psychodrama and the training of trial lawyers part i and ii by dana cole

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IntroductionGo to any courthouse in the country just about anyday of the week and you’ll hear it—the sounds oflawyers droning on and on with their technical argu-ments, their redundant questioning of reluctant wit-nesses, the subtle points which are relevant only tothem. Look at the poor helpless jurors who are tiedto their seats by civic duty, by law. They struggle topay attention but fade in and out as the noise con-tinues to wash over them–—numbing them. Lookat the litigants whose lives will be directly affected bythe result of the proceedings. Even their stake in theoutcome cannot hold their attention. Their eyesglaze over despite a valiant effort to appear inter-ested. As Thomas A. Mauet says, “Boredom is theenemy of effective communication ….”1

Why are these people—these lawyers who have ded-icated their professional lives to the art of persuasion—so incapable of telling a simple story passionatelyand succinctly? Why are the jurors not hanging onevery word, mesmerized as they watch these mastersperform their art? Each Monday morning, werecount the events of the weekend to our colleagueswith more passion and greater animation. Why thenare we seemingly incapable of effective communica-tion when we are in court?

There seems to be little dispute among trial lawyersand trial advocacy teachers that the essence of thetrial is storytelling and that storytelling principlesare not only helpful, but also essential to an

engaging and persuasive presentation.2 Trial lawyersand trial advocacy teachers are looking for ways totake advantage of storytelling techniques to makeour presentations more persuasive.

Part of the problem is that the format in which thetrial lawyer must operate is not conducive to goodstorytelling. Good stories have a beginning, amiddle and an end. They often begin with “onceupon a time” and end with “and they lived happilyever after,” and in between is a logical progression, aseries of scenes interrelated by cause and effect.However, in trial, the story is jumbled. The evidencecomes in piecemeal through witnesses and exhibits—often out of chronological order and disrupted bythe opponent through objections and cross-exami-nation.3 To make matters worse, the opponent issimultaneously advancing a competing story. Thejury is left with the task of constructing its own nar-rative as a way of organizing the pieces in a coherentfashion.4 Opening statements are used to mitigatethe problem by giving the jury a cohesive story as aguide for organizing the evidence.5 Trial advocacyteachers also stress the importance of theme as anorganizing principle used throughout the trial tosteer the jury in its construction of the evidence.6

The problem of format is only part of the problemand may be given too much credit for disruptingour presentations. Format is a convenient scapegoatfor our inadequacies as storytellers. Even withoutthe challenge of the format of a trial, most lawyersare simply not good storytellers. The truth is that

Psychodramaand the Training of Trial Lawyers:

Finding the StoryDana K. Cole

Editors’ note: This article was originally published by the Northern IllinoisUniversity Law Review, DANA COLE, PSYCHODRAMA AND THE TRAINING OF

TRIAL LAWYERS: FINDING THE STORY, 21 N. Ill. U. L. Rev. 1 (2001) and isreprinted here with permission. This article will be featured in The WARRIORin two parts, with the second part appearing in the next issue.

PART ONE

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trial lawyers are not trained to be good storytellers.7

Lawyers are trained to think analytically.8 In the wordsof one writer: “Starting with the first day of lawschool, lawyers are taught to suspend emotion in favorof cold, legal analysis.”9 They learn to decontextualizefacts and categorize them according to their legal sig-nificance, sorting the relevant facts issue by issue.10

They deconstruct and reduce the experience and thenreorganize it to correspond with abstract legal princi-ples.11 The pieces, now reorganized and grouped in alegal context, lose the information-rich context of theexperience as lived and felt.12 Legal analysis, whileessential to the lawyer and legal argument, is death tothe story.13 Legal theory and legal discourse are simplytoo far removed from human experience.14

Given the format of the trial and our legal training,there is little wonder that many trial lawyers areboring, repetitive speakers. Lawyers should focus ontechniques designed to compensate for the awkwardformat, and they should strive to communicate withjurors like human beings. But there is another, morefundamental issue that prevents the trial lawyer fromcommunicating the story of the case. The problemwith storytelling is that we simply do not know thestory. We know the facts as our client and other wit-nesses have told them to us, but not the real story aslived, felt and experienced by our client and thewitnesses.

Trial lawyers necessarily focus on the facts that revealwhat happened. Better trial lawyers add additional factsthat describe why it happened.15 Good storytellersdevelop how it was experienced by the characters.

In his article entitled The Trial as a Persuasive Story,Professor Steven Lubet gives us a useful example—asimple personal injury case.16 The lawyer represents theplaintiff who was injured when the car she was oper-ating was struck from behind by the car operated bythe defendant. Immediately before the collision, thetraffic slowed to allow a fire truck to pass. These arethe basic facts describing what happened, and they maybe all that is legally essential.

We know why the plaintiff slowed down—because ofthe fire truck. But the jury may be left wondering whythe defendant, also part of the traffic, did not slowdown. Perhaps the defendant was negligent, but per-haps the plaintiff stopped too abruptly and was at leastpartially to blame. Perhaps there was no fire truck atall. Perhaps the fire truck was not sounding its siren orotherwise alerting traffic to stop. Professor Lubetinsightfully notes that the story will be more persua-

sive if the lawyer can establish a reason for the defen-dant’s conduct—in other words why it happened.17 Forexample, what if the defendant was late for a veryimportant business meeting? The defendant’s reason torush now makes it more likely that he did rush.Understanding why the actor might do somethinggives context and meaning to the action and makes theaction more likely to have occurred.

But there is more to the story we could explore. Howdid the defendant experience the facts? Perhaps thedefendant felt his blood pressure rise as the digitalclock on the dashboard served as a constant reminderthat he would certainly be late. He tightly gripped thesteering wheel and leaned forward, angry with himselffor not allowing more time as he envisioned theembarrassing scene that awaited him upon his arrivalat the office. He stared at the congestion ahead andsaw the traffic as a frustrating impediment. He calcu-lated how late he would be and said to himself almostaudibly, “Why didn’t I leave ten minutes earlier? Whatam I going to say when I get there?” With the insightof how it was experienced, we can now compare ourown experience with the actor’s experience. We recog-nize the experience as akin to our own. We can nowempathize in the sense of understanding that theaction of the defendant is not only more likely, butalso ultimately believable.

Trials are frequently likened to a drama.18 The com-parison is an easy one to accept since both theater andtrial involve storytelling.19 One of the lessons we cantake from the theater is the notion that credibilityoriginates with the inner feelings the actor is experi-encing and not the action itself. Actors and directorshave long understood the critical importance of “moti-vation.”20 Motivation is referred to by differentterms—inner motive forces,21 the objective,22 and soforth—but the idea is the same. All action in the the-atre must have an inner justification.23 The motivationto act lies in the wishes, needs and desires of thehuman.24 When the action is generated by true feel-ings, the action is logical, coherent and real.25 Whenthe action is not generated by true feelings, the actionis artificial. The inner feelings are the guiding forcethat generates the action. The inner feelings are thereason for the action and are, therefore, more impor-tant than the action itself. The inner forces are what“excite the audience and make the action believable.”26

If inner motive forces are at the heart of credibility, thetypical presentations in court fail to use the most per-suasive material. We discuss the action in terms ofwhat happened. But the trial lawyer who stops there

Psychodrama and the Training of Trial Lawyers - continued

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fails to give the jury sufficient input to accept or rejectthe action. Better presentations include the situationor external forces that preceded the action to explainwhy the action happened. This information is criticalto evaluating the action, but only insofar as it givescontext to the inner forces (the feelings) that generatethe action. If the jury is not also given the inner motiveforces (how the facts were experienced) the linkbetween external force and action is missing.Psychiatrist and psychodramatist Dr. John Nolte27 alsodistinguishes between facts and our experience of thefacts:

It is not just what happens to us that is importantand that makes us who we are, it is how we expe-rience what has happened to us. The facts are onlya small part of anything that happens. Our expe-riences are stories, our stories. Together they com-prise the story of our lives.28

Perhaps we tell only the facts (what happened andwhy) because all we know are the facts. In presentingour cases to the jury, if we could communicate thefacts in a way that reveals how the witnesses experi-enced those facts, the jury would be better able tounderstand and relate to the witnesses on an emo-tional level and accept the facts.

We cannot tell what we do not know. As lawyerscharged with the responsibility of telling our client’sstory, if we could somehow experience our client’s sto-ries—not just hear about them, but experiencethem—we would understand on an emotional levelhow the facts were experienced. We could then com-municate that experience to the jury.

Proponents of a method called “psychodrama” con-tend that it is a tool that permits us to access the expe-rience of others—to see things as they saw them andto feel it as they felt it—in other words, to trulyempathize. Psychodrama also allows us to access ourown experiences and to better understand our experi-ences. “Psychodrama expands our understanding ofexperiences, hence our understanding of ourselves.”29

I attempt in this article to make trial lawyers and trialadvocacy teachers aware of this tool called psy-chodrama and how it is being used in preparation fortrial and at trial. But psychodrama is an actionmethod.30 Writing an article about psychodrama is likewriting a manual on how to swim. You will have onlya slightly better understanding of swimming afterstudying a Red Cross manual on how to perform thevarious strokes. It is not until you are in the water thatyou will begin to fully appreciate the concept. So it is

with psychodrama. No article could serve as a substi-tute for the experience of doing. To fully evaluate theusefulness of psychodrama in the trial of cases willrequire experience with the method.

I. What is Psychodrama?A. INTRODUCTION TO PSYCHODRAMA

Psychodrama is considered, first and foremost, amethod of psychotherapy.31 However, unlike tradi-tional Freudian psychoanalysis, where the subjects talkabout their experiences, dreams and fantasies, psy-chodrama requires action.32 Psychodrama has the sub-ject dramatize certain events as a spontaneous play ona “stage” in a group setting.33 The subject literally goesthrough the motions of physically acting out the scene.

Dr. J. L. Moreno, the creator of psychodrama, definedpsychodrama as “the science which explores the ‘truth’by dramatic methods.”34 Adam Blatner described psy-chodrama as follows:

Psychodrama is a method of psychotherapy inwhich patients enact the relevant events in theirlives instead of simply talking about them. Thisinvolves exploring in action not only historicalevents but, more importantly, dimensions of psy-chological events not ordinarily addressed in con-ventional dramatic process: unspoken thoughts,encounters with those not present, portrayals offantasies of what others might be feeling andthinking, envisioning future possibilities, andmany other aspects of the phenomenology ofhuman experience.35

Psychodrama is a spontaneously created play, pro-duced without script or rehearsal, with improvisedprops, for the purpose of gaining insight that can onlybe achieved in action. In psychodrama, life situationsand conflicts are explored by enacting them, ratherthan talking about them.36

Psychodrama is used primarily as a group therapymethod but, as we shall see, its uses are not limited totherapy. Psychodrama is a method used for promotingpersonal growth and creativity.37 In addition to refer-ring to a specific therapeutic method, the term “psy-chodrama” involves a wide variety of techniques thathave application in business, education38 and now thetrial of lawsuits.

