Friday, September 28, 2012

Best Legal Dramas No 1: Anatomy of a Murder

More than 50 years after its release, Otto Preminger's Anatomy of a Murder (1959) still reigns as cinema's most gripping and realistic courtroom drama.  (Click here for the movie trailer which lasts nearly 5 minutes.)

Based on the 1958 novel by Michigan Supreme Court Judge Robert Traver, which in turn was based on a real-life murder in Michigan's upper peninsula, it is a story of rape, sex, murder, insanity and . . . panties.  Anatomy of a Murder was so direct in its treatment of sex and rape that Chicago Mayor Richard Daley banned the movie from being shown in Chicago theaters until Preminger went to court and had the ban overturned.

Even today, the movie remains a frank treatment of rape, lust, sex and violence.  But the movie also gets the law right.  The objections, the rulings, the instructions to the jury - they all ring true.   The movie stands as a testament to the fact that writers can get the law right and not reduce the dramatic tension or compromise the plot.

Click here for a great YouTube clip on three reasons why Anatomy of a Murder remains a great movie.

Jimmy Stewart plays former prosecutor, now defense lawyer, hired to represent a soldier (Ben Gazara) accused of murdering his wife's rapist.  After Stewart takes time to explain the defense of irresistible impulse, and giving the soldier time to consider it, the soldier's story fits neatly into the available defense.

The movie is rare in that the prosecution is not portrayed as evil. George C. Scott plays the talented prosecutor who is effective in presenting his case and gives what Stewart's character calls the "best closing argument I've ever seen."  He makes only one mistake - one which many lawyers make.  He asks a question he doesn't know the answer to.  And it bites him and his case.

At the center of the trial are the wife's panties.  (Click here for clip as the lawyers discuss what term to use for the undergarment) And the court's handling of the subject is a classic of both cinema and a lesson for courtrooms.  The judge turns to the jury and explains that a word will be used.  He says "Panties" and the jury titters.  The judge instructs the jury to get all their laughter out of the way because from that point forward, the term was to be used as an important matter of evidence and was to be taken seriously by the jury.

 The wife (played by Lee Remick) must answer about her panties.  Did she lose them?  Did she wear them? Did she go out to bars not wearing them?  Even today, it is an uncomfortable examination, culminating in the judged admonition to the prosecutor to "get off the panties."  It all leads to the stunning truth, or maybe the truth, about the wife's relationship to the murdered man - the man she said raped her

Click here for a clip of George C. Scott's cross exam of the wife.  

The ending of the movie, as so often happens in real life, is ambiguous.  The jury has decided the case, but maybe not the truth, and certainly not the whole truth.  There are hints about what wasn't disclosed in court, but no clear cut answers.

The only absolute truth comes the day after the trial concludes.  Jimmy Stewart and his buddy (character actor Arthur O'Connell) show up at the soldier's trailer to collect the lawyer's fee.   The trailer is there, but Gazarra and Remick are gone.  Amid the broken whiskey bottles, Stewart find a note explaining that they left because they were "seized with an irresistible impulse."

So in the end, maybe that is what makes this the most accurate of all legal dramas.  The lawyer worked hard, got a great result, but in the end got stiffed on his bill by an ungrateful client.

Note: Anatomy of a Murder is also known for its classic opening sequence and its jazz soundtrack by Duke Ellington, who also has a small dramatic role in the movie. Click here for the opening title sequence featuring the music of Duke Ellington.

Thursday, September 27, 2012

Best Legal Drama: No. 2 To Kill A Mockingbird

Harper Lee's To Kill a Mockingbird (1960) and the movie version (1962) staring Gregory Peck are  classics in every respect. Click here for the movie trailer.

Harper Lee  captured the people and times of a depression-era small Alabama town - and maybe of America.  But she also got the law right.

The daughter of a small town Alabama lawyer, Harper Lee spent many afternoons (sometimes accompanied by childhood friend Truman Capote) in court watching her father and the other lawyers in the area practice their profession.  And much of what she saw made its way into both the book and movie.

The well-known story revolves around the trial of Tom Robinson, a black man accused of raping a white woman.  Against a wave of public sentiment and scorn, Atticus must stand for what he believes is right. He teaches lessons to his children who face name-calling and torment at school because of their father's defense of a black man.

Atticus puts forth a well-crafted defense for Tom Robinson, impassioned without being shrill; reasoned without being condescending.  Atticus' cross examination of Mayella Ewell, the purported victim, is a lesson in the delicate balance used in the cross of a victim - challenging her story without alienating the jury. (Click here for movie clip of the cross-exam of Mayella). His cross of Mayella's father, Bob Ewell, is pointed. His cross of the Sheriff is respectful, but points out the shortcomings in the investigation.  And Atticus' closing, though he knows it is futile, is a passionate call for justice.

But the scene which still gives me chills is when Atticus walks from the Courtroom after the case has concluded.  In the Colored Section - the balcony of the old courthouse - the black pastor turns to Scout, who is sitting at his feet.  His rich baritone voice carries the immeasurable respect earned from Atticus' fight for equal justice in an unjust world:

"Miss Jean Louise, stand up.  Your father's passing."

Click here for the movie clip.

It is writing at its best.  Moving making at its best.  It is when fiction contains more truth than non-fiction. 


Wednesday, September 26, 2012

Best Legal Drama No. 3: My Cousin Vinny

My Cousin Vinny?  The loudmouth New Yorker trapped in rural Alabama comedy?  The one with "two youts," slow-cooked grits and a red velvet suit?  The one with the Karate Kid as an accused murderer and Herman Munster is the judge? That My Cousin Vinny?


