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ADVOCACY:

PERFORMANCE OF THE LAW


ACTING TECHNIQUES FOR LAW
STUDENT MOOTERS
James E. Smith

INTRODUCTION
The purpose of this paper is to introduce a new method of legal training for
law students. The objective is to demonstrate how the techniques of the
actor, director and theatrical instructor, may be applied to the training of future
advocates. It will look at ways the law is taught today and then assess if the
principles of the actor may help close any gaps which exist in legal training.
To do this, the paper will first establish what advocacy means. It will then
point out any similarities between the actor and the advocate, and more
importantly, any differences. The focus will then turn to some of the
techniques used today in legal training such as role playing, simulation and
finally the most widely used and historical method of legal training , the moot.
It will then apply some acting techniques such as the exercises in relaxation,
essential before any performance. This paper will pay particular attention to
the use of improvisation to develop specific aspects of the performance such
as eye contact, speech and the actors attitude to the audience, and finally
how the actor should analyse a scene of a play to its very basic level of
understanding in order to gain the most out of the performance. The paper
will conclude with an evaluation of the applicability of these theatrical
techniques and their benefit, if any, to; not only the mooters and legal
students in general, but to the practicing advocates these students will
become.

PART ONE - THE ADVOCATE AND THE ACTOR


What is an advocate?
By one definition, advocacy is not a science but an art. In fact it is the art of
presenting, and presenting before an audience. In law that is the court, and
the court may include a jury.
Advocacy The art of conducting or presenting before a court.
An advocates work comprises argument or making speeches

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(called addressing), questioning witnesses, and preparation and


planing these tasks1.
Even at first glance, the role of the advocate bears similarity with theatre. The
theatre, too, is the art of presenting, and the person presenting is an actor in
that theatre. Like an actor, an advocate makes argument and speeches
before an audience. This should be the first hint that there may be some
suggestion of a deeper similarity between the two disciplines. It then may
follow that some of the techniques used in the training of the art of the theatre
may also be used in the training of the art of the advocate. Both deal with
presentation and conduct before an audience. It is the aspect of presentation
that this paper will focus on, as above all else the techniques of the theatre
are the techniques of communication2
Similarities
This section will consider the actual processes involved in both the actor and
the advocate.
When a playwright puts words onto a paper it creates a story of some
happening. The actor takes those written words, lifts them from the page,
and puts them into physical action before a gathering of people (the interested
third party). It is the job of the actor to then perform these invented actions so
well that the interested third party will believe they are not invention but real
life events, happening at that moment on the stage. In the course of the play,
there may be other actors that work to defeat the main actor in some purpose
the actor has undertaken, within the story line of the written words. 3 The
conclusion of the play will be the actors victory or defeat.
[M]any Greek plays are little more then staged debates.4
While this is a simplification of what really happens it does serve to illustrate
the objectives of the performance, namely, (1) to entertain and to hold the
attention of the audience; and (2) to inform what is happening to the actors on
stage within the confines of the play.5
When a client comes to the advocate they tell a story, which involves a
request or question on some point of law. The advocate then presents that
story, as a plea for some judicial action before an interested third party, either
a judge or a judge and a jury. During the course of the presentation, as in the
theatre, there is an opposing side to the story. Following this analogy to its
logical conclusion, the conclusion of the court room play will be the victory or
defeat of the advocate as to whether he is granted the requested action or
not.
The condition of our survival [victory] in any but the meagerest
existence is our willingness to accommodate ourselves to the
1

Butterworths Concise Legal Dictionary, third edition, Peter Butt(ed)


