Trial by "Zoom"

                        Trial advocacy uses elements of music, theatre, and dance to create and weave a mosaic of oral testimony and documents to create an evidentiary record that persuades the trier of fact of the merits of a litigant’s position.

                        I made this observation during a trial more than 30 years ago.  As I stood to begin my cross-examination of the first trial witness, my client - a renowned concert pianist - casually remarked to me, “Last week, you heard me perform “Rach 3”[1] at Carnegie [Hall].  Now, I get to hear you in performance.” I paid little attention to this seemingly inconsequential statement and began to question the witness.

                         Following the conclusion of the cross-examination, breaking courtroom etiquette my client animatedly exclaimed, “Bravissimo.”  Although pleased by his rave “review,” I responded softly, “This was not a concert performance.”  He smiled and said firmly: “You are wrong.  It was”!

                        My client then showed me what he had been writing on a legal pad during those portions of my cross-examination when his eyelids were not closed and his arms, hands, and fingers were not moving - rhythmically, and expressively - in graceful gestures which had not been intelligible to me as he had made them:

staccato, legato, portato, tenuto; Andante, Allegro ma non troppo, Allegro; crescendo, descrescendo, accelerando, ritardando, rubato, calando, fermata; pp, p, f, ff, sfz, and reinf.

 

 

Having begun my piano studies at age 8, I was familiar with most of those musical expressions regarding articulations, tempi, and dynamics, but I did not understand the reason he had written them.  Noticing my quizzical expression, my client said: “Do you not realize that you employed each of those expressions during the course of your cross-examination?  I heard and understood your artistry and wrote down each expression as you used it.”

                        What followed was an epiphany: in developing my personal style as a trial attorney, I had incorporated principles of music and dance which had been imbedded in me since childhood and which had proven to be as valuable to me in the courtroom as they had been valuable to me while playing the piano, listening to music, or attending a ballet.

                        This article will explicate my observation, illustrate ways in which I have incorporated numerous principles of music and dance into my trial practice, correlate trial techniques used by me to the substantial constraints imposed upon trial advocates by the pandemic and the consequential phenomenon of conduct of trial by “Zoom,”[2] (“Zoom Trial”) and - finally - address the question posed in the title: “Is the Pandemic a Requiem for Trial Advocacy?”  

 

Opening Statements: Mozart and Sonata Form

                        At a cocktail reception in 1990, I met the eminent concert pianist and writer, Charles Rosen, whose first book - The Classical Style: Haydn, Mozart, Beethoven ­- had won the 1973 National Book Award for Arts and Letters.[3]  Although eager to talk about music with Mr. Rosen, I was mindful of the fact that I had never been able to get beyond the first few pages of The Classical Style because of my lack of a clear understanding of the fundamental principles of music theory which form the foundation of Mr. Rosen’s analysis.  I steered the conversation to the law, and Mr. Rosen happily and graciously applied his genius to discussion of a subject of which he had no knowledge or experience.

                        When Mr. Rosen asked me how a trial begins, I told him that typically each attorney makes an opening statement.  After I explained the purpose of the opening statement, Mr. Rosen asked me to state the style and structure I used.  My ensuing answer - that I focused only on the substance of my opening statement - lead to discussion about the importance of style and structure.  Mr. Rosen urged me to develop a style of presentation designed to state my position in a manner that would please the “ear” of my audience - the trier of fact - and to develop a structure for my presentation that would allow me to state the core positions, nuance and expand upon them, and then conclude with a return to the core positions.  Mr. Rosen told me that as a concert pianist, he knew that it was important to capture the attention of the audience and to maintain it throughout a performance.  He told me that the absence of a style could lead to disinterest or a lapse in attention or focus on the part of the trier of fact and the absence of a structure could result in confusion on the part of the trier of fact, modulation into extraneous subjects, or needless repetition.  Mr. Rosen concluded his remarks by telling me that when I developed my own style and adopted a structure for use in my opening statements, I would be able to able to implement them in all of my opening statements and use each trial to develop, modify, and solidify my style and structure - thus improving my effectiveness as a trial advocate in each future trial.  Mr. Rosen’s advice was sound.  I adopted it.

                        I decided to model my style on Mozart.  Throughout his career, Mozart said and wrote[4] that his music should “flow like oil.”  I understood that Mozart did not mean smoothness or legato,[5] but rather, interdependence of passages.  Thus, I undertook to develop a style in which there was a continuous, unbroken flow in my presentation.

                        I decided to model my structure on sonata form, which has three components: exposition, development, and recapitulation.  The first section of my opening statement would be a statement of the issues (exposition).  The second section would be a nuanced, amplified statement of the issues (development).  The third section would be a return to the core issues, as set forth in the first section (recapitulation). Sonata form, thus, would be the structure; i.e., blueprint, for construction of my opening statements.

                        Mr. Rosen’s projection was correct.   My opening statements became more effective as soon as I began to follow Mr. Rosen’s advice.  After 30 years of using a Mozartean approach and sonata form, my style and structure have improved immeasurably and they continued to improve - until trial by “Zoom.”

