Have you ever faced reading a really dry or tedious, but important, transcript to a jury? Consider hiring an actor to read it for you! It’s a great trial presentation strategy.
My own close call…
In one of my most recent trials, almost every important issue hinged on the testimony of a key witness. My client’s treating physician had previously been deposed over a two-day period. The deposition was wonderful. The physician held up beautifully under vigorous cross-examination, and everything that she said was put succinctly and drew on her substantial expertise in her field. What’s more, in the final three minutes of the deposition, when opposing counsel tried to go at her one more time, the physician stated our case for liability as beautifully as we could have hoped.
Although I gave the physician the trial date, well in advance, I was surprised to learn in the final two weeks leading up to trial that the she had gone abroad to do research, apparently forgetting to notify me, and would be unavailable to testify.
Throughout my time as a trial attorney, I have periodically encountered the situation where a witness became unavailable. I knew that as long as I was able to demonstrate that the witness was unavailable, I would be permitted to read all or part of her transcript to the jury. But, the testimony was quite long, and could not really be cut down without damaging our case. On top of that, it was filled with medical terms and scientific discussion about the central nervous system. In my view, if I, or my law clerk, simply read the transcript to the jury, their eyes would glaze over and they would not follow what was some of the most compelling testimony in the entire case.
So I hired an actor.
You’re a professional: Hire a professional!
This turned out to be a great trial presentation strategy. Actors are trained to be able to read text and convey the tone and emotion in the text. I didn’t want an actor to play like she was being a doctor. Rather I wanted an actor who could read the material in such a way that it would sound conversational and would hold the jurors’ attention.
Through some theater connections I had, I located an actress who had played the part of various authority figures on stage. She was an excellent reader, and I was really excited when she agreed to come to the trial as part of our team and to read the deposition transcript at the appropriate time.
In preparation, we didn’t tell her how we wanted her to deliver the text. We did not coach her to emphasize or deemphasize areas of testimony. In case she was questioned about her background, we wanted her to be able to say, truthfully, that she was not coached in how to read the transcript.
We did, however, go over the pronunciation of words with which she might not be familiar, so that when she got to those places in the text, she wouldn’t stumble. In theater, we refer to having our concentration on a play broken as being taken “out of the moment”. We didn’t want anything to take the jurors “out of the moment” while she read this testimony.
Her reading was brilliant. I read the questions to her and she read the answers. She was as engaging in her reading of the deposition transcript as you would expect any of your best witnesses to be testifying live. She seemed to understand, owing to her training as an actor, how to deliver the appropriate tone and get the material in the deposition across to the jurors, without seeming phony or like she was acting. Truly, the jurors were on the edge of their seats. The trial presentation strategy seemed to have paid off.
After the jury came back with a verdict in our favor, a number of the jurors actually told me that she was their favorite witness! Even though they knew she was not the actual treating physician, her reading of the transcript was so seamless, and seemed so natural, that in their minds they did not distinguish her from the treating physician herself.
The takeaway here is that if you find yourself with the lengthy transcript that must be read to a jury, put careful thought into who will read it. And, if you can, consider contacting your local professional theaters for lists of possible actors. If you employ this simple trial presentation strategy, one of them might deliver the performance of your life!