engage in status exercises. In these exercises students experiment with eye contact and relative height as they adopt broad or narrow stances, take up more or less physical space, etc. Through participating in and observing such exercises, students begin to understand how the manipulation of certain variables might help put a witness (or jury) at ease or, alternatively, be used to create discomfort.42 Various pieces of furniture are then introduced. Students are encouraged to experiment with the furniture and discuss the impact the use of furniture has on the communication dynamic. This analysis may involve a discussion of such issues as: how many ways can a person sit on a chair? How might the clothing a person wears limit that persons options? Is there a difference between how we feel sitting in a particular way and how we appear to an observer- for example the jury, the witness, or a client? How does culture, ethnicity and gender impact on our use of furniture? In this exercise students are provided with an opportunity to consider actively the principles and rules of conduct which most people take for granted.43 The second half of the workshop introduces students to the models of acting discussed above through a turn to the centre of Western dramatic canon: Shakespeare.44 Students are provided with a variety of soliloquies45 and are encouraged to analyse and perform these speeches as argument.46 They are asked to pay attention to the content and structure of what they are saying,
42

There is a sizeable body of literature offering practical guidance in these kinds of exercises. For example, see: Keith Johnstone, Impro: Improvisation and the Theatre, 3-75 (London: Methuen, 1981); Clive Barker, Theatre Games: A New Approach to Drama (London: Eyre Methuen, 1977); Lyn Pierse, Theatresports Down Under: A Guide for Coaches and Players (Kensington, N.S.W: Improcorp Australia, 1993); Augusto Boal, Games for Actors and Non-Actors (London & New York: Routledge, 1992).
43

It should be noted that this workshop is part of a course that deals with client interviewing and legal negotiation, in addition to trial advocacy.
44

Generally see: Harold Bloom, The Western Canon: The Books and School of the Ages (London, New York & San Diego: Harcourt Brace & Co., 1994).
45

In workshops we have used: Hamlets To be or not to be ( Hamlet Act III, scene i, lines 56-88); Prince Henrys Reformation speech (Henry IV, Part 1, Act 1, scene ii, lines 190-211); Hotspurs dissembling apology to King Henry IV, My liege, I did deny no prisoners ( Henry IV, part 1, Act 1, scene iii, lines 26-68); Macbeths assassination speech (Macbeth Act 1, scene vii, lines 1-28); Hermiones self-defence speech (The Winters Tale, Act III, scene ii, lines 22-54); Helenas moment of deliberation (Alls Well That Ends Well, Act III, scene ii, lines 99-129).
46

The speeches themselves are constructed as arguments. There is an initial statement of a problematic: Is this a dagger I see before me? (Macbeth, Act II, scene i, lines 33-64); To be or not to be (Hamlet Act III, scene i, lines 56-88); My liege, I did deny no prisoners .( Henry IV, Part I Act I, scene iii, lines 28-68) and so on. There
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not to get carried away by the beauty of the language or by the emotions such language invokes. When performing the piece, students are encouraged to focus on the effect they are having on their audience, and to attempt to produce the appropriate gesture or inflection of voice necessary to move the spectator along to the desired state of emotion and understanding. In so doing, they are encouraged not to rely on the overt, histrionic performance advocated by proponents of the classical/Galenic model. Emphasis is placed on the advocates ultimate objective, which is to lead the audience present in the courtroom through the stages of the argument towards a conclusion. This result is achieved through rehearsal. Hence, in the next phase of the workshop students are introduced to effective rehearsal methods based on reception theory and Japanese no Theatre. Effective Rehearsal Methods Acting is embodied action. Actors do not learn to speak Shakespeare simply by reading it. However the first stage of rehearsal does involve an analytical phase, sometimes referred to by theatre practitioners as table work, which precedes rehearsal in space. In this initial phase the cast and director break the text down into units of action, and mark their scripts accordingly.47 The next step in rehearsal involves the actual embodiment of these units of action. Students are introduced to the principle of rehearsing big and performing small, and are encouraged to use as much space as they can when rehearsing and, when rehearsing argument, to find kinesthetic analogues for figures of logic. For example, words like yet, but, however, or, etc., can be used to reorient the body in space. If the speech involves a thesis-antithesis structure, these images or ideas are placed at opposite ends of the rehearsal room, and the advocate moves between them. A well-known passage from Hamlet can be used to illustrate this point. When rehearsing Hamlets soliloquy in Act III, scene i, students are encouraged to place To be at one end of the room, and not to be at the other end. Units of argument supporting the thesis, to be-for example, Whether tis nobler in the mind to suffer the slings and arrows of outrageous fortune and the antithesis, not to be-for example, to take arms against a sea of troubles, and by opposing end them?- are then placed at the appropriate ends of the room. On the word or, the student can reorient his or her body in space and move between these points or argument. The embodiment of argument is a phase that is then left behind, leaving in the advocates body, mind and voice the argument as experience, as a memory that is, paradoxically, forgotten. Put another way, one rehearses in order to forget. Gestures and inflections of voice which, in rehearsal, were performed big are, at trial, performed small. For example, emphasis of a point that, in rehearsal, involved a movement from one end of the room to the other may, at trial,
then follows a number of metaphors, often proceeding as a dialectic, in which thesis and antithesis are juxtaposed, leading to a final synthesis; a decision, which the character then goes off to act upon. Alternatively, the series of metaphors may serve as re-statements of the same theme: attempts to communicate better the argument. On Shakespeare as rhetorician, see: Heinrich F. Plett, Shakespeare and the Ars Rhetorica, in Rhetoric and Pedagogy: its History, Philosophy and Practice: Essays in Honor of James J. Murphy (Bryan & Homer (eds.), Hillsdale, New Jersey: L Erlbaum, 1995); William B. Worthen, Staging Shakespeare: Acting, Authority, and the Rhetoric of Performance, in Shakespeare, Theory and Performance (Bulman (ed.), New York: Routledge, 1966)
47

