“The fourth wall” is an expression evolving from the world of theater. In most modern theater design, a room will consist of three physical walls, as well as an imaginary fourth that serves to separate the world of the characters from that of the audience. Speaking directly to, otherwise acknowledging or doing something to the audience through this imaginary wall is known as “breaking the fourth wall.”
What can “breaking the fourth wall” teach us about connecting with the jury? As I was sitting in acting class one evening, a thought occurred to me. What if we were to view the jury as participants in the trial as opposed to mere spectators sitting high up in the raptors looking on at a distance?
In other words, what if we were to draw the jury into sharing the re-constructed reality of past events, so that they could “see” what happened, even though they were not actually present to witness the original event?
The inspiration for this unconventional way of looking at the jury comes from the world of acting. Let me explain.
As actors, we must be creative all the time. After all, our job is to make art. Our art is a living thing and it is bound up with truth and reality and humanity, and the theater. The theater is full of hope, full of artistic illusions, full of imagination, and people. We can encourage the audience to use their imaginations and they can become a creative presence there along with us.
But it is far better when everyone is active and alive in the imaginary world. Why? Because the exchange between the actors and the audience is shared; not just a one-sided assault from the stage.
By making the jury part of this re-constructed reality, the trial will come alive to them in ways that you may have never dreamed possible. For starters, the jury will become more engaged and better equipped to filter out information that doesn’t ring true to them, while embracing the information that does. If successful, the jury will feel like they have “seen” the events in question unfold right before their eyes, even though those events were re-constructed through testimony, not actually present in the courtroom.
How can we draw the jury into a reconstructed reality of past events? By allowing them to make “discoveries.” Discoveries are far more powerful than any amount of coaxing or cajoling. A persuasive argument may make the jurors say “okay” or “you win,” but a discovery makes them say, “Of course,” or better yet, “I knew it.”
What follows is an example that demonstrates the power of discovery. It comes from Frank Sesno’s runaway bestseller, “Ask More: The Power of Questions to Open Doors, Uncover Solutions, and Spark Change.”
Frank Sesno interviewed Edward Allen Bernero, an American television writer, producer, and director. Mr. Bernero co-created the series Third Watch and has worked as an executive producer on Criminal Minds.
Mr. Bernero shared a story with Mr. Sesno about how he gets powerful performances out of his actors, which had a deep impact on me. It’s about conferring authorship in a creative decision.
Mr. Bernero was directing a scene where a male actor was playing the detective and a female actor was playing the suspect in a cop show. The scene was being shot outside and it was bright. The detective was wearing his sunglasses. There is a moment in the scene where the detective has to take his sunglasses off and stare straight into the eyes of the female-suspect.
The male actor couldn’t get the timing for removing his sunglasses right. He kept taking the glasses off at the most awkward moments. Mr. Bernero finally yelled, “Cut!” One thing you should know about actors is that we see ourselves as artists. We view acting as a craft. Craft, in this context, means conditioned habits that free us to make vivid and meaningful choices when preparing for a role. One of the most insulting and demeaning things for an actor is to be treated like a puppet on a string.
Mr. Bernero walked up to the male actor and said, “Look. When you take those glasses off that’s the first moment we’re going to see you make eye contact with that other person. That’s when we capture that human dynamic. When do you think you should take the sunglasses off?”
They went back and re-shot the scene, nailing it the first time.
Mr. Bernero does this very deliberately. In doing this, he is acknowledging the other person’s sense of art and intelligence. He’s saying, “I trust you” and challenging the actor to think it through on his own.
He offers the question and then allows the other person to think and speak. This is how questions can be used to get people to think, to process, and to project themselves in a different way.
Use of discoveries are just as powerful in a courtroom as they are in real life. Picture a trial about a traffic accident at an intersection. The plaintiff testifies that the defendant ran a red light and hit him in the crosswalk. The cross-examining defense attorney can adopt one of two tactics. First, she can try and get the plaintiff to admit that the light was green and that he should have waited until the light turned red before crossing the intersection.
This tactic will quickly turn argumentative with the defense attorney insisting, “The light was green, correct?” and the plaintiff flatly denying it with a chorus of, “No. It was red.” On the other hand, if the cross-examining defense attorney points out that the plaintiff previously brought four similar lawsuits, she is essentially applying the principle of discovery.
In that case, the discovery is as clear as day: “Yes, of course you claim that the light was red, and that is to be expected, because you always say that when you want money.”
Applying the principle of discovery packs a one-two punch: it allows the jury to resolve the inconsistent statement while remaining true to the story, effectively turning the plaintiff into an unwitting ally.
It would be disingenuous of me to introduce this idea of “discovery” without adding a caveat. Allowing the jury to enter the re-constructed reality and to make discoveries on their own may be unsettling at first. And for good reason: lawyers like to be in control.
I realize that handing over the reigns to a jury during a trial can be down-right frightening. If you’re a worry-wart like me, it might even be akin to riding the tallest and fastest roller coaster at Great Adventure backwards. While I am as risk-averse as any litigator, I often find comfort in viewing this from the perspective that you’re allowing the jury to form their own conclusions but you’re also gently steering them in a way where they’re going to reach your desired conclusion. This may help to restore your role as “captain of the ship.”
As inspiration, I’ll leave you with an excerpt from the poem, “Do Not Go Gentle Into That Good Night” by Dylan Thomas:
“Do not go gentle into that good
Rage, rage against the dying of the light.”