The Trial Lawyer's Art (review)

Readers of this journal may often face the challenge of proving to the public that folklore is not found exclusively in rural or exotic areas, among elderly rustics with little formal education. That folklore is central to the lives of some of the most highly educated members of society may shock certain sophisticates who fail to see the folk among them.

Such was the case in the summer of 1986, when professional trial lawyers in suits and ties became one of the leading exhibits in the annual Festival of American Folklife (now known as the Smithsonian Folklife Festival) in Washington, D.C. Placed on the National Mall next to wood carvers from New Mexico and moonshiners from Tennessee, the participants in the American Trial Lawyers Program successfully demonstrated to an often skeptical public that law-school graduates and distinguished members of the Bar may also be active bearers of tradition.

Sam Schrager, the curator of this 1986 Folklife Festival program, has expanded his original project to produce The Trial Lawyer's Art, an insightful and lucid examination of contemporary occupational folklore. Based in part on the tapes and transcripts from the 1986 program, as well as ethnographic research conducted in the criminal courtrooms of Philadelphia, Schrager makes it clear that trial lawyers-like coal miners, lumberjacks, stone carvers, firefighters, and cowboys-constitute an occupational folk group in every meaning of the term.

Defined as "the small subset of criminal and civil attorneys who regularly argue cases before juries" (p. 6), trial lawyers directly compete, often one against another, in performance narratives and logical analysis, until a discerning audience of 12 renders a final verdict. The best trial lawyers, like the legendary Cecil B. Moore of Philadelphia, regard the courtroom as not just a stage on which to perform but a primal field of combat that must be controlled and dominated at all costs. One of the secrets of Moore's success was to "make the jury forget the defendant and try the two lawyers" (p. 94).

Both the performative and combative skills of trial lawyers are indelibly captured in Schrager's study. His first two chapters closely examine the oratory and persuasive skills of Roger King, a district attorney for the Commonwealth of Pennsylvania. With meticulous transcriptions that illustrate both the poetics and the formulas of courtroom oratory, Schrager demonstrates that King and other luminaries have a formidable repertoire of formulaic expressions, rhythmic repetitions and signifiers, and distinctive body movements and gestures that can be artfully employed to sway a jury.

The book's third chapter explores the "well-honed folk identities" that individual trial lawyers from around the country have constructed over time (p. 103), and chapter 4 gathers together an assortment of "war stories"-told with eloquence, pathos, and self-deprecating wit-that further illustrate the maxim that "nothing lawyers do is original. It's a tradition" (p. 114). Consequently, for members of this occupational folk group, the trial itself is a collective ritual in which their artfully competitive performances are carefully crafted to provide "the appearance of truth" (p. 5).

But our system of justice seeks more than simple appearances, and the author, to his credit, concludes by assessing the consequences and moral responsibilities of the trial lawyer's art. Granting that the best lawyers with the best resources have the best chance of winning, Schrager calls for greater parity (in terms of legal skills and resources) between the two sides in order to achieve the fairest verdict possible. That this solution seems far too idealistic for the cutthroat competitors described elsewhere in this volume is no reflection on Schrager. Like all folk groups, occupational or otherwise, trial lawyers will try to maintain the efficacy of their cultural practices in part by resisting the efforts of reformers to elevate and enlighten the (so-called) debased elements of the folk. One might even swear that is the truth, the whole truth, and nothing but the truth.