By Alan Blumenfeld
Founding Director
ACT of Communication

Over the past 42 years of working with lawyers, we’ve always focused on behavior. That is, what lawyers call demeanor and so much more. Your attitude, tone, ability to connect with all of the people in the room. This goes way past simple “eye contact”. Connection is about your passion for what you are saying and your honest ability to advocate, convey that passion…hand it over to your listeners. Judge or Jury.

The recent trial of Paul Manafort is a perfect example of a situation where the lawyers were: well prepared, experienced, professional and had found the story of their case. The prosecutors seemed to “boil down” the huge volume of evidence to a distilled story; the defense seemed to be playing jazz where it’s all about what you don’t say. They insisted the prosecutors had not made their case and so they offered very little from their point of view.

The outcome? Guilty on 8 of the 18 charges. A clear win for the prosecution. Except listen to one of the jurors, Paula Duncan, quoted in the Washington Post Aug 23:

Although she said it was “pretty easy to connect the dots” after prosecutors’ presentation, she described the special counsel team as seeming “a little bored” during the proceedings.

“I saw them napping during the trial,” Duncan said, citing in particular prosecutors Brandon Van Grack and Greg Andres. “So it kind of sent a message of ‘We’re bored with this,’ and I’m thinking, ‘Well, if you’re bored, then why are we here?’

And of the defense she said:

“They gave a very easygoing atmosphere to the whole thing, they objected to very little, and appeared agreeable throughout it all.”

From our point of view, having been teaching lawyers and their witnesses how to maximize their effectiveness in and out of the courtroom for over four decades, this was a kind of disaster.

As an attorney in the courtroom, you are always ON. There is no camera to cut away from you; no editor to show only the good moments when you are attentive.

Regardless of how you think you are coming across to the panel, perception is everything. Clearly this trial stands as a lesson in sending more than receiving. Being more involved in self rather than receiving the cues, non-verbal responses, from the jurors. Even if the jurors are giving you blank faces, you need to be constantly reminding yourself that they are more important than you are in the two-way street of communication. Your efforts will be received and rewarded.

You ARE demonstrative evidence. The jurors are hearing this and following this story, or not, for the first time. It doesn’t matter how many times you have gone over the story. Or how familiar YOU are with the material. You have to create a live, present time experience for the people in the room. And you have to do it ALL THE TIME.

Yes, it’s exhausting. Being in trial is like performing in live theater. That is why our background as performers in theater, film and TV (www.actofcommunication.com) brought us to this field of working with lawyers in the first place. It is thought that an actor performing in a 2 hour play expends as much adrenaline as someone in a minor car crash. Suit up and strap in, you are not allowed to look bored. EVER.

It’s not enough to be perfect on paper. Once you are in the courtroom, you are a performer. And not in the pejorative sense so many people have of performers. Not the ego-driven, applause seeking, face-making overactor. No. A performer in the modern sense. In the sense of the best of contemporary performance. Honesty, sincerity, the stripping away of artifice and the vulnerability to reveal a true human being. And a human being in pursuit of convincing, advocating, seeking justice. And in the courtroom, your job as a trial lawyer is to be that ALL THE TIME.

So, you must expand your skills beyond writing and an absolute knowledge of the law, the rules of evidence and procedure. You must learn to connect your mind and heart and gut with your voice and body to become a true communicator. A warrior willing to do whatever it takes.

Alan:

STORY is all. Story is narrative. Whoever controls the narrative, controls the room.

In a SKYPE session I had last week, coaching an attorney on an upcoming presentation, the subject of ‘why is a story important’ came up. I found myself pouring my heart out about story and storytelling. I know we have talked about this subject a lot in the past…but clearly…we can never talk about it enough.

As humans, story is hard wired in us. It is how we absorb, contextualize and learn new information. If that new information conforms to what we know and believe, our story, then we accept that new information. If the new information goes against what we know and believe, our story, then we tend to reject that new information. Reject it until we can reconfigure our story so that it includes, makes room for and therefore makes sense of that new information.

Our friend and colleague, Eric Oliver in his brilliant book, FACTS DON’T SPEAK FOR THEMSELVES, speaks about how people process and learn. Often, attorneys become concerned, annoyed or angry because they believe that they should only have to explain the facts and the deciders will judge accordingly. At a recent workshop we taught on the East Coast, one attorney said, “I don’t want to manipulate and spin the facts. People will be able to follow the evidence if I just lay it out.” Well, I continue to be sorry to say, that is NOT TRUE.

It’s not about manipulating or “spinning” the facts. It’s about context…it’s about STORY. How you sequence the information, the facts, how you present them makes all the difference. You know that. What we want to emphasize and reassure you of is…you must TELL A STORY.

Beginning, middle and end. The end must involve or instruct the trier of fact. Present tense. Simple, active, sensorial English (NOT legalese).  Find an emotional basis for your story. The emotional basis is AT LEAST that you care about your story, your client, your case. IT’S NOT ABOUT BECOMING EMOTIONAL. It’s about finding the underlying feeling of the facts and the story. Is that about “breaking a promise,” “betraying a colleague,” “changing the rules,” “breaking the rules,” ”stealing an idea.” You get the idea.

