Now this overdone,
or come tardy off, though it make the unskilful
laugh, cannot but make the judicious grieve; the
censure of the which one must in your allowance
o'erweigh a whole theatre of others.
Hamlet then admits that some performers who make a habit out of “strut[ing] and bellow[ing]” in a way that does not capture the way any real human being acts are sometimes praised:
O, there be
players that I have seen play, and heard others
praise, and that highly, not to speak it profanely,
that, neither having the accent of Christians nor
the gait of Christian, pagan, nor man, have so
strutted and bellowed that I have thought some of
nature's journeymen had made men and not made them
well, they imitated humanity so abominably.
Clearly, though, Hamlet does not approve of acting that is all about over-the-top artifice and cheesy pandering.
Because most lawyers are not trained as actors, when they try to be theatrical, they are likely to come across like the kind of second-rate performers whom Hamlet loathes. And when one’s audience is a small cadre of learned, older jurists, blatant theatrical displays are almost guaranteed to fall flat. Even if judges in their private lives simply adore Will Farrell movies, in their professional capacity overseeing oral arguments, they are probably disinclined to fall for “hamming it up.” Therefore, lawyers are more likely to underplay than overplay when they take center stage in a courtroom.
Although there are now video cameras in many courtrooms where appellate arguments are held—though not yet in the Supreme Court of the United States—most oral advocates aren’t tempted to play to the masses because the audience before them is quite obviously that small elite cadre in black robes more likely to be among the group Hamlet calls “judicious.” Being able to see exactly who your audience is as you play to them can help in calibrating your presentation to suit that audience’s tastes—although I think consciously making style choices on the fly is really hard and probably just increases the odds that one will “come tardy off.” But the goal really is to be so thoroughly prepared and focused on delivering the substance to one’s audience in a form it can appreciate that you don’t have the mental space to think about superficial embellishments to produce an effect.
Sure, being the more believable, engaging, authentically funny and/or passionate advocate does not guarantee a win when it comes to appellate argument. See, e.g., Paul Clement v. Don Verrilli in the Obamacare oral arguments available at http://www.youtube.com/watch?v=Xr6QfwUY2bU . But it sure doesn’t hurt. See, e.g., Bryan Stevenson’s argument in Miller v. Alabama, available at http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=10-9646.