Introducing “Excited Utterance,” The Legal Advocate’s semi-regular roundup of legal news and views you might have missed.
What an aviation lawyer who once sued an airline that overbooked his seat has to say about the rights of passengers who get bumped (or dragged) off their flight. (CNN)
Extrajudicial drudgery looms large in “Junior Justice” Neil Gorsuch’s immediate future. (Washington Post)
Turns out Twitter’s more than just a scratching post for itchy fingers in the dead of night. Using it to deliver a spoliation letter is now an option—sunrise, sunset, and anytime in between. (Above the Law)
Think lawyering makes you safe from obsolescence in the robot revolution? Guess again. (The Atlantic)
Are you fluent in emoji? Insurance lawyer Randy Maniloff devised this clever challenge to teach his young daughter about landmark SCOTUS cases via emoji. How many case names do you recognize? (Coverage Opinions)
Professor Michael Asimow of UCLA Law School said that about the subject of this month’s review, Anatomy of a Murder. I might disagree a bit (I can make a strong argument for My Cousin Vinny), but I think any trial lawyer who’s seen Anatomy of a Murder will put it right near the top of their list; it was Number 4 on the ABA’s list of 25 Greatest Legal Movies. The reasons for that are many.
First of all, there’s the story. Set in a small town in Northern Michigan, it centers on an army lieutenant (Ben Gazzara) who’s accused of killing a tavern owner who allegedly raped the lieutenant’s seductive wife (the ever-fabulous Lee Remick.) The lieutenant is defended by the recently-ousted district attorney, played by Jimmy Stewart in one of his best ever performances. The defense attorney, assisted by his older, hard-drinking lawyer buddy (Arthur O’Connell) comes up with a defense based on an old—and real—Michigan precedent: “irresistible impulse.”
Interesting enough as it goes, but unlike much of what is claimed in the movies and on TV, Anatomy of a Murder actually is “based on a true story.” The basis for the movie was a book of the same title, written by Justice John D. Voelker of the Michigan Supreme Court under a pseudonym. (The book is well worth reading, too.) The book, in turn, was based on an actual murder case where Justice Voelker acted as the defense lawyer. The film was shot on location in the town where the actual murder happened – including in the tavern where the real killing took place. A number of the jurors who sat on the real trial are members of the jury in the film.
The film is masterful in showing how lawyers put together a case and present it in court. But it also contains some of the most close-to-the-line ethical issues ever put in a movie – especially the scene where Stewart and Gazzara discuss what defenses may be available. When Mark Caldwell and I show that scene at programs, it’s almost always a 50/50 split between participants who see it as “ethical” versus “unethical.”
In addition to having some excellent examples of what goes on in a courtroom, the movie was ahead of it’s time for its forthright discussions of sexual assault. Made in 1959, it caused some aggravation for what was seen (for the time) as “graphic” language, such as reference to a “sexual climax” and the use of the word “panties,” which the trial judge actually has to gently admonish the jury about.
A word about the trial judge. He was portrayed by Joseph N. Welch, counsel for the Army in the Army-McCarthy hearings in the ‘50s. He was a lawyer to be admired, the one who took on Joe McCarthy with the famous statement: “Have you no sense of decency, sir? At long last, have you left no sense of decency?” Welch makes a great judge here, but lawyers should revere him for his courage in real life, too.
Anatomy of a Murder was highly regarded in its time, and its stature has grown over the years. It was nominated for Best Picture, Stewart was nominated for Best Actor, and both O’Connell and George C. Scott were nominated for Best Supporting Actor (Scott plays a prosecutor from the state AG’s office with such oily fervor that you feel a little tainted just watching him. But he gets what’s coming to him by asking a question on cross-examination that he doesn’t know the answer to.). There were other nominations for writing, editing, and cinematography. Duke Ellington wrote the score and appears in a minor role.
I could go on. But I’ll stop so you can go watch Anatomy of a Murder for yourself. Enjoy!
We invite you to comment below with your thoughts on Anatomy of a Murder or with your requests for a movie you’d like to have Judge McGahey review.