Start with the acting. Joe Pesci's performance as Vinny was perfect. Marisa Tomei won the Best Supporting Actress Award for her performance as Vinny's fiance Mona Lisa Vito. Character actor Lane Smith was letter perfect as the down-home prosecutor Jim Trotter III, and Fred Gwynn gave a wonderful farewell performance as Judge Chamberlain Haller.  Click here for the original movie trailer.

But from a legal perspective, the magic of this movie is that from start to finish it got the law right.

Compare Vinny's cross-examinations with the one in A Few Good Men.  As opposed to standing nose-to-nose and yelling "I want the truth," Vinny did what real lawyers do.   Vinny pokes small holes in the testimony of prosecution witnesses without alienating them or the jury. He smiles when needed, feigns ignorance to advance his questions, and pushes when he has to. He takes the steps that accumulate into reasonable doubt.

Example 1:    The ability of an eye witness to perceive events is always fair game.  Vinny delicately cross examines a nice older woman who has testified that she saw the defendant's car from across the street. Vinny gets her admission that she wasn't wearing her glasses.  This is followed by a demonstration in which the older woman is drawn to admit that her vision isn't what she thought it was, and that maybe she was mistaken. 

Example 2:  The three great weaknesses of eye witness testimony are time, speed and distance.  Vinny cross-examines the good ol' boy who saw the suspect car arrive just before fixing his breakfast, then saw the car leave five minutes later as he was sitting down to eat.  Vinny gets the witness to admit that it would take 20 minutes to cook grits, thereby disrupting the timeline of the prosecution's case.  Click here to watch the cross examination which begins at the 11:00 mark (including the classic "two youts" comment).

Example 3:  The opposing side's expert is always well-prepared and eliciting anything to help your case is difficult.  Vinny makes an objection that the expert was not properly disclosed. When the objection is overruled and the prosecution's witness testifies, Vinny does a credible job of drawing small holes in the assumptions the witness makes, assumptions that add to the piles of possible doubts. He then recalls the prosecution's own expert in the defense case to confirm the testimony of Vinny's own expert - his fiance.

Example 4:  The gem of the movie is the treatment of Ms. Vito, Vinny's  shapely Brooklyn-accented fiance, as an expert witness.  It is flawless both legally and cinematically.

First, Vinny gets permission to question his fiance as a hostile witness. ("That would explain the hostility," Fred Gwynn deadpans.)  Then he presents her as an expert, not qualified by formal education but by her experience. In trials, a plumber or a mechanic with years of experience often is a more persuasive expert than the engineer with a superior education but no practical experience.

Prosecutor Trotter requests to "voir dire"* the expert to challenge her credentials.  It is the precise procedure used to challenge an expert's qualifications to testify.  Ms. Vito is able to answer his trick question on the timing of a car/engine combination that was never built, thereby establishing her credentials. This sets the stage for the dramatic conclusion in which Ms Vito testifies that the defense theory of the case "doesn't hold water."

In short, from beginning to the dramatic end, the law in My Cousin Vinny is spot on.  It is so good, that scenes are used in teaching evidence and trial advocacy in law schools and continuing legal education sessions. It is also a lesson that writers - even comedy writers - can get the law right and not lose any of the drama or the humor.

*Voir dire is Old French for speak the truth.  The term most commonly refers to the questioning of jurors to determine their qualifications to sit on a jury.  But the term is also used for preliminary questions related to the competency or qualifications of a witness - such as a witness being presented as an expert.

Tuesday, September 25, 2012

Walmart & Target Drop Kindle; First Salvo in Business War with Amazon?

Walmart this week joined Target in no longer selling Kindles, the staple of Amazon's ebook empire. 

The business decision has little to do with ebooks, and a lot to do with Amazon's online Marketplace. 

Amazon's Marketplace offers an array of merchandise ranging from electronics, to clothes, to kitchen appliances.  Walmart and Target view Amazon's Marketplace as challenges to their brick-and-mortar stores as well as their online sales.

So Walmart and Target have taken the business offensive and banned Kindles from their stores and websites.  Walmart, Target and other brick-and-mortar retailers are also pushing for federal legislation requiring internet sellers (read that Amazon) to collect state sales tax.

This business squabble follows the recent settlement of the ebook anti-trust litigation.  It is something writers who market their books in ebook format (and that's everyone who writes, isn't it) should keep an eye on.

For more information, click here for Washington Post article: "Wal-mart drops Amazon Kindle products."

Best Legal Drama: No. 4 The Brass Verdict

The Brass Verdict (2008) is the second of Michael Connelly's Lincoln Lawyer legal thrillers.  I put it on this list because of its powerful opening page.  But in reality, any of Connelly's novels* featuring LA lawyer Mickey Haller could fill this spot.

Connelly has won nearly every thriller and mystery writing award, including the 2009 Anthony Award and the Ian Fleming Steel Dagger Award for thriller of the year for The Brass Verict.  His 2011 Lincoln Lawyer novel The Fifth Witness won the Harper Lee Award for legal fiction from the American Bar Association.

Connelly is best known for the interlocking Harry Bosch detective novels and the Lincoln Lawyer legal thrillers.  But in the course of spinning excellent tales of murder, greed, serial killers, corruption and everything else readers of detective and lawyer stories want, Michael Connelly gets the law right.

