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Volume 28, Number 4 (2004) reprinted by permission of the Law Review READING/TEACHING LAWYER FILMS
James R. Elkins*
My father was a hard-working man who lived
within his means and wanted little. The one thing he did want was a new
car. I was six years old when my mother acquiesced, and dad bought a sleek
new green '51 Pontiac with an ember-colored Indian hood ornament. The year
of the new car-1951-was memorable: I started first grade; my father drove
the new Pontiac off a Mayfield, Kentucky car dealer's two-car-showroom-
floor, and we began to frequent the local drive-in theaters. (These were
the days before we had our first TV.) My favorite outings were the all-night
shows, the first movie beginning at dark, and then, movies till daybreak.1
To get through an entire night of movies required pillows and popcorn,
a cooler of RC colas, and sandwiches we brought from home so we could save
money by staying out of the snack bar.
[814] drive-in early to get a decent parking place.
Professor Philip Meyer, a film buff and law/film scholar, in one of his early film pedagogy articles, tells the reader: By avocation, I am a long-time film junkie and closet-screen writer. By vocation, I have worked with "criminals" in the prisoners' rights office of a public defender and taught creative writing at a state psychiatric facility for criminals. I have always been fascinated by the stories of criminals. Consequently, I selected films [for a "popular storytelling" course] with the theme of the outsiders' perspectives on law and society.10Meyer goes on to say that in teaching films, he sought meaningful discussions with his students; discussions he hoped might prove therapeutic.11 Meyer hints, in these passing remarks, at something we often forget - that watching films, like reading books, sailing, gardening, cooking, or painting, can become a part of one's life. For reasons that lie deep, beyond scrutiny, these other enterprises and the closeted desires that they express provide anchors for inspiration and survival. Sometimes these [815] anchors appear, not so thinly disguised, in the teaching of a lawyer-film
course.
[816] I did not, after watching many movies over
many years, with memorable and intense pleasure, take up the teaching of
lawyer films with the idea that I had a method or formula for talking about
films, or the lawyers portrayed in them; I was not at all sure what we
might learn about ourselves from lawyer films. Basically, teaching lawyer
films was, even as a confirmed filmgoer, pure pedagogical adventure.15
I had no idea, in teaching a law-film course, what was to be done, how
to do it, or how students might respond.
[817] and against this implicit curriculum, we need the kind of texts that make it possible to investigate the meaning question, to make it a serious part of one's education. After years of hesitation, I finally decided to teach a Lawyers and Film course and was immediately faced with a decision: What films do I teach? It was neither a practical nor an inviting task to review every lawyer film I had seen, and I had no desire to watch films that I would soon thereafter watch again with my students; I needed a different way to select the films. With the hope that remembering a film, its characters, and its story would provide a benchmark for the pedagogical value of the film,17 I rather quickly assembled a working list which included: A Few Good Men;18 Anatomy of a Murder,19 . . . And Justice for All,20A Time to Kill,21 'Breaker' Morant,22Class Action,23Kramer vs. Kramer,24My Cousin Vinny,25Nuts,26 Paris Trout,27Philadelphia,28Primal Fear,29Suspect,30The Accused,31The [818] Client,32 The
Good Mother,33 The
Incident,34 The
Last Wave,35 The
Music Box,36 The
Verdict,37 To
Kill a Mockingbird,38 and
True
Believer.39
[819] Mockingbird, they were far less likely to have seen Anatomy
of a Murder.
[820] defense.46 The Incident was not readily available for pre-screening, so I rather arbitrarily decided not to use it in the course. There were still other films - Philadelphia, The Client,47 and True Believer48 - which are of interest as lawyer films but are not sufficiently engrossing that I would take much pleasure in rewatching them with students. My Cousin Vinny is great fun, and a teachable film, and I considered including it because I wanted a comedy or two in the overall lineup. However, I decided not to include My Cousin Vinny because so many students have seen the film, many of them, more than once. I placed Suspect on the initial course list because, unlike many reviewers, I rather liked Cher's performance as the lawyer, Kathleen Riley. I used Suspect the first time I taught the course, and it evoked a lively discussion, but Kathleen Riley's involvement with a juror, Eddie Sanger (Dennis Quaid), who provides crucial assistance in Riley's efforts to defend her client, was such a flimsy plot development that I later dropped it from the course film list. I considered using The Accused but decided I had suffered enough the first time around and did not relish the thought of revisiting the painfully graphic depiction of gang-rape in the film. The Accused, for those venturesome enough to teach it, could be a worthwhile addition to a lawyer-film course.49 [821] The final line-up of films for the course distilled
down to the following: A Few Good Men, Anatomy of a Murder,
. . . And Justice for All, Class Action,50Music
Box, Paris Trout, Suspect, The Last Wave,
The
Verdict, and To Kill a Mockingbird.
[822] years, was: Adam's Rib (1949); Anatomy of a Murder (1959);59
. . . And Justice for All (1979); Class Action (1991); Paris
Trout (1991); The Castle (1999); The Devil's Advocate
(1997); The Last Wave (1977); The Music Box (1990); The
Sweet Hereafter (1997); The Verdict (1982); and To Kill a
Mockingbird (1962).
