A trial never unfolds according to a script. Even if the lawyers are organized and well prepared, as an old trial lawyer once told one of my young colleagues, “another rabbit always jumps out of the hat.” I think Kathryn McNeilly and Paul Stapleton make a fair point in urging a comparison to musical improvisation, which—contrary to some misconceptions—is not without its own forms and generic constraints. As just as musician might say, “You’re playing something and listening with the intention of moving from A to B in the next moment, and then something happens in music, which you hear, and you realize, ‘OK, that would be a bad choice. I’ve got to do something else’,” trial lawyers must remain nimble—must improvise—in the face of the unexpected.
In the last installment, we looked at the rhetorical tactics (definitions, inferences, and validations) that converge in their relationship to the underlying story structure that is being developed at trial. An improvisation fits quite happily in this schematic to the extent that “it establishes some fit between a piece of evidence and the evolving story strategy in a case.” Definitions are effective when they fill in gaps in a story. Inferences are effective when they clarify and bind story elements. And validations are effective when they link evidence to confirming grounds elsewhere in the story. Bennett and Feldman posit that viewing trial through this lens reveals an order to seemingly disparate trial moves and suggests that the key variables in a trial are not the biases of jurors, predilections of judges, charisma of lawyers, or the personal characteristics of parties and witnesses, but rather how these things impact the construction, interpretation, and plausibility of stories.