"Trial In Action" reviewed in The Colorado Lawyer

Jun 08, 2011

A Book Review of Trial in Action

by Wilbur C. Smith in The Colorado Lawyer (June 2011)

Trial in Action presents a unique twist on the trial lawyer’s art. The authors strongly believe that, as a trial lawyer, "your goal is to help your juries hear, see, and feel your client’s stories." As a means to this end, they present the technique of legal "psychodrama," in which the lawyer prepares for trial through dramatic role playing.

In a legal psychodrama, the trial team scripts, directs, and performs a stage production that vividly recreates the facts of the case. The psychodrama is supervised by a professional "psychodramatist" and is performed well in advance of trial. Usually, the actors in the pretrial production will be the lawyers, the parties, and perhaps even the witnesses involved in the case.

The book begins with an overview of the psychodramatic method, its history, its technique, and its recent application to trial advocacy. As the authors explain, psychodrama originated in psychiatry as a form of group therapy. True to its name, psychodrama blends psychiatry with the performing arts. In the 1970s, trial lawyers began experimenting with psychodrama as a means of teaching trial advocacy. Originally adopted by the National Criminal Defense College as a teaching method, psychodrama later evolved into a method for trial preparation.

A traditional psychodrama session is described in the book from beginning to end, with both commentary and transcripts adapted from an actual psychodrama. Although a psychodrama closely resembles a theatrical performance it differs in that the protagonist is not merely following a fictional script, but is reenacting an actual and often personal experience. Moreover, audience members occasionally are called on for impromptu participation in the drama. Past events are explored and relived through scene setting, role playing, mirroring, and role reversal. This method is designed to recreate the emotional perspective of people who have experience traumatizing events.

The authors maintain that acting out an event, as opposed to merely talking about it, will provide a more visceral and experiential understanding to all who participate in the production, The authors argue that the advocate or witness who physically reenacts the case will later present those facts with more credibility and persuasive force.

Midway through the book, the authors address storytelling as a means of persuasion. This is the book’s strongest section. The power of storytelling is already well known in trial lawyer lore, but the use of psychodrama in story development is a new and unique approach. Borrowing ideas from the screenwriter’s art, the authors add suggestions on structure, sequence, scene, and action in a thoughtful and straightforward presentation.

Finally, the book turns to the practical application of psychodramtic technique to the components of trial: opening, direct, cross, closing, and jury selection. Practical techniques are explained, and examples from actual case transcripts are provided. The authors emphasize that the client’s story must be told through every stage of the trial.

Especially interesting, if not controversial, is the section on storytelling through cross-examination. The authors present a compelling alternative to the more traditional and aggressive style of cross-examination. The authors posit that cross-examination must be aimed at telling the client’s story. Presenting what they call humanistic cross-examination, the authors recommend examining an adverse witness in a more empathetic mode while keeping the "killer attitude" in check. Concrete examples of this method are provided. Though they acknowledge that their method contravenes much of mainstream trial theory, the authors believe that a humanistic cross is more palatable to jurors and is a better way to consistently deliver the client’s story.

This book would make a valuable addition to any trial lawyer’s library. Although it is oriented toward more experience litigators, the sections on storytelling will be useful to lawyers of all skill levels. The book is well organized and clearly written. A well-structured table of contents allows the reader to turn immediately to any topic of interest.