Magical Images in Law
Chapter 7
Magical Images in Law
Nemo videtur fraudare eos qui sciunt, et consentiunt.2
Introduction
In their current Las Vegas act, “bad boys of magic” Penn and Teller3 make the US flag disappear from a flagpole, wrap it in a copy of the Bill of Rights and appear to set fire to it, and then redisplay the document, while Penn proclaims, “The flag is gone but the Bill of Rights remains!” (Penn and Teller 2010). They then end the illusion by “magically” restoring the flag to its pole.
The duo premiered this illusion ten years ago:
In 2000, in the midst of all their tricks and commentary, they introduced a discussion of flag burning. Instead of making a red silk handkerchief disappear, the duo replaced it with a United States flag that appears to be set on fire. Penn explains as Teller lights the flag, ‘The Supreme Court has defined speech very broadly to include many forms of expression and that includes doing anything you want to this flag. And, I mean any-thing. Take a piece of chemically treated tissue paper as tinder, a very eccentric magic wand (the Bill of Rights) and you can do this. And the Supreme Court says it’s okay. Because even though the flag is gone, the Bill of Rights remains. We can only do that because we’re working in a free country.4
The trick is well done, if a little heavy-handedly symbolic, and it emphasizes the similarities between magic and law. In order to make the flag and document reappear “magically,” Penn and Teller do and say ritualistic things.
Penn then asks the question:
Did we burn a flag? Did we symbolically burn a flag? Or did we merely vanish a flag in a patriotic flash of fireworks? It’s all of those, it’s none of those. It’s up to you. Most shows, and movies, and tv are all fake, they’re phony, they’re fiction. And news and sports are supposed to be real. But Penn & Teller, we like to drive fast, right on down the middle, because sometimes we’re showing you and telling the truth as we see it, from the bottom of our hearts. And sometimes we’re lying, and cheating, and swindling. And it’s up to you to figure that out.5
Penn and Teller do not intend their fancy footwork solely as entertainment. They, like all accomplished magicians, engage in a number of principles intended to distract and deceive audience members.6 By adding “magic words” to their on-stage movement, which employs the cardinal principle of misdirection 7—one of the principles known to all magicians, with which they distract the willing, paying, audience, which involves itself intellectually in the performance to see the deception—they create the illusion that they have burned the flag. The magic words have nothing to do with what is really going on behind the scenes (or on the stage); that is, Penn and Teller could accomplish the trick without saying the words (although not without the movements required to hide the flag). Both the audience and the magicians know that the words do not create the result. But the audience wants the magicians to engage in the ritual—the saying of the magic words, and the use of the magic wand—and the magicians oblige, because all of this ritual is part of the spectacle. To return the flag, Penn says the appropriate language and he and his partner engage in the appropriate movements. The trick ends. When the audience leaves the theater, both it and the magicians know the illusions and the performance are over.
One lawyer-magician suggests that lawyers engage in misdirection as well. “Everyone knows that magicians misdirect audiences, that they visually and verbally disguise their dirty work …. Lawyers also engage in verbal misdirection by ‘blindsiding’ witnesses, focusing attention on strengths and away from weaknesses, substituting jury charm for legal substance, and bobbing and weaving with words to deflect, convince and prevail” (Baird 1989, 24).
Are “magic words” also a form of misdirection and ritual? Is much of required courtroom behavior simply ritual and incantation (Baird 1989, 24)? When judges use “magic words” or “magic formulas” in writing opinions, are they engaging in the same behavior?8 Do they create anything substantive by using those words that were not there before? Do the words themselves “mean” anything? Or are they simply a distraction, serving as misdirection, and perhaps because of our insistence on them, denying due process to the clients of those who negligently omit them?9 Do the wizards behind the curtain manipulate the system in some unfathomable way for their purposes while sending the rest of us on self-serving quests for witches’ broomsticks?10 To what extent can we compare the use of magic to the practice of law, and make magical analogies to legal practice? To what extent are such comparisons helpful and/or interesting? When parties, jurors, judges, lawyers, witnesses and onlookers leave the courtroom, are what “magic words” and ritual leave behind more “real” than what is on a magician’s stage?
I do not intend to make legal formalism the entire subject of this chapter. Others discuss that subject elsewhere in greater depth. Consider, for example, Pierre Schlag’s discussion of the law student’s first encounter with “magic words” in law study:
Still another aspect of the juridification of legal thought is the reliance on “magic words.” Students, during their first year of law school, learn that in some legal contexts certain words are magic, in that their mere invocation can be guaranteed to induce certain effects upon legal actors. Such words might include “notice,” or “possession,” or “strict scrutiny.” Legal thinkers often exhibit a haughty derision for the magic words—treating them as unfortunate (though perhaps necessary) legacies of formalism. Nonetheless, legal thinkers clearly have their own set of magic words—words like “values” and “rights” and “reason.” These are words which, when accompanied with their usual grammar, will simply arrest thought upon impact.11
In a few pages, one cannot re-examine such a debate. But what one can begin to do is examine the repeated comparison that exists in the literature between magicians and attorneys, and question why this particular comparison should be so prevalent. Why do we so often see the phrases “magic words,” “the rabbit in the hat” and “smoke and mirrors” applied to attorneys and the legal profession? Why do lawyers and judges apply such phrases to themselves and their behavior, and what do they mean to convey by such usages? Do practicing lawyer-magicians put magic into practice in the courtroom in order to translate stagecraft into “practical magic”? If so, how do other members of the legal profession react?
