Written by guest blogger Judge McGahey
Because February is Oscar month and because I’m back in a domestic courtroom, this month’s review will spotlight three Oscar-winning films that feature family court- type situations. (It does not include Kramer v. Kramer. I still have to decide if I want to review that one.)
We’ll start with The Philadelphia Story, from 1940. It’s perhaps the apex of a sort of subgenre popular in the ’30s and ’40s that revolved around the idea of remarriage as a springboard for romance. Directed by George Cukor, this movie has a cast that truly deserves the label “all-star”: Cary Grant, Katherine Hepburn, James Stewart, and Ruth Hussey. The movie revolves around Tracy Lord (Hepburn), a divorced woman getting ready to remarry. Her former husband, C.K. Dexter Haven (Grant), shows up, planning to stop the wedding; he’s helped by Tracy’s mother and younger sister. James Stewart and Hussey play reporters from a People-type magazine, who (though something akin to blackmail) are permitted to write a story about the upcoming wedding. As one might expect, much confusion and comedy ensue. (And believe me, this is a way oversimplified summary of the plot!)
The Philadelphia Story is highly acclaimed, with reason. It’s number 44 on AFI’s 100 Years One Hundred Movies list and in 1995 was added to the National Film Registry of the Library of Congress. The movie was nominated for six Oscars, including Best Picture, Best Actress, and Best Director. It won two: James Stewart for Best Actor and Donald Ogden Stewart (no relation) for Best Screenplay. I really can’t recommend this movie enough: it’s a wonderful example of what happens when great actors have great lines to deliver and a great director to guide them.
The struggles of single parenting (multiplied by about a million) are at heart of Paper Moon (1973.) It stars Ryan O’Neal and his real-life daughter, Tatum O’Neal, as itinerant con artists selling Bibles to bereaved widows in rural Kansas during the Depression. Tatum O’Neal won the Oscar for Best Actress at the age of ten, thus becoming the youngest actor ever to win a competitive Oscar. Peter Bogdanovich directed.
Ryan O’Neal plays Moses Pray, who at the beginning of the film is working his scam alone. He meets Addie at her mother’s funeral and discovers that Addie might be his daughter. Moses, somewhat against his will, agrees to deliver Addie to her aunt. On the way, they meet up with a scatterbrained hooker played by Madeleine Kahn and a bootlegger and his nasty brother, who just happens to be a sheriff, both played by John Hillerman of Magnum, P.I. fame. Watching Moses and Addie interact—and bond—is what the movie is all about. The ending will warm your heart—and make you laugh out loud.
The last movie we’ll consider won only one Oscar, for Best Makeup. But although it’s a comedy, it highlights the agonies that often surround custody and visitation—or as many states (including mine) now call them, allocation of parental responsibilities and parenting time.
The movie is 1993’s Mrs. Doubtfire, starring the recently lost and much-lamented Robin Williams as Daniel Hilliard, an irresponsible actor whose ex-wife is initially given custody because at the time of the divorce he has neither a job nor a home. Daniel is so desperate to spend more time with his children that he disguises himself as an elderly Scotswoman and becomes his children’s nanny and confidant, without his children or his ex-wife (Sally Field) figuring out the deception, at least initially. As he interacts with his children as Mrs. Doubtfire, he grows as a person and as a father and his children learn how to handle their parents’ divorce. He also becomes his ex’s best friend and confidant. Of course, Daniel’s disguise is eventually discovered and the judge, bothered by Daniel’s actions (what a surprise!), gives him only supervised parenting time. If you haven’t seen the movie, I won’t spoil the ending. Rest assured, however, that it’s happy—and even a little uplifting.
Hope everyone enjoyed this year’s Oscars and that your favorite film/actor/actress/song came out a winner!
 Stewart always felt this Oscar was a “make-good” for his not winning in 1939 for Mr. Smith Goes to Washington. When you look at the other 1940 nominees, he may have had a point. They included Henry Fonda for The Grapes of Wrath, Charlie Chaplin for The Great Dictator, and Raymond Massey for Abe Lincoln in Illinois. Stewart said he voted for Fonda. I would have, too.