                        During my initial opening statement after the pandemic, I decided momentarily to savor what I thought to have been a statement of meteoric significance which I had just made.  I glanced at the faces of the judge, opposing counsel, and the litigants on my computer screen.  Each person was motionless.  For a millisecond, I was pleased that each person had been struck by my statement, which was the reaction I had hoped for.  But as the facial expressions remained precisely the same and everyone continued to be motionless, I understood what had happened: I had been frozen from the Zoom Trial (the “Zoom Freeze”)!

                        I spent the next minute reconnecting to the Zoom Trial.  After my return, the judge invited me to resume.  I did not know at what point the court reporter had been unable to record what I said.  At the direction of the judge, the court reporter “read back” the last few recorded sentences.  The judge then said, “Please continue.”  I resumed my opening statement - but five minutes had elapsed since the onset of the Zoom Freeze.

                        The foregoing illustrates a huge constraint which a Zoom Trial imposes upon a trial attorney: an unanticipated interruption caused by a computer malfunction beyond anyone’s control.  The artistry of making a series of statements that “flow like oil” or of stating, developing, and restating themes in a carefully planned manner is considerably more difficult to perform when there exists the possibility that Zoom will drop one of not fewer than five individuals (judge, parties, counsel) from the Zoom Trial and the uncertainty when that phenomenon (the “Zoom Drop”), a companion mishap to the Zoom Freeze, may  occur.                   

                                                   

Direct Examination: The Balanchine Style

                        As an associate participating in trusts and estates litigation at Davis Polk & Wardwell in the 1970’s, I encountered what litigators refer to as “witness sheets”: documents containing questions to ask each witness on direct examination at trial, together with the proposed answers for the witness to give.  The purpose of the witness sheets is to try to ensure that all pertinent, probative questions would be asked at trial, that the form of the questions would not be  subject to valid objection, and that the witness’s answers would not only be truthful and correct but also would include complete information responsive to the questions.

                        I disfavored use of witness sheets.  I believed they had a chilling effect on creativity at trial, both on the part of the attorney questioning a witness on direct examination (who tended to restrict himself or herself to the questions on the witness sheet) and on the part of the witness (who endeavored to “parrot” the answers contained on the witness sheet).  The consequence of use of witness sheets, I believed, was a stilted examination in which (a) the trial advocate would ignore opportunities to expand upon a witness’s answers and (b) a witness’s occasional struggle to answer questions in the manner prescribed in the witness sheet might undermine his or her credibility, for the trier of fact might interpret answers given in a halting manner as reflective of a lack of forthrightness, honesty, or credibility.

                        Thus, when I began to try cases in 1980, I developed my own style of questioning my clients and other “friendly” witnesses at trial.  I determined to minimize formulation of specific questions in advance of trial (limiting them to complex financial issues or to crucial issues about which there would be no allowance for an incomplete or unclear testimony) and to prepare the witness by reviewing and discussing the general scope of my questioning and the anticipated testimony by the witness.  In effect, I would purposefully “underprepare” the witness for trial, (a) placing trust in my ability to ask all of the pertinent questions, but in the context of an examination that would allow me to be creative and to “feed off” answers given by the witness and pose questions which I may not have thought of asking prior to commencement of the examination, and (b) placing trust in the witness to answer my questions appropriately and correctly, but in a natural, flowing manner that would enhance his or her credibility and trustworthiness.

                        I used this style of preparing for and conducting direct examination of witnesses - generally, my clients - throughout the 1980’s.  I did not analyze what had caused me to use and develop it, but my trial experiences indicated to me that it was enormously effective.  Serendipitously, in 1990, I received affirmation of my style - indirectly and from an unlikely source.  As I prepared my client, a principal dancer with The New York City Ballet, for trial and explained my style for conducting a direct examination, she said matter-of-factly, “Oh, got it. That’s exactly the way Mr. B would do it.”

                        I did not fully understand what she meant, but she then went on to explain the aspects of “The Balanchine Style” (the name given to the specific techniques favored by George Balanchine) which pertained to partnering.  Among other things, in a pas de deux, Balanchine favored the dancers’ using fingertip touches, rather than closed-fist clenches.  The “upside” was a longer, more elegant, and more beautiful aesthetic line, displaying the full length of the dancers’ fingers.  The “downside” was the dancers’ loss of security and the risk of a mishap.  The key, my client explained, was each dancer’s willingness to place trust in the other. 

                        Thus, inadvertently, I had been using the Balanchine Style of partnering - something I continue to do.  My direct examinations of clients and, occasionally, “friendly” witnesses are based upon the principle that although there are associated risks (albeit, what I consider to be “controlled risks”) to my style, there are substantial benefits: an examination which flows like a natural, spontaneous conversation between the witness and me.  It allows for creativity and spontaneity, keeps both the witness and me alert to nuances contained in questions and answers, and results in a controlled, direct examination with life and in the spirit of what Leonard Bernstein referred to [in quoting the conductor, Dimitri Mitropoulos] as the “sportive element” in live performance.[6]  The cornerstone of my style was mutual trust between the witness and me and an informed insight by each into the thinking of the other.  In the case of my clients, this connection resulted from my decision to limit the number of clients whom I represent at any particular time in order to enable me to form the type of “connection” or “bond” with a client that sources both creativity and spontaneity at trial.

