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Volume 24, Number 2 (2000) reprinted by permission Legal Studies Forum FILM COMMENTARY ROBERT WARING Amistad (December 1997) Regardless of one’s opinion of Spielberg’s perspective in dealing with slavery in the film, he does tell a powerful story about an evil institution. Yes, there are some scenes overly engineered with loud music and Spielberg’s syrupy sentimentality, but the film develops momentum when the principle spokesman for the slaves, Cinque, recounts the horrors of his kidnaping and voyage to Cuba on the slave ship. This flashback is as difficult to watch as any scene from Spielberg’s Schindler’s List with its terrifying glimpse of slave transport. One nearly universal reaction to this film is bewilderment about how such a compelling story could have remained untold for so long. In fact, a novel called Black Mutiny based on the story was published in 1953. Perhaps in part because America has been in a state of self-denial about slavery since the founding of the Republic, the La Amistad incident, a national embarrassment, seems never to have found a prominent place in our history books. That should change as a result of Spielberg’s film. What is more surprising is that the story has also remained invisible in the home nation of the slaves, Sierra Leone. In an interview on National Public Radio a week before the release of Amistad, a Sierra Leone playwright told how he first learned of the rebellion from a white teacher in 1986. His play about La Amistad made his nation aware of this lost piece of history and recently was staged in America. In the film, Spielberg wisely chose to cast actors from Sierra Leone in the slave roles. In the best of worlds Amistad would spark meaningful conversation between black, brown and white people about race. Unfortunately, in part because some prominent African-Americans seem troubled about the white origins of the film, these conversations will be muted. Another lost opportunity. The OJ Simpson case and the dismantling of affirma-tive action appear to have so polarized points of view on the significance of race in our society that conversation is difficult. Many whites (and a few blacks) bitterly resent the way lawyers play the “race card” in the courtroom, at school or on the job. Yet, what is on that card is still very different for African-American and white people. This lack of under-standing about what is being “played” distorts the process and leads to further resentment on both sides. Amistad provides an occasion to reconsider the notion that we can simply forget the sins of the past and move on. We cannot do that until we have the conversation demanded by Amistad. approached by an ambitious young lawyer, Roger Baldwin, played convincingly by Matthew McConaughey and described by one reviewer as a mutton-chopped “antebellum ambulance chaser.” The Africans, who don’t speak a word of English, decide that Baldwin, whose function is a mystery to them, reminds them of a “dung scraper” from back home. The young lawyer, much to the horror of the moralistic abolitionists, analyzes the case in an unemotional, lawyer-like fashion, likening it to a simple property dispute. Yet, from the outset, the posture of the case is cloudy. The legal process begins with what must be every judge’s nightmare. In a cramped, overcrowded Federal district courtroom in Connecticut, a succession of lawyers appears, each holding up writs and pleas and insisting on being heard. Eventually five parties make an appearance, each claiming to have international treaties on their side. The two surviving crew members and the Spanish government, under whose authority La Amistad sailed, each demand the return of the vessel and its human cargo. The United States supports the Spanish, but argues the slaves should be executed as murderous mutineers, giving a criminal flavor to the admiralty proceedings. The crew of the United States warship that recaptured La Amistad claims a one-third salvage interest in the vessel, under a maritime law incentive scheme that rewards enterprising seamen, even those in government employ, for retrieving lost property. (Mercifully, Spielberg chose not to depict the similar claims of some opportunistic Long Island residents.) The British Naval officers who ply international waters, intercept slave ships and free prisoners assert their morality a bit too self-righteously. The movie begins to look like Roots meets Citizen Ruth, as these competing parties dogmatically pursue their causes, mostly oblivious to the welfare of the Africans whose lives and liberty are at stake. Nevertheless, as Baldwin predicted, the resolution of the dispute boils down to one simple issue. Under international treaties in force for two decades, importation of African slaves to the Americas was illegal. Spain and the United States contend that the slaves in question were born in Cuba. The abolitionists claim that they were illegally imported, and thus the Africans are