 One caveat: there’s a scene at the very beginning of this movie that we would now recognize as domestic violence. Even though we understand that now, I’m pretty sure that the vast majority of the audience didn’t see it that way in 1940.
written by guest blogger Neil Vidmar, Ph.D. (social psychology) , Russell M. Robinson II Professor of Law, Duke Law School and Professor of Psychology, Duke University
The fact that prospective jurors may hold biases against the plaintiff or defendant, or both, is of no surprise to experienced trial lawyers. However, one problem is to recognize the potential multi-factor nature of juror bias and consider it not only in jury selection but also throughout the trial. Equally important is the need, in some cases, to provide evidence to persuade the judge to take remedial steps to ensure a fair jury, sometimes through a change of venue but , alternatively through the process of jury selection, jury instructions throughout trial, and/or planning strategy as to how evidence should be presented. In this brief essay, I outline some insights from the perspective of a social psychologist with approximately four decades of research and testimony in civil and criminal cases, not only in the United States but also in Canada, England, Australia, and New Zealand.
It is useful to consider four general categories of juror bias. The first is Interest Prejudice, also called “manifest” prejudice. Such biases arise from the prospective juror having a direct or indirect interest in the outcome of the trial. Obvious examples are a juror having a social or financial relationship with one of the parties to the litigation. In one case against a North Carolina utility company, focus groups revealed that many people in the community expressed concern about a rise in their electricity rates if the plaintiff prevailed. The second bias, Specific Prejudice, involves juror attitudes arising from factual information or rumors bearing on one or both of the parties—or trial witnesses. Such prejudice may arise not only from mass-media coverage but also from informal gossip, often erroneous, generated among members of the community. Generic Prejudice, the third bias, involves the transferring of pre-existing attitudes, beliefs, or stereotypes with respect to the parties or witnesses involved in the trial. Such examples might involve alleged or actual drug use, homosexuality, parental irresponsibility, corporate irresponsibility/greed, race, and ethnicity. In one case, a substantial number of prospective jurors reported that they were offended by aggressive television advertising by the plaintiff’s law firm and therefore from the outset would tend to favor the defendant. Finally, Conformity Prejudice exists when a juror perceives that there is such strong community reaction in favor of a trial outcome that he might tilt in that direction, despite personal feelings that are neutral. In the North Carolina power company case referenced above, survey research indicated that despite professing personal neutrality, substantial numbers of potential jurors indicated that they might feel pressure from friends and neighbors to tilt toward the defendant rather than the plaintiff.
It goes without saying that multiple sources of potential prejudice may exist in a particular trial, but these problems have been made more problematic in the age of the Internet. In both criminal and civil cases, there are numerous examples of jurors researching facts about the case on the Internet. This contamination may occur following a jury summons, after jury selection has begun, or during trial. Research has shown that although jurors may be reluctant to undertake jury duty, once they become involved in the trial they increase their interest; also, some jurors are tempted to seek out additional information on the Internet, despite judicial admonitions to refrain from such activity.
Systematic empirical research can often identify and document these sources of potential bias. Indeed, such evidence is often necessary in order to convince the trial judge to provide a remedy, whether it is extended voir dire, change of venue, or some other remedy. In previous cases, I have provided the court with testimony and documents involving systematic analyses of news media coverage, including not just the number and length of articles but also their content. This coverage might include not only newspaper reports but also television, radio, and Internet chatter. Frequently, it is important to have data from one of more alternative venues for comparison. It is advisable to conduct a systematic survey—usually by telephone—of a random number of households in the community and in alternative venues. Moreover, these surveys should include some open-end questions in which respondents are recorded verbatim ( as opposed to multiple-choice answers ). However, in some cases surveys have not followed accepted standards of survey design and were subject to serious criticism when the expert testified in court.
