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Volume 25, Nos. 3 & 4 (2001) reprinted by permission Legal Studies Forum THE DOCK BRIEF JOHN KIDWELL* I suggest that the 1962 movie The Dock Brief1 (released in the United States as Trial and Error) provides an opportunity for such an analysis, and deserves a place on the list of worthy films about lawyers. The Dock Brief (a satire of lawyers more than of the law) gives new meaning to the phrase “ineffective assistance of counsel.” It opens with Morgenhall, a barrister played by Peter Sellers, being admitted to the cell of a man who has been accused of murdering his wife. Morgenhall, we quickly learn, is an unsuccessful barrister who has been waiting for years for the court to assign him a case; in England such an assigned case is referred to as a “dock brief”—hence the name of the film. Morgenhall’s first dock brief—and in fact, apparently, first case of any kind—is the defense of the unfortunate Mr. Fowle, played by Richard Attenborough. Fowle is the meek proprietor of a birdseed shop who has killed his wife because she saw humor in everything, and her raucous laughter and practical jokes finally drove him over the edge. Most of the film is set in Fowle’s cell, and consists of Morgenhall’s discussion with Fowle about the strategies to be employed to obtain Fowle’s acquittal, notwithstanding, as one reviewer put it, that Perry Mason, Clarence Darrow and Cicero working together couldn’t have succeeded in getting Fowle off.2 The first meeting between lawyer and client is both amusing, and revealing of one of the themes of the movie. Morgenhall introduces himself to Fowle as a lawyer and it becomes apparent to us, the viewers, (but not to Morgenhall) that Fowle believes Morgenhall to be a lawyer-in-trouble who will be his cellmate; as we will see, Fowle is half right. What follows is one of those delightful scenes in which every line has a charming ambiguity, literally consistent with each person’s misunderstanding of the situation. But thematically the conversation also serves to initiate the inversion of what we expect of the usual lawyer-client relationship. Ordinarily we expect the client to be the victim of some predicament, who turns to the lawyer to be res-cued. Here, at the beginning of the movie, that assumption is turned on its head. Morgenhall the lawyer is the one who needs help lest his whole career be a complete failure. When Fowle admits his guilt Morgenhall suggests he is being selfish and inconsiderate. Morgenhall: You think you killed your wife.Morgenhall then reveals he believes that Fowle has deliberately picked him as counsel whereas Fowle admits he pointed at random in the direction of the lawyers awaiting selection. Morgenhall: So even you, Mr. Fowle, didn’t choose me? Fowle: It does seem chancy.And so he does. For the rest of the film Fowle remembers that he needs to support Morgenhall’s effort to redeem Morgenhall’s career, and so he cooperates in the efforts to concoct a strategy, not so much for his own benefit, as for the lawyer’s. And so here we have one of the strongest themes of the movie—the fact that while the conventional drama often seems to focus on the client, from the lawyer’s point of view the stakes in the struggle often involve the lawyer’s ego, and the lawyer’s career, and not merely the client’s fate. The theme is not so unusual in dramatic films, in which lawyers are sometimes venal, or ambitious, or selfish, but is perhaps more unexpected in a comedy, and it is exceptionally deftly explored in The Dock Brief. John Mortimer, the author of the 1957 radio play on which the movie is based, is one of the most effective contemporary chroniclers of the law and lawyers. He is perhaps most well known as the creator of the Rumpole of the Bailey stories, which have been dramatized on television by the BBC and have proven to be popular public television fare in the United States. John Mortimer the playwright knows whereof he speaks. His father was a lawyer, and so he grew up in the world of the divorce courts. He became, himself, a successful barrister and achieved notoriety in some important press-freedom cases. The blurb on the back of the first installment of Mortimer’s autobiography, Clinging to the Wreckage, notes that Mortimer described himself as “the best playwright ever to have defended a murderer at the Central Criminal Court.”4 In writing about the radio play of The Dock Brief in his autobiography, Mortimer confirms the centrality of the lawyer-client relationship theme by observing “I wanted to say something about the lawyer’s almost pathetic dependence on the criminal classes, without whom he would be unemployed, and I wanted to find a criminal who would be sorrier for his luckless advocate than he was for himself.”5 One might wonder whether lawyers who see this film might not enjoy it differently than non-lawyers. A lawyer will, it seems, necessarily identify in a special way with Morgenhall and will be readier to acknowledge the dependent relationship of the lawyer on the