HERMAN WOUK'S PASSING AND THE CAINE MUTINY TRIAL

With the passing of Herman Wouk on May 17 at 103, we can remember his great masterpiece The CaineMutiny about sailors on a World War II destroyer minesweeper who mutiny against their incompetent Captain Queeg. Wouk wrote The Caine Mutiny play and for a while worked on the script for the movie in which Humphrey Bogart gave an Oscar winning performance as Captain Queeg in the Caine Mutiny movie.

The basic facts underlying the court-martial case are that Lieutenant Stephen Maryk relieves Queeg of command of the USS Caine when Captain Queeg freezes up during a typhoon. Maryk has a belief from Queeg’s prior behavior that he is mentally unbalanced. Maryk is on trial for conduct to the prejudice of good order and discipline.

Lieutenant Greenwald’s cross-examination of Queeg is the high point in the movie. Beyond that, it is a superb illustration of how to conduct a concession-seeking cross-examination. The concession-seeking cross-examination strategy is discussed at length in Cross-Examination Handbook.

Time after time, Greenwald confronts Queeg with truths that Queeg must concede or stamp his answer as either a lie, mistaken or ridiculous. Why must Queeg concede? It is because Greenwald can prove what he is asserts either by circumstantial or direct evidence or by plain common sense. Greenwald knows the answers to every cross-examination question he asks.

It is Greenwald’s turn to testify, not Queeg’s. It’s his opportunity to lay out the truths. These truths all support the ultimate conclusion—Queeg is unstable and unfit for command.

Here are those truths: (1) Queeg steamed over the Caine’s tow line; (2) Queeg was distracted during the towing maneuver because he was reprimanding a seaman over an un-tucked shirt; (3) Queeg having just testified that Maryk was unfit had previously written a glowing fitness report about him; (4) Queeg ordered that the Caine steam ahead of an attack force, drop a yellow dye marker and retreat; and (5) Queeg was obsessed with a search for a key that would have led to a missing quart of strawberries when he had been told by an officer that the mess boys had eaten the strawberries. When confronted by Greenwald with the fact that the officer who told Queeg about the mess boys eating the strawberries could be called to testify, Queeg loses his composure, rolling two metal balls around in his hand as he babbles on (masterful performance by Bogart). 

Naturally, Maryk is acquitted.

TWO-DOZEN 4-STAR ADVOCACY MOVIES

Anatomy of a Murder - A four-start trial movie

Here are two-dozen of my favorite 4-star trial advocacy movies. The movie descriptions include some background – most of the movies are based on actual cases. Movie clips can enliven a trial advocacy lecture, and, included in parentheses are what the film clips from the movies can be used to demonstrate. What have I missed?

A Time to Kill (Warner Brothers, 1996, Directed by Joel Schumacher) Based on a John Grisham novel. (storytelling)

Amistad (Dream Works 1997, Directed by Stephen Spielberg) Anthony Hopkins won the Academy Award for playing John Quincy Adams. Amistad involves trials centering on an 1838 rebellion on a Spanish slave ship, the Amistad. A federal trial court decided that the initial transport of the African slaves was illegal and that the Africans were free, not slaves. Former President John Quincy Adams argued before the United States Supreme Court which affirmed the lower court’s finding. In 1842, the Africans went home. (storytelling – the best story wins)

Anatomy Of A Murder (Columbia Pictures, 1959, Directed by Otto Preminger, music by Duke Ellington) Movie is based on a bestselling novel by Robert Travers. Travers was the pen name of John Volker, prosecutor, fisherman, and a Michigan Supreme Court judge from 1957-1959. Jimmy Stewart wins Best Actor Academy Award. The inspiration for the book was the 1952 Big Bay Michigan Lumberjack Tavern murder trial. The defendant killed the tavern's proprietor, Mike Chenowith, claiming that Chenowith had raped his wife. (everything)

Bananas (MGM, 1971, Directed by Woody Allen) (the perfect cross)

Caine Mutiny (Columbia Pictures, 1954) Best Actor Academy Award to Humphrey Bogart, based on Pulitzer Prize winning novel by Herman Wouk. (cross)

Chicago (Miramax, 2003, Directed by Rob Marshall), Academy Award for Best Movie in 2003. Chicago was a 1927 play, which became a 1927 silent film, a 1942 romantic comedy film Roxie Hart, the 1975 stage musical Chicago, and then the 2002 movie musical. Chicago concerns two women convicted murderer who are on death row together in Jazz-age Chicago. The inspirations for the play and then movies were the murder trials of two women, Belva Gaertner and Beulah Annan, both of whom were acquitted at trial. (trial performance)

