This use of the word “active” is a meta-adjective that refers to the work of the actor. Hagen’s stage or film studio is not the magical world seen by the audience. It is a place of work. Her book gives the reader a new appreciation for the work of great actors.
Watching Kevin Spacey being dressed down in House of Cards is exhausting, not because we agree with his character’s cause, but because the actor Spacey is at work, acting out a scene that calls upon him to think about his response, and to communicate this activity. Spacey’s work is even more challenging because his character, the Machiavellian Congressman Frank Underwood (with the iconic initials F.U.), turns to the audience in frequent asides. Thinking, and showing how one is thinking, engenders respect.
Can lawyers and judges, the professionals at work in the justice system, take Hagen’s method and apply it to the way we interact with the public? How can we, like Spacey, draw respect for what we do irrespective of the popularity of our causes or decisions?
Lawyers and thinking
Thinking is important to our work as lawyers. Half the time, thinking is all we do. We implement our thinking during the other half. For half the trial, the trial lawyer does nothing but sit and take notes while listening to the other side’s witnesses (i.e., while the other lawyer is working). During this time, she fine-tunes the cross-examinations that will expose those very witnesses as liars.
A tax lawyer is often seen plotting diagrams, which he will build into a masterful corporate tax plan that will save his client millions. In these instances, clients can see that in our heads we are working, even if the actual task may seem trivial.
Consider the lawyer at mediation, where half the time he and his client are waiting. He can provide the client with value by using that time to predict the offer and weigh the options. Or he can choose how great he can multitask, by using the waiting time to catch up with missed calls from the office. Which activity commands the client’s respect? Which one imparts the message that the lawyer’s mind has left the building?
Law is a thinking profession, yet we do little to garner respect for how much thinking we do. We compulsively take notes while on the phone and dictate memos to the file, to create physical proof of our thinking. But clients will not see this information unless they assess the bill or sue for professional negligence.
The respect deficit stems in part from the myth that lawyers are called to the bar fully formed. Although clients and the public make some distinction between junior and senior practitioners, or the apocryphal ranking of the lawyer’s law school, there is scant appreciation for the divergence of competence among lawyers as thinkers, between the drones and the worker bees.
Some of us plateau after 10 years at the bar, and then fall into a habit of “using common sense.” The problem with over-reliance on habit is the lawyer on auto-pilot can be surprised by such things as new legislation or case law.
Other lawyers, the life-long learners, push themselves to resist habit-forming inertia and consider each new file from various angles, such as client expectations, legal policy, cultural and linguistic concerns, and the optimal outcome. I have seen lawyers do this, pausing, jotting notes, and drawing arrows on their legal pads as though the problem was one of quantum physics. You cannot help but respect them for what they do, because you can see that they are thinking, and thereby working.
Judges and sitting
Judging is actually more analogous to acting than other types of lawyering. The most distinguishing feature of the physical role of judging at the front of the courtroom – sitting – is that judges always look outward.
To the French, who introduced law courts to England, l’audience is polysemic and can mean a theatre audience, people in a courtroom opposite the judge, or the judicial process itself. The historical “bar” (also from the French, la barre, a low wall) appears in Canadian courts as a symbolic railing separating the lawyers from the judge.
Hagen talks of an imaginary partition between the performer and the public called the Fourth Wall. A similar mental partition exists between the judge and the court, in addition to the physical railing.
The role of the judge demands, on the one hand, she not appear to be swayed by the testimony until it is time to render judgment. The stoicism of the judicial officer responds to the public’s expectation that the judge will withstand the temptation to enter the fray. On the other hand, the judge must also show the public she is thinking about the evidence she is hearing. Sitting, for a judge, is an activity, and it is hard work to demonstrate this activity within the confines of the expected role of quiet listener.
Like Hagen’s experienced actor, a good judge must be able to know how to draw on a well of experience. Judging requires mental discipline not only to apply legal principles but also to represent the state as impartial and the community as compassionate. The way the judge handles the Fourth Wall will either engage or alienate the public.
The caricature of the “hanging judge” may inspire fear, but fear in this instance is the antithesis of respect. The judge must demonstrate a thinking process at work, an open mind and an active willingness to follow an argument or consider a plea. Simply sitting like a block of wood and rendering a judgment after the witnesses and lawyers have stopped talking, taxes the public’s ability to have confidence in the process.
At the other extreme, a judge’s overly enthusiastic argument with the lawyer or party implies a mind made up – that the thinking has stopped – and the spectacle can lead to the same loss of confidence.
Learning from acting
Jurists can learn from the acting profession when it comes to earning respect for our ability to think on behalf of the public we serve. Next time you attend a great play or watch a trained actor on the screen, think about what the actor does to earn your respect while not uttering any words. You might find some tips to earn respect for your abilities as a legal professional. I end with two examples, and encourage you to find more:
Precision: Nothing puts a spotlight on thinking like it. Great actors move from one “motivation” to another with pinpoint accuracy. You can see the transitions, by watching their eyes. Precision as a lawyer allows your client interview skills, drafting, and oral advocacy to command respect. Don’t just take down what your client says or instructs. Work with your client to understand their facts, and to come up with practical, meaningful instructions which you can then implement.
Sharing: Good actors are convincing because their craft entails triggering responses such as pain, love, joy, and sorrow, which are often very personal to the actors. Through sharing, they motivate audiences to pay attention. For their part, clients want lawyers to help them. Clients worry when they don’t understand what their lawyer is doing. They panic when they feel their lawyer is not doing anything. To show you are working for them, timely reporting and communication, and clear and polite language, go a long way. Explain to your clients why you ask certain questions. Reward them with motivating words like “That’s very interesting,” or “I follow you!” You may be surprised how helpful your client will be when you share your thinking in this way.