Connelly's courtroom strategies are well-conceived.  He knows how lawyers communicate with clients and jurors.   He captures the pulse and pace of the courtroom.  His knows civil procedure and evidence, and keeps the plot moving along within the bounds of the rules of court.  His recitations of testimony have a realism to them, capturing the ebb and flow of courtroom testimony. He even gets it right when dealing with expert witnesses.

The opening chapter of The Brass Verdict  -- only one page -- is not only the best opening page of any legal thriller, it may be the most gripping opening page I've ever read.  And even in that first page, you know that he gets the law right. Here it is:

   "Everybody lies.
    Cops lie. Lawyers lie. Witnesses lie. The victims lie.
    A trial is a contest of lies.  And everybody in the courtroom knows this.  The judge knows this. Even the jury knows this.  They come into the builing knowing they will be lied to.  They take their seats in the box and agree to be lied to.
    The trick if you are sitting at the defense table is to be patient. To wait. Not just for any lie. But for the one you can grab on to and forge like hot iron into a sharpened blade. You then use that blade to rip the case open and spill its guts out on the floor
    That's my job, to forge the blade.  To sharpen it. To use it without mercy or conscience. To be the truth in a place where everybody lies."

Now the kicker.  The guy who writes what maybe the most accurate legal thrillers you will ever read isn't a lawyer.  He's a former journalist.  Go figure.

Movie note: The Lincoln Lawyer movie staring Matthew McConaughey (click here for movie trailer) was a big hit in 2011. Articles  this summer reported that McConaughey was pushing hard for making The Brass Verdict into a movie, and that plans were going forward, including preparation of a script. However McConnaughey and Woody Harrellson recently signed to do True Detective, an HBO crime series with an 8-episode first season. Its unclear how this may impact plans for a movie sequel to The Lincoln Lawyer.

*Michael Connelly's Lincoln Lawyer novels to date are:  The Lincoln Lawyer, The Brass Verdict, The Reversal and The Fifth Witness.

Monday, September 24, 2012

Best Legal Drama: No. 5 Bleak House (Jarndyce v. Jarndyce)

*Public use image via Wikimedia Commons
Jarndyce v. Jarndyce is the Chancery case that weaves its way through the entirety of Charles Dickens classic Bleak House (1852).   

Dickens introduces the case in the first chapter:
"Jarndyce v Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable old people have died out of it.  .  .  .  Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce v Jarndyce still drags its dreary length before the court, perennially hopeless."

 Dickens used his experience as both a law clerk and a litigant in Chancery Court, to write this scathing indictment of the British judicial system, which ultimately led to the judicial reforms of 1870.

Richard Carstone, an heir in the Jarndyce litigation,  restlessly wanders from one potential career to another without the aptitude or fortitude for any.  He pins his hope for financial affluence upon resolution of the long-standing Jarndyce v. Jarndyce dispute.  But as the novel draws to its conclusion, his dreams are dashed upon the hard truth of the English legal system.

Over the years of litigation, lawyer fees have eaten up the entire Jarndyce estate.  There is no money left. Devastated, Richard dies.

The lesson of Jarndyce v. Jarndyce continues to ring through the judicial system.  264 state and federal cases have cited the fictional Jarndyce case. Only the most significant of legal precedents have been cited more.

Dickens' excoriation of the English legal system is brought down full force in two biting paragraphs as the novel draws toward its conclusion:

    We asked a gentleman by us if he knew what cause was on. He told us Jarndyce v Jarndyce. We asked him if he knew what was doing in it. He said really, no he did not, nobody ever did, but as well as he could make out, it was over. Over for the day? we asked him. No, he said, over for good. Over for good! When we heard this unaccountable answer, we looked at one another quite lost in amazement. Could it be possible that the will had set things right at last and that Richard and Ada were going to be rich? It seemed too good to be true. Alas it was! Our suspense was short, for a break-up soon took place in the crowd, and the people came streaming out looking flushed and hot and bringing a quantity of bad air with them. Still they were all exceedingly amused and were more like people coming out from a farce or a juggler than from a court of justice. We stood aside, watching for any countenance we knew, and presently great bundles of paper began to be carried out--bundles in bags, bundles too large to be got into any bags, immense masses of papers of all shapes and no shapes, which the bearers staggered under, and threw down for the time being, anyhow, on the Hall pavement, while they went back to bring out more. Even these clerks were laughing. We glanced at the papers, and seeing Jarndyce v Jarndyce everywhere, asked an official-looking person who was standing in the midst of them whether the cause was over. Yes, he said, it was all up with it at last, and burst out laughing too.

    "Mr. Kenge," said Allan, appearing enlightened all in a moment. "Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?" "Hem! I believe so," returned Mr. Kenge. "Mr. Vholes, what do YOU say?" "I believe so," said Mr. Vholes. "And that thus the suit lapses and melts away?" "Probably," returned Mr. Kenge. "Mr. Vholes?" "Probably," said Mr. Vholes.

Friday, September 21, 2012

Worst Legal Drama: No.1 The Verdict

The worst legal drama?  No competition.  The Verdict (1982).

 Paul Newman is at his best  He is sensational as a once brilliant but now broken-down lawyer trying to find redemption for a career lost in bourbon and beer.  (Click here for his beer & an egg scene.)

James Mason is deliciously evil as the lawyer for the Diocese and its hospital.  Character actor Milo O'Shea is perfect as the smarmy politico Judge Hoyle.

The Verdict garnered five Academy Award nominations and is often listed among the top legal movies of all time. Click here for the movie trailer.

But legally, this movie is hideous.

So hideous in fact that it is used to teach legal ethics - not from a positive view, but from the standpoint of how many violations exist which would have gotten both lawyers and the judge disbarred, and maybe put in jail.