B. THE ORIGIN OF PSYCHODRAMADr. J.L. Moreno (1889-1974) originated psychodrama

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in 1921 and refined it over the next few decades.39

Moreno is best known as a principal co-founder ofgroup psychotherapy.40 It was out of his work devel-oping group psychotherapy that Moreno originatedthe method of psychodrama.41

Psychodrama is a reflection of the eclectic interests andeccentric genius of Moreno. Understanding how sucha method could develop requires some understandingof Moreno himself.

1. J. L. Moreno

Moreno was born in Bucharest, Romania, on May 18,1889.42 His family moved to Vienna, Austria, in1894.43 He studied philosophy and medicine at theUniversity of Vienna from 1909 until 1917.44 In 1919he became a general practitioner in Bad Voslau, a smalltown south of Vienna, where he used a family coun-seling approach—a forerunner of his later work.45

While in Vienna, Moreno was very active and influen-tial in the artistic and dramatic life of the city.46

Moreno emigrated from Austria to the United Statesin 1925 where he began his more formal contributionsto psychotherapy.47 In 1932, he coined the term“group psychotherapy.”48 He developed his theoriesworking in hospitals, prisons and reform schools.49 Hefounded Beacon Hill Sanitarium, a teaching institu-tion where psychodrama was the principal method oftreatment, in New York in 1936.50 He foundedtraining institutes for group psychotherapists and psy-chodramatists and started influential journals and pro-fessional associations.51 J. L. Moreno died on May 14,1974 in New York.52 With him when he died were hisnurse, Ann Quinn, and one of his students, JohnNolte.53

Several experiences influenced Moreno and laid thefoundation for the development of psychodrama.Three of these formative experiences are discussedhere.54

2. Child’s Play

While a student at the University of Vienna, Morenoobserved the way children played and interacted in theparks in Vienna. He began to interact with them andtell them stories. He invented games for them thatcalled upon their imagination. During this time,Moreno created a theater for children and had a reg-ular group of young actors including Elisabeth Berger,who later became a famous actor.55 They invented andimprovised plays and presented classics in the parksand in a small hall that temporarily served as a

theater.56

Moreno described his experience with the children:

It was as a teenager, just prior to my matriculationin the Faculty of Philosophy at the University ofVienna that I first noticed the healthy spontaneityof children. At play in the parks of that city of myyounger years and in observing the children asthey played I found myself struck by the richnessof their fantasy life. I hereupon made friends withthem and subsequently led them in play, directingthem in the creation of little “stories” that theyacted out, and helping them to draw readily, fromtheir own knowledge and experience, to make realfor these children that magic moment of the fan-tasies which their active imaginations and theirhigh states of spontaneity brought excitedly tolife. The realization of what was occurring duringthese periods that the children were involved increating while they acted and in living in theworlds of their enactments during the times Idirected them at play was for me a remarkablemoment of discovery. This discovery subse-quently led to the development of a move-ment….57

Moreno later commented on the profound impact ofhis experience of working and playing with children:

Gradually the mood came over me that I shouldleave the realm of the children and move into theworld, the larger world, but, of course, alwaysretaining the vision which my work with the chil-dren had given me. Therefore, whenever I entereda new dimension of life, the forms I had seen withmy own eyes in that virginal world stood beforeme. Children were my models whenever I tried toenvision a new order of things or to create a newform. When I entered a family, a school, a church,a parliament building, or any other social institu-tion, I rebelled. I knew how distorted our institu-tions had become and I had a new model ready toreplace the old: the model of spontaneity and cre-ativity learned from being close to the children.58

Moreno’s work with children was instrumental in thedevelopment of his ideas about play, spontaneity, dra-matic reenactment and creativity.

3. The Benefit of Groups

Moreno began working with disadvantaged groups. Ithappened this way: One afternoon while at theUniversity of Vienna, Moreno saw a pretty woman onthe street smiling at him. She was wearing a whiteblouse and red skirt with red ribbons to match. AsMoreno began speaking with her, she was suddenly

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arrested by a police officer. Moreno followed her to thepolice station and waited for her. After her release,Moreno spoke with her about the reason for her arrest.She explained that she was a prostitute and that shewas not allowed to wear such striking clothes duringthe day as she might attract customers. Moreno dis-covered a whole class of people who were segregated,not on the basis of race or religion, but on the basis oftheir occupation. They had no rights and no respect.They could not find doctors to treat them or lawyersto represent them. They had been stigmatized bysociety for so long they perceived themselves as despi-cable sinners and unworthy people. In 1913, Morenobegan to visit their houses. He took with him two per-sons: a specialist in venereal disease, and a publisher ofa Viennese newspaper. Moreno’s purpose was not toreform the prostitutes, but to give them self-respectand dignity. He met with them in groups of eight toten, two or three times per week. Gradually they beganto realize the value of the group—that they couldbecome the therapeutic agents of each other. Theyfound ways to help each other. Moreno had discoveredthe potential for group psychotherapy.59

4. “Spontaneity Theater”

In 1921, a few years after the end of World War I,Moreno was concerned about the lack of social andpolitical leadership in Austria. He wanted to bring thecommunity together and stimulate debate about thefuture of Austria.60 He became involved with a groupof actors who met regularly at the Café Museum inVienna.61 In 1922, Moreno rented space that couldhold fifty to seventy-five people. Moreno’s new theatergroup put on spontaneous plays suggested by the audi-ence, or reenacted current news stories—a productioncalled “The Living Newspaper.”62

One of the actors in the group was Ann Hollering,who became known in psychodrama circles as“Barbara.”63 Barbara was very popular in Moreno’sproductions because of her excellent performances inromantic or heroic roles. She soon attracted the atten-tion of a young poet and playwright, George Kulka,who sat in the front row of all her performances. Aromance developed between them and they were mar-ried. Barbara continued to act and George continuedto admire her from the front row.

One day George approached Moreno to ask for help.George explained that this seemingly sweet womanwas mean-spirited and physically abusive when theywere alone. Moreno promised to help. Under the pre-tense of ensuring that her performances did not grow

stale, Moreno asked Barbara if she would be willing totry other roles—roles that would reveal the “rawness ofhuman nature, its vulgarity, and stupidity, its cynicalreality….”64 Barbara gladly accepted the challenge andbegan playing prostitutes, spinsters, revengeful wives,spiteful sweethearts, and so on. George reportedimmediate changes. While the couple still argued, thearguments lost their intensity. At times Barbara’s con-duct toward George reminded her of a character sheplayed and she would laugh in the middle of an argu-ment, diffusing the tension. George also reported thatwatching Barbara play these roles had caused him tobe more tolerant of her and more patient with her.Moreno invited George to act on stage with Barbara.He had them portray scenes from their daily lives athome, from their families, her childhood and theirdreams and future plans. Their relationship continuedto improve.

Moreno began to appreciate the therapeutic value ofinsight gained through drama for the protagonist. Butthe audience also reported that the scenes portrayed byGeorge and Barbara had a great emotional impact onthem. Audience members personally benefited fromthe experience. Moreno began to appreciate the thera-peutic value of the dramas for the audience.Eventually, Moreno sat down with George andBarbara and explained to them the “development oftheir psychodrama…and…the story of their cure.”65

Moreno combined the spontaneity and creativity ofchildren, the inherent value of group dynamics andthe insight of dramatic role playing to create a com-pletely different approach from Freudian psycho-analysis that was action-oriented, public and rooted inimmediate reality.66 His experiences prepared him forthe development of psychodrama.

C. WHAT DOES A PSYCHODRAMA SESSIONLOOK LIKE?

Psychodrama is usually done with a group of partici-pants.67 The group can vary in size from as few as fiveto a hundred or more, but most practitioners prefer agroup of ten to fifteen.68 The psychodrama session cantake place in any space that provides room for physicalmovement and privacy with no distractions.69 Thegroup includes the director, the protagonist, the auxil-iaries and the audience.70

The director runs the session and is usually a therapistin a therapeutic situation. A protagonist is selected towork on an issue. Aspects of the protagonist’s life willbe explored during the psychodrama session.

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Therefore the protagonist will be the principal actor inthe drama.71 An area for the protagonist to work isestablished. This area is referred to as the stage. Thestage can be as simple as a small area in the center ofthe room.72

The director or the protagonist will typically recruitmembers of the group to assist in dramatizing thescene. These group members are called auxiliaries.They will be asked to portray the actual or imaginedpersonae in the protagonist’s drama. Members of thegroup who are not directly involved in the enactmentwill be the audience.

During the session, the protagonist is given the oppor-tunity to work on an issue by acting out a particularscene (or scenes) spontaneously. The scene can be fromthe protagonist’s past. The director may choose to havethe protagonist reenact the scene as the protagonistrecalls it, to allow the protagonist to access the feelingsof the moment in a safe environment. Alternatively,the protagonist could act out this past scene in anotherway—examining how things might have been donedifferently—giving the protagonist a chance to do itover.

The scene could also depict a current or recurring sit-uation in the protagonist’s life. This might allow theprotagonist to explore the feelings generated, perhapsexamine the source of those feelings and investigateother options for dealing with the situation.

The scene may depict a situation the protagonist antic-ipates in the future. The goal may be to help the pro-tagonist prepare for the event—a kind of rehearsal orrole training in anticipation of the future event.

The scenes that could be depicted are unlimited. Everyaspect of the protagonist’s subjective life can be pre-sented with the help of the group.73 A protagonistcould act out a dream, have an encounter with a lovedone who is now deceased or meet her unborn children.Psychodrama is not limited by time, space or reality.74

Whatever the scene, the protagonist, led by thedirector and assisted by the auxiliaries, physically actsout the scene as if the event were happening here andnow—in the present.

D. PSYCHODRAMATIC TECHNIQUESNumerous techniques were developed by Moreno toachieve various goals during the psychodrama session.A few of the more common techniques include rolereversal, soliloquy, doubling and mirroring.

1. Role Reversal

When Atticus Finch, the fictional lawyer portrayed byGregory Peck in the movie To Kill a Mockingbird,advised his daughter that her temper and propensityfor fist-fighting were not an appropriate way of dealingwith problems, he said, “You never really understand aperson until you consider things from his point ofview[,]…until you climb into his skin and walkaround in it.”75 Psychodramatists refer to this methodas role reversal.

During the drama, the protagonist will typically beasked by the director to reverse roles with various aux-iliaries. The protagonist takes the role previouslyplayed by the auxiliary and the auxiliary plays the rolepreviously played by the protagonist. This processallows the protagonist to experience the scene from thevantage point of other characters in the drama. It alsopermits the protagonist to observe the self from thevantage point of other characters in the drama. Rolereversals will typically take place many times duringthe course of the psychodrama session.

