Law as performance

The courtroom as theater is such a commonplace notion that it has even been the subject of installation art, including the installation pictured here, “Set: Room 302,” a collaboration between Judy Radul and Geoffrey Farmer. Commenting on the piece, Richard Fowler, a lawyer, makes explicit some of the ways both the artists and he himself as a lawyer treat a trial as, literally, a performance:

Room 302 uses a courtroom to convey, through performance and the setting itself, ideas about truth and reality. The roles of the lawyer, witness, guard and court reporter are enacted and observed reading from scripts. Occasionally, two unseen voices can be heard directing the performers. With the court reporter overseeing the performance, scenes are redone, sounds and events recreated. In essence, a real event is recreated by the performance to produce a new reality; we judge the past by what we are shown in the present.

Trials are a process by which we attempt to recreate the past in the present so that judges can decide what happened. Rules of evidence guide the process and ensure the integrity of the recreation. For example, evidence must generally be a first hand account – the witness must have seen or heard the event themselves. Rumour, gossip, stories passing from one person to another, inferences, opinions – the ingredients of real life – are not admissible. Conventions and formalities govern the performances of the lawyers. The process is grounded in solemnity and dignity: the judge and lawyers wear robes, the judge is ‘my lady,’ and opposing counsel ‘my learned friend.’ . . .

The courtroom is like any theatre and the trial like any performance. The lawyers learn their lines and practice their performances. Witnesses are given advice about how to play their roles. Court clerks guide the performance, directing witnesses, introducing the judge and providing some narrative of events. Sheriffs usher the audience, provide security, and open and close the room.

It is within this context that I, as a defence lawyer, defend people. The prosecutor directs her witnesses to describe an account of a past event; I attempt to throw doubt on that account. Does the witness’ account make sense, is it reliable, is it exaggerated, or is the witness lying? I attempt to unravel the carefully prepared performances of the witnesses, to move them from their script. The witness is now improvising. Without a script frailties of perception and cognition are soon revealed, sources of contamination exposed, and bias or prejudice indicated. The judge relies on these raw ingredients to adjudge the performance; was it genuine, impartial, reliable, credible or exposed as exaggerated, embellished, unreliable and incredible?

My difficulty is convincing my students law isn’t just the rules, but a performance constrained by the rules, and that they have to not only learn the rules, but also then learn how to integrate the rules into meaningful depictions of the real life they and everyone else live outside the classroom

Law is, first and foremost, human drama.

Today in Contracts class I tried to get my students to understand they have to understand the reality of the case law they’re reading, not merely the rules the cases articulate. The rules only go so far. There are a lot of reasons understanding rules alone is a woefully inadequate way to understand the workings of any legal system, but I did try to get across that if the students would envision choosing, preparing, and questioning the witnesses described and quoted in the case they had read for today, they might understand why one witness in particular had been so effective.

The case was Frigaliment Importing Co. v. B.N.S. International Sales Corp., 190 F.Supp. 116 (S.D.N.Y. 1960), a case memorable in part because the Judge starts his opinion out like this: “The issue is, what is chicken?” The case really does turn on the definition of “chicken.” A U.S. exporter had contracted with a European buyer for the delivery of a large shipment of what the parties had described in their conversations and in the documents they exchanged as “chicken.” The seller delivered, in part, older stewing chickens rather than younger roasters or fryers. The latter are not only younger; they’re also tastier and more expensive. The buyer sued for the difference in price between the young chicken he thought he had bought and the old chickens he received.

The seller won. Among the witnesses was “Defendant’s witness Weininger, who operates a chicken eviscerating plant in New Jersey[. He] testified ‘Chicken is everything except a goose, a duck, and a turkey. Everything is a chicken, but then you have to say, you have to specify which category you want or that you are talking about.’” I tried to get across how effective Weininger must have been. I explained he might well have been like a guy out of The Sopranos — an everyday kind of New Jersey guy who runs a slaughterhouse grunting out in a loud and low voice this funny and telling line. All the students wanted to talk about was that the rule of construction “ut magis valeat quam pereat” ought to control.

Wrong. Rules don’t decide cases, and Latin rules of interpretation definitely don’t decide cases. Human beings decide cases, and human beings are swayed by vivid drama far more than they are swayed by technicalities. Even when we speak of disputes between institutions of finance that are decided by the testimony of accountants we are swayed by drama. There will be a lot of these kinds of cases (decided by the testimony of dueling accountants) in the near future. But there always have been. Back at the end of the last century, Nick Leeson — the self-described “rogue trader whose unchecked risk-taking caused the biggest financial scandal of the 20th century” — was the center of legal action against accountants “forced to explain how their audits of Barings failed to spot Leeson’s creation of a financial abyss capable of bringing down Britain’s oldest merchant bank.”  BNet at the time almost breathlessly explained:

This situation is by no means unique. Accountants from rival firms regularly square up to each other across the courtroom and in the offices of City law firms. The accountancy giants have been regularly pitched against each other in protracted legal battles since the 1970s.

If one realizes the pitched battles between accountants representing rival financial institutions and financial regulators can be described as high drama, one ought to explain that anything legal can, and is, high drama.

One shouldn’t be surprised, therefore, that even at the beginning if the last century the New York Times recognized that trials scenes are, almost inevitably, a regular occurrence in almost any kind of play.