Let's start with the big one.  Newman's character, Frank Gavin, is given a large (for the time) settlement offer of $200,000.  Determined to go to trial,  Gavin turns down the offer without ever consulting with his client.

Rules of Professional Responsibility require that any settlement offer be conveyed to the client.  After all, it is the client, not the lawyer, who must make the decision on settlement.  Lawyers make recommendations, but clients make the decision.  Short of taking client money from a trust account, breach of this rule is among the most serious offenses a lawyer can commit.

But the settlement offer presents at least two other violations.  First, the judge is aware of this violation.  The offer is made and turned down in chambers in the presence of the judge.  He knows Gavin did not consult his client, and lawyers and judges are both required to report knowing violations of the Rules of Professional Responsibility.

Second, Gavin's client finds out about the offer from the attorney for the Diocese & Hospital.  Communication by the Diocese/Hospital's lawyer with the plaintiff  is another major ethics violation.  Lawyers cannot communicate directly with represented parties.  Again, this is a major violation that can result in disbarment.

That brings us to the next violation.  Gavin misrepresents himself and gets a hospital nurse to disclose the current location of the nurse who was on duty when the malpractice occurred.  As mentioned above, lawyers are prohibited from communicating directly with represented persons. While there is a complex legal question about how far that representation extends when it comes to corporations, Gavin's deception and contact with the nurse is very questionable.

Next we get to the hospital lawyer, Ed Concannon, impeccably played by James Mason.  Concannon pays off Gavin's secretary for inside information on Gavin's strategy, makes Gavin's key medical expert witness disappear, and preps his witnesses to give knowing false testimony. And then there is the built-in conflict in representing both the hospital and the doctor, but that pales in comparison to the other ethical issues.

As jaundiced as one might be about the legal profession, this just goes too far.  Any of these incidents could result in disbarment.

Finally, there is the judge.  Clearly favoring the Diocese, the judge has improper ex parte conversations with both Mason (friendly) and Gavin (threatening).  He clearly shows his prejudice from the bench and in his rulings, which are both wrong on the law and clearly slanted to the defendant hospital.

But the movie is not without its legal accuracies.

First, any trial lawyer worth his salt can drink a shot of bourbon without ever listing the glass from the bar (the movie's opening scene).

Second, when the jury comes in with its surprising verdict, the judge correctly instructs the jurors that they are not limited by the amount of damages requested by the Plaintiff.

So enjoy the wonderful performances, the building tension, the triumphant conclusion. But just because it has the feel of "gritty realism," don't think it bears any resemblance what actually goes on in a courtroom.

*Next week:  My five best legal dramas.

Thursday, September 20, 2012

Worst Courtroom Drama: No. 2 The Untouchables

The Untouchables (1987) was an outstanding movie.  Exciting, entertaining, and an Oscar-winning performance by Sean Connery.

"He pulls a knife, you pull a gun.  He sends one of yours to the hospital, you send one of his to the morgue.  That's the Chicago way."
Click HERE for the clip.

But the concluding scene may be the worst single legal scene in the history of movies. 

The premise: Al Capone's trial for tax evasion is scheduled to begin. Elliot Ness (Kevin Costner) discovers the jury has been bribed. Ness bluffs to get a new jury, telling the judge that his name is in Capone's coded book listing public officials who have received payoffs from the mobster. The judge orders the jury switched with one in another courtroom.

Capone (Robert DiNiro) screams at his lawyer to do something. The lawyer announces to the court that he's changing Capone's plea to guilty.  Mayhem ensues. Click HERE for the clip of the scene.

Problem: A lawyer would be disbarred for entering a plea of guilty against his client's wishes. Moreover, a court could never accept such a plea, and any judge who did would be removed from the bench and possibly disbarred.

This would be like making the movie 1492, only Columbus actually does sail off the edge of the world.  It is that absurd. And I think most of the people in the audience probably knew it.   This is such a perversion of what happens in court  that it goes a long way to spoiling an otherwise wonderful movie.

And just for a little extra, a judge could never simply switch juries without giving an opportunity for the lawyers to question the prospective jurors.

But then, I guess when you have Sean Connery waxing poetic about guns, morgues and "the Chicago way,"  and the image of a weird looking baby in his carriage bouncing down the steps at Chicago's Union Station while Ness and his boys dispatch bad guys with sterling marksmanship, maybe you don't care about legalities.

Tuesday, September 18, 2012

Worst Courtroom Drama: No. 3 A Few Good Men

The movie A Few Good Men (1992) is often listed as among the best courtroom movies ever. Its  concluding scene, the final confrontation between Tom Cruise and Jack Nicholson, is cinema magic.

Cruise:  "I want the truth!"
Nicholson: "You can't handle the truth!"

 Click HERE for clip of the classic confrontation scne.

It's the stuff of movie legend.  But here's the real truth. As law, it stinks.

Ask any lawyer who has ever stepped in a courtroom, and they will roll their eyes.

In 30 years of appearing in court, taking depositions, seeing my clients examined and cross-examining witnesses, I can attest that you will NEVER get a lying witness to knuckle under by screaming at him/her:  "I want the truth!"

On those rare occasions where you do get a witness to capitulate, to admit that their story was simply a fabrication, you do so by presenting hard irrefutable evidence:  emails, internal records, photographs, medical records, prior statements.