                        Execution of this style requires a physical connection between my client and me during the course of the examination.  That is easy to achieve, since I am able to make eye-to-eye contact with my client throughout the examination.  Although there are others in the courtroom, no one else has the same angle of vision which my client has (when my client looks at me) and which I have (when I look at my client).  These private exchanges of looks, can also generate additional benefits as they are a means of wordless communication between my client and me while the client is giving testimony.[7]

                        A Zoom Trial throws a heavy wrench into my style of direct examination of clients and other “friendly” witnesses whom I am able to prepare for trial.  The warmth and comfort emanating from close physical proximity - something that exists in a courtroom - does not exist when a witness and I see each other on computer screens.  For those clients who need or just want emotional support from me - something I can give in a courtroom with even a small facial gesture, generally unbeknownst to anyone else - the loss of physical contact with me during the examination would be disconcerting and might cause anxiety or stress, thus negatively impacting the client’s demeanor.  A Zoom Trial eliminates the intimacy and privacy of eye-to-eye contact.  When my client testifies and looks into the camera on the computer, everyone else sees what I see; when I pose questions, everyone else sees what my client sees.   

                        Thus, the artistry of conducting a direct examination as “Mr. B would do it” is challenged by a Zoom Trial.                   

Cross-Examination: J.S. Bach and Balanchine

                        During the mid 1980’s, I made the observation that a cross-examination focusing on issues seriatim neutralized the advantage a cross-examiner should have over a witness, as it enabled the witness to intuit the purpose and context of questions and, thus, to give and shape answers in a manner most favorable to him or her.  Consequently, I began to conflate issues during cross-examination in order to confuse a witness as to my line of attack.  But this created a problem of its own: it also confused the trier of fact!  I concluded that although I was on the correct track, my style required adjustment. Thus, I adapted an approach to allow me to address multiple issues at the same time in order to stymie the capability of the witness to understand my line of attack, without confusing the trier of fact. I began to weave together multiple issues at a time and to move back and forth between them.

                        During my 1990 cocktail reception with Charles Rosen, I mentioned my modified style of cross-examination but indicated that my goal of avoiding confusion remained elusive.  Mr. Rosen smiled and said: “You are on the right track, and I can help you to excel, with relative ease.”  Eagerly, I asked Mr. Rosen for his magical solution.  He answered: “J.S. Bach.”

                        Mr. Rosen explained to me that without awareness on my part, I had adopted a contrapuntal style, the apotheosis of which - of course - was Johann Sebastian Bach.  Mr. Rosen explained in one or two sentences what I had never fully understood: that the foundation of the contrapuntal style (leaving aside the feature of competing melodic lines) is multiple melodic lines which are both interdependent and independent and which occur in a linear or horizontal manner, rather than in a vertical manner.  Mr. Rosen told me that I should learn to “think contrapuntally” and that when I had acquired adeptness, I would be able to execute my style in a masterly, efficient, and effective manner - without confusing the trier of fact.  For the next few months, I revisited my youth: daily, I played several Two-Part Inventions, as well as  the Fugue in C minor from Book I of the Well-Tempered Clavier, which I had played at age 12; I listened, over and over, to the six French Suites and the six Brandenburg Concerti.  While I continued to make the same mistakes at the keyboard I had made during elementary school, gradually I acquired a better “feel” and “ear” for counterpoint.  As a New Yorker, I knew the answer to the well-worn joke, “How do you get to Carnegie Hall?”  So, I “practice[d], practice[d], practice[d].” And I listened, listened, listened.  Again, Mr. Rosen was correct.  Although “thinking contrapuntally” required continuous focus and effort on my part, I was able to use the contrapuntal style in my cross-examinations sans confusion.

                        Always desirous of infusing energy into cross-examinations, I had often found success by questioning a witness in an indirect manner; i.e, by approaching an issue at an angle, rather than straight-on.  This enabled me to keep the witness off-balance until I was ready to zero-in.[8]  A balletomane since 1964 and a devotee of New York City Ballet, I read numerous articles about George Balanchine and learned that one of the hallmarks of his style was the sharp angles of attack his dancers were required to take: a daring technique, replete with risk, but one with a great award - especially for those who value speed and energy, which happen to be major components of a successful cross-examination.  So, without realizing it, I had adopted the Balanchine style of making attacks at sharp angles, and I incorporated it into my style of cross-examination.

                        Thus, it was a nightmare when, as I cross-examined an important witness during my first Zoom Trial and started to use my contrapuntal style, together with a sharp line of attack, the judge interrupted me, saying, “Sorry, Mr. Beslow, we lost one of the other lawyers”! (the “Zoom Loss”).  Several minutes later, the lawyer had climbed back into the trial, and the judge said, “Please proceed.” 