V. Spolin, (1963): 14
3
R. Cohen,(1988):27,
4
R. Cohen,(1988):71; M. Burder, (1986):19
5
R. Cohen,(1988):50-55
2

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conflicting interests of others, to learn (sp) to live in a social


world. (Learned Hand J)6
Like the actor, the advocate has informed the audience of some otherwise
unknown information. Whether this has entertained the judge or jury is not a
matter for this paper. Entertained here refers to the capturing and holding of
the courts attention.
Differences
It is most important, if not essential, to distinguish the differences between the
actor and the advocate.
At no time does the actor ever take part in a real life event. Theatre is never
real. It is not real life, but rather a representation of events, in a real life
manner, under controlled conditions for the actor and the audience. People
come to the theatre to vicariously experience something that will most likely
never happen to them.7 Or, alternately, it is happening to them now in their
real lives8, but they do not realise it until someone on the stage points it out to
them. 9 The job of the theatre is to advise and inform. If what the audience is
witnessing does not have some suggestion of either of these two elements,
then it may be said, that what they are watching is not theatre.
At all times the advocate must never forget that what they are dealing with is
real life, importantly, someone elses real life. What the advocate does in the
court cannot be asked to leave the stage as an actor can in theatre, because
the audience didnt like the way the advocate was performing his task. It is
essential that the advocate never forgets that someone elses life may depend
on them doing their job well. How best to train law students, and the
adequacy of the training, to fit the purpose of the future advocate, has been a
serious question for legal educators. This is why the aim of this paper is to
arm the student lawyers with techniques that will help them present to the
court.

PART TWO - LEGAL EDUCATION


As far back as 1993, writers of legal educational texts were bemoaning the
need for skills training at a university level, So far, training institutions have
paid little attention to providing any formal, structured training in advocacy
skills for solicitors,10
In 1994, Fiona Martin pointed out,

Learned Hand, (1931):87


R. Cohen, (1988):20
8
A. Hicks, (1996) :4
9
W. Shakespeare, Hamlet, 3:2; 24-25
10
K. Tronc, (1993):5
7

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There is still a school of thought that considers training in skills


a trade school task or a matter for other stages of the
educational process and not a proper concern of universities.11
Ms Martin went on to point out the Pearce Reports (1987)12 recognition and
endorsement of students studying legal skills at an undergraduate level. She
goes on to add Noel Jacklings (1986:4) list of benefits for an integration of
academic and practical training as:

Theoretical learning is enhanced and reinforced.


Theory is put in context, in real life perspective; students are
able to make connections between the academic and the
practical.
Integration helps avoid the belief that law in text books and law
in practice are the same thing.
Integration facilitates the perception of problems as being
multifaceted and not often presenting themselves within subject
divisions.
Integration minimises the likelihood that law is regarded as
having merely intellectual consequences rather than practical
ones.
The student is less likely to formulate the view that most law is
adversarial.
Non-academic skills are best learned across time, rather than
deferred in the belief that they can be learned in six months in a
practical training course.
Development in communication skills will be facilitated13.

She also adds that academic education and training [should be placed in] a
real-life perspective.14
It was in an attempt to incorporate these benefits that Monash University
began dabbling in role playing as a method of instruction of skill training
back in the early 1990s.
Role playing is a method of using students to play clients and practitioners in
a variety of hypothetical scenarios. Monash based their instigation of role
playing on D. A. Kolbs two matrixes of his learning theory. These matrixes in
turn were based on the cognitive perspective of learning and involved:

Concrete experience- requiring involvement without bias,


a practical hands on approach;
Reflective observation-requiring listening, watching and
observation from an open-minded perspective;

11

F. Martin, (1995):46
The Pearce Report (1987)
13
F. Martin (1995):46-47
14
F. Martin (1995): 47
12

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Abstract conceptualisation-requiring an analytical


approach, integrating observating in theories and thus
developing general principles.
Active experimentation-requiring the testing of the
theories, problem solving and decision making.15

Adult learning may be described as:


psychological contract of reciprocity (James 1987:282),
which requires that adult learners give of their present
knowledge. This helps them integrate and apply new
perspectives. They also get from other learners and
thus incorporate new ideas.16

By the year 2000,


The brief of several of the new law schools, including Griffith,
my own, was to move legal education beyond the reductive rote
learning which typified many law schools and to incorporate
critical and contextual perspectives and a student-centred
approach to legal education. A second, even more radical
change wasskills teaching became increasingly important.
the large groups were not lectures but encompassed a variety
of pedagogical approached, including role plays, buzz groups
and report backs.17
The one skill that all legal educators agreed upon was the need to develop the
skills of communication.

