This month we have the pleasure of hearing from lawyer, author and producer Dale M Fiola, who explores how a litigator adopts a ‘storyteller’ persona in the courtroom. What is behind this phenomenon, and how does it affect attorneys’ performances at trial?
How can the act of role-playing or shifting personas manifest in the courtroom?
It is no accident that the best trial litigators are storytellers. This is not to say they dabble in fiction or create a false narrative. What those litigators have learned over their years of practice is they have to keep the trier of fact – namely, the jury – interested in the case. Once a juror disconnects from the case, he or she only half-listens or doesn’t listen at all. At the time of deliberations, that juror may have a totally different view of the case from those who listened attentively. It can seriously hamper a fair trial. A trial litigator knows the secrets of how to keep the jury listening: they have to be a good storyteller. That ability to tell the story as the facts support requires a certain level of role-playing.
Let’s face it. A trial must be interesting, if not entertaining, to keep the court and the jury hinged to it and the facts spun from the evidence. That philosophy is imbued in almost every aspect of our lives. As the American psychologist William James wrote in 1890, “there is no such thing as voluntary attention sustained for more than a few seconds at a time.”
This, then, requires the trial litigator to hone their skills to make their case sound appetising to these courtroom listeners and viewers. He or she will use a complement of electronic gadgetry to engage the interests of the jury using demonstrative evidence, graphic reproductions of scenes and objects, expert witnesses and computer-generated images (CGI). The more the trial litigator utilises this sophisticated technology, the more likely the jury will “go along for the ride.” By changing the method of the delivery of proof during trial, the jury will be pulled into each new visual or audio display reshaping their interest in the case.
It is no accident that the best trial litigators are storytellers.
The more controversial or high-powered a case is, the more the trial litigator role-plays to a larger audience. It is only human nature for the attorney to up-scale his or her presentation to parade their skills in front of the media or larger courtroom audiences. In 2003, I had a case in federal court and I was plaintiff’s counsel against a governmental entity. Through the four to five days of jury trial, there were no more than three or four US attorneys in the audience at all times and no one else. That changed when the central female witness alleged to have engaged in sexually inappropriate conduct in the workplace took the stand. Other courtroom personnel and a couple of busloads of high school students attended my cross examination of this witness. The courtroom ballooned in size from 4 to about 120 spectators. I felt the pressure to “pull out all the stops” and do the best I could to cross examine that witness. I could easily equate my feelings with the pressure that Clarence Darrow must have experienced when he squared off against William Jennings Bryan in the Scopes trial.
In what ways does this change the atmosphere or affect the key listeners in a case?
During the criminal murder trial of People v. Orenthal James Simpson, I attempted to visit the courtroom but was turned away because I was not a person of interest. What I saw outside the courtroom was astonishing and circus-like. Cameras and news trucks were stationed outside the courthouse and in adjacent parking lots. Camera cables ran through the corridors of the courthouse and into Judge Lance Ito’s courtroom. The attorneys involved in the case were mentioned nightly in news broadcasts across the country. Those attorneys became household names in the press, including each member of the Dream Team. Whether one was a juror, witness or just a casual observer, there was no mistaking it; the dynamics in place captivated everyone’s attention, including the jury. There was no safe haven from paying attention to the trial.
To a lesser degree than the OJ Simpson case, I represented a police officer on a case that went national. I spoke with the assistant to a well-known network newscaster who wanted a picture of my client. I refused the picture but instructed the network that if it wanted to hear the truth it should show up at court on a specified date. To my surprise, on that date, a film crew came to the courtroom to hear me argue. I have had previous appearances before the Judge and found her to be a little unruly when she would abruptly “cut off” argument of counsel to move her calendar along. She had cut me off on earlier occasions wearing her glasses. But, on this occasion, in the presence of the camera lens, the Judge took off her glasses, smiled intently and allowed me to argue as long as I liked. She was exceedingly polite to me. There was no question that the media had a definite impact on the courtroom demeanour of the Judge and the attorneys involved.
