Monthly Archives: May 2011

From Alan:

Katherine and I are delighted that Legal Stage was named one of the 10 Practice Blogs to follow by Lawyerist.com.

We have tried to create something different here. As different and as helpful as our work has been over the past 34 years of working with trial lawyers and their witnesses.

As the first company to bring the skills of the actor, writer, director, producer and theater artist to the needs of trial lawyers and the people with whom they work, we have always looked to find the connections between disciplines. Most especially between performers and any kind of live communication. Most especially in the courtroom.

So, WELCOME. Please scroll through all of our posts and comment on what you see here and what you might like to see in the future. We welcome you and your input.

TIP: Always look for the commonality and the connections between seemingly disparate ideas and disciplines.

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Katherine:

Will Ferrell is best known as a funny man who makes funny movies. The woman in front of me in the popcorn and diet coke line said, “I love his movies because they are so stupid.” When I told her my son loves Will Ferrell movies she said, “What is he – like 9?” I said, “No, he’s 32 and he is a lawyer.” She was amazed.  I don’t see why.  Lawyers have such high levels of stress and do such serious work that it doesn’t surprise me that so many of them are Will Ferrell fans. The need to laugh at something “stupid” is a great escape.

However, Will has been making the rounds of talk shows with his “unfunny” movie, EVERYTHING MUST GO.  He kept warning his fans that this movie was “different”. As the lights dimmed in the theater this evening I thought, “I wonder what is to be learned from creating something different from what is expected.”

As I watched the film, I was struck by the elements that allowed us to know that this film was “different” – not funny.  I kept thinking how many of the scenes could have been funny if first time feature director, Dan Rush, had handled them differently.  And the way he used the elements of film making undermine expectation! For example, the musical score was a sometimes plaintive, often times simple, acoustic guitar that underscored what Will’s character, Nick, was feeling. Sharper sounds would have made those scenes funny.  Also, the camera was soft – soft focus, soft light – sharper visuals would have made things funny.  The editing was drawn out.  No punches – again, working against funny. Finally, every scene was long, drawn out, very slowly paced. The acting was very real and each moment of realization was drawn out. Again, this is the opposite of comedy.

Over and over again in my mind I thought about the stories that we tell in court.  About how jurors, judges, arbitrators, mediators and opposing counsel “expect” things and are “steeled” for them.  I don’t know about you, but I want people who are deciding the cases I work on to be surprised by their own response to the trial.  I want them to “buy into” the scene they are a part of. What needs to be changed up?  Instead of frowning and getting pompous and serious when talking about a patent, how about laughing and getting excited about it – as excited as your client was the day he discovered his invention? Instead of almost crying when talking about the little girl the jurors are going to meet – the one in the wheelchair – why not smile in expectation of how great she is and how much they are going to fall in love with her? In a case that is about a contract, why go with fulfilling the expectation that this is going to be as dull as a dishwater and impossible to understand?  Why not challenge yourself to make this a light and breezy “no brainer”?

Okay, so you won’t be “perfect”. That’s okay. Trust me, EVERYTHING MUST GO isn’t perfect, either.  But is it worth the ride to see how your expectations are turned upside down every step of the way? I think so!

TIP:  Where are you turning expectations upside down in the case on which you are working?

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Katherine:

Getting a wrong righted after decades of injustice is one of the most satisfying things about working for justice. It is especially satisfying when it happens in a court of law. The award-winning documentary, Neshoba: The Price Of Freedom, traces one of the most amazing journeys from injustice to justice in our country. It documents the coming to justice of the men responsible for killing civil rights workers, Andrew Goodman, James Earl Chaney and Michael Schwerner, in 1964 when they finally came to trial in 2005 – over 40 years after their murders.

I first became aware that there was going to be a film of the trial at an American Society of Trial Consultants Conference. Two of my friends and fellow trial consultants, Andy Sheldon and Beth Bonora, came to us with the tale of victory on the case. Film makers Micki Dickoff and Tony Pagano had followed the entire trial process and had interviewed them as they helped bring light to one of the darkest times in our history. Much of the work done on this case was done pro bono by both the consultants and the attorneys.

It is moving to see the interviews with the families and loved ones of the victims, both then and now. It is hard to watch an ancient man, head still unbowed, tell the film makers he is not repentant for the deaths of the three young men. And it is stirring to the core to witness the brilliant lawyering and trial consulting that brought justice at last.

At this year’s ASTC Conference in Seattle, there is going to be a screening of the film on Saturday, June 11. You can also buy a copy of the DVD on the Neshoba website.

