MIAMI (Reuters) - Florida attorney Marc Brumer’s client broke his heel after falling from a pedestrian ramp. But by the time he took the construction company that built the ramp to trial, the only witness had moved out of the state.
Brumer had a solution: he hired a professional actor to read the absent witness’s deposition to the court.
Reading the deposition word for word and replicating the witness’s Hispanic accent, the actor described how the ramp was badly lit and had no warning signs for pedestrians.
“We were all floored,” Brumer said of the performance. “It was like the witness was there.” The building company settled.
A specialist in personal injury cases, Brumer is among a handful of lawyers in Florida who hire actors to read the statements of absentee witnesses. He also runs Actors at Law, a small company that finds actors for lawyers when their witnesses cannot make it to a trial.
“I‘m all for using tools that will help the jury understand the evidence,” Brumer said. “When you go to trial on a difficult case, you need every tool you can get to win.”
Attorneys in the United States are allowed to read out depositions to juries when their witnesses cannot attend a trial. Witness testimony can also be videotaped.
But as long as it is made clear to the court the reader is not the actual witness, anyone can read the depositions.
Brumer says that in most cases, the judge and the jury don’t even notice he hired an actor to read a deposition.
Unorthodox ways to present evidence are easy to find in U.S. courts, where some cases like the recent trial of Florida mother Casey Anthony that found her not guilty of murdering her 2-year-old daughter Caylee become prime-time media events.
The country’s adversarial legal system, which requires two sides in a case to argue orally in front of juries, encourages innovation and drama in the courtroom.
Computer programs are used regularly to recreate accidents, while medical diagrams are common props. In larger cases, image consultants school defendants and witnesses on how to take the stand and behave. And psychologists help lawyers to analyze jurors’ attitudes toward their clients.
However, legal experts have mixed feelings about the use of actors during trials.
“If you bring in a professional actor -- to read a deposition -- you could tint the situation” said Jan Jacobowitz, a former trial lawyer who directs the Professional Responsibility and Ethics program at the University of Miami’s School of Law.
“But in other situations maybe you engage the jury and get them to pay better attention,” she added.
Jacobowitz said the Florida Bar Association’s professional rules of conduct contain provisions on candor, impartiality and fairness to the opposing party that could be used in some circumstances to challenge the use of actors in the courtroom.
The American Bar Association also contains similar provisions in its rules of conduct. But the legal entity has no specific rules governing use of actors in the courtroom.
“I think it should be left to the discretion of the judge,” Jacobowitz concluded. “The issue here is the witness isn’t going to appear anyway, and you’re permitted to have the deposition written into the record, are you going to restrict the ability to choose who’s going to read it?”
Ellen Jacoby, Brumer’s partner in Actors at Law, argues attorneys could save some money by using actors.
Rather than hiring experts like doctors and scientists to spend an afternoon at court, she says law firms could take depositions in expert’s offices, and hire actors to read out the testimonies for a fee of, say, $200 per hour.
“A lawyer doesn’t want to pay $25,000 to bring in an expert witness,” she said. “This makes the justice system a little bit more affordable.”
Jacoby runs a casting agency that has found actors for several major TV series and films shot in Miami. Over the past 20 years she has worked for “Miami Vice,” “CSI Miami,” and the Hollywood comedy, “There’s Something About Mary.”
The thought of providing actors for the legal community came to Jacoby after she sued her insurance company for not covering a back injury she suffered in a car accident.
During the trial in which Brumer represented her, Jacoby was shocked to see jurors doze off as lawyers read the deposition of a police officer who witnessed the crash scene but was absent from the hearing.
“There were many things about the justice system that I was unhappy about. And the fact that the judge doesn’t wake anybody up when they fall asleep? It’s frightening,” she said.
The logo of Actors at Law reads “don’t let the jury fall asleep.”
But lawyers in Florida and elsewhere around the country, have been slow to adopt the use of actors in court. Actors at Law has only received a dozen requests for deposition readers since it was launched in 2006.
Law Actors, a Chicago-based company that provided the same service back in the 1990s, peaked at some 20 requests per year in 2005, says its founder, Ian Harris. Clients were mainly based in Chicago, but Harris also found actors to read depositions for lawyers in Texas, Nevada and Florida.
After the 2008 recession, however, the company’s business tanked, with no requests for actors coming in during 2009, and only 10 orders in 2010. Unable to make a living from Law Actors contracts, Harris took a daytime job in a Chicago condo.
“With the economy the way it is, it’s much tougher to get anyone to use this kind of service,” he said.
Harris says the demand for this sort of service before a jury has also dropped because lawyers are now more likely to settle cases before bringing them to trial.
U.S. lawyers took 2,154 civil cases to juries at district courts around the country in 2010 and 2,928 criminal cases. But five years earlier, when Law Actors’ business was at its peak, juries heard 2,312 civil cases in U.S. district courts and a much higher number of criminal cases, 3,768.
Searching for new streams of revenue, Law Actors has developed workshops, in which actors teach lawyers how to get the most compelling testimony from their witnesses.
However, Harris hopes the risk-takers and “mavericks” in the legal profession will continue to see the benefits of using actors during trials.
“What the actors are able to do is bring a sense of reality,” he said. “They’re used to reading somebody else’s words and making them come alive.”
Editing by Pascal Fletcher and Jerry Norton