not slaves and their homicidal rebellion was justified by the law of necessity. Much of the story is devoted to Baldwin’s gathering evidence to help establish the origins of the Africans–a great curiosity to the Connecticut townsfolk who gawk at them as they trudge from jail to court in chains. But there is a powerful twist to this otherwise simple case. President Martin Van Buren is running for re-election as President of the United States and is anxious to secure the electoral votes of southern states. This makes him nervous about giving any encouragement to slave rebellions. Throughout the Africans’ legal journey, Van Buren and his advisors work behind the scenes to rig the courts against the captured slaves. The plot at times seems primarily focused on this interference by the executive branch into the activities of the judiciary. The story unfolds as those who oppose freeing the slaves force a retrial before a young judge appointed by Van Buren. The film skips over the Africans’ pro forma victory for the slaves at the court of appeals, and focuses on the pressure the executive branch places on the Supreme Court. (A detail glossed over by the film is that the Supreme Court did not issue its ruling until after Van Buren had already lost the election.) One particularly interesting scene is a state dinner and a conversation between the Spanish Ambassador and President Van Buren. The Ambassador, puzzled over the unfavorable ruling by the district court, asks, “If you cannot rule the courts, how can you rule?” Van Buren hypocritically replies, “Our people believe it is the independ-ence of the courts that ensures their freedom.” In a monologue which immediately follows, former Vice-President Calhoun threatens armed rebellion by the southern states over the slavery issue. Undoubtedly, the screen writers were trying to illustrate the pressures facing Van Buren and the nation in 1840. Of special note is Anthony Hopkins’ portrayal of an aging John Quincy Adams, the former President, in his declining years. The film only hints at the fact that Adams was a one-term President, elected without an electoral college mandate and elevated to that high office as a result of a fragile coalition in the Congress. As an acclaimed former Secretary of State, his idealistic goals as President were frustrated by factionalism. In the decade following his re-election defeat in 1828, he became a major force in the opposition to slavery. As depicted in Amistad, the abolitionists repeatedly plead with Adams to help them with the case, which they know is being subjected to heavy political pressure. He refuses, appearing to have no stomach for the fight. But he gives Baldwin one key suggestion regarding trial advocacy: learn the human story of your clients and emotionally relate that story to the court. As a result of this advice, the audience and the court learn of the inhumanity of slave trading and the movie and court case succeed. Beginning trial lawyers might take note. Baldwin eventually prevails upon Adams to join the fight when they reach the Supreme Court. Although the movie does not indicate this, Adams reportedly argued before the Supreme Court for eight and half hours on behalf of his clients. Obviously, this was before the days of strict limits on the time devoted to oral argument. Adams must have been a good orator, but sadly, the text of his remarks was not included in the official report of the case because he failed to submit it. The reporter does note that much of what Adams said was not considered by the court in the opinion, authored by Justice Joseph Story. (40 U.S. 518, 566 (1841)). We must assume that Adams took his own advice and spent considerable time putting a human face on the dispute. Ironically, Justice Story (portrayed in the film in a cameo by retired Supreme Court Justice Harry Blackmun) held the seat on the Court that had first been offered to Adams some thirty years before. Adams had declined, presumably to pursue his presidential aspirations. Two curiosities of note: Spielberg chose not to tell the story of a legal slave named Antonio who was onboard La Amistad. By order of the district court he was returned to his owner in Cuba, presumably because it was established that he was born in the Americas. The film also glossed over the final resolution of the case. The district court holding had directed the President to transport the Africans back to Africa at government expense based on the government’s own argument that the Africans had illegally brought a slave ship into U.S. waters. In its appeal, the government dropped this argument, which the Supreme Court had noted was absurd. (Persons involuntarily forced into slavery cannot themselves be guilty of slave trading.) So the Supreme Court followed the circuit court holding and merely declared the Africans to be free persons. With no help from the government, it took a year for abolitionist groups to arrange their return to Sierra Leone. Spielberg seems to have found a way to