Lawyers Bring Big Screen Drama to the Courtroom: How Popular Culture’s Influence on the Law has Created the Need for ‘Professional Witnesses’

Abstract

In July 2011, Reuters published a story of an unconventional law firm located in Southern Florida and one of a handful of its kind, specializing in connecting lawyers with actors. The connection between the actors and the attorney is not for agency purposes, as one would expect; rather, the relationship is synergistic. The attorney employs the actor as a stand-in “professional witness.” The need for a professional witness arises when a witness, who has already been deposed by the lawyer, is unavailable to attend the trial. Necessity requires the deposition to be read, so who are you going to call? An actor! At trial, the attorney and actor engage in a typical question and answer session, but the answers are the witness’ answers, not the actor’s. To date, the reported use of actors in Florida is rare, but it is gaining publicity. Law Actors, a Chicago based firm, has provided such services to Florida since the 1990s and, on average, has roughly twenty requests for stand-in deposition readers a year. Furthermore, firms such as Law Actors, offer workshops, taught by actors, which teach trial lawyers how to elicit the most compelling testimony from their witnesses. Additionally, classes are offered in a stage presentation, which is a skill that typically only trained actors possess. Consider this scenario: an attorney asked a paralegal from his office to read the deposition of the unavailable witness. While the paralegal was reading, the attorney noticed the reaction of the audience, i.e. the jury. The paralegal was simply not able to maintain the undivided attention of the jury. In fact, the jury was falling asleep. The jury simply did not listen to the crucial testimony. The reader appeared uncomfortable with public speaking and merely recited words from the sheet before him. The attorney concluded he was going to hire an actor to read the deposition the next time a crucial witness was unable to appear in court, and that is exactly what he did. His decision to hire an actor to read crucial witness testimony ultimately paid off in the form of a favorable verdict. In Florida, if a witness is unavailable for trial and his or her testimony is crucial to their case, attorneys may contact this Miami firm to do a casting call of local or national actors, who meet the desired criteria. Once selected, the actor receives the deposition ahead of time, which allows the actor to arrive in court prepared to give a performance that is sure to grab the audience’s attention. The theory driving this practice is that generally people grasp ideas best when conveyed through words and images. To understand why the adversarial process has grown to need professional witnesses, one must look at the evolution of modern trial advocacy, and consider how popular culture has influenced the public’s attention, perception, and legal expectations resulting in the practice of law under “popular legal culture.” Modern society has become dependent upon the internet and mass-media as informational sources. Society recognizes that a juror brings opinions, biases, and prejudices to the jury box and it is expected, and accepted, that many of our jurors and potential clients have gained their education of the United States’ legal system from entertainment media. Consider the following two questions: What was your first image of a lawyer? Where did that image come from? Most cited images are derived from popular, literary, or cinematic images. Popular culture has introduced many characterizations of lawyers: a trial advocate whose office is the courtroom, ready with sharp questions, and an even sharper tongue, with a knack for extracting the right answer from his witness; a state attorney, whose opening and closing arguments are monologues executed with perfection; even a criminal defense attorney, known for possessing uncanny knowledge of the law, allows for flawless manipulation of the rule’s gray area, creating favorable outcomes. Regardless, it is undeniable that the image almost always comes from a popular culture depiction of the modern attorney. This comment will explore how under today’s contemporary culture, there has grown a need for the lawyer to employ theatrics in order to effectively advocate. The use of actors as professional witnesses is simply the most recent trend in the convergence of law and popular culture. We stand at a cultural juncture, where the lines between legal persuasion and popular culture are hazy. My theory is that the key to winning an argument is no longer based upon notions of right and wrong, but rather hinges upon who told the most compelling story, using methods of persuasion rooted in popular culture iconography. Thus, the hiring of actors to read depositions was an inevitable byproduct of the law’s fusion with popular culture. No longer will the jurors stand for mere recitation of the facts. Jurors have come to expect the excitement and drama of popular culture’s fictional depictions of courtrooms, and when such performance is not delivered, jurors become disenchanted with the system, and the attorney who failed to employ such tactics will likely face an adverse outcome. In Part I of this comment, I will discuss the emerging theory of “Popular Legal Culture” by discussing popular culture’s fascination with the American legal system through dramatic depictions in television series, movies, novels, and mass-media. Additionally, I will discuss how popular culture’s interpretations have become the bedrock of the modern jurors’ education of our legal system. I will also show how the increase in courtroom dramatic tactics is rooted in juror miseducation. Part II explores how the use of actors to replace the unavailable witness has grown out of necessity but posits a direct correlation exists between what society sees on television and what it expects out of actual court proceedings. Finally, Part III will explore obstacles and questions that need to be considered as the use of professional witnesses becomes more widespread. I will discuss actions that the state of Florida (and other states) can take to help ensure fairness to the parties and the jury when an attorney chooses to employ such tactics. A shift in the focus of the trial seems to have developed, from the subject matter being litigated to who was able to enchant the audience, and this shift asks the jury to choose the party that told the most compelling story. Once the system no longer appears to be fair and just, the moral force from which it draws its authority is severely impaired, leaving people to feel the law has become disingenuous.