I worked out the course mechanics quite by
accident. For the several years I had considered teaching a film course
and was hesitant to do so, the basic reason was that I could not quite
figure out the logistics for the course. How is one to assign a film that
runs two hours and have any time, or energy, to discuss it? Or for that
matter, after watching a film, who has any desire to have the lights go
on, and then launch into an academic discussion of what has just been viewed?
And if the film being discussed is not to be viewed and discussed at the
same time, then when is the film to be viewed?
[823] course, the films selected, how the selection took place, the need to
find a way to talk about the films and the lawyers we find in the films,
the possibility that we might try to use the films to learn something about
ourselves, and finally, the obstacles we might face in trying to work with
films. With the infinite elasticity that accompanies such introductory
remarks, my commentary on that first meeting of the first offering of the
course - the class met once a week from 6 to 9 p.m. - left us just enough
time to watch the evening's film.61
With the evening growing late, facing a room of tired students, I decided
to hold off discussion of the film until the following week. The next week,
we discussed the film we watched the first evening and watched the film
assigned for that week. And it was by this rather fortuitous accident that
I established a routine, which I continue to use in teaching the film course.62
Law students, relentless in their pursuit of a practical education, expect everything - and I do mean everything - they study to be relevant to the work they expect to do as lawyers. They listen to our claims on behalf of jurisprudence, legal history, legal ethics, and the various courses we present to them with the goal of broadening and deepening their education, with skepticism, if not disdain. The study of law may have always been a practical enterprise, but it is now a practical endeavor so solidly and thoroughly critiqued that we cannot claim ignorance about the cost of our practicalism. We have seen sweeping changes in legal scholarship over the past quarter century - a "greening" of legal scholarship might be a way to describe it - but legal education is still infected by a practicalist virus.63 [824]
How, in the prosaic, practicalist world of
legal education and its "skills training," can we hope to convince a law
student that something worth knowing might be learned from watching lawyer
films?64 Compiling a
list of lawyer films and working out the course mechanics is one thing,
but of more fundamental importance is the question: Why teach these films?
In my case, teaching lawyer films provided another venue for taking-up
the professional socialization questions that had long influenced my teaching.65
In an effort to give my teaching (and my life as a teacher) meaning, I
have continued to seek out new texts (and courses within which to teach
them), texts and courses that encourage students to reflect on the array
of skills and sensibilities necessary for a meaningful life, and I've sought
out texts that might help us understand the pathologies that undermine
a meaningful life.
[825] A lawyer-film course may seem to be an odd,
out-of-the-way place to focus on skills of reflection and to pursue questions
about the meaning of life, and perhaps it is. While the lawyer films I
selected were designed as entertainment,67
a film, to bring credit to its director, further the career of the actors
who appear in it, and make a profit for its producers, must also present
viewers with a dramatic story that captures their attention. Basically,
what is sold to us as entertainment turns out to be not only entertainment,
but a dramatic story; we can put these dramatic lawyer stories to
use in legal education.
[826] Lawyer films present us with stories
that are simultaneously ordinary entertainment and stories worth studying
because they are craftily composed70
fictional worlds that suggest the possibility not only of an evening of
escape71 and entertainment,
but a way of getting us beyond what we already know (and the determined
ways we act on what we think we know). Films, the best of them, take us
up close to what can only be described as mystery.
Legal films tell stories made dramatic by invocation of our sense of justice and injustice.73 From the time of the Greek tragedies, we have found justice - justice betrayed and denied, justice sought and vindicated - as a central element of drama.74 [827] In lawyer films, we find lawyers pursuing justice
(or standing in the way of it) as they deal with clients, judges, other
lawyers, and people in the community. We identify, if we have any sense
of humanity and empathy, in a deep, fundamental way with those who have
suffered injustice and with those who work to see justice done. Our identification
with film characters is secured and deepened by the serious, real, debilitating
obstacles we (and the characters in the film) confront in our (their) quest
for justice. A quest made all the more perilous because we know that the
just do not always prevail; the quest for justice can break your heart.
An essential part of the meaning we give our lives as lawyers is the identity we "take-on" when we become lawyers and the struggle to make this "taken-on" identity fit with who we imagine ourselves to be. Law provides an arena in which the struggle with socially sanctioned identity is worked out. Lawyer films provide one of the "theaters of conflict" in which we try to understand "essential aspects of humanity and society.”75 We use lawyer films to help "articulate" and help us understand "the sprawling, ill-understood conflicts"76 in which we find ourselves enmeshed, the conflicts [828] that underlie the on-going quarrels we have with ourselves, our work, and our profession. The reason for teaching lawyer film is simply this: we need vivid, compelling representations of lawyers in action (lawyers seeking justice and lawyers blind to the injustice they bring about), to explore and re-imagine the ongoing, unfolding, relentless, sometimes heart-breaking, and fateful struggle to give professional life meaning. We need cinema lawyers (and fictional lawyers) as subjects and as stories, not to study who they are, but to learn more about who we are. Lawyers in film and in fiction become part of the rich storied world in which we try to imagine, think, act, and live a role, but a role in which we bring who we are as a person to the work we do, and a life in which the work we do gives the person we are a meaning it could not otherwise have. Simply put, lawyers in film teach us who we are and what we become when we do what some lawyers will do. And, of course, film lawyers teach us about perennial, ultimate questions: How is law enacted? What is the relationship-a most troubled and troubling one-between law and justice? How can an individual lawyer stand against the power of the "system"?77 How are we to understand and live with the reality of individual failure? How are we to live (and to act) in the face of law's failure? How does law (as a lawyer lives it and as an ideology) blind us to the larger reality in which it is embedded?78 To explore these questions we need stories that help us focus on the meaning dimension of professional life. If narrative is central to law, as it is now widely assumed to be, then lawyer and legal films may, as Professor Phil Meyer suggests, provide a "unique mechanism" for "critical reflection on the dynamics of legal [829] cultural storytelling.”79
In a film course, we create a new jurisprudence of lawyering and we do
it by studying legal minds and legal culture reflected in the stories being
told about lawyers and their culture, stories in which we find represented
the various identities (and pathologies) taken on by lawyers.