increase public interest in the normally non-dramatic proceedings of the Supreme Court. Why not have criminal defendants in the courtroom in chains when the Supreme Court announces rulings? A marshal could then either release them on the spot, or, in the case of capital offenses, escort them to a nearby death chamber. The public would love it. (January, 2000) What now seems forgotten, because women are significantly– though not completely–integrated into the power structure, is that the struggle for gender equality began in the United States more than one hundred and fifty years ago and took half of that time to accomplish its first major goal: women’s suffrage. Ken Burns’ recent PBS documentary, Not for Ourselves Alone: The Story of Elizabeth Cady Stanton and Susan B. Anthony, portrays women’s struggle for suffrage during the nineteenth century. It is an account of efforts to change discriminatory laws, told via letters read as voice-overs accompanying a series of photographs of Elizabeth Cady Stanton and Susan B. Anthony, interspersed with narration. After the public broadcast of Burns’ documentary, perhaps more Americans will know something about Stanton and Anthony and their efforts on the behalf of women. The Burns’ effort is fascinating for a number of reasons. First, we might wonder what drove Anthony and others to labor their entire adult lives, nearly sixty years, for a cause they correctly anticipated would not be achieved during their lifetimes? These women inspired those who worked with them to continue the fight for the vote until the Constitu-tion was amended 1920. Surely their efforts deserve more national recognition than one side of a dollar coin that is rarely used. Second, a great moral conflict arose during the women’s campaign. Early on, in the two decades preceding the Civil War, suffragists worked hand in hand with abolitionists to end slavery. When that struggle was vindicated at the end of the war, Congress debated the passage of the Fourteenth and Fifteenth Amendments by which all the privileges of citizenship would be conferred on blacks. Much to the frustration of the suffragists, these amendments did not extend privileges to women–of any color. Splitting from the cause of the abolitionists, the suffragist movement opposed these amendments, preferring to hold out for including women in the change. In the end, women did not get the vote until more than sixty years later, and the documentary opines that this attempt to hold hostage rights for blacks cost the suffragists much needed political support. Another example of racial and gender politics colliding is the 1954 film, Salt of the Earth. The film tells the true story of a zinc miners strike in New Mexico in the early 1950s. It lacks the polished character development and plot tension of more recent labor films such as John Sayles’ Matewan–dramatizing strikes and the unions’ efforts to resolve racial conflicts leading up to the West Virginia coal mine wars of the 1920s. However, the inspiring story of Salt of the Earth makes the film well worth renting. The film begins (as does Matewan) by depicting the danger of miners’ work. The miners believe that the mining company is not protecting their safety and this leads to a flashpoint of anger over low wages. The miners, mostly Mexican-American, are paid less than miners at neighboring mines where the miners are Anglos. A violent strike ensues with illegal attempts at strikebreaking by the owners of the mine. The undisciplined strikers respond with violence of their own (a theme found in Matewan as well), but their wives intervene. Much of the film focuses on the home life of the miners and their families. The wives are angry that their pitiful homes in the company town do not have running water, while in the Anglo company towns there are some amenities and better sanitation. When the strike begins, the wives implore their husbands to make improved home sanitation a demand, but the men refuse. The men see pursuit of the women’s concerns as jeopardizing their goals of eliminating racial discrimination in mine safety and wages. It is only when the men spend time at home during the strike that they realize the daily hardships endured by their wives, as they are forced to carry potable water and chop wood for heat and hot water. The men learn that when they unite with women in their struggle for racial equality, their combined efforts win both groups’ goals. Some viewers will find the story of how Salt of the Earth was made as interesting as the film itself. The film was written, directed, scored and produced by film artists blacklisted during the McCarthy era. Government and the film industry continuously attempted to thwart the film, and those involved in its production were sometimes subjected to threats of violence and death. Salt of the Earth is a testament to the fragility of our First Amendment rights, which were of little help to alleged communists in 1954. All the extras and many of the principle actors