client. A non-lawyer (a “civilian”) would be less likely to identify with either Morgenhall, or Fowle, and more likely to view the film as an amused observer. A bit later in Clinging to the Wreckage, Mortimer notes that Morgenhall was “perhaps a distant ancestor of a far more extrovert creation, ‘Rumpole of the Bailey.’” For those who are fans of Rumpole, or more broadly (as I am) of all of Mortimer’s work, Mortimer’s authorship is reason enough to seek out The Dock Brief. One note: the work was first created as a radio play. The heart of the work is, therefore, in the dialogue. The radio play was written for a cast of two. The movie obviously needed to elaborate on the dialogue. This is done by using flashbacks, and other similar devices. Sometimes this works, sometimes it doesn’t. The film techniques used in filming Fowle’s wife and the lodger Bateson—the distortion of their voices, and slight distortion of their features—are sufficiently annoying that one can easily sympathize with Fowle. I, for one, was quite happy to imagine Fowle’s wife and found the effort to capture her as a flesh-and-blood screen presence was a disappointment. One could argue that the transformation of the work into a movie, with the inevitable need to heighten the visual dimension, actually weakens, rather than strengthens, the work. Though the movie benefits by the fine acting of Sellers and Attenborough, and fans of their acting will enjoy the movie on that ground alone, it is good to remember that it is well worth reading the unadorned play, which is easily available.6 But to continue the story, after having established Morgenhall’s need to secure a victory for Fowle, Morgenhall sets to work. He begins to consider the various defenses which may be available to Fowle. Through inquiries of Fowle, Morgenhall discovers that there has been a lodger, Bateson, sharing the lodgings of Fowle and his wife, and he hypothesizes that Fowle must have killed in a fit of jealous rage, having caught the two in flagrante. Some of the things that Fowle tells him contribute to this view of the facts; once again, there is the delightful ambiguity in the dialogue in which everything Fowle says can be interpreted in two ways, and Morgenhall always understands it to mean what he hopes it means. He is sure that he can use Fowle’s understandable reaction to this disloyalty to win the sympathy of the jury. That is, until Fowle explains that he had done everything he could to arrange a liaison between his wife and Bateson, and was sorely disappointed to learn that his wife had turned Bateson out when Bateson became too familiar! The defense of the-revenge-of-the-cuckolded-husband having come to nothing, Morgenhall realizes he needs some brilliant stroke to save Fowle—and grows excited as he realizes what they need is—a surprise witness! He persuades Fowle to assist him in practicing what will happen in the courtroom, as Morgenhall overcomes the judge’s objec-tions to calling a surprise witness, and skillfully leads the (imaginary) surprise witness to provide Fowle with an ironclad alibi. After their little role-playing exercise, with Morgenhall coaching Fowle along the way (as Fowle pretends to be the judge, and the surprise witness) and conclud-ing with the court (Fowle) ordering the prisoner (Fowle) released, Morgenhall beaming, turns to Fowle and proudly says, “Well, I think we’ve pulled your chestnuts out of the fire!” He is crestfallen and deflated when Fowle reminds him that this tactic probably won’t work, since there really is no surprise witness—that they had just made him up. It is at this point that Morgenhall delivers what is sure to strike most lawyers as the most wonderful line in the movie, observing that, without the benefit of any legal training whatever, Fowle has put his finger on the fatal weakness in the defense! Fowle is ready to give up, but not Morgenhall. “Give in? We do not give in—when my life depends on this case.” Fowle responds, “I forgot. Then, we must try.” And go on they do, as Morgenhall imagines that Bateson the lodger can be shown to be the perpetrator. That is, until Fowle, dashing his hopes once more, reminds his barrister that Bateson was arrested before the death of the victim. This is followed by an imaginative cross-examination of the medical expert, a tactic Morgenhall’s role-model Tuppy Morgan always recommends, but which Morgenhall himself concludes is not entirely convincing. Finally Morgenhall is driven to conclude that only an eloquent closing can win the day. He goes on to reassure Fowle that at the trial he will hear an argument such as has never been heard before; he may need to speak for two days. The result will surely be a victory, with fame and fortune, and perhaps a judicial appointment, to follow. It never happens. Morgenhall leaves the courtroom after his big chance, having been unable to accomplish anything but dropping all of his notes on the floor. Not only did he fail to give a two-day closing—he spoke not a word. After the debacle, and after some time has