Seriously.  If you look at a witness in court and yell:  "I want the truth," the following will happen:

  1. The judge, after a brief pause, will either laugh, or wiggle his finger calling you to the bench, at which time he will say: "Counsel, what the hell are you doing."
  2. Opposing counsel will stand up: "Your honor, he's got the truth, he just doesn't like it."  He will then object as argumentative, badgering the witness, and not being a question, which objection will be sustained.
  3. The witness will say "I told you the truth."
  4. The jury, seeing the judge laugh, will titter under their collective breath, then as they walk out on the next break, start doing their best Jack Nicholson impersonations.
A Few Good Men came close to getting it right. Click here for movie trailer.  Most of the movie follows the somewhat different courts martial procedure.  Cruise's character discovered the flight logs that undermined the colonel's story of events.  He used it to undermine the Colonel's credibility.

But no trial advocacy class ever taught that the way to get a witness to abandon a lie and testify as to the truth is the yell: "I want the truth.!" and expect the witness to cave. Hell, even the little old lady lying about the color of a traffic light won't do that, let along a full bird Colonel with his entire career on the line.

How could it have been played differently?

How about if Colonel Jacobs maintained his story on the stand.  "No, I did not order a Code Red."   Court adjourns to consider its verdict. The case is seemingly lost. But in the men's room, Jacobs confronts a hang-dog Cruise.  A shouting confrontation erupts.  "I want the truth!"  "You can't handle the truth!" Nicholson gives his explosive speech, then struts out in apparent triumph. The judge of the court martial then exits from a stall.

Just a thought.

Worst Courtroom Drama: No. 4 Runaway Jury

John Grisham is the godfather of the modern legal thriller.  Everyone who writes legal thrillers, me included, owes him a debt of gratitude. But the entire premise of his book and the movie Runaway Jury (2003) is one of the most preposterous in legal fiction.  Entertaining - but preposterous

The premise:  The widow of an office worker sues the manufacturer of the gun used to kill her husband and several other co-workers.  So far so good.

But then any link between the real legal system and the plot vanishes.  Click HERE for the movie trailer

First, the bad guy:  Rankin Fitch (Gene Hackman) is a jury consultant. He runs a warehouse operation that makes the CIA look like pikers. He and his little army of menions break all types of laws to obtain information and blackmail jurors.   But even more,  he sneaks a camera into the courtroom and serves as the puppet master for the gun company's lawyer.

Next:  the good guys:  Nicholas Easter and girlfriend Marlee  (John Cusack and Rachel Weisz) were survivors at an Indiana school shooting years before.  Justice was denied in the subsequent trial against the gun manufacturer because of the gun company's jury consultant - Rankin Fitch.  So the young couple dedicates their lives lives trying to exact revenge on Rankin and the gun companies.  They travel to any city where there has been a mass shooting, attempting to get on a jury in a case against a gun manufacturer.

Finally, there is the good guy lawyer Wendell Rohr (Dustin Hoffman).  He resists an offer from the couple to buy the jury.  But when the case seems to be slipping away, he asks his partners for access to $1 million from the "firm's emergency fund" to pay off a juror.

The plot is wrong on so many levels. Yes, jury consultants exist. But their role is limited.  Lawyers generally have three strikes from the jury pool - enough to eliminate the worst of problem jurors, but not enough to mold the entire jury.  And in reality, most trial lawyers resent jury consultants and rely on their own instincts.

The likelihood of being selected on a jury pool within the first year you move into a city is very remote.  The likelihood of being picked for any particular case is - well - the next thing to impossible.  And then there is Cusack's super-natural ability to manipulate the jurors by everything from manipulating their lunch to exploiting their prejudices.

And the secret law firm cash stash to bribe the jury?  No.  Law firms don't keep stashes of millions of dollars hanging around for buying results.

Despite all of this, the movie is strangely engrossing. Maybe its just watching Dustin Hoffman and Gene Hackman ply their craft.  John Cusack and Rachel Weisz are likeable.  Throw in the backdrop of New Orleans and a trial in the old abandoned federal courthouse in the French Quarter (refurbished specifically for this movie) and you get an entertaining movie..

It's worth watching. But don't confuse it with anything resembling what really happens in the justice system.

Monday, September 17, 2012

Private Acts in Public Places: The Duchess's Boobs & Prince Harry's Pool Party

The Middle East is aflame.  Afghan police cadets are killing American soldiers.  The Presidential Campaign is in full swing.  And what is the most talked about story on the morning news shows?

Kate Middleton's boobs.

The Duchess of Cambridge, wife of the heir to the throne of England, recently went romping on a deserted beach in the south of France with her hubby, but without her top.  Only the beach wasn't quite so deserted as it seemed.  There was a road nearby, and a lucky paparazzi got the tabloid shots of a lifetime.

So now word is that the Queen's lawyers are headed to court in France to try and put the genie back in the bottle.  It won't work.  Even if French courts fine the newspaper under French laws on privacy, the modest fine will not touch the profits made from these photos.

And nothing the French courts can do will keep the photos from being republished (21 more photos are appearing today in an Italian tabloid) or from spreading like a western wild fire across the Internet.

This follows on the heels of last month's photos of Prince Harry romping naked in his hotel room, showing off his cue stick in a sporting game of "strip pool" with a young lady.

So what is the rule of law on these seeming invasions of privacy.  Obviously laws differ from country to country.  But surprisingly, there is substantial disagreement among various states about the extent privacy is protected.  And many would be surprised to learn the limited extent to which some states recognize invasion of privacy as a tort.