A Civil Action (Paramount, 1998, Directed by Steven Zaillian) Based on Jonathan Harr’s book A Civil Action. The case upon which the book and movie are based on Anne Anderson, et al., v. Cryovac, Inc., et al. 96 F.R.D. 431. The case involves the polluting of the Woburn, Massachusetts water supply with toxins which results in the deaths of the townspeople. The citizens hire Jan Schlichtmann to sue. See the movie The Verdict, below, for the connection between Schlichtmann and the author of the book upon which The Verdict was based. My co-author, Marilyn J. Berger, produced three educational documentary films in the series, Lessons from Woburn. The Untold Stories" with Henry Wigglesworth. The films have been used in over 100 law schools. (pleading, depositions) 

Erin Brockovich (Universal Films, 2000, Directed by Steven Soderbergh) Erin Brochovich, a legal assistant, goes after Pacific Gas and Electric Company for polluting the water supply. Julia Roberts wins the Academy Award for Best Actress and the real Erin Brochovich appears in the movie as a waitress. Literary license is taken in the film: Massey’s partner, not Massey, represented Brochovich in the automobile accident case and Brochovich was Miss Pacific Coast, not Miss Wichita. (interviewing)

A Few Good Men (Castle Rock Entertainment, 1992, Directed by Rob Reiner) The movie is based on a play by David Sorkin who got the idea from his sister who was in Navy JAG went to Guantanamo Bay Naval Base to defend marines who almost killed a fellow Marine in a hazing ordered by a superior officer. (interviewing, cross) 

Freck Point Trial (Aspen Publications, 2008, Directed by Gretchen Ludwig) This movie is a trial advocacy training film with veteran actors doing everything from jury selection through closing argument. The movie comes with the book Trial Advocacy: Planning, Analysis and Strategy by Berger, Mitchell and Clark. For more information visit this website.

Inherit the Wind (United Artists, 1960, Directed by Stanley Kramer, who also directed Judgment at Nuremberg) The movie is based on the Jerome Lawrence and Robert Edwin Lee 1955 play. It is inspired by the 1925 trial of John T. Scopes who was convicted of teaching Dawin’s theory of evolution in a Tennessee high school science class (hence called “The Scopes Monkey Trial.” Scopes was ordered to pay a minimum fine. The play liberally drew from the transcripts. Scopes was represented by Clarence Darrow, and William Jennings Bryan prosecuted. (jury selection) 

Judgment at Nuremberg (Roxlom, 1961, Directed by Stanley Kramer who also directed Inherit the Wind). Maximilian Schell won the Academy Award for Best Actor. The actual Katzenberger trial was a subplot of this movie. In a Nazi show trial, Leo Katzenberger, a Jewish businessman and Nuremberg community leader was convicted of having an affair with a young Aryan woman, and sentenced to death. During the Nuremburg trials, the presiding judge at the Katzenberger trial was convicted and sentenced to life imprisonment. (cross)

Legally Blonde (MGM, 2001, Directed by Robert Luketik). (fun)

Murder on a Sunday Morning (Direct Cinema, 2003, Directed by Jean-Xavier de Lestrade) Academy Award winning documentary, Documentary about a murder in Jacksonville, Florida. (wide variety)

My Cousin Vinny (20th Century Fox, 1992, Directed by Jonathan Lynn). Marisa Tomei an Oscar for Best Supporting Actress. The writer, Dale Launer, explains the inspirations for the script as follows on his website: 
The next movie was one he wrote and produced - an original screenplay called HIS COUSIN, VINNY. This was one of his very first movie ideas - inspired by the fact that some lawyer in California took 13 attempts to finally pass the bar exam. 
He took a trip down south to do story research, starting in New Orleans, where he picked up a car, drove up through Mississippi, over to Alabama and down to the gulf coast. Along the way his car got stuck in the mud - which he worked into the story. He also noticed grits on every menu - which also got worked into the story. He stopped in the town of Butler, knocked on the door of the district attorney and had a chat with the deputy DA who reminded him of actor Lane Smith. This character found its way into the story (and Lane Smith played the part in the movie). Launer noticed they have gigantic cockroaches down there and that was massaged into a scene, but the director took it out for reasons that still mystify Launer. A screech owl too made it into the story. Everyone he met was very friendly and helpful, but when he told them he was making a movie that took place in the south - they'd get very concerned - afraid that Hollywood movies always made them look like bumpkins. That too woven weaved into the story. 
(cross, experts)

Philadelphia (Clinica Estetico, 1993, Directed by Jonathan Demme). Tom Hanks wins Oscar for Best Actor. The movie is based on the 1987 Geoffrey Bowers, suit against the law firm Baker & McKenzie for unfair dismissal in an AIDS discrimination case. 

