Preparation Essentials for Trying a Criminal Case

Neither opening statement nor closing argument can be done off-the-cuff. Doing so is like driving a car off of a cliff. Each requires detailed and careful preparation.

When I think of preparation, I draw inspiration from the world of acting. Many theatergoers have a sense that somewhere in the actor’s psyche lies the potential to forget himself when authentically getting into character. However, few people understand the work that goes into acting and what it means to convincingly portray another person onstage.

Fully inhabiting the mind, mannerisms, and reality of a fictional character is a challenge unlike any other. Below are the steps that I follow when preparing a case for trial along with a few tips that you can immediately put to use in preparing your next case for trial:

• Step 1: Begin by brainstorming.

–Creative thinking or brainstorming produces the ideas for opening statement and closing argument.

–Brainstorming is a spiraling process. It begins before the trial starts and continues throughout the trial to take advantage of new developments.

–Tip: Start backwards. Begin with your closing argument. Ask yourself the question: “What facts must I establish during the course of the trial — through oral testimony or through the introduction of physical evidence and/or exhibits — so that I can make the kinds of arguments that I need to make at closing to advance my defense?”

Brainstorming requires “free association,” which can be unnerving for those who are perfectionists and prefer structure. It’s like being afraid of heights but finding the courage to go skydiving or to bungie jump off of the steepest cliff.

In other words, you have to “let go” and give yourself permission to think outside of the box. There is no such thing as a “bad idea.”

Of course, this does not mean that every thought that slips out is going to be brilliant, much less that it will be a “keeper.” Like minnows swimming upstream, only a few ideas will survive. But the only way to realize these ideas is by allowing your imagination to run wild unencumbered by that pestilent filter that censors and self-edits your thoughts.

• Step 2: To type or not to type?

I am stubborn when it comes to typing up my opening statement and/or closing argument. To me, word processors of any variety — whether they be desktops, laptops, or tablets — have major shortcomings. Let me explain.

Cartoonist, Lynda Barry said, “In the digital age, don’t forget to use your digits!” While I love my laptop, I can’t help but think that it has robbed me of the feeling that I’m actually making things. Instead, I feel like I’m stuck in the body of a robot making “tap, tap, tap” and “click, click, click” sounds all day long.

The artist Stanley Donwood says that computers are dangerous because they put a sheet of glass between you and whatever you’re doing. “You never really get to touch anything that you’re doing unless you print it out,” Donwood says. Just watch someone at their computer. They’re stiff and rigid. You don’t need a scientific study to prove that sitting in front of a computer all day is suffocating you and your work.

We need to move, to feel like we’re making something with our bodies, not just our heads. I’ve learned through the frustrating process of trial and error that work that comes purely from the head isn’t good. Watch Andrea Bocelli sing, “The Prayer.” Watch Martin Luther King deliver the infamous, “I have a dream” speech. Both performers bring their bodies into their work.

It’s not only important but it is essential to bring your body into your work. Our bodies tell our brains more than what our brains tell our bodies. The body never lies. It always knows the truth of the moment because it does not rationalize. The brain is a tool of rationalization where thoughts are processed until the true meaning is rung out of them.

You’ve heard the phrase, “going through the motions?” That’s what’s inspiring about creative work: If we just start going through the motions, humming a song, drawing a picture, baking a cake, the motion triggers our brain into thinking.

The profound words of Edward Tufte resonate deeply with me, “I have stared long enough at the glowing flat rectangles of computer screens. Let us give more time for doing things in the real world … plant a plant, walk the dogs, read a real book, go to the opera.” Truer words have never been spoken.

The shortcomings of typing up your opening and closing can be summarized as follows:

(1) If you prepare your opening/closing on your MacBook at the expense of rehearsing it, then you risk losing the human connection that is essential to establishing trust and transparency with the jury. Studies show that the act of typing up a speech on a laptop and the act of delivering it are two radically different things. Those who prepare exclusively on a laptop are often perceived as being “distant” when they get up to deliver the speech. You don’t want to squander what is perhaps the most precious moments of the trial — the first few moments when you get up to address the jury directly.

(2) The spoken word is radically different than the written word. As Mark Twain once said, “It’s like the difference between the lightning bug and the lightning.” To borrow an analogy used by Gerry Spence, the written word is like a stuffed bear. It is very constricting. The spoken word, on the other hand, is like a real bear standing on its hind legs with razor-sharp teeth and foaming at the mouth. It’s alive!

The punctuation that is present in the text of a play is intended for the reader, not the actor. Words like “softly,” “angrily,” or “with effort” dictate a kind of life which can only be there spontaneously.

If you memorize your opening with punctuation, the jury will hear all of the periods, commas, and semi-colons and it will sound unnatural.