That a magician knows that magic words do not themselves create a particular effect is one thing. That he uses them to create the illusion that they do so is quite another. That becomes the substance of the magical effect, even though, without the words, the trick or illusion would still come off. Lawyers also know that words might or might not create a particular legal effect—hence the importance of the phrase “magic words.”12 Words may seem to be interchangeable, but they may not be so. Attorneys and judges spill a great deal of ink over just such issues. They know that magic phrases might create important illusions , and in law illusions can become reality. However, if courts or legislatures require magic phrases in order to create effects, then those phrases we must have, and the magic phrases then become the substance of law. If such “magic phrases” are lacking, then in order for the desired effect to occur, the lawyers drawing up a document must take care to provide for all the other legal requirements. But such outcomes are rare.13 Thus, we agree that in order to create the legal effect, we must have the particular magic words, even though we might ordinarily think that other words might do just as well (Corcos 2010a).
Finally, some magicians, like Penn and Teller, have a particular interest in the legal meaning of the magical act. When Penn Jillette says that the difference between “burning a flag” on the Las Vegas stage and then restoring it is fiction, and that entertainment generally is fiction, he has a point. But the act is still “real.” Penn and Teller “really” make the flag vanish.14 When Penn discusses the law (and the Supreme Court opinion) that protects the act, he takes us further along a journey into discussion of the comparison between magic and law. Such “burning” and restoring is a magic trick, but it is also real, and it can be speech, just as the real burning of an American flag can also be speech (Texas v. Johnson 1989, 414).
Law-magic Comparisons
The law-religious magic connection began centuries ago,15 but the law-secular magic connection emerged fairly recently.16 We can trace it at least to 1872, and to the publication of attorney/magician Angelo John Lewis’s seminal work Modern Magic which the London firm of Routledge and Sons commissioned.17 For the cardinal sin of revealing secrets of conjuring, Lewis, who agreed according to the terms of the contract to take on a pseudonym, received £100 for a 380-page manuscript. Lewis chose the nom de plume of “Professor Hoffmann,” a name by which he became either famous or infamous, depending on which side of the “Magician’s Oath”18 tangle one chooses to take. Himself an attorney, Lewis (Price 1985, 40–41) presumably saw no conflict between revealing magic tricks and any magician’s oath. However, his magician colleagues did not and do not necessarily agree.
In the nineteenth century, the great secular magicians finally began to define their profession. Alexander Herrmann19 offered the following passage in The Art of Magic:
The magicians of Europe, beginning with Houdin and Cagliostro, have given a great impetus to their art. I regard the magicians of to-day as the best the world has ever produced. The perfection of mechanical contrivances and the possibilities of electricity and chemistry have been wonderful helps in the exercise of the so-called black art. It is well for the magician that such is the case, for the demands upon him for novelty were never greater. I find the spectators at this species of entertainment more numerous and more interested than those of thirty years ago. How to entertain them leads up to the other question, What are the requisites and qualifications of the magician? I could answer the question by a negative definition of what the magician should not be better than to state positively what his art should make him. No one regards the magician to-day as other than an ordinary man gifted with no extraordinary powers. The spectators come, not to be impressed with awe, but fully aware that his causes and effects are natural. They come rather as a guessing committee, to spy out the methods with which he mystifies. Hundreds of eyes are upon him. Men with more knowledge of the sciences than he come to trip and expose him, and to baffle their scrutiny is the study of his life. Long years of training and exercise alone will not make a magician. I could name a hundred men with these qualifications, who started out in the practice of legerdemain within the past thirty years. not one of whom is known now. There must be some natural aptitude for the art ; it must be born in a man, and can never be acquired by rule. He must be alert both in body and in mind; cool and calculating to the movement of a muscle under all circumstances; a close student of men and human nature. To these qualifications he must add the rather incongruous quality of a mind turning on contradictions. With a scientific cause he must produce a seemingly opposite effect to that warranted by order and system. I know of no life requiring such a series of opposite qualities as the magician’s. And after the exercise of all these qualities I have named, resulting in the production of the most startling and novel results, the magician has not the satisfaction, like other men, of the enjoyment of his own product. He must be prepared to see it copied by others, or after a short time discovered by the public. Hence the magician must be an inventor, mechanical and scientific. Think of the time, thought, and weary labor given to the production of such tricks as the “cabinet mystery” of the Davenports, the “sealed tent” of the Eddys, the reading of letters in gummed envelopes, and the “second sight” of Houdin. All these are perplexing in their ingenuity, even after the methods of their performance are known. Again, so great are the demands of the public upon the magician that he can no longer use the machinery and mechanical contrivances of his own invention with which he cumbered the stage formerly. For the most part he must perform his wonders with