                        Like its siblings, the Zoom Freeze and the Zoom Drop, the Zoom Loss is an enormous impediment. If J.S. Bach were a trial lawyer, he would not miss a beat and would continue to weave multiple themes seamlessly in classic contrapuntal style.  If George Balanchine were a trial lawyer, he would not miss a step and would continue to choreograph his aggressive, angled lines of attack without hesitation.  But no trial lawyer is as adept as J.S. Bach at counterpoint or as George Balanchine at angled lines of attack.

                        Thus, a Zoom Trial, at least for me, presents a challenge that is considerable.

 

Subtleties of Examinations: Tempi, Articulations, and Dynamics

                        A trial advocate has the power to control the pace of a cross-examination, because he or she asks the questions; thus, through the length and structure of the question and the speed with which he or she poses it immediately following the witness’s last answer, the cross-examiner can slow down or speed up the pace of the cross-examination.  Often, a witness under cross-examination tries to seize control of pace.  The cross-examiner has a decided advantage over the witness, however, and should use all available tools to retain control of pace.  

                        Over the years, I had understood the importance of pace from basketball and baseball, which I had played in grade school and high school.  Prior to 1990, however, I did not realize that it was music, not sports, that informed me as to the ways to change pace and to nuance changes in pace.  My concert pianist client’s list of musical expressions described above included three tempi, illustrating the increase in speed in which the cross-examination had unfolded; that is, at some point in my cross-examination, my client had heard me modulate from Andante (walking pace) to Allegro (fast) to Allegro ma non troppo (fast, but not too fast).  Those three tempi are not exhaustive: there are innumerable tempi available to an examiner, some of which are particularly effective during a direct examination of a client or “friendly” witness; e.g., Lento (very slow), Adagio (slow and steady), and Moderato (moderately).

                        Dynamics are integrally related to pace.  Through thoughtful and creative uses of dynamics during direct and cross-examinations, an examiner has the capability to shape and color the witness’s demeanor, to illustrate a witness’ credibility on direct examination; e.g., direct examination of the examiner’s client, or to expose a witness’s lack of credibility or to obtain inadvertent, begrudging admissions from a witness during cross-examination.  Apparently, my concert pianist client had heard me use multiple dynamics, for his list of musical expressions included the following dynamics: pp (“pianissimo”: very soft); p (“piano”: soft); f (“forte”: loud); ff (“fortissimo”: very loud), cresc. (“crescendo”: gradual increase in loudness); “desc.” (“descrescendo”: gradual decrease in loudness); “cal.” (“calando”: decrease in both speed and loudness); accel. (“accelerando”: increase in speed); rit. (“ritardando”: decrease in speed); sfz (“sforzando”: note [or in this case a word] louder than the immediately preceding note [or word]); and rinf. (“rinforzando”: series of notes [or in this case series of words] louder than the immediately preceding word [or note]).   In non-musical terms, his list of musical expressions described a cross-examination in which I had steadily controlled and maneuvered the witness through a series of changes of pace and changes in volume, marked by an occasional, sudden, loud word (sfz) or phrase (rinf.).

                        The range of dynamics available to a trial advocate is enormous.  Leaving aside his extraordinary virtuosity, Vladimir Horowitz had the broadest palette of any concert pianist in the 20^th century.  One has only listen to either of his two recordings of the Liszt B minor Sonata to understand the capability of a musical artist to create sounds ranging from delicate to thunderous.  A trial advocate also has a broad palette of colors - but with words.

                        Finally, there is articulation, another component of my cross-examination reflected in my concert pianist’s notes. Apparently, he had heard me ask a series of questions in a smooth, continuous style (legato), a punchy, choppy style (staccato), and a detached style, somewhere between legato and staccato (portato).  As in the case of tempi and dynamics, a trial advocate has a wide range of articulations which are available for use.

                        After many years of trying cases subsequent to my conscious association of the performance of a musical artist and the performance of a trial advocate, I became comfortable in my ability to use my instincts and judgment to conduct examinations which used tempi, dynamics, and articulations in creative and effective ways.  I thought I had reached a point beyond which I could not improve - until December 2018. 

                        As a birthday present, a close friend arranged for me to have a one-hour lesson with the iconic Gary Graffman, one of the great concert pianists of the 20^th century until a sprain to the ring finger of his right hand in 1977 lead to a more serious injury which ended his career as a performer in 1979.[9]  The quid pro quo for the lesson was my agreement to have a few tastes of Mr. Graffman’s homemade “flavored” vodkas, for which he is well-known.

                        After the lesson and a shot (not a “taste”) of what seemed to be an endless variety of flavored vodkas, including horseradish, mango, orange, ginger, and lemon, Mr. Graffman and I shifted our discussion to my favorite topic: the relationship between the artistry of a classical musician and the artistry of a trial advocate.  Even at age 90, Mr. Graffman - with whom I struggled, shotglass by shotglass, to keep up with his tempi which seemed to peak at something approaching presto! - focused immediately on a nuance that had never occurred to me.  He asked me whether upon deciding to increase or decrease the volume of a line of questioning, I gave consideration to the peak loudness or softness which I wished to achieve.  From my vacant expression, Mr. Graffman intuited that I had not.  