[830] attention now given to popular culture81 and the emerging scholarly focus on law and film,82 lawyer films are of particular interest to legal educators who focus on the "implicit curriculum" by which students prepare themselves for an imagined "real world." We turn to the "fictional world" of lawyers in film as a source of vivid images, memorable stories of conflict in which protagonists fail and triumph, and through these stories we begin the study of ourselves and our identity as lawyers. With lawyer films, we turn our attention to the implicit law school curriculum and engage in a pedagogy of self-learning, looking to see if we can find mirrored in the film what we most want and most fear in being a lawyer.83 [831]
We should expect our students to encounter
obstacles when they read lawyer films just as they encounter obstacles
in reading judicial opinions, novels, or poems.84
If we do not expect students to read films so they can write academic film
criticism or law review style commentary,85
then the student standing "before the law"86
must find a way - a new way - to work with lawyer films, a way which focuses
on the identity, role, and persona of the lawyers encountered in films.
I watch films for pleasure; indeed, I am taking this Lawyers and Film course simply because I love movies. I do not want to destroy that pleasure by subjecting every film I watch to heavy-duty interpretation. I watch lawyer films for fun, for entertainment. In this course, I would like to escape the relentless drumbeat of the traditional law school course, not re-encounter it in a new guise.For some viewers of lawyer films, the pleasure/entertainment aspect of movies simply cannot be overcome; the student never learns how to "read" [832] a lawyer film as a text that can prompt critical self-engagement and
self-study, as a text that might prompt reflection on lawyers and their
work.
[833] whom we expect better) constantly critique lawyer films for legal inaccuracies
and for their unrealistic depiction of the legal profession. Lawyer films,
in this view, are simply failed documentaries; it is the assumed role of
the insider to remind us how useless it is to seek meaning in a Hollywood
lawyer film when the film cannot even manage to get legal procedures right.
We might begin a study of lawyer films by asking
our students to remember their first efforts in reading cases. Legal education
begins with the most fundamental of enterprises-reading judicial opinions.
Students who do it well, succeed; others learn it well enough to survive,
and still others never really master the art of reading cases at all. In
watching lawyer films, the student is being asked to "read" a different
kind of text and like learning to read judicial opinions, it takes some
re-adjustment. Some students may find that they never become adept at reading
films.
[834] does this meaning come from? How can it be articulated? How can the
meaning(s) we derive from the film be made a part of our education? How
is it that some students of film get rather good at this exploration for
talk while others flounder?
I have often entertained the fantasy that the right text92 needs no teacher; it teaches itself.93 My students have tried to dissuade me of this notion,94 but I still hold to the idea that a text often contains internal markers (strong clues) as to how it can be read (indeed some texts are rather dictatorial in this regard). These markers or clues allow a knowledgeable, persistent reader to figure out how the text can be read and put to use.95 [835] It was the idea that texts teach themselves, both explicitly and implicitly, which I translated as: look first to the film.96 I want students to learn to make use of what they find when they "read" the film: memorable scenes, striking dialogue, courtroom speeches, recurring symbols, music (that sets a mood and heightens our attention),97 the camera shots that take the viewer into the courtroom,98 and more basic still, the always ever-present story. James Boyd White, a "law and humanities" scholar, says, "I read for an education.”99 Viewers of lawyer films might use White's statement to frame these questions: What kind of education does this film make possible? What kind of knowledge of lawyers, the legal profession, and the world does the film offer? And, what view of the world and lawyers and law does this film offer that is not so readily found in the world of law and lawyers presented to me as a student of law? We read lawyer films best when we think of them as stories. We have [836] been listening to stories, telling stories, and reading them from the
time we were children, so we must know something about stories. We undoubtedly
know more stories than we know about stories. Watching lawyer films involves
us in stories we know and stories we do not know, and they challenge the
knowledge we assume we have about stories100
and the deep structural prototypes that we use to organize them.101
The problem arises when we learn that the stories we know and what we know
about the stories is not so easily put to use.
[837] adherence to or deviance from his role becomes a situational antagonist
along with the the lawyers and the parties to the conflict.
