The current recipe for a courtroom TV drama includes impassioned speeches, DNA evidence and unexpected twists revealed by witnesses. When real juries fail to see these elements appear in actual cases, they are susceptible to boredom and, in extreme cases, falling asleep.
The cure for jury drowsiness, according to one Miami-based company, is to hire actors to perform in the courtroom. Actors at Law is a legal services firm that provides actors to read depositions to the jury when a witness is not available.
Although this may be feasible for a fact witness that is outside the subpoena power of the court, hiring an actor to read an expert report is not a realistic option. As we reported last month, Carter-Wallace established additional requirements before presenting an expert deposition in lieu of live testimony.
According to Reuters, co-founder of Actors at Law Ellen Jacoby, argues that, “A lawyer doesn’t want to pay $25,000 to bring in an expert witness.”
While this may be true, the logistics of replacing an expert with an actor make this an unrealistic option. The numbers back this up: Actors at Law has only provided a dozen actors in the last five years and a similar company in Chicago closed up shop during the 2008 recession.
As long as the jury is informed that the actor is simply reading the deposition of an absent witness, using an actor is an acceptable replacement for a fact witness. The ethical implications are a little vaguer. The American Bar Association has no specific rules against using actors in place of witnesses but it does have provisions in its Model Rules of Professional Conduct that address truthfulness, candor and fairness to the opposing party.
The Obvious Solution
The obvious solution is to retain an expert that already has the ability to testify without putting the jury to sleep. We have written before about the importance of selecting experts that have both technical expertise and presentation skills, once with a comparison to Freakonomics.
Instead of locating an expert to write a report, working around Carter-Wallace and then finding an actor to read the deposition, attorneys should find experts who explain the facts, are interested in the proceedings and engage the jury.
“The best experts know their field and know how to explain it,” says IMS Client Manager Mark Silver. “The key is finding an expert in that sweet spot.”
Tell Us: Have you ever wanted to use an actor in the courtroom?