The more controversial or high-powered a case is, the more the trial litigator role-plays to a larger audience.
It is written in our social DNA that we must look and sound our best on camera. The era of selfies is instructive on this point. As soon as the lens is pointed in our direction, there is a knee-jerk reaction to smile.
Why, in your opinion, do attorneys act in this way in the courtroom? Is it influenced by Hollywood and popular perceptions of lawyers, or is it more of a product of the profession’s culture?
It is hard to separate an attorney from their case. They want to win at all costs. Winning means more legal business, a good image, better referrals and legal standing. Part of the image the attorney wishes to cultivate is that they have all the trappings of success: fancy offices, cars, homes, expensive dress suits and a sophisticated staff.
There is no question Hollywood has had a significant effect upon legal performance. To Inherit the Wind, To Kill a Mockingbird, A Few Good Men, Perry Mason, LA Law and many other movies and television series have inspired generations of people to become lawyers and, seemingly, influenced them to act as the characters we have loved for so long. This is a classic display of “life imitating art” when those movie buffs want our lawyers to represent us as the characters that we have idolised in film. This has led to clients having a distorted view of how lawyers perform based on the movies they have watched. This is readily apparent in divorce proceedings where the dynamics are missing for theatrical elocution which is normally reserved for criminal or civil rights proceedings. Most of the divorces are quietly resolved in chamber conferences and off-site conference rooms with signed marital settlement agreements without a single word being “fired” in open court. This leaves some of the spouses suspicious that their attorneys did not fight as hard as they could have for an equal division of the property or child custody/visitation. Hollywood has created a false firebrand of law.
There is no question Hollywood has had a significant effect upon legal performance.
Why might a trial attorney find it helpful to adopt a different persona in the courtroom?
As Sun Tzu stated in The Art of War, “Victorious warriors win first then go to war, while defeated warriors go to war first and then seek to win.” One’s persona just before battle carries a lot of swagger with the opposition. If the attorney is well-prepared for trial and the opposition knows it, this becomes a compelling incentive to settle the controversy.
If the case does not settle, the attorney must adjust to their opponent’s delivery skills. In other words, if the opposing attorney is a pathos pleader, a talented attorney will adjust their tone level accordingly to manifest a calm and controlled delivery. If the opposing counsel is bent on using logos, that same attorney might act to refute the logic by focusing on the human characteristics of the parties involved. The sensibilities of the parties have a lot to do with why the parties are in court in the first place. It is important that the attorney develop a contrasting courtroom style from their opponent’s that will make their case stand out. This is not gamesmanship but using a tactical approach for delivery of their case to the trier of fact.
Have you ever consciously or unconsciously shifted personas in the courtroom yourself?
Yes. Every case is different: different facts, laws, parties, judge, jury, and courtroom. An attorney certainly doesn’t want to act like King Lear when the scene is set for Much Ado About Nothing. Changing personas can work effectively but must be based upon two important caveats: do not lose your credibility to the trier of fact or transgress ethical requirements. Tonal adjustments are necessary on direct or cross-examination. When dealing with a minor or someone who is quiet and meek, a more subdued approach to examination should be followed. When dealing with an opposing party who is openly hostile in their responses, a more striking and pungent cross examination is advisable.
It is important that the attorney develop a contrasting courtroom style from their opponent’s that will make their case stand out.
Have you seen an increase in this phenomenon during your career?
Yes. As the number of attorneys is on the rise and the number of real worthy cases is beginning to plateau, attorneys are more aggressive in attracting business. This is most apparent when one sees the proliferation of billboards springing up around most cities and TV commercials extolling the virtues, records and monetary awards of the area’s legal practitioners.
Has the COVID-19 pandemic and the introduction of remote hearings had an effect on this kind of performative lawyering?
Yes. The effect is fewer jury trials and scaled down performances before judicial officers. Remote hearings have softened the bravado of counsel that usually is reserved for juries.
Do you feel that this kind of role-playing is generally beneficial or detrimental to a lawyer’s performance?