This is why when actors are given a script, they re-write it from beginning to end in their own hand crossing out stage directions and punctuation. Each line looks like a big run-on sentence but there is a method behind this madness. Nobody, not even the playwright, can determine how a life is going to live itself out sensitively, instinctively, on the stage.

It is for this reason that I suggest removing all punctuation from your opening and/or closing.

I do not mean to suggest that the keyboard has no place in the brainstorming process and that it should be avoided like the plague. What I am saying is that if you decide to use it, beware that it can be a curse just as much as it is a blessing, especially if it is used at the expense of rehearsing. There is no substitute for rehearsing.

• Step 3: Don’t rush. Rushing is the enemy of the moment. Things take the time they take. In acting, rushing is the enemy of the moment. Stated otherwise, if every moment is crucially important, then noneare important. Clarity is the single-most important thing that an actor owes the audience; otherwise you’ll lose the audience.
• Step 4: Rehearse using non-lawyers as your audience. This will also help you get comfortable in hearing the sound of your own voice.

–Rehearse your opening.

–Rehearse your direct examination.

–Rehearse your cross-examination.

–Rehearse your closing.

A plaguing question for the trial lawyer is: “How will my opening sound spontaneous if I’ve rehearsed it countless times?” Actors have a similar problem. As the actor, they know what’s coming next because they’ve memorized the script and rehearsed the scene hundreds if not thousands of times. But as the character, they don’t have the foggiest idea. So how does the actor behave? He behaves as if it’s happening for the first time. This way the words flow off of the tongue without sounding rehearsed.

You may think that the same play with the same cast is performed the same way every night of the week but nothing could be farther from the truth. An actor might blush in a scene on Tuesday night causing his scene partner to respond more playfully and with more glee than he did the night before. Despite being subtle, this change can drastically alter the course of a scene even though the lines are verbatim and haven’t changed.

Do not memorize your opening and closing in a pre-set fashion. One of the biggest “no-no’s” for actors is to practice the way that they are going to deliver their lines. Murphy’s law says that lines will be delivered in the live performance the same way that they are rehearsed. Nothing makes an audience wince more than the actor who does this. It prevents the actor from being open to any influence that comes to him from his scene partner in the real performance. Line readings, as they are called, are a predetermined response to something that hasn’t happened yet and are the antithesis of organic, spontaneous behavior.

What does it mean to “work off of your scene partner?” Have you ever been to a play where the actor was so alone with himself that he might as well have been in a different play altogether? For example, he was so oblivious to what was going on around him that his scene partner could have had an epileptic seizure and given birth without so much as causing him to clear his throat? Had the actor been listening, he would have responded — through tone, voice inflection and behavior — to the pinches that washed over him during that moment.

Such actors might just as well be in an “isolation chamber” because they are like puppets who deliver their lines the same way night in and night out irrespective of their scene partner’s behavior.

Not working off of your scene partner is a common pitfall that even the most experienced actors fall into. As actors we are taught that you cannot be alone with your tears.

A provocative question that every trial lawyer must ask themselves at some time or another is, “If the jury weren’t here, would I have delivered my opening and/or closing any differently than I rehearsed it?”

Here is a quick and dirty example. Suppose your line is, “I hate you.” You memorized this line by putting special emphasis on the word, “hate” and hitting it so hard that the word is full of scorn. In the moments before your line, your scene partner’s behavior turns flirtatious, with hints of seduction. She is as transparent as glass.

When it’s your turn to speak, you assault your scene partner with the line the way you rehearsed it irrespective of your scene partner’s flirtatious behavior. The audience will instantly observe the contradiction. Your tone and voice inflection was out of adjustment to your scene partner’s behavior in that moment.

The moral of the story is this: “Listen to what your partner means, not just to what they say.”

As humans, we’re always being affected by other people. The same is true when we’re in front of a jury. Even though they can’t speak back to us verbally, their body language is always communicating something.

For example, you might pause, allowing the jury to respond through facial expressions and body language. A smile from one of the jurors might cause you to smile back or well up with pride.

Allow yourself to experience that! When you’re alive in what you receive, you’re alive in how you respond. The attorney who is emotionally available and allows himself to be affected by the jury builds a bridge of contact with the jury. When there is genuine contact between the attorney and the jurors, the relationship between the two lives.

In order to become more spontaneous in front of the jury, shut off that part of your brain that is anticipating your next move. Learn to let go and live moment to unanticipated moment!