Several lines from a poem authored by Moreno areoften used to explain his concept of role reversal.76 Thepoem suggests the total commitment necessary to thetask:

A meeting of two: eye to eye, face to face.And when you are near I will tear your eyes outand place them instead of mine,and you will tear my eyes out and place them instead of yours,then I will look at you with your eyes…and you will look at me with mine.77

In reversing roles, the person does not simply try to actas the other person would act, but to feel how theother person would feel—to take on their passions,prejudices, life experience, age, gender, ethnicity, andso on, and experience the depicted scene as the otherperson would experience it. Adam Blatner commentedon the importance of this technique:

If one skill could be learned by everyone, I wantit to be role reversal – to be able to see things fromanother’s point of view (which does not meanalways agreeing with that point of view). Theability to role-reverse fosters a way of being in theworld that offers the potential for co-creatingunderstanding, conflict clarification, and resolu-tion. Each of us can learn and actively practice itin our daily lives, and thereby teach others touse it.78


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2. Soliloquy

Soliloquy is the act of revealing inner feelings andthoughts that would normally be kept hidden.79 Thedirector will ask the protagonist to express out loudwhat he is feeling or thinking. The protagonist verbal-izes what is otherwise internal.

The soliloquy is often used in psychodrama as a warm-up technique. Giving voice to the feelings and emo-tions causes the protagonist to begin to focus on them.The soliloquy also provides valuable information thedirector can use to determine what issues or scenesshould be explored.

The soliloquy is often used in conjunction with a rolereversal. The protagonist is asked to soliloquize in therole of another person. This allows the protagonist to“warm up” to the role, and also gives the auxiliary, whomay play the role, information needed for an accurateportrayal.

3. Doubling

The “double” is a particular kind of auxiliary whosefunction is to assist the protagonist in presenting theprotagonist’s position or feelings.80 The protagonistmay be having difficulty accessing or expressing hisemotions, or may seem blocked or resistant. Anothergroup member may have an idea about what the pro-tagonist might be feeling. The director could let thatother group member model a certain idea, action oremotion, thereby “doubling” for the protagonist.81 Theprotagonist is then asked to accept, reject or modifythe expression by the double, depending on whetherthe expression feels accurate to the protagonist. Theprotagonist will use the accurate suggestion or the sug-gestion as modified, and reject any suggestion that isnot accurate. The result is that the protagonist is ableto work through the block or overcome the resistance.

4. Mirroring

Mirroring is a technique that allows protagonists to seethemselves. After the protagonist has acted out a par-ticular scene, the protagonist is asked to come off stageand observe a reenactment of his behavior by an aux-iliary. The auxiliary will mimic the protagonist’s bodyposture, use the same gestures, and use the same lan-guage as the protagonist. The auxiliary will imitate theprotagonist’s behavior, both verbal and non-verbal, togive the protagonist a sense of how he is acting orreacting in a particular situation.82

Mirroring is intended to give the protagonist insight

about his feelings or his behavior. For example, theprotagonist may be saying one thing while his bodylanguage is conveying something very different.Mirroring may allow the protagonist to discover thecontradiction and to explore the protagonist’s under-lying feelings. The protagonist may be unaware of howa particular behavior is perceived by others. Mirroringgives the protagonist an opportunity to judge his ownbehavior from a third-party perspective—a humanversion of video playback.83 The technique may sug-gest exploring alternative ways to respond to asituation.

E. THE SEGMENTS OF A PSYCHODRAMA SESSIONA psychodrama session consists of three parts: thewarm-up process, the action portion and thepost-action sharing by the group.84

1. The Warm-Up Process

The warm-up process prepares the protagonist for theaction portion to follow. There is no set time for thewarm-up process. It may take only a few minutes, butit may take quite a long time, depending on the pro-tagonist. The protagonist is invited onto the stage. Thedirector may have a conversation with the protagonistto focus attention on the issue to be explored andidentify a place to start. The director may have theprotagonist soliloquize. The director may ask the pro-tagonist to “set the scene”—describing the scene wherethe drama will take place as if the protagonist is thereat the time—in the here and now. Regardless of thetechniques employed by the director, the idea is to getthe protagonist emotionally readied for the actionportion.

2. The Action Portion

The action portion is where the critical scenes areenacted. The protagonist is asked to experience thescene (or scenes) in the here and now. A single scenecan be explored one time, or the same scene can beexplored multiple times with variations. One scenemay lead to other scenes—taking the protagonistcloser to the source of the issue. The goal is to providethe protagonist with emotional insight that can onlybe gained through action.

3. Post-Action Sharing By The Group

The action portion of psychodrama often produces araw, exposed feeling in the protagonist. Post-actionsharing is a critically important component that gives

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the individual members of the group an opportunityto empathize with the protagonist by sharing theirown thoughts, feelings and experiences with the pro-tagonist. The group members do not give advice, butrather express similar thoughts, feelings or experiencesthe drama produced or reproduced for them. It is atime to appreciate and acknowledge the gift the pro-tagonist gave to the group and to embrace theprotagonist.

F. HOW DOES PSYCHODRAMA WORK?The goal of psychodrama is to discover the emotionaltruth of the protagonist, allowing the protagonist togain insight, self-awareness, enlightenment and illumi-nation—in essence, a deeper and richer under-standing. In therapy, insight has generally beenregarded as an important factor in producing a“cure.”85 But it has also been recognized that intellec-tual understanding is not enough to cause emotionalor behavioral change. Intellectual understanding maycome from reading, discussion or passive introspectiveanalysis. “If information alone could bring about ther-apeutic change, patients could get well by reading theirpsychiatric case studies and psychological testreports.”86

In order to be sufficient to evoke change, the processof self-discovery must be emotional, not just intellec-tual.87 The protagonist must experience the meaningof their feelings in the present.88 Psychodrama wasdesigned by Moreno to facilitate the emotional insightthat can only be accomplished by actual experienceand not written or verbal information. To emphasizethe focus on experiential learning, he called theself-discovery generated through psychodrama“action-insight.”89 The term describes insight based onovert behavior and not inner thinking.90 It is learningby doing. “The learning gained through such an expe-rience is passionate and involved, emphasizing the per-sonal participation in the discovery and validation ofknowledge.”91

Kellermann offers this example:

[I]t would be meaningless to tell an overprotectivemother to be less protective. However, if, in psy-chodrama, she is persuaded to reverse roles withher child, even for a short time, and to experienceintensely how it feels to live under her own pro-tective behaviour, she might change. Such afirst-hand awareness may give the protagonist anexperience which is sufficiently meaningful toproduce a lasting impact.92

The objective of action-insight is a search inward. It is

the emotional experience of the protagonist, asopposed to the outer world of the senses, that is thegoal.93 Action-insight is non-cognitive in that it doesnot involve intellectualizing. It is a “gut-level” learningthat involves processing at the bodily andperceptual-motor level—a process that favors feelingover thought, emotion over intellect, intuition overanalysis.94 It is a learning that often cannot be trans-lated into words because it involves physical andmental sensations that evolved at a pre-verbal, earlychild development phase.95 Psychodrama allows theprotagonist to enact or reenact, live or relive, anyevent, real or imagined, past, present or future, andreceive, at a gut-level, the insight that can only begained by being there.

To be continued in the next issue of the Warrior

EndnotesI appreciate the support of the University of Akron Schoolof Law in providing me a summer research grant.

I acknowledge the kind assistance of John Nolte, Ph.D.,for his teaching, direction and suggestions. To have a psy-chodramatist of his caliber advising me has been a greatgift. I also recognize the significant contributions of GerrySpence, Esq., who is engaged in a constant struggle, notonly to find a better way to represent people as a lawyer,but also to share his great gifts with young lawyersthrough his non-profit Trial Lawyers’ College. The suc-cessful development of psychodrama as a tool for triallawyers is largely the result of his vision and generosity.

I am grateful for the invaluable research assistance andencouragement of Anthony Gallia and Melinda Smith.Students like Anthony and Melinda are the reason mostof us went into legal education.

This article expands upon a presentation at the NorthernIllinois University Law Review’s Ninth AnnualSymposium, “Defense Strategies in Death PenaltyLitigation,” on March 23, 2000, entitled “Psychodramain Capital Cases: A New Tool for Humanizing theAccused.”

Introduction1 THOMAS A. MAUET, TRIAL TECHNIQUES 19 (5th ed.

2000).

2 See LAWYERS AS STORYTELLERS AND STORYTELLERS AS LAWYERS: AN

INTERDISCIPLINARY SYMPOSIUM EXPLORING THE USE OF

STORYTELLING IN THE PRACTICE OF LAW, 18 Vt. L. Rev. 567(1994); SYMPOSIUM, LEGAL STORYTELLING, 87 Mich. L. Rev.2073 (1989); SYMPOSIUM, SPEECHES FROM THE EMPEROR’S OLD

PROSE: REEXAMINING THE LANGUAGE OF LAW, 77 CORNELL L.


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REV. 1233 (1992). The legal storytelling movement is not limitedto the courtroom but has spread to the classroom and legal schol-arship. See, e.g., DANIEL FARBER & SUZANNE SHERRY, TELLING

STORIES OUT OF SCHOOL: AN ESSAY ON LEGAL NARRATIVES, 45Stan. L. Rev. 807 (1993) (purporting to offer a systematicappraisal of the storytelling movement, particularly as it relates tolegal scholarship); JANE B. BARON, RESISTANCE TO STORIES, 67 S.Cal. L. Rev. 255 (1994) (disagreeing with Farber and Sherry);RICHARD A. MATASAR, STORYTELLING AND LEGAL SCHOLARSHIP,68 Chi.-Kent L. Rev. 353 (1992) (discussing the advantages ofnarrative in scholarship and teaching); SANDRA CRAIG

MCKENZIE, STORYTELLING: A DIFFERENT VOICE FOR LEGAL

EDUCATION, 41 Kan. L. Rev. 251 (1992) (discussing the need toteach storytelling in law school).

3 See generally RICHARD LEMPERT, TELLING TALES IN COURT: TRIAL

PROCEDURE AND THE STORY MODEL, 13 Cardozo L. Rev. 559,559 (1991). Lempert suggests that trial lawyers should presentthe case in chronological order, not witness order. Witnessesshould not be called and then asked everything they know aboutthe case; they should be asked only as much as is necessary toadvance the story. Witnesses should then step down, only to berecalled later when further testimony would fit more nicely intothe story. Id. at 565-66. Lempert recognizes that predictableimpediments to this approach would be the inconvenience to thewitness and the discretion of the judge under Rule 611 of theFederal Rules of Evidence. Id. at 566.

4 See generally NANCY PENNINGTON & REID HASTIE, A COGNITIVE

THEORY OF JUROR DECISION MAKING: THE STORY MODEL, 13Cardozo L. Rev. 519 (1991).

5 J. ALEXANDER TANFORD, THE TRIAL PROCESS: LAW, TACTICS AND

ETHICS 263 (1983).6 RONALD L. CARLSON & EDWARD J. IMWINKELRIED, DYNAMICS OF

TRIAL PRACTICE: PROBLEMS AND MATERIALS 39-40 (2d ed.1995).

