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Professional actors don’t just portray witnesses on TV — they play them in real trials. In an attempt to connect more effectively with juries, a number of attorneys are using professional actors to play people who were deposed, but who are out of subpoena range and who lawyers could not — or preferred not to — bring into court. Juries like it because actors bring a piece of themselves to a role that used to be reserved for paralegals, secretaries or associates, many of whom nervously read in monotones, lawyers say. An actor can make a witness seem credible, confident and authoritative — or not, as the role necessitates. No appellate court has yet cried “foul” or perhaps even been asked to, but the practice is controversial. That’s because lawyers not only get to cast the talent — by choosing someone attractive or repellent — but they direct them in how to play the role. The practice has become so common that in 1992 it led to the creation of at least one business: Chicago-based Law Actors. What sets them apart from the theatrical talent agencies lawyers used to turn to is that these actors have not only shown an interest in doing this kind of work, but they’ve auditioned for an agency that specializes in it, said its founder Ian Harris, an actor. “We’ve developed the expertise — we know who will work well in a courtroom situation,” Harris asserted. Law Actors proclaims in its brochure that it will cast those who will provide “a winning courtroom performance using voice, tone, inflection, projection, articulation and body language — subtle looks, gestures and facial expressions.” But giving a “winning courtroom performance” doesn’t mean the actors always end up on the winning side. Litigation, to some degree, depends on the cards that are dealt. “I can’t say it’s outcome-determinative,” said Arthur Howe, a partner at Chicago’s Schopf & Weiss, a business litigation firm that has used Law Actors more than 20 times. “It’s a tool to be a more effective advocate.” For example, last December, Howe’s partner William G. Schopf got some bang for his buck when using Law Actors with a mock jury before he tried Goss Int’l Corp. v. Tokyo Kikai Seisakusho Ltd., No. C00-35 LRR (N.D. Iowa), in which he won a $32 million verdict. “We always use actors with mock juries because we try and take our personalities out of the equation and just test the facts and arguments,” Schopf said. Harris has worked with more than 50 law firms and jury consultants, he said, in Illinois, New York, Texas, Florida and California. Fees run from $100 to $125 per hour. His actors have twice testified in criminal trials in place of witnesses who were in witness-protection programs. “People expect a trial to be what they’ve seen in the movies and on TV,” Harris said. “We help bring it alive, make it understandable and conversational. [Our actors] are told — like anybody else would be — to highlight or downplay certain parts of testimony.” And it is cost-effective. “Hiring them is a lot cheaper than hiring a lawyer for $300 an hour to read it,” Schopf noted. Keeping jurors’ interest piqued has been a central theme of jury reform. In some courts, jurors are now allowed to question witnesses and even discuss a case while it’s unfolding. But using actors involves no change in the rules. Jurors are told that the actors are surrogates, but they generally aren’t told that they are thespians by trade, or what they get paid, say lawyers who have used them. Jurors are simply told that someone other than the witness is reading the testimony. ACTING SCHOOL FOR LAWYERS In addition to trials and mock jury practice, Law Actors also provides actors for witness preparation, deposition training and presentation skills. Or to put it another way, it is also an acting school for lawyers and witnesses. Last year, in winning an $18 million verdict, which was later reduced by the trial judge to $7.5 million, Lynn H. Murray of Chicago’s Grippo and Elden turned to Law Actors. The case was Republic Tobacco v. North Atlantic Trading Co., No. 98 C 4011 (N.D. Ill.). “We had to make those depositions come alive since the witnesses’ credibility was key,” Murray said. That’s exactly why Kevin E. Mohr, an ethicist at Western State University College of Law, in Fullerton, Calif., thinks using actors could be misleading. “One of the main things a jury assesses is credibility,” Mohr said. On the other hand, he readily admits to listening to books on tape, and is glad it’s an actor doing the reading and not a law firm associate. “I’m not sure how you make the determination,” Mohr said. “If an actor has been told to put emphasis here or there, it’s over the top.” William H. Simon, an ethicist at Columbia Law School, doesn’t think lawyers ought to be in the business of casting at all. “I think it’s a civil procedure problem … and only secondarily an ethics issue,” he said. “Once you bring actors in, it’s hard to avoid not coaching them. Their first question will be ‘how do you want me to play it?’ The ethics issue wouldn’t arise unless a false impression rose to the creation of false testimony.” Simon thinks that it would be appropriate if anyone who reads a deposition at trial were treated the same as a translator: sworn and supplied by the court. “I think it’s a mistake to allow partisans to do this,” he said. “The court should pick the reader.” Harris disagrees. “I don’t think that judges have the time to do this, nor do they have the expertise.”

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