“The Devil and Daniel Webster”
Stephen Vincent Benet’s story, Daniel Webster defends Jabez Stone, a New Hampshire farmer who sold his soul to the Devil. The judge and jury are handpicked by “Mr. Scratch” from the legions of the damned. But on the strength of his eloquence, Webster wins the case and literally kicks the devil out the door. A tall tale to be sure, but it was rooted in Webster’s unmatched reputation for verbal pyrotechnics.
Modern-day attorneys may not be a match for Webster, but they recognize the importance of putting on a show — using the skills of the actor, the orator and even the stand-up comedian.
“All good lawyers are performers to some extent,” says Joseph Nadeau, former Justice of the New Hampshire Supreme Court. “The lawyer’s job is to tell a story to the jury and keep them focused.”
Bruce Felmly, whose specialty is civil law, relishes the performance aspect of his practice. “There are moments so exciting that your heart almost stops. Times when you have everybody in your pocket — and times when you don’t know if you’ll get out alive.”
Some lawyers are reluctant to talk about the dramatic side of their profession. They believe it’s been overemphasized by decades of TV shows from “Perry Mason” to “Boston Legal.” But lawyers are people, too; they love drama. Especially when it helps them win a case.
Nadeau recalls a theatrical flourish from his own files: he represented the plaintiff in a personal-injury lawsuit. “A nurse had examined my client on behalf of the defendant. The defense lawyer argued that the nurse’s report said the plaintiff was faking. I could see that most of the report was boilerplate, standard language, so I ripped off the parts that didn’t apply to her conclusion. There was only a half inch left. The defense lawyer objected, but afterward he told me, ‘Man, that was pretty slick!’”
Felmly cites a malpractice case in which he used the actor’s skills to heighten the impact of his words. He represented the plaintiff and was cross-examining the doctor. “I knew the key question would be, ‘If you had it to do again, wouldn’t you do it differently?’”
“After a lengthy cross-examination, the jury is on the edge of their seats and the witness has beads of sweat on his forehead. But instead of pressing forward, I turned away from him, walked slowly to the railing in the courtroom and stood there for about 20 seconds. That’s a long time when there’s absolute silence. Then I asked the question, very calmly, and he just crumbled.” A moment of triumph for the lawyer; not so much for the doctor.
Two flamboyant advocates
aconteur and broadcaster Fritz Wetherbee knows all about colorful characters. So when he calls Freddie Catalfo “the most colorful man in the state,” it’s a strong statement.
Catalfo is still practicing law at the age of 89. (He is not to be confused with his son, also an attorney, also known as Freddie.) Mention the elder Catalfo’s name to any judge or lawyer in the state, and the response usually begins with a chuckle.
Start with his wardrobe. “Velvet coats and big cufflinks,” says Rochester District Court Judge Daniel Cappiello, a former law partner of Catalfo. “He usually had a cigar in his mouth. Sometimes he’d forget and walk into court with a cigar, and the bailiff would have to stop him.”
“Crushed velvet jackets,” says Lincoln Soldati, a onetime prosecutor who’s now a defense attorney. “He had a burgundy one that was quite striking. I remember a green one. He had black ones for more serious occasions.”
Catalfo was known as a colorful advocate who got results. The velvet jackets were “part of the shtick,” according to Soldati, a way of commanding attention — and “if you have the attention of everyone, you’re in control.”
“He can do things in the courtroom that nobody else could get away with,” Soldati continues, recalling a marital-rape case with Catalfo defending the husband. “Freddie argued that she deserved it because she had burnt his dinner. I couldn’t believe I was hearing this.” Soldati adds that Catalfo didn’t personally believe the argument; he was simply willing to do anything to defend his client.
His colleagues say Catalfo is a lot more than a velvet suit and a silver tongue. “He’s a lot smarter than people think, and he has a big heart,” says former partner Cappiello. Justice Nadeau adds, “He certainly was a performer, but he was hard-working and dedicated. He worked nights and weekends.”
Catalfo himself recalls one trial where he defended a man on a speeding charge. As evidence, the arresting officer stated that his experience allowed him to determine speed by observation. Catalfo had him repeat this assertion. “Then I threw a pencil across the room and asked, ‘Tell me how fast that pencil was going.’ Naturally my client was acquitted.”
Soldati is a renowned, and sometimes controversial, courtroom performer in his own right. He’s known for wearing cowboy boots in court, and everywhere else — but he says the unusual footwear is not a gimmick, just a personal choice. “When I was a teenager, I worked one summer on a ranch. I liked how the boots fit, so I’ve worn them ever since.”
As prosecutor and defender, Soldati is an aggressive advocate who occasionally steps over the line. In 1999, he was reprimanded by the state Supreme Court Professional Conduct Committee for written comments about the defense attorney in a high-profile case.
