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( the Play's the Thing ( THE PLAY'S THE THING: How IMPROV AND THEATER CAN MAKE YOU A BETTER STORYTELLER AND A BE1TER TRIAL LA WYER Reprinted with permission from WACDL- from December 2012 CLE Andy Robertson All the world,s a stage, and all the men and women merely players.... William Shakespeare c In improvisation, there are no mistakes. Miles Davis (1926 -1991) #Other than psychodrama, there are veiy few practical disciplines that have as much to offer the courtroom lawyer as improv. Do you have stage fright, or fear ofpublic speaking? Improv will help. Do you have problems 'connecting, with others, for example, the 'others' who soon will be your jurors and in whose hands rests the fate ofyour client? Improv wiU help. Do you want to learn how to better use the space in the courtroom? Or how better to move through that space? Improv will help. Do you need more romance in your life? Improv will help. Do you want to lose weight? Then stop eating so much.,, Carl Bettinger, Twelve Heroes. One Voice: Guiding Jurors to Courageous Verdicts (2011) I do improv for a variety of reasons that aren't wholly related to the practice of law. Nevertheless, I am confident that being involved in improvisational theater for the past 12 years1 has made be a better lawyer. It has honed skills that are -important not just for trial, but for general courtroom presentation. client interactions, negotiations. and judicial interactions. I know that not all of these experiences and exerc.ises and focuses are appropriate for every trial, but going through the experience of learning and practicing improv .is worthy in and of itself.2. For me, improv lets me work with an amazing group; performing and being alive in the moment. "Don't ask yo11r.re!f whot the world needs; ask yourself whot mak~ you COf!Je alive. And then go and r)Q thtd. Because what the world nuds is people who have come alive." - Harold Whitman If you are looking for a checklist of important "to do's" or a script. you won't find it. I'm suggesting that you investigate all the ways in which th.is experience and practice can make you a better lawyer. And I can tell you ways in which you can integrate that practice into your life. With all that said, let's begin. Lesson One: FOLLOW -THE- We often rJQ hazardom things: drive too fast, drink a/coho4 jump out ofan airplane, sleep with the wrongperson. fEAR So wqy can't we rJQ that in this 1J/0Tk? So often whot we do is like jumping offa four foot waU with a parachute. c Stop rJQing that. Make it dangtrous for fan. Keith Johnstone, improv gum Follow the Fear. Del Close, 011other improv gll1'1I Every lawyer is scared of making a mistake and looking like a fool. Our practice demands precision, polish, confidence, and strength. But while aiming for this appearance of strength, we are -implicitly taught to avoid risks. Improv teaches us not to abandon our fears or ignore them, but to follow them . .. move toward them. This is important on a bigger level, because if you avoid your fears, and avoid moving towards them, you avoid sometimes the most harmful things in your case, and you can miss the most creative and helpful ways to fight for your client. As a I TaUn.ing artd pecfomiing with Unexpected Productions in Seattle. 2 Attached to these mate.:Ws is an article rq>rinted with petmission from c.d Bettinger, a phenomenal trial lawyer from New Mei<ico, who does some iunuing plaintiff work. I met him while attending Trial Lawyer's College in Dubois Wyoming in 2004. He saw a handful ofw plAying a seties of improv games that summer, and it inspired him to take a class in improv. He went to "worluhop with a gentleman who is pedlaps «:ga1ded as one of the most important living improv teachers, Keith Johnstone O!t!i2' I lwww the zPOOtaneir.y-sbop com / ahout/ keirb Johnstone html) Carl's fresh impressions of this experience and the value ofhis classes is wonderful. He went into improv specifically because he saw a group ofus playingimprov pries at a 2004 semitur. He took: classes to become a better lawyC!', artd the changes in how he presents cases i:eally shows how this art form can improve your t:rW presentation. He's not an acto r who became a lawyer, be was l.ita:.Uy a doctor who became a lawyer, who now .dds improv into the mix. His book, TwclyeJµrog. One Voice: Gttidmgjmrn:r ID Cwrogmu Vmim is well worth the read. parallel, Gerry Spence teaches you to dig down and find