While most of the time my own surveys and testimony in civil cases have been on behalf of defendants, in one recent case civil case I testified for the plaintiff—actually, a state attorney general—that the design of the defendant’s survey violated elementary research guidelines and was badly biased toward producing a favorable result for the defendant. I should also note that in another case involving construction claims against a university, my survey on behalf of the defendant showed that the original venue chosen by the plaintiff was potentially more favorable than alternative venues originally favored by the defense litigation team. (Both the defense lawyers and I had originally underestimated “town versus gown” hostility.)
Written by guest blogger Judge McGahey
I’ve recently rotated back into a domestic relations division for the first time in years. I’m getting reacquainted with an area of law that I haven’t had to deal with in some time, which includes everything from refreshing my memory of the law to learning what the current jargon and acronyms mean. It occurred to me that domestic issues are frequently the subject of movies: sometimes serious, sometimes funny; sometimes with great actors, sometimes with people you never heard of; sometimes Oscar winners, and sometimes simply unwatchable. I decided that while I’m in this rotation, I’ll write about domestic themes on occasion, starting with this month, when I want to discuss three movies about child custody that reflect changing concepts about that emotional area, while also reflecting ideas that stay constant.
Man on Fire (1957) is a movie that was ahead of its time: it starts out with Dad having sole custody of the divorced couple’s son. Since the “tender years” doctrine was alive and well in most of the United States at that time, this was highly unusual. Dad loves his son very much, but is bitter toward his ex-wife, who has recently remarried to a State Department diplomat. The ex-wife initiates a custody battle, which is fought out in court. The judge awards full custody to Mom, and Dad goes off the rails. The child runs away, and soon we’re involved in a potential parental kidnapping. You’ll need to see the movie to find out how it resolves.
Man on Fire features a stunning performance by Bing Crosby (!) in a non-singing dramatic role, as the successful businessman father, Earl Carleton—and contrary to Crosby’s usual film persona, he is not a nice guy that you can immediately take into your heart. The film also features Inger Stevens in her film debut. The courtroom scenes are rough, and the way the parents go at each other is both uncomfortable and realistic.
In 1964, One Potato, Two Potato explored custody issues as well, but this time in the context of an interracial marriage. The film stars Barbara Barrie as a white divorcee who marries an African-American co-worker, played by Bernie Hamilton. The ex-husband (Richard Mulligan) shows up, and demands custody of his daughter, based solely on the idea that being raised in an interracial home was the wrong thing for the child. A court battle ensues, and you may be surprised by the result—or not. (Don’t forget that Loving v. Virginia, 388 U.S. 1, wasn’t decided until 1967.)
Barrie won the Best Actress award at that year’s Cannes Film Festival. The movie was extremely popular with critics when it was released; indeed, it has been referred to as a “critic’s darling.” I remember seeing this movie when it was released (I was sixteen) and thinking it was seriously cutting edge. Having watched it again recently, I’m not sure that it’s aged that well, and you can find some critics whose retrospective analysis of the film is fairly negative. However, it gets very high grades from viewer reviews on both the IMDb and TCM websites. This isn’t an easy movie to find, although it was on TCM recently. Given our current social climate, perhaps you’ll find the issues raised by One Potato, Two Potato still timely and worthy of discussion. If nothing else, it demonstrates that perhaps we haven’t made the progress on racial matters that we’d like to believe we have.
For my last film about custody, I’d like to offer 2001’s I Am Sam. Sean Penn, who was nominated for an Oscar, stars as a developmental disabled man with an intelligent, precocious daughter, Lucy, played by Dakota Fanning. Lucy’s mother has abandoned them, but Sam does his best to raise his daughter, helped by a network of friends and other supportive people. As you might expect (this being a Hollywood movie), problems arise and Sam eventually loses custody of his daughter and is forced into supervised parenting time. Sam is referred to an aggressive lawyer (Michelle Peiffer) with a reputation as someone without much empathy or humanity. She decides to take Sam’s case, and as they prepare for court, Sam actually helps the lawyer solve some of her own personal problems. Once again, we get to watch extremely uncomfortable courtroom scenes, once again with a somewhat predictable result. But unlike some other movies of this genre, this one has a positive ending, one for which I have a special fondness, for reasons that you’ll see.
