LAW AND MAGIC
PERFORMANCE ON TRIAL
SMOKE AND MIRRORS
REVISITED
One of the most common universal metaphors
Opposing counsel attempt to fool the jury
Hide the real truth
Illusion is a subterfuge which obscures and distorts the truth
Reveal the “inept courtroom magician” for what he or she is
BEYOND SMOKE AND MIRROS:
Intent of magic:
Deception and Entertainment
vs
Intent of advocacy:
Persuasion
BEYOND SMOKE AND MIRROS:
OR ARE THEY SAME?
MAGIC IN THE
COURTROOM
Effective use of metaphor in Closing Argument
Actual use of magic in Closing
SHOWMANSHIP
Without commanding showmanship, mechanically proficient
magicians are just dull eccentrics who do strange things [and] without
a credible presence and an appealing focus, technically skilled lawyers
are often dreary robots who lose claims, defenses, guilt and innocence
in a welter of documents , confusion and yawns”
• Peter Baird, Corpus Juris Hocus Pocus (1979)
If the jury is bored…
CORE PRINCIPLES IN
MAGIC
Elevation of experience thru use of philosophical and
theatrical principles
Control what the audience perceives they are watching,
hearing and thinking
Master the ability to get, hold and DIRECT the attention of
an audience: FOCUS
MISDIRECTION IN MAGIC
Direct attention of the spectator to look where the magician
desires
Sleight or manipulation is taking place elsewhere
True magic occurs where the spectator does not suspect that
anything has occurred.
QUE E N’S COUNSE L WE IGHS IN:
JOLLY GOOD SHOW
SLEIGHT OF MIND
True magic, the sense of astonishment occurs and not in the hands
of the skilled manipulator but in the mind of the spectator
Great magician enters a conversation already taking place in a
spectators mind
MIND OF THE JUROR
Try cases not based on what you can prove
but what the jury is likely to believe.
Justice is rendered in the mind of the juror.
DIRECTING MENTAL
ATTENTION/FOCUS IN
COURTROOM Effective advocacy creates a desired effect
Lawyers can select from an arsenal of
techniques used by magicians
Theme is a technique most commonly used
to direct mental focus of jury
“HUM A FEW BARS”
Effective Trial Theme Defined:
“Give the jury a tune it can whistle after the show lets out”
• David S. Shrager, Introduction to Koskoff Essays on Advocacy
ARTHUR MILLER: ONE
SENTENCE
What's the play about?
• Not surface plot: Essence
Single Sentence
• Often 3 or 4 months
All dialog, every action, the sets ,
the props everything emanates
from that one sentence
CONSTRUCT OF
EFFECTIVE MAGIC
Manage expectations before the effect has begun,
Control visual, audible and thought process during the
performance
Mold your perception and recall of what you have seen after
the effect.
Urena Trial
BEGIN WITH THE END IN
MIND
Successful magicians reverse engineer a desired effect
The more clearly you define the end of the journey the easier it
will be to find the best way to get there
Methods reveal themselves, become self -evident.
REVERSE ENGINEER
THEME
Defense was that the General Contractor complied with OSHA
Heavy anti-plaintiff bias revealed in focus groups
Addressing “minimum standards” insufficient
Work backwards, Desired Effect at trial
Catastrophic injury juxtaposed against compliance with min.
standards
DYNAMICS OF FOCUS
Mental
Visual
Auditory
FOCUS
Magician who deftly controls the focus and thought process
of the spectator creates miracles that defy explanation
Lawyer that commands the jury’s attention and controls a
jury’s focus dominates the courtroom; highly effective advocacy
EYES
“If you want the audience [jury] to
look at you, look at them”
“If you want the them to look at
something look at it yourself ”
Timing: Allow time for focus/shift
• John Ramsay, Magician
CONTROL OF VISUAL
FOCUS
People only are able to focus on one thing at a time.
Source of Information : What you want them to look at
Center of Attention: What they want to look at
THE EYES HAVE IT
Lock, Stop and Pause
Credibility, Believability
and Likeability
Contact for 1 Complete Thought
Don’t be Creepy
ALL GREEK TO ME
The Magic of Advocacy
ARISTOTLE ON STAGE
Egos
Lothos
Pathos
INVENTIO
DISPOSTIO
ELOCUTIO
MEMORIA
PROUNUNTIATIO
INVENTIO
Methods of Persuasion
DISPOSITIO
Arrangment
Structuring a Coherent Argument
Building the Effect/Admission
ELOCUTIO
3 levels
Teaching, Persuading Entertaining.
MEMORIA
Arguing Impromptu
Calling upon knowledge from Within
PRONUNTIATIO
Delivery
Use of Voice, Gestures
OPENING, TRIAL AND
CLOSING
Controlling the expectations of the jury is
crucial to successful advocacy: Voir Dire and
Opening Statement
Controlling and crafting the direct testimony
Molding jury’s inferences and conclusions
CONSTRUCT OF MAGIC
Magician creates a suspension of disbelief and skews
objective reality
Effect can be defined as each audience member’s
recollection of what took place. Perception is reality.
Effect in magic is created by creating false assumptions
in a spectators mind and building on those assumptions
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