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Rhetoric and Improvisation in the Drama of Trial

By Randy D. Gordon
December 16, 2021
Texas Lawyer

Rhetoric and Improvisation in the Drama of Trial

By Randy D. Gordon
December 16, 2021
Texas Lawyer

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Trials both pose and answer questions within an essentially dramatic framework. Unsurprisingly, commentators sometimes advert to Kenneth Burke's "pentad" of the key terms of "dramatism": act, scene, agent, agency, and purpose. For Burke, "In a rounded statement about motives, you must have some word that names the act (names what took place, in thought or deed), and another that names the scene (the background of the act, the situation in which it occurred); also, you must indicate what person or kind of person (agent) performed the act, what means or instruments he used (agency), and the purpose." Any civil litigator will recognize that these performative elements correspond to the who, what, when, where, and why ("how" can usually be subsumed under one of the Ws, depending on context) of pleading with particularity (and ultimately proving a claim or defense).

Burke's is a literary theory, one concerned less about things than words about things. But as Michael Overington argues, it's not just a literary theory because Burke sees all human action as "essentially" dramatic: "The drama presumes human action; the playwright's task is to offer a plausible account of the acts of agents in terms of scenes, purposes, and agencies." Drama works when and because successful playwrights tacitly employ "cultural expectations of consistency between scenes and both acts and agents." Burke's insight into motives thus grows out of his understanding of the twin expectations of playwright and audience with respect to a shared-and therefore convincing-explanatory framework. So how does this bear on the law, on trial performances?

Burke uses the term "motive" in a sense broader than and different from offering an explanation for why someone did something. For instance, he suggests that words as words can provoke action. As Overington notes, calling a particular death "murder" sets in motion (motivates) the search for a "murderer." "Whatever took place to bring about this death, the attachment of meaning to it as a 'murder' requires, because of the connotational relations which inhere in this term, that we look for an individual who planned and executed the act, whether or not such an individual exists." In our system of justice, the ultimate decision of whether an act qualifies as "murder" takes place at trial. That trial, which is the dramatic reenactment of something that happened in the past, motivates the jury to determine, to a stipulated degree of certainty, whether the defendant is indeed the murderer. And it's here that Burke and Bennett and Feldman's theories, which we began to examine in a previous installment, merge (or at least intersect).

As Burke has it, we organize information-evidence, for example-about or in social situations according to the relations (what Burke calls "ratios") among the elements of the pentad. Bennett and Feldman agree: "This social 'frame' gives us a ready standard against which to compare an emerging interpretation, and through which to identify quickly any connection that appears to deviate from the empirical, categorical, and other ratios ordinarily associated with the comparison frame." And by placing genre constraints on the way that evidence is processed at trial, frames permit fact-finders to test the consistency, as an overall pattern, of the isolated connections they are invited to make among story symbols/elements.

Bennett and Feldman see trial as a stylized dramatization of reality, replete with strategies and counterstrategies that result in "the uneasy possibility that neither case captures the subtle reality of the incident." But realizing that a trial is not a straightforward exercise in finding the truth is no reason to abandon the search for how trial operates. One way to understand this operation is to examine the rhetorical tactics that implement the lawyers' overarching story strategies. To do this, Bennett and Feldman identify three key tactics that make a fact or piece of evidence take on meaning within a particular case:

  • The way a fact becomes a part of a story is a function of the language that a witness uses to define pieces of evidence.
  • The way a piece of evidence is interpreted is a function of where it is placed in relation to other story elements and the connections that can be made among them.
  • The way a story gains or loses integrity depends on whether crucial definitions and connections can be validated with supporting definitions (or invalidated with equally plausible definitions and connections).

We must be mindful, though, that the first two of these tactics serve to establish the significance of evidence (its contextual role in the stories that make up the case), not its reliability or weight, which is the province of validation tactics. Some elaboration and examples should flesh this out a bit.

I'm going to use one principal example to illustrate a range of trial performance practices, mostly because it's so well known. The facts of the O.J. Simpson trial are extensively documented-I myself have written about them before. In short, Simpson was accused of murdering his ex-wife and her companion in an especially violent assault. His defense team's tactic was to raise reasonable doubt by attacking the LAPD as a racist organization that at best bungled the investigation and at worst fabricated evidence. We'll soon see that this case neatly illustrates aspects of Bennett and Feldman's three-part tactical theory.

