A trial never takes place according to a script. Even if the lawyers are organized and well-prepared, as an old litigator once said to one of my younger colleagues, “another rabbit always jumps out of the hat.” I think Kathryn McNeilly and Paul Stapleton are right to insist on a comparison with musical improvisation which, contrary to certain received ideas, is not devoid of its own forms and generic constraints. As one musician might say, “You play something and listen with the intention of going from A to B in the next moment, and then something happens in the music, which you hear, and you realize, ‘OK, it would be a bad choice. I have to do something else”, litigators must remain nimble – improvise – in the face of the unexpected.

In the last episode, we examined the rhetorical tactics (definitions, inferences and validations) that converge in their relationship to the underlying structure of the story that is developed at trial. An improvisation fits quite well into this scheme in that “it establishes some fit between a piece of evidence and the strategy of the evolving story in a case”. Definitions are effective when they fill in the gaps in a story. Inferences are effective when they clarify and connect story elements. And validations are effective when they combine evidence with confirmation patterns elsewhere in history. Bennett and Feldman posit that looking at the trial through this lens reveals an order of seemingly disparate trial movements and suggests that the key variables in a trial are not juror biases, judge predilections, lawyers or the personal characteristics of parties and witnesses. , but rather how these elements impact the construction, interpretation and plausibility of stories.