Source of the following article Persuasive Litigator.
by Dr. Ken Broda-Bahm:
Movies about courtroom trials are enjoyed by lawyers and the general public alike. The genre has earned its place among the classics with titles like To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Inherit the Wind, and even My Cousin Vinnie. But there is one commonality in all of those movies: They focus on criminal trials. While there are a handful of films that focus on civil litigation — Philadelphia, Runaway Jury, or The Verdict — they are far fewer in number, and none have reached the same level of pop culture familiarity. Taunya Lovell Banks, Professor at the University of Maryland’s School of Law, recently wrote about that gap in an article, “Civil Trials: A Film Illusion?” (Banks, 2017). Her focus was on the ways such films serve educational and inspirational purposes, transmitting broad messages about the democratic value of civil trials. “Films,” she writes, “are cultural documents that embody a society’s attitudes about, and views of, the law and the jury system.” Most, however, focus on the legal resolution of criminal rather than civil disputes.
Professor Banks links the paucity of civil trial movies with a decline in the civil trial itself. Referencing projects to try to address the decline, like NYU’s Civil Jury Project, she notes that civil jury trials are well on their way toward “disappearing from the American legal landscape,” and she looks at the effect of a declining civil trial on popular culture, including legal films. It is not that fewer civil trial necessarily causes fewer civil trial movies, or vice versa, but rather that both are linked to some features of the civil trial that seem to resonate less with popular culture. Drawing from several of professor Banks’ arguments, my own observation is that some of the factors that tend to make civil trial movies less common and less influential are the same factors that often make the civil trials themselves less memorable, harder to attend to, and ultimately more difficult to care about. And some of those factors can be addressed through better, and dare I say it, more cinematic trial presentation. In this post, I’ll take a look at those factors and some of the ways good civil litigators can address them.
So, what makes the civil trial less attractive to Hollywood, and what makes the civil trial more boring and harder to access for the average juror? Informed by Banks’ article, I see four factors.
1. Criminal Trials Seem to Be More Fact-Dependent
Criminal trials focus on “who done it.” Banks quotes Anthony Chase noting that the public seems to be “addict[ed] to the facts of crime.” That yet to be answered question on the facts creates natural drama and interest. In civil cases, however, though we continue to call the jurors “fact finders,” the facts themselves are already generally known through discovery, and what is left for the jury is more a task of classification or judgment call: Does the sequence of events that everyone mostly agrees on fit the linguistic category of “negligence,” or not? Effective civil litigators can address this by emphasizing the factual disputes that do still exist, and also by framing the case as a mystery to be solved.
2. Criminal Trials Have Clear Themes
The theme of a criminal trial most often comes down to justice, in both the movie theater and the courtroom. The question is whether holding the defendant responsible upholds justice or denies it. “Themes of civil films may be less defined,” Banks notes. The civil trial might still focus on questions of responsibility, or even punishment, but when filtered through the law’s language, that civil claim may end up sounding like a more bureaucratic and less interesting determination. Where criminal trials focus on a villain (either the defendant or someone abusing the power of the state to persecute the defendant), that status can be less clear in a civil trial. Of course, one move to rectify that can be found in the Reptile perspective for the plaintiff’s bar, a strategic approach that aims to bring civil trial persuasion back to a clear theme focused on protection and a clear villain who is causing an unnecessary level of danger.
3. Criminal Trials Are Explicitly Tied to the Interests of Larger Society
It also matters that criminal trials are framed as “the People” versus the defendant. Taking a case is a prosecutor’s call, but symbolically, it is an act on behalf of the whole community with the express goal of making that whole community safer. In contrast, Banks notes that “In real life, few civil law plaintiffs sue with the idea of securing justice for the larger society.” She cites the example of 735 California lawyers who tried cases to a jury in 1990 or 1991. Only three of those lawyers identified a desire for public vindication as a reason for trying the case — two of them referring to the same case. While outcomes in civil litigation certainly have the potential to impact people other than the plaintiff, that focus is often absent, and is formally discouraged by the rules of evidence. Again, the Reptile perspective is a useful example of where litigators can try to broaden the implicit frame of reference for a case so as to emphasize a way that it holds relevance to society in general. While that approach is favored by plaintiffs, usually aiming to protect the vulnerable, that framing can also be used by defendants who, after all, are also fighting for something that society depends on: Medical judgment, products that make our lives better, or contracts you can rely on.
4. Civil Trials Are More Likely to Tap Into Animosity About Lawyers and Lawsuits
There is a nobility to a criminal trial’s focus on who did the crime, and whether the state can properly make that person do the time. The effect of a civil trial, in contrast, is more likely to be about economics rather than the stark fate of someone’s liberty. As a recent mock juror summed up when asked what the civil case was about: “Rich guys fighting over money.” That sentiment, applied to counsel, to parties or to both, taps into the worst attitudes that jurors bring regarding lawyers or courtrooms. In Banks’ review of films that do focus on civil litigation, she notes that most of these films are decidedly negative toward the process. Common themes contained in movies about the civil courtroom, for example, focus on innocent victims of corporate unaccountability, armies of defense lawyers overwhelming an unprepared plaintiff, and victory generally being obtained outside the system. “Any positive outcome in these cases,” she notes, “was achieved despite the formal legal system.” Litigators have heard it before, of course, but this low opinion of civil litigation and litigators serves as a reminder to avoid stereotypes and to, if possible, to tie your case to a noble purpose, or at least some kind of motivator that jurors can identify with.
Given the increasing scarcity of actual civil trials, it’s no surprise that movies about civil trials are also scarce. As the author notes, the public event of trial resolution is increasingly being replaced by resolution in a private space: settlement, arbitration, or mediation. That’s a loss, I believe, not just for drama but for civil engagement in our democracy. But civil trials haven’t died out quite yet, and in the meantime, those cases can be tried a little more effectively by applying some of what makes for great cinema.
Other Posts on Law and Popular Culture:
- Call Bull on Media Representations of Trial Consultants
- Make Your Trial Theme Cinematic…Or At Least Memorable
- Respect Your Idols
Banks, T. L. (2017). Civil Trials: A Film Illusion? Fordham Law Review, Vol. 85. University of Maryland Francis King Carey School of Law, Legal Studies Research Paper No. 2017-1. URL: http://ssrn.com/abstract=2912987.
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