Of interest to me in these movies was that their focus is almost exclusively on the adults involved, rather than the kids, although I Am Sam is slightly better than the other two on that account. I suppose this isn’t surprising, given that the movies were made by adults to be watched by adults. But it also should serve as reminder of where our ultimate focus must be in real-life courtrooms. Many states, including Colorado, use a “best interest of the child” test when deciding issues of parental responsibility and parenting time—and that requires that our primary concern must be for the children caught up in the maelstrom of domestic cases, to give them the best chance to be safe and happy.
The best of what we learn about teaching and justice, of how we work intensely together to learn, of how we seek to instill the true advocacy that redeems justice . . . these things we carry forward from those who went first. They donated the foundation of our teaching, and the spirit and brilliance of our collaboration. Whether founder, designer, creator, faculty, trustee, or author, each person’s excellence in working with the NITA community is still the essence that contributes to NITA result.
At this start of the year, when we are fresh with news of recent losses, we do well to reflect on the way each person contributed. They knew what they brought. Their vision in contributing was to make a difference then and after they were gone. Yes, they had expectations of the everlasting value of their NITA work.
As we work within the NITA community, as we welcome our compatriots and revel in gathering each time a faculty is assembled, let us remember this: We are entrusted with fulfilling not only our goals but also the expectations of these great lawyer/teachers who went before us. They expected that newcomers would bring their genuine best, spar and give, create and critique, build bonds, and cultivate friendships. We do that still, and will into the future.
This NITA community is about honoring those we work with today for the very reason that we work together. It is about the larger vision of justice, which would be neither a formed goal nor an achievable mission without our community of sharing.
In tribute to the collective that is NITA, I draw from our NITA Community pages the names of those who have appeared there over the past year. I would prefer to honor all whom we’ve lost. Our lesson is drawn well, however, from this sampling. Look at the diversity of traits remembered throughout these pages about each of these NITA members at the time of their passing. Take them each as a reverent reflection. Take them together, and we know what they expect of us.
Carry it on. Carry it on.
“her life’s mission to work with women working to achieve success”
“playfulness, the kind that creates collegial learning”
“the fine art of gentlemanly advocacy in the courtroom”
“resolve, determination and contagious sense of humor as he prosecuted his cases”
“free penchant for arguing and teasing, for quick funny references, for repartee, and for being one’s self”
“his insight into justice, what justice requires, and how much injustice exists that is to be addressed and reversed”
“talent, leadership, and strong resolve to do the right things the right way”
“contributions that accentuated her keen eye for service to the public interest in justice”
“trial skills, humor, and humanity that made him both dangerous in the courtroom and a joy in the classroom”
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
Baker & McKenzie Partner Named Chair of the Board
BOULDER, CO: The National Institute for Trial Advocacy (NITA) has announced its new Board officers for 2015. Angela C. Vigil, a partner in the Miami office of Baker & McKenzie as well as the firm’s Director of Pro Bono and Community Service for North America, has been elected as the Board Chair. “I am honored and humbled to have been chosen to serve as Board Chair. From the time I first encountered NITA I have had the great pleasure of serving as a faculty member in public and public interest programs throughout the United States and in a number of foreign countries,” Vigil said.
Additional Board Officers for 2015:
Michael H. Ginsberg, Past Chair
L. Joseph Loveland, Chair Elect & Treasurer
Senior Litigation Partner
King & Spalding
Geraldine Sumter, Secretary
Ferguson Stein Chambers et al
“After more than 40 years of service to the profession, NITA remains the premier lawyer training organization. I deeply appreciate NITA’s commitment to and focus on the development of the Rule of Law in emerging countries and its support of the mission of public interest legal organizations, as well as its commitment to training lawyers to be competent and ethical advocates.” Vigil continued.
About the National Institute for Trial Advocacy (NITA): NITA is a 501(c)(3) charitable organization, is a dedicated team of professors, judges and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism and all systems of dispute resolution that seek justice.