Humans make decisions with their guts, hearts AND minds. Your job is to involve the listener, the trier of fact, to use all three.

TIP: Are you finding the story among all the facts of your case? Have you found the best sequence? Are you telling a story or are you reciting information?

Alan:

Memory is a remarkable and fragile phenomenon. Or so says Elizabeth Loftus, a researcher and psychologist whose TED talk is the basis for this blog post.

Memory is an important component of our lives as actors and performers and certainly an important part of the lives of lawyers and their witnesses. Attorneys rely on their clients and their witnesses for memories of events, contracts, their actions and the actions of all the folks who are a part of the trial story. For many years, the research has shown that eyewitness testimony can be remarkably UNRELIABLE. Elizabeth Loftus in this enlightening talk expands on this through her own research.

Katherine and I are currently performing in a play by Joyce Carol Oates that concerns memory and the fragile, almost surreal quality of memory….false memories, insistence on a past and a history that we wish were true, hope was true. It has been a remarkable journey for us as actors and especially because of our work with attorneys. In this play, a married couple is being interviewed by a disembodied voice about their son who is accused of raping and murdering the 14 year old daughter of a neighbor and disposing of her body in the basement of the couple’s house.

So reminiscent of the cases that many of our colleagues have worked on. And so tragic and sad as the couple struggles to believe in the story of their family, their son and their lives, as they remember it and “know” it.

The lessons here for attorneys about memory and how stories of people’s lives are constructed is eye opening and will provide much food for thought.

For reviews and interviews about the play TONE CLUSTERS that Katherine and I are doing, please visit our website.

TIP: You already know when your witness is guessing about “what must have happened.” Do you know when they are “sure” about something that didn’t happen? Don’t rely on the memory of any one person in constructing the story of your case. Even if that one person has details and emotion and is “sure.” Get corroborating details from many sources.

Elizabeth Loftus altered the course of legal history by revealing that memory is not only unreliable, but also mutable. Since the 1970s, Loftus has created an impressive body of scholarly work and has appeared as an expert witness in hundreds of courtrooms, bolstering the cases of defendants facing criminal charges based on eyewitness testimony, and debunking “recovered memory” theories popular at the time, as in her book The Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (with Katherine Ketcham).

Since then, Loftus has dedicated herself to discovering how false memories can affect our daily lives, leading her to surprising therapeutic applications for memory modification — including controlling obesity by implanting patients with preferences for healthy foods.

From Alan:

Actor meets Lawyer in Performance

I have played lawyers several times, in TV and in the Theater. This, however, is the first time that I have played a lawyer who finds himself plunged into a dark night of the soul.

This play, very loosely based on real events, revolves around a Skin Head, a Neo Nazi, who kicks a South Asian man to death and is assigned a Jewish Public Defender. A powerful, provocative play forcing each man to confront his core beliefs. Each is deeply affected by the interaction, and yet the play does not have a “pat,” easy ending. There is ambiguity and unease by the end of the experience.

In preparing for this role, I had the distinct advantage of my work with trial lawyers over the past 36 years. And most particularly, my work with Public Defenders. My experience has been that many Public Defenders either have a crusading zeal, unfazed by the burden and weight of their work; or appear weighed down by the burden of the work. Danny Dunkelman, the character in CHERRY DOCS has the crusading zeal. In fact, he has what seems to me to be an arrogance in his ability to claim “some small piece of redemption” for Michael (the Skin Head). By the end of the play, Danny confesses that he needed to claim that redemption, “even if (he) had to beat it out of him with the broken back of…a chair.”

Raised as an observant Jew with a strong sense of Tikkun Olam (healing the world), Danny rises to the challenge of defending Michael with every fiber of his intellect and soul. The toll it takes on Danny is crushing.

I have relished the opportunity to explore both my Jewish roots and my knowledge of working lawyers in preparing this role. Performances begin September 6 and play for 6 weeks, one performance each week through October 13 at the Theatricum Botanicum in Topanga Canyon, California. We will be offering  2 Hours of LIVE CLE Ethics credit for attorneys who attend the play and stay for a discussion afterwards.

View show times and buy your tickets here!

TIP: Be vigilant in choosing your clients. Danny twice says that he may not be the best lawyer to put forward Michael’s defense. The toll it takes on him proves that he  might have been better off passing this case on to a colleague.

WARNING….There is language some might find offensive. Be advised.

From Alan

Occasionally, we post talks from the TED conferences. This remarkable resource of creative and interesting people and ideas offers a wealth of inspiration and information.  Here, Andrew Stanton, tells us about his own life and what led him to being a storyteller.

As attorneys, mastering the skills of storyteliing is essential. Practice is important.  Tell stories to your friends and family. To your children and grandchildren. Don’t worry about being
interesting or instructive. Focus instead on the contact between yourself and your listener.  Focus on the specifics of your story.  Be concise and yet expansive….trust your instincts and play.  This will help your advocacy more than you might imagine.

 
Enjoy.