something you are most afraid of in your case, and display it for all to see. He encourages this as a way to get a jury to open up to you - because, after all, why ~uld complete strangers open up their hearts and show their most privat.e, secret selves? Particularly to share with someone who seems to judge their answers, and who has offered nothing in return? It's the whole "I'll show you mine if you show me yours" approach. Spence spends a great deal of time teaching la-wycrs how to be human. You gain the trust of the jury by revealing your own weakness. Instead of hiding from your fears, you embrace them. You literally craft your jury selection around your FEARS instead of around your IDEAS. Improv helps you do this. What improv does on a meta-level is to make you confident to step out into the unknown. This does not mean that you should fail to prepare, but so much of our practice and of trial itself (and hell, of life~ is unpredictable and fluid Ifyou are too scared to begin, because you don't know how it will end, well, then you are missing the juice that makes you better at trial and at life. I1LUSTRAIIVE IMPROY G.AMES3: Just about any of them! Particularly the ones that scare you the most. Lesson Two: 0 Leap and the net wiU appear. John Burrough Improv is about Telling a Story . without knowing exactly how it will end In any given trial, you may have a theme, a storyline, a plot, an idea. All of that is great. It gets you into the trial with a focus and an idea of how to present it all to the jury. I'm not telling you to abandon this. But don't marry yourself to that story. Parts of the trial will come out which will perplex you, shoot down your theme, contradict your story, add a sub-plot, add a counterplot, add a sequel, etc. If you have scripted your trial, your cross examination, your direct examination, your objections, your closing .... And you are derailed .... Then what?? Will your case fall apart?4 A critical part of improv is to fill in the middle and sometimes that changes the end Because what is the story if you have a drastic re-write in the middle? It's still a story. It still moves forward It will still end l UlS iuwusupuy WUI:KS very wcu Ul VUlI: UlI:C, 111 l.I:U~S c;X.aJ.lWJ.aUUll, a11u UJ upc1wig auu l,;UJSllJg S~t::.••.::•· - Examples in voir dire: ) De<Ctiptions of~· come primarily from The Living Playboolt, edited by Randy Dixon, artistic director of Unexpected Productions (WV1W.unexpectedpro<luctions.otg) •Well, yes, oometimes this means your case foll• apoct. .And that's where you wod.: on your scnt=cing story. 0 1 Attorney: How many of you don't like public speaking? (hands raised) Why? G Jurors: Makes me nervous. I feel afraid I can't remember details. I don't want to look stupid Attorney: So, what are some physical signs you observe in a person who is nervous? Jurors: Sweating. Looking at the floor. Stuttering. Attorney: Yes, and what else? Jurors: Fidgeting. Biting nails. Forgetting details. Turning red Attorney: Yes, and what are some things you observe in a person who is lying? Jurors: Won't look you in the eye. Nervous energy. Fumbling. Story doesn't add up. Stuttering. Attorney: Yes, and do any of you see reasons why a truthful but nervous witness could be perceived as lying? See how using "Yes, and... " allowed the jurors to build their own construct, and they led themselves to the conclusion that you ultimately wanted them to reach. Yet it was much more appealing to them, because they reached the place themselves. They did so in a collaborative effort, with you using "Yes, And.... " Here is an example of the difference between an 'improv-style' response to a juror expressing something that c is "frightening" tn you ....versus the instructive, one-sided approach that you see so often.... Particularly with our opponents, frankly: Juror: I think it's entirely too hard to get someone convicted - there are too many loopholes and technicalities. Attorney: (prior to improv classes): Well, it's an important burden and the judge is going tot.ell you to follow it, and you swore an oath.... Attorney: (after improv classes): Yes, it's a very high burden and I'm glad you brought it up. What is disturbing to you about this? Juror: Well, I guess I just hear about people who are guilty, but there's some way in which they walk away from their crime. Attorney: Yes, and that's disturbing, when you feel like justice wasn't done.
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