were played by miners and their families who endured the actual events portrayed in the film. The only actor most viewers will recognize is Will Geer, who plays the evil sheriff. He was not able to find work in films for a decade following Salt of the Earth, but later went on to portray Grandpa Walton on the long-running television series. The female lead, Rosaura Revueltas, a Mexican actress, was deported during shooting, and some of her scenes had to be secretly filmed in Mexico later. She was black-listed in her homeland and never appeared in another film. Editing took more than a year, because most labs would not process the film. Work was done in secret safe houses to hide from those who sought to destroy the prints which were viewed as Communist propaganda. Only thirteen theaters in the United States showed the film in 1954, but it had greater distribution in Europe where it won critical acclaim. Most people who have seen the film in the United States saw it on college campuses in the 1960s, projected from 16mm stock. A simplistic, but important lesson of Not for Ourselves Alone and Salt of the Earth is that groups working for social justice may achieve their goals more rapidly by working together instead of competing. The Burns’ documentary and Salt of the Earth also show how the road to achieving idealistic goals is paved with moral conflict and hardship aplenty. (February 21, 2000) Through the lens of a sensational case, the film reveals much about society and the issues of the day, and highlights how public perception both influenced and was influenced by the legal battle. As with many high profile trials, the passage of time has faded the importance of the fate of the litigants and their legal issues. In a hundred years, the O.J. Simpson case will likely be valued far more for what it revealed about the racial difference in perception of the fairness of the criminal justice system than as a courtroom drama. In fact, in The Winslow Boy, there are no scenes of the trial. It’s simply not that important. The characters’ efforts in getting the case to a court and its effects on their lives are the essence of the story. The plot centers on the fourteen-year-old son of an upper class family (Winslow) who is expelled from the Royal Naval Academy for allegedly stealing five pounds from another cadet. The proceedings which resulted in his expulsion were conducted without the knowledge of the boy’s parents and afforded him no legal representation. The family begins an obsessive quest for judicial review, with the boy’s father and older sister ready to sacrifice the family’s assets and her marriage prospects to secure vindication of the boy. The sister, a suffragist, takes on her expelled brother’s cause with the same zeal she devotes to her voting rights work. One of their first tasks is to secure representation by an experienced barrister, a King’s Counsel. (Today, they are called Queen’s Counsel, reflecting the gender of the reigning monarch.) He is a rather young looking, conservative member of the House of Lords. He eventually shares the family’s passion for its cause and becomes their champion. A subplot is the barrister’s rejection of the suffragist ideology espoused by the daughter. Their debates on the subject provide a metaphorical tension between the old ways of the recently passed nineteenth century and change promised by the newly entered twentieth. The romantic tension between them provides no small contribution to the appeal of the story. The film provides many glimpses of public fascination with the case. There are newspaper headlines in “War Declared” size type, and political cartoons, buttons, posters, and even umbrellas proclaiming allegiance with one side or the other. As snippets in the film show, some citizens worried about England’s place in the world following the decline of the Empire. Thus, some viewed the Winslow boy’s claim as an assault on British institutions and an indirect threat to peerage and the monarchy. Others viewed the claim as an overdue call for a reexamination of the fairness of British society and its traditions. The uneasy juxtaposition of nineteenth and twentieth century sensibilities is best illustrated by the cigarette-smoking suffragists who crowd the women’s spectator galleries overlooking the House of Lords, while peers debate the Winslow case in the sanctity of their males-only club. Many critics of the day warned that the entire affair was drawing national attention away from more important affairs of state. Looming in the background, phrased with modern day irony as “trouble in the Balkans,” was the growing inevitability of what would later be called “The Great War,” a conflict that would cut down a generation of British men. The foreboding gloom of the Great War also cast a sort of reverse shadow on the machinations surrounding the expulsion of the Winslow boy from the Naval Academy. His expulsion could have the effect of saving him from annihilation in combat. (In fact, George