Picture this. A group of thirty trial lawyers in a room singing, “Big Booty, Big Booty, Big Booty, Oh Yeah!”
Now imagine them in a single line, like “The Rockettes,” balancing on their left legs while rotating their right legs clockwise and attempting to draw the number six backwards on their left palms with their right index finger.
How about one of them uttering the words, “Bunny, Bunny … Bunny, Bunny” while pointing towards their eyes with their right and left index fingers as everyone else in the circle pats their thighs to the beat of, “Ch – oo – mba, ch – oo – mba!”
How about one lawyer standing in the middle of the circle and belting out the notes to Aretha Franklin’s hit single, “I Will Survive,” while the rest of the group sings along?
Why on earth would a group of professionals engage in such juvenile behavior?
The answer might surprise you. They did it to catapult their law practices to the next level; to recognize and rethink old habits; to break through self-imposed barriers; and ultimately to achieve success.
Lawyers can learn a lot from improvisation – much more than just thinking fast on their feet, being in the moment, and being spontaneous. There are certain aspects of improvisation that are strikingly similar to trying a case. In both disciplines, the key concept is the creation of a “new, temporary reality.”[i]
Because props and costumes are off limits in improvisation, actors must “draw the audience into sharing the constructed reality of the stage.”[ii] Then, and only then, will the audience be able to “’see’ the objects and characters portrayed.”[iii]
In trial, the lawyer “must draw the jury into sharing the re-constructed reality of past events – [which are often times tragic] – so that they ‘see’ what happened,” even though they weren’t there to witness the original events.[iv] Using well-established principles, performers “create and maintain a constructed reality in which the audience participates.”[v] And these principles are as important to improvisers as the scientific method is to scientists.
- Improv and Storytelling
At its most primitive level, improvisation “is a deliberate form of storytelling.”[vi] As many a trial lawyer knows, if he is to have any success in the courtroom, storytelling is not an option.[vii]Why? Because “jurors bring their own frames of reference to the courtroom, and will fit new information into a storyline no matter what the lawyers do.”[viii]
It is a mistake to think that when deliberating, jurors attempt to deconstruct the jury instructions like a scribe deciphering the “Dead Sea Scrolls.” Nor does the jury use the precise linear through of a prodding mind to apply facts to law to determine if the government has satisfied its burden of proof.
Instead, jurors instinctively begin to imagine a story right out of the gate – from the very moment the attorneys deliver their opening statements. In doing so, they “interpret subsequent facts to fit into a familiar framework.”[ix]
In order for a trial lawyer to harness the power of storytelling in the courtroom, he must be able to “address disparate jurors, with their own experiences and frames of reference, and create a story that will [convey] a single perspective to the entire jury…”[x] In other words, the trial lawyer must be able to “connect” with the jury and to relate to them on a personal level. Study after study has shown that when our experiences match those of another person, it is easier for us to understand and to predict the person – in other words, to relate to them. For example, the working man understands another working man better than the scholar understands the working man.
If the trial lawyer’s story “rings true to the jurors” and touches them in those soft, unprotected places where their decisions are always made, they will not feel as though they have been beaten into submission by a snake oil salesman.[xi] Far from being “convinced or persuaded,”“they will feel as if something has been revealed to them.”[xii]
The difference between persuasion and revelation both in the courtroom and on stage is as stark as the difference between lightning and the lightning bug. “A persuasive argument may make the jurors say ‘Okay, you win.’A powerful story, on the other hand, makes them say ‘Of course,’ or better yet, ‘I knew it!’”[xiii]
The combination of evidence and story line leads to what Del Close calls, “[t]errific connections made intellectually, or terrific revelations made emotionally, which lead the audience to the desired conclusion.”[xiv]And this leads to an important point: “trial lawyers seek the same type of revelation that Del Close advances as the goal of improvisation.”[xv]
When trial lawyers present their case to a jury and improvisers perform a scene, the goal is the same: “to bring the jury (or audience) into a group frame of reference that matches the lawyer’s story.”[xvi]If the trial lawyer is successful, “the jury will feel like they have ‘seen’ the events [unfold] at the trial, even though those events were re-constructed through testimony, not actually present in the courtroom.”[xvii]
Below is an example from a real life improvisational show at IO Theater in Chicago.[xviii]
“Early in the show, a character named ‘Gary’ told his friend that he had dropped an antique vase. Gary was established as an unlucky klutz, but the scene went on from there, having very little to do with the vase.
Forty minutes later in the show, a seemingly unrelated scene was happening in an apartment. In that scene, an earthquake started, and the characters inside the apartment reacted. Just then, ‘Gary’ made an entrance, as if he were walking past the apartment building. He was carrying something in both hands. The earthquake [caused him to trip], and he dropped whatever he was holding and [began cursing and hollering]. Then he continued across the stage without saying anything else.