7 MCKENZIE, supra note 2, at 251-52 (“Although lawyers are story-tellers, they are not trained as such. Legal education in the UnitedStates today is dominated by the ‘case method’ of instruction firstused by Christopher Langdell at Harvard University in the latenineteenth century. . . . [T]he role of the lawyer as storyteller . .. has been largely ignored in legal education.”).

8 ROGER C. CRAMTON, THE ORDINARY RELIGION OF THE LAW

SCHOOL CLASSROOM, 29 J. Legal Educ. 247, 248 (1978). 9 ADRIENNE DRELL, CHILLING OUT, A.B.A. J., OCT. 1994, at 70

(1994). 10 See GRAHAM B. STRONG, THE LAWYER’S LEFT HAND:

NONANALYTICAL THOUGHT IN THE PRACTICE OF LAW, 69 U.Colo. L. Rev. 759, 781 (1998).

11 See TONI M. MASSARO, EMPATHY, LEGAL STORYTELLING, AND

THE RULE OF LAW: NEW WORDS, OLD WOUNDS?, 87 MICH. L.REV. 2099, 2103 (1989) (“The popular image of lawyers is thatwe are committed to formal rationality. We are trained to cabin‘empathic’ responses and remain steadfast in our commitment tolegal principles despite emotional dissonance.”).

12 See STRONG, supra note 10, at 781, 782.13 See PHILIP N. MEYER, “DESPERATE FOR LOVE III”: RETHINKING

CLOSING ARGUMENTS AS STORIES, 50 S.C. L. REV. 715, 716(1999) (“There are two modes of functioning, two modes ofthought, each providing distinctive ways of ordering experience,of reconstructing reality. The two [the analytical and the narra-tive] (though complementary) are irreducible to one another….Agood story and a well-formed logical argument are different nat-ural kinds…. It has been claimed that one is a refinement of orabstraction from the other. But this must be either false or trueonly in the most unenlightening way.”).

14 MASSARO, supra note 11, at 2105. Most people and, therefore,most jurors, are affective (right brain) decision-makers. Mauet,supra note 1, at 14-15. They care more about people than prob-lems. They use deductive reasoning that is primarily emotionaland impulsive. Once they make a decision, they justify the deci-sion as logical and fair by discounting, discrediting or evenignoring information that is inconsistent with their decision. Id.;

see also BERT DECKER, YOU’VE GOT TO BE BELIEVED TO BE

HEARD (1992). In stark contrast, lawyers are trained to be cogni-tive (left brain) decision-makers. See STRONG, supra note 10, at761. They are more likely to withhold judgment until all of thefacts have been accumulated. They then use inductive reasoningand come to logical conclusions based on an analysis of the facts.To the extent that lawyers approach the trial of a lawsuit as a fac-tual/legal dispute, they will fail to effectively communicate withjurors who approach the trial as a human drama. Lawyers typi-cally focus on the facts while the jurors are more interested in thepeople, their relationships and their human experiences. SeeJAMES E. MCELHANEY, TRIAL NOTEBOOK 133 (3d ed. 1994).

15 STEVEN LUBET, THE TRIAL AS A PERSUASIVE STORY, 14 Am. J.TRIAL ADVOC. 77, 78-81 (1990).

16 Id. at 80-81. 17 Id.18 JAMES W. JEANS, TRIAL ADVOCACY 303 (2d ed. 1993); see also

DAVID BALL, THEATER TIPS AND STRATEGIES FOR JURY TRIALS

(2d ed. 1997). 19 STRONG, supra note 10, at 780 (“In the . . . theater of the court-

room, lawyers become themselves principle storytellers, and theproducers and directors of tales told by others.”).

20 See JOHN E. DIETRICH & RALPH W. DUCKWALL, PLAY

DIRECTION 6 (2d ed. 1983).21 CONSTANTIN STANISLAVSKI, AN ACTOR PREPARES 244 (1963).22 WILLIAM BALL, A SENSE OF DIRECTION: SOME OBSERVATIONS

ON THE ART OF DIRECTING 70-92 (1984). 23 STANISLAVSKI, supra note 21, at 46.24 Id.25 Id.26 Id. at 5.27 John Nolte, Ph.D., is a psychologist and psychodramatist in

Hartford, Connecticut. Dr. Nolte is on the teaching faculty ofGerry Spence’s Trial Lawyers College, where psychodrama is usedextensively in the training of trial lawyers.

28 JOHN NOLTE, Brochure for the “PSYCHODRAMA AND TELLING

THE STORY” WORKSHOP, Oct. 23-25, 1998 (Midwest Ctr. forPsychodrama & Sociometry, Omaha, Neb.) [hereinafter“PSYCHODRAMA AND TELLING THE STORY” BROCHURE].

29 Id.30 TIAN DAYTON, PH.D., THE DRAMA WITHIN: PSYCHODRAMA

AND EXPERIENTIAL THERAPY 1 (1994).I. What is PsychodramaA. Introduction to Psychodrama31 3 J. L. MORENO & ZERKA T. MORENO, PSYCHODRAMA: ACTION

THERAPY & PRINCIPLES OF PRACTICE 11 (1969). Psychodramawas, from its inception, a therapeutic method. Moreno proposedthe replacement of Freudian psychoanalysis with psychodrama. 3id. at 11, 24.

32 ADAM BLATNER, FOUNDATIONS OF PSYCHODRAMA: HISTORY,THEORY, AND PRACTICE 1 (3d ed. 1988).

33 Id.34 J.L. MORENO, WHO SHALL SURVIVE?: FOUNDATIONS OF

SOCIOMETRY, GROUP PSYCHOTHERAPY, AND SOCIODRAMA 81 (3ded. 1978).

35 BLATNER, supra note 32, at 1.36 See, e.g., RENE F. MARINEAU, JACOB LEVY MORENO 1889-1974:

FATHER OF PSYCHODRAMA, SOCIOMETRY, AND GROUP

PSYCHOTHERAPY 157 (1989); MORENO & MORENO, supra note31, at 233.

37 PETER FELIX KELLERMANN, FOCUS ON PSYCHODRAMA: THE

THERAPEUTIC ASPECTS OF PSYCHODRAMA 31 (1992).38 See BLATNER, supra note 32, at 2.B. The Origins of Psychodrama39 Id. 40 See MARINEAU, supra note 36, at ix.41 See id. at xi.


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1. J. L. Moreno42 Id. at 6.43 PSYCHODRAMA SINCE MORENO 2 (PAUL HOLMES ET AL. EDS.,

1994).44 MARINEAU, supra note 36, at 32; PSYCHODRAMA SINCE MORENO,

supra note 43, at 2.45 PSYCHODRAMA SINCE MORENO, supra note 43, at 2. 46 Id.47 MARINEAU, supra note 36, at 9; Psychodrama Since Moreno,

supra note 43, at 2. 48 See PSYCHODRAMA SINCE MORENO, supra note 43, at 2. 49 Id. 50 Id. 51 Id.52 MARINEAU, supra note 36, at 153; PSYCHODRAMA SINCE

MORENO, supra note 43, at 2.53 MARINEAU, supra note 36, at 153.54 These episodes in Moreno’s life are recounted in slightly varying

ways in several books, including: IRA A. GREENBERG,PSYCHODRAMA AND AUDIENCE ATTITUDE CHANGE (1968); A.PAUL HARE & JUNE RABSON HARE, J.L. MORENO (1996);MARINEAU, supra note 36; J. L. MORENO, THE AUTOBIOGRAPHY

OF J.L. MORENO, M.D (1985); MORENO & MORENO, supra note31; PSYCHODRAMA SINCE MORENO, supra note 43.

2. Child’s Play55 MARINEAU, supra note 36, at 35-39.56 Id. at 39.57 GREENBERG, supra note 54, at 22.58 MORENO, supra note 54, at 34; see also MARINEAU, supra note 36,

at 40.3. The Benefits of Groups59 HARE & HARE, supra note 54, at 8-9.4. Spontaneity Theater60 MARINEAU, supra note 36, at 70.61 Id.62 Id. at 72.63 Id. at 70.64 Id. at 74-75.65 1 J. L. MORENO, PSYCHODRAMA 3-5 (1946); see also MARINEAU,

supra note 36, at 74-76.66 See MARINEAU, supra note 36, at 76-77.C. What Does a Psychodrama Session Look Like?67 See id. at 157. 68 See KELLERMANN, supra note 37, at 26.69 See id. at 22. 70 Because J. L. Moreno developed psychodrama from his earlier

experiences in “spontaneity theater,” he used theater vocabulary.See MARINEAU, supra note 36, at 136, 156.

71 Id. at 157.72 See MORENO & MORENO, supra note 31, at 233.73 See KELLERMANN, supra note 37, at 11-12.74 See MORENO & MORENO, supra note 31, at 23.D. Psychodrama Techniques1. Role Reversal75 MIKE PAPANTONIO, IN SEARCH OF ATTICUS FINCH: A

MOTIVATIONAL BOOK FOR LAWYERS 55 (1996). 76 See HARE & HARE, supra note 54, at 15.77 THE ESSENTIAL MORENO: WRITINGS ON PSYCHODRAMA, GROUP

METHOD, AND SPONTANEITY BY J.L. MORENO, M.D. 4(Jonathan Fox ed., 1987).

78 BLATNER, supra note 32, at ix.2. Soliloquy79 Id. at 176.3. Doubling80 Id. at 164.81 See KELLERMANN, supra note 37, at 147-48.

4. Mirroring82 Id. at 148.83 See BLATNER, supra note 32, at 169.E. The Segments of a Psychodrama Session84 See MORENO & MORENO, supra note 31, at 237; see also

MARINEAU, supra note 36, at 136; DAYTON, supra note 30, at 63(depicting a diagram of the psychodrama segments). The diagramshows a fourth segment called “analysis.” This additional segmentwas never formally incorporated into the psychodrama process.Id. at 61-62. A fourth segment called “processing” is used in psy-chodrama training to discuss and analyze the psychodrama ses-sion.

F. How Does Psychodrama Work?85 KELLERMANN, supra note 37, at 85. 86 S. A. APPELBAUM, PSYCHOANALYTIC THERAPY: A SUBSET OF

HEALING, 25 Psychotherapy 201, 205 (1988).87 See KELLERMANN, supra note 37, at 86.88 Id.89 Id. 90 Id. at 92. 91 Id. at 90 (citation omitted).92 Id. at 90-91. 93 Id. at 91. 94 Id. at 93-94. 95 Id. at 93.


Psychodrama WorkshopRound Top, Texas

February 7 – 10, 2001

The National Psychodrama Training Center willpresent a professional psychodrama training work-shop in Round Top, Texas February 7 – 10,2002. The purpose of the workshop is to teachthe basics of the psychodramatic method to work-shop participants. The training method is, itself,psychodramatic, experiential and non-linear. Thismeans that psychodramatic techniques are inte-grated into the training, that the training incorpo-rates “learning by doing,” and that the workshopis designed for trainees at all levels of training. Ateach workshop there will be students preparingfor certification as well as those who are attendingtheir first workshop.