PART THREE - TECHNIQUES OF


COMMUNICATION
Role Play
By 1999 such learning methods as role playing were more widely used.
Samantha Hardy used it in her The Market Day Project. This was:
a series of activities aimed at giving students a number of
different perspectives on legal disputes involving consumers,
and at engaging them in the complexities of a life-like situation.
In the early activities the students play the roles of consumers
and retailers and, in effect, create their own disputes. In later
activities, the students act as the lawyers for the consumers and
retailers, isolating the legally relevant facts from the earlier role-

15

R. Hyams (1995): 65
R. Hyams (1995):65
17
S. Berns (2000):267
16

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plays, negotiation with the other disputants, and providing legal


advice.18
Ms Hardy saw this as encouraging dramatic skills such as role-playing the
pressured salesperson during the purchase transaction,19 which is a perfect
example of the teaching methods of the theatre being applicable to the
training of advocates. But is there more that Ms Hardy could have
incorporated into her series?

The Market Day Project


The aim of the project was to create a contextual simulation which put the
students in an artificial real life situation or a market place where the students
could be the people in the market place and experience first hand the
experiences of consumer/retailer in a hands-on way.
From a legal perspective the aim of the series was to develop students
functioning and declarative knowledge of consumer protection laws. With the
aid of the dramatic use of role playing, the students went on to develop a
procedural knowledge and conditional knowledge of the laws as well. 20
From an educational perspective,
The exercise departed from the traditional assignment model in
that it required the students to consider a consumer protection
problem from the beginning of the transaction giving rise to the
legal issues, rather than dealing with the issues in hindsight, well
after the transaction had taken place. 21
The use of the groups was designed to mimic the approaches
to problem-solving found in the workplace and students [were]
expected to learn approaches to resolving conflict, planning and
managing time.22
From a theatrical technique benefit perspective, the students had to be
creative in what they had to say and do. They did not have a set course of
action or dialogue, but rather the adventure of improvisation.
Half the students role-played consumers wanting to purchase a
product. In doing so they needed to consider what the
consumer might want in a productThey also had to think about
the types of questions that a consumer might ask of a sales
person during the actual purchase of the product.23

18

S. Hardy (2004)
S. Hardy (2004)
20
S. Hardy (2004):205
21
S. Hardy (2004):205
22
S. Hardy (2004):207
23
S. Hardy (2004):206
19

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This on the spot invention is the acting process at work. It allows people to
develop skills of communication not found in most other areas of learning.
What the Market place series did was allow the students to put theory into
practice which is precisely what the students complained about a decade
earlier as in Ross Hymans article,
Students consistently report that they find lecture method
irrelevant and uninspiring. This method has been described as
non-involvement, non-experiential, non-interest arousing and
nonsense as a method of teaching professional responsibility.24
With the use of an acting technique, if not the training technique, known to
the theatre as improvisation, the law has been able to train its students for the
real world without harm to real people.

Improvisation
Improvisation was a technique developed by Viola Spolin. It is a method of
training actors by playing games.
The game is a natural group form providing the involvement
and personal freedom necessary for experiencing. Games
develop personal techniques and skills necessary for the game
itself, through playing. Skills are developed at the very moment
a person is having all the fun and excitement of playing a game
has to offer- this is the exact time he is truly open to receive
them.25
We may now revisit one of the characteristics of the actor, being that acting is
never real. At no time is it real people doing real life events for their own
purpose. Acting is the use of real life actions to portray an artificial scenario
created by someone else for someone elses viewing. This has now been
done for the advocate, by applying acting techniques to the training of law
students.
The main principle of Ms Spolins technique is that a scenario (a game to be
played, dealing with a specific problem) must be created. The players must
then solve the problem within certain rules. For each game there is a point of
concentration that the players work around.
In the Market Day Project, different scenarios were created to learn different
aspects of consumer law. This was played around the point of concentration
of the need to buy or sell a product, all within the rules of the relevant law.
These are the principles of improvisation and the theatre being used to train
legal students, the main objective being to develop communication skills.26

24

R. Hyams (1995):64
V. Spolin (1963):4-5
26
S. Hardy (2004):204
25

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The students then played out these events pretending they were real life, for
assessment by an interested third party, another characteristic of theatre.
These scenarios entertained, as in holding others attention, and did advise
the other person and the interested third party. Thus incorporating all
elements of the theatre and educating law students into the workings of the
law in the real world with the protection of the theatre.