Paul Newman was one of our greatest actors. He was nominated for eight Best Actor Oscars, winning in 1986 for The Color of Money. That was sort of a Lifetime Achievement Award—a number of his other portrayals were much better, including his role as Frank Galvin, a Boston lawyer, in 1982’s courtroom drama, The Verdict. The film is well-acted, well-directed, dramatic, and, as the book Reel Justice notes, “[I]t’s … in the running for Most Lawyer Misconduct in a Single Film.” (Mark Caldwell and I have used at least four different scenes from The Verdict in our film clip ethics presentations over the years).
Galvin is a lush so down on his luck that we first meet him he is trying to hustle business at the funeral of a man he didn’t know. He gets a medical malpractice case from a friend. The victim is a young woman in a persistent vegetative state, brought on by a mistaken dose of anesthetic during childbirth. Galvin is opposed by Concannon, a ruthless defense lawyer, brilliantly played by James Mason (who was also nominated for a Best Supporting Actor Oscar.) Galvin also has to take on the Catholic Diocese of Boston, who owned the hospital. This being a Hollywood movie, you probably have a pretty good idea on how this will end. But the twists and turns are mesmerizing and Newman makes Galvin’s road to redemption as a lawyer and a human being believable and moving.
However, it’s an easier movie to watch if somehow you can forget about all the egregious ethical violations: an ex parte meeting with the trial judge, bribing a witness to disappear, using burglary to obtain evidence, failing to communicate a settlement offer to a client, lawyers communicating with opponents who are represented by counsel, etc. If ethical violations were a drinking game, you’d be hammered before The Verdict was half over.
As a lawyer, you should care about all that, but you can love the movie anyway for its appeal to justice (even if that appeal isn’t based on any admissible evidence.) Whether you’re a lawyer or not, you can love The Verdict as a gripping drama, directed by a great director (Sidney Lumet, who also directed 12 Angry Men) and acted by real pros (Newman, Mason, Milo O’Shea, and Jack Warden, who played Juror Number 7 in 12 Angry Men). It’s those qualities that make The Verdict one of my favorite legal movies. I bet it’ll be one of yours, too.
I have plenty of movies in mind I want to write about, but please let me know if there’s a movie you’d like to have me review. I’ll try to accommodate requests!
Post written by guest blogger: Judge Bob McGahey.
“The One and Only Santa Claus!”
Miracle on 34th Street (the one from 1947) is the second greatest Christmas movie ever. The climax is when a white-bearded jolly gentleman named Kris Kringle goes on trial for lunacy, after insisting that he really is Santa Claus. The legal machinations surrounding that trial are some of the best things about the movie – and the main reason I chose Miracle on 34th Street for December’s review. (Well, that and the fact that it’s a Christmas movie!)
One thing that makes Miracle on 34th Street so good is its terrific cast. The story focuses on Kris Kringle (played by Edmund Gwenn, who won an Oscar for Best Supporting Actor) and Susan Walker, a six year old girl played by the heartbreakingly young Natalie Wood. Also prominent are Fred Gailey (John Payne), a young lawyer who represents Kris and Doris Walker (Maureen O’Hara), and Susan’s mother, a no-nonsense divorcee who works for Macy’s as special events coordinator. Also making an appearance are Judge Henry X. Harper, played by veteran character actor Gene Lockhart, and his political advisor, Charlie Halloran, played by William Frawley, whom you may remember as the beloved Fred Mertz on I Love Lucy. There are other wonderful characters, all well played by excellent actors. (Watch for Jack Albertson in a literal throwaway part.) In addition to Edmund Gwenn, George Seaton (who also directed the film) won an Oscar for Best Screenplay, and Valentine Davies won one for Best Original Story. Miracle on 34th Street was nominated for Best Picture, but lost to Gentlemen’s Agreement.
(As an aside, Doris was way ahead of her time: she was an independent, self-confident, successful divorced woman, raising a child without a husband. Showing a “divorced woman” in a positive light got this movie a “B” rating from the National Legion of Decency for being “morally objectionable in part”.)
The movie opens with Macy’s Thanksgiving Day Parade. Gwenn actually played Santa in the 1946 parade, which was filmed for use in the movie. Oddly enough, this movie was released in May of 1947, because Daryl Zanuck, head of 20th Century Fox, believed that more people went to the movies in the summer than in the winter. The original publicity for the film suggests that it’s a love story between the two adult leads, with hardly any mention of the centrality of the holiday theme.