                        Mr. Graffman walked with me to one of his two 9’, Model “D” Steinway pianos in his living room and showed me the Edition originale of Debussy’s etude La Cathedrale engloutie. Mr. Graffman pointed me to four successive measures consisting of the same two chords, for which Debussy wrote the following dynamics: measure 1 (p [soft]); measure 2 (piu p [more soft]); measure 3 (pp [very soft]); measure 4 (piu pp [more very soft]).  Mr. Graffman then explained to me that before playing the chords in measure 1, the performer must take into account the fact that the volume needs to decrease in each succeeding measure and, thus, if the volume in measure 1 is too soft, there will be either an inability to gradually reduce volume in each of the succeeding three measures or, perhaps, the inability to produce an audible, acceptable sound in measure 4.

                        I understood Mr. Graffman’s point but told him it would be impossible to conduct an examination of a witness embracing that subtlety because unlike performance of music, examination of a witness contains totally unpredictable elements, including the content of the witness’s answers.  Unfazed, Mr. Graffman responded, “You know, there’s an old joke . . . .”  I interrupted Mr. Graffman, saying soberly, “I know, I know.” So, I practiced, practiced, practiced.  I am still practicing.  That technique has been, and remains, a challenge.  But it is energizing just to attempt to implement it.

                        Having carefully developed a wide range of techniques to use at trial over a period of several decades, I started my first Zoom Trial several months ago.  As I increased the pace and volume of my initial line of questioning on cross-examination and sensed its immediate impact on the witness, thus guiding me further to increase both pace and volume, the judge - figuratively speaking - threw a bucket of ice water in my face: “Mr. Beslow. We seem to be losing you.  Your voice is choppy.”  Having not touched my computer, I knew that I had done nothing to cause the problem (the “Zoom Glitch”).  Regardless, the Zoom Glitch is unforgiving.  It brought a sudden halt to my cross-examination.  I had to “leave” the trial and re-connect to Zoom.  More than a minute later - after the witness had an opportunity to think about what I had been doing during my cross-examination - the judge politely said to me, “Please resume.”  After pressing the “mute” button so that no one could hear my “hrmpf!,” I continued - but the lapse of time had unquestionably obstructed the flow of my cross-examination.  

                        There are problems affecting the trial advocate’s capability to control use of tempi, dynamics, and articulation during a Zoom Trial other than the Zoom Freeze, the Zoom Drop, the Zoom Loss, and the Zoom Glitch.  For example, the trial advocate does not control the witness’s computer equipment and, consequently, has no informed judgment as to the quality of the sound which the witness hears.  This - the “Zoom Quality Problem” - hinders the trial advocate’s capability to gauge the witness’s reaction to changes in pace and volume, which are critical factors during cross-examination, and obstructs the trial advocate’s capability to measure whether a witness hears words with the same clarity and crispness with which the trial advocate states them.

                         A Zoom Trial presents a second and more insidious problem relating to sound: the witness’s capability to control volume - something which a witness cannot do in a courtroom (the “Zoom Volume Control Problem”).  The source of my recognition of this lurking problem is a trial I had conducted in the mid 1980’s.

                        My client, a feisty, opinionated, and willful octogenarian, was the respondent in a conservatorship proceeding, and she bitterly opposed appointment of a conservator for her.  Periodically during the trial (and always on the record), the judge softly, empathically, and gently tried to guide her to acquiesce in the appointment of a conservator. Each time, my client bristled, glared at the judge, and made gestures clearly indicating her displeasure with the judge and her rejection of his suggestion.  I implored my client to curtail her reactions.  She refused.  After multiple, stern admonitions, my client finally changed her behavior.  During each of the ten or so times the judge renewed his attempt to persuade my client to acquiesce in the appointment of a conservator, she looked at him with a Mona Lisa-like smile, seemingly accepting what he said with equanimity until the judge had concluded his remarks.  The judge seemed very pleased in my client’s apparent acquiescence in the fairness and soundness of his remarks.  When the trial ended, I said to my client, “Thank you for following my advice.”   She replied peremptorily, “I did not follow your advice.”  Surprised, I asked her to explain.  She obliged: “What did you think I was doing when I was touching my ear.”  I answered, “Adjusting your earring.”  She said, dismissively: “For God’s sake, Mr. Beslow, I was turning my hearing aid off!  And I did not turn it back on until I saw that the judge had looked away.”

                        During more than 20 Zoom Trial sessions, I have never seen a witness’s hands.  I have never seen the computer used by a witness.  The possibility exists that a resourceful witness could thwart what would otherwise be effective use of dynamics and certain articulations by controlling the volume on his or her computer, whether by using the computer or a device to alter volume.  A few clicks could reduce ff to p, or even to pp.  The Zoom Volume Control Problem, thus, represents a serious impediment lurking in a Zoom Trial.  This problem, of course, is exacerbated by the fact that during every Zoom Trial, the witness under examination is not in the same room as the trial advocate, thereby depriving the examiner of the capability to assess the acoustics (e.g., dead; lively) in the witness’s room  and further complicating the examiner’s decisions as to choice of volume dynamics (the “Zoom Acoustics Problem”).