Every attorney who tries cases should see this film. Share it with others. Pass it on. And remember – pro bono some of your time every year. Justice is waiting.

TIP: Make a commitment to pro bono your time to at least one case this year.

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Alan:

Several years ago a group of brilliant Canadian actors and writers created a series called SLINGS AND ARROWS. This is a love sonnet, a valentine to the theater, to Shakespeare and to the creative spirit. I recommend you immediately find it on Netflix or wherever you can and spend several hours watching….and laughing and crying and enjoying.

Loosely modeled after the Stratford, Ontario Festival, this is a chronicle of a theater company. We follow actors and directors and the exploits of the managing director learning to accommodate and satisfy a changing market to attract and entertain audiences.

As actors, every aspect of these productions is both illuminating and inspiring. As attorneys, I recommend you focus on what it means to be and to have a leader.

There is a delicate balance when leading a team between control/giving direction and allowing/encouraging each person to contribute and perform at their optimum level. When leading a trial team, I’m sure you’ve found yourself frustrated, encouraged, made glad and made mad by the abilities and challenges of your team. However, it is essential to provide leadership.

TIP: Provide a clear vision and plan for your trial team. Then allow each team member full ownership of the plan to contribute at their maximum capability.

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Tips on exercises to prepare for you performance in and out of the courtroom — they really work!

There is an old show business fable about the famous violinist, Jascha Heifitz. He is briskly walking down a New York street. A lost tourist asks Heifitz, “How do you get to Carnegie Hall?” And Heifitz replies without breaking stride, “Practice, Practice, Practice”

Trial Practice – The good old days and today

There was a time in the past when a lawyer with a trial practice was ready at any given moment to get up and try a case. Practice didn’t mean going to Carnegie Hall. Trial lawyers considered themselves living in Carnegie Hall. Why? Because attorneys who tried cases were trying cases all the time. The average trial lawyer was trying several cases a year. I do not have to tell you if you are an older trial lawyer that those times are over. If you are a newer trial lawyer, you may long to be a part of those yearned for halcyon days of yore that you’ve heard so much about from your mentors. The newer trial lawyer thinks, “I wish I was alive then so that I could be ready at any given moment to stand up and try a case today.”

But what you may not realize is that the seasoned trial lawyer thinks, “Dang, I wonder if I
today as I was back then since I just don’t do it so much anymore?” A huge dilemma faces
comes to trial practice: How can you practice when you are almost never in trial?

“So, if as a trial lawyer trial practice no longer means, ‘I go to court all the time and try cases’ what does it mean?’” I find that question being asked more frequently than it ever
trial skills workshops at ACT of Communication. A performer has a specific way to practice his or her art between daily performances and even on days when there is no show. Another of Heifitz’s famous quotes is, “If I don’t practice one day, I know it; two days, the critics know it; three days, the public knows it.” A trial lawyer also needs a way to practice the art of standing up and trying a case during the long dry spells between trials. A trial lawyer needs to learn how to “Trial Practice, Practice, Practice.”

Here are a few exercises you can start to do to keep your skills sharp. These skills will not only help you in a courtroom, but also outside the courtroom in mediations, arbitrations, depositions etc..

What you need:
• A little time. Daily time. Alone.
• A series of practice exercises.
• A video camera and way to play back what you record so you can watch and listen to it.

THE EXERCISES
For more details on each exercise you can read my full article at
http://www.actofcommunication.com/knowledge_tank.html

Warm-up exercises

An actor warms up the body and the voice every day. A musician does a series of exercises to warm-up the fingers or the voice. A dancer carefully warms up the body. A trial lawyer needs to also warm-up the voice and body as the start of the daily session. Why? Because you try your cases with your voice and your body. If you only had to send your brain waves to the judge and jurors you would win every time. You want to warm-up your voice and/or your body for about five minutes.

Choose from the following for now – eventually you may develop your own: • Hum…and then sing your favorite song starting softly and then gradually getting fuller. Thinking “fuller” instead of “louder” keeps you warming up rather than blowing out your voice.

