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.

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

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*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.

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.

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.

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.