Archer-Shee, the real-life “Winslow boy,” died in World War I.) This knowledge of what lies ahead for England, knowledge the characters do not have, provides a tragic overtone to the family’s quest for justice at any cost. In another sense, public absorption in the case of the Winslow boy was a form of mass distraction from concerns about the world’s troubles. It gave people a chance to forget that the old world they knew was crumbling around them, and that cataclysmic events of unimaginable terror were about to overtake them. Thus, the case foreshadowed Court TV and similar programming four score years later: a forum where people can attempt to either grasp or avoid the overwhelming scope of society’s ills by watching the fate of a single person played out before them. You be the judge. (February 1999) The film is much ado about economics: the economics of funding expensive pre-trial investigation and discovery by an under-capitalized small firm working on a contingency fee basis. (The firm can only recover expenses as a result of a settlement with the other side.) There is also the economics of disposing of the environmental waste which is the basis for the suit. (It’s cheaper just to dump it in a hole in the ground.) Along the way, viewers are treated to the tension of the high-stakes poker and puffery that inevitably accompanies big ticket law suits, with deceit, unethical behavior and bad judgment aplenty on both sides. The film is compelling in part because it tells the story of a group of people trying to do the right thing, correct the harm done by a polluter, gain an apology for the victims and inflict a monetary punishment that will deter future wrongdoing. In spite of the plaintiff’s tactical miscalculations, the film may actually improve the public image of the plaintiffs’ bar. In the end, Jan Schlichtmann, the protagonist lawyer, is ground down by a system that seems stacked against him and his clients. Schlichtmann is portrayed as an underdog and a high-stakes gambler, whose profits in one case are justified by financial losses he takes in other suits. It’s a dirty business, but how else is justice to be achieved? The most noteworthy moments in the film occur at the very end. The first is a toss-off line, a single sentence uttered by the judge reading the terms of the settlement aloud in court. The settlement terms call for secrecy. The brevity of this reference was unfortunate, because I doubt many in the film’s audience understand just how tragic this term was, and also how commonplace it is in our legal system. Defendants in civil suits routinely buy the silence of those they injure by conditioning settlement on the plaintiff’s inability to discuss the case with anyone else. This means that if a corporation or an entire industry has done something to injure people, information gained in a suit by one victim cannot be shared with others. Also, the public never learns the exact nature and extent of the wrongdoing and thus the wrongdoers face less public scorn for their actions. When defendants purchase silence, as they often do, each new plaintiff must reinvent the wheel, and have the finances to fund the reinvention. The second noteworthy moment is the government rescue of the plaintiff’s failing litigation. Although civil defendants can buy secrecy as to other litigants, they cannot shield themselves from criminal liability. The film ends with Schlichtmann sending the case files to the Environmental Protection Agency (EPA). As viewers see the boxes being packaged, and delivered by truck to the EPA, text appears on the screen explaining that after an EPA investigation, the defendants were forced to pay eight times the amount of the civil settlement in fines and clean-up costs. The government is portrayed in a positive light, if ever so briefly, and we are left with the impression that in some sense justice was done. (February 1998) The basic premise is that a lawyer (Daniels) assigned to handle a criminal trial involving a con-man (Torn), is unable, due to the excesses of his bachelor party, to make a required court appearance. His Best Man (Richards), an out-of-work actor, fills in for him, and is eventually forced to carry on the impersonation for the entire trial. The film serves a number useful purposes for lawyers:
Trial and Error goes wobbly in suggesting that the “noble” thing for defense counsel to do when she believes the client is guilty is to simply throw the case so the defendant gets his due punishment. Asking defense counsel to replace the function of the jury is a dangerous idea that does not further justice but simply encourages public backlash against the legitimate efforts of criminal defense lawyers to represent their clients. (May 1998) As in any attempt at faithful translation from book to screen, The Sweet Hereafter crams too much information into the film’s 112 minutes, often leaving the viewer confused. To fully appreciate the film, a viewer should either read the book first or watch the film a second time. That being said, The Sweet Hereafter is an emotional and haunting film with many of its images lingering in the mind long after the credits roll. The film explores the effects of a fatal school bus crash on a small rural community, and portrays the unsuccessful efforts of a lawyer to represent the families who have lost children in the accident. (The story in the novel was set in a small town in the Adirondacks, while the filmmakers chose western Canada as their locale.) The film flows (and sometimes leaps) back and forth between at least five different time frames. It shows the lawyer, played by Ian Holm, two decades earlier when he still had the affections of his former wife and of his baby daughter, now an adult drug addict. Life in the community before the bus accident is depicted along with disturbing imagery of the school bus’ journey on the day of the accident. The lawyer’s efforts at recruiting clients after the crash occupy significant screen time, and are inter-spersed with his conversation two years later with a family friend. In a Fresh Air radio interview, Banks explained that he wrote the book after interviewing residents of a small town in South Texas who lost their children in a school bus crash. Banks realized that two events tore the town apart: the crash and the litigation which followed. He set out to write a novel illustrating the American obsession with explaining inexplicable tragedies, drawing on his personal experience with the loss of a brother in a train accident three decades before. For Armenian screenwriter and director Egoyan, the reference point was his effort to come to terms with the genocide of Armenians a hundred years ago. For some of the families in The Sweet Hereafter the lawyer is an obstacle in their efforts to deal with their grief; he’s nothing more than an ambulance chaser. Holm masterfully portrays a personal injury attorney with real sales skills. In one scene, he literally crawls on his hands and knees to show empathy with a potential client’s feelings of helplessness. In the book the lawyer’s pursuit of the elusive bus crash case is presented as a catharsis for his rage against unseen enemies who have pulled his daughter into drug addiction. The film, by failing to establish any legal cause of action, suggests that the lawyer is motivated by a lucrative fee. Upon seeing the horrifying image of the bus breaking through lake ice, my lawyer mind thought, “Gee, if there had been an emergency exit on the roof of that bus, all those kids might have gotten out alive.” The film’s lawyer never gets that far. More than once, he admits that he has no idea what sort of negligence will be the basis for his suit. He says, “Someone died, so someone else has to pay.” If the film has a hero, it is Nicole (Sarah Polley), a crippled survivor of the crash. Her disability ends an incestuous relationship with her father and gives her the courage to single-handedly terminate the lawyer’s efforts to secure clients for a negligence case. She is also the narrator of one of Director Egoyan’s brilliant additions to film: the poem which tells the story of the Pied Piper, who lures all of the children away from a town, except one who, like Nicole, is lame. (Egoyan admits on the laserdisc narration that he added some of his own verses to the original poem.) In one of the film’s most profound moments, a child, soon to die in the accident, asks Nicole why the Piper (who was so persuasive he led all the children away from the town) could not convince the townspeople simply to pay him for his rat removal services. “He must have wanted to punish them,” she responds. That answer speaks volumes about our adversary system of tort litigation. (November 1997) The real surprise here is Francis Ford Coppola’s decision to direct the film and write the screenplay (with Grisham). When asked about his choice, Coppola noted that it was a big story with fascinating characters and no serial killers. (Do you suppose that’s how it was pitched in Hollywood?) It also seems he has made substantial recent investments in his winery, and as he admitted in interviews, he needed the money. Curiously, Coppola has also made a point of saying that The Rainmaker examines the notion of “selling out.” In one crucial scene, Coppola even has Damon depart from the Grisham novel to publicly accuse his opponent of “selling out.” Given the caliber of some of Coppola’s other films, one might suspect that life, in the making of this film, imitates art. Be that as it may, it struck me that Paramount Pictures got its money’s worth from Coppola. The Rainmaker is the best adaptation of a Grisham novel to date. Coppola’s skill is evident in the film, including his choices in background sound and music. One reason for the film’s success is its liberal use of humor. The novel was more comical than Grisham’s other works and Coppola has captured the humor in his adaptation. Danny DeVito’s portrayal of a short, ambulance chasing “para-lawyer” (his