A Lawyer Prepares

• Neither opening statement nor closing argument can be done off-the-cuff. Each is a performance. As such, they require detailed and careful preparation.

An Actor Prepares

• 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.

An Actor Prepares

• Fully inhabiting the mind, mannerisms, and reality of a fictional character is no small feat.

A Lawyer Prepares

• Step 1: Begin by brainstorming–Creative thinking or brainstorming produces

the ideas for opening statement and closing argument.– This is a spiraling process. It begins before

the trial starts and continues throughout the trial to take advantage of new developments.

How I Prepare

• 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 – in order to make the kinds of arguments that I need to make at closing to advance my defense and to get an acquittal?”

How I Prepare• Brainstorming requires a lot of “free association,” which can be

torturous for those who are perfectionists and prefer structure. It's like being afraid of heights but finding the courage 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 comes out of the deepest recesses of your mind is going to be brilliant, much less that it will be a “keeper.” Like minnows swimming upstream, only a few ideas will actually survive. But the only way to realize these ideas is by allowing your imagination to run wild and not to self-edit or censor yourself.

To Type or Not to Type?

• Step 2: To type or not to type? – Typing up your opening or closing on your

MacBook has shortcomings. Two points:

To Type or Not to Type?– (1) If you prepare your opening/closing on your MacBook

to the utter exclusion of rehearsing it, then you risk losing the human connection that is essential to establishing trust and transparency with the jury. Studies show that typing up a speech on a laptop and delivering it are two radically different things. Those who prepare exclusively on a laptop are often perceived as being “distant” – as if they are in an isolation chamber – when they get up to deliver the speech. You don’t want to squander what is perhaps the most precious moments of the trial – when you get to address the jury directly.

To Type or Not to Type?

– (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.”

A Lawyer Prepares

How do you prepare?

To Type or Not to Type?

– To borrow an analogy used by Gerry Spence, the written word is like a stuffed bear. The spoken word is like a real bear standing on its hind legs and drooling from the mouth. It’s alive!

– The punctuation that is present in the text of a play is intended for the reader, not the actor.

To Type or Not to Type?

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

– Example: “Good grief. Home to mother. Minerva Pinney returns home to mama and the ancestral homestead. You disappoint me Minney. This started out as a good, honest row but now you’re being common place.”

To Type or Not to Type?

– When actors are given a script, they re-write it from beginning to end in their own hand removing all stage directions and punctuation. Each line looks like a big run-on sentence but there is a method behind this madness.

– My advice: Feel free to type up your opening and closing. However, remove all of the punctuation and be sure to memorize it!

Don’t Rush

• Step 3: Don’t rush. Rushing is the enemy of the moment. Allow things to take the time they take.

Rehearse

• 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 Lawyer Prepares

• Plaguing question: How will my opening sound spontaneous if I’ve rehearsed it countless times?

• Actors have the same 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.

A Lawyer Prepares

• You may think that the same play with the same cast is performed the same way every night of the week but it’s not! 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. This subtle behavior can change the entire course of the scene even though the lines haven’t changed and are always the same.

A Lawyer Prepares

• Don’t memorize your opening/closing in a pre-set fashion. Why? Murphy’s law says that lines will be delivered in the live performance the same way they are rehearsed.

• Nothing is worse than the actor who memorizes his lines in a pre-set way. This prevents the actor from working off of his scene partner, which is critical to being spontaneous.

A Lawyer Prepares

• What does it mean to “work off of your scene partner?” On a primal level, it means to live off of him as if you are an appendage to his body.

• Let me give you an example.

A Lawyer Prepares

• Have you ever been to a play where the “speaking actor” was so oblivious to what was going on around him that his scene partner could have had an epileptic seizure without so much as causing him any interruption? Such actors might just as well be in an “isolation chamber” because they are destined to deliver their lines the same way night in and night out regardless of whether their scene partner showed up.

• Not working off of your scene partner is a common pitfall that even the most experienced actors fall into.

A Lawyer Prepares

• Provocative question: When the jury is in the courtroom, can you tell a difference between the way you are delivering your opening/closing versus when you are rehearsing it alone?

A Lawyer Prepares

• Example: Your line is, “I hate you.” You memorized this line by putting special emphasis on the word, “hate” and hitting it hard so 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 incongruent to your scene partner’s behavior in that moment.

A Lawyer Prepares

• Important lesson: “Listen to what your partner means, not just to what they say.”

A Lawyer Prepares• 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 to us just as our body language is communicating something to them.

• You might pause, allowing the jury to respond through facial expressions and body language. For example, a smile from one of the jurors might cause you to smile back or to nod.

• Allow yourself to experience that! It’s as though the lawyer is having a conversation with the jury even though the jury is not speaking back.

• When you’re alive in what you receive, you’re alive in how you respond.

A Lawyer Prepares

• My advice: In order to become more spontaneous in front of the jury, learn to let go! Also, I recommend memorizing your opening and closing in a neutral way just like you memorized your “ABCs” when you were in grade school. In other words, without any meaning. This takes an enormous amount of restraint!

A Lawyer Prepares

• Your opening and closing must be so well memorized that you could recite them if you were woken up out of a sound sleep or as easily as you can recite your address!

Meisner on Preparation• Step 5: You don’t have to go big!– “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.”

Meisner on Preparation

• 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.

A Lawyer Prepares

• Step 7: Inspiration for rehearsing– Rehearsing allows you to try out new things in the

safety and comfort of your own home.– No one is going to jail if you fall flat on your face

or go down in flames.– The more you put yourself in uncomfortable

situations, the more resilient you will be to deal with the unexpected things that come up during the course of a trial.

A Lawyer Prepares

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

A Lawyer Prepares

• Actors are always asked the provocative question, “Can you be as private in public as you are in private?”– When you’re alone in your bedroom standing in

front of the mirror combing your hair, the relaxation and completeness with which you do it is poetic.

– On stage, this relaxed behavior is called, “public solitude.”

– This is what actors strive for.