Workshops are open to anyone who is genuinelyinterested in learning about the psychodramaticmethod. Most participants come from the mentalhealth professions or will be lawyers who use themethod in their work. Educators, counselors, andall others are welcome to attend.

For more information or to register, call MichelleStoneham (402) 451-8564.

2T H E W A R R I O R S p r i n g 2 0 0 2

II. PSYCHODRAMA AND TRIAL LAWYERS

A. THE NATIONAL CRIMINAL DEFENSE COLLEGE

In April of 1975, John Ackerman became the first permanentDean of what is now known as the National Criminal DefenseCollege (“NCDC”).96 The NCDC organizes and sponsorstraining seminars for criminal defense lawyers, including anintensive residential seminar in the summer that lasts severalweeks. In 1975, the training sessions were purely lecture. ButAckerman became familiar with techniques used at the NationalInstitute of Trial Advocacy (“NITA”) that required the attendeesto actively participate by performing the various skills beingtaught. After some modifications, Ackerman adopted the NITAmethod.

The NITA approach proved successful for the NCDC, but aftera few years, Ackerman wanted more:

[I] saw the good lawyers, . . . not just the name lawyers, butthe people who were doing extremely good work aroundthe country in criminal defense work, that they had devel-oped ways to do certain parts of the trial that came out ofwho they were. And I thought, if we could figure out a wayto train the people that came to the college to do all thethings necessary in trying a criminal case by intuition, byjust knowing at some level inside themselves how to goabout the process, that instead of training carpenters, we’dbe really training lawyers who would be a lawyer for all sea-sons, so to speak. Because when you’re teaching carpentersyou have to worry about exceptions. “You do this in almostevery case except in this kind of case where, you know,that’s the worst thing you could do,” or something like that.

That’s . . . what happens when you are training carpenters.I wanted to figure out a way to teach lawyers to be intuitiveand creative and, and to just kind of understand at a . . .gut-level that there were certain ways that would be effec-tive in dealing with the trial of cases and dealing with juries.And I didn’t know how to do that.97

Ackerman called his friend John Johnson, a sociologist who wasoriginally from Wyoming but by then was living in the State ofWashington. Ackerman and Johnson had met through GerrySpence in 1966, when they worked together for Spence on acase in Wyoming while Ackerman was still a law student at theUniversity of Wyoming. Ackerman brought Johnson toHouston in the spring of 1978 when Spence was in town, andJohnson presented the idea of using psychodrama to teachlawyers.

The next scheduled NCDC program was at St. Simons Island,Georgia in the summer of 1978, where Spence was scheduled tospeak. Ackerman, Spence, Johnson and two or three others triedto do a psychodrama session without the benefit of a trainedpsychodramatist, to see what it was like.

[A]t that point we saw the potential, but the potential we sawwas certainly different from what it has become today. At thattime we basically saw it as a way to help people get in touch withthemselves, figure out who they were as a human being, to bereal, to be open, to be honest, and at that time it hadn’t occurredto us that it could be what it is today, and that is a training toolin and of itself, rather than just a way to help people learn aboutwho they were.98

Encouraged by the potential they experienced at St. SimonsIsland, Ackerman, Johnson and Spence scheduled the first ever

Editors’ note: This article was originally published by the NORTHERN ILLINOIS

UNIVERSITY LAW REVIEW, DANA COLE, PSYCHODRAMA AND THE TRAINING OF TRIAL

LAWYERS: FINDING THE STORY, 21 N. ILL. U. L. REV. 1 (2001) and is reprinted herewith permission. This article is featured in The WARRIOR in two parts, the first part

appeared in the Winter 2002 issue.

Psychodramaand the Training of Trial Lawyers:

Finding the StoryP A R T I I

D A N A K . C O L E


psychodrama workshop for lawyers—atwo-and-a-half day seminar at the SnowKing Inn in Jackson Hole, Wyoming, inthe fall of 1978. They hired a professionalpsychodramatist to direct the sessions.The brochure called the seminar “TheCriminal Trial: A PsychodramaticAnalysis,” and it mentioned GerrySpence, who had already achievednational recognition. Fifty to sixty peoplesigned up. The experiment was suc-cessful.

[W]e got through that two-and-a-halfdays and the feedback we got from thepeople that had come was that it was justan absolutely fantastic experience. And inaddition to the personal psychodramas,we dealt a lot with problems people werehaving with cases they were involved in,problems with judges, problems withclients, things like that. And we were ableto work through some things there thatworked out quite well.99

A series of psychodrama programs werescheduled from 1978 until 1983 throughthe NCDC, using a psychodramatistnamed Don Clarkson.100 The psy-chodrama sessions were run as separateprograms; they were not integrated intothe NCDC summer training program.When Ackerman’s tenure at the collegeended in 1983, the interest in using psy-chodrama began to wane. Only two orthree psychodrama programs were sched-uled after Ackerman left.

By 1988, psychodrama was no longerused as a training method at the NCDC.However the idea of using psychodramato train trial lawyers remained alive.When Gerry Spence decided to begin hisown training program for lawyers, hecalled his friend John Johnson and theyinvolved Don Clarkson. Clarkson calledhis colleague, John Nolte, to participateas a psychodramatist. On July 31, 1994,a new experiment began: the TrialLawyer’s College.

B. GERRY SPENCE’S TRIALLAWYER’S COLLEGE

In 1994, Gerry Spence started an inten-sive trial advocacy course at his 34,000-acre Thunderhead Ranch, located twenty

miles east of the small town of Dubois,Wyoming. Forty-eight lawyers areselected each year from hundreds ofapplicants to stay at the ranch fortwenty-one days and to experience psy-chodrama as a method of trial prepara-tion.101 Spence calls the course “the TrialLawyer’s College” and he describes it inhis 1998 book, Give Me Liberty:

Let me tell you a story: . . . We are inour fifth year at our nonprofit TrialLawyer’s College (TLC), a pilot pro-gram we have organized and whichwe conduct every year at my ranchfor training trial lawyers for thepeople. . . . The first step in the pro-gram is to give the [attendees] theopportunity to become humanagain…. At our Trial Lawyer’sCollege, both [attendees] and [fac-ulty] are given the opportunity torediscover themselves. They are putthrough days of psychodrama byexperienced psychologists…. [T]heylearn how to crawl into the hides oftheir clients, to experience their pain,to understand the witness on the wit-ness stand, even to understand andcare for their opponent. In thecourse of their training, they becomethe judge, and even feel how it is tobe the juror… By the end of theirexperience at TLC, we have wit-nessed a miracle. Nearly everyattendee has entered into the mostsacred realm of human experience—that place I call personhood. Theyhave learned to tell the truth, notonly about their case but aboutthemselves. They have learned thepower of credibility.102

Spence revived and expanded Ackerman’sidea of using psychodrama to train triallawyers.103 Not surprisingly, Ackerman isnow on the teaching faculty of Spence’sTrial Lawyer’s College.

III. PSYCHODRAMA AND TRIAL

SKILLS TRAINING

The trial of a case is telling the jury theclient’s story.104 We can only tell what weknow. Traditional methods focus on

telling the facts as they have been relatedto us. Psychodrama is a method thatenhances empathy by permitting us toexperience the facts vividly and to dis-cover how those facts were experienced.105

Psychodrama allows us to find the truestory—to discover important facets ofour story that were previously over-looked.

A. DIRECT EXAMINATION:FINDING THE STORY

1. Lawyer Preparation

In direct examination, we tell our client’sstory through the witnesses, each witnessresponding to the questions asked by thelawyer. Because the lawyer controls theinformation by the very questions asked,the story is revealed as the lawyer under-stands it. If the lawyer has only a limitedunderstanding of the events, a limitedstory will be revealed. Typically thelawyer knows the story through informalinterviews, witness statements or deposi-tions. The lawyer knows only the factsreported by the witnesses. The lawyer wasnot there when it happened. The lawyerdid not observe the event, much lessexperience the event as the witnessexperienced it.

Through psychodrama, the lawyer is ableto experience the event. The lawyer canreverse roles with the witness and experi-ence the event from the vantage point ofthe witness. The lawyer will have access tothe emotional content involved in thestory that is not otherwise fully available.The lawyer will have a deeper under-standing of the truth involved – anunderstanding grounded in empathy, notsympathy.106 The lawyer’s deeper under-standing of the witness’ story will suggestdifferent questions—better questions.

One psychodramatic tool that can beused to accomplish this task is the reen-actment—a psychodrama that recreatesthe event the way it is remembered by thewitness. Let me give you an example froma recent psychodrama session conductedat the Trial Lawyers College.107 A lawyerwas preparing for a medical malpracticetrial involving a brachial plexus injury—a birth injury caused by pulling too hard



on the head and neck of the infant duringdelivery. The result of the injury was per-manent paralysis of one of the arms. Thislawyer was working on the direct exami-nation of her client with a group of abouttwenty that consisted primarily of othertrial lawyers. She practiced her directexamination in front of the group. Thedirect examination of the mother failedto convey a sense of the excitement,urgency, panic and horror that was likelyinvolved immediately before, during andafter the delivery. The questions by thelawyer were clinical, revealing only hard,factual information.

The lawyer was asked by the group leader,the director, to become a protagonist in apsychodrama. She was asked to reverseroles with her client. She agreed. An areawas cleared in the center of the room.This area became the stage. The othermembers of the group became the audi-ence. They sat in chairs arranged in asemicircle in front of the stage. Thelawyer/protagonist was asked to walkaround on the stage and perform a solil-oquy as her client. She spoke herthoughts and feelings about how it feelsto be a woman pregnant with her firstchild and late in the third trimester. Asshe spoke she placed her hand on herstomach and imagined her stomach largeand round and the feeling of the babymoving inside. The soliloquy allowed herto warm up to the role before moving tothe first scene.

The first scene involved the lawyer/pro-tagonist, in the role of her client in thecar on the way to the hospital. Four chairsbecame improvised props. The chairs,arranged in two rows of two, became thecar—the first row for the front seat andthe second row for the back seat. Amember of the audience was recruited tobe an auxiliary and to play the role of theclient’s husband as he drove the client tothe hospital. This scene allowed the pro-tagonist to further warm up to the role inpreparation for the critical scene.

When they arrived at the hospital, otheraudience members were recruited to serveas auxiliaries in the roles of doctors,nurses and other health care profes-

sionals. The reenactment took place in aroom that was used as an exercise room.There was a variety of exercise equipmentin the room including a weight benchand weight belts. The weight benchbecame a hospital bed as the lawyer/pro-tagonist, still in character, was movedfrom the car to the delivery room. Sheclutched her husband’s hand andexpressed the pain and excitement of themoment. As the fetal monitors began tosound their alarm, her excitement turnedto panic. Audience members mimickedthe sound of the monitors. Doctorsbegan to bark orders and the health careprofessional hurried in response. Thelawyer/protagonist expressed fear andconfusion. Finally, the baby was deliveredand the panic dissipated and was replacedby the joy of seeing her firstborn child—a girl. A weight belt wrapped in a sweat-shirt represented the baby. As the motherunwrapped the baby, she discovered thearm that was limp. She went through themotions of picking up the tiny arm andreleasing it, only to see it fall lifelessagainst the crying newborn. Her joy wasreplaced by anguish. She beganscreaming, “What’s wrong with my baby?What have you done to my baby?” At thedirection of one of the doctors, a nurseforcibly took the baby from the mother.The childless mother sobbed as her hus-band made a futile attempt to consoleher.

