Improvisational Theatre and DUI: Navigating Unexpected Witnesses

Posted on November 20, 2023 in Uncategorized

By Jonathan Dichter, Founding Attorney DUIHeroes (www.duiheroes.com)

Anyone who tells you that everything in a DUI trial goes according to plan has never tried a DUI case. Despite the rules designed to prevent it, our world is filled with surprises. One of the greatest challenges an attorney can face during a trial is the sudden introduction of an unexpected witness for some reason. We might object and try to avoid it, but it does happen, and in DUI cases the testimony of just one witness can tilt the scales of justice and snatch defeat right out of the jaws of victory. However, the tools needed to tackle these unexpected turns might be found in an unlikely place: the world of improvisational theater.

Why Improv?

Improv is a form of live theater in which most or all of what is performed is created spontaneously by the performers. It's unscripted and live in the moment. It's never happened before and it'll never happen again. It requires a deep understanding of human behavior, the ability to actively listen, and quick thinking – skills which are invaluable to an attorney in the courtroom - and can allow you to regain your footing and retake control of your narrative when it feels out of control.

Actively Listening to the Unexpected Witness

One of the pillars of improvisation is the principle of "Yes, and..." This means accepting what the other performer (in this case, the witness) is saying and then building on it. It teaches you to be present in the moment and to really listen. It actually requires you to be present in court and listen to what's happening rather than buried in your laptop or files. Remember - if you need a minute - you can ask the judge for one when it's your turn. Meanwhile, listen.

For example, if an unexpected witness for the State claims to have seen your client swerving on the road, you can utilize the "Yes, and..." technique rather than getting defensive and appearing to be rattled. This might look like acknowledging the witness' statement but then probing deeper into things that you know support your case theme. For example, "Yes, you saw the car swerve. And you'd agree that it was raining that day? (or that there were potholes; or that there were any number of other factors that might cause a sober driver to swerve)".

By actively listening and then building upon the testimony, you don't directly confront the witness but instead guide the narrative in a direction that might be favorable to the defense. In fact, it can allow you to turn the unexpected fact witness from the State's witness to yours.

Staying in Control of the Story

In improv we are constantly building a cohesive and collaborative narrative. Similarly, during a trial your defense should be telling a story. When an unexpected witness emerges, you should be ready to weave this new element into your existing narrative, rather than allowing it to hijack the story.

For instance, if an unexpected witness testifies about your client's behavior at a bar before driving, you can again incorporate this into your narrative by asking questions to further craft the story. If your story is that your client wasn't impaired, you might ask, "While at the bar, you didn't know if my client was drinking water (or non-alcoholic beer, or coke, or whatever)" if you can. You can find subtleties that the witness can't explain and use those to re-weave your story around them. This subtle approach keeps the defense's narrative strong and consistent.

Being Adaptable and Embracing the Unknown

In improv, performers are trained to adapt and embrace the unknown. We can't predict what their fellow performers will do, so we must be ready to pivot at any moment. This skill is crucial when dealing with unexpected witnesses. If a witness shares a piece of evidence or an observation that wasn't anticipated, try not to show surprise or frustration - it has to seem like it's exactly what you knew was going to happen. In the meantime, you must quickly process this new information, adapt your line of questioning, and find a way to make it work within your defense strategy. Sounds easy, right? Sure.

Remember that silence and stillness give status and power. So take a moment, breathe, center yourself, and accept what happened. It happened. Now weave your narrative through it or around it. Take that moment and if you seem unrattled and prepared rather than caught off guard, will not only ingratiate the jury to you, but might just make the witness or State think they missed something and give you an upper hand.

The Confluence of Art and Law

In a DUI trial, every moment can drastically influence the outcome. When unexpected witnesses come into play, our ability to think on our feet becomes paramount. By integrating the principles of improvisational theater – active listening, controlling the narrative, and being adaptable – we can better navigate these uncharted waters, ensuring that our client's defense remains as robust and compelling as possible

In the end, the courtroom and the theater are not as different as they might seem. Both demand presence, adaptability, and a deep understanding of human nature. By borrowing techniques from the world of improv (and indeed theatre in general), we can transform unexpected challenges into opportunities, ensuring that we always stay one step ahead in the pursuit of the best results for our clients.

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