NEW BOOK: TRIAL ADVOCACY GOES TO THE MOVIES: Go to the Movies for Lessons in Trial Strategies, Techniques and Skills

 

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think.  While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers equally compelling examples of excellent lawyering. With the aid of movies, this book Trial Advocacy Goes to the Movies explores advocacy from pretrial preparation through closing argument.

Why go to the movies to learn trial advocacy strategies, techniques, and skills? First, trial work is theater; movies show trial advocates how to effectively deliver a message to an audience. Second, movies illustrate successful advocacy principles and techniques. Third, movies are a visual medium, showing how to impart to a jury the trial lawyer’s message with visuals. Fourth, movie clips can be used to illustrate ethical and legal boundaries that trial lawyers should not cross. Fifth, some movies are based on actual cases and show how to be successful in trial with a real-life examples. Sixth and lastly, movies are entertaining and that helps the viewer learn winning trial techniques.  

This volume, like a play and most movies, has three acts. Act 1 focuses on the screen play and how to incorporate the elements of a five-star screenplay into your trial story. Act 2 is devoted to casting, rehearsal—how to prepare the actors in the movie—the witnesses. Act 3 deals with the performances—how to perform like a star at each stage of the trial. 

Your role changes as you move from Act to Act. For Act 1—Screen Writer, you are the screen writer and cinematographer. For Act 2—Director, you are the director who casts the parts, rehearses the actors and so on, and you work for the movie studio. And, for Act 3—Actor, you are the principal actor who performs during each phase of the trial. 

Because this is an e-book, you can watch movie clips of trial advocacy (yes, My Cousin Vinny is included) – each clip is just one click away.

This book is an outgrowth of a presentation titled by the same name—Advocacy Goes to the Movies”—that I have had the pleasure of delivering at continuing legal education seminars across the country. Yes, the lawyers got CLE credit for attending. The presentation usually lasted a half-day. Advocacy Goes to the Movies was always a lecture that I enjoyed giving and was received with smiles and engagement by the audience. Hope you enjoy it too.

TRIAL STORYTELLING—A TIME TO KILL

A Time to Kill

Trial advocacy is all about storytelling. In the movie Amistad, John Quincy Adams, portrayed by Anthony Hopkins, sums it up in this way: “Well, when I was an attorney, uh, a long time ago, young man, I, uh, realized after much trial and error in the courtroom, whomever tells the best story wins. In un-lawyerlike fashion, I give you that scrap of wisdom free of charge.” And, opening statement is your first and best opportunity to fully communicate your case narrative. A well-crafted story told in opening should lead the jury both intellectually and emotionally to the conclusions you wish them to reach.

Ideally, your storytelling will transform the jurors into witnesses to what happened or didn’t happen. The movie A Time to Kill, based on John Grisham’s novel, offers an excellent example of how to turn jurors (and the movie audience) into witnesses. Matthew McConaughey delivers a superb performance as Jake Brigance, defense counsel, delivering closing argument for his client Carl Lee Hailey, played by Samuel Jackson. Brigance tells the story of how his client’s ten-year-old daughter was raped and murdered by two white racists, whom Hailey is charged with having murdered. Although it is defense counsel’s closing argument, it could just as well have been a prosecutor’s powerful opening statement in a trial of the two white men for the rape and murder of the daughter.

Now, if you will, watch the closing and then we can break it down to see why it is such effective storytelling.

What did Brigance do to make the jurors (and the audience) witnesses to what happened? 

What are the techniques that he used?

Encourage Them to See with the Mind’s Eye: He encouraged the jurors to see what happened in their mind’s eye. He began by having the jurors close their eyes so that each one of them could imagine in the mind’s eye what is taking place. And, he tells them upfront, “Now I’m going to tell you a story. This story is about a little girl.” At this juncture, each juror has conjured up in their own mind what that girl looks like. While you may not wish to ask jurors to close their eyes, you can begin by talking about how opening statement is like a sketch for a painting and that the witnesses will fill it in brush stroke by brush stroke when they testify and then tell the jurors you will show them a sketch—an  outline of a picture of what happened.

Tense Shift: Tell the story in the present tense so the events take place right in front of the jurors at the time of opening, not in the past. Brigance says: “The truck races up. . . It tears flesh to the bone. . .They tie a noose. . .The hanging branch isn’t strong enough—she falls.” Only shift to the present tense when you have something central to the story to describe. If you use the present tense in other contexts, it can sound stiff and artificial.

Striking Word Pictures: Paint evocative word pictures. Use words of visualization. Give them graphic details—the important ones and not too many details. Brigance certainly described in detail what happened, and he described the places and people—“their drunken breath and sweat.”

Point of View: The story should have a point of view. Here the story could have been told from the viewpoint of the father or the little girl. Brigance seems to have adopted the eyewitness’s point of view. The listener is there watching it happen; it’s much like the Greek chorus, the group of actors in an ancient Greek tragedy, looking at and commenting upon what was happening in the play as it takes place.

Slow Down: When the scene in the story is dramatic, slow down the pace of your voice. A slower pace indicates the seriousness of the information being imparted as well as sadness. Additionally, it helps the audience take hold of what you are saying.

Show Emotion: Deliver from your heart.  When you do, your emotions will show in your face and body language. In turn, we all mirror emotions. When you show emotion, the jurors will feel it. At the end of his closing, McConaughey went silent, obviously gripped with emotion probably because he was seeing in his mind’s eye what he was describing. This is not to suggest that counsel should cry when telling the story because the jury could well interpret that as disingenuous.

In Trial Advocacy: Planning, Analysis, and Strategy, we describe in even more detail how to be a powerful storyteller with not only illustrations but also offer demonstration movies on the book's companion website.

“THE FINEST TRIAL MOVIE EVER MADE”—ANATOMY OF A MURDER

In this month’s Bar Bulletin, Jacob Kuykendall, who is the editor of the King County Bar Bulletin, wrote an article in the Law Movie Corner about my favorite trial movie–Anatomy of a Murder.  You can read Kuykendall’s full article here.

I use Anatomy of a Murder in both my pretrial and trial class and in CLEs, including “Advocacy Goes to the Movies” and “Great Cross-Examinations in History and in the Movies,” around the country. Also, I’ve blogged about it.

Michael Asimow, co-author of Reel Justice: The Courtroom Goes to the Movies, describes Anatomy of a Murder as "probably the finest pure trial movie ever made." It's perfect for sparking a discussion of whether it is ethical to hint at the client's best legal theory. It's ideal for a making and meeting objections discussion. For instance, having Jimmy Stewart, an American hero from WW II and a beloved movie star, pull the dirtiest courtroom tricks, such as ringing the bell with an objectionable last question on cross-examination, is genius. As is having the trial presided over by Joseph Welch (pictured below), the lawyer who put an end to the McCarthy era with "At long last, have you no sense of decency." 

Robert Traver, the author of Anatomy of a Murder, was  actually John Volker, who was a Justice on the Michigan Supreme Court. He also wrote about fly fishing, which is the other passion of Paul Biegler, who is the main character in Anatomy of a Murder.

Incidentally, a while ago, I reread Anatomy of a Murder and then Grisham's A Time to Kill back to back, and it's clear that Grisham's story was inspired by Anatomy.

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.