Like Catalfo, he is willing to do almost anything to win. In one of his first cases after stepping down as county attorney, Soldati defended former University of New Hampshire Police Chief Roger Beaudoin on charges of sexually assaulting a male student. Before the case went to trial, Soldati publicly accused the alleged victim of being a “damn liar” and “a disturbed young man.” He was just as aggressive in court, citing the student’s college writings as evidence that he was not a credible accuser. His hardball tactics were a surprise and a disappointment to his former colleagues in the County Attorney’s office and to advocates for sexual-assault victims. But he won the case — and for him, that’s all that matters.
In law school, he says, “we’re taught that it’s all about reason and the search for truth. That ignores the human condition. You don’t find Madison Avenue pitching to your reason. It’s true in the courtroom as well.”
Two legal performers from the past
nless you’re a historian, you may not realize how famous Daniel Webster used to be. He’s one of the greatest Americans never to be President: the leading lawyer and most renowned orator of his era, a Congressman and U.S. Senator and an accomplished Secretary of State. For several decades, his face was on the ten-dollar bill.
His initial fame was due to his consummate skill in court. Before entering politics, he won a series of cases that shaped the Supreme Court’s interpretation of the nation’s young Constitution. One of them was his defense of Dartmouth College against an attempted takeover by the State Legislature. The climax of that battle, wrote eyewitness Chauncey Goodrich, was the memorable quotation: “It is, Sir, as I have said, a small college. And yet there are those who love it!” According to Goodrich, both Webster and Chief Justice John Marshall were reduced to tears. And Webster won the case.
Franklin Pierce also built his career on courtroom success. One legal historian called him “the most brilliant advocate ever known in New Hampshire.”
Biographer Peter Wallner says Pierce possessed all the skills a good lawyer needs. “He had an appealing voice. His manners and dress were impeccable. He had an aura about him that attracted people to him. He had their attention, he kept it, they liked him and wanted him to succeed.”
In one of Pierce’s most famous cases, he defended three brothers named Wentworth, charged with murdering a tax collector. During pretrial cross-examinations, Pierce destroyed the credibility of key prosecution witnesses. Then in his closing argument, he wondered how to tell a defendant’s son about the fate of his father: “‘He is in Amherst jail.’ ‘Why?’ asks his child with earnest gaze. ‘Was my father guilty of a crime?’ ‘No, my son, but they have pursued him with blood-hound ferocity. They have raked the purlieus of brothels and jails for evidence against him, and upon the testimony of felons charged him.’” (From Wallner, “Franklin Pierce: New Hampshire’s Favorite Son”)
That emotional appeal helped Pierce win the case before it even went to trial.
Ironically, Pierce’s skills as an orator and politician were useless to him as president. “There was no TV,” says Wallner. “Presidents were rarely seen, so his skills at public speaking and personal contact were of no use.”
The limits of theatricality
We’ve come a long way from the days when a Daniel Webster could enthrall a courtroom for hours at a time. In recent times, the legal process has tightened up. Take, for example, that staple of the old Perry Mason series: Paul Drake bursting into the courtroom with a surprise witness. “There’s less chance today for ambush and surprise,” says Nadeau. “Lawyers must disclose their list of witnesses. Once in a while, lawyers get a witness to say something unexpected. Everyone hopes for a moment like that, but it doesn’t happen very often.”
Technology has provided new weapons for the modern courtroom performer. “If you’re using a show-business metaphor, I think of myself as a ‘director’ or ‘producer’ rather than an actor,” says Felmly. “There are so many technological tools at your disposal.” Lawyers rely on software to prepare, store and present their case from start to finish. Video, audio, photos and exhibits are instantly accessible. Animation has become easier and more affordable. “I was representing a young factory worker who was injured on the job,” recalls Garvey. “We did an animated reconstruction of the incident. It was pretty powerful.”
Lawyers and actors have much in common, but their ultimate goals are different. “The lawyer is a communicator whose interest is persuasion, not entertainment,” says Bruce Felmly. John Garvey, professor at Franklin Pierce Law Center, puts it this way: “The term ‘acting’ sounds somehow artificial. Lawyers are not as effective when they are acting, as when they are communicating sincerely — from their own point of view, or that of their clients.”
The most important thing
Lawyers have many different styles and approaches. But no matter if you’re outgoing or laid-back, an orator or an inquirer; whether you wear button-down suits or velvet jackets, there’s one common element — and it’s also true of good acting. “Your level of preparation has to be very high,” says Felmly. “The tendency is to focus on episodes of good luck or sudden brilliance. But 99.99 percent of this stuff is preparation. The Blue Angels don’t just get into their planes and say, ‘Hey, let’s see if we can fly upside down in tight formation!’”
Chances are, you’d hear the same sentiment from an actor. Improv may be a useful way for actors to hone their craft, but when playing a role, they prepare thoroughly before hitting the stage or stepping in front of a camera. And most actors would agree with Garvey on the hazards of artificiality. In past times, acting styles were deliberately larger than life, but today an actor tries to fully inhabit a character and express his or her essence. For lawyers and actors alike, “communicating sincerely” — or at least giving the believable appearance of sincerity — is the secret of success. NH