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