A review from Georgia Bar Journal, Volume 5.2 (October
COURTROOM AS THEATER, LITIGATORS AS PERFORMERS
The Trial Lawyer's Art
Reviewed by Robyn Ice Sosebee
For well over two millennia, humans have recognized the entertainment value of conflict, as played out in the structured courtroom setting. Audiences in Greek amphitheaters pondered the human frailties on trial in Aeschylus's Oresteia and, later, Elizabethans considered the quality of mercy in Shakespeare's The Merchant of Venice. Present-day movie fans vicariously experience tension and anguish in Anatomy of a Murder, The Verdict, and To Kill a Mockingbird and find comic relief in Adam's Rib and My Cousin Vinny.
Sam Schrager is a member of the Evergreen State College faculty in Olympia, Wash., and also served as curator of the American Trial Lawyer's Program at the Smithsonian Institution's Festival of American Folk Life. In The Trial Lawyer's Art, he effectively melds the human fascination with courtroom drama with traditional folkloric characters and plots. Thus, instead of focusing solely upon the victories of great trial lawyers, he delves deeper, seeking to pinpoint the most effective "performance" qualities of the most persuasive advocates. In the process, he compares contemporary trial lawyers to the archetypal heroes and traditional plotlines of folklore, and likens their stylistic talents to those of skilled storytellers.
For example, Schrager compares Philadelphia lawyer Cecil B. Moore to "a folk hero in the mold of others celebrated for their moral and physical strengthmen like Jack Johnson, the heavyweight boxing champion who beat every great white hope." A great trial lawyer, he observes, combines a competitive edge with a strong commitment to the client's cause, a love of the spoken language, and a deep understanding of human emotions.
In chapters focusing on style, identity, and other aspects of courtroom presentation, Schrager studies the speech patterns of several 20th century trial lawyers. In scripts taken from audiotapes, trial transcripts, interviews, and other sources, he employs italics, capitalization, and other devices to capture on paper the cadences, expressions, and speech patterns of several well-known trial lawyers. His subjects include Clarence Darrow, J. Tony Serra, Roy Barrera, Roger King, Lorna Propes, Jo Ann Harris, Diana Marshall, and others.
Schrager's analogy to traditional folklore is particularly appropriate to his discussion of instances in which lawyers have employed verbal skills and nimble minds to capitalize upon the inadvertent verbal lapses of witnesses. He tells of a defendant who responded to all questions with precisely the same answer. Nonetheless, under clever cross examination, he was led to confess to a brutal murder. Citing the recurrent folktale plot in which "a fool follows instructions literally, with disastrous results," Schrager observes, "unlike pure-of-heart clients, who win over the jury by the gradual revelation of their character, clients in these confession stories signal their guilt with an instantaneous lapse."
Schrager also assesses the effect of the persuasive presentational styles upon the jury. Some studies suggest that evidence is the decisive factor in jury decisions, while others conclude that juries decide cases based upon a variety of tangible and intangible factors, including jury composition, attractiveness, race, social class, and speech styles of defendants and plaintiffs. Schrager reasons that the data remains inconclusive because researchers have paid "scant attention to the effect of lawyers' skillsperhaps because, since they infuse the trial, they can't be measured."
Ultimately, Schrager cautions that, "trial lawyers, in short, must live with the consequences of their craft." His discussion of the moral responsibilities of trial lawyers is an appropriate conclusion. "Skill in the trial craft obviously serves the purpose of winning. Unless governed by a more general ethic, does it also serve justice?" While Schrager does not venture a simple answer to this question, he does force the reader to consider the results of the frequent courtroom collisions between skillful persuasive techniques and simple truth.
Robyn Ice Sosebee is a partner at Alston & Bird LLP, where her practice focuses upon the regulatory, transactional and adversarial aspects of environmental law. She received her J.D., cum laude, from Georgia State University College of Law, where she served as Editor-in-Chief of the Law Review; her M.F.A. in Children's Theatre from University of Georgia; and her B.F.A., magna cum laude, in Theatre from West Virginia University.