The parallels between table work and case analysis become clear in week 3 of the course when students are introduced to the concepts of case theory and case theme.
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consist of a turn of the head or a small hand movement. Through rehearsal, gestures and inflections of voice are programmed into the body memory, freeing up the mind to monitor the emotion and understanding of the judge and jury. This rehearsal technique can be adapted to assist advocacy students to prepare for their performance of various components of the trial. Opening and closing addresses immediately come to mind, although the use of the technique has wider application. This is not to suggest that students should prepare a detailed script of their addresses. Rather, students are encouraged to table work their outline48 to understand how a piece of written text is moved into a performance. By correlating points of argument to units of action, the advocate can develop a feel for moving their audience through a complex set of ideas. The breaks in units provide moments where the advocate can take stock of how they are going, allowing an idea to settle before moving on to the next point. This also creates a performance rhythm, or pace, which subconsciously informs the audience how they are to go about listening and receiving information and when they are to reflect. This analysis of advocacy as performance is particularly relevant in jurisdictions where advocates are restricted to movement behind the bar table when presenting an address or examining a witness. Performance, given such physical limitations, must be predicated on a notion of persuasion through the use of body, speech and metaphor within a confined space, rather than on a notion of emotional identity. In many jurisdictions, including Australia, New Zealand, Canada, the United Kingdom and South Africa, counsel are not allowed the latitude of movement afforded to their counterparts in some courts in the United States. They must perform in a space described by one American commentator as the forbidden territory. Professor Wolfe, writing for the American trial lawyer, suggests that the following diagram depicts the optimal movement within the courtroom during examination-in-chief:49

48

For a discussion of the preparation of an outline of an opening and closing address, see: Thomas Mauet & Les McCrimmon, Fundamentals of Trial Techniques, Australian Edition (Sydney: John Libbey and Co., 1993), ch 3 & 7.
49

Jeff Wolfe, A Strategy for Effective Use of the Courtroom During Direct Examination, 8 Amer. J. Trial Advocacy 95, 105, (1985).
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Witnes s Stand

Jury Box

Line of Lateral Move

Mid-line of Witness Stand Forbidden Territory

[Bar table]

[Bar table]

Advocate Line of Lateral Move

Forbidden Territory

According to Wolfe, [t]he advocate should move no further away from the jury-box than the mid-line of the witness stand. To do otherwise during direct [examination-in-chief] is to draw the witnesss response away from the jury.50 This is useful advice to an American advocate practising in courts which routinely permit movement out from behind the bar table. Advocates not regularly afforded such range must learn techniques that maximise persuasive performance from the forbidden territory behind the bar table. The tools of the actors trade which we have outlined that is, rehearsal techniques which emphasise the embodiment of argument based on models of acting which lead the emotion and understanding of the audience assist the advocate to achieve this objective. We have suggested that, to be persuasive, advocates should employ appropriate acting techniques when preparing for courtroom performance.51 What remains to be considered is whether the use of such techniques, and by implication the teaching of such techniques, gives rise to ethical considerations. The Use of Acting Techniques in the Courtroom: Forensic Skill or Covert Advocacy?

50

Ibid.