his contrivances so reduced as to be invisible. Formerly he could extract his birds from bags and covered cages, his flowers and fruits from friendly and unsuspicious-looking tables, and his live animals from confederates. Now he must produce all these things from the coats and pockets of the spectators. I have not drawn a very rosy picture of the magician. I did not intend to do so. To the novice entering the life and promising himself ease, indolence, and wealth, I should say, “Don’t!” I have often been asked if the pursuit I follow does not become monotonous. By no means. There is an ever-recurring novelty in the life. Even if the tricks performed admitted of only one method instead of a dozen in their performance, there are the same puzzled lookers-on, wondering, tricked, and baffled through the most simple and natural causes. The magician controls them as potently as the orator controls his audience, and the enjoyment of his power is even greater. Monotonous? Never! The life of the magician is one of almost infinite variety.20
At the same time, law was emerging as a self-defining profession, (Stevens 1983) establishing generally recognized codes of conduct, core bodies of knowledge and systematized training. Its transformation as a formal branch of learning, with defined modes of training that required university schooling, government-mandated examinations, and legislative and judicial oversight, had not yet begun.21
Both attorneys and magicians, who had found employment with the two traditional great users of talent—the Church and the state—now sought employment with the private sector.22 Seeking remuneration, secular magicians decided to pursue it as first a hand-to-mouth existence in the streets, in which they were only partially successful,23 and eventually as full-blown entertainment in the theaters of the period. Soon magicians, like other performers, were drawing large and appreciative audiences24 because they successfully relabeled their work as entertainment rather than as deception. The art of secular magic was increasingly respectable. Indeed, the great French conjuror Robert-Houdin chose his costume, traditional evening dress, in order to give his performance credibility. Dressing like one’s audience put the magician on a par with it. Moving the performances from the streets to the theaters, and allowing the audiences the luxury of sitting down while one took their money, meant that one had achieved a kind of respectability.
The Lawyer/Magician Analogy25
Like magicians, lawyers affect a particular code of dress. Like magicians, they follow a code of conduct. But lawyers had and have the advantage of official gatekeeping, both for their profession and for society at large.26 Unlike magicians, who have always relied on self-policing to maintain a conjuror’s creed,27 lawyers quickly developed the benefit of their own power and the government itself to bring down of members of their profession who do not uphold the lawyer’s oath.
Lawyers themselves often analogize between magic and law.28 References to lawyers as magicians, as magical beings who can repair impossible situations, abound. In some cases, attorneys imitate magicians. As Howard Nations says in his article “Overcoming juror bias”:
Magicians understand the principle of clinging to perceptions. They use this principle to create miracles. They know that if they can fool our senses into perceiving that something is so, we will believe it. Once we believe that something is so, even though it is not, we accept it. In fact, something else is really taking place. But that doesn’t matter to our senses. We continue along with a certain belief. We believe the magician’s assistant is in the box. This is not so. We are then faced with the surprise ending when we find the magician assistant is gone and is appearing from another point on the stage. Because our reality is based on perceptions, on what we perceive to be true, we have been fooled.29
Magicians have conditioned us to expect that when they or their assistants get in the box, something “magical” will happen—probably an inexplicable disappearance of some kind. This impression arises from the “metamorphosis illusion.”30 Penn and Teller (and some other magicians) use this conditioning to their advantage. They guest-tar in the final episode of the television series Listen Up. 31 In that episode, Teller stalks series regular Wendy Makkena, who plays Dana. He pops out of a large box in her Vegas hotel room. When she tells him she is happily married, he disconsolately reclaims the flowers he has given her and climbs back in the box. He finds the fact that she is unavailable a “cruel deception.”32 “I get it,” she tells Penn. “He’s going to disappear and the box will be empty.” “No,” says Penn. “He just likes to cry in private.” Since the hotel room is not a stage (even though the entire routine takes place within a television episode, itself an illusion), Penn and Teller would have no way to prepare such a trick, even though they could—they are, after all, on a television show. They are human beings and secular magicians, not imaginary magical constructs. Sometimes what seems like an illusion is reality, and sometimes what seems like reality is an illusion. The trick is in developing the ability to tell the difference.
Similarly, in their stage show at the Rio Hotel in Las Vegas, Penn and Teller begin their performance by inviting audience members to close their eyes in order to avoid seeing the way in which Teller actually exits the glass box in which we first see him. How does he leave it? If one thinks about it long enough, one will divine the answer—that nothing supernatural, or even amazing is involved. Teller must somehow open the box and climb out. Sometimes a cigar is just a cigar—and a brilliant magician is just a balding man in a nicely tailored gray suit. Otherwise put, professional (secular) magicians are in the business of deception. Notes magician Jamy Ian Swiss, “I am an honest liar. I am going to lie to you but that’s okay. It’s my job” (Waldman et al. 1997, 15).