The legal elements of this movie are great. Kringle’s trial for lunacy – and his potential commitment to an asylum if he loses – is portrayed convincingly, yet with humor. The evidence is wonderful: Kris cheerfully agrees that he’s Santa, the DA immediately rests, Fred subpoenas the DA’s son as a witness, the Post Office gets involved, etc. But there are other, deeper things that the movie says about lawyers, judges, and justice that are important.
First of all there’s Fred Gailey. He’s a junior lawyer with a prominent firm, and appears to be on an upward path in that realm. But after he takes on Kris as a client and becomes more and more convinced of the righteousness of the case, he eventually loses his job and (for a while at least) his budding romance with Doris. Fred demonstrates that a lawyer’s duty to his client and to justice can have difficult and painful personal consequences. He shows, as the Preamble to the Model Rules of Professional Conduct states, that “[a] lawyer is a representative of clients, an officer of the legal system and a public citizen having a special responsibility for the quality of justice.”
And then there’s Judge Harper. Coming from Colorado, I’m a die-hard supporter of merit selection for judges. Miracle on 34th Street shows, in humorous form, the pitfalls and dangers of electing judges. The scenes between Judge Harper and his political adviser Halloran, are hilarious when you watch them, but on another level, they emphasize how a judge could be influenced by having to appeal to various constituencies to stay on the bench. There’s also a wonderful scene between the judge and his grandchildren that demonstrates the potential consequences for a judge who has to make tough decisions. It’s so good that Mark Caldwell and I used it as part of an ethics presentation at the Colorado Judicial Conference in 2011.
There are three caveats about watching this movie. First of all, try to watch it without commercials. The pacing and flow are important – and since it’s a relatively short film (96 minutes), those matter. Secondly, try to watch it in black and white, as it was originally filmed. I don’t want to get on a rant here, but colorization? Ugh! Finally (and I will rant here), DO NOT, under any circumstances, think that the 1994 remake is a viable substitute. It most emphatically isn’t!
I could go on. Instead, I think I’ll go home tonight, break out my black and white DVD copy, and watch Miracle on 34th Street. And I’ll watch it again with my grandchildren after they all get here for the holiday.
And finally, as Susan says near the end of the movie: “I believe… I believe… It’s silly, but I believe.” After watching Miracle on 34th Street, see if you don’t believe, too.
A happy and healthy holiday season to everyone in the NITA family!
In light of the holiday season, here at NITA Central we decided to help people think of gifts to get that special attorney in their life. Although we can’t give the attorney in our lives what they might really want–billable hours, adjournment, a stipulation to continue, justice, a guilty or not guilty verdict, or just some peace and quiet–we can give them gifts to brighten their day. Here’s the list we came up with:
#10. A Star – Okay, so maybe you can’t wrap it and give to your favorite attorney directly, but still, having a star named after you is pretty cool!
#9. Leather Portfolio – Everyone needs one even if they say they don’t!
#8. Crystal Paper Weights – Spiff up your favorite attorney’s desk with a new paper weight.
#7. Cooking Classes – You are what you eat, so you might as well know how to create some good plates of food.
#6. Gift Certificate for a Massage – Being a lawyer can be stressful, and there’s no better way to relax and reinvigorate then with a good massage!
#5. iPad Stylus – Does your favorite attorney collect gadgets We bet they don’t have a Stylus, and we also bet that, secretly, they really want one.
#4. iPad Mini – It’s the latest and greatest Apple product, so it must be a good gift.
#3. Tickets to his/her favorite sports team – It’s easy for attorneys to get lost in their work and forget to do something fun every now and then. What better way to take in a night of entertainment than a good old sporting event?
#2. NITA Program Tuition – Nothing says “I love you” like the gift of a NITA program!
#1. A donation to a charity in their name – If your favorite attorney truly already has everything, or is just one of those people that is impossible to shop for, then a charitable donation in there name is a priceless gesture of gratitude.
Hopefully these suggestions help you in your endless search, and we wish you good luck and happy holidays!