51

See also, Milner S. Ball, op. cit., n.14 Ball raises, but does not address directly, the proposition that, [i]t may be that appreciation of courts as theatre would affect the way lawyers are trained for and cond uct trials, p. 82, n 9.

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In law, what plea so tainted and corrupt But being seasond with a gracious voice Obscures the show of evil52 When addressing the performative aspects of advocacy, an advocacy teacher should consider two questions: what are the performance limitations imposed upon an advocate in the jurisdiction the advocate will be (or is) practising in? and, by employing acting techniques, is the advocate misleading the court? A consideration of these issues raises some fundamental questions about the nature of the adversarial system. Partisan advocacy is a basic tenet of the adversarial system. As Lord Reid stated in Rondel v Worsley,53 [e]very counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his clients case. Of course this is not the only duty owed by an advocate. Lord Reid went on to state that, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his clients wishes or with what the client thinks are his personal interests. Counsel must not mislead the court.54 Conceptually, this statement presents little difficulty. In practice, however, it is often difficult to establish the boundary between zealous advocacy and unethical conduct. The Limits of Zealous Advocacy What are the kinesic, paralinguistic55 and proxemic limitations imposed on an advocate? The rules governing the conduct of trials namely the rules of professional conduct, the rules of procedure, and the rules of evidence tend not to proscribe the use of acting techniques to enhance courtroom performance. At most, such techniques fall within the hazy middle ground that remains difficult to regulate without sacrificing adversarial freedom.56 However, ther are lines over which an advocate should not cross. Case law and academic comment from Australia and the United States can be used to highlight some of the parameters.

52

William Shakespeare, The Merchant of Venice, Act III, scene ii. [1969] 1 AC 191, 227.

53

54

Ibid. Generally, see: Gino Dal Pont, Lawyers Professional Responsibility in Australia and New Zealand (Sydney: LBC, 1996), ch.19.
55

Paralinguistics focuses on the sound of an oral communication through an examination of variables such as pitch, speech rate, intensity, tone and volume of the voice: Jeffrey Smith, The Advocates Use of Social Science Research into Nonverbal and Verbal Communication: Zealous Advocacy or Unethical Conduct?, 134 Military L.Rev. 173, 175 (1991).
56

Rosemary Nidiry, Restraining Adversarial Excess in Closing Argument, 96 Colum. L. Rev. 1299, 1326 (1996)

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In Lyons v R57 the Tasmanian Court of Appeal laid down some general guidelines for advocates appearing in criminal cases. In response to defence allegations of intemperate and emotional comments,58 by a Crown prosecutor in his opening and closing addresses, the court noted that, Crown counsel is not obliged to pander to the idiosyncratic or hypercritical sensibilities of defence counsel. He is not required to reduce his rhetoric to dull and lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, but he should not be forced to weigh every word he utters for the potential disapproval it may attract in the Court of Appeal.59 The justification for this position rests on the nature of the adversarial system. As the court went on to state, [o]ur system of criminal justice is adversarial. Crown counsel is an advocate, albeit that his role is special in that he should not fight for a conviction at all costs.60 In Lyons v R the court focused on the conduct of the Crown prosecutor in a criminal case, but, from a performance perspective, defence counsel, and counsel appearing in civil cases, also should not seek to sway the jury by trickery, prejudice or emotion. What constitutes trickery, prejudice or emotion will depend on the facts of each case, however reference to some examples is instructive. Trickery: Trickery can take a variety of forms. The most notorious is the dumb show, that is, indecorous behaviour intended to distract or mislead the jury.61 An often-cited example of this form of deception is attributed to the American advocate, Clarence Darrow who, legal folklore has it, inserted a nearly invisible wire into his cigar. When Darrow smoked the cigar, the jurys attention was focused not on the damaging testimony being elicited from Darrows client in cross-examination but rather on the ash, which magically did not fall.62 Other examples of dumb shows include: raising an objection simply to interrupt the other sides opening or closing address or to break the flow of a witnesss evidence,63 dropping books on the floor to distract the jury,64 positioning exhibits not yet in evidence within the view of the jury,65 and putting

57

64 A Crim. R 101 (1992) Ibid., at 103. Ibid., at 104. Ibid. Franklin Strier, Making Jury Trials More Truthful, 30 U. of Cal. Davis 95, 122 (1996)

58

59

60

61

62

Generally see: Strier, ibid., 122, n. 90; Richard H. Underwood, Advocacy Ethics: More Dirty Tricks, 6 Amer. J. Trial Advocacy, 258, 283, n. 67 (1982).
63

Strier, ibid., 122. Ibid. Ibid.