• Take in a deep breath…exhale all the air…take in a deep breath…exhale all the air while saying “may-ay-ay-ay”…repeat several times also riding out the breath on other vowels: “me-ee-ee-ee” “mah-ah-ah-ah” “moh-oh-oh” “moo-oooo.” Make sure your voice isn’t too high or too low but in your “middle.” • Say, “My voice has many notes today” on a note in the middle of your voice (also called the middle of your vocal range). Now, go a half step lower and repeat, “My voice has many notes today.” A half step is the difference between a white key and a black key on the piano.
Go down several half-steps (but not until it hurts!). Then build back up again from that lowest note of your vocal range today…past that middle note, and up several steps (but not until it hurts!) and then back down to the middle again.
• Slowly walk in place, swinging your arms…gradually get faster…faster…until you are jogging…get slower…slower… slower…until you are slowly walking in place.
• Do a “Shake Out” – shake out your hands over your head…then swing your arms around and around…then drop
your head to your chest and shake it from side to side…then shake out your torso…your hips…your legs…one foot…the other foot. Jump up and down a few times.
• Walk around the block; get on the treadmill or the exercise bike for five minutes.

Skill-building exercises

What skills do you need to have at your command when you go to court that you can practice without going to court? And what does that have to do with performers? Trial lawyers have to talk with full, well-centered voices (so do actors and singers). They have to make sense when they read (so do actors). They have to be able to argue spontaneously out loud (actors need to be able to improvise when something unexpected happens). They have to have good posture (so do actors, musicians and dancers). They have to move well (so do actors and dancers). They have to use gestures that are helpful and not distracting (so do actors). And, perhaps most important of all, trial lawyers have to be as confident in court as if they went to court every day even though they have not been there for days or months and will not be back for days or months (like an actor, dancer or musician at an audition).

Here are some skill-building exercises that cover these needs:

• Read something out loud that you have never read before in your life (poetry, fiction, the newspaper) for five minutes. As you read, make mental notes of what words should be emphasized, where the emotion is, where the pauses should be – how to make it “make sense.” Now read the same piece again, incorporating all your “improvements.” The more days you do this exercise, the better your ability will be to make sense of something
you need to read out loud, “cold,” in court.

• Listen to someone you hate on a talk show in your car. Turn on your portable audio recorder. Tape yourself giving a short rebuttal. Play your rebuttal back again and listen for ways to improve it: vocally, word choices, content, theme, etc. Then turn on the recorder and do a new and improved rebuttal. Play it back for yourself again.

• Turn on the video camera. Stand up and do a brief opening or closing for a case in your office. Play it back and watch it without sound, paying attention to your posture, gestures and movement. Make notes on how to improve. Record it again. Now watch both takes “with sound.” Have your gestures, posture and movement improved? How about your voice and the content? Now, do a third take, incorporating what you have learned from the first two and see if you can improve all these elements.

• Put on a vocal warm-up CD in the car or follow a vocal warm-up exercise DVD or MP3 in your office or home (if you don’t have a favorite, please look at our Web site www.actofcommunication.com for such a tool). Tape yourself following along using your camera (office or home) or audio recorder (in the car). Now watch and/or listen to yourself doing the warm-up with the instructor. Are you looking like and/or sounding like the instructor? If not, where not? Try repeating the same part of the tape and try to match.

• Run outdoors, ride a bike, walk on the treadmill – whatever your regular workout entails. Give a closing argument in a case on which you are working while you are working out. When you stop exercising for the day at some point in your home or office, perform the closing as if you were giving it in court. Is your breath more connected? Your voice fuller? Your body more relaxed with gestures that feel more natural?

• Watch and/or listen to one of the great lawyers giving a classic argument (If you don’t already own “May It Please The Court,” you need to make an investment). Pick a favorite passage. Record your voice (if you are in the car) trying to emphasize the words, imitating the rises and falls and intonations of that lawyer. If you are at home or in the office, turn on the video camera. Give the passage as if it is you who are in court – imitate the voice or find better ways to give the same words. Find the way to move, gesture – emphasize the brilliant argument with your body. Play it back. Do it again, and really make it your own.

Evaluation

You need to evaluate what you have done at the close of each one of your Trial Practice, Practice, Practice sessions. You notice, I said evaluate rather than critique. Trial lawyers, like performers, have horrid little critics in their heads who often are not helpful. An evaluator says, “I’m so glad I have a chance to work on my voice again tomorrow.” A critic says, “I sound like Minnie Mouse in a blender – I’m never going to work on my voice again!” Ask yourself, “What’s next?” Plan out what you want the menu to be tomorrow. More work on voice? Or is tomorrow about reading out loud? Or taping yourself giving Thurgood Marshall’s argument in Brown vs. Board of Education before the Supreme Court? You may find yourself planning menus for a week at a time.

