Legal texts in the sense of statutes and case opinions are not the only subjects for interpretation in law. A trial is a sign-and-symbol stew in which texts are simultaneously presented, interpreted, created, narrated, reinterpreted, and ultimately judged. In previous installments, we discussed the many points of connection between theatrical and judicial spaces, and now it’s time to consider the performances that take place within those spaces and how meaning is created within each.
In a traditional proscenium-arch theater, there’s a sharp distinction between stage and audience: the action on the stage—the performance—is framed for the audience. But the performer-audience relationship is merely disrupted, not displaced, in experimental theaters featuring thrust stages, theater-in-the-round, or even street theater. This is to say that a proscenium theater isn’t a prerequisite to framing because framing isn’t just a function of the type of theater we’re observing; it’s a function of space being carved out of some other space for use as theatrical performance space.
The act of framing alters the everyday perceptions of observers and infuses even quotidian objects with significance. Denis Brion suggests that framing “announces that all objects, persons, actions, and expressions within this space not only denote but also connote… thus, the very fact of the appearance of an object on a stage suppresses its practical function in favor of a symbolic or signifying role.” Put the other way around, we have Chekhov’s gun,”If in the first act you have hung a pistol on the wall, then in the following one it should be fired. Otherwise don’t put it there.”
The point is that objects placed within a theatrical frame assume—and are assumed to have—extraordinary significance. Theater theoreticians associate this concept (at least with respect to realistic drama) with the idea of “iconicity”—that the space and objects seen on stage more or less represent the imagined, fictive space of the drama being presented. But as Marvin Carlson argues, the close association of—and attendant focus on—“framing” and “iconicity” beggars another important semiotic sign: the index.
Thinking of theater in indexical terms affords insight into yet another dimension of the theatrical experience and how theater goes about the business of representation. The index does not represent-through-resemblance like the icon (e.g., a chair on stage representing a chair in Lear’s palace); rather, it indicates (in a pointing kind of way) and often suggests a cause-and-effect relationship (e.g., smoke from fire). Now, all this indicating can direct (perhaps manipulate) the audience’s attention to on-stage phenomena through the use of lighting, movement, blocking, and so forth, but that’s not all. Often, characters invoke places, times, and events that are offstage, which, of course, is exactly what happens at trial.
Trial commentators almost inevitably draw a connection between trials and theater productions. The choice of trope in drawing the connection may be unconscious or deliberate, but the choice is between simile and metaphor, between like and is. The analogy can be pushed too far, as Robert Ferguson suggests, but as we’ve discussed before, religious rites, social rituals, theatrical productions, and legal proceedings share common features, some liturgical, some spatial. So now, our task will be to apply to law what we’ve borrowed from theater, architecture, anthropology, and literary theories and see what can be gleaned from the exercise.
To do so, we must remember that there’s a lengthy catalogue of who occupies space in a courtroom, ranging across judicial officers and their adjuncts, attorneys, litigants, witnesses, jurors, and spectators. But we know that there’s a finer point to be put on these categories. For example, spectators can be family members or otherwise interested in the outcome, members of the press, jury/trial consultants, counsel in other matters observing the judge’s procedures and demeanor, non-speaking members of one trial team or the other, or random members of the public. I emphasize the multiplicity of roles because there is no sharp division between and among roles: an actor may be so in one moment and an auditor in another.
Robert Ferguson also reminds us that the courtroom itself plays a performative role, “Courtrooms routinize expected behavior in a further stereotyping of performance. They set the scene of performance.” All the non-verbal persuasive maneuvers that take place at trial are executed in this specialized space. “A courtroom is thus much more than a backdrop or occupied space; it is the controlling presence that codes all effort and recognition at trial.” A favorite personal example that trial amply illustrates Ferguson’s observation comes from a trial I participated in a few years ago. In that case, there was a side issue involving alleged kickbacks from a land broker to one of the defendants at the expense of the witness being examined. The trial transcript reveals the comic lengths that the examining lawyer took to get the evidence of corruption in the minds of the jurors, even though he was unable to get it into evidence over a litany of hearsay objections. But to Ferguson’s telling point about courtroom space, a bit later, the examining lawyer—in a pantomime of tidying up the exhibits—paraded the alleged kickback checks, which had been blown up to golf-tournament-award size, in front of the jury.
Seen as a swirl of activity, the performances taking place within a courtroom are much more complex than what is popularly thought of merely as the lawyers acting out roles. A paradigmatic literary example of the popular perception occurs in the trial section of Camus’ The Stranger. There, Meursault is on trial for murder in French Algeria, and shortly after registering a feeling of estrangement from his own trial, he hears his lawyer literally assuming a role, that of Meursault’s persona:
It seemed to me as if my lawyer’s summation would never end. At one point, though, I listened, because he was saying, “It is true I killed a man.” He went on like that saying “I” whenever he was speaking about me. I was completely taken aback. I thought it was a way to exclude me even further from the case, to reduce me to nothing.”
Although this example is extreme (it’s a convention in legal writing to refer to arguments as those of a party when in reality they are arguments of counsel), it’s taken as a given that lawyers are representing—in a looser sense—their clients, be they private parties or the state. For this and other reasons, it is not uncommon for litigants to feel alienated at trial. This is a function, I suppose, of inexperience, but it’s an inexperience reflective of the particular context. That is, the trial scene is unusual—artificial—and one to which one is unlikely to ever be fully habituated, given that within the confines of a courtroom every participant is assuming a role upon entry different (at least to some degree) from the one they play outside. They are performing.
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, “Everyday Lawyering: Where Imagination and Morality Meet Advocacy and Logic,” from which this series is partially excerpted is currently under review at a university press.
Reprinted with permission from © ALM Media Properties LLC. All rights reserved.