A lone rider, sitting easily in the saddle of his dusty horse, travels across the plains toward a small, new town with muddy streets and lively saloons. He wears a tattered, wide-brimmed hat, a loose-hanging vest, a bandanna around his neck, and one gun rests naturally at his side in a smooth, well-worn holster. Behind him, the empty plains roll gently until they end abruptly in the rocks and forests that punctuate the sudden rise of towering mountain peaks.106The meaning embedded in these familiar settings and scenes - the courtroom scene in the lawyer film, the lone rider in the Western - "literally tells a story.”107 The courtroom setting tells us that disputants have taken their quarrel to the law, and that they are engaged in a serious conflict which they themselves cannot resolve. It is a conflict in which the harm was so great, the perceived unreasonableness of one of the parties so blatant, or an unacknowledged principle so significant, that one of the parties sought recognition of his or her claimed right and the justice in [838] asserting it by resorting to the legal system. Something important to someone is at stake, something serious and valuable. There is, in the political rhetoric of the day, loose talk about "frivolous lawsuits," but that is not what we find presented in the law suits and the courtroom scenes in lawyer films. If we could live free of conflict, tension,
and the fault-lines that underlie human existence, we would have less affinity
for stories than we do. And without stories, the film industry would go
the way of the small family farmer. Conflict is as central to drama, as
drama is to story, and as story is to life. Our lives are connected to
lawyer films by way of story, drama, and conflict.
[839] both in the film and beyond the film, in the world we inhabit. To be able to participate vicariously in stories about characters who play out possible lives, confront possible situations, who have moral conflicts and who must make choices, is to learn such truths about life, not through personal experience but through a kind of super experience-that is, an experience that one might never be able to have oneself, except through the story.110Robert Scholes, in Textual Power, argues that "laying bare" the basic oppositions which underlie conflict exposes "the flow of value and power" and is "a basic part of the critic's repertory.”111 Consequently, "[i]n getting from the said and read to the unsaid and interpreted . . . [t]he first things to look for are repetitions and oppositions that emerge at the obvious or manifest level of the text.”112 The reading of a film takes place as we work with the oppositions we find in the film. [We] must ask what these oppositions "represent," . . . what they "symbolize." This aspect of interpretation involves connecting the singular oppositions of the text to the generalized oppositions that structure our cultural systems of values [] . . . . Considered in this light, interpretation is not a pure skill but a discipline deeply dependent upon knowledge. It is not so much a matter of generating meanings out of a text as it is a matter of making connections between a particular verbal text and a larger cultural text, which is the matrix or master code that the literary text both depends upon and modifies. In order to teach the interpretation of a literary text, we must be prepared to teach the cultural text as well.113Scholes posits not only a movement from reading to interpretation, but from interpretation to criticism. Criticism, according to Scholes, entails [840] "the critic's recognition of her or his own values.”114 We use binary oppositions to read a text, to think critically about it, to deconstruct it;115 we use the oppositions to recognize our own ideals, and our own limits. In reading the film's critical oppositions, we put the film to use. Reading a film requires students to identify
with the film's characters, to become engrossed in the life of a film character
who has burdens to bear, threats to confront, and obstacles to overcome116
-
a character asked to learn something about himself and his world.117
In seeing the film character learn, we, in turn, learn something about
ourselves.
[841] turn out well, and we want the character (who becomes a peson to us) to get what he or she desires because of what we have learned about them. We want for film characters what we want for ourselves.119 Entertained by plot, we are educated by the film's characters.120 James Boyd White notes that "the activity of law is inherently idealizing.”121 There are many ways to idealize and many ways to imagine the life we live. In film stories, we see how an imagined life actually works, and in particular, a life that we can think of as heroic. It is in a limited subset of images of lawyer and of self, in the deep imagining and fantasizing of legal work, that we find the myth that sustains us.122 [842] We need not expect law students to admit that
they have set out to be heroes or expect them to readily see the heroic
in their quest to survive the rites of passage in becoming a lawyer.123
Yet, it would be a mistake to underestimate the effect that the lawyer-hero
image - Clarence Darrow, Earl Rogers, F. Lee Bailey, Percy Foreman, Edward
Bennett Williams, Louis Nizer, Gloria Allrud, Gerry Spence, and the lawyer
heroes we find in fiction and film - have on our efforts to imagine ourselves
as lawyers. Our lawyer heroes (arrogant egotists and humble alike) tell
us something we want and need to hear -that a lawyer's work is at
the heart of things, that legal work has meaning. To live with the fantasy
that life has social and cultural significance is to posit an ideal and
to set out upon a worthy quest. The stories of lawyer heroes and their
quests is one way that myth (and heroic consciousness) is made "real."
[843] The stories of our most authentic lawyers -
we call them heroes - contain a crucial insight into the problem of truth
confronted by the amorality and immorality of power: the insight that we
may lose and falter, but, in doing so, we live a life of hope. For example,
in To Kill a Mockingbird, Atticus tells his son, Jem, after the
jury conviction of Tom Robinson, that he is tired, but not bitter.
[844] If there is a predominant recurring theme in legal film scholarship, it emerges from the misguided notion that lawyer films fail both the legal audience and the larger public because they portray lawyers negatively129 - constantly focusing on unethical lawyers - and they are simply not realistic.130 The corollary of this view is that lawyer films are little more [845]
than mass entertainment, an entertainment that is dangerous for both
the profession and the public.131
[846] films realistically portray lawyers.