Solo to duet to trio

At some point in your individual Trial Practice, Practice, Practice sessions you may feel the need to rehearse with others. After all, how can you work on your eye contact without looking at someone else while delivering your opening? How can you tell if you are really being clear without some feedback from someone else? In our ACT of Communication workshops, we find that trial lawyers eventually seek out the feedback of others to go to the next level, no matter how great their individual Trial Practice, Practice, Practice is going. Solo practitioners seek out and find other likeminded trial lawyers (many first become acquainted at our workshops) to meet with on a weekly to monthly basis to Trial Practice, Practice, Practice together. They give one another feedback on eye contact, demeanor, style – and use one another as sounding boards on how they are each doing with their individual Trial Practice, Practice, Practice goals.

Larger firms have started a weekly Friday afternoon session starting at 4:00 p.m. where at the end of the week all the firm’s trial lawyers get together for a group Trial Practice, Practice, Practice session.

Finale

What does all this Trial Practice, Practice, Practice really get you? It’s not like it is going to be over and you never have to do it again. You are going to have to do it tomorrow and tomorrow and tomorrow if you are to keep growing and improving. As Heifitz said, “There is no top. There are always further heights to reach.” What it really gets you is the gift that all performers know…translated into your world. The most important gift of all – the gift of walking into the courtroom as relaxed, confident, and skilled as if you go to trial every day. You deserve that. And so do your clients. After all – isn’t that why they hired a trial lawyer?

According to Malcolm Gladwell, author of Outliers: The Story of Success it takes roughly 10,000 hours of hard practice in a chosen field to become a master in that field. So take these exercises and be on your way to a master trial lawyer.

Katherine:

There is nothing harder than successfully translating a novel to the screen, unless it is successfully translating the story of the client to a lawsuit. Lawyers have a lot to learn from the team that turned a brilliant novel into an amazing film.

When I first heard that Sara Gruen’s wonderful novel WATER FOR ELEPHANTS was coming to the screen as the film WATER FOR ELEPHANTS, I was not automatically filled with joy. I had SO enjoyed reading the novel a few years back and I was afraid it would be ruined for me. I thought, “GAWD, I hate when adaptation is done poorly to something I LOVE.” The delicate dreamlike quality of the novel, the intensity of the story of trust and betrayal, the magic of the circus, the intensity of passion – how could that be accomplished in a film? I don’t know how I could forget that the filmmaker, like the trial attorney, has all the important elements of storytelling at his or her disposal.

Visually the film is stunning. I was reminded once again that films are “moving pictures” after all. The art director, David Crank, and the cinematographer, Rodrigo Prieto, created that magical world perfectly for us to live in it for a few hours. But then, that world stays with us for a long time after. It is very hard to get those pictures out of your mind. I started thinking about how attorneys who just blow up a few documents are so missing the boat when it comes to storytelling visually. My compatriots who do visuals for trial tell me that like an art director and cinematographer, they choose color, tone, style, and images that match the theme and story of the case.

There is so little dialogue – even though the book is filled with words (after all, it is a novel!).  In the film, words are kept to a minimum. How I was reminded of the excess of words I hear so much in so many cases. What is it that Mark Twain said?  “I didn’t have time to write a short letter, so I wrote a long one instead.”

It took Richard LaGravenese a long time to adapt that script from Gruen’s novel. I know. I have adapted many a short story and novel to the stage. But once a point of view was chosen, that became clearer for him. There were many points of view in the novel, but only one for the film – Jacob, the protagonist, played by the great Hal Holbrook in present time, and Robert Pattinson in the past. The culling of the theme – life, like the circus, is love triumphing over cruelty through illusion – that made the way to the spare dialogue even clearer. How often have I heard attorneys again and again say, “There is so much to this story to tell…how do I choose what stays and what goes?” Don’t I always tell them “pick one point of view” and “let’s keep the words as sparse and simple as we can”?

Finally, of course, there is casting. Reese Witherspoon’s Marlena is a dream of Jean Harlow meets the Blue Fairy in Pinnochio meets the shadow of a great love is unforgettable. And Robert Pattinson’s young Jacob is funny and brave and wonderful – just the man we will root for forever.  For the attorney, which witnesses are you going to need to tell the story? There are plenty of characters left out of the novel when translating it to the screen.  Why do you need this witness?  Even if you have made a strategic decision to call a number of witnesses, each to tell a small piece of the story – are you sure you have the right number?  Are you giving the right amount and part of the story to your lead witnesses to tell?

Run, do not walk, to see this wonderful film.  And if you missed the book when it came out, I hope that you are inspired to read it, too.

TIP: Are you using all the tools you have – visuals, dialogue, testimony – to bring your case to life?

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