For example, Indiana has refused to recognize public disclosure of private facts as an actionable claim for invasion of privacy.  Indiana's leading case on the subject stemmed from a purposeful disclosure to co-employees that a person was gay and was HIV positive.  The Indiana Supreme Court held that the person whose medical condition was disclosed did not have a right to sue.  Both the hospital whose nurse disclosed the information and the employee who publicized it at the work place, walked away without any liability. Other state jurisdictions have granted rights to sue in such cases.

The photos of the Duchess and Prince Harry present two significantly different situations.

In the case of Kate Middleton, it is unlikely any court in the United States would find the publication of the photos of her topless romp to be an invasion of privacy.  While she and the Prince were on a somewhat deserted stretch of beach, it was located near a public road.  The photographer was, according to reports, standing in a place where he had a right to be, using photos to record something which he could observe from that public spot.

An instructive case on privacy involved a N.Y. Post cover photo that illustrated a story on love in the workplace. It showed a couple walking arm in arm in Central Park wearing hard hats from their construction job.  The problem was, as the country song says, they were "married, but not to each other."

The invasion of privacy suit was thrown out because the photographer had shot his photo from a place where he had a right to be, recording an image which anyone could have observed from a public place.  The same seems true of the beach photos of the Kate Middleton.

Prince Harry's case is different.  He was in the privacy of his hotel room.  The photo was taken without his knowledge from a concealed camera.

This is similar to the Brad Pitt case, in which a photographer used an extremely long lens to peer inside Pitt's home, through mostly closed blinds, to snap a series of photos of Pitt walking nude down a hallway in his own house. Pitt was in a place, his home, where there was an expectation of privacy.  The photographer had to climb to a point he could peer over a high fence, then use an extremely long telephoto lens to get the shots.

In that case, the photo did not record was was observable by a person standing in a public spot.  It used extraordinary measures to circumvent the actor's privacy in his own home.  The court held that this was an invasion of privacy.

Were Kate Middleton and Prince Harry misbehaving?  Was this important news?  Is the the moral degeneration of the monarchy?

Poppycock, as the British might say.  They are young. The Prince was sewing his oats in a private room before heading off to Afghanistan.  The Duchess, still a newlywed, was romping on the beach with her handsome husband.  If that is wrong, then we are all in trouble.

So, were these photos intrusive?  Yes.

Were they an actionable invasion of privacy?   "No" and "Yes" (except in Indiana, where it is probably "no" and "no".

Is it smart to sue?  "No" and "No."

Are the photos ethical? That's really irrelevant. As long as someone can make money from them, they will be published.  

In one of those great ironies, today Kate is  strolling around with her husband in the Solomon Islands, being greeted by local ceremonies with topless beauties. Seems that in the  Solomon Islands culture, topless photos are unlikely to make the front page - or any page for that matter.

Maybe we could all take a lesson from the people of the Solomon Islands.

UPDATE:  Story on the evening news revealed (pardon the pun) that the photos of a topless Kate Middleton were taken by a woman photographer located approximately 1/2 mile away, using an extremely long lens.  This is far beyond the range of most lenses to obtain photos of an individual.  It would present an interesting case as to whether use of this camera and lens was an invasion of privacy when it probably did no more than capture what the photographer could have seen with a good pair of hunting binoculars while standing in a public location.

Worst Courtroom Drama: No. 5 Double Jeopardy

Few legal dramas match up with the reality of the legal profession.  But some are just awful from a legal perspective. 

Some literary license must be granted.  But if you are writing about a car chase, you don't have a Volkswagen Beetle screaming around corners and catching up to someone driving a Lamborghini.   I would hope that writers delving into legal dramas would take the time to actually learn a little about the legal system before writing about it.   What's worse - some of the people writing these dramas know better, but they are either too lazy to work at crafting the plot points within the bounds of the legal system, or more often, they just count on the ignorance of their audience.

This week, I'm going to post my selection for the five worst examples from prominent legal dramas that don't match up with the reality of legal proceedings.

5.  Double Jeopardy (1999) staring Tommy Lee Jones and Ashley Judd.  Premise: Ne'er-do-well husband fakes his own death and sets up his wife (Ashley Judd) to take the fall for murder. In jail, a fellow inmate (and former lawyer) instructs the now-convicted wife that double jeopardy prevents Judd's character from twice being convicted of killing her husband.  If she gets out, she has a free pass to go ahead and kill him. To see movie clip of this scene, Click here.

The law, as Charles Dickens wrote, may be an ass.  But it's not stupid.

Double jeopardy clause doesn't work that way.  The constitution prohibits being twice prosecuted for the same crime .  But killing Joe Smith in August, 1995 in the State of Washington, is not the same crime as killing Joe Smith in August 1999 in Louisiana.  It's a different crime.

In fact, double jeopardy does not apply between our two systems of justice: state and federal.  Consequently, even though Timothy McVeigh associate Terry Nichols was convicted of a federal crime in the Oklahoma City bombing, he was then tried and convicted in state court for the same acts.  And there was no violation of the double jeopardy clause.

The remedy for the wrongfully convicted woman in Double Jeopardy was to file for post conviction relief when the husband was found and the conviction is overturned.  The remedy is not to go ahead and kill the S.O.B.

For a clip for the Double Jeopardy, CLICK HERE.

Friday, September 14, 2012

More On: "LIKE" Button & Free Speech

The little "LIKE" button on Facebook is being DISLIKED by some rabbit-eared government officials.   More government employees are being fired and suspended for "Liking" the wrong things on Facebook.

The latest episode that appears to be headed to court is the suspension of three Mississippi safety workers for clicking "LIKE" on a Facebook posting of a firefighter. 