From Alan:

Several posts ago, I talked about The Empathetic Response and how it might be beneficial for lawyers to understand connecting with jurors on that level.

Here, I want to share a spectacular talk by Kenneth Robinson on Divergent Thinking, Collaboration and Creativity. RSA, a wonderful company that creates animated shorts bringing ideas to life, has made this amazing clip.

Several points are important for attorneys to understand. First of all: The Delivery. When discussing graphics and supportive material to bring a case to life, most lawyers rely on language….charts, graphs, excerpts from transcripts and occasionally photos or videos. While watching this clip see how the non-verbal, purely visual story totally supports the verbal narrative unfolding during the clip. While this actual technique might be too expensive for most attorneys, the idea of it is what you should take away. How do you best create a non-verbal, elegant unfolding of your story.

Secondly, the message of the clip is so important to understand. Especially for folks in solo practice, or in firms that do not encourage and support true collaboration, learn from this how essential it is to find the synergy in collaboration. I know this might be an overused word, which has gone out of style, but the effect is very powerful. It is not necessary to do it all alone. In fact, it is often, almost always, to work with others. Something that our educational system and law school does not encourage.

Finally, learn the value of divergent thinking. This is sometimes termed, “outside the box” thinking. And it is often beaten out of us during our schooling.

This clip was inspirational to me and I hope you will find it so, as well.

TIP: Allow yourself to think of your case in new ways. Seek out collaborators who think and approach things differently from you. And finally, explore the possibilities of non-verbal visuals.

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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This video below, from http://www.thersa.org/, offers some very encouraging and hopeful evidence for both actors and lawyers.

Much scientific research has been done concerning the mirror neurons. The biological basis for our empathy…briefly in all humans, and many primates, the same areas of the brain are activated whether we experience an emotion or action ourselves or if we observe it in others (that is a simplification, elaborated on in the video below and in much scientific literature on empathy). In other words, we are soft wired for Empathy. Biologically.

Our colleague, Eric Oliver, has studied and written about this.

For actors, this is the basis of the connection between the performer and the audience. This is the link by which storytelling and “play acting”, whether through sage/priests or actors, has flourished and survived since humans have been around. It is a necessity. A human need… to experience together. To seek BELONGING.

For attorneys, this is also very good news indeed. The emotional basis of your case, of your witnesses and clients’ experience is not only an intellectual exercise for judge and jury it is the linchpin which CONNECTS them to your story and theirs. By knowing this, an attorney is empowered to build upon the need of the trier of fact to BELONG to the group. The trick is for YOU to create the group to which we all want to belong.

Watch the video… do more research and weave your stories.

TIP: Make sure that the intellectual, legal basis of your case rests upon a strong emotional through line.

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I got a call from a good friend. She is a brilliant actor and I hadn’t heard from her in a while. She was in a play and the leading actor had to drop out because of some health issues, would I be interested and available in taking over the role. They had been in rehearsal for almost a month and opening was 13 days away. Well, the play and the role were very interesting; challenging and difficult and remarkable. The theater company had a spectacular reputation and I had just heard the director and producer speak, quite eloquently, at a ceremony where they received several commendations for their company and their work. I was actually looking for a chance to do a play and this seemed like a happy coincidence. Does any of this sound familiar to my lawyer friends out there?

You get a call to take over a case. All the pieces seem to fit very well with your schedule, your expertise, your experience and your practice. You agree to take it. So, what are the problems?

Well, as I found out all the decisions had been made. The circumstances of the characters, the relationships among the company, on and off stage, were pretty well set. The opportunities for mutual exploration and struggling together to find the world of the play and fill in all the details of the lives of the people and the specifics of their situation were pretty much in place. Sure, I gently elbowed my way in and re-tooled some of the relationships to fit my take on the role, but time was limited. Basically, I was inheriting the work of the other actor, fine as it was, and learning to adjust my process to what was in place. Not that my process or my work is so precious and fragile that I am unable to accommodate but a lot of the fun was gone. Technique and craft would have to replace a lot of the joy of original creativity. Still good work, just different from what I usually do. Sound familiar at all to my lawyer friends?

I just taught for a week with a wonderful, talented woman trial lawyer and she spoke about a very similar situation. She had just taken over a case and found that her usual style and approach would have to adjust entirely. Discovery was done. The case was set. The challenge became how to take someone else’s work and make it her own. How to accommodate her usual approach and make it work using someone else’s way of doing things.

It is certainly do-able. I opened the show to generally excellent reviews and am enjoying the run with a wonderful cast. She won the case and got an excellent result for her client. The lesson seems to be: Be flexible. Embrace the very things that are problems and make them work for you. Not a new lesson I know. But, certainly one worth learning over again….from time to time.

One of the things actors and lawyers share is the sometimes negative feedback from the audience, critic, jury. It’s one thing to not like your work, it’s another for the “not likeness” to be personal. If the critics say, for example, that your not being in the second act was a relief and justified returning after intermission. And if you come in second too often, and if you poll the jury and they just don’t seem to like you or your clients or your cases…..well, what do you do? (more…)