With Reality TV Shows, Videotape Evidence and High-Tech Court Presentations, the Medium Has Become the Message in Law
Posted Oct 6, 2004 1:19 AM CDT
By Jill Schachner Chanen
Chances are you know Todd Melnik, if not by name then certainly by reputation. Melnik is the Los Angeles lawyer who helped get his client exonerated through a television show.
Well, sort of.
Melnik’s client, Juan Catalan, stood accused of a particularly heinous revenge murder. He said he didn’t do it, and had the alibi: He was at a Dodgers game with his daughter. He even had the ticket stubs to prove it--but the LAPD wasn’t buying it. The police department claimed to have eyewitnesses placing Catalan at the scene of the crime, finger on the trigger. What’s a lawyer to do? Go to the videotape.
Catalan, you see, was a Dodger Stadium regular and remembered seeing a crew in his section at the game that night filming the comedic actor Bob Einstein, best known for his bumbling stuntman character Super Dave Osborne. Maybe, just maybe, he had been captured on film.
Melnik contacted a production company that works on Super Dave Osborne projects, but the trail ran cold. With a client facing the death penalty, Melnik persevered. Eventually, a member of the stadium’s facilities management office confirmed Catalan’s recollection and referred him to a small production company that worked for HBO’s TV show Curb Your Enthusiasm. Einstein is a regular on the show, and the HBO series had indeed been filming that night in Catalan’s section.
Through Curb Your Enthusiasm Melnik found time-stamped footage that, just as Catalan hoped, showed him at the game with his daughter chomping on peanuts and hot dogs. But Melnik wasn’t done. He was not content merely to show his hand to the prosecutor. As Melnik puts it, Catalan was going to be exonerated in the style of a true Hollywood production.
At the preliminary hearing, the Dodgers’ official timekeeper led off the show by validating the timing of the Curb footage. Then, in a scene that would make Cecil B. DeMille proud, Melnik dimmed the lights and projected the footage onto a large screen. There were audible gasps as Catalan appeared and the time-stamped footage showed him there at a time that made his involvement in the murder impossible, says Melnik.
Blurring the Line
It’s the rare lawyer who would not crave that once-in-a-lifetime “gotcha” Perry Mason moment. But the Catalan case has come to symbolize much more than that. When the evidence is real footage from a fictional TV show played by lawyers for its full effect, there is a blurring of the line between entertainment and the law. The kind of made-in-Hollywood cosmic convergence that exonerated Catalan is being played out around the nation in courtrooms, law schools, law firms, TV screens and at a theater near you.
To add to Marshall McLuhan’s famous observation, in law the medium not only is the message, it could be the winning argument. Experts say that lawyers need to be up on their TV as well as their case law, and they need to understand how the popular culture is increasingly affecting their clients and the jurors who will be weighing evidence. “Films and television shows about the law and lawyers should be viewed as legal text, as powerful and authoritative as cases and statutes,” says law professor Michael Asimow of the University of California at Los Angeles. “Even though they are fictitious, they are affecting the way that ordinary people think and believe about the law, lawyers and legal institutions.”
Ever since Perry Mason first appeared on the small screen, lawyers have been accused of playing to type and pandering to public expectations based on popular culture. For reference, see the O.J. Simpson trial.
But the media-legal mix has exploded in all directions. For example, this fall at least three new lawyer reality shows on prime time network television will compete for viewers with several new spinoffs of highly popular law-focused television shows. About to hit bookshelves and movie screens are a countless number of new legal thrillers. For real courtroom legal drama, news and entertainment outlets are sure to cover trials of celebrities such as Michael Jackson and Courtney Love.
To test the effect of popular culture on the law, Asimow last year surveyed law students in six countries concerning their opinions of lawyers. The students were asked on their first day of school, so they would be less tainted by their education. Students in the United States and Argentina had dismal opinions of their professional counterparts, but those in England, Scotland, Germany and Australia had much higher opinions. When asked on what basis they formed their opinions, popular culture was given as the second most important factor, after news.
“That was a big surprise to us,” says Asimow, “that 40 percent to 50 percent of students thought that popular culture played such a large role in their opinion of lawyers.” While Asimow does not try to derive deep meaning from the survey, he nevertheless says it serves to underscore his belief in the increasingly important role of popular culture on the legal system.
“In my view, most of what people know about courts and legal institutions they learn from popular culture. Therefore, it behooves everyone involved with the general public--like trial lawyers--to pay attention to the way these things are depicted.”
Law professor Robert Jarvis is paying attention. He has made a career of studying the way lawyers are portrayed in popular culture, as everything from hero to villain. “It really depends on what era we are talking about, and it goes in cycles,” says Jarvis, of Nova Southeastern University’s law center in Fort Lauderdale, Fla. “We get heroic lawyers in the ’50s and ’60s, best personified by Perry Mason. In the ’80s it was greedy lawyers