passed, Morgenhall sadly goes to visit Fowle in his cell. Fowle, somewhat reluctantly, discloses that he is about to be released. When Morgenhall asks why, Fowle even more reluctantly admits it is because the trial has been ruled “no good at all—it is all null and void—because the barrister selected for him was no good—an old crock.” But noting Morgenhall’s disappointment, Fowle observes that Morgenhall’s artful failure to examine any witnesses, or make any kind of argument, was the only tactic which could have been successful. Morgenhall brightens, seeing the sense of this, and they leave the gaol, lawyer and client, side by side, with Morgenhall observing that he stands ready to rescue Fowle from such difficulties as he will almost inevitably encounter in the future. As we reach the end of the film the viewer is struck that just as Morgenhall presages Rumpole, so Peter Sellers’ portrayal of Morgenhall anticipates one of Sellers’ later creations, the hapless and thoroughly incompetent, though ultimately successful, Inspector Clouseau of the Pink Panther movies. The law of the ending, of course, is flawed; like the law in many courtroom dramas and countless episodes of Law and Order and Ally McBeal, it has been altered slightly to better serve the dramatist. Under both English and American law, the ineffective assistance of counsel leads not to acquittal, but only to an opportunity to be tried again, should the state choose to renew the prosecution.7 And so in the real world, Fowle would not have flown, but would likely have been retried. Or more likely, would have been a party to a plea bargain. But this movie, like most movies about law, is not about law as it acts in the world, but rather is about our ideas about law. It reflects our fears, and hopes—which could be seen to be the second theme of The Dock Brief. We know the law to be an imperfect instrument for achieving the sometimes incompatible goals of individual justice and social order. It is imperfect because, among other reasons, it relies on inquiries into form, rather than substance, and because we not only allow, but revere, techniques of persuasion which may overpower our sober judgment. The result is that, in both fact, and fiction, the guilty may escape by recourse to a technicality, and at other times the innocent are similarly rescued. Sometimes the guilty escape because of the efforts of the silver-tongued orator who is their lawyer, and other times it is the innocent who benefit. Because legal technicalities (the embodiment of form rather than substance) and rhetoric are so closely associated with the tech-niques of the law, we sometimes mistake them for the law itself. And so it is with the incompetent Morgenhall. It is in the character of Morgenhall that the film satirizes the law, or those at least who mistake the law’s techniques and defects for its essence. Early in the film, as he describes the arduous training which preceded his admission to the bar, and no doubt to reassure Fowle that the client has a real lawyer as his advocate, Morgenhall inquires of Fowle: Morgenhall: Want to hear some Latin?To Morgenhall, the obscure Latin phrase is the essence of the law. And its techniques—the searching cross-examination, the rhetorical flourish—he mistakes for its core. The uncomfortable truth, at this point, is that one suspects that all of us sometimes make this same mistake, or at least nearly do. It is possible that lawyers may find this movie more enjoyable than non-lawyers will for just this reason. Just as lawyers enjoy lawyer jokes, so too lawyers enjoy satires of the law, especially when, like this one, they point to the fantasies all lawyers may sometimes fall victim to. To see Morgenhall’s infatuation with legal Latin will almost certainly bring a secret smile to the face of lawyers as they recall their own affection, as law students, for their Black’s Law Dictionary, that great compendium of legal Latin and the first year law student’s constant companion. Few fail to imagine they are capable of a Clarence Darrow summation, or an appellate argument worthy of the Solicitor General. And what lawyer has not dreamed of the clever maneuver which turns dross into gold—evading the common-sense reading of a rule by lawyerlike prestidigitation. Ambrose Bierce defined “lawyer” to mean “One skilled in the circumvention of the law.” Baseball immortal Bill Veeck captured this sentiment in his observation that “What I like about baseball is that three strikes and you’re out, and the best lawyer in the world can’t get you off.” The elevation of technique over substance can sometimes work, but is often only pathetic, and can be funny. Lawyers themselves are fond of pointing to the humor in the overly defensive answer, or the document drenched in meaningless legalese. Fiction is full of stories of legal technicalities. Well known examples include: Gilbert & Sullivan’s The Pirates of Penzance, in which the unfortunate hero is not released from his indentures because, having been born on February 29th in a