Podcast - Are Real Trials Just Like the Movies?

Daniel Small: Movies and TV shows featuring trials and other courtroom procedures have always been popular and are now increasingly so. And it's not surprising that they found their way into law school and CLE classrooms. In today's world, just about everyone who teaches trial advocacy uses clips from movies or shows to illustrate a point. Certainly I do when I do CLE programs around the country. But what can lawyers really learn from Hollywood?

Years ago, I was asked to be a consultant for a legal TV show. My role was to review story ideas they'd send me and scripts and tell them what was right or wrong from a real-world legal perspective, and whatever other suggestions I had for how it might go. Sometimes they would follow my advice. For one episode, I got so involved with it that as a thank you, they named one of the minor characters, a bookie, Danny Small, after me. But just as often, they would receive my advice but choose to ignore it. If the law or reality got in the way of a good story, the story would usually win. Doing a fictional TV show, they had that luxury. As trial lawyers, we do not.

Hollywood dramas routinely depict courtroom occurrences that grossly violate the rules of evidence, procedure, ethics and even basic constitutional principles. In the 1987 movie "The Untouchables," partway through the trial, the judge switches the jury with another jury that was empaneled in another case. In the 1957 movie "12 Angry Men," a critical piece of evidence is a knife that was never admitted or even offered by a party. A juror went out and bought it on his own. Can you imagine? In the 1959 movie "Anatomy of a Murder," which, by the way, has some great scenes we use in CLEs, the defense lawyer baits the prosecutor, asks argumentative questions, tries to get inadmissible facts before the jury and generally does about everything but ask a proper question. And in the iconic 1962 movie "To Kill A Mockingbird," just a great, great trial movie, attorney Atticus Finch interrupts his cross-examination of the accuser to conduct a brief, direct examination of his own client, who is not even placed under oath.

So what do the movies get right? Hollywood knows how to tell a story. Most of the time, trial lawyers are trying to do the same thing. It's a real story, not a fake one, but it's a story nonetheless. When Hollywood tells the story, it orients members of the audience so they can follow what happens. The time, setting, characters and whatever else the audience might need are introduced. The movie also typically doesn't start in the middle or the end, and if it does, it pretty quickly flashes back to the beginning. Importantly, Hollywood never ignores the central narrative. It wants the audience to understand the story, not feel overwhelmed by details or stop paying attention. A surprisingly high number of lawyers don't do that. They don't take the time to set the stage or explain things so that everyone can understand what the heck is going to come next. It sounds silly, but it's important. If you're trying a case, begin at the beginning. Lawyers often forget that they, too, are trying to tell a story, and that it's important for the jury to be able to follow it every step of the way. They spend too much time talking about minor details instead of focusing on the central point.

Hollywood tells stories economically. It understands that it has only about two hours to work with for a movie, one hour for a TV show and even less if you include ads. And that hundreds of hours of film must be edited down, cut and left on the cutting room floor. Important facts are established quickly. If a scene is extraneous or detracts from what the director is trying to do, out it goes. In the courtroom, lawyers sometimes spend large amounts of time establishing simple propositions that may not even be disputed. Even if they aren't wasting time extravagantly, they often do so in little ways, such as with unnecessarily wordy questions or closings or arguments or repetitive testimony. Lawyers should spend more time streamlining their case to make sure they're telling their stories clearly and economically. There's a wonderful quote from Mark Twain that says, "I'm sorry this letter is so long. If I had had more time, I could have written a shorter one." Take that time to write a shorter letter.

Finally, of course, Hollywood tells stories visually. It's hard to imagine a movie that consists of nothing but someone talking. And it isn't just that the pictures are there, they help tell a part of the story, too. After all, movies began as silent pictures, and yet those old silent movies could tell powerful stories. Obviously, a trial lawyer has limitations in the courtroom that television and movie directors don't have. Still, there's no reason to exclude visuals whenever they might help the jury understand the evidence. Imagine a trial about an automobile accident, just for example. A video recreation of the event might be too expensive, but how about a map of the intersection? A satellite view? A street view? Photographs of the cars? Lawyers should not pass up opportunities to tell their stories with pictures, step by step.

Trials are not movies, and the lessons Hollywood can teach only go so far. But if you're careful, you can learn the right lessons from the movies.