64

65

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another person in the clients place at the bar table (without notifying the court or counsel for the other side) prior to cross-examining an identification witness.66 Prejudice: McCullough v The Queen,67 provides an example of an advocates use of prejudicial language. Crown counsel, in his closing address in a murder trial, referred to the accused as a despicable man68 who regarded another human life, like the swatting of a fly, the snuffing out of a match.69 The court held that such language was calculated to prejudice the jury by arousing feelings of disgust and revulsion towards [the accused].70 Further, Crown counsels assertion that the accused had as much need to protect himself from the deceased as Peter Sutcliffe [the Yorkshire Ripper] had in England to protect himself from his 20 female victims,71 was held to be likely to engender feelings of fear and apprehension in the jury,72 and as such was prejudicial. Emotion: Edwards v Sears, Roebuck and Co.73 provides an excellent illustration of the excessive use of emotive language. The plaintiff sued the defendant tyre manufacturer and retailer for the death of her husband in an automobile accident allegedly caused by tyre failure. During the close of the plaintiffs case, counsel for the plaintiff, who was a personal friend of the deceased,74 stated to the jury, My goodness, they [representatives of the Defendant] ought to have been at the grave to hear that child cry and say, I want my Daddy and to watch that child wait on the doorsteps of its home for its Daddy to return. But they werent there because they had sold the tyres.75 The appellate court, in ordering a new trial, held that such emotive remarks seriously prejudiced the defendants right to a fair trial.76
66

United States v Thoreen 653 F. 2nd 1332 (1981). See the discussion of this case in Richard H. Underwood, op. cit., n. 62.
67

1982 Tas. R. 43. Ibid., at 55. Ibid. Ibid. at 58. Ibid., at 56. Ibid., at 59. 512 F. 2nd 276 (1975). For a detailed discussion of this case see: Richard H. Underwood op. cit. n.62. The following comments of counsel also elicited the courts disapproval: Now I feel a heavy burden right now, and I think you know that I fe el a heavy burden because George Edwards was my friend from the Seminary; that we grew up together and we were friends for a long time. 512 F. 2nd 276 at 285 n. 11 (1975). Ibid., at 285 n. 12. Ibid., at 286.

68

69

70 71

72

73

74

75

76

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Impact on Educational Objectives Should such examples influence the educational objectives that we set? Clearly, the answer is yes. On a very basic level we must acknowledge that the acquisition of acting techniques, even those based on the models of acting we have recommended may, if used inappropriately, prompt some students to engage in over-zealous advocacy. To address this concern we should adopt an holistic approach to advocacy teaching.77 Specifically, forensic technique and trial ethics should be taught concurrently. Professor Lubet notes, [t]he trial is our means of achieving justice in cases of ultimate dispute, and advocacy skills equip practitioners to engage in trials. But advocacy skills do more. They equip the lawyer to lead and to mislead, to ferret out but also to obscure, and to persuade without regard to the underlying value of the position in question. These skills, if taught in a value free vacuum, neither advance justice nor contribute to any other social goal. Deception has no independent moral worth, nor do we offer university degrees in either sleight-of-hand or poker.78 To warrant coverage in a trial advocacy course, instruction in the actors craft must be taught within a context of ethics and professional responsibility.79 This analysis must be taken further. We must also question the propriety of teaching any technique which seeks to influence decision-making on a subconscious level. Scholars such as Professor Gold maintain that, [s]ubconscious persuasion interferes with the jurys ability to express its values accurately in a verdict Courtroom style techniques that enhance the apparent

77

An holistic approach focuses on the trial process as a whole, rather than on its component parts. [T]he thesis formulated by holism is that knowledge is acquired through understanding parts of the world and their relationship with the whole. In relation to the teaching of law, the effect of holism is to work against the traditional fragmented approach to teaching law that may result in students failing to recognise immediately the connections within law.: Alan Leaver, Contextualising Law: An Attempt to Operationalise Theory by Teaching Interviewing in the Law School, 5 Legal Ed. Rev. 195 (1994). Students can also be referred to the psychological research which suggests that exposing the other sides tricks can substantially reduce the effect such tactics have on decision makers. See: Daniel G. Linz & Steven Penrod, Increasing Attorney Persuasiveness in the Courtroom, 8 Law & Psychology Rev. 1, 17-25 (1984); J. Alexander Tanford & Sarah Tanford, Better Trials Through Silence: A Defense of Psychologist-Lawyer Collaboration, 66 North Carolina L. Rev. 741, 778 (1988). Contra: Victor Gold, Covert Advocacy; Reflections on the Use of Psychological Persuasion Techniques in the Courtroom, 65 North Carolina L. Rev. 481, 504 (1987).