To define evidence is to restrict its meaning to fit the contours of a particular proffered story. The examples that Bennett and Feldman offer represent what trial lawyers call "funneling"-i.e., drawing testimony towards a narrow focus that supports the examining lawyer's version of events. Inferential tactics establish or disrupt connections that make a story hang together. This becomes of great importance when the definition of an element and its place in a story are disputed. A common example occurs when there's an argument over where a piece of evidence fits within a story. Under Bennett and Feldman's model, then, "Both definitional and inferential tactics are aimed at creating the best possible fit between a piece of evidence and the story strategy underlying a case." It remains for validation tactics to explain how lawyers enhance or diminish the credibility or quality of evidence.

The most common trial tactic is the objection, which can be used for a substantive purpose (e.g., keeping out inadmissible evidence like hearsay) or a merely strategic purpose (e.g., disrupting an examination that is going too well or casting suspicion on unfavorable evidence). Similarly, calling for a side-bar conference-which remains a mystery to the jury, the public and the press, at least until the trial transcript is released-can be a disruption and/or ambiguity-generating. But, as Bennett and Feldman note, "The most convincing method of challenging a witness's credibility is to demonstrate that he or she has lied in the course of testimony." F. Lee Bailey's cross-examination of Mark Fuhrman at O.J. Simpson's murder trial is a particularly good example. First, Bailey maneuvers Fuhrman into taking an absolute position (that he hadn't used the N-word in the last 10 years). Then, another member of the Simpson team, Johnny Cochran, calls a witness who refutes Fuhrman's claim and does so with taped evidence! So, when he's recalled, Fuhrman knows that he has committed perjury and thus takes refuge in the Fifth Amendment, even with respect to a direct question as to whether he planted evidence.

Despite appearances (which probably result from the inherent drama in cross-examination), it would be error to conclude that validation tactics are really only invalidation tactics. Indeed, though presented with less flair, quite often lawyers buttress the credibility of their witnesses via tactics like highlighting credentials, emphasizing a background associated with honesty, or preempting claims of bias related to, for example, expert compensation. Sometimes, they even attempt a bit of "staging," which can be carried to absurd extremes (e.g., piling up boxes of mostly irrelevant documents in front of a jury to suggest a greater weight of evidence).

Rhetorical tactics like these are sometimes a response to something unexpected and call for what we would think of in theatrical terms as "improvisation." Improvisation is important to the trial enterprise in three ways. First, a lawyer may be forced off script when fresh evidence pops up. Nimbleness in the face of the unanticipated is perhaps the hallmark of great trial lawyers. Second, lawyers may need to adapt their personas-usually by modifying their default speech patterns-to a jury once it is seated. Pamela Hobbs suggests that "The assumption of this lawyer persona serves not only to optimize self-presentation but to cue the performance mode, in which the lawyer is so 'in character' that self-consciousness disappears." This allows the lawyer to monitor how well she is "playing" and make adjustments on the fly that enhance the construction of a "shared identity." For example, several studies examine the strategic decision of African American attorneys to slip into African American vernacular English when it suits the situation. I have an acquaintance in Washington, D.C., who principally handles white-collar criminal matters. A few years ago, he tried a case in North Dakota, where he happens to have been born and raised. Although in everyday interactions he plainly speaks what I call flatland, unaccented English, he told me that he quickly lapsed into "You betcha!" mode at trial-much to the consternation of the federal prosecutor. Needless to say, his client was acquitted.

Third, there's an important theoretical point to be made, one suggesting that trial improvisation-like musical and theatrical improvisation-is not without "form." We'll take this up next time.

Randy D. Gordon is the Office Managing Partner of the Dallas office of Duane Morris LLP. He is executive professor of law and history at Texas A&M University. His new book project, "The Performance of Law: Everyday Lawyering at the Intersection of Advocacy and Imagination," from which this series is partially excerpted, will soon be published by Routledge.

Reprinted with permission from © ALM Media Properties LLC. All rights reserved.