The discourse of film is based on many things, but it is most decidedly not based on Hollywood's deep understanding of law and lawyers. In fact, Hollywood knows very little about lawyers or lawyering. That's not surprising: the business of Hollywood is film, not law (or medicine or history or science fiction). All that Hollywood needs to know about law, in order to go about its business, is how law can fit into the conventions that make up the world of movies. Those conventions force the discourse of film to filter most of "real" law out, leaving only the most cinematically interesting parts. Those parts include the drama of the trial, the compelling image of the lawyer-hero, and the equally compelling image of the lawyer-devil.134While I do not see much future in trying to talk about the "discourse of the film," Rapoport is right to imply that we need the ability to bracket our concern for "real law" (whatever that might be). Accordingly, we can study the drama, the compelling image, the hero, and the devil (a rather interesting name for the villain the hero must confront and defeat to return to his/her rightful place in society).135 The lawyer film, found deficient when viewed from real law/real world critique, might, as Suzanne Shale suggests, be viewed from a different perspective.136 She argues that "some movies represent far more of the nature of law than we acknowledge.”137 The problem for the realist critique [847] of lawyer films is that Hollywood represents law as "an epic form.”138 Shale goes on to outline a way of thinking about film-making and film narrative that might help us sort through the conventional indictment of lawyer films as being legally deficient: First, we must consider the narrative conventions that structure the paradigmatic Hollywood movie, shaping it into a tale of heroic odyssey. Second, we must look at the way in which a screenwriter creates a story from the life-stuff of events. In asking how a story emerges, I am asking how the writer creates a meaningful, thematic narrative rather than an inconsequential, flat recitation of occurrences. Third, we need to turn our minds to the problem of plot - that is, how the meaningful story is presented to the audience as a series of discrete events. Having found a meaningful story in the life events, the screenwriter must still establish a satisfying way of telling it.139Shale has encoded in this brief commentary an agenda for the student of lawyer films:
Finally, I want to turn to the notion that
lawyer films portray lawyers in a negative light and in doing so are anti-lawyer.149
Do the legal film critics who focus on the strikingly negative images of
lawyers in film have grounds for concern, if it is likely, as a fellow
amateur film critic noted, that you can find screen lawyers selling their
grandmother in order to get a conviction? My argument is simple: the negative
portrayal of lawyers in films presents no great danger to the legal profession
because we misread the meaning of the portrayals.
[849] ultimately, i think that most popular legal films do not simply offer us the "sell your grandmother" view. rather, in an attempt to acknowledge the populist conceptions of corruption etc., and somehow defuse and demythologize [law] . . . [read "damage control"]: they start with grandmother sales as the negative against which a positive alternative of the triumph of true justice is achieved by following the changes undergone by a romantic and ideal character who is usually nothing short of pure ethix on legs [in the flesh]. in such dramas the Law, more often than not, is constructed as the ultimate instrument for true change and the best place to make a real difference despite corruption. . . .Although deX is not a lawyer, he knows something about films and he seems particularly perceptive about lawyer films. Yet, what deX knows about lawyer films is missing from the conventional views of legal film critics.151 In the conventional criticism of lawyer films, legal critics have begun to sound like doctors who talk about lawyers but using a doctors-on-lawyers "script." The problems that confront medical doctors are quite real, but pressed as they are for quick-fix solutions, we can predict what most doctors are going to say about medical malpractice and insurance before they say it. We have developed "scripts" of a similar sort in the legal community. One of our "scripts" reads: the public does not think so highly [850] of lawyers (and we are repeatedly reminded of this); as members of the legal profession we worry about this public perception; we fear that the public perception of lawyers has a negative impact on our work and our profession (and the "rule of law"); and finally, we fear that the negative representations of lawyers in film and fiction fuel the negative public perception of lawyers. The problem with this "script" is that it fails to take into account the historical ambivalence of the public about lawyers,152 and it offers no explanation as to how the public's negative perception of lawyers might affect the relationship of lawyers with clients, or how the public perception of lawyers impacts the legal profession more generally. We do not know how the negative public perception works, and we do not know how to evaluate the meaning of the perceived perception (whatever it may happen to be).153 [851] [footnotes only] [852] In contrast to the legalist/realist film critics
- shall we call them "policing critics" - who warn us about the negative
portrayal of lawyers in film, there are few lawyer films without lawyer
protagonists with whom the viewer can be expected to identify. Whatever
the public may think of lawyers, however they derive and make use of their
knowledge of lawyers from popular culture, and whatever the polls may show
about the disdain of lawyers, this negative public sentiment cannot be
blamed on Hollywood and its films. If we are to blame Hollywood for the
woes of the legal profession, then how do we explain the presence of so
many heroes in lawyer films?154 We
might assume that the public response to lawyer heroes and lawyer villains
is sufficiently complex, multi-sourced, and historically grounded, that
we simply do not, at present, know what elements and aspects of the current
negative sentiment can be traced to the negative portrayals of lawyers
in film.
[853] the warning - What do lawyers do? Some ask, adjusting their glasses,
"What line?" "Do you see a line? I don't see a line. You call that a line?
It looks more like a scratch of some kind to me. I don't see any line that
I need to be concerned about. The line mentioned in the warning is not
this line." And so the lawyer talks, and talks, and talks, erasing the
line, talking sophistry. Lawyers learn to walk across the line as if it
were not there, acting as if the warning was written in Farsi. Indeed,
walking across the line, even as the line is pointed out to them, they
proclaim innocence. Every lawyer thinks of himself as Billy Budd, the innocent.