It can be both. The most important consideration is to know how and when to use role-playing. I started public speaking when I was 12 years old and have been able to develop it over the years. No one wants to see a “staged” performance that seems manufactured and artificial. One should never lose sight of the following – “You, as the attorney, must truly believe in every aspect of your client’s case.” The words you choose in Court need to support that belief entirely.
About Dale Fiola
How do you make your cases interesting?
I think of myself as the director of a major film production and focus on those points that will highlight the issues of my case. I want to interest the judge and jury, but especially the latter.
Can you tell us a little about your new book, Al-Law-Gory?
Al-Law-Gory is about a trial judge in Idaho who has to make tough decisions as to imposing the death sentence on criminal defendants. Unusual things happen in the courtroom and chambers that confound his decision-making. He finds his decisions to dismiss or impose a lighter sentence are being countermanded by a spiritual presence that has taken over the courtroom. At first, he thinks that it is just his mind playing tricks on him but later discovers Valkyries, Viking mythological female warriors, have inhabited the court and are imposing their will over Judge Ferritt Lunceford.
In one scene, Judge Lunceford attempts to dismiss an arson/murder case against a defendant based upon insufficient evidence to prove criminal wrongdoing. That defendant was charged with starting a fire in an apartment that caused the death of one or more occupants. While in chambers, he attempts to sign his name to dismissal papers, but none of his pens will write. He instructs his court clerk to electronically sign his signature to the dismissal document and is elated about out-smarting this spiritual presence. That does not end the presence’s involvement in the matter. The freed defendant travels in his old 1965 GMC truck and stops for gas. He sees an attractive lady jumping rope at the station. She asks him for a ride and he obliges. Eventually, the lady executes the defendant, which the reader later learns is none other than a Valkyrie.
Scene after scene unfolds with the clash between the Valkyries and the judge. His arthritic state coupled with the unusual visits from strange people and happenings in his chambers push the judge to the brink of insanity. It moves from his courtroom to his home where occult phenomena place him in fear for his health and safety. He huddles in bed with blankets over his head shivering and shaking, trying to shield himself from Valkyries visiting him in the dead of night. One requests him to sit in judgment with accused defendants at his kitchen table and to sign death warrants. There are other horrific events that occur.
Without revealing the ending, the allegory of the story is that we must all make decisions in our lives based upon facts as we know them. Despite all odds, Judge Lunceford made “life or death decisions” based upon the facts available. Sometimes as a layperson, or even a judge, one cannot see the total picture because that person has not been supplied with all the facts. All the facts may never be revealed in one’s lifetime. Yet, all of us have to make decisions based on the facts we have in hand. Judge Lunceford felt all his decisions were well-reasoned, but the Valkyries knew more about the facts and determined his decisions were erroneous.
The book has been released on Amazon and is available in hardback, digitally or by audiobook.
What are your plans for the coming 12 months?
I plan to continue the practice of law but slowly venture into film production. I have just completed film production of my new movie entitled Caralique, which should be released in Spring 2022. It is a story of a child prodigy who shows great talents in fashion design and rises to become the new Coco Chanel revolutionising fashion, pushing it into the 21st century. The film is directed and produced by UK award-winning Director Elizabeth Blake-Thomas and co-produced by Fashion Designer Lana Young. After working on the set of this production, I can safely say it is not easy to make a movie.
Next year, I also intend to roll out a feature film of a musical I created called Witchstruck.
Dale M Fiola, Founder
Address: 200 North Harbor Boulevard, Suite 217, Anaheim, CA 92805
Telephone: (714) 635-7888 | (714) 635-7887
Dale M Fiola has been handling employment and labour actions since the early 1980s. Through decades of sound legal practice, the Law Offices of Dale M Fiola have focused primarily upon representing employees in all types of litigation, and have successfully brought actions on behalf of employees against large corporate employers, local governments and state and federal agencies. Dale is also a member of several professional associations and is currently a member of the California Employment Lawyers Association (CELA).