Trials both pose and answer questions within an essentially dramatic framework. Unsurprisingly, commentators sometimes advert to Kenneth Burke’s “pentad” of the key terms of “dramatism”: act, scene, agent, agency, and purpose. For Burke, “In a rounded statement about motives, you must have some word that names the act (names what took place, in thought or deed), and another that names the scene (the background of the act, the situation in which it occurred); also, you must indicate what person or kind of person (agent) performed the act, what means or instruments he used (agency), and the purpose.” Any civil litigator will recognize that these performative elements correspond to the who, what, when, where, and why (“how” can usually be subsumed under one of the Ws, depending on context) of pleading with particularity (and ultimately proving a claim or defense).

Burke’s is a literary theory, one concerned less about things than words about things. But as Michael Overington argues, it’s not just a literary theory because Burke sees all human action as “essentially” dramatic: “The drama presumes human action; the playwright’s task is to offer a plausible account of the acts of agents in terms of scenes, purposes, and agencies.” Drama works when and because successful playwrights tacitly employ “cultural expectations of consistency between scenes and both acts and agents.” Burke’s insight into motives thus grows out of his understanding of the twin expectations of playwright and audience with respect to a shared—and therefore convincing—explanatory framework. So how does this bear on the law, on trial performances?

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