Here are some additional tips for building a bridge of contact with the jury:

1. The more natural and conversational you are the better.
2. Speak from the heart.
3. Make the jury your entire focus.
4. You have to get up there with the intention of making contact. It’s a two-way street. Metaphorically speaking, you’re building a bridge of contact with the jury by really listening and really seeing. When there is genuine contact that comes from really listening and really seeing, whatever is going on in Person A shows up somehow in Person B. In other words, something about Person A is going to change Person B.
5. I liken the jury to an electric current that you, as the attorney are wired to. What comes out of them comes off of you and what comes out of you comes off of them. You and the jury are constantly affecting each other. It’s as if you’re tied together at the hip.
6. Memorize your opening and closing in a neutral way just like you memorized your “ABCs” when you were in elementary school. In other words, without any meaning. Memorize the text in a neutral yet in a relaxed way. This will allow you to be open to any influence that comes to you and avoids calculated results. Remember: Neutral and relaxed — not firm and tense.
7. Learning the text this way deprives actors of any preconceived emotional associations, so that once the text is learned this way, the emotion will come out of what the actor is getting from his partner. The same holds true for lawyers.
8. This requires an enormous amount of restraint because we all memorize by using an emotion to give the words some sort of significance so that we can remember them.
9. Your opening and closing must be memorized so well that you could recite them cold if awakened out of a sound sleep.

• Step 5: Simplicity is essential!

When it comes to emotional preparation, it cannot be “sorta,” “kinda,” or “just.” This is too vague. Emotions are specific and meaningful: joy, sadness, happiness. Emotion does you. You don’t do it.

For example, when I read a script I don’t try to do anything. I let the writer’s words hit me in the gut, not my head. By leaving myself alone the writer’s words begin to stimulate my subconscious responses. The development of your instincts is key to creating a character. As I read a script, tears might well up in my eyes. My shoulders might hunch over and my arms might fold over my chest in a self-comforting gesture.

Simplicity is essential. The more complicated it is, the harder it is to get involved emotionally. “All I have to say to myself is ‘Hitler’ and something is there.” Think, “less is more.”

No one speaks in more powerful terms about preparation than the great, Sanford Meisner. Below are some quotes that cause a stirring in me from “Meisner on Acting”:

“I think one of the problems that you all have with preparation is that  you try to make it too big. It isn’t enough to be in good spirits; you have to be hysterical with pleasure. That’s  too much.”

“… [I]f you feel you have to have ten thousand pounds’ worth of good spirits, then you get in trouble.”

If an actor “… attempt[s] a herculean preparation to work himself up into the lowest depths of misery, the audience [will] be as old as I am by the time he finally [makes] his entrance.”

• Step 6: Why do we hate to rehearse?

There’s a certain element about rehearsing that makes you aware of yourself. But the moment you stand up in front of the jury and focus your attention on them, your self-consciousness will erode.

• Step 7: Inspiration for rehearsing.

I’m always amazed at how lawyers seem to be more willing to take the risk of trying something out for the first time at trial rather than taking the time to try it out during a rehearsal in front of colleagues or family.

Rehearsing allows you to try out new things in the safety and comfort of your own home. It is low stakes. No one is going to jail if you fall flat on your face or go down in flames. This gives you creative license to put yourself in uncomfortable and awkward situations. The more bold you are in taking risks, the more prepared you will be to deal with the unexpected things that inevitably come up during the course of a trial.

Step outside of your comfort zone no matter how uncomfortable it might be. Increase your tolerance for things that are uncomfortable.

For inspiration, I turn to the world of acting. Public solitude is a critical part of an actor’s toolbox. Actors are asked the provocative question, “Can you be as private in public as you are in private?” For example, when I’m alone in my bedroom standing in front of the mirror combing my hair, the relaxation and completeness with which I do it is poetic. Can this relaxation and completeness be mimicked on stage? This is what I personally strive for.

• Step 8: Get permission before going for the kill.

When you’ve got the witness “on the ropes”and you are foaming at the mouth to unleash the final blow, wait until the jury gives you permission. If you strike too soon, the jurors will identify more with the witness than with you.

Until they share your sense of outrage at the witness’s deception, an overt attack can cause the jury to come to the witness’s rescue and to instinctively protect him like a Mother Bear protecting her cub.

The great Deryl Dantzler, former dean of the National Criminal Defense College takes us on a ride back in time to Roman civilization to emphasize this point:

“If you can visualize the courtroom as the Roman Coliseum and the jury as Caesar, withhold the fatal thrust until you perceive the down-turned thumb. Then have at it. It’s one of those little moments that makes life worth living.”

• Step 9: Not with a bang but with a whimper.

Never forget that your goal is to persuade the jury, not the witness. One of the biggest traps attorneys fall into is trying to convince the witness that he is wrong. These attorneys are looking to capture a “Perry Mason” moment that influences the outcome of the trial in one fell swoop (e.g., where the victim unexpectedly blurts out, “Oh my God! I made a terrible mistake. Your client wasn’t the man who robbed me!”).

These moments are few and far between. Instead, focus on putting dents in the witness’s armor, one at a time. At the conclusion of your cross-examination, you might be surprised to find that the aggregate number of dents did just as much damage to the witness’s reputation as the unexpected bombshell that goes off during a “Perry Mason” moment.