But not all lawyers appreciate or encourage the lawyer-magician analogy. As one practitioner notes:
In other instances, lawyers try to differentiate themselves from magicians, or distance themselves from the comparison with magicians. It is no secret that the truly great trial attorneys have most often been those individuals who, not only are skilled in the preparation in pursuit of a cause of action, but also, those who can carefully select what cases should be pursued. It is incumbent to remember that we, as trial attorneys, are truly lawyers and not magicians. Causes of action must be built upon creditable facts capable of collaboration either by expert testimony or lay testimony or both. Cases that result in the presentation of bad facts, even in an environment of good law, will result in less than favorable results for the plaintiff.33
After all, lawyers are not stage magicians. They do not control all aspects of the “performance.” They cannot really “do magic.” That is, they cannot always pull victory from the jaws of defeat if to do so means consistently performing legal “miracles” or impossibilities. But unlike magicians, nearly all lawyers consistently and publicly disclaim that ability.34 That clients also ask them to be “magicians,” attorneys view with varying degrees of hostility:35
Acting within this often esoteric area of the law, patent lawyers are called upon to play the roles of chemists, engineers, physicians, and physicists—now, they are also asked to be magicians. That is, patent lawyers are asked to defend—with smoke and incantations when necessary–business-driven decisions having nothing to do with inventing or discovering anything.36
Note that this particular commentator probably intends to refer to stage magic, even though he mentions “incantations.”
We also see judges described as magicians37 when commentators reflect on their considerable power. Writes one law professor: “The case for positive rights implicitly presumes that judges are benevolent magicians, willing and able to wave a wand and thereby dispel the sad conditions of poverty” (Cross 2001, 923). Invariably, when the analogy invokes the magician, the comparison denigrates the judge:38
The majority, like the trial judge, has been led astray and has assumed that the patent in suit is on some imaginary “system” for detecting flaws, which has enjoyed commercial success in the hands of Alco and was copied by Westinghouse, thus changing the prima facie obvious invention into a patentable invention. What has happened here is that by a kind of magician’s distracting patter, the purpose of which is to keep the viewer from observing what is actually happening, attention has been directed to the patent’s claims to the exclusion of its disclosure. 39
In this 1982 article about the Hinckley trial, Watson compares the entire proceeding to an extended “magic show,” and the judge to a conjuror in charge of the event:
The magician (the judge) is the one who makes things happen, but it is his goal to avoid detection while doing so. He accomplishes this by misdirection; that is, by guiding the attention of the audience (the jury and the public) to amusing patter (the psychiatrists). While the audience’s attention is engaged thus, he pulls the verdict from his sleeve, ingenuously attributing its appearance to magic. This show would be more entertaining, of course, if it were not such a serious social issue. Now, consider the task of the jury in the Hinckley trial. The judge, with his knowledge, wisdom and power, had declared that the defendant was insane, and by doing so challenged the prosecution to prove otherwise. Since insanity is a mythical animal, this was equivalent to declaring that the unicorn is white, or that 100 angels can dance on the head of a pin, or that invisible firebreathing dragons cause forest fires—and then challenging someone to prove otherwise. Seen in this light, the task of the jury was simple. The prosecution had no chance.40
Whether or not what Watson says about psychiatry and the law is accurate is not the issue. What is interesting is the analogy he draws between the role of the magician and that of the judge, or more precisely, between the actions of the stage magician performing to an audience which expects to be deceived and the actions of the judge in the courtroom. The public and parties do not expect the legal system to deceive them, even though they may think, somewhat cynically, that they may lose a case because an opponent has more money or influence. Certainly, they do not expect their own lawyers to deceive them.
Watson, however, takes the position that such an expectation is naive at best. Note that he is not referring to stage or secular magic. The evocation of the unicorn and angels tells us that. He invokes religious magic, that is, the kind of magic to which one must truly be “initiated” in the sense that clergy mean the term, and that secular magicians do not. This kind of magic has no rational explanation. One can study for years and still never understand the philosophy of this type of magic. Further, we cannot protect ourselves by rational means against religious magic if an evil entity wields it against us, as he suggests is the case here. Instead, we need a champion with stronger magic.