euphemism for a law school graduate who has not been admitted to the bar) turns out to be wonderfully funny. Viewing The Rainmaker in San Francisco left me with no doubt there were other lawyers in the audience. In one scene DeVito advises Damon to forget what he learned in law school and instead follow three simple rules: “Fight for your clients. Refrain from stealing their money. Try not to lie.” This is followed by Damon’s recitation of several lawyer jokes in narration, with a warning that lawyers should try to avoid becoming a lawyer joke themselves. The message in The Rainmaker, like The Devil’s Advocate, seems to be that the ultimate power of lawyering is corrupting. As Damon says in narration, “Each time you try a case, you step over the line. You do it enough times and you forget where the line is.” The solution suggested by the film is reminiscent of the scene early in A Man for All Seasons, where Sir Thomas More advises a young protege to abandon the corrupt business of the royal court (the law) and retire to a university to teach. Moore knows enough of the young man’s character to know he will be better off there. Apparently, Grisham and Coppola agree with that sentiment. (November 1997) of the life of Flynt, a pornographer who some think is more a poster boy for misogyny than for the First Amendment. Although the film accurately portrays certain events in Flynt’s life, some critics observe that the film’s attempts at realism are selective and carefully intended to seduce an audience into accepting Flynt as a hero. The film’s glorification of Flynt also extends to his lawyer, played by Edward Norton. (Norton was the altar-boy-defendant in Primal Fear.) Flynt actually had several lawyers over the years, but the film presents only one of them, which gives the impression of the lawyer as loyal and trusted counselor and advocate, a friend for life. Even Flynt’s celluloid lawyer quit at one point when Flynt’s outlandish antics threatened to undermine the lawyer’s efforts, and is brought back into the fold only when Flynt’s wife, Althea, successfully begged him to return to her husband’s side. One of the film’s biggest surprises was near the end. All the visual intensity of Larry Flynt’s hedonism, which probably seemed like life on another planet to most viewers, was followed by a realistic portrayal of oral argument before the United States Supreme Court. Director Milos Forman and producer Oliver Stone constructed a replica of the Supreme Court interior inside an old train station for the Supreme Court oral arguments portrayed in the film. The filmmakers also hired actors who resembled the Supreme Court Justices that actually heard Flynt’s case. For example, Justice Scalia (the actor) spoke with the same self-righteous wit as the real Scalia might have, or perhaps even as he did during the oral argument. Justice O’Connor (the actor) did not speak during the film, but her ever present scowl made for great theater. Although some viewers may have left the film with a greater appreciation for the First Amendment and free speech rights, the most significant element of the Flynt case was scarcely mentioned in the film. (After the Hustler case, an allegedly defamed public figure cannot circumvent the rigorous actual malice standard by bringing a claim using the lower burden of proof applied to intentional infliction of emotional distress.) Reviewing a transcript of the actual oral argument, one can see that only about half of the scene’s dialog attempts to track the lawyer’s argument. Screenwriters wrote the other fifty percent, apparently deciding that actual argument would not be sufficiently entertaining. (The oral argument in Hustler Magazine v. Falwell can be heard on the web site: http://oyez.at.nwu.edu/oyez.html. The oral argument has also just been released in the audio cassette series: May It Please the Court, The First Amendment, edited by Peter Irons (The New Press 1997).) (November 1997) There are plenty of funny scenes, if one is in the mood for lawyer caricature. A judge says to the lawyer, “One more word out of you, and I’ll hold you in contempt.” The lawyer, played by comic Jim Carey, replies, “I hold myself in contempt, your honor. Why should you be any different?” The rather predictable plot is sort of a cross between Regarding Henry and My Cousin Vinny. A lawyer too busy to care for his family is suddenly stricken with an affliction which cripples his ability to practice law in the manner to which he was accustomed, and he rediscovers the value of family bonds. In this case the affliction is an inability to lie. At the same time, a lawyer working under a considerable handicap nonetheless manages to win an important trial because he notices a small factual detail that everyone else had overlooked. The most interesting thing about Liar, Liar, is not what’s in it, but what was left out. This is best understood in the context of OJ, that paradigm shift that changed criminal law as we know it. The OJ influence is felt