                         There are yet other problems incident to a Zoom Trial which hamper the ability of a trial advocate to use tempi, dynamics, and articulations effectively - solely by reason of the fact that the litigants, witness, and counsel are usually in apartments or houses during the trial sessions.  Problems which interrupt a Zoom Trial and interfere with the pace and flow of an examination but which do not occur during a trial in a courtroom, include the following: the “Zoom Crying Baby”; the “Zoom Barking Dog” or its cousin, the “Zoom Dog-That-Needs-to-Pee”; during summertime, the “Zoom Lawnmower”; and the "Zoom R-Rated Streaker.”  Moreover, often there is a palpable delay in transmission (the “Zoom Transmission Delay Problem”), so that the examiner must wait an additional second or so in posing a question after a witness has completed the answer to the prior question.  Occasionally, when the trier of fact asks for a “readback” of testimony, the court reporter’s microphone does not work properly, resulting in a delay while the problem is diagnosed and fixed (the “Zoom Court Reporter Delay”).  The list of additional problems incident to a Zoom Trial, many of which are not a result of happenstance,[10] is extensive.

                        There is a well-known Gospel song, “Give Me That Old Time Religion,” published for the first time in 1873.  For a plethora of reasons, a Pandemic-inspired new rendition for use by trial advocates could be fairly entitled, “Give Me That Old Time Courtroom.”

                                               

Style of Movement: Astaire, Kelly, Nureyev, and Villella

                        A Shakespearian play is generally performed on a stage.[11]  The stage is the actor’s space within which to move in ways designed to display, enhance, and nuance his or her artistry.

                        The “well” of a courtroom - the space available to trial advocates and litigants - is the trial advocate’s stage.  During examination of a witness, a trial advocate is free to occupy this space - the square footage and configuration of which vary from courtroom to courtroom - in such manner as he or she determines.  A trial advocate should use “movement” during examination of a witness to underscore the import of a question or a line of questioning or to cajole, persuade, pressure, or induce a witness to testify in accord with the examiner’s master plan.

                        There are many ways to utilize space in the “well” during the course of examination of a witness.  An examiner can stand at a podium situated to the side or in back of the counsel table; stand at the counsel table; move from side to side or forward and backward, covering distances measured by inches, feet, or yards; and change the pace of movement from slow (adagio) to walking pace (andante).  Seizing the opportunity to use space often enables the examiner to deepen the impact of testimony in favor of his or her client during direct examination or to obtain and develop testimony favorable to his or her client during cross-examination of an adverse or hostile witness.

                        A trial advocate need not take dance lessons or be an accomplished dancer in order to use movement effectively during examination of a witness; indeed, I have observed skilled trial advocates in wheelchairs using movement to take command of the “well.”[12]

                        When I contemplated my reliance upon music to inform my conduct of trials in 1990, I realized that I had incorporated impressions and thoughts about movement that stemmed from my observations about dance and that dance had been a model for my own style of movement within the “well” during examination of witnesses. 

                        In December 1972, I went to my first Davis Polk & Wardwell annual dinner dance.  At one point, I noticed a distinguished senior partner, S. Hazard Gillespie, Jr., Esq.,[13] gliding on the dance floor as he fox-trotted in patent-leather dance pumps with bows.  A few months later, I observed Mr. Gillespie similarly glide in the “well,” as he moved gracefully in multiple directions and patterns while cross-examining a witness at a trial in the U.S. District Court for the Southern District of New York.

                        Through osmosis, I learned that I could use movement to achieve a desired effect.  Fred Astaire illustrated the effective use of legato, even though I would never be able to make more than an amateurish attempt to achieve what he referred to as “an extra-smooth smoothness.”[14]  Gene Kelly illustrated the capability to cross-examine a witness in a seemingly natural, conversational manner, while not disclosing that there existed a choreographed plan of attack.  Rudolph Nureyev (who graciously autographed a playbill when I noticed him - draped in an exquisite, black sable cape - sitting majestically near me in the First Ring at New York State Theatre during a NYCB performance in the 1970’s (and whom I saw in performance both with the Royal Ballet and American Ballet Theatre) illustrated the sheer power in a cross-examiner’s hands.  Edward Villella, whom I saw in many NYCB performances during the mid-to-late 1960’s, illustrated the dynamism inherent in pure athleticism, expressly confirming the athletic quality in his movement in a 1989 interview with The New York Times: “We all have our own quality of movement, and mine happened to be somewhat athletic. . . . You can be athletic and also sensitive.”[15]

                        After 1990, I paid specific attention to the inter-relationship between dance and movement in the “well.”  If music plays a role in trial performance, so does dance - for the interplay between dance and music is clear.  The marriage between dance and music is best described by Balanchine’s famous statement that in attending a ballet performance, one should “see the music, hear the dance.”[16] 

                        Dancers and a heightened sense of the importance of movement and use of space have not been my only guides.  I have observed and learned from fellow trial advocates.  I recall admiring immensely the trial performance of my opposing counsel, as he moved about the “well” during a trial in 2012 in which - in the style of Gene Kelly - his overtly friendly manner during cross-examination shielded his clever, well-designed plan of attack from detection by the witness under cross-examination.  I also recall being dazzled by another opposing counsel, as he carefully carved the space of the “well” to extraordinary effect during a trial in 2015, applying principles of focal length through a camera lens in such a subtle and sophisticated manner that if he had explained his technique to the late Richard Avedon, the effervescent and ebullient photographer would have leaped in the air, exclaiming one of his trademark words of admiration and excitement: “Dynamite”!  I, myself, have tried to develop a pluralist style of movement incorporating principles I learned on the basketball court, in modern dance class at Barnard College (which I attended, while cutting Civil Procedure class during my first year of law school), and in weekly private ballroom dance lessons from 2000 through 2006. 