[854] pushed, shoved, and dragged by events, by clients, and by their own ineptness, to cross these lines. (We want to say to them, "Don't you know you'll have to pay a price for this?") What are we to make of crossing lines (mistakenly,
negligently, willfully, or wantonly), and the effort it takes to get one's
life and legal practice back in order after having found oneself on the
wrong side of the line? The thing that makes lawyer films interesting,
valuable, and instructive-makes them worth studying, worth trying to understand-is
that the film viewer knows, and is intended to know, what the lawyer character
in the film seems not to know: that there are lines, that they are being
crossed, and that there will be a price to pay for the crossing. We expect
lawyer villains in film to be punished, and the pleasure in having this
happen is more palpable, real, and psychologically satisfying when we know
that lawyers so thoroughly shield themselves from sanction and punishment
in the real world. (The film lawyer, far more than the real world lawyer,
risks punishment by serving the interests of those who have the wherewithal
to pay good money for bad behavior.) If we see justice done in lawyer films,
it is all the more satisfying if the justice compensates for the injustice
we know to exist in ordinary life. As much as we may desire to see justice
done, we do not expect in lawyer films to see every bad act punished, every
violation of the profession's rules sanctioned, or good fully rewarded.
[855] who crosses the line).156
It is this ability of the film-viewer to see the line, to read the Do
Not Cross sign, and to see the lawyer fail to heed (in film and in
life) the warning, that makes for the negative image of lawyers. Film-viewers
and people-on-the-street want to ask: Who gives the lawyer the god-almighty
power to ignore the lines we know to have been imposed on us (ironically
by law and lawyers no less)? Is there, we might wonder, something in the
character, the training, and the selection of those who become lawyers
that make them unable to see what a legal film-viewer/layperson can see
so readily? And how could Hollywood's lawyer films portray this line-crossing
in such a deliberate and persistent fashion if lawyers in the non-cinema
world - if there can be such a place - do not engage in the kind of line-crossing
so vividly dramatized in lawyer films?157
[856] intelligent trained professionals can be so blind? And by what measure of magic and character do film-viewers gain such acute vision that they know and see what the lawyer does not? And what do we expect to find in the work of legal film critics who assume the virtue of lawyers as professionals, and point a long-boney finger at each and every violation of a professional norm and ethical rule while naming the number of the rule violated?159 How does the legal commentator divert our attention from the justice we find in lawyer films, to a justice known only by lawyers and their self-prescribed ethics? To move from abstraction to a specific film,
we might consider The Devil's Advocate (1997), a film unlikely to
find favor with legal film critics. The lawyer protagonist in the film,
Kevin Lomax (Keanu Reeves) is found by legal commentators to be both ludicrous
and still a threat to the legal profession. These are the film critics
who cannot bear the thought that a lawyer might be associated with the
work of the Devil. Kevin Lomax's threat to right thinking about the legal
profession160 is made
more serious by the fact that he is young, handsome, married to a beautiful
wife, and awfully good at his work. Moreover, Kevin Lomax seems to have
a special talent, a way of understanding jurors that makes it possible
for him to win what would appear to be unwinnable cases. Kevin Lomax is
a lawyer to be envied, so talented that we wonder just what he might be
capable of achieving.161
We then learn - as if we did not know already - that Kevin Lomax can be
lured, by the promise of his talent, the great reach of his ambition, and
the ability of others to see his unfulfilled needs, to cross the line (indeed,
several lines) for which we know he must pay a price.
[857] nature of his work, has begun to represent clients that are basically
no-good, (clients who are exemplars of evil, for those of us who still
believe in the reality of evil). Further, he allows his great talent to
be used on behalf of these questionable clients. Lawyers like Kevin Lomax
deal with real badness (confusion, poor judgment, weakness of character,
as well as social and culturally sanctioned excess); they see, talk, touch,
and litigate this badness; in getting up close to it and the fallen world
of their clients they are in turn put in danger by it. Should we be surprised
that lawyers like Kevin Lomax cross the line, that they metaphorically
take sides with the Devil?
[858] lawyer and the Devil make any sense, any experienced (real world) sense,
any cinematic sense? We know it has made for some telling moments in The
Devil's Advocate (and did so in a film which at times was so over-the-top,
excessive, and downright weird that it sometimes threatened the coherence
of the film). Kevin Lomax's compact with the Devil made for high drama,
and at times compelling drama, even though it may not have resulted in
a great film. Is not the compact with the Devil an imaginative context
for revisiting the devilish play of good and evil, the good and evil we
find in the work of zealous lawyers? Where do the good lawyering talents
of Kevin Lomax (and real-world lawyers) end and the work of the Devil begin?
Lawyer films are not, in their negative portrayals, anti-lawyer, but an opportunity to participate vicariously in the various dramas that upend our lives and render our communities less inhabitable by the day. We would like best to have the great drama of good versus evil finally settled, with evil banished, and the good crowned ultimate victor. Since we can hardly imagine such an outcome, and we know we do not have the skill and power [859] to bring about such an outcome, we can expect our greatest dramas-legal
and tragic-to be repeatedly restaged in popular culture, and in literature,
as they are in daily life. We do not, and the lawyers in film do not, finally
prevail over evil by acting virtuously; we enact virtue for its own good,
trusting that we might survive to fight another day. To have and understand
heroes, film lawyer heroes and everyday heroes, we must know the reality
of failure and of tragedy. The lawyers' failure that we see in lawyer films
is an inevitable truth, a truth both entertaining and educational.
