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Bringing drama to the courtroom.

How could it happen' The jury found against Slopus's client in a case that seemed so clear it tried itself. The defendant gynecologist, following a routine surgery, failed to timely diagnose a post surgical ileus--a mechanical bowel obstruction. The plaintiff's wife died in the hospital from advanced sepsis.

"How could it happen? I had the best experts. They laid out the medical principles. How could the jury overlook all of that?" Slopus asked Judge Mendoza, who half an hour earlier had accepted the jury's verdict. The judge knew Slopus was right. He had won the medical debate, but the case lacked emotional content.

"No drama," she replied.

"How do you bring drama to a technical medical case?"

"Take in a movie." Judge Mendoza had studied drama. Her interest in stage and screen, teamed with her years on the bench, convinced her that dramatic concepts play well in the courtroom.

"Have you ever seen Inherit the Wind?" she asked.

"I remember seeing that movie about the Scopes trial as a kid."

"What did you think?"

"Great drama."

"How is it accomplished?"

"Come on, Judge. It's a movie about one of the most important trials in American history, involving two greats of the courtroom, Clarence Darrow and William Jennings Bryan."

The judge leaned back in her chair. "Sure, but remember the characters. Their motivations. The plot. The theme. They emerge from a simple misdemeanor prosecution--charges brought against an obscure teacher in the small town of Dayton, Tennessee--that carries a maximum fine of $500."

Slopus began to reconstruct in his mind the compelling drama of the movie. He remembered how the emotional components of character and conflict energize issues that, while controversial, do not seem at first to be issues of national concern or interest.(1)

Screenwriters live by the apothegm that drama is life with the dull parts taken out. Directors strip away or reshape plot and characters until there is no chance for ennui, apathy, or indifference by the viewer. The film's auteur creates the film to carry the message through passion, pathos, pain, and anything else he or she can capitalize on from the range of human emotions. Within a breath of time, moviegoers care for people they do not know and learn about issues of which they were previously ignorant. A well-crafted play or movie entertains, educates, and in some cases leads to social change.

Likewise, a trial lawyer is the client's auteur, a director who exerts substantial personal influence on his or her productions. Real people with real problems present their advocates with a story no more compelling than, "Bad things happen to good people." An elderly woman is killed when her car is struck by a train at a railroad crossing. Parents lose their son in a fiery collision when a speeding 18-wheeler strikes his car from the rear. An obstetrical resident delivers a child and inflicts a severe brachial plexus injury, leaving the child with a paralyzed arm. Bad things happening to good people, while tragic, will not move an audience or inspire justice. Drama must be brought to the story.

The lawyer's boot camp prepares its recruits poorly for the courtroom wars over the hearts and souls 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. As Professor Kingsfield of The Paper Chase says, "mush" has no place in the lawyer's mental atlas.

But inductive analysis is a poor road map for the courtroom. Legal thought offers few signposts to guide the average person's approach of making decisions based on emotion and validating them with logic. Ordinary citizens resolve conflicts by deciding first what seems "right" and then making the facts fit their sense of justice.

Yet, legal education seems committed to the proposition that the fleet that carries the precious cargo of justice is made more roadworthy by draining the crank case of human emotion. Inductive reasoning that is the cornerstone of legal analysis condemns as illogical the pull of the heart toward what feels "just, fair, and right."

The drama of courtroom confrontations as depicted in Inherit the Wind is the trial lawyer's fantasy. Advocates know that the emotional charge of exposing the lies of Dr. Marks and Dr. Towler in The Verdict, a film about a medical malpractice trial, or destroying the credibility of Colonel Nathan Jessup in A Few Good Men, a film about military justice, propels our cause to greater heights.

Emotional courtroom scenes are the trigger points for the trial lawyer's victories on the silver screen. Life mimics fiction. Unforeseen extemporization between lawyer and lawyer or lawyer and witness can light jurors' emotional fires.

However, the absence of serendipity does not prevent trial lawyers from bringing persuasive punch to their cause. By employing the basic principles and techniques of the playwright end director, trial lawyers appreciate their role as auteur and incorporate basic dramatic concepts in their case presentations.

Driving Miss Daisy--character

When a director attempts to develop a character, he or she concentrates on physical appearance, body language, clothes and how the character wears them, personal belongings, surroundings, and the character's handling of common situations. The auteur links the audience with the protagonist by giving the character depth.

Within the first few minutes of Driving Miss Daisy, the audience comes to trust and respect Hoke Colburn, who is played by Morgan Freeman. Gone With the Wind's Melanie, as portrayed by Olivia de Havilland, is graceful and dignified in the face of adversity. The auteur knows that audiences will judge the characters, not only by what they say, but also by how they look and act.