                           Against this backdrop of careful attention to movement while conducting an examination, a Zoom Trial has jolted me into the bewildering, upside/down world described in “Alice in Wonderland.”  In sharp juxtaposition to the enormous amount of space in the “well” and the freedom to move within the “well,” a trial advocate at a Zoom Trial is “fettered”[17] to his chair.  A slight upper body movement of only inches - to the right or left, up or down - is likely to result in the trier of fact/director/cameraperson noting: “I’m sorry, counselor, I cannot see you.”  A compulsory return to the starting position results in a polite, “Thank you, you may resume. But, please stay within the frame.”  In other words, “Do not move”!  Alas, a Zoom Trial severely hinders a trial advocate’s ability to influence and guide a witness by creative, imaginative, and thoughtful use of movement and space in the “well.”

                        Having spent decades striving to master the technique of using movement and space to enhance my trial advocacy and continually learning new ways to use this technique, I am now compelled to cope with another serious constraint which a Zoom Trial imposes upon all trial advocates: virtual shackles and chains! (the “Zoom Imprisonment Problem”).

                          

Personality of a Trial Advocate: Tracy, Laughton, and Peck

                        The movies “Inherit the Wind,” “Witness for the Prosecution,” and “To Kill a Mockingbird” have one common feature: bravura performances by trial advocates. (Of course, even stellar advocacy does not assure the correct result: Spencer Tracy and Gregory Peck’s innocent clients were wrongfully convicted and Charles Laughton’s sociopathic client was wrongfully acquitted!)

                        The personality of a trial advocate imbues his or her performance in the courtroom.  The symbiotic relationship between personality and performance applies to trial advocates just as it applies to actors and musicians.  This relationship is aptly described by one of Vladimir Horowitz’s most insightful critics - his wife, Wanda, the daughter of the famed conductor Arturo Toscanini.  Participating in a 1977 interview with Maestro Horowitz on “60 Minutes,” Madam Horowitz explained to the interviewer, Mike Wallace, that it was her custom - after listening to her husband play for 46 years - to sequester herself in an upstairs bedroom in their townhouse while he practiced on the piano in the living room so that she would be  in the best position to critique his playing: “That way,” Madam Horowitz said, “you don’t see the personality of the artist.”[18]

                        In the courtroom, the trier of fact and witnesses see the personality of each trial advocate.  Therefore, the trial advocate has the opportunity to be a thespian.  Although a trial advocate’s innate personality may be inextricably linked to his or her personality in the courtroom, a trial advocate should be able to project a personality best suited to achieve the core litigation goals: persuading the trier of fact as to the merits of his or her client’s position and adducing testimony in the most effective ways.

                        A trial advocate need not gain admission to The Actor’s Studio or take acting classes to develop the necessary skills to achieve versatility in presentation of his or her personality in the courtroom.  Over the years, I have approached each trial and each examination by trying to develop an informed judgment as to a multiple of factors, including the sensibilities of the trier of fact, the emotional and psychological make-up of each witness, and - of course - the nature of the substantive issues.  Generally, this process guides me as to the approach or approaches I should take; e.g, sympathetic, reassuring, matter-of-fact, firm, aggressive.  There is nothing that forecloses a trial advocate from displaying multiple personalities during the course of a trial, a proposition I have affirmed over the years.                  

                        A Zoom Trial, however, makes a significant inroad on the capability of a trial advocate to use personality as a trial technique, particularly during cross-examination.  The aura of a courtroom does not exist, thus removing the “chilling effect” of a witness giving testimony while he or she sits just a few feet from the judge presiding over the trial.  The personality of a trial advocate is exponentially more difficult to communicate when the witness sees the trial advocate only by looking at the screen on a computer - the clarity of which is unlikely to be sharp and crisp.  Compounding the Zoom Imprisonment Problem, only the face and upper portion of the trial advocate’s body appears on the witness’s screen, thereby obstructing the trial advocate’s effort to cause the witness - as Madam Horowitz said - to “see the personality of the [artist].”  Finally, there is a somber, serious aura about a courtroom, even one lacking in pageantry.  A witness testifying from a witness stand situated only several feet away from the chair on which the presiding judge sits, surrounded by court officers (with guns in their holsters) and a court reporter transcribing every spoken word with stenographic equipment, and confronted by a trial advocate - the only participant at a courtroom trial with freedom to move about and to use movement itself to influence the witness - is much more likely to feel an imperative to testify honestly and to be susceptible to intimidation than when he or she is testifying from a familiar setting (e.g., his or her office, apartment, or home), both the presiding judge and trial advocate asking questions are no more than distant, sterile images on a computer screen, and the court reporter is not even visible to the witness.  A Zoom Trial is likely to encourage some witnesses to testify disingenuously or, perhaps, perjuriously because the dynamic of a Zoom Trial may result in diminution of the solemnity and significance of the oath administered to witnesses immediately prior to commencement of testimony.[19]

                        The constraints imposed upon a trial advocate by this problem (the “Zoom Personality Problem”) and the limitations imposed by the sterile, artificial environment in which a Zoom Trial occurs,[20] thus, are enormous.                  