Place in the Sun (Paramount Pictures, 1951, Directed by George Stevens, who won an Oscar for Best Director) The movie is based on An American Tragedy by Theodore Dreiser. The book was inspired by the 1906 murder case in which Chester Gillette was convicted of killing Grace Brown, his ex-girl friend who was pregnant and wanted Gillette to marry her. The murder took place in upstate New York at Big Moose Lake where Gillette took Brown out on a boat, hit over the head with a tennis racket, leaving her to drown. In 1908, Gillette was electrocuted. (demonstration on cross) 

Rainmaker (Paramount Pictures, 1997, Directed by Francis Ford Coppola, based on a John Grisham novel) (jury selection – fun)

The Fugitive (Warner Brothers, 1993, Directed by Andrew Davis), Tommy Lee Jones won the Oscar for playing Deputy United States Marshal Samuel Gerard. The movie is based on the popular television series by the same name, starring David Jansen. The series was based upon the Sam Sheppard case. Sheppard was convicted of killing his wife and sentenced in 1954 to prison. However, his conviction was overturned by the United States Supreme Court because of the prejudicial pretrial publicity. F. Lee Bailey represented Sheppard who in 1966 was acquitted at the retrial. (pretrial publicity)

Twelve Angry Men (United Artists, 1957, Directed by Sidney Lumet who also directed The Verdict). 

The Pelican Brief (Warner Brothers, 1993, Directed by Alan J. Paluka, who also directed the Presumed Innocent, based on best-selling novel by lawyer Scott Turow). Pelican Brief is based on a Grisham novel.

The Shooting of Big Man (Creative Common Sense, 1979, Directed by Eric F. Saltzman) Documentary of a assault with intent to kill case from arrest through trial in Seattle, Washington in 1979. (wide variety)

The Staircase (Sundance, 2004, Director - Jean-Xavier de Lestrade), Documentary about a murder in Durham, North Carolina. (wide variety)

The Verdict (20th Century Fox, 1982, Directed by Sidney Lumet who also directed Twelve Angry Men) The 1980 book on which The Verdict movie was based was written by Barry Reed, Massachusetts’s lawyer, with screen play by David Mamet. Barry Reed was a mentor to Jan Schlichtmann, who was the trial lawyer who filed suit against W. R. Grace and Beatrice Co. over the contaminated drinking water deaths in Woburn, Massachusetts. The case was written about in the book A Civil Action and later made into a movie by the same name. (witness preparation, closing)

Young Mr. Lincoln (20th Century Fox, 1939, Directed by John Ford). Although the movie is about Abe’s first case after he began practicing law in 1837, the movie trial is actually based on one of his much later cases from 1857. In that case, Lincoln’s client Duff Armstrong was charged with murdering James Metzker. Lincoln, using judicial notice, established that the eye witness Charles Allen’s testimony was false because the witness could not, as he claimed, have seen the shooting at a distance of 150 feet by moon light on that date according an almanac.

Earlier movie reviews can be found here.

TRIAL ADVOCACY EXHIBITS

Each student in my Comprehensive Trial Advocacy class creates a demonstrative exhibit that could be used in the murder trial of Edward Hard. The goal is to teach them how to bring reality into the courtroom using visuals. Here are some of the exhibits that they created displayed in the lobby of the faculty office area in the Seattle University Law School.

BRAND NEW TRIAL ADVOCACY 4TH EDITION

The Fourth Edition of Trial Advocacy: Planning, Analysis, and Strategy has just been published by Wolters Kluwer. This new edition continues to explore all aspects of trial persuasion with expanded and updated coverage.

Some of the Major Additions to the Fourth Edition are:

·      Complete case files for mock civil wrongful death and criminal murder trials, with witness statements, exhibits, legal memoranda, statutes, jury instructions for mock trials, and performance assignments

·      Seventy-nine role-playing assignments, from jury selection through closing argument

·      Comprehensive witness instructions for assignments and mock trials

·      Trial preparation and case management, covered in a new chapter

·      Updated rules for Civil Procedure, Criminal Procedure, Ethics, and Evidence

Particularly important is that this new updated edition comes with a brand new website AspenAdvocacyBooks.com www.aspenadvocacybooks.com. This website features:

·      A full-length trial demonstration movie that can be streamed, showing experienced trial lawyers engaging in every stage of trial from jury selection through closing argument

·      A video of a crime scene tour

·      Case files, Actors Guides and a Teacher’s Manual for mock trials or experiential exercises either in professional development CLEs or law school classes