as soon as Carey is shown on the screen. One of the first persons he encounters while descending the court house steps is OJ prosecutor Christopher Darden, appearing in a blink-of-an-eye cameo. The film originally introduced the Carey character in a four minute scene where he made a closing argument to a jury in a criminal trial. Carey’s client, a rough looking type, is accused of robbing an elderly man at an ATM and stealing his wallet and his car. Carey explains his client’s actions as being first motivated by fear–he saw a reflection from the hologram on the old man’s ATM card and thought the old man had a gun–which was why he knocked the old man to the ground. Then, invoking the biblical parable of the Good Samaritan, Carey says his client borrowed the old man’s Lexus so he could find a telephone to summon aid and borrowed his wallet so he could identify the injured man to rescuers. Carey successfully transforms his robber-client into the heroic victim of an unfortunate misunderstanding. His sad tale continues with a similarly sympathetic, yet ridiculous explanation of his client’s bashing the face of a female police officer while resisting arrest. On the Signature Edition laser disk, which contains the deleted scene, the director explains that he cut the four minute jury summation because it made the first act of the ninety-seven-minute movie too long. While this may speak volumes about the mentality and attention span of the target audience for this film, it leaves unanswered the question as to whether bad taste may have also been a factor in this editing choice. Even though this scene did not make the final cut, it is a valuable illustration of the fact that criminal defense lawyers have fallen onto hard times since the days of Perry Mason. Criminal defense lawyers now have the lowest image in a profession of bottom feeders, and the bottom is nowhere in sight. (November 1997) The hotshot’s new boss, John Milton (Al Pacino), is an interesting devil with many good lines. When asked why he has chosen to do his Satanic work by working as a lawyer, he shouts, “because it is the ultimate backstage pass. It’s the new priesthood.” He claims that as the devil/lawyer, he owns what passes for the conscience of the 20th century, a time ruled by greed and amorality. And lawyers, with their enormous egos, he opines, are center stage, now a part of every evil endeavor on the planet. He has a point! But the devil is saying more than just that lawyers are a part of the greed. The message, reinforced by the film’s final plot twist, is that the ultimate backstage pass is ultimately corrupting. Even the hotshot, who throughout most of the movie appears to have a reasonably functional moral compass, turns out to have been engaging in a pattern of conduct that would subject him to disbarment were it discovered. The business of lawyering offers a wealth of immoral temptations that some lawyers seem unable to resist. The Devil’s Advocate should probably be a CLE (continuing legal education) requirement for lawyers, especially if lawyers could be compelled to watch the film with an audience of non-lawyers and sit in on their comments afterward. Watching the film in San Francisco I heard scattered nervous laughter and could feel the audience’s embarrassment at some of the scenes. The dialogue may have hit too close to home for the lawyers and law students watching the film. The film presents a rather distorted view of criminal defense lawyers. The Reeves character is portrayed harshly for applying his skill to gain the acquittal of a child molester he learns during the course of the trial is guilty. The Devil’s Advocate seems to suggest that a defense lawyer should take a dive when he learns his client is guilty. This sounds like an odd way to begin reforming the criminal justice system. The setting for most of the devil’s law firm’s evil endeavors is arms smuggling and international finance. This global wrong-doing is presented together with the firm’s one-lawyer criminal defense practice as if the same set of issues were involved. There is a vast difference between advocacy intended to prevent the state from depriving a person of liberty based on past actions versus advocacy which fosters an ongoing pattern of injury and economic exploitation. The danger of such mixing can be seen in Texas, where the rights of murderers are held in such poor regard that nearly all large and medium-sized law firms in the state refuse to take capital appeals in part out of fear that such an affiliation would hurt the rest of their business. If public tolerance of lawyers is this fragile, the solution lies in raising the conduct of the profession in general, not in lopping off some of the less politically acceptable public service work performed by lawyers. The profession needs to clean up its act, but if public anger over this translates into reduced advocacy for indigent criminal defendants (as it has already translated into reduced rights), we are all in trouble. |