With the emotion of the scene still fresh,the lawyer was asked to try her directexamination again. The direct examina-tion that followed was dramatically dif-ferent than the first. It revealed themixture and rapid change of emotionexperienced by the client. It took on aquality of being told in the present tense—the here and now. It effectively con-veyed the emotional content of the story.The lawyer understood not only the facts,but also how the client experienced thosefacts. A wealth of new material was nowavailable to the lawyer for use in thedirect examination. The lawyer was nowin a position to ask questions thatrevealed not only the facts, but also howthe client experienced those facts.

2. Witness Preparation

Often it is the witness who is having dif-ficulty accessing the emotional truth.During the direct examination she tellswhat should be a compelling and emo-tionally charged story in clinical terms orin a monotone that belies the subjectmatter. The subject and the delivery areincongruous. It is bad enough that thejury will not get the full impact of thestory. It is worse if the jury concludes thatthe witness is uncaring and emotionallydetached. It could be disastrous if the juryconcludes that the witness is simply lying.

Psychodrama permits the witness to relivethe emotions in a safe environment. Thepsychodramatic experience serves to pre-pare the witness for trial. The exercisedoes not mask the truth withtrumped-up emotion, but allows the wit-ness to tell more of the truth by releasingthe pent-up emotion. “Protagonists arenot manipulated into expression, buthelped to overcome those resistanceswhich block their spontaneity.”108 Thewitness is now able to articulate the feel-ings because the feelings have beenbrought from a subconscious level to aconscious level. Unspoken thoughts cannow be expressed.109

B. CROSS-EXAMINATION: FINDINGTHE STORY

As the phrase suggests, cross-examinationis typically interrogation that is “cross,”or as Webster defines the term, “showingill humor or annoyed.”110 Wecross-examine the witness out of our fear.The witness is called by the other side todestroy our case. Despite all of the dis-covery available to us, the witness is stillunpredictable. More often than not, weset about the task of destroying the wit-ness’ credibility by verbally attacking thewitness in a harsh and demeaning tone.The problem with this approach is thatthe jurors are not motivated out of thesame sense of fear. They do not want thewitness to be attacked simply because thewitness was called as a witness by oneparty to this lawsuit and not the other.The jurors are searching for the truth.What is the truth of this particular wit-



ness as it relates to the case?

Psychodrama is the search for the truththrough dramatic methods. A simple rolereversal will allow the lawyer to see thewitness not as an enemy to be destroyed,but as a human being whose motivationis to be revealed. The lawyer must experi-ence the world as the witness experiencesthe world – not just think about it, butalso become the witness.

Consider the following example:111 Yourepresent Mike O’Loughlin who isaccused of selling drugs. The prosecu-tion’s chief witness is Rose Gray, who nowadmits to being a partner of O’Loughlin’sin the drug trade. When first arrested, shedenied knowing the defendant. Sheexplained on direct examination that shelied to the police “to keep from going tojail.” She is a single mother of two daugh-ters, ages five and three. The penalty forselling drugs is twenty years. Ms. Grayhas agreed to testify against the defendantin exchange for the prosecutor’s agree-ment to charge her with possession only,rather than for the sale of drugs, and torecommend a three-year suspended sen-tence. Ms. Gray was convicted of posses-sion of a controlled substance eight yearsago and was sentenced to one year in thepenitentiary. She was released after threemonths.

A typical cross-examination might go asfollows:

Q: Ms. Gray, this is not the first timeyou have been involved with theauthorities as a result of drugs, isn’tthat true?

A: Yes.

Q: In fact, you were convicted ofpossession of a controlled substanceeight years ago, isn’t that true?

A: I know it was a while ago, yes.

Q: You received a sentence of oneyear, correct?

A: Yes, but I was released early.

Q: You served three months in thepenitentiary for women, true?

A: Yes, that’s right.

Q: You understand that the prose-cutor has the option of charging you

with drug dealing, true?

A: I understand.

Q: If convicted you would go backto the penitentiary, isn’t that true?

A: Yes.

Q: This time for twenty years?

A: That’s my understanding.

Q: But the prosecutor offered you adeal, isn’t that true?

A: Yes.

Q: If you testify against Mike, theywill not charge you with dealingdrugs, true?

A: That’s what they said.

Q: They will only charge you withpossession of drugs, isn’t that true?

A: Yes.

Q: By testifying against Mike, youare guaranteed that you will not goto prison for twenty years, right?

A: By telling the truth, yes.

Q: Having now testified, you willlikely receive a three-year suspendedsentence, true?

A: That will be up to the judge.

Q: A three-year suspended sentenceis what the prosecution will recom-mend, right?

A: That’s right.

Q: When you were arrested fordealing drugs, you denied knowingMike, true?

A: Yes, I was scared.

Q: Now you say that he was yourpartner in this drug operation.

A: That’s right.

Q: You lied to the police?

A: Yes, I didn’t want to go to jail.

Q: You lied to keep from going tojail?

A: Yes.

Q: And that is your goal here today—to keep from going to jail?

A: I’m not lying.

Q: You entered into this deal withthe prosecutor to keep from going tojail for twenty years, isn’t that true,

Ms. Gray?

A: I agreed to tell the truth, yes.

Q: You will lie to keep from going tojail, isn’t that true?

A: I’m not lying.

Q: We have already established thatyou have lied to keep from going tojail, true?

A: Yes, but I’m not lying now.

Q: No further questions.

This approach is intended to discredit thewitness by revealing the witness’s motiva-tion for lying. The witness’s motivation isbrought to the jury’s attention by forcingthe witness to acknowledge the motiva-tion. The approach will usually require astern attitude and some persistence toovercome a predictably reluctant witness.

There are two shortcomings with thisapproach. First, this approach exploresonly the intellectual truth of the witness’scircumstances, but fails to explore theemotional truth. The jury has been sup-plied with the facts, but has not beenshown how the witness experiences thosefacts—how they affect her emotionally.Second, the approach takes unnecessaryrisks of offending the jury. By focusingonly on the factual truth and ignoring theemotional truth, the lawyer appears coldand uncaring, even hostile, to the witness.

A different approach could be developedusing psychodramatic techniques. Inpreparing for the cross-examination, alawyer reversed roles with the witness andexperienced what it might feel like to bea young mother facing prison. Theinsight generated by performing the exer-cise resulted in the following cross-exam-ination delivered in a soft voice:

Q: Ms. Gray, I understand you havesmall children?

A: Yes.

Q: Daughters?

A: Yes.

Q: Could you please tell the mem-bers of the jury their names and ages?

A: Sure. Sarah is five and Taylor isthree.

Q: Do you have any help raising



your children?

A: No.

Q: Their father does not help you?

A: No, we haven’t seen him in quitesome time.

Q: It must be difficult for you?

A: We do okay.

Q: Well, if you go to the penitentiaryfor twenty years, who would lookafter your little girls?

A: I don’t know.

Q: That must worry you quite a bit.

A: Yes, it does.

Q: How old will Taylor be in twentyyears?

A: Twenty-three, I guess.

Q: She will be a grown woman?

A: Yes.

Q: What about Sarah?

A: She’ll be twenty-five.

Q: If you go to prison for twentyyears, your children will grow upwithout you?

A: Yes.

Q: That must be frightening for ayoung mother?

A: (No response.)

Q: You will not take them to school?

A: No.

Q: You will not see them in schoolplays?

A: No.

Q: You will not read to them at nightor tuck them into bed?

A: No.

Q: You will not see them off to thehigh school prom, or attend theirhigh school graduations?

A: No.

Q: You will not be there to take careof them when they are sick?

A: Not if I’m in prison, no.

Q: They may even get married whileyou are away in the penitentiary?

A: They could.

Q: You would like to be there forthem, isn’t that true?

A: Of course I would.

Q: You have been to prison before?

A: Yes.

Q: You know what it is like there?

A: Yes.

Q: You were scared while you werethere?

A: Sometimes.

Q: Scared of the other inmates?

A: Some of them.

Q: There is no privacy in prison?

A: Not much.

Q: You sleep in the same room withother inmates?

A: Yes.

Q: Shower with other inmates?

A: Yes.

Q: The guards tell you when you caneat?

A: Yes.

Q: When you can sleep?

A: Yes.

Q: When to take a shower?

A: Yes.

Q: You can only have visitors onspecified days?

A: Yes.

Q: And for specified times?

A: Yes.

Q: In a large and noisy room?

A: Yes.

Q: Sometimes nobody comes tovisit?

A: (No response.)

Q: You count the days until you cango home?

A: Yes, if you know how long it willbe.

Q: You don’t want to go back there,isn’t that true?

A: That’s true.

Q: Not for twenty years?

A: (No response.)

Q: There is a way you can avoid allthat?

A: Yes.

Q: You understand that if you testifyfor the prosecutor in this case, theprosecutor will charge you withsimple possession and not dealing indrugs?

A: That’s what he said.

Q: And you believe him?

A: Yes.

Q: He will recommend a three-yearsuspended sentence?

A: Yes.

Q: That means you may not have togo to prison at all, isn’t that true?

A: Yes.

Q: And you can go home to Sarahand Taylor?

A: Yes.

Q: Wouldn’t that be wonderful?

A: Yes.

Q: To have your life back?

A: Yes.

Q: And so you accepted that deal?

A: Yes.

Q: Well Ms. Gray, even Mike canunderstand why you are doing this. Idon’t have any more questions.

The goal of discrediting the witness isaccomplished to a greater extent herethan in the first example. First, not onlyare the facts presented, but how the wit-ness emotionally experiences those factshas also been explored. The jurors canempathize with the witness while con-cluding that she cannot be believed. Shehas too much to gain and too much tolose to be a credible source of informa-tion. Second, the lawyer is perceived askind, compassionate and understanding,and the risk of offending the jurors hasbeen reduced or eliminated.

The material generated out of the rolereversal allows the lawyer to approach thewitness, not as an enemy to be destroyed,but as a human being whose motivationis to be understood. The lawyer haslooked at the situation from the witness’s



vantage point, through the witness’s eyesand has felt what it must be like to be her.The lawyer spent time in preparation forthe cross-examination, not simply byplaying the role of the witness, but bybecoming the witness psychodramati-cally, feeling the pressure of testifying orgoing to prison, and agonizing over theprospect of losing her children andhaving them lose her.

