MIAMI, July 20 (Reuters) - Florida lawyer 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
the case out of court.
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.
The U.S. 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 coach defendants and witnesses on how to take the
witness stand and behave. And psychologists help lawyers to
analyze jurors' attitudes towards their clients.
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 has similar provisions in
its rules of conduct. But the legal entity has no specific
rules governing the use of actors in the courtroom.
'DISCRETION OF THE JUDGE'
"I think it should be left to the discretion of the judge,"
Jacobowitz said. "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, said
lawyers 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."
Lawyers in Florida and elsewhere around the country, have
been slow to adopt the use of actors in court. Actors at Law
has received only a dozen requests for deposition readers since
it was launched in 2006.
Law Actors, a Chicago-based company that provided the same
service in the 1990s, peaked at some 20 requests per year in
2005, says its founder, Ian Harris.
After the recent U.S. recession, the company's business
tanked, with no requests for actors in 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.
(Reporting by Manuel Rueda)