78

Steven Lubet, What we Should Teach (But Dont) When we Teach Trial Ad vocacy, 37 J. Legal Ed. 123, 127 (1987).
79

Ibid., at 142. See also: Kenney Hegland, Moral Dilemmas in Teaching Trial Advocacy, 32 J. Legal Ed. 69 (1982); Les McCrimmon, Trial Advocacy Training in Law School: An Australian Perspective , 5 Legal Ed. Rev. 1 (1994). Cf: Edward Ohlbaum, Basic Instinct: Case Theory and Courtroom Performance , 66 Temple L.Rev. 1, 35-36 (1993).

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credibility of counsel facilitate the effectiveness of such efforts to induce the use of bias by the jury subconsciously.80 In Golds view, [t]he great danger of the adversary process always has been that advocates might become too good at what they do.81 This observation, which is predicated on the assumption that the search for truth is the only legitimate function of a trial, raises serious questions about the legitimacy of oral presentation in the trial process. We suggest that, if evidence and argument continue to be presented orally, the trier of fact will assess the credibility of all of the participants, including counsel. It follows that, to be effective (that is, persuasive), an advocate should employ courtroom style techniques which enhance their credibility. Further, while the determination of truth is arguably the most important function of a trial, it has been suggested that, the adversarial process by which results are reached is just as important as the accuracy of those results.82 Tanford and Tanford maintain that trials, serve a symbolic, or legitimating, function The adversarial structure reassures litigants that they will be fully heard before anyone deprives them of liberty or property.83 While one might question the emphasis the authors place on the importance of the symbolic/legitimating function of a trial, the fact remains that the presentation techniques employed by an advocate will continue to have an effect on the outcome of the case. The extent of the impact will depend on the strength of the evidence.84 This underscores the fact that while techniques of persuasion, including the techniques advocated in this article, enhance the effectiveness of counsel, their impact on the outcome of the trial should not be exaggerated.85 Our students will practise within a system that relies heavily on the oral presentation of evidence and argument.86 Hence, advocates owe a duty to their clients and, we suggest, to the courts, not to reduce their rhetoric to dull and lifeless factual propositions.87 If courtroom style
80

Victor Gold, Covert Advocacy: Reflections on the Use of Psychological Persuasion Techniques in the Courtroom , 65 North Carolina L. Rev. 481, 502 (1987) See also Franklin Strier, op. cit. n. 61; Thomas Steffen, Truth as Second Fiddle: Re-evaluation the Place of Truth in the Adversarial Trial Ensemble, 4 Utah L. Rev. 799 (1988).
81

Ibid. J. Alexander Tanford & Sarah Tanford, op. cit., n.77 Ibid.

82

83

84

Tanford and Tanford note that, [s]tudies that have manipulated evidentiary strength demonstrate that extralegal factors exert their greatest impact when the remaining trial evidence is weak or ambiguous, and may have little or no effect when evidence is strong. Ibid, at 755.
85

Ibid., at 763.

86

This is not to suggest that maintenance of the status quo is inevitable. In Australia, for example, the Australian Law Reform Commission is currently engaged in a review of the federal civil litigation system which may have a major impact on the trial process. See: Review of the Adversarial System of Litigation: Rethinking the Federal Civil Litigation System (ALRCIP 20: Apr 1997); Review of the Adversarial System of Litigation: Rethinking Legal Education and Training (ALRCIP 21: Aug. 1997).
87

Lyons v R. 64 A Crim. R. 101, 104 (1992).

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techniques are taught within a framework of ethics and professionalism, they warrant coverage in a trial advocacy course. In other words we should strive to make advocates good at what they do, which is to persuade. Conclusion Advocates should strive to be persuasive, and it is the responsibility of advocacy teachers to expose students to techniques that can be used to achieve that objective. We must recognise that courtroom advocacy does take place within the context of a performance, and rehearsal techniques, particularly those based on reception theory and Japanese no Theatre, warrant coverage in an advocacy course. In other words, the thespian should be invited into Blackstones Tower. But this is the moment of performance, he was told. The moment when you stand up, open your mouth and, all too frequently, hope that everything will come out right. How do you get ready for that? At the end of the course our advocacy student may respond: I marshal the facts, research the law, develop an effective case theory and formulate a case theme. Having prepared the case, I then prepare for performance through rehearsal designed to move the judge and jury to the desired state of emotion and understanding. My objective is to present persuasively my clients case, and I am acutely aware of the overriding duty I owe to the court, to the legal profession, and to the public.

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