Speaking Engagements

Law-as-Performance

Abridged Discussion Draft for Law, Culture & Humanties Conference - University of London/Birkbeck
03.22.13

When we talk about the performative aspects of law we could be thinking of things that are obvious and well documented (e.g., at a trial all the lawyers and witnesses are in some sense “acting”) to things that are hidden (often in plain sight) and rarely considered (e.g., legal spaces brim with semiotic significance). Then, too, we could be thinking of things pitched at an even higher level of theoretical abstraction (e.g., legal texts—like dramatic texts—are largely inchoate; they must be performed to make any actual or causal difference in the world). I think all these facets are worth close examination, but here I want to restrict my focus to just one: the lawyer’s performance as narrator in closing arguments. As a running example, I’ll ask us to consider Daniel Webster’s summation in Commonwealth v. Knapp, in which Webster deploys a framed narrative to serve as an exemplary narrative. Both those terms call for elaboration, so let me briefly detour before getting to Webster’s argument itself.

In a trial there is an inevitable tension between story and discourse, which is to say between what “really” happened in the past and the presentation of what happened in the specious present of the trial.  In a classic murder scenario, Frank is hard up for money, while his aging uncle sits on an unused fortune. If the uncle dies, Frank will inherit. So Frank hires a hit man to do the uncle in. The hit man breaks into the uncle’s home through a garden window, and stabs the uncle while he sleeps. But the hit man unwittingly leaves footprints in the garden, footprints that bear the markings of an unusual shoe, which the police quickly trace back to the hit man, who—once arrested—confesses and implicates Frank in exchange for leniency. That is the story—what really happened, set out in more or less chronological and causal fashion. At trial, though, jurors will hear a jumble of evidence taken out of sequence. For example, the first witness may be the coroner, testifying that the uncle died of stab wounds. A casino manager may then testify that Frank had a gambling problem and that he owed thousands of dollars in gambling debts. Then the owner of a shoe store may testify about the rare shoes and how someone who looked like the hit man bought shoes with the unusual sole. The hit man may then testify that Frank hired him to kill the uncle. But each of these witnesses will be subject to cross-examination, and other witnesses may say contradictory things. From this discourse, the jury must construct a narrative that will justify (to them) the verdict that they render. How close that reconstructed narrative resembles the real narrative is of course another matter. What we’re concerned with today is how a lawyer can take trial discourse and (re)perform it in a way that guides the jury to one narrative version or another.

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