The law and theatre today


Right up to the present day, some legal practitioners have found it difficult to
rhyme theory with the practice, as in the case of Tureen Afroz, a lawyer from
Bangladesh.
I realised for the first time that trial advocacy does not mean
only knowing the law. It means much more than that. Knowing
the law and its application is of course a necessary condition but
not a sufficient one. Advocates should more importantly know
how to present their case in the court. It requires skill and that
was never taught in law schoolsAdvocacy, as I have learnt
now in Australia, is just like a performance perhaps a theatrical
one. A courtroom is like a stage for trial advocacy where they
have to do their final performance.
Of course they have a definite costume (gown) to wear, a theme
(theory of the case) to establish, dialogue (arguments) to
communicate and above all, an audience (judge, jury,
colleagues and clients) to impress. Advocacy is like an art
They should also give particular attention to matters like the way
they stand before the court or move their hands while
addressing the court. Their voices should be distinct and their
speech should be audible. They should always try to make eye
contact with the judge and the jury.27
Mr. Afroz ends this observation, noting that a successful courtroom
performance does not happen by accident. Advocates have to develop this
craftsmanship within them.
Mr. Afroz is not the first to compare the court room with the theatre or to
suggest we look to the theatre for the skills needed as an advocate. As far
back as 1993, Keith Evans was saying much the same thing. In fact, in his
book, The Golden Rule of Advocacy, he dedicated an entire chapter to the
Advocacy of the theatre28.
The court of law is theatre. It should be professional theatre.
Your job is to make it professional theatreyou wouldnt want to
be an advocate if there werent something of an actor inside
you.29
27

T. Afroz (2005):90
K. Evans (1993):Chapter 5
29
K.Evans (1993):31
28

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The chapter begins so promisingly and then stops short of going into the
world of the actor to bring out the skills needed by the advocate, particularly
communication skills. Mr. Evans enthusiastically puts forth buzz words like;
entertainment, drama, a good story line and audience, but offers nothing of
the training techniques available to the actors to do the simplest thing, such
as making eye contact.
Objectively, it seems too easy to simply tell someone to make eye contact.
However, that becomes a problem if that person is so shy they are convinced
they will burst into flames if they look another person in the eye. This may
mean that this shy person cannot become an advocate because the legal
training offers nothing to improve a persons confidence. Writers, like Evans,
suggest that the skills needed are there for us in the theatre, but none of them
actually go to the source and reveal to us the methods used to develop those
skills.
Viola Spolins techniques of improvisation have two specific exercises for the
development of eye contact.30 It is these elements of the training process that
are needed to develop the advocate for a life in the public eye of the court.
It may be easiest to apply some of the more basic techniques of the actor by
superimposing them into practice while examining the most common of legal
training techniques - the moot court.

PART FOUR- THE MOOT


What is mooting?
The origins of mooting have long since disappeared into the blur of history.
Some believe it can be traced back to medieval times:
Young men residing at the Inns as apprentices took instruction
from their seniors and were required to perform in moots over
several years before they could be admitted as practitioners.
Moots were one of the few formal features of the legal education
of the time.31
The mooting process may be defined as the discussion of a hypothetical case
by law students for practice; a hypothetical doubtful case that may be used for
discussion.32
There are three key features of mooting which have survived from historical
time to now:

30

V. Spolin (1963):176
A.Lynch ( 1996):68
32
Cambridge University Guide to Mooting
31

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students assume the roles of advocate before a simulated bench