The trial lawyer has less artistic freedom in character development than the author of fiction. There is no audition in real life. Counsel must construct from the client's intrinsic character a protagonist with whom jurors can identify.

In preparing to present a client for trial, counsel should analyze "character" just as screenwriters do. In addition to presenting to jurors the usual information such as name, age, occupation, and health problems, the trial lawyer develops a description of the character's

* childhood in terms of his or her relationships with parents, siblings, and other key people;

* current relationship with his or her parents, siblings, children, and other key people;

* philosophy of life; and

* personality, including whether or not the client is an optimist, an introvert, or an extrovert.

The Man Who Shot Liberty Valance--motive

The playwright or director approaches any scene from the standpoint of motivation. What drives the character to act? In theater, identifying a character's motives is paramount. The auteur knows audiences can look beyond faults if they feel that laudable motives drive the character.

Audiences do not condemn Brutus in Shakespeare's Julius Caesar--even though he is one of the conspirators who kills Caesar--because he is motivated by his love of country. Through most of The Man Who Shot Liberty Valance, the moviegoer believes that Ransom Stoddard, the character played by Jimmy Stewart, killed Liberty Valance, a despicable bully. In the end, the audience learns that Tom Doniphon, the character played by John Wayne, shot Valance.

In the abstract, the audience would condemn Doniphon. But his motive for killing is to keep Valance from gunning down Stoddard. Doniphon lets Stoddard, a greenhorn lawyer who doesn't know how to handle a gun, take the credit for winning a gun fight so that he can become a U.S. senator. This elevates Doniphon's status to that of a noble figure.

The playwright knows the audience will judge characters based on their motives. Why they act as they do is the glass through which the audience views the actions. The lawyer often fails to develop the facts that motivated the client. The lawyer examines witnesses, introduces documents, and presents evidence, all to prove who did what when. But jurors want to know why people did the things they did. Just like moviegoers, jurors ask, "Why?"

In his book Directing: Film Techniques and Aesthetics, Michael Rabiger suggests that film directors employ the dynamic conception of character.(2) When developing a character, the writer focuses on will. What is the character's quest? What is he or she moving away from, and what is standing in the way? How does the character adapt to the obstacle to overcome it?

The courtroom is the ideal greenhouse in which to grow a powerful plot involving conflict and confrontation. The client suing a large corporation is the underdog. The plaintiff seeking repair for abuse, injury, or wrongdoings caused by corporate mischief is obstructed in his or her search for justice by superior strength and resources. The client shows he or she is entitled to a jury's verdict by demonstrating perseverance and belief in the justness of the system. The lawyer lays out the client's motives knowing that otherwise, the jurors will develop their own motives for the client.

Allowing jurors to create motives is especially dangerous because jurors usually view a plaintiff's motives for bringing suit as suspect. A study commissioned by the State Bar of Texas revealed that 57 percent of Texans believe that those who file lawsuits have frivolous claims and abuse the system so they can get rich. Only 31 percent felt that most plaintiffs have legitimate claims and are motivated by a desire to right a wrong.(3)

Nevertheless, movies depict characters much like typical plaintiffs who act on inspired motives. The movie character Norma Rae in the movie of the same name is powered by her commitment to her family and her desire to improve working conditions for her fellow workers. The desire to expose corruption in the New York Police Department drives Frank Serpico, the police officer played by Al Pacino, in Serpico. Tom Joad, as portrayed by Henry Fonda, struggles for human dignity in The Grapes of Wrath. All of these are very compelling motives for the courtroom protagonist.

Identifying defense motives is equally important. Defense motives do not have to spring from malice. They seldom do. It is difficult in real life to cast defendants as Hans Grubers from Die Hard or Gordon Gekkoses from Wall Street. But there are selfish, insensitive people like Mrs. Millie in The Color Purple.

Some doctors wrongfully harm patients because they're not committed to the careful practice of medicine. Some corporations develop dangerous drugs and other products and benefit financially while consumers bear the risk of harm. The antagonist's motivation doesn't have to be malicious, but it must be "wrong."

Jurors look not only at what motivates the parties, but also at what drives the lawyer. Emory Buckner, an American trial lawyer in the 1920s and 1930s, won cases because he didn't try to convince jurors that his clients were fortunate to have him as a lawyer. Rather, he let the jury know that he believed he was fortunate and privileged to represent his clients' causes.(4) In other words, he was the lucky one because his clients--who had deserving and just causes--had chosen him to represent them. Jurors admire dedicated and caring lawyers like Atticus Finch in To Kill a Mockingbird and Jake Brigance in A Time to Kill.