In that moment, the audience recognized the character. They realized, even though no performers said anything about it, that they had just witnessed the moment when Gary dropped his antique vase. The entire audience laughed and applauded.
Why? Because they recognized for themselves an element of the performers’ constructed reality.Through an intellectual connection to the earlier scene, they recognized ‘Gary’ and figured out what he must have dropped, even though no one in the earthquake scene named him or said the word ‘vase.’
The audience realized that they now understood why he dropped the vase –because of the earthquake. Because the performers allowed the audience to make the connection, the event itself was enough to get a huge reaction. No clever jokes or silliness required. When the audience, by itself, identifies what must have happened with intuitive certainty, the desired effect – in this case gales of laughter – is sure to follow.
Of course, it only works when the audience has become part of the constructed reality. If instead they perceive the performers as pretending or inventing, they will not enjoy the same moment of recognition or revelation.”[xix]
There is yet another lesson to be learned from this example. Once a member of the audience has “embraced the constructed reality, the events presented on stage will always be filtered through that reality.”[xx]
For example, suppose that after the vase broke, another character came out and delivered a monologue about how Gary’s vase broke when a car ran him over. What reaction will the audience have? They will undoubtedly experience this story as one of three things: “a lie, a joke, or a mistake.”[xxi]
This is because “they saw the vase break, and they knew – with [absolute] certainty – that it was the result of an earthquake, not a [car] accident.”[xxii]Though improvisers are free to create whatever reality they desire, “they are always stuck with whatever they create.”[xxiii] To use a rather graphic example, once an improviser takes a “s_ _t,” he must walk in it forthe rest of the show, no matter how sloppy it might be.
Because the facts in a trialmight be beyond dispute – with the only issue being whether the defendant’s defense (for example, a claim of self-defense) was justified under the circumstances – we can begin to see how the rules in improvapply to trials.
- “Yes And”
“Yes And” are the golden rules of improvisation.[xxiv] They are both of “equal importance.”[xxv] “Yes means that an improviser confirms her scene partner’s discoveries. And means that an improviser adds to her scene partner’s discoveries.”[xxvi]
The best ‘And’ is a “discovery that flows [organically] out of the other performer’s offering, while supplying another aspect of the constructed reality.”[xxvii] For example, one improviser might say, “I hate these huge new home-improvement stores.”[xxviii] A second improviser might then say, “Honestly! This place carries fifteen different brands of shovels, but they couldn’t make a decent [latte] if their life depended on it.”[xxix]
In other words, “Yes, huge home-improvement stores are bad, And one reason is that they are too ambitious. The second performer has made the choice to agree and add something.”[xxx]
- “Yes And” for Trials
At first blush, “Yes And” may seem impractical for trial lawyers. After all, a trial is adversarial in nature, so lawyers instinctively react to their adversaries by saying, “No But.” However, there is a more sophisticated “Yes And” technique that is custom-tailored for trial work: “improvisers often agree by disagreeing.”[xxxi]
In long form improv, the principle of “Yes And” does not mean that a performer must “roll over” like a Labrador retriever for a “tummy rub”and accept every detail offered by her scene partner. Instead, “improvisers agree to the broader constructed reality, not to the subjective viewpoint of each character.”[xxxii]
Consider the following example, which contains a twist on the earlier example about the home-improvement store. Take the same first line: “I hate these huge new home-improvement stores.”[xxxiii] The second improviser could respond, “Honey, if you truly love me, you would give me five more minutes with these glorious [drill bits].”[xxxiv]
Although each character“disagree[s] on the merits of the store, they agree that they are present in the same store, in the same constructed reality. They just have different viewpoints.”[xxxv]Moreover, the “And” of this response is a gift box waiting to be unwrapped “because it answers [two pivotal questions] inherent in the first performer’s line:”[xxxvi]
- “Why is the first performer talking about home-improvement stores? Because she is in one.”[xxxvii]
- “Why would she hang out in a store she hates? Because she loves someone who loves the store.”[xxxviii]
The disagreement is encapsulated in a “broader framework of agreement, and the constructed reality is firmly intact.”[xxxix]
Now the application of “Yes And” to trials becomes clearer. Flat denials (“No But”) of the other side’s evidence is like the phrase that sounds like the two trumpet notes, “Wha wha,” when a bad joke is told or something cheesy happens. It cannot hold a candle to “saying ‘Yes’ and providing an ‘And’ that either fits your own story or shows why the witness would testify that way.”[xl]
Consider the following example. Jake is charged with distribution of a controlled dangerous substance. The prosecution’s chief witness is Meghan Connolly, who claims to be Jake’s partner in the drug trade. When first arrested, Meghan denies knowing Jake, much less being his partner in crime. She explains on direct examination that she lied to the police the first time “to keep from going to jail.” She is a single mother of two daughters, ages five and three.
