October 23, 2014

Of Counsel

Courtroom Drama: Is it ethical to hire actors to portray witnesses?

Art Levy | 6/14/2011


"It's all theatrics," says trial attorney Marc Brumer. [Photo: Donna Victor]
During a car crash trial seven years ago, a policeman who helped investigate the accident couldn't attend, so Miami personal injury lawyer Marc L. Brumer asked someone else to read the officer's deposition to the judge and jury. "We're reading it, and the jury is falling asleep because it's so boring," Brumer says. "The jury didn't hear it. The testimony wasn't being delivered."

The next time a crucial witness couldn't make a court date, Brumer didn't ask a legal secretary, paralegal or another attorney to read the deposition. He hired a professional actor — and was pleased with the difference. Thinking he might be on to something, Brumer teamed with Ellen Jacoby, a Miami casting director, and created Actors-at-Law, a company that connects lawyers with actors.

"If a doctor isn't available, which happens all the time, you can do a casting call and find some guy who was on "One Life to Live," some gray-haired guy," Brumer says. "You give him the deposition ahead of time so he's prepared, and he'll come in and you're going to get what you need."

Hiring actors to portray witnesses hasn't become widespread enough to draw the attention of the Florida Bar, so there aren't any rules that govern it.

Brumer, for example, isn't required to disclose that his deposition reader is a professional actor. In a legal sense, he says paying an actor $200 an hour to prepare and read a deposition is no different from asking a legal secretary or a paralegal to stand in for a witness.

Orlando attorney Donald Christopher, who chairs the Florida Bar's Civil Procedure Rules Committee, says he's not aware of any thespian involvement in cases he's handled. But he says if he ever does find out that actors are being used, he'll make certain the jury knows.

"Normally, you have another attorney or a staff person read the deposition," says Christopher, a founding shareholder of Litchford & Christopher. "My reaction would be if an opposing party wanted to do this, I'd say, 'Fine, you can have anyone read it,' but I would want the judge to instruct the jury that this person is a professional actor, particularly if they tried to put some emphasis or inflection in there that an otherwise dispassionate reading of the deposition might not include. I would try to turn it against them. I would probably comment on it during closing arguments."

Christopher, who asks paralegals or co-counsels to read depositions when witnesses can't show up, says he wouldn't chance hiring an actor himself for fear of looking "too slick."

A less obvious way that attorneys bring theatricality into court proceedings is by giving witnesses acting lessons. Bobbi Spencer, a Tampa Bay actor and acting teacher who recently moved to Naples, has found work tutoring witnesses on how to testify more effectively. Her specialty: Prepping accident victims.

"I look at it like everyone has a part to play — and of course lawyers know that better than anybody," says Spencer.

"Generally, the guy or girl who performs the best in court wins."

Calling herself a "court performance specialist," Spencer first preps witnesses on what to expect in court. The witnesses practice speaking clearly and pronouncing words correctly. And they practice answering likely questions and describing the accident and its aftermath in ways to best move the jury.

"Emotional distress and physical pain — that's the focus, not just that the person got hit by a car," Spencer says. "We use phrases like 'scared to death' and 'shook me like never before.' They have to show emotion, even if they are not emotional people."

Brumer himself tries to bring his acting skills into the courtroom, using dramatic pauses to make a point. A member of the Screen Actors Guild since 1986, he briefly considered a career in acting before going to law school and joining his father, Michael Brumer, to practice law at Brumer & Brumer in south Florida. Now, when he has time, he auditions for roles in films, television shows and commercials. His toughest audience, though, is usually a jury.

"In front of jurors, it's all presentation," Brumer says. "I'm a trial lawyer. We're storytellers. It's all theatrics. You have to give them a dog-and-pony show always."

Tags: Politics & Law, Government/Politics & Law

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