The now former-firefighter wrote a Facebook post highly critical of the mother of a young child involved in an accident.   After the firefighter resigned under pressure, the Columbus, MS City Council suspended three safety workers who "Liked" the post.  

This follows on the heels of a Virginia case now pending in the United States 4th Circuit Court of Appeals.  That case, detailed in a prior post on Law for Writers,  involved sheriff's deputies fired for clicking "Like" on the Facebook page of the sheriff's opponent in the upcoming election.  The District Court held that clicking the "LIKE" button wasn't sufficient expression to invoke the protection of the First Amendment.

Facebook, which receives more than three billion posts and  "Likes" a day, has filed an amicus brief in support of the fired employees, as has the ACLU. Personal note: the Virginia District Court reflected a remarkable lack of respect for the First Amendment and the expanse of our rights of free expression.  I expect the 4th Circuit will unanimously reverse the district court's decision.

The First Amendment is not limited to speech, but covers virtually all expression - including nude dancing, at least in Iowa. (Click here for story, but alas, no photos). In the leading case of Texas v. Johnson, (click here) the United States Supreme Court struck down the Texas statute criminalizing flag burning, Justice Brennan writing for the majority, stated that First Amendment protection "does not end at the spoken or written word.”

Michael Doyle with McClatchey Newspapers has put together an excellent piece discussing the troubling confluence of the First Amendment, Social Media and Technology.  It's well worth reading.  Click Here for his article: "In Facebook court cases, high tech and free speech collide."

Wednesday, September 12, 2012

Nietzsche, Kanye and Copyright

"It's got a good beat and you can dance to it"
German philosopher Frederick Nietzsche, hip-hop artist Kanye West, and pop singer Kelly Clarkson.  An odd combination, but all played a part in recent copyright infringement decision by the United States 7th Circuit Court of Appeals in Chicago.

The essential lesson: you can't claim copyright for something that essentially is in the public domain.

George W. Bush's favorite rapper Kanye West (noted for his Katrina telethon ad lib "George Bush hates black people") was sued by rapper/song writer Vincent Peters (known to his peeps as Vincent P).  Mr. P claimed that West stole his 2007 hit song "Stronger"  from P's less successful 2006 song. 

P is a self-described "up-and-coming hip hop artist and songwriter."  He wrote his song "Stronger" in 2006.  Trying to jump start his career, P met with Kanye West's producer John Monopoly (you can't make these names up - well, I guess you can, but I didn't).  A few months later, West released his song "Stronger," (click here for video) which was so successful it was honored as rap song of the year in Germany.  

As the court noted, P "was not a fan" and sued for copyright violation. 

The fight was over use of 19th Century philosopher Frederick Nietzsche's observation:  "That which does not kill us makes us stronger"  from his 1888 tome, Twilight of the Idols

Whether West or P or even Mr. Monopoly have ever read Twilight of the Idols is anybody's guess.  But according to all involved, it inspired these memorable lyrics: 

Kanye's song of the year "Stronger":
  N-N-N-now th-th-that don’t kill me 
Can only make me stronger
I need you to hurry up now
Cause I can’t wait much longer

I know I got to be right now
Cause I can’t get much wronger

P's less successful "Stronger":

What don’t kill me make me stronger
The more I blow up the more you wronger 

You copied my CD you can feel my hunger 
The wait is over couldn’t wait no longer 

The Court rejected P's claim of copyright infringement.  The Court found that Nietzsche's statement has become ubiquitous, and thus P can not lay claim to its use. Relying upon a Billboard Top 50 Chart used as an exhibit, the court noted that the phrase has been used in numerous songs, including pop singer Kelly Clarkson's recent hit Stronger (What Doesn't Kill You) - click here for video.

The Court also rejected P's claim that Kanye's rhythms were stolen from P's song.  Judge Diane West wrote for the Court:

 "Just as a photographer cannot claim copyright in the use of a particular aperture and exposure setting on a given lens, no poet can claim copyright protection in the form of a sonnet or a limerick." 

For the 7th Circuit's decision in Peters v. West, click HERE.

Monday, September 10, 2012

Winner (Amazon) & Losers (Everybody Else): E-book Anti-Trust Settlement

Amazon, the little start up company that has grown to be the 900 pound gorilla of the publishing industry, is about to become an even more dominant force in the growing e-book market.

Publishers, independent book stores, the Authors Guild and prominent literary agencies are aghast at the government's settlement of its anti-trust suit against the last three of the big five publishers to settle.  It seems everyone involved in book publishing (except Amazon) maintains that the settlement has handed the keys to the ebook kingdom to Amazon.  They fear this resolution will return Amazon to market dominance approaching 90% of all ebooks sold.  It may also be the death knell for many independent booksellers.

The settlement resolved the anti-trust lawsuit brought by United States Justice Department (DOJ) against the big five publishers and Apple.  The lawsuit claimed that the big five conspired with Apple to set prices for ebooks.  Specifically, the conspiracy was aimed at Amazon's practice of selling best-sellers at $9.99, a price other booksellers cannot match.   The big five and Apple agreed to set book prices at higher levels, and forbid Amazon from selling those books below the set price - usually $14.99 or higher.

The business plan worked.  As the Nook and Ibooks took off, Amazon's share of the ebook market dropped to 60 percent.  But the problem was that the collusion to set book prices violated anti-trust laws.

Hachette Book Group, HarperCollins Publishers and Simon & Schuster were the latest to settle. The DOJ earlier settled with MacMillian and Penguin.

