Albert Sonntag’s Legal Blog

The trial as drama

Prospective jurors usually come to court with a mind-set determined by criminal cases.  Who is the hero and who is the victim?  Which side represents whom?  And their job is therefore regarded as consequently simple:  finding in favor of the victim or hero and against the villain.  They are not impressed with alternative arguments.  Accordingly, the lawyer is left with little option but to develop a theme of the case that includes identifiable heroes and villains.

This occurrence has been previously investigated and discussed in various publications.  William Hangley, for example, wrote and article in the Fall 1998 issue of Litigation, wherein he describes the trial as a dramatic production and a morality play.  According to Hangley, even before any of the witnesses is called in to testify, the lawyer has functioned as a producer, director and stage manager of this production.  Hangley, ‘Direct and the Director: Writing, Staging, and Telling the Story,’ 25 Litigation, 20 (Fall 1998).

 The object of the trial attorney is to attempt to distill an entire story into a series of statements which are delivered to the jury at the commencement and at the end of the trial, as well as staging the performance of the witnesses to corroborate the statements.  This narrative must be so designed as to seduce the jurors into accepting the attorney’s version of the story, as there will be a competing narrative, presented by the other side.  The narrative must have a hero and a villain, and the audience, in this case the juror, must learn what happened to them and in short order proceed to praise the hero and vilify the villain.

Even the most complicated drama can be described by a short plot summary, which is typically just a few lines long.  This is the purpose of the opening statement, at which time the attorney will also provide the jurors with a dramatis personae, a listing of the main characters in the play, and a preview of the evidence that will be presented to them.  The plot summary will tell the jurors what the story is about, as well as introduce the heroes, the victims and the villains of the piece.

 This summary can typically be given in a very few declarative sentences.  For example, the following is such a summary of King Lear:  A tragedy by William Shakespeare about an aging man who places all his power and trust on two of his daughters, while banishing the third, and is cast out and humiliated by them, requiring to seek the protection and help of the banished child.

 The very short summary identifies the victim (Lear), identifies the villains (the two elder daughters), and the heroine (the banished Cordelia), and explains the plot (an old man who became old before he was wise) in a simple and straightforward manner.

 The simple theme of a civil wrongful death case, for example, would be as follows:  The plaintiff and his family were riding back home from Mexico when the blow-up of a defective tire caused their poorly designed and hazardous sports utility vehicle to roll-over and kill the driver as its roof caved in.  This theme identifies the victim (the driver) and the villain (the manufacturer of the vehicle and of the tire).  The jury does not hear of inconsistent defenses and legal terminology.

 Virtually every case worth trying, no matter how complex, has facts that allow each side to present itself as the hero and the victim of the other side’s misconduct.

A good theme should, therefore:

- Have both a hero and a villain, with the client the hero and the adversary the villain.

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 -  Describe a single outcome and a single cause.

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 -  Avoid alternative theories or explanations.

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 -  Seek to establish a thematic scheme of attack, not just to avoid the claims of the opponent.

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 -  Be a framework for viewing all of the evidence, no matter how complex.

    Smith & Garg’s effective and well-trained litigators will serve to prepare your case for trial in the most effective and aggressive way possible, based on many years of experience in the courtroom.