C. OPENING STATEMENT ANDCLOSING ARGUMENT: FINDINGTHE STORY

The opening statement and the closingargument are the times during the trialwhen the story can be told, not in ques-tion-and-answer form, not piecemeal,but as a narrative. It is an opportunity totell a complete story, passionately andpersuasively. We have already discoveredthat the facts are only a part of what hap-pens. The way those facts are experiencedis the rest of the story. The story is notcomplete and will lack human drama andcompassion if the experience of the factsis ignored.

Lawyers often visit relevant scenes inpreparation for trial.112 It may be thescene of the alleged crime—the intersec-tion where the automobile accident hap-pened, or the machine that caused theplaintiff ’s injuries. This experience per-mits the lawyers to gain insight andunderstanding about the facts of the caseso they can accurately and richly conveythose facts to the jury. However, mostlawyers do not visit the emotional aspectsof the story. They do not experience theevents as experienced by the witnesses orthe client. Psychodrama provides anopportunity to visit the emotional aspectsof the case, to experience the facts. Thelawyer is then in a better position to tellthe jury not only what happened, buthow it felt.

Let me give you an example: Rodreceived a telephone call at home. Hiswife, Jan, and their two sons had beeninvolved in an automobile collision onthe interstate highway. They had beentaken to a hospital more than an houraway. As Rod frantically prepared to leavefor the hospital, he received a second tele-

phone call. His youngest son, Paul, wasdead. Paul was only thirteen years old.When Rod arrived at the hospital, he wasasked to identify his son’s body. Hewaited while they prepared Paul. Finally,a woman came for Rod, and escorted himdown a long hallway to a large stainlesssteel door. The woman opened the doorand started to lead Rod inside. Rod askedthe woman if he could go in alone. Sheagreed, but reassured Rod that she wouldbe nearby if he needed her. Rod enteredthe room alone. He found Paul on a tablein the center of the room. Paul was fullydressed, including his winter coat. Rodcried, and for the next twenty minutes,said goodbye to his son.

Those are the sad facts—a small, butimportant, part of a tragic story. The triallawyer had to relate this part of the storyin court as an element of damages in thewrongful death case. The lawyer couldhave done an adequate job with thesefacts alone. However, to uncover all of theavailable material to choose from in con-structing the opening or the closing, thefacts are only the beginning. The lawyermust understand how those facts wereexperienced by Rod. After reversing roleswith Rod, the lawyer reenacted the scenepsychodramatically. After the psy-chodrama session, the lawyer describedRod’s experience at the hospital:

The white walls, the white tile floor andthe florescent lights gave the narrowhallway the appearance of a tunnel oflight described by survivors of near deathexperiences. Rod had the metallic taste ofpanic in his mouth. Each heavy steprequired a deliberate act on his part.Twice he felt his consciousness slip away,but only for an instant. The brighthallway faded to black but quicklyreturned again. It was as if he had beenasleep for a time, but the interval ofunconsciousness was so brief he did nothave time to fall. Rod steadied himself bytouching the wall with his left hand as hecontinued to walk. The woman looked athim and asked if he were okay. Rod lied,“I’ll be fine.” He needed to see Paul. Hewas afraid that she might not take him tosee Paul if she knew how weak and nau-seated he felt. He avoided her eyes and

continued his methodical march.

They arrived at a large stainless steel door.For the first time since the telephone call,Rod realized that he took comfort in thethought that the doctors might be mis-taken. Maybe Paul was not dead. Heknew that seeing Paul would make thenews more real and extinguish the last ofhis unrealistic hope. The woman placedher hand on the door handle, but beforeturning it, looked at Rod—her sad eyesasking if he could handle this. He noddedto her and she opened the door. Shestarted inside, but paused when she real-ized that Rod did not follow. “Can I havesome time alone with him?” “Of course,”she said. She would be right outside if heneeded her. She backed away and Rodentered the morgue of Lima MemorialHospital alone.

There he was—lying on a table in thecenter of the room—fully dressed. He waseven wearing his winter coat. He lookedlike he was sleeping. Rob approached andlooked down at his son. Paul’s imageblurred as Rod’s eyes filled with tears. Rodstroked Paul’s soft brown hair and gentlyrepeated, “Oh, Paul; oh, Paul.” It was socold in there. Paul’s hair felt cold to thetouch. Rod thought, “It’s so cold in here.I’m glad he’s wearing his coat.”

The role reversal and reenactment per-mitted the lawyer to experience the factsrather than simply learn about them. Thestory, whether told in opening or closing,is rich with the emotional detail that canonly be accessed by the experience.

D. EXPERIENCES WITHPSYCHODRAMA IN THECLASSROOM

One of the challenges for trial advocacyteachers is to keep everyone engaged inthe class while working with one or twostudents at a time. Psychodrama can beuseful in accomplishing this task. First,the size of the typical trial advocacy classis relatively small, ranging from ten totwenty students. This is an ideal numberfor a psychodrama session.113 Second, trialadvocacy classes are often scheduled inthree-hour blocks, which provide suffi-cient time to use psychodrama.



Psychodrama is not a substitute for skillstraining in the classroom. Students mustlearn fundamental techniques—how todeliver a proper opening statement andhow it differs from closing argument,how to ask leading questions oncross-examination, how to impeach a wit-ness with a prior inconsistent statement,and so forth. However, psychodrama is avaluable tool in helping the students dis-cover the most effective story to tell andin enhancing their presentations.

1.Reenactments to EnhanceStorytelling

Since 1990, I have taught trial advocacyat the University of Dayton School ofLaw and the University of Akron Schoolof Law. At some point during thesemester, each student is asked to relate atrue story from his or her own experi-ence. The stories they choose vary. Someselect comical stories while others opt formore serious, personal stories. The way inwhich they tell their own stories is com-pared to the way in which they presentopening statements or closing arguments.For their personal stories the studentstypically stand before their classmates andrelate the events with great physicalinvolvement. Their gestures reveal thatthey are describing events as they areenvisioning or “seeing” them in theirmind’s eye.

For example, one student used her handsto trace the outline of a pony she wasdescribing. With her arms out in front ofher, hands raised just above eye level,palms facing down, she defined for theclass the height of the pony’s back. It wasapparent that she was envisioning thepony as she described it for us. She evenhonored the physical space the ponyoccupied in the room by stepping aroundthe space rather than walking through it.Another student, telling a story thatinvolved standing waist-deep in a pool ofwater, unconsciously used her hands totouch the surface of the water and toswish the water back and forth with herhands as she related the events of herstory. In another story, a studentdescribed pulling his friend back from thestreet and out of the path of a passing car.

In doing so he mimicked the quicknessand physical characteristics of his reactionby quickly taking a step forward, reachinghis hands out, pulling his hands back andstepping back to his original position.This movement allowed the audience tosee how it happened.

The class invariably accepts these per-sonal stories as true, in part because thephysical involvement is consistent withthe words. The student appears to bedescribing the event as she is reliving it inher mind. Her physical movements placethe objects or define the action, andpermit the audience to relive it with her.The stories are credible because the stu-dent is describing it as it is happening inher mind.

When the same students are asked topresent an opening statement or closingargument, the presentations generally lackphysical involvement. For example, theheight of a brick wall is described in termsof feet without setting the scene physicallyby touching the top of the wall. Adoorway is described verbally without thephysical movement that would place thatdoorway in the room. Movements of thecharacters in the story are describedwithout the benefit of a physical demon-stration. Having never seen the object orexperienced the movement, the studentdoes not envision the object to bedescribed or relive the movement.

These students are then asked to partici-pate in a psychodramatic reenactment ofthe case they are arguing. They assumethe role of a character in the storythrough a simple role reversal, and thenphysically act out the scene to bedescribed. Other students in the classplay the other required roles. After thereenactment, the students are asked togive the opening statement or closingargument again. This time physicalinvolvement joins the language and theevents are told with the same degree ofanimation as the personal stories. Thestudents now have a sense of having beenthere, and their performances reflect thequality of reliving the story rather thanjust retelling it.

2. Reenactments to Select the FactualTheory

The students are given simulated cases totry during the course of the semester. Thefacts in these cases, as in real cases, are indispute. With conflicting evidence, thestudents are left to select a factual theoryamong two or more possible theories.Reenactments have been very helpful inselecting the factual theory that is mostpersuasive. A factual theory that wasattractive at first has proven incrediblewhen the students tested the theory byphysically going through the motions.

3. Role Reversals to Gain Insight

Students who are having difficultyembracing a particular client or directingor cross-examining a particular witnessare asked to assume the role of the clientor witness through a simple role reversal.Through soliloquy, interview or reenact-ment, the student gets a better sense ofthe client or witness. This insight is oftenall that is required to work through theimpasse.

V. DO PSYCHODRAMA SESSIONS

REQUIRE A TRAINED

PSYCHODRAMATIST?Psychodrama has not gained widespreadacceptance as a therapeutic method.114 Infact, there has been a great deal of con-troversy concerning the use of psy-chodrama as a therapeutic tool. Whetherpsychodrama is effective for therapy isbeyond the focus of this article. The issuehere is the usefulness of psychodrama forthe non-therapeutic application of trialpreparation and trial.115 However, thetherapeutic use of psychodrama does raiseconcerns that the use of psychodrama bysomeone other than a therapist trained inpsychodrama would be inappropriate andcould result in unintended consequences,such as psychological harm to the partic-ipants. For example, reenactment of atraumatic event in the client’s life, such asthe death of a loved one, or rape, couldhave the effect of re-traumatizing theclient.116

In an article for the American Trial



Lawyers Association’s Trial Magazine,jury consultant Amy Singer, Ph.D.,stated:

Psychodrama is one of the psycholo-gist’s most powerful tools for quicklypenetrating someone’s defenses,while at the same time enabling theperson to break through denial andreveal highly personal truths. It is anideal technique to help the injuredclient – particularly young abuse vic-tims – get in touch with painfulthoughts and feelings regarding hisor her own tragedy, and to revealthese feelings to others—first to theattorney and later to jurors.

Since psychodrama is a complextherapeutic activity, a trained psy-chologist licensed to practice psy-chodrama is necessary to organizeand direct psychodrama sessionswith clients. Attorneys should notattempt to organize a psychodramasession by themselves.117

In direct response to Dr. Singer’s state-ment, James Leach, John Nolte andKatlin Larimer118 wrote:

Psychodrama is a powerful and com-plex methodology that requiresextensive training to master, and psy-chodramatic psychotherapy shouldonly be conducted by a credentialedmental health professional. Still, psy-chodrama has many nonclinicalapplications that easily include rolereversals and can include simplereenactment of the client’s experi-ences.

