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Stages of Rehearsal: Trial Preparation

By Randy D. Gordon
June 29, 2021
Texas Lawyer

Stages of Rehearsal: Trial Preparation

By Randy D. Gordon
June 29, 2021
Texas Lawyer

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Although most trial commentators focus on trial itself, that event is the culmination of a long process that in all likelihood has included what those in theater studies would consider instances of “rehearsal.” As theater theorists know, the understanding of a performance is enhanced by knowing something about the dynamic production process standing behind that performance. Part of their interest is, as Gay McAuley suggests, “in the way the complex strands of the subsequent performance came together, how the dominant signifiers came to be selected, what role was played by the written text in this process, and how the same text is able to tell such different stories and convey such different meanings in the theatre.” But rehearsal practices—like all methodologies and strategies—are not a unitary, concrete “thing.” As Kate Rossmanith puts it, “Rehearsals are a thick weave of diverse practices and discourses; rehearsals, by their very nature, are ‘murky.’” What we do know, though, is that a good deal of what looks like “editing” takes place throughout the process.

Erving Goffman once quipped that “All the world is not, of course, a stage, but the crucial ways in which it isn’t are not easy to specify.” A corollary proposition might be that witness preparation is not rehearsal, but the ways in which it isn’t are not easy to specify. Theatrical rehearsals often start with a read-through of a play around a table, where, according to playwright Raimondo Cortese, the actors and director make decisions about things like the “action” of the text and “characterization.” In a roughly analogous way, trial preparation (perhaps as early as the “investigation” stage of a case) may begin with a group meeting of all (or at least the key) witnesses. Former prosecutor Roberta Flowers notes that “this method is the surest way to avoid contradictions among the witnesses by assuring that each knows what the other witnesses remember.” There are of course ethical pitfalls in this approach, but it’s a common practice and one with great utility, given the need to create a chronology around which an advocate will build his or her trial “story”—a story that naturally will include only selected bits of the incidents and evidence.

There is general agreement that witness preparation serves three ends, which psychologist Marcus Boccaccini sums up as: educating witnesses, educating lawyers, and enhancing testimony delivery. In the run-up to trial, counsel meet with witnesses to review evidence and prior testimony, as well as to acquaint witnesses with the formalities and context of trial testimony. This gives counsel a fresh opportunity to evaluate the strength and necessity of particular testimony. But it also affords counsel the opportunity to work with witnesses on non-substantive aspects of their testimony like appearance, demeanor, and delivery—much as does a theatrical director when working with actors on more than their “lines.”

The aim of witness preparation—in accord with what Cortese observes in theatrical rehearsal—is to make witnesses’ testimony “sound and feel spontaneous, as though they are saying it for the first time … [and] to create a spontaneity that seeks the quality of improvisation or unpredictability to achieve realness as opposed to rehearsed repetition.” Of course, the need to look “unscripted” pertains mostly to direct examination: cross-examination is by nature somewhat unpredictable, though subject to its own brand of preparation (e.g., learning to resist the urge to fight back or otherwise lose composure in the face of aggressive questioning). And the danger of over-preparation lurks, as this example of “gun-jumping” from Bennett and Feldman’s classic trial study (quite possibly) reveals:

Defense:          Now, calling your attention to state’s exhibit nineteen, which is a hat, I am going to show you that hat, and ask you if you have ever seen that hat or a hat similar to it before.

Witness:          No. My boys would never wear . . .

Prosecution:    I will object to that Your Honor.

The Court:       Sustained.

Prosecution:    Her answer is not responsive. She is obviously answering some question from her own mind, not the question asked.

We should also note that preparation—especially with respect to a witness with whom an examining lawyer has no privileged relationship—can be used to subtly imply that the witness has been improperly “coached.” In the famous O.J. Simpson trial, F. Lee Bailey used this tactic to undermine the testimony of Detective Mark Fuhrman before going on to destroy his credibility later on (we’ll look more closely at that later on in this series):

Q: Detective Fuhrman, I would like to review with you the steps you have taken to prepare yourself for testimony in this case. When was the first time following the preliminary hearing that you met with one of the prosecutors, those at the table and those not at the table, that you know to be connected with this case, to discuss the case and/or your testimony?

A: Are you saying post-prelim, sir?

Q: Post-preliminary hearing.

A: Probably within the last month, month and a half.

In a later installment, we’ll turn to the subject of fact construction at trial and the underlying theory that jurors operate under the sway of psychological forces that evaluate the narrative plausibility of competing takes on a case. In theater studies, there’s a recognition, in accord with Bennett and Feldman, that “What occurs between people in ‘real’ life is a significant barometer by which we determine the plausibility, emotional veracity or even at times the quality of what we see before us as a constructed, enacted event.” Skilled trial lawyers know that, too, and accordingly prepare their witnesses to testify in ways that (1) will motivate jurors to attend to the substance of the evidence presented and (2) will lead jurors to find testimony credible, even when they do not fully grasp the substance. With respect to the latter point, Boccaccini’s research indicates that jurors read some facial expressions, body movements, and vocal cues as signs of, on the one hand, nervousness or deception or, on the other hand, competence or honesty. Trial preparation, as in Cortese’s theatrical rehearsal, should thus be rooted in the knowledge that “even the layperson is very good at working out when an actor is lying or not … The audience places their attention on those elements of the performance that they know are hard to fake, or cannot be ‘readily manipulated, thus enabling ourselves to judge the reliability of the more misrepresentable cues in the performance.’”

Trial testimony is not a soliloquy. It’s a dynamic, disjointed discourse spun among two lawyers (one helpful, one not) and a witness, perhaps punctuated here and there by judicial interventions. Lawyers know this and, accordingly, wise lawyers know that their witnesses are, as playwright David Mamet would have it, preparing for a scene not a lecture.

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.