By contrast, one could learn the basis for a secular magic trick. Individuals might theoretically not agree on the philosophy behind the successful psychology of a stage illusion, but that is a different matter.41 Secular magicians do “initiate” their members into professional associations, but they do not threaten them with bodily harm if they do not follow the rules.42 Evoking the mythological medieval argument over angels dancing on the heads of pins suggests both that legal arguments are insoluble and also that they are arcane and pointless.43
Watson also suggests that “the judge as magician” is in charge of the entire proceeding, and that the proceeding is some kind of pseudoscientific spectacle— that it is an extraordinary claim that cannot be refuted and that illogically places the responsibility for proof on the individuals or parties who are not making the claim. But he has misplaced the burden of proof, not only in terms of law, but in terms of science. As scientist Marcello Truzzi explains:
In his famous 1748 essay Of Miracles , the great skeptic David Hume asserted that “A wise man proportions his belief to the evidence,” and he said of testimony for extraordinary claims that “the evidence, resulting from the testimony, admits of a diminution, greater or less, in proportion as the fact is more unusual.” A similar statement was made by Laplace, and many other later writers. I turned it into the now popular phrase “extraordinary claims require extraordinary proof” (which Carl Sagan popularized into what is almost the war cry of some scoffers).44
In another article, Watson continues the analogy:
The game of law is premised on the notion that a false champion cannot win a contest against a truthful one, a superstition rooted in the mists of mythology. In the legendary court of King Arthur, Merlin the magician guaranteed that jousting matches between champions infallibly determined truth and justice. Believing that a contest between champions can determine the truth still requires believing in magic. Absent real magic, the game of law relies on misdirection, illusion, and deception. To this end, wordplay has replaced swordplay for today’s semantic warriors, for words are easily twisted into images that correspond equally well to fiction and reality.45
Again, Watson collapses religious magic and secular magic (although he makes a pass at differentiating the two—”absent real magic”). He analogizes words and images. He alleges that “the game of law relies on misdirection, illusion, and deception.”46
Ultimately, while an attorney (particularly a defense attorney) may come perilously close to the line of deception, ho or she may not cross it. His or her job is to defend, as far as possible, but never to lie. The public has difficulty understanding the difference, which may help to account for the truly bad reputation that lawyers have always had in popular culture. The magician, on the other hand, may rest securely in his47 convictions that deception is acceptable, as long as he reveals it to the audience.48
The analogy of the lawyer as magician turns up in tax law,49 in family law (Lidman and Hollingsworth 1998), in intellectual property law50 and in many other areas.51 Such rhetoric emphasizes the image of both lawyer and magician as “miracle worker”—of both professionals as individuals as persons who can perform feats that are unexplainable to the uninitiated lay person, often mystified by the performances these professionals carry out. Both lawyers and magicians have arcane language that they repeat during their mysterious rituals. Both take money for their services. The lawyer, no matter how skilled, cannot promise an outcome. But the skilled magician must do so, if his audience is to leave pleased, gratified and disinclined to request a refund.
An astonishing number of attorneys pursue careers as magicians, apparently seeing a clear parallel between the creation of stories in the courtroom and narrative on the stage.52 They may also detect the same habits of mind necessary for the successful performance of magic and the successful practice of law.53
We must also consider whether a comparison between the magician and the lawyer is entirely apt, to the extent that although what happens is “real,” the performer always relies on the result as illusion. Magicians cannot defy the laws of nature, although they use them to advantage.54 What happens in the courtroom, while it may be “illusion,” is necessarily real. We must always be able to tell the difference. The difference between stage blood and real blood is vital, just as the difference between a murder on stage during a play and a murder in real life have entirely different consequences.55
Considering again the “woman sawed in half” illusion (and women are almost always the target of this particular trick), commentator Jaq Greenspon points out that:
In the late ‘70s, a magician named Richiardi closed his show with an absolutely stunning illusion. He took his young assistant and cut her in half. That’s it. There was no resolution beyond it. He would invite the audience to walk up and examine the corpse, entrails and all. For Teller, the smaller and quieter half of Penn & Teller, the brilliance was in leaving the audience with a feeling of intellect and not of horror, despite the viscera dripping across the stage. “It’s interesting to see what people say as they walk by,” Teller recalls Richiardi saying. “I remember one time a gentleman saying, ‘It’s a trick.’ Of course it’s a trick. I couldn’t actually kill a woman every night I do the show. But is it well done?” That’s the question: How well does the illusion do what it sets out to do? For Teller, this is what he wants to know, and part of the answer reveals where he thinks magic is heading. “Most magicians, like comedians, measure success by the audience’s reaction, not how well they’re getting their point across. If it gets a big reaction, then it’s a good trick. Fuck them. If it does what you want it to, then it’s a good trick.” For Penn & Teller, a good trick is one where there’s a collision between what you see and what you know, the intellectual with the visceral. For other magicians as well, the visceral is becoming more of the point. While the reaction is always the point, the storylines have changed; and the modern magician isn’t always as interested in the happy ending.56
For the magician, “of course it’s a trick,” and he does not “really” saw the woman in half. However, the lawyer who wants to win a case in court wants to win in reality; film lawyer Billy Flynn’s suggestion that “razzle dazzle” is all one needs (Chicago 2002) may be attractive in the abstract, but is unlikely to succeed in the long term. Further, the judge might censure the lawyer who indulges in it.57
What does happen in the courtroom, however, becomes and remains real. Only appellate courts (or perhaps a legislature) can change its effects. To quote Penn Jillette once again:
When you’re watching Psycho, there’s that moment when you have a visceral reaction to watching someone being stabbed. And then you have the intellectual revelation that you’re not, and that’s where the celebration comes in.58
What is on the screen is illusion. For Penn, part of the value of the illusion is in the thought experiment, which the First Amendment protects, just as it protects the magic that he practices.59
The Stage and the Courtroom: Illusion and Reality
Pull a rabbit out of your hat. That’s the secret both to trial law and life.60
Comparisons Between Law and Magic
The comparison between law and magic and between the lawyer and the magician is not really so strange, as some commentators have pointed out (Marcovecchio 2010; Trombly 2010). In addition, in ancient times, the wizard, or the magus, often represented law and order. Fictional wizard characters, too, such as the Wizard of Oz (Baum 1973) and the various wizards (Saruman the White, Sauron, Gandalf the Grey) in J.R.R. Tolkien’s The Lord of the Rings 61 represent varying types of order amid chaos. Quite often in role-playing games today, the “wizard” character represents law and order, or justice. As an example, consider the role played by the wizard who “toads” (or eliminates) Mr. Bungle, the malefactor in the Lambda MOO (MUD Object Oriented online text-based game) Dibbell describes first in his Village Voice article “A rape in cyberspace” (Dibbell 1993) and then in his book My Tiny Life,62 an expansion of the Village Voice piece.