leap year, though he is 21 in fact, he is only 5 in law; Gilbert & Sullivan’s The Mikado, in which the citizens evade the law of capital punishment by appointing the next in line to be executed to the office of The Lord High Executioner, since he will have to cut off his own head before proceeding further on the list; Shakespeare’s The Merchant of Venice, in which Portia artfully misinterprets the contract allowing Shylock to take a pound of flesh from Antonio to forbid taking so much as a drop of blood along with it; Joseph Heller’s Catch 22, in which a paradoxical rule governs the availability of pilots to fly missions; and as a last example Miracle on 34th Street, in which Edmund Gwenn is established to be Kris Kringle because the post office delivers its backlog of letters to Santa to Kringle, allowing the court to take advantage of the law granting deference to the findings of administrative agencies. We know that the truth about the law has been stretched in these cases, and yet the humor is built on a foundation of appreciation for the fact that the law’s literalism often yields unexpected results. Fowle’s release, not because his lawyer was too good, but because he was too bad, is in this tradition. For much of the movie Morgenhall fantasizes about the use of rhetorical skill (which, it turns out, he is utterly unable to display in the courtroom) to accomplish the impossible. He imagines himself to be, one suspects, the equal of Daniel Webster, and able to outshine the Devil himself in argumentative skill. Mortimer addressed the tendency of real-life lawyers to share Morgenhall’s fantasy in Clinging to the Wreckage. He noted (after a passage in which he mourned the passage of an age of effective oratory): And yet how many cases are won by advocacy? No doubt the answer is far, far fewer than the advocate cares to think. The facts of the matter are dealt to the barrister, like a hand at cards, or a bundle of inherited [294] or acquired characteristics. At first glance he can tell if it is a rotten case or a winner and, although in the course of the argument he may persuade himself that a different result is possible, most cases turn out exactly as you had thought they would in the first half hour after undoing the tape and opening the brief. Clearly cases and hands of bridge can be lost, just as lives can be thrown away, by carelessness, over-confidence, letting in unnecessary evidence, failing to lead out trumps or not noticing when the queen went. And the consequences of defeat can be mitigated. Skill and persuasion, in the vast majority of cases, can go no further: we are stuck with the cards we are dealt and have to act out, as well as we can, the lives which we have been allotted.8And so The Dock Brief (a movie described as “small” when made, and which probably now could deservedly be called “obscure”) is entitled to take its place on the shelf with other motion pictures which explore the relationship between the law’s techniques and its accomplishments—or miscarriages. Rent it. Particularly if you are a lawyer, but even if you are not. * George Haight Professor of Law, University of Wisconsin. This essay is part of a forthcoming anthology, Screening Justice, edited by Teree E. Foster, Frederick Dennis Greene and Rennard Strickland. 1. The Dock Brief was directed by James Hill. It is in black and white, and is only 78 minutes long. It is available as Trial and Error on video from Orion Home Video. 2. Newsweek, December 3, 1962, p. 100. 3. I have relied somewhat, in quoting passages from the movie, on the play on which the movie is based. The dialogue in the movie, except for the last part of the play which is substantially edited and re-written, is almost identical to the language of the play. The play can be found in a collection of three short plays by Mortimer—A Voyage Round My Father—published by Penguin Books, New York, 1982. The volume in addition to containing The Dock Brief also includes What Shall We Tell Caroline? and the play which gives the volume its name. 4. John Mortimer, CLINGING TO THE WRECKAGE: A PART OF LIFE (New York; Penguin Books, 1984). 5. Id. at 128. 6. In a brief, rather negative, review by Brendan Gill in The New Yorker (December 1, 1962, p. 133) Gill notes that the pictorial content is “slight” and that one “could absorb the entire conversation with one’s eyes closed, and not miss a single salient point of the plot.” He argues the dialogue cannot hold our attention. Perhaps Gill’s bad review is some evidence of my suspicion that lawyers will almost certainly like the movie, whereas non-lawyers might not. Arthur Knight, writing in The Saturday Review (December 8, 1962, p. 50) is a great deal more positive, without quarreling with the fact that the movie is largely a dialogue, characterizing the movie as “an actor’s holiday.” Other reviewers are also divided in their enthusiasm for the film. 7. For Great Britain, see the Criminal Appeal Act of 1968, Secs. 2(1)(a) and 7(1). 8. Mortimer, Clinging to the Wreckage, supra note 4, at 188. |
