Litigation as “Performance Art”?

One of Rod Blagojevich’s trial attorneys, Sam Adams, Jr., is famously cited as saying that trials are a kind of “performance art” where the best “show” wins.

Certainly I agree that a trial lawyer must have some “performance” acumen to get the jurors’ attention and effectively make points. However, Adams appears to want it all boiled down to a “show.” He’s wrong and most effective civil trial lawyers would agree he is wrong.

Maybe there is more of a “show” aspect to criminal trials, which is Adams’ milieu. In civil court, however, the effective communication of details are key. Strangely enough, in criminal actions which involve the life and liberty of people, the specific requirements to obtain conviction or acquittal are simpler than the requirements in civil court to obtain a finding of guilty or not guilty. In criminal cases, often, the number of witnesses and evidentiary documents are fewer than the number in civil matters. Further, there are often times more nuances to civil cases than in criminal court.

I am offended by persons such as Adams who try to boil down a trial to a few actors who use emotion to manipulate jurors.

Don’t misunderstand me. I’ve yelled and whispered to jurors; I’ve faked a limp in front of jurors to show how anyone can fake an injury; I’ve thrown my hands in the air and paced the courtroom; and I’ve given theatrical closing arguments. In between all of that, however, I’ve understood there must be substance behind what a trial lawyer conveys or most juries will properly reject the lawyer’s arguments. Preparation and attention to details are at least as important as the lawyer’s emotional status in presenting a case.

At trial, effective communication of a party’s position is key to obtaining the ultimate goal of a verdict favorable to one’s client. Telling people that a trial is all about “show” and “performance art” only serves to reinforce negative stereotypes of lawyers as manipulative liars who will twist words and do whatever it takes to get the desired result. 

I will prepare for my trials. I will attend to the details of the case. I will effectively present my client’s case to the jury and I will do it with genuine emotion. I will not, however, make myself or others look like circus clowns. Most jurors in sophisticated civil litigation are too smart for that.

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