Cone With the Wind--story

Margaret Mitchell's Gone With the Wind reminds us that a powerful story with strong characters stirs emotions. A trial involves competing scripts. During deliberations, jurors arrive at a schematic consensus. They decide which story, which side's plot, is believable. The story leads to a result. The script writes the verdict.

The courtroom auteur controls the sequence of the trial plot. Which witness testifies first determines the story's direction. Studies have shown that a trial's outcome is influenced by order of proof.(5) Plaintiff counsel may develop the antagonist's character and unjust motive before the jury sees anything of the protagonist.

This is an effective script in products liability cases. The lawyer must prove how the dangerous product was conceived, how tests or literature warned of the potential for danger. The lawyer needs to introduce evidence that the decision to market the product was made despite known dangers and show how the company knew that consumers had been injured by the product but continued to keep it on the market. The end of the act introduces the protagonist, who buys and uses the product. The jury foresees the devastating injury before the story can be told. The more tragic the consequences, the more likely a jury will perceive the defendant as negligent.(6)

At the beginning of Big Jake, the antagonists are introduced one by one to the audience. They raid Jacob McCandles's ranch, shoot the men and women who work there, kidnap a boy, make a ransom demand, and are off to Mexico before the audience sees (let alone gets to know) the character of Big Jake.

Leading off with the antagonist, depicting the antagonist's actions and motives, is an auteur's technique that works well both on the screen and in the courtroom. The audience senses the way the story is going even though the antagonist's part in the play is seen first.

Misdirection works in suspense drama, but not trial drama. The genre of Psycho and Dressed to Kill is premised on surprise--the facts are not what the audience thinks they are. Lawyers who "misdirect" a trial story do so at their peril. Ignoring unfavorable events, observations, or documents may be disastrous. Most substantial plaintiff verdicts result from defense counsel offering a script the evidence does not support.

Two of the largest malpractice verdicts rendered recently involved brain damage sustained by children following medical procedures.(7) In these cases, the defense contended that the minor plaintiffs were not severely handicapped. But, when plaintiff counsel brought the children into the courtroom for an examination by a physician and a demonstration of the children's impairments, the defense objected. The defense plot was betrayed by what the jury saw--children who had difficulty walking, grasping objects, and performing simple cognitive functions. Defense overstatement is one of the primary catalysts that lead to substantial verdicts for plaintiffs.(8)

The same principle applies to plaintiff counsel. Overstatement of injuries, disabilities, and physical problems can cause the jury to turn against the plaintiff and award minimal damages or find the defendant was not responsible for the injuries.

Star Wars--attention

In the courtroom, as in plays and movies, people and their actions capture the audience's attention. A common mistake in complex cases is crafting a story that involves little more than scientific debate. Allowing the trial to focus on philosophical notions and scientific principles ensures that the trial lawyer will lose the jury's attention.

My Dinner With Andre, which depicts two men conversing over dinner about various topics, would not hold the attention of the average juror. Meanwhile, Star Wars consumes the audience's attention with stunning visuals, a compelling story, and an enduring theme.

Many tort cases today have a strong scientific component. Product failures involve metallurgy, stress calculations, and engineering concepts. The lawyer representing a brain-damaged child deals with placental pathology, pediatric neurology, and obstetrics. Honest, scientific debate may arise over conclusions that may be properly drawn from the results of diagnostic tests and medical procedures, as well as the critical events. Plaintiff counsel must win the scientific debate.

But raising the flag over the battleground of science does not guarantee victory. Justice for victims of civil wrongs demands a reaction that science and logic cannot arouse. The lawyer must present a story that begs virtue, condemns fault, applauds courage, demeans perfidy, honors commitment, and catcalls breaches of trust.

Defense counsel know that nothing is more dehumanizing than abstract science. Science and drama are irreconcilable. Science claims to be free of emotion.(9) Emotion is the essence of drama. The lawyer who couches a case solely on the basis of science is serving a salad to a jury hungry for red meat.

Treasure of the Sierra Madre--theme

Theme is also the essence of good drama. The audience draws lessons from the story, and those who write scripts for movies and plays consider themselves successful when the message received is the message conceived. Writers strive to create powerful, emotionally charged plots that compel a persuasive moral or message. Every good play has a theme or hook, the aspect of the story that can be quickly and interestingly summarized in a line or two.

Berwick Travern's lesson in Treasure of the Sierra Madre is that man can be destroyed by his own greed. Carl Foreman's screenplay High Noon dramaticizes the impact of civic irresponsibility on a community. Nora Ephron's and Alice Arlen's screenplay Silkwood moralizes against corporate corruption.