(which may comprise professionals, and/or academics, or studentsdepending on the formality of the proceedings);

Students argue points of law before the bench, which arise from a
hypothetical scenario they have been supplied with;

Students are expected to be able to answer questions from the bench


relating to the arguments presented or any other relevant law that the
students may not have considered.33

There is a difference between a moot and a simulated trial. A moot does not
have a jury or witnesses. It does, however, have judges who assess the
merits of the cases put forth. Thus the acting techniques presented for the
moot would also apply to the simulated court room. For simplicity, the focus of
this paper will remain with the moot court.
Like the role-play of Hardy, the mooters have been given a predetermined
scenario from which to apply the law. Remembering the characteristics of the
actor and the theatre, someone other than the mooters has created an
artificial situation to which they must react. This information is to be conveyed
via speech and gesture, to an interested third party, ideally in an interesting
manner. This then fulfils the required elements of theatre - to entertain and
advise.
From an education perspective mooting is seen as a good example of
assessment, which involves;
Multidimensional approach to studentsa form of learning
which may be constructivist, experimental and problem-based.
Constructivism may then be reduced to having three
characteristics:
Firstly, there is a process of knowledge constructed, not of
knowledge recording or absorption. Second, learning is
knowledge-dependent; people use current knowledge to
construct new knowledge. Thirdly, learning is highly turned to
the situation in which it takes place34.
The Cambridge University Guide to Mooting has some very definite things to
say about what mooting is and isnt.
Mooting is fun, and it can give you a taste of what it is like to
argue cases in court. It is essentially practice court room
advocacy on a disputed point of law. Advocacy is widely

33
34

A. Lynch ( 1996):70
A. Lynch (1996):77

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misunderstood: it is not public speaking; it is not debating; and it


is not acting35.
It was stated earlier that advocacy is not acting, but it may be an art, and
being an art, as is acting, it may share some of the techniques used by the
actor. If mooting is practice court room advocacy, then the techniques of the
actor should also apply to mooting.

PART FIVE- THE ACTOR PREPARES; THE


ADVOCATE PREPARES
While the techniques of the actor may be applicable to the advocate, there are
still some basic differences. This being so, while the essence and purpose of
the techniques remain the same, modifications must be made to adapt them
to the circumstances of the legal profession.
Any book on advocacy will tell you that the first and most important thing the
advocate must do is prepare his case. For example see Micheal Hyams,
Advocacy Skills, chapter 236; Noel Shaw, Effective Advocacy, chapter 2;37 and
Keith Tronc and Ian Dearden, Advocacy Basics for Solicitors, page 5:
The most basic of all the ingredients for successful advocacy by
solicitors is careful and thorough preparation38
They all state the essentiality of preparation before you walk into the court
room. It is the same for the actor.
The actor must know something about the character being presented to the
audience. The actor does one very important thing before placing a foot onto
the stage, being the preparation of mind and body for the task.

Technique 1: relaxation exercises


An actor cannot just walk onto the stage. Otherwise they would take with them
all the stress and tensions that they have built up throughout the day that is
not in the script. If tension is to be displayed on the stage, then it is the
tension the writer has called for in the script not what the actor has brought in
with them.
Constantin Stanislavski makes it clear why it is important to be relaxed when
doing any type of performance.
To convince you of how physical tensions paralyses or actions,
and is bound up with our inner life, let us make an experiment.
Over there is a grand piano. Try to lift it.
35