The penalty for selling drugs is twenty years. Ms. Connolly enters into an agreement to testify against Jake in exchange for the prosecutor’s recommendation to dismiss her drug distribution charge and to charge her with possession of a controlled dangerous substance only. In addition, the prosecutor has agreed to recommend probation. Meghan was convicted of possession of a controlled dangerous substance eight years ago and was sentenced to three years in prison.
Applying the principle of “Yes And” reveals a fundamental misunderstanding in how we have been taught to treat such witnesses. We have been taught to treat the loathsome “snitch” as an enemy combatant who must be destroyed. As such, we adopt a scorch and burn strategy, attacking early and often.
What if, instead of attempting to discredit Meghan through a hostile cross-examination, we were to treat her as a human being whose motivation is to be revealed? Before sabotaging this idea as “stupid” and “foolish,” I’d ask you to suspend disbelief just for a minute.
In preparing to cross-examine Ms. Connolly, reversing roles with her will allow Jake’s attorney to experience what it might feel like to be a young mother facing prison. Armed with that knowledge, the cross-examining attorney can craft questions that will draw out Ms. Connolly’s true motive: a terrified mother of two toddlers who had the “choice” of testifying or going to prison, with the latter resulting in her being separated from them during the most formidable years of their lives.
When viewed in this light, Ms. Connolly didn’t really have any choice at all.
While this might appear to be a “soft cross,” it accomplishes the goal of discrediting Meghan to a greater extent than the typical pillage and plunder cross-examination. The jurors can empathize with Meghan while concluding that she cannot be believed. Simply put, she has too much to lose to be credible.
In a sense, the cross-examiner is saying, “Yes, of course you claim to be Jake’s partner in a drug enterprise, and that is to be expected, because you would do anything to avoid going to prison.” A cagey cross-examiner would not flatly contradict Ms. Connolly, but instead expose additional details that explain her testimony within the context of a larger story.
Just as improvisers “cannot go ‘to the facts’ to settle a disagreement, trial lawyers cannot take the jury to the actual events to settle inconsistencies in testimony. ‘No But’ denials, therefore, [are very likely to destroy a jury’s shared frame of reference] weakening or destroying group consciousness …”[xli]
In contrast, “Yes And” allows the jury to resolve the inconsistent testimony in a way that is consistent with the overall theme of the case, effectively turning a “snitch” or other hostile witness into an unknowing ally.
Juries, of course,will not reward the trial attorney for fulfilling the promise of presenting consistent details and making emotional and intellectual connections with a thunderous applause as would an audience at an improv show. Instead, the trial attorney’s reward comes when the jury, while maintaining proper courtroom decorum, exclaims to themselves, “Of course! That is so true.”[xlii] And when that happens, a favorable verdict is but a heartbeat away.[xliii]
In addition, improv:
- Enhances “active” listening;
- Improves communication and creative problem-solving skills;
- Helps lawyers to quickly adapt and adjust to as unpredictable and unstable an environment as the courtroom (query, “How many times have you walked into court and things went exactly the way you had planned?”);
- Helps to overcome fear and stumbling blocks;
- Helps to “get out of your head”;
- Increases authenticity by making the lawyer more comfortable in “[his] own skin”;
- Nurtures innovation;
- Reduces negativity; and
- Increases cooperation.
Not bad for a seemingly silly endeavor. So perhaps the next time you’re in a trial, instead of saying ‘No, but …’ you might try saying ‘Yes, and …’ instead and see where that takes you.
[i] In Facetiis Verititas: How Improvisational Comedy Can Help Trial Lawyers Get Some Chops, Steven Lubet and Thomas Hankinson, http://law.bepress.com/cgi/viewcontent.cgi?article=6606&context=expresso, p. 3.
[ii] Id., supra, Note (i).
[vi]Id., supra, at p. 7.
[viii]Id., supra, at p. 7-8.
[ix]Id., supra, at p. 8.
[xiv] Truth in Comedy, Del Close, p. 25.
[xv] In FacetiisVerititas: How Improvisational Comedy Can Help Trial Lawyers Get Some Chops, Steven Lubet and Thomas Hankinson, http://law.bepress.com/cgi/viewcontent.cgi?article=6606&context=expresso, p. 8.
[xvi]Id., supra, p. 9.
[xviii]Id., supra, p. 6-7.
[xx]Id., supra, at p. 7.
[xxiv]Id., supra, at p. 12.
[xxxi]Id., supra, at p. 13.
[xxxv]Id., supra, at p. 14.
[xl]Id., supra, at p. 16.
[xlii]Id, supra, at p. 20.