A lawyer with sufficient training inpsychodrama can and should use itfor the purposes outlined in thisarticle. If, however, the lawyer wishesto reenact a traumatic event in theclient’s life, such as a death, a rape, orabuse of a child, the lawyer shouldseek assistance from a professionalpsychodramatist to avoid retrauma-tizing the client. If the client is beingtreated by a mental health profes-sional, the lawyer should consult theprofessional to determine whether to

use psychodrama.119

Both articles would suggest thatinvolving severely traumatized clients andwitnesses as protagonists in a psy-chodrama session concerning the subjectmatter of the trauma presents certainrisks to the protagonist. There seems tobe a consensus that this situation woulddemand the skill and knowledge of a pro-fessionally trained psychodramatist toavoid the risk of inflicting further psy-chological harm to the protagonist.However, Singer’s blanket statement that,“[s]ince psychodrama is a complex thera-peutic activity, a trained psychologistlicensed to practice psychodrama is nec-essary to organize and direct psy-chodrama sessions with clients,” and that“[a]ttorneys should not attempt toorganize a psychodrama session by them-selves,” apparently leaves no room forpsychodrama sessions involving lessextreme circumstances.120 Leach, Nolteand Larimer disagree with Singer. Theywould not only permit lawyers with psy-chodrama experience to use psychodramawith clients in the absence of a psycholo-gist, they encourage it.121

The conflict may stem from a funda-mental difference of opinion concerningwhat psychodrama is and what it is not.122

Singer views psychodrama as a complextherapeutic activity.123 Certainly this viewwould lend itself to a heightened concernabout the appropriateness of using psy-chodrama in the absence of a psychologist.However, Nolte, while acknowledging thatpsychodrama can be used in therapy, has amuch broader view of the method:

Because it was originated by a psychiatristand because he developed it largelywithin the setting of a mental hospital,psychodrama is widely thought of as “amethod of psychotherapy.” This is mis-leading at best and has had a strong neg-ative influence upon the development ofthe non-clinical applications of themethod. It is more accurate to considerpsychodrama as a method or system ofcommunication, and psychotherapy asone of its uses.124

Viewed as a method or system of com-munication, there will be less reservation

about using the method.

A few ideas emerge from the debate.When the lawyer is the protagonist and isusing various psychodramatic techniquesto gain a better understanding of theclient and witnesses, the risks are mini-mized. Even in a reenactment, the lawyer,having not experienced the trauma in thefirst place, is not at risk of being re-trau-matized in the relatively safe environmentof the psychodrama session. Similarly,when the lawyer is using psychodrama tounderstand how various jurors or thejudge might view the case, the concernsraised by Singer are not implicated. It iswhen the client or the witness is involvedin the psychodrama session that the issuearises. Being aware of the issue permitsthe lawyer to exercise judgment aboutwhen a certified psychodramatist shouldbe used.

CONCLUSION:THE STORYTELLER IN TRIAL

The trial of a case is the telling of a story.Therefore, to be good trial lawyers, wemust be good storytellers.125 The problemis that most of us were hampered in ourdevelopment as storytellers by an inade-quate and counterproductive legal educa-tion – one that not only failed to teach ushow to tell stories, but also dictated thatwe dismiss emotion and empathy in favorof formal legal principles and cold legalanalysis.126 Upon graduation from lawschool, we can list the elements of a tort,but cannot embrace and convey thehuman tragedy behind the cause ofaction. To become good storytellers andeffective trial lawyers, we must nowaccept what we once learned to reject, totake up what we once set aside—thehuman drama, how the experience waslived and felt by the people involved.

We can only tell what we know. Our dis-covery of the story may begin with thefacts, but the underlying story, the realstory, is in the way those facts were expe-rienced by our client and the witnesses.127

Psychodrama is a discovery tool thatallows us to access the experience – to seethings as they saw them, to feel it as theyfelt it—and then use what we have dis-


1 0T H E W A R R I O R S p r i n g 2 0 0 2

covered in every phase of the trial. We canthen present our case to the jury in a waythat reveals not only what happened andwhy it happened, but also how it wasexperienced—the inner motive forcesinvolved.128 In doing so we will bridge thegap between the reason to act and theaction itself. The jury can then under-stand and relate to our client and the wit-nesses on an emotional level. The jurorswill recognize the experience as parallel totheir own. They may not have experi-enced the precise situation described inthe trial, but they have experienced sim-ilar emotions. They have now been givensufficient input to truly empathize withthe characters involved and accept thestory as true. The story as lived, felt andexperienced is not only engaging—it isultimately believable.

ENDNOTES

Dana K. Cole is an Associate Professor of Law atthe University of Akron School of Law and is onthe teaching faculty of Gerry Spence’s TrialLawyer’s College.

I appreciate the support of the University ofAkron School of Law in providing me a summerresearch grant.

I acknowledge the kind assistance of John Nolte,Ph.D., for his teaching, direction and sugges-tions. To have a psychodramatist of his caliberadvising me has been a great gift. I also recognizethe significant contributions of Gerry Spence,Esq., who is engaged in a constant struggle, notonly to find a better way to represent people as alawyer, but also to share his great gifts withyoung lawyers through his non-profit TrialLawyers’ College. The successful development ofpsychodrama as a tool for trial lawyers is largelythe result of his vision and generosity.

I am grateful for the invaluable research assis-tance and encouragement of Anthony Galliaand Melinda Smith. Students like Anthony andMelinda are the reason most of us went intolegal education.

This article expands upon a presentation at theNorthern Illinois University Law Review’sNinth Annual Symposium, “Defense Strategiesin Death Penalty Litigation,” on March 23,2000, entitled “Psychodrama in Capital Cases:A New Tool for Humanizing the Accused.”

96 The NCDC, located at Emory Law School inMacon, Georgia, and sponsored by theNational Association of Criminal DefenseLawyers, was originally located in Houston,Texas. The college was originally called the

National College of Criminal Defense Lawyersand Public Defenders. The name was subse-quently changed to the National College forCriminal Defense. When the College relocatedto Georgia, the name was changed again to itscurrent name. Videotape: INTERVIEW WITH

JOHN ACKERMAN, INSTRUCTOR, THE TRIAL

LAWYER’S COLLEGE, IN DUBOIS, WYO. (AUG.11, 1998) (transcript on file with author)[hereinafter INTERVIEW WITH ACKERMAN].

97 Id.

98 Id.

99 Id.

100 Don Clarkson is a licensed independent clin-ical social worker and certified psychodrama-tist. He is on the staff of Howard UniversityCounseling Service and is an AssociateProfessor in the Howard University School ofSocial Work in Washington, D.C.

101 From 1994 through 1999, the Trial Lawyer’sCollege was a thirty-one day program. In2000, the program was condensed totwenty-one days.

102 GERRY SPENCE, GIVE ME LIBERTY: FREEING

OURSELVES IN THE TWENTY-FIRST CENTURY

303-05 (1998).

103 Interview with Ackerman, supra note 96.

104 PHILIP N. MEYER, WILL YOU PLEASE BE

QUIET, PLEASE?: LAWYERS LISTENING TO THE

CALL OF STORIES, 18 VT. L. REV. 567, 567-68(1994).

105 See BLATNER, supra note 32, at 6.

106 Lynne Henderson has defined “empathy” asincluding: “(1) feeling the emotion of another;(2) understanding the experience or situationof another…; and (3) action brought about byexperiencing the distress of another….” LYNNE

N. HENDERSON, LEGALITY AND EMPATHY, 85MICH. L. REV. 1574, 1579 (1987).Psychodrama is a tool that provides a means ofattaining parts (1) and (2) of Henderson’s def-inition. The availability of this tool may alsomake it more likely that the third segment willbe achieved, i.e. that understanding will leadto action in the form of decision-making byjurors and judges. The appropriateness of thethird portion, of including emotions or sym-pathy or empathy (as it is varyingly described,see NEAL R. FEIGENSON, SYMPATHY AND LEGAL

JUDGMENT: A PSYCHOLOGICAL ANALYSIS, 65TENN. L. REV. 1 NN.15-39 (1997) in deci-sion-making has been the subject of consider-able debate. See, e.g., SUSAN BANDES,EMPATHY, NARRATIVE, AND VICTIM IMPACT

STATEMENT, 63 U. CHI. L. REV. 361 (1996);FEIGENSON, supra; HENDERSON, supra;MASSARO, supra note 11; RICHARD A. POSNER,LEGAL NARRATOLOGY, 64 U. CHI. L. REV. 737(1997).

107 Psychodrama sessions are confidential. Onlythe protagonist is permitted to describe thepsychodrama session without consent. Theprotagonists involved in the psychodrama ses-sions described in this article have reviewed thedescriptions for accuracy and have given theirconsent that these descriptions be used.

108 KELLERMANN, supra note 37, at 83.

109 See BLATNER, supra note 32, at 9.

110 JEANS, supra note 18, at 414.

111 The example used here was developed at theTrial Lawyer’s College. It is described in moregeneral terms in another article. See JAMES D.LEACH ET AL., PSYCHODRAMA AND TRIAL

LAWYERING, TRIAL, APR. 1999, at 46.

112 See, e.g., FED. R. CIV. P. 34; FED R. CRIM. P.16 (permitting entry on land or other propertyfor inspection and other purposes).

113 See KELLERMANN, supra note 37, at 26.

114 See BLATNER, supra note 32, at 32 (discussing“Resistance to Psychodrama”).

115 Kellermann argues that psychodrama is a formof treatment to be used by professionallytrained clinicians who attempt to treat more orless disturbed clients. He does not suggest,however, that non-therapeutic applications areinappropriate. He would simply like to distin-guish non-therapeutic applications and givethem a different name, such as “creative dra-matics.” See KELLERMANN, supra note 37, at18-19.

116 See LEACH et al., supra note 111, at 48.

117 AMY SINGER, CONNECTING WITH SEVERELY

INJURED CLIENTS, TRIAL, JUNE 1998, at 50.

118 James D. Leach practices law in Rapid City,South Dakota, and has extensive training inpsychodrama. John Nolte, Ph.D., is a psychol-ogist in Hartford, Connecticut, who studiedpsychodrama under J. L. Moreno. KatlinLarimer, of Omaha, Nebraska, is a psychother-apist with certification in psychotherapy. Allthree authors are on the teaching faculty ofGerry Spence’s Trial Lawyer’s College, wherepsychodrama is used extensively in the trainingof trial lawyers.


120 See SINGER, supra note 117, at 50.


122 Kellermann argues that psychodrama is a formof treatment. While he admits that non-thera-peutic applications are appropriate, he distin-guishes non-therapeutic applications by givingthem a different name. See KELLERMANN,supra note 37, at 18-19. However, the issuecannot be dismissed as merely a matter ofsemantics. Regardless of the terminology used,the issue remains whether psychodrama, byany name, presents risks to participants whenused by attorneys who have only a modestamount of psychodrama training.

123 See SINGER, supra note 117, at 53.

124 JOHN NOLTE, PSYCHODRAMA (1998) (unpub-lished manuscript, on file with author).

125 See generally MCKENZIE, supra note 2.

126 See CRAMTON, supra note 8, at 248; DRELL,supra note 9, at 70; MASSARO, supra note 11, at2103.

127 “PSYCHODRAMA AND TELLING THE STORY”BROCHURE, supra note 28.

128 See Stanislavski, supra note 21, at 244.


psychodrama and the training of trial lawyers part i and ii by dana cole

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