 

 

 

                                                                                   

The “Unanswered Question”: Is the Pandemic a Requiem for Trial Advocacy

 

                        Since the centerpiece of this article is the interrelationship between music, dance, theatre, and trial advocacy, it is apropos to reference Leonard Bernstein’s famous series of 6 lectures at Harvard in 1973.  Bernstein, himself, had borrowed the title of his lectures - known as the “Norton Lectures”[21] - from Chares Ives’s 1908 composition, “The Unanswered Question.”  The foundation of the Norton Lectures was an interdisciplinary or cross-discipline approach[22] to analyze the musical question - “whither music?” - which Bernstein had felt to be subsumed within the “highly metaphysical question” which Ives had in mind.  See, Bernstein, “The Unanswered Question: Six Lectures at Harvard,” (Harvard University Press 1976) at p. 5.  The interdisciplinary approach in this article leads to a companion question: “whither trial advocacy?”  As described below, the answer is complex.

                        I have been careful in my selection of words in describing the multiple problems for trial advocates caused by a Zoom Trial; e.g., “challenge,” “impair,” “constraint,” “obstruct,” “hinder,” “impediment.”  Those words suggest Part 1 of my answer to the “Unanswered Question”: for trial advocates with substantial experience and skill, the pandemic is not a Requiem for trial advocacy.

                        An experienced, skillful trial advocate can respond to the impediments and constraints imposed by a Zoom Trial by making necessary adjustments; e.g., by intensifying focus to neutralize the negative effect of interruptions and delays; by countering limitations on movement and use of space and attenuation of physical proximity between the trial advocate and a witness through a new and creative combination of facial expressions, tempi, articulations, and dynamics; by using courtroom experience to measure the flow of examinations and to make on-the-spot changes as to style and technique; and by learning and developing new styles and techniques.[23]

                        Part 2 of my answer, however, is not benign.  The pandemic presents overwhelming obstacles for a trial advocate lacking in substantial courtroom experience and skill.  First, in order to modulate into a nuanced or highly individual style and technique, a trial advocate should know the fundamental rules of trial practice.  This principle is illustrated by Debussy and Beethoven, both of whom understood the need to learn basic rules of composition early in their careers - as a springboard for development of their respective styles, which they knew would augment, violate, or even abandon those very rules;[24] it is also illustrated by Astaire who, early in his career, understood the rules that he intended not to follow: “I wanted to do all my dancing my own way, in a sort of outlaw style.  I always resented that I couldn’t point my toe in, or some other rule . . . .  I felt I was going to become a musical-comedy performer or bust and this meant that there should be no limitations.”[25]

                         The courtroom is an indispensable, irreplaceable training ground for an attorney to learn fundamental rules of trial advocacy.  The pandemic has taken away the courtroom.  Moreover, it has eliminated the opportunity to observe and learn - both what to do and what not to do - from other trial advocates.[26]  A trial advocate who is not adept at use of movement, dynamics, articulations, and tempi and who has not already developed an effective style and technique will find it difficult, if not nearly impossible, to become adept through conduct of Zoom Trials because of the severity of the limitations inherent in Zoom Trials.  A trial advocate who is not facile in formulating questions which are similar, but not identical, will have enormous difficulty in re-formulating a question in responding effectively when confronted with the oft-used objection, “asked and answered” or in re-formulating a question in a slightly varied manner when he or she wishes to augment or nuance a witness’s prior answer.[27] 

                        Regardless of the substantial limitations imposed by a Zoom Trial, trial advocacy remains an art.  The artistry of trial advocacy is a combination of, among other factors, preparation; spontaneity; personality; knowledge; experience; creativity; self-confidence; and execution.  An experienced, skillful trial advocate can still perform this art - and with continued success.

                         While there is no such thing as “perfection” in a trial performance, the excitement and exhilaration of trying a case is the effort to achieve perfection: the “perfect trial;” the “perfect examination”; or, even, the “perfect question.”  In ballet, there is no such thing as a “perfect performance” (although there might be a “perfect step”); nonetheless, Nureyev spent his career - until his body began to betray him - seeking “perfection” in performance.  Trial advocates can, and should, do the same - even if their performance is not in a courtroom.

                        Trials are intensely competitive.  A trial advocate’s using substantial experience and skill to fight the constraints imposed by a Zoom Trial is both necessary and crucial to the continued achievement of successful outcomes.  For these trial advocates, the pandemic is not a Requiem.  It is an obstacle, but one that can be overcome.