Some have likened this situation to a playground fight where the school bully is beating up on a smaller kid.  Seeing the fight, a teacher intervenes by grabbing the smaller kid and holding his arms behind his back while the bully gets to punch away unimpaired.

In more of a business sense, it is like Wal-mart moving into a small town and driving out all the local mom and pop stores due to Wal-mart's incredible volume buying power. In the short term, the customers win.  Lower prices - $3-5 on best selling ebooks.  But in the long run, what is the price of driving competitors from the market place?  What happens when Amazon becomes the virtual sole source of ebooks - and the dominant seller of all books?

The big five publishing houses now have to recognize that Amazon is the piper of the book business.  Publishers will have to dance to Amazon's tune. So will everyone else.

No one knows exactly how this situation will impact authors.  But if Amazon sells 90% of ebooks, and it will not price them for more than $9.99, what happens to author royalties?  How can publishers offer author advances when their price ceiling is under $10?

 And those independent book sellers that most writers - most readers - have so dearly loved?  They seemed destined to go the way of the record player, the typewriter, and film cameras.

For a detailed account of the law suit and its settlement, check out the New York Times article "E-book settlement has publishing world in turmoil."  (Click HERE)

UPDATE:  HarperCollins has implemented the settlement agreement by allowing retailers to set the price of its ebooks.  Amazon has already reacted. Two of HarperCollins bestsellers, Fallen Angel and Solo, are already available on Amazon for $9.99.  Simon & Schuester and Hatchett Book Group must follow within 30 days but have not yet commented on when they will take action.  For Publishers Weekly article providing details: Click Here.

* Artwork licensed for reuse via Google.

Wednesday, September 5, 2012

Where to Find Free Photos for Your Blog -- and Even for Commercial Use

As writers, we are all sensitive (or should be) to copyright and the intellectual property rights of others.  But what do you do for illustrations for your blog?  Or for your kid's homework project?

I make great use of  It has a vast array of images available in different sizes at very reasonable costs. For small size images used for non-commercial purposes (a blog, for example), the price ranges from as low as $1 to maybe $5.  For larger resolution of the same image, you may pay $4-10.

But there are other sources for licensed images, many of them free. 
Photo:  Flkr via Google.  Free for all uses, including commercial use.
There is  a wonderful compilation of these resources for free licensed media:  Your Guide to Finding Free Creative Images and Other Media Online (click here).  The web article is posted on

This is not just a listing, but also explains the various licenses and how to both post photos and use photos from those various resources.

For me, the best source seems to be Google.  Go to advanced search (there's a link at the bottom of your search results page).  The last line on the bottom of the advanced search page is "Usage rights."  Its default is "not filtered by license."  But you can change this by clicking on the drop down menu and chosing from:
  1.  "free to use or share," 
  2.  "free to use or share, even commercially," 
  3.  "free to use, share or modify," and 
  4. "free to use, share of modify, even commercially."
Another example of artwork available for free use or sharing through Google

If you have any need for images to highlight your blog, spruce up your civic club newsletter, or give a little assist to your child's homework project, you should check this out.

Image through Wikimedia, licensed under Creative Commons Attribution-NonCommercial 2.0 license

Monday, September 3, 2012

Can Computers Replace Writers?

Will computers replace writers?

Nonsense, you say?  Well look a little closer and you will find that writers already are being replaced by computer programs.
Remember the old legend about an infinite number of monkeys with typewriters, given an infinite amount of time, would replicate the complete works of Shakespeare?  Well now those monkeys are automated - and educated.  And they write in millions of "keystrokes" per minute.

Robo-writing industry leader Narrative Science (click here) says that its software "turns facts into stories and insights."

The program does exactly what it touts.  It takes facts and converts them into stories.  It markets itself in three areas: (1) media and publishing, (2) business communications, and (3) data companies.  The computer will take data, such as a box score, stock market report, or financial sheets, and convert them into readable stories.

It isnt' the Pulitzer Prize.  Not Yet.  But it does work for stories on the local high school sports teams or for writing business memos gleaned from sales reports. With the financial pressures on newspapers, one can envision a sports or business departments of a local newspaper -- departments that once employed half a dozen reporters -- being reduced to a single editor who spends most of his time editing computer output.

Narrative Science isn't alone.  Much of the writing and editing of Wikipedia is now done by ClueBot NG.  For a article detailing how ClueBot NG works, check out "An Online Encyclopedia That Writes Itself" in Technology Review (click here), or "Meet the 'Bots' That Edit Wikipedia" on the BBC News Magazine (click here).

Klint Finley has an excellent online article for Tech Crunch titled "Coders Can't Put Writers Out of Work Yet, But We Better Watch Our Back. (click here).  It's goes into detail about sophisticated programs that portend real inroads into writer employment by sophisticated computer programs.   The quality of the work may suffer, but economics may be the overriding factor. 

Can a computer some day write the latest thought-provoking column by NY Times columnist Thomas Friedman or literary fiction such as Water for Elephants or current bestseller Gone Girl?  I don't think so.

But  I could see a computer whipping out (pun intended)  Shades of Blue, Shades of Purple, Shades of Chartreuse, etc.  And I actually expect that within two or three years, we may see formula books being written by computers. 

But while computers may be able to replace the writer in some circumstances, they can NEVER REPLACE WRITING ! ! !

At the recent Midwest Writers Conference, Shamus-award winning author Terence Faherty ( passed on a sage piece of advice.  "Don't be a writer if you can be anything else."  At first this takes you back a step.  Then you realize the truth in it.

Writers write because they have to,  because they live with words inside them that they have to get out.  And no computer program, however sophisticated, will replace that.