[860] firm meeting, in some lawyer's office, or in a courtroom; routine or
rare, it still seems quite extraordinary. It is this poetry of power-not
having it but speaking to it, fearful of it but confronting it, getting
close to the thing we do not allow to debilitate us-that makes the work
of lawyers so intriguing, so compelling, and such a perfect match for Hollywood
films.
[861] notorious truism - and in doing so, leave destruction in their path.
Those who are not destroyed by power and the powerful become our heroes.
In law school, we always know where meaning lies - the law is meaning - and sometimes students are lulled into believing that it is law and only law that they want or need to study. For law students, the first task, and sometimes the last, is to know what lawyers know - the law and how to use it. Oddly enough, there is quite early on in the life of the law student, a suspicion and a knowledge that law school cannot be the real thing, if by real we mean something which stands alone, an enterprise to be valued in and of itself. The student comes to grips with what is real (demanding, overwhelming, and sometimes overpowering) by seeing legal education, [862] not as the real thing, but as a means to something real.170
Whether the student is actually benefited or harmed by this way of dealing
with the reality of law school can best be resolved by looking at storied
accounts of how the student deals with law school.
We might, with these cursory remarks on meaning and the law student in mind, turn now to the idea of meaning and lawyer films. If we think of a lawyer film as a story to be put to use as a part of one's education, then we might think of the film as a bridge to the future, as well as a way to think about where we have come from. A lawyer film offers a glance at where we are going, and where we have been; it connects the law student viewer [863] to an imagined (feared) future, as it reminds us of an imagined (feared)
past.
Popular culture is not only entertainment, not only the media. It covers 98-99 percent of American society today in one way or another. It is the life-scene, the life-action, the way of existence of nearly all Americans, and it creates the culture in which all must live, even the few among us who claim to hate and be unaffected by it. Popular culture is the way we live while we're awake, how we sleep and what we dream.172Lawyer films, with their prominence in popular culture, require study, questioning, and exploration. The academics in popular culture and film studies tell us that films require interpretation. This means that a film, like any text, can be read, and it can be read for its depths. The basic idea of interpretation is simply this: for every surface, there is a depth. Some surfaces may be more suggestive of their depths than others, while some surfaces may betray depths so shallow that they waste our time in trying to read them. And for some surfaces, we may well find ourselves staring into depths that go on . . . and on . . . beyond our limited knowledge, perhaps even beyond what we can readily imagine. We have in lawyer films the shallowness of an evening's entertainment, the depths of our desires, and the serious possibility of education. Of course, the academic who speaks to us from popular culture and film studies, who claims that films require interpretation, may mean we need "theory" to read a film. Having once been enamored with theory, it requires no gut-wrenching confession to admit that we may needfar less theory than academics would have us try to digest. My ambivalence about film theory can be put this way: theory, whether psychoanalytic, feminist, [864] structuralist, or Marxist, sets up a framework, a structure, a language,
and a method of analysis, and in doing so becomes the engine that drives
the critique. There are two obvious problems with film theory. First, the
text interpreted is "made" or "found" to fit the theory, thus endangering
the life, vitality, and meaning of the text. The theory competes with the
text for our attention, and often, overwhelms the text being interpreted.
The object becomes theory, the text an incident or an occasion for elaborating
the theory. The more elaborate the theory, the more endangered the text.
Second, while we assume that it is the theory that makes the revelation
of meaning possible (and it sometimes does exactly that), we may also find
that meaning resists capture by our interpretative theory nets.173
[865] film criticism is "to increase the possibilities of meaning available
in the experiences of viewing and thinking about movies.”175
Bywater
and Sobchack describe a "humanist approach" to reading films of the sort
we might undertake in legal education that differs from an academic investigation
of film "as an aesthetic, social, and historical phenomenon.”176
The work of the humanist film-reader is straight-forward (even when it
is not simple): "[T]he humanist approach to film attempts to make sense
of the individual's emotional and intellectual experience of a film (it
always begins with that personal encounter with the work), to draw conclusions
about the value of that experience, and then to communicate that value
to others.”177 The question
that lies at the heart of the humanistic approach is this: "What can movies
tell us about the human condition?"178
This question spawns a host of others dealing with how weare to get the
"ideas . . . hidden beneath the surface of a film.”179
(1) that movies are more than simple entertainment and deserve a backward glance, some extra thought, some writing about, in order for us to understand the experience of filmgoing more thoroughly and (2) that since movies are about human experiences, any human who has some interest in intellectual matters in general can write intelligently about the experience of the movies.180They conclude that "[f]or the humanist, critical inquiry, intellectual curiosity, and logical analysis of all aspects of experience are habitual responses to life" and it is this habitual response that the humanist critic brings to the "the film experience" where the critic tries "to discern . . . the mark of human excellence.”181 The stories most inviting to a humanist inquiry are the stories and fictions that "provide a place or point in time [866] where the viewer is invited to make comparisons between the story on the screen and the world in which the viewer exists.”182 As I complete work on this essay, I receive
an email message from a reporter for National Jurist, Christine
Willard, and she wants to know whether I might be willing to talk with
her about my Lawyers and Film course. She is writing an article,
she says, about unusual law school courses. I decided to talk with Ms.