Cambridge University Guide to Mooting (2005): forward


R. Hymans (1990): chapter 2
37
N. Shaw ( 1996): chapter 2
38
K. Tronc (1993):page5
36

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[The students try lifting the piano but can only manage to raise
one corner.]
While you are holding the piano up, multiply quickly thirty-seven
times nine,you cant do it? Well, then, use your visual
memory to recall all the stores along the street from the corner
to the theatrecant do that either39?
The student is asked to perform several more seemingly simple tasks while
holding up the piano, but cant. Once the student sets the edge of the piano
down is he able to perform all the tasks asked of him, especially the ones
concerning memory of facts.
Does this prove that muscular tautness interferes with inner
emotional experiences?...before you attempt to create anything
it is necessary for you to get your muscles in proper condition,
so that they do not impede your actions. 40
The point is, if your muscles are tense, then it interferes with your appearance
and memory capabilities to function properly. It is just as important for the
advocate entering the court room to be relaxed as it is for the actor stepping
out onto the stage. Any performance is the same thing with the same level of
stress. The only difference is that the actor knows this and has developed
exercises to overcome the tensions. Advocates do not know this because
they have not been trained for it.
Relaxation exercises should be taught to student advocates from the very
beginning of their academic career, just as student actors are taught them.
This is not something only for a students academic life; it is life practice in
more effective advocacy.
There are difference between the actors preparation and the advocates
preparation. For these purposes, the actor is standing in the wings of a
theatre with no one from the audience watching what is being done. Here, the
actor has room to swing arms, bend, squat, shake and do what the actor has
been trained to do.
For the advocate, they may be in some public area, dressed in formal daywear, with limited movement. What is need is a relaxation method that is both
subtle and effective - the isometric squeeze relaxation.41 What is important
is that the advocates know the difference between muscles being tense and
relaxed. This even means knowing how to breathe.
There is a difference between relaxed and tense breathing. One sure sign of
tension is an audible struggle in a persons breathing pattern.

39

C. Stanislavski (1937):96
C. Stanislavski (1937):97
41
J. Smith (1985):61-82
40

169

A quick shortness of breath may indicate that you yourself do not believe what
you are saying, which in turns sets off an alarm to the listener to pay close
attention, to determine if there is a falsehood being said.
By squeezing the stomach, even while sitting, it is possible to:
slow breathing pace, moderate rhythm, and encourage
greater use of the diaphragm. Passively breathing in or
out through the nose or lips, or synchronizing breathing
rhythm, and pauses42.
These isometric exercises can be modified to accommodate the court room;
pressing down on the arm of a chair will not draw attention from the judge or
jury, but it will help the advocate release tension in his body.

Technique 2: scene analysis


The actor does not just walk onto a stage and then think of why they are there
and what they have to do.
Whatever happens on the stage must be for a purpose.
Even keeping your seat must be for a purpose, a specific
purpose, not merely the general proposes of being in
sight of the audience.43
The actor needs to have some idea of where they are going and what they
are going to do physically, before they make a move in front of an audience.
Mooters should have the same information before they enter the court room
and stand before the judges. Mooters should think of the court room as the
scene of a play. With this in mind, the mooters can use an actors technique
of scene analysis to prepare themselves for the moot.
Some actors use a three step process to analyse a scene.
1. What is the character literally doing?
2. What is the essential action of what the character is doing in this
scene?
3. What is that action like to me? Its as if44
All of these questions are asked on the other side of the door. That is, before
the mooter opens the door and enters the room.
The first step is important even though it may not be so obvious when applied
to mooting.

42

J. Smith (1985):115
C. Stanislavski (1937):35
44
M. Burder (1986):19
43

170

Step 1: What is the character literally doing?


