Reviewed by Alexander F. Ransom in the Whatcom Country Bar
Trial theory is fun. It’s interesting. From David Ball on Damages to Rules of the Road, numerous books written by experienced trial attorneys give perspective on how to successfully conduct jury trials. What persuades juries? What turns them off? Trial In Action: The Persuasive Power of Psychodrama is one of the newest books to broach the subject. In short, the authors explain how to use psychodrama in trial practice.
Psychodrama is defined as "the science that explores the truth through dramatic methods." It’s an action method during which participants show a group what happened rather than tell what happened. Psychodrama is more like improvisational theatre rather than scripted drama. It is a spontaneous acting out of scenes from the protagonist’s (storyteller’s) life, in the moment, the here and now. Psychodrama uses a great deal of physical interaction and roleplay. The psychodramatic method includes five elements: the stage, protagonist, audience/group, auxiliaries, and the director.
The authors discuss how jury trials, like psychodramatic sessions, also have five elements which parallel or correspond to the elements of psychodrama: the courtroom (stage), your client (protagonist), the jury (audience or group), the witnesses (auxiliaries), and you, the lawyer (director). The role of the trial lawyer in a courtroom is like that of the director of a psychodrama; for the director is the guide and the helper in getting and telling the protagonist’s story.
They say the most important requirement of enacting psychodrama is, interestingly, knowledge of oneself. You have to have done enough of your own work, be familiar enough with your own story, so that you can intuitively understand where the protagonist (in a legal case, the client) needs to go to tell his or her own story. You must understand the emotions that flow from the events of various scenes in a story.
The authors of Trial In Action believe lawyers commonly make the mistake of intellectualizing our practice, especially jury trials. It’s what law school taught us. However, by using psychodrama to first understand yourself, and then others, we can bridge the gap between our emotions and our intellect. "When we speak the truth that comes from our hearts, when we are real, honest, and fully present in the moment, we have great credibility and great power."
Trial In Action is a complete work. The authors illustrate an overview of psychodrama, its origins, and the history of how trial lawyers have used it. A description of a traditional psychodrama session is included to help understand the power of this method and its therapeutic impact on those who participate in such sessions. The next session of the book turns to a description and explanation of several specific tools and techniques of the psychodramatic methods that trial lawyers use most often. The book discusses several in detail and gives specific examples to demonstrate how attorneys can use them to not only find and explore the story of a client’s case, but also prepare for trial. The last portion of the book shows how to apply these tools to each portion of trial, from jury selection to closing argument. Finally, Trial In Action provides a glossary and appendices of opening and closing arguments in a medical negligence case argues by one of the authors.
I was impressed with the tips on jury selection. I join many attorneys in believing that jury trials are often won and lost based on voir dire alone. If done correctly, voir dire holds a powerful mystique. It educates the jury and gives them a taste of what’s to come. Trial In Action recommends a "Reflect, Relate, Resolve" approach to voir dire. The authors emphasize jury selection is a human exchange. Jurors need to be warmed up. They need to know what concerns us, the attorneys, about the case (again, self knowledge is important). Potential jurors must be listened to and validated. If successful, voir dire builds trust between the attorney and group, a phenomenon called "tele." Trial In Action provides subtle psychodramatic techniques toward getting there.
Overall, Trial In Action is an impressive work. The point of using psychodramatic methods in preparing and trying cases is to be the best advocate you can be for your clients, and to practice in a way that is satisfying, honest, and human. Yes, the goal is winning, but it is not always the goal. Using these methods allows us to relate with our clients and other witnesses. Especially, it allows us to connect with the most important people in the courtroom, the jurors. "It makes discovering and telling our clients’ stories easier and three-dimensional," states the authors. "It brings humanity into the courtroom, facilitates empathy, and stimulates greater creativity and spontaneity."
Reprinted with permission of the Whatcom Country Bar.