As Pozner and Dodd so eloquently state, “the credibility of witnesses and cases bleed to death from a thousand little pin-pricks.”

• Step 10: Don’t cling to your homework and don’t cling to your choices.

I learned as an actor the importance of homework/preparation i.e., relationships, beats, objectives, parallels, stakes/urgency, motives, emotional prep, et al. However, my acting instructor told me that, “Once you’ve done it you have to throw it away or it will weigh you down. Casting directors want to see your instinctive, impulsive responses.”

This requires trust. Trust enables you to let go of your homework and give up control. Essentially, you do all of the necessary prep and then trust that it will be there when you stand up in front of the jury to deliver your opening statement.

I couldn’t agree more. As crazy as this might sound, I think that there is something to be said about walking into court and “throwing away” any pre-conceived idea of how you want something to go.

In an interview with James Altucher, Nancy Cartwright, perhaps the most unknown famous person (she is the voice of Bart Simpson) said it best:

“As an artist, you have to do the work and then throw it away. And then you have to go in and be there in present time. Trust that what you have done is going to serve you best. I auditioned for the role of ‘Lisa’ in ‘The Simpsons.’ When I arrived at the audition, two readings were sitting next to each other. The one for Lisa said ‘eight year-old child.’ The one for Bart said, ‘Ten year-old school-hating underachiever and proud of it.’ I was like, ‘Bam, bam, that’s it.’ That was my trusting my instincts. I believe that trusting your instincts is true for all of us.”

At the end of the day, your homework is there to provide you with the runway that allows you to take flight.

• Step 11: Always be truthful.

When you are truthful, the jury will look to you for resolving “close calls.” This is why it is critical to concede weaknesses in your case at the very outset no matter how damaging. As the great Gerry Spence says, “A concession coming from your mouth is not nearly as damaging as an exposure coming from your opponent’s.” Your candor and openness will earn you a sacred trust — the trust of the jury.

• Step 12: Be Emotionally Full.

Sanford Meisner said, “The quality of your acting depends upon how fully you do what you do.”

What does it mean to go “full” with your choices? Your ability to react without “pushing” or “indicating” is at the core of working “full.” Because emotional fullness is one of the most advanced stages of the Meisner technique, it is reserved for the second-year of training. I find it easier to understand emotional fullness by contrasting it with “pushing.”

“Pushing” is the result of not trusting your truthful responses. Going “full” is the result of being “pinched” and “knowing” how deeply you are affected by the “pinch.” This is why actors start by learning to “listen” and “work off” of the other person.

When I speak of “pinch,” I am doing so literally. If someone “pinches” you and you really feel it, you say “ouch.” If you don’t feel the “pinch” in your gut you have no reason to say “ouch.” Your emotional reaction is the result of the “pinch.” Not a product of thought. This might sound trite, but it makes an important point: When you react to the “pinch” you are doing so spontaneously, which means you are creating in the moment.

When was the last time you had an emotional jolt that filled you to the brim? This is one example of being “full.” Three actors that epitomize what it means to be emotionally full on camera are Morgan Freeman in “The Shawshank Redemption,” Robin Williams in “Good Will Hunting,” and Daniel Day-Lewis in “Lincoln.”

To act “fully” you must experience life completely. Every day presents opportunities to learn something about yourself in relation to others. Don’t take take these opportunities for granted. Observe without judgment. Look at people with your objective eye. Let your guard down. Get in touch with your feelings. Don’t shy away or repress them.

In the course of a day we experience a variety of emotions. Not always in the extreme. Some are subtle, simmering quietly beneath the surface. Our emotional responses are instinctive. We react in the moment without thought. This is precisely what you must learn to do in order to react to the “pinch.”

Through experience, I have found that when you are not as “full” as you want to be you must “do” what you are doing as truthfully as you can. It helps if you are grounded in truthful behavior in your daily life. Indeed, having a strong sense of the truth is a great place to start.

When you are emotionally full, you can take comfort in knowing that you are working from a place where “less is more,” a minimalist approach to art that emphasizes simplicity over complexity and which every actor yearns for. When we focus on doing less, we’re less scattered. Director Don Siegel said, “You can do as little as you like as long as you are emotionally full.”

This does not mean that you can’t bring your fire. All it means is that you don’t have to blow the lid off of the can. In other words, don’t overdo it. As my acting instructor says, “The fish is salty enough.”

Conclusion

As we adapt the Meisner technique for the courtroom, a challenging question remains: “Good acting comes from the heart and there is no mentality in it. How can we as lawyers draw ourselves out of our heads enough to connect emotionally with our inner self, while staying alert enough to return to our head on a dime’s notice in order to respond to objections, evidentiary problems, and case strategy points?”