When it speaks of literally doing, it means literally doing. To the mooter this
should mean thinking about what they are going to do when they first walk
into the court room. The answer is to walk into the room, find a chair in the
appropriate place and sit down. This would usually be the appellant/plaintiff to
the right side facing the bench and the respondent/defendant to the left side of
the bench and facing it. That is the literal action involved. See
http://www.law.murdoch.edu.au/mcb/mooting_etiquette.html for a diagram of
the relative bench positions.45
This takes away some of the responsibility for determining what their next
step is to be. The mooters already know the first thing they have to do. This
starts the moot off on a positive footing. The mooter already knows
something, and unless they have sat in the wrong chair, they have done at
least one thing right from the start.
If the mooter does, for some reason, have trouble with entering or leaving a
room, they can practice Viola Spolins improvisational exercise of entrances
and exists.46
Step 2: What is the Essential Action of What the Character is Doing in
the Scene?
Here the character is the mooter themselves. The mooters should ask
themselves what their job is, and what they are doing in the court room? The
mooter must be able to answer these questions otherwise they have no
purpose being there, and as Stanislavski insists, no purpose in being on the
stage. This now incorporates the principle of role-playing for the advocate.
Unlike the actor who is only pretending to be another character doing
something, the mooter is the one who is really there to do something. The
mooter is there because a client wants them to be there. Be it real or
imagined, the mooter, like the advocate, is in that court room not for
themselves but for someone else. The whole reason for their being there is for
someone elses benefit.
An advocate is not an advocate of their own needs. An advocate is there for
someone elses needs. This mind set of doing it for someone else should be
instilled in the students from the very beginning. The motto of all law students
should be Im doing this for somebody else. Somebody elses life depends
on it. In this respect, the Cambridge mooters guide is wrong. Mooters are
acting. They are acting for a client that does not really exist. But they must
perform the actions as if the client does exist.
Step 3: What is that Action Like to Me? Its as if
The difference between the actor and the mooter becomes very obvious in the
application of this step. For the actor, it can be a difficult and complicated
process of going into past experiences and trying to remember a situation that
45
46

Mooting etiquette
V. Spolin ( 1963):167

171

is close to what is being called for in the scene. That past situation must be
an action that is appropriate to what is being required by the script. It must
have the same intensity, joy, anger, or passion, whatever it is that the
character has to be doing for that moment on stage.47
If the actor cannot think of something directly, then a process of a piece at a
time may be applied. That is, taking a piece of the action asked for and
matching that piece to something familiar until there is an entire unit of pieces
that will come together to produce the asked for action. This process can also
be used by the mooter.
The mooter can take each piece of the court room action and assemble it into
segments, then apply an as if to each segment of the mooters argument.
For example; in one part of the argument the mooter is asking for attention to
some specific detail. In another part, asking the court for something, in
another, wanting the court to visualise something; each segment being an
action; an as if for the judges.
The mooter should focus on what their job is and how they will do that job.
This being to represent the client the best way they know how. If that is not
what they are doing, then that mooters training is not developing them into an
ethical, responsible workable advocate, or any other member of the legal
profession.
Technique 3: the audience
There have been many theories about the actors attitude to the audience.
Some would have the audience disappear behind a wall 48 . The most
important thing an actor should remember is that the audience is there to
enjoy themselves. They have paid money for the actor to entertain and
advise them. They are not working against the actor; they want to work with
the actor to have a good performance. The audience wants to be included in
the performance, they are the reason the actor is there. They are the reason
the actor has a job.
The role of the audience must become a concrete part of theatre
trainingThe audience is the most revered member of the
theatre. Without an audience there is no theatreWhen the
audience is understood to be an organic part of the theatre
experience, the student-actor is immediately given a hosts
sense of responsibility towards them which has in it no nervous
tensioneach member of the audience must have an individual
experienceWhen theatre training can enableactors to think
through the role of the audience as individuals and as part of the
processa whole new form of theatre presentation will
emerge49(12-14)

47

M. Burder (1986):13-18
V. Spolin ( 1963):12
49
V. Spolin ( 1963):12-14
48

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These same principles may also be applied to the student, as well as, the
practising advocate. If law students are trained to perceive the judges and
juries as threats to their efforts, fear and tension will hinder any true progress
at trial. Any communication skills that have been acquired will dissolve. Eye
contact will be strained, and voices will pass through tight dry throats.50
But, if the student advocate is trained to accept the role of the judges and
juries as included in their process, as members of a cumulative effort, with
the same goal, then the advocate will start presenting their information from a
more relaxed posture. Addressing the court or jury will not be from a fearful
distance, but from a more amicable perspective. Instead of the advocate
reaching up to judge or jury, it will be one person talking to another about a
serious matter that requires special attention. It will be an interaction of
people with mutual respect for each other, with a mutual interest in a serious
matter. This is a perfect example of how the training techniques of the actor
may be applied to the training of student advocates.