Film directors such as Stanislavski refer to powerful themes as the "super objective." The auteur theory teaches that this objective powers the work as a whole.

Although the trial lawyer does not have the dramatist's freedom to construct characters and plot from a preconceived theme, this should not paralyze the effort to make the case mean something. The lawyer who represents someone wronged is charged with writing a play that empowers the jury. The jury writes a final act that brings some meaning to the enigmatic riddle, "How can bad things happen to good people?"

The plaintiff's theme is justice. The client seeks redemption at the hands of a jury. The dramatic parallels are Rocky, The Longest Yard, Hoosiers, and Field of Dreams.(10)

The patient betrayed by a pathologist who misdiagnosed a lump removed from her breast as cancer seeks to retrieve her pride. The industrial worker left mangled by a defective machine looks to the manufacturer for compensation for his lost dreams and hopes. The teacher hit by a speeding pizza delivery driver cannot have her broken hip restored, but a jury can deliver a reasonable repayment for her past and future suffering.

Every trial presents the potential for an appeal beyond cold facts. Lawyers must spur jurors' imaginations and emotions. A lawyer who brings no more to a story than science will find a jury that is unmotivated and uninspired. They give nothing because nothing has been asked of them. On the other hand, too much emotional content or that which is inappropriate casts plaintiff counsel as Vinny Gambini in My Cousin Vinny and a client as Harry Hinkle in The Fortune Cookie.

The Bible teaches that justice is an inspired concept. Of God's creatures, only man can identify wrongs and repair injustices. The sharp point of an accountant's pencil cannot calculate a mother's love. The mathematical formulas stored in a computer chip cannot quantify the agony of those left behind in the race for corporate profitability.

The voice for the weak should be inspired beyond the inductive analysis demanded by legal education. The voice should be one that speaks not only with the authority of facts, but with the conviction of what is right, noble, proud, and courageous. The voice should speak to the human heart, where everything great and good in man dwells.

Notes

(1.) In his last speech at the Scopes trial, William Jennings Bryan described the trial as "a little case of little consequence as a case." He suggested the world was interested because "it raises an issue, and that issue will some day be settled right, whether it is settled on our side or the other side." THE WORLD'S MOST FAMOUS COURT TRIAL 316 (3d ed. 1925).

(2.) MICHAEL RABIGER, DIRECTING: FILM TECHNIQUES AND AESTHETICS 23-24 (1989).

(3.) PUBLIC STRATEGIES INCORPORATED, JUROR ATTITUDES AND BIAS: DETECTING LAND MINES IN THE LEGAL BATTLEGROUND OF VOIR DIRE (State Bar of Texas, Advanced Medical Malpractice, Pharmaceutical, and Medical Device Litigation Course, Santa Fe, N.M., Mar. 13-14, 1997).

(4.) Emory R. Buckner, The Trial of Cases, in THE LAWYER'S TREASURY 395, 407 (Eugene C. Gerhart ed., 1956) (address before the Association of the Bar of the City of New York, reprinted in 15 A.B.A. J. 271 (1929)).

(5.) Psychologists and jury consultants emphasize the concept of hindsight bias. This concept teaches that people tend to overestimate the likelihood of an event's occurring when they know the outcome. Baruch Fischhoff, Hindsight#Foresight: The Effect of Outcome Knowledge on Judgment Under Uncertainty, 11. EXPERIMENTAL PSYCHOL.: HUMAN PERCEPTION & PERFORMANCE 288, 292 (1975).

(6.) Susan J. LaBine & Gary LaBine, Determination of Negligence and the Hindsight Bias, 20 L. & HUM. BEHAV. 501 (1996).

(7.) Melis v. Kutin, No. 20105-80, 88L03317 (N.Y., N.Y. County Sup. Ct. Dec. 1989); Lee ex ref. Lee v. Parkway Hosp., Inc., No.93-31897 (Tex., Harris County Dist. Ct. Sept.26, 1995), aff'd, No. 14-9600277-CV, 1997 Tex. App. LEXIS 2710 (Text App. May 22, 1997).

(8.) See generally NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY (1995).

(9.) Academicians are calling into question the objectivity of science. University of Houston sociologist Bill Simon said, "It's time for science to abandon the pretension that it is neutral." Todd Ackerman, Scientifically Speaking, Fight Over Fact Now Academic War, HOUS. CHRON., Mar. 19, 1997, at 6.

(10.) It is suggested that the modem sports film is about "redemption through winning." Robert Lipsyte, Sports and Film: Fantasies About Fantasies, N.Y. TIMES, Mar. 16, 1997, at sec. 8. p 11.
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Author:Perdue, Jim M.
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Date:Sep 1, 1997
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