Willard, but did so in the misguided belief that I might be able to persuade
her that Lawyers and Film should not be treated as an unusual
course but as an essential one.183
Indeed, I would argue that in teaching lawyer films my purpose is rather
straight-forward and consistent with the kind of professional socialization
and implicit curriculum courses I have been teaching for twenty-five years.
Yet, for some reason, the idea of teaching films in a law school sounds
unusual.
[867] Legal films suggest a subject matter, if not a genre. But there does seem to be a consensus, at least among legal film critics, that trial or courtroom drama films are likely candidates for genre status,184 although the genre has not as yet been widely recognized in film criticism literature. We do not as yet have in place a scholarly definition of the legal film genre and I do not plan to offer one here since my focus has not been legal films, but a more limited array of lawyer films, which can themselves be viewed from a genre perspective.185 In my view, it is lawyer films, rather than the [868] courtroom drama genre films, that is of greater value to law students.186
Law schools, as one of their several missions, prepare students for litigation,
placing the central mission of law school in competition with the meager
technical offerings of courtroom genre films. We may be offering a first
level education as a trial lawyer, but law schools do virtually nothing
to address the problem of how one is to go about living with the law.
of a particular client/case. The appearance of the client moves the story character from the opening state of affairs (settled or in disarray) and threatens the present order (a threat of a still deeper fall or a hastening of the decline).
To translate the "implicit curriculum" into
a set of explicit, practical concerns that might provide guidance for our
work in a lawyers film course, I propose the following questions for those
who ask: What is this Lawyers and Film course all about? What are
we to do with these lawyer films? What is it that you expect us to learn?
[872] lawyers?192
[873] possible?195
[874] presented (encoded) in lawyer films? How does film differ from other forms of representation as a medium of instruction and source of cultural information? What elements of film (e.g., story-telling, narrative, drama, mythology, visual presentation, ideological critique) are of particular interest to lawyers? Do students of law (and lawyers) confront particular problems in working with the images of lawyers in film? Can we work with lawyer films in a serious, critical, reflective way without undertaking a study of the various "schools" of film theory?199 And, can we, by watching [875] films, discussing them, and arguing about them, build a strategy for
reading films from the ground up?200
[876] I have never managed to teach a "Jurisprudence
and Film" course, but the decision to drop 'Breaker' Morant (Pact
Prod. 1980) from the Lawyer and Film course film list set me to
thinking about "jurisprudence" films. My working list for the jurisprudence
film course now includes: A Cry in the Dark (Warner Bros. 1988);
A
Dry White Season (Sundance Prod. 1989); A Man for All Seasons
(Open Road 1966); Amistad (Dreamworks SKG 1997); Brubaker
(Twentieth Century Fox 1980); Cool Hand Luke (Warner Bros. 1967);
Dead
Man Walking (PolyGram Filmed Entm't. 1995); Dirty Pictures (Metro-Goldwyn-Mayer
2000); Falling Down (Warner Bros. 1993); Ghosts of Mississippi
(Columbia Pictures Corp. 1996); Incident at Oglala: The Leonard Peltier
Story (Spanish Fork Motion Pictures 1992); Inherit the Wind (Comitas
Prod. Inc. 1960); In the Name of the Father (Universal Pictures
1994); I Want to Live! (Figaro Films 1958);
JFK (Warner Bros.
1991); Judgment at Nuremberg (United Artists 1961); Mad Max
(Mad Max Films 1979); Mad Max Beyond Thunderdome (Kennedy Miller
Prod. 1985); Mad Max 2: The Road Warrior (Kennedy Miller Prod. 1981);
Missing (Universal Pictures 1982); Natural Born Killers (Trimark
Pictures 1994); Rashomon (Daiei Studios 1950); Reversal of Fortune
(Warner Studios 1991); Snow Falling on Cedars (Universal Pictures
2000); Star Chamber (Twentieth Century Fox 1983); Straight Time
(Warner Bros. 1978); The Advocate (Miramax Home Entm't 1994); The
Birdman of Alcatraz (Norma 1962);
The Green Mile (Castle Rock
Entm't 1999); The Insider (Touchstone Pictures 1999); The Man
Who Shot Liberty Valence (Paramount Pictures 1962); The Ox-Bow Incident
(Twentieth Century Fox 1943); The Paper Chase (Twentieth Century
Fox 1973); The People vs. Larry Flynt (Columbia Pictures Corp. 1996);
The Shawshank Redemption (Columbia Pictures Corp. 1994); The
Thin Blue Line (American Playhouse 1988);
The Winslow Boy (Winslow
Partners Ltd. 1999); Twelve Angry Men (Orion-Nova Prod. 1957); and
Z (Valoria Films 1969).
[877] Haltom, Laws of God, Laws of Man: Power, Authority, and Influence
in Cool Hand Luke, 22 LEGAL STUD.
F. 233 (1998); Roberta M. Harding, Celluloid Death: Cinematic Depictions
of Capital Punishment, 30 U.S.F. L. REV. 1167
(1996); Carole Shapiro, Do or Die: Does Dead Man Walking Run?,
30 U.S.F. L. REV. 1143 (1996).
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