CONCLUSION
The purpose of this paper has been to introduce a new method of legal
training for law students using the techniques of the actor, director and
theatrical instructor. It did this by looking at ways the law is being taught
today and how the use of acting techniques may help to improve legal
teaching.
To do this, the paper established what advocacy means. It then pointed out
any similarities between the actor and the advocate, and more importantly,
any differences. The paper focused on training techniques such as role
playing, simulation and finally the most widely used and historical method of
legal training, the moot.
It applied acting techniques to show how the actors use of improvisation to
develop specific aspects of the performance could, and are, being applied to
the training of student advocates. Particular attention was applied to such
presentation details as eye contact, speech and the actors attitude to the
audience, and finally how the actor should analyse a scene of a play to its
very basic level of understanding in order to gain the most out of the
performance.
It has been said that the techniques of the theatre are the techniques of
communication. It has also been said that one of the most important skills of
the advocate is good communication skills. As has been shown some of the
techniques of training the actor are already being used to train the law student
with role-playing. More of these actor training techniques should be used to
train law students.
The techniques would be most effective with regards to personal confidence
development such as eye contact, and group interaction and problem solving.
It is possible to apply the actors technique of scene analysis when mooting,
50

Symptoms of stage fright: antion.com/articles

173

as well as, the essentials of being relaxed for the presentation. It is best to
have an advocate who is prepared not only for his clients case but prepared
mentally and physically to do the job of the advocate as best as possible.
This can all be possible by applying training techniques for the performance of
the art of acting to the advocates art of court room performance of the law.

174

References
Keith Evans (1993) The Golden Rule of Advocacy, Blackstone Press Limited
Millissa Bruder et al (1986) A Practical Handbook For The Actor, Vintage
Books,
Micheal Hyam (1990) Advocacy Skills third edition, Blackstone Press Ltd.
Noel Shaw (1996) Effective Advocacy, The Law Book Company
Johathan Smith (1985) Relaxation Dynamics A cognitive-behavioral Approach
to relaxation, Research Press
Viola Spolin (1963) Improvisation for the Theatre, Northwestern University
Press
Constantin Stanislavski ( 1937) An Actor Prepares, Redwood Burn Limited
Keith Tronc and Ian Dearden (1993) Advocacy Basics for Solicitors, The Law
Book Company Limited
Richard Cohen (1988) THEATRE, Mayfield polishing Company
Andy Hicks, Creative Action Methods in Group Work, Speechmark Publishing
Ltd.

Reports
Commonwealth Tertiary Education Commission, Australian Law Schools: A
Discipline Assessment for the Commonwealth Tertiary Education
Commission (Pierce Report), Canberra, AGPS, 1997

Journals
Tureen Afroz (2005) Learning Trial Advocacy: an outsiders experience, 30
Alternate Legal Journal 2
Sandra Berns (2000) Through A Glass Darkly Alternate Law Journal Vol.25,
No6
Ross Hyams (1995) THE TEACHING OF SKILLS: REBUILDING-NOT JUST
THINGERING AROUND THE EDGES, 13 Journal of Professional Legal
Education 1
Samantha Hardy (2004) Role Playing in Consumer Protection Law: The
Market Day Project, 14 Legal Education Review 2
Fiona Martin (1995) THE INTEGRATION OF LEGAL SKILLS INTO THE
CURRICULUM OF THE UNDERGRADUATE LAW DEGREE: THE
QUEENSLAND UNIVERSITY OF TECHNOLOGY PERSPECTIVE, 13
Journal of Professional Legal Education 1

175

Andrew Lynch (1996) Why Do We Moot? Exploring the Role of Mooting in


Legal Education,7 Legal Education Review 1

Internet
Learned Hand, (1931), To Yale Law Graduates, page 87
www:commonlaw.com/Hand.html
Mooting etiquette
http://www.law.murdoch.edu.au/mcb/mooting_etiquette.html
Symptoms of Stage fright
http://www.antion.com/articles/stagefright.htm

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