THE COURTROOM AS A THEATER

"All the world's a stage ...and one man in his time plays many parts."  Shakespeare, Henry, IV

A jury is to an audience as a courtroom is to a theater and the trial lawyer is the scriptwriter, actor and director of what happens in the courtroom theater.  There are many lessons the trial lawyer can learn from Hollywood and apply to the real courtroom.  The same thing that makes an actor believable to an audience can also make the trial lawyer believable to the jury.  Two movies exemplify Hollywood closing arguments that are instructive to the trial lawyer.  They are To Kill a Mockingbird starring Gregory Peck and A Time to Kill starring Matthew McConaughey.  Both films are excellent examples of what a closing argument could be in real life.  They acknowledge fear in the trial lawyer.  Both show how courage to speak from the heart makes the argument powerful, identifiable and real.  Of greater import, however, is that both Gregory Peck and Matthew McConaughey make you feel and understand what it is like to be on trial and they do it by establishing a real human relationship with the jury.

Moreover, the arguments show how the eye contact, body language, the lawyer's position from the jury, the simple words used, voice, silence, and the rhythm of the summation work together to persuade the listener that justice can only be served by a finding of not guilty.  The closing argument from the book To Kill A Mockingbird colorfully demonstrates what Stephen Covey and Gerry Spence describe to us what is effective communication: 

"He walked slowly up and down in front of the jury, and the jury seemed to be attentive: their heads were up, and they followed Atticus's route with what seemed to be appreciation.  I guess it was because Atticus wasn't a thunderer.

"Atticus paused, then he did something he didn't ordinarily do.  He unhitched his watch and chain and placed them on the table, saying, 'With the court's permission---'

"Judge Taylor nodded, and then Atticus did something I never saw him do before or since, in pubic or in private: he unbuttoned his vest, unbuttoned his collar, loosened his tie, and took off his coat.  He'll ever loosened a scrap of his clothing until he undressed at bedtime, and to Jem and me, this was the equivalent of him standing before us stark naked.  We exchanged horrified glances.

"Atticus put his hands in his pockets, and as he returned to the jury, I saw his gold collar button and the tips of his pen and pencil winking in the light.

'Gentlemen,' he said.  Jem and I again looked at each other:  Atticus might have said, 'Scout.'  His voice had lost its aridity, its detachment, and he was talking to the jury as if they were folks on the post office corner.

'Gentlemen,' he was saying, 'I shall be brief, but I would like to use my remaining time with you to remind you that this case is not a difficult one, it requires no minute sifting of complicated facts, but it does require you to be sure beyond all reasonable doubt as to the guilt of the defendant.  To begin with, this case should never have come to trial.  This case is as simple as black and white.

'The state has not produced one iota of medical evidence to the effect that the crime Tom Robinson is charged with ever took place.  It has relied instead upon the testimony of two witnesses whose evidence has not only be called into serious question on cross-examination, but has been flatly contradicted by the defendant.  The defendant is not guilty, but somebody in this courtroom is.

'I have nothing but pity in my heart for the chief witness for the state, but my pity does not extend so far as to her putting a man's life at stake, which she has done in an effort to get rid of her own guilt.

'I say guilt, gentlemen, because it was guilt that motivated her.  She has committed no crime, she has merely broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with.  She is the victim of cruel poverty and ignorance, but I cannot pity her:  she is white.  She knew full well the enormity of her offense, but because her desires were stronger than the code she was breaking, she persisted in breaking it.  She persisted, and her subsequent reaction is something that all of us have known at one time or another.  She did something every child has done - she tried to put the evidence of her offense away from her.  But in this case she was no child hiding stolen contraband:  she struck out at her victim - of necessity she must put him away from her - he must be removed from her presence, from this world.  She must destroy the evidence of her offense.

'What was the evidence of her offense?  Tom Robinson, a human being.  She must put Tom Robinson away from her.  Tom Robinson was her daily reminder of what she did.  What did she do?  She tempted a Negro.

'She was white, and she tempted a Negro.  She did something that in our society is unspeakable:  she kissed a black man.  Not an old Uncle, but a strong young Negro man.  No code mattered to her before she broke it, but it came crashing down on her afterwards.

'Her father saw it, and the defendant has testified as to his remarks.  What did her father do?  We don't know, but there is circumstantial evidence to indicate that Mayella Ewell was beaten savagely by someone who led almost exclusively with his left.  We do know in part what Mr. Ewell did:  he did what any God-fearing, persevering, respectable white man would do under the circumstances - he swore out a warrant, no doubt signing it with his left hand, and Tom Robinson now sits before you, having taken the oath with the only good hand he possesses - his right hand.

'And so a quiet, respectable, humble Negro who had the unmitigated temerity to "feel sorry" for a white woman has had to put his word against two white people's.  I need not remind you of their appearance and conduct on the stand - you saw them for yourselves.  The witnesses for the state, with the exception of the sheriff of Maycomb County, have presented themselves to you gentlemen, to this court, in the cynical confidence that their testimony would not be doubted, confident that you gentlemen would go along with them on the assumption - the evil assumption - that all Negroes lie, that all Negroes are basically immoral beings, that all Negro men are not to be trusted around our women, an assumption one associates with minds of their caliber.

'Which, gentlemen, we know is in itself a lie as black as Tom Robinson's skin, a lie I do not have to point out to you.  You know the truth, and the truth is this:  some Negroes lie, some Negroes are immoral, some Negro men are not to be trusted around women - black or white.  But this is a truth that applies to the human race and to no particular race of men.  There is not a person in this courtroom who has never told a lie, who has never done an immoral thing, and there is no man living who has never looked upon a woman without desire.'

"Atticus paused and took out his handkerchief.  Then he took off his glasses and wiped them, and we saw another 'first':  we had never seen him sweat - he was one of those men whose faces never perspired, but not it was shining tan.

'One more thing, gentlemen, before I quit.  Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the Executive branch in Washington are fond of hurling at us.  There is a tendency in this year of grace, 1935, for certain people to use this phrase out of context, to satisfy all conditions.  The most ridiculous example I can think of is that the people who run public education promote the stupid and idle along with the industrious - because all men are created equal, educators will gravely tell you, the children left behind suffer terrible feelings of inferiority.  We know all men are not created equal in the sense some people would have us believe - some people are smarter than others, some people have more opportunity because they're born with it, some men make more money than others, some ladies make better cakes than others - some people are born gifted beyond the normal scope of most men.

'But there is one way in this country in which all men are created equal - there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president.  That institution, gentlemen, is a court.  It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honorable court which you serve.  Our courts have their faults, as does any human institution, but in this country our courts are on the great levelers, and in our courts all men are created equal.

'I'm no idealist to believe firmly in the integrity of our courts and in the jury system - that is no ideal to me, it is a living, working reality.  Gentlemen, a court is no better than each man of you sitting before me on this jury.  A court is only as sound as its jury, and a jury is only as sound as the men who make it up.  I am confident that you gentlemen will review without passion the evidence you have heard, come to a decision, and restore this defendant to his family.  In the name of God, do your duty.'"