Via Walter Olson at Overlawyered, is it wrong for an attorney who happens to possess the skills to perform illusions to use them in summation?

In one trick, [Steven] Leventhal [of Philadelphia’s Reger Rizzo & Darnall], who works exclusively for defendants, said he slowly folds a $1 bill while explaining to the jury that the parts of the plaintiff’s case just don’t tie together. When he unfolds the bill, he said, the astonished jury sees a bizarre bill that appears to have been cut apart and pasted together the wrong way, with the corners in the middle.

In another trick, Leventhal said, the slowly folded $1 bill is revealed to be a $100 bill and then, to the jury’s collective amazement, changes back to a $1 bill.

This isn’t as new an idea as one might think.  An old-time New York criminal defense lawyer, Mel Sachs, used to do tricks with a red ball in front of the jury.  It could have been used as a great means of showing the difference between reality and perception, and the limitations of human perception in the face of apparent certainty.  Mel just liked doing tricks.  The jury was often entertained, right up until the moment it returned the verdict of guilty. 

Steven Leventhal believes that his ability to perform “magic” shouldn’t be used against him.

“That the undersigned counsel opted to travel the globe to learn a special set of performance skills rather than wasting his brain cells drinking his summers away at the Jersey Shore should not be held against him,” Leventhal wrote.

His point is well taken.  Should the lawyer with greater rhetorical skills be handicapped because his adversary was a fixture on LBI?  We bring with us our bag of tricks, the skills we pick up throughout the course of our lives, when we walk into the courtroom, and we use whatever we have in the bag to do our job.  Leventhal has the ability to make a point through the use of illusion.  Others can do so through the use of vivid imagery, or excessive police power.  Why is one better or worse than another?

While I have my doubts about the use of illusion as an effective tool before a jury, particularly since most jurors are already aware of its existence (who hasn’t seen David Copperfield?), but distinguish an entertaining show from their similarly well understood belief that witnesses are capable of testifying truthfully and accurately, and the generic argument against the limitations of human perception fail when compared to the specific arguments of the individual who sat before the jury and gave testimony.

But having never seen Leventhal try a case, I am hardly in a position to question his effectiveness in his use of illusion to make a point.  As for his adversaries, there’s nothing stopping them from buying a magic kit at the local Walmart and boning up on their trial skills, if they are so deeply worried that Leventhal’s abilities will crush them.

The point is, we bring every skill we possess into the courtroom, and we use them as effectively as possible. This is what we should do, and there’s absolutely nothing wrong with it.  For the record, whining about one’s adversary is not a skill.