One of the most common universal metaphors. Opposing counsel attempt to fool the jury. Illusion is a subterfuge which obscures and distorts the truth

Transcription

1 LAW AND MAGIC

2 PERFORMANCE ON TRIAL

3 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

4 BEYOND SMOKE AND MIRROS: Intent of magic: Deception and Entertainment vs Intent of advocacy: Persuasion

5 BEYOND SMOKE AND MIRROS: OR ARE THEY SAME?

6 MAGIC IN THE COURTROOM Effective use of metaphor in Closing Argument Actual use of magic in Closing

7 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)

8 If the jury is bored

9 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

10 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.

11

12 QUEEN S COUNSEL WEIGHS IN: JOLLY GOOD SHOW

13 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

14 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.

15 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

16 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

17 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

18 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

19 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.

20 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

21 DYNAMICS OF FOCUS Mental Visual Auditory

22 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

23 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

24 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

25 THE EYES HAVE IT Lock, Stop and Pause Credibility, Believability and Likeability Contact for 1 Complete Thought Don t be Creepy

26 ALL GREEK TO ME The Magic of Advocacy

27 ARISTOTLE ON STAGE Egos Lothos Pathos

28 INVENTIO DISPOSTIO ELOCUTIO MEMORIA PROUNUNTIATIO

29 Methods of Persuasion INVENTIO

30 DISPOSITIO Arrangment Structuring a Coherent Argument Building the Effect/Admission

31 ELOCUTIO 3 levels Teaching, Persuading Entertaining.

32 MEMORIA Arguing Impromptu Calling upon knowledge from Within

33 PRONUNTIATIO Delivery Use of Voice, Gestures

34 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

35 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