The struggle between the wizard/magician (that is, the religious purveyor of law and order) and the attorney to control the bases of authority is a very old one. We can compare it to a question that has bedeviled students of jurisprudence for centuries: is the authority for law supernatural or natural in origin? Does the sovereign rule by divine right or by the will of the people? As Ernst Kantorowicz notes in his influential work The King’s Two Bodies:
We need only replace the strange image of the Two Bodies by the more customary theological term of the Two Natures in order to make it poignantly felt that the speech of the Elizabethan lawyers derived its tenor in the last analysis from theological diction, and that their speech itself, to say the least, was crypto-theological. Royalty, by this semi-religious terminology, was actually expounded in terms of Christological definitions. The jurists, styled by Roman Law so suggestively “Priests of Justice,” developed in England not only a “Theology of Kingship”—this had become customary everywhere on the Continent in the course of the twelfth and thirteenth centuries—but worked out a genuine “Royal Christology.”63
To what extent can we compare the stage and the courtroom, and to what extent is what happens on stage as “real” as what happens in the courtroom?64 First, both the magician and the lawyer attempt to control the “performance”—both “practice” in the sense that the magician rehearses his tricks, his patter, the links between his illusions to create a complete performance, and the lawyer rehearses his or her opening and closing arguments, and the arc of the case to the extent that that is possible. No lawyer wants to be surprised at trial, so any attorney attempts to prepare as much as possible for any circumstance that might arise during the proceeding. Similarly, the magician practices over and over, trying to anticipate whatever might go wrong during a performance. Rehearsal is absolutely necessary (Abowitz 2008). As many guides on magic performance make clear, knowing how to recover from a trick gone awry is what separates the professional magician from the amateur, and what can rescue a performance (Pogue 1998, 309). Note, however, that one of the major differences between the courtroom proceeding and the magic performance is that one lawyer does not control the proceeding. One magician (or perhaps two) does control the magic performance.
Second, the extent to which what happens on stage and what happens in the courtroom is “true” differs. What do we mean by “truth”? If we mean by “true” or “truth” something that approximates reality—that the magician on stage “really” saws a woman in half—then of course the magician does not “really” do that. When Penn Jillette discusses the disappearance (the “vanish”) of the flag on stage (“Did we burn the flag? Or did we just vanish the flag?”), he is not simply engaging in semantics. He is asking an important question. Does the flag leave the stage permanently? Of course not. But do he and Teller make us think it disappeared, at least for a few minutes? Yes, they make us think so. It vanishes, and when they make us think so, they also induce us to wonder about what would happen if the country disappeared, and if the rights we associate with the country disappeared as well. That is the point of their trick, and the meaning of their illusion.
In a courtroom proceeding, someone “really” wins and someone “really” loses, in the sense that someone prevails in a tort action, for example, or is acquitted of burglary. At law, we obtain some kind of “truth” in the sense that we settle disputes. Even if we do not attain objective truth, we agree on some version of the truth in order to move on with life. But if by “truth” we mean “what really happened” at a particular time in the past, and if we expect the legal proceeding to elicit one version of the truth upon which everyone agrees, then we have not really designed our legal system to do that. No one in the courtroom knows what “really” happened in that sense, except—perhaps—the defendant in a criminal trial if he or she is guilty, for example. The prosecution and the defense present competing theories of what “really” happened to the jury, and the jury chooses one that seems to comport with its view of “reality”—often a default theory if the prosecution has not proven guilt beyond a reasonable doubt.
But a magical performance is different. If a magician “really” saws his beautiful assistant in half, he will probably go on trial for a serious crime. What a magician does when he “saws” his assistant in half is something quite different.65 He creates the illusion that he has bisected her in order to put her back together. The illusion is one of the magician’s very best tricks. It vests in the magician the (illusory) power of life and death—the power that judges and juries have in reality.
The magician knows the “truth” because he has constructed it. Like the attorney who writes the brief which he or she presents to the court or the judge who writes the opinion, the magician knows the intricacies of the illusions. In most instances, he offers no explanation of the trick to the audience. He simply performs the trick and allows the audience to wonder, and to speculate endlessly. Some audience members will envision one theory, some another. Nearly all will be incorrect. In this way, magicians safeguard their secrets and encourage a return audience. “How did he do that?” is a cry that earns repeat business for magicians. It works wonders for lawyers as well, but legal analysts make a career out of explaining how lawyers do it, and they breach no oath by explaining the workings of the law to the public.
Fool Me Once: Lawyers’ Tricks and Magicians’ Illusions
For the attorney, “How did he do that?” will often evoke anger. The very “tricks” that elicit admiration from an audience when performed by a magician cause fury when performed by a lawyer. Again, we often see “magical vocabulary” invoked when lay persons criticize or dislike judicial opinions66 or attorney behavior.
In examining the analogy between a magician’s stage performance and a lawyer’s courtroom performance and the control that each maintains over their respective arenas, attorney-magician Peter D. Baird of the Phoenix law firm Lewis & Roca comments:
Neither lawyers nor magicians traffic in objective reality. In a magic show, the audience never sees reality, the lady does not get sawed in half and the tiger does not vanish into thin air. In the law, there is not a such thing as absolute reality either because every event, crime, accident, contract or statute is subject to as many interpretations as there are witnesses to testify, lawyers to argue and, sadly enough, clients to pay fees.67
Yet legal analysts do not risk disbarment if they explain the workings of the court or possible legal theories of the prosecution or defense of an upcoming case to an eagerly listening television audience. Indeed, such people can earn a tidy living by performing such services. By contrast, “exposure,” the explanation of just how magicians perform such famous tricks as the “cups and balls” or the “bullet catch,” for example, causes violent debate among magicians. Some believe that such “exposure,” the explanation of how conjurors complete such tricks or perform illusions, means that many potential audience members will lose interest in attending magic performances. Others disagree. Penn and Teller have built much of their fame on their willingness to explain many famous tricks (the “cups and balls” and the “American flag” illusion, though not the “bullet catch,” which ends their current Las Vegas show).68
What might account for the difference in treatment between an exposure of legal “secrets” and an exposure of magic “secrets”? Even though in US law individuals can represent themselves (though not others) in court, the legal profession itself acts as a gatekeeper for the profession. Using state-administered examinations, it controls the number of individuals who may practice the profession, for example. One cannot simply advertise oneself as an attorney. On the other hand, one need not belong to any particular association, nor pass any examinations, nor attend any school, nor receive any diploma to practice magic. One need only acquire a certain level of proficiency, and if one wishes to become known as a professional, obtain paying clients. If lawyers wish to impose particular standards of behavior on all members of the profession, they can do so in a number of ways, including by statute. If magicians wish to impose professional norms on members of their profession, they must do so through informal means. If lawyers wish to keep private or confidential secrets of their profession, including for example client secrets, they can do so through the passage of ethical or disciplinary rules.69 By contrast, if magicians wish to keep professional secrets, they can do so through relatively awkward mechanisms such as the rules of professional associations,70 or through non-disclosure agreements.71 Yet intellectual property law seems to provide relatively inefficient mechanisms for many US magicians to protect themselves against competition.72
In Hiding the Elephant , Jim Steinmeyer explains some of the technique behind the magician’s performance:
The success of a magician lies in making a human connection to the magic, the precise focus that creates a fully realized illusion in the minds of the audience. The simple explanation is that seldom do the crude gimmicks in a magic show—those mirrors, threads, or rubber bands—deceive people. The audience is taken by the hand and led to deceive themselves. Jean Robert-Houdin was famous for the opinion that a magician is actually just “an actor playing the part of a magician.” It was an especially important distinction in separating the loud mountebanks on the street corner making balls appear and disappear beneath three metal cups from Robert-Houdin’s elegant Parisian deceptions. Today it serves to remind us that a magic show is a piece of theatre, and the Frenchman’s analogy can be extended: A magic effect is a short play that simulates a supernatural occurrence. There is a progression, or an arc , to the action. There is a surprise and a resolution, which not only completes the audience’s expectations but builds on them.73
While Steinmeyer continues the analogy with regard to the magician as actor, I would suggest that one can also make the analogy to some extent between the magician and the lawyer, since the lawyer is also an actor when he or she appears in the courtroom before a jury. But the lawyer is not an “actor playing the part of a lawyer”—the lawyer is really an advocate for the individual he or she represents. Only in the most literal sense might we say that the lawyer is an “actor”—the lawyer “acts” for another. But the lawyer stands in the shoes of that other.74
The lawyer must also “move the audience”—the jury. Just as the magician’s performance has an “arc,” so too does the litigator’s. It consists of an opening statement, the presentation of the case in chief and a closing statement, and within that format, the ordering of the witnesses in some manner that the trial lawyer deems most persuasive. The lawyer must pay close attention to the opposing side’s presentation, call rebuttal witnesses, measure the audience’s (the jury’s) reaction to the opposing side’s performance (Trombly 2010). The lawyer does not like surprises, unless he or she plans them. The lawyer wants to control the action, and he or she wants the resolution to be favorable to his or her client.
Granted, the comparison is limited. Steinmeyer’s actor/magician analogy continues:
A great magic performance consists of a collection of tiny lies, in words and deeds, that are stacked and arranged ingeniously to form the battlement for an illusion. It’s a delicate battle of wits—an audience that welcomes being deceived, then dares to be fooled, alternately questioning, prodding, and surrendering. A great magician seems always to play catch-up to their thoughts but secretly must stay two steps ahead—not only solicitous and anticipating, but suggesting.75
The magician lies to his audience continually. The attorney may not lie to his or hers. However, the lawyer’s presentation necessarily includes illusion. Subject to certain exceptions, the lawyer is not required to show his or her hand to his or her opponent.76
Magic Words and Magic Acts
As I discussed previously, words, both written and oral, are a lawyer’s stock in trade, and his or her use of certain words is crucial to the creation of valid legal documents. For example, under US law, valid support trusts require the presence of certain “magic” words in order to show the intent of the donor—for example, “health,” “support,” “maintenance” and “education”—since these set forth the valid reasons for the existence of the trust (Scott and Fratcher 1987). Why does the law insist on these words specifically, rather than allow their synonyms, or phrases that mean substantially the same thing? In his article “No magic words could do it justice,” Roger J. Traynor explores the question by contrasting the age-old traditions followed in the interpretation of statutes with the then trend toward the search for “neutral principles” (Traynor 1961). The battle between the Legal Formalists and Traynor’s seekers after neutral principles, and then legal cultural relativists, rages on, since the latter two groups tend to maintain, to differing degrees, that magic words are simply a distraction.
Whether or not they intend to make reference to the issues that Traynor discusses, attorneys use the phrase “magic words” every day. Consider the ease with which they employ it in oral and written communication; it continues to enchant both practicing and academic lawyers (Stanley 2005). But the question concerning the necessity of “magic words” is real for lawyers. That is, the existence or absence of the words has real consequences.
Similarly, magicians make frequent and elaborate use of “magic words” in order to distract onlookers from what is really going on. “Sim Sala Bim,” “Abracadabra” and “Hocus Pocus” are all words or phrases of conjuration that encourage the audience to believe that something magical will now happen—something that would not have happened without the invocations. But, for magicians, the words really are not necessary—that is, magicians create the conditions of the performance as well as the words.
While in magic the notion of illusion is quite attractive, in law it carries unattractive risks. The process of drawing up a contract necessitates that the parties involved know with whom they are dealing. Are the parties at the table truly the parties signing the documents, or should the deal go bad somewhere down the road, might one of the parties find itself in the position of attempting to enforce the contract against a holding company, for example? As in the example of the Wizard of Oz, one needs to know whether someone is behind the curtain.77
We encounter other uses of magic vocabulary. In such cases they often, but not always, indicate deception, illusion or trickery. The phrase ‘illusory appointment” in equity, for example, means a merely nominal appointment in chancery; such an appointment is void.78 The top law firms in London refer to themselves as the “magic circle” (Lin 2004). The reference is to the establishment of the “magic circle” of practitioners which creates the sacred rule of law, outside of which is chaos (Hefner 2010):
A circle is characterised by the separation of inside from outside. Inside is order; outside is anarchy. In magic a circle is used as a wall of protection to divide the greater hostile world from the zone of law. The most obvious magic circle is the human body. Humans look upon the inside of their skins as their own property to do what as they see fit. Mystics extend the personal sphere to the aura, a supposed invisible field of energy that is shaped like an egg around the body and that protects the perceived self from hostile psychic “vibrations,” just as the body insulates it from extreme heat and cold. Animals have their territorial limit, another kind of magic circle. The border of a country is a magic circle established by a society.79
But the premier magicians’ association in England is also called The Magic Circle (Magic Circle 2010). In 1998, lawyer-magician Rupert Connell, a partner with the leading London firm of Hobson Audley Hopkins & Wood, and several other members of the Magic Circle’s board engaged in a battle for control of the association. The argument seems to have arisen over questions involving the employment of Connell’s law firm as legal advisers to the association (Lindsay 1998). This intriguing juxtaposition between lawyers and magicians, each group working in its sphere toward a desired outcome, creates the kind of tension we do not see often.
“I Resemble that Remark!”: Trial Tactics and the Use of Magic Vocabulary
On appeal, defendants often challenge convictions based on prosecutorial misconduct based on “disparaging comments,” including the magician analogy, “such as calling counsel ‘a magician’ who was trying to ‘trick’ the jury” (US v. Bunge 1994, 32, 734, n2). In State v. Nasi , the defendant challenged his conviction for possession and sale of methamphetamines based on the prosecution’s comparison of his counsel to a magician. Indeed, the prosecution’s closing statement was extremely long and the analogy extensive. The Washington Court of Appeals took the argument seriously, studying whether the attorney disparaged the opposing counsel’s integrity or her tactics: “Courts have generally disapproved this type of argument, but have concluded that reversal is unwarranted where the remarks focus on counsel’s tactics, rather than on counsel’s integrity” (State v. Nasi 2005, 831). However, the prosecutor’s analogy between the defense counsel and a magician is instructive. Indeed, the appellate court labeled the section in which it discussed the issue “Magician Argument”:
Magician Argument
During rebuttal argument, the prosecutor told the jury a story about his experience during college of working as a musician on a cruise ship. He talked about a magician who also performed a show on the ship. Because he watched the magician’s show every night from backstage and from different angles, he was able to see how most of the tricks were accomplished. But he described one particular trick that he could not figure out, even after seeing it performed every night. Finally, the magician showed him how he created the illusion.
The prosecutor then stated:
We have experienced the same thing in this case. We have, in the course of this trial, heard about a magician. Now the first thing that might spring to mind is that it might be Chris Grant, and that somehow, on five occasions, he was able to conjure up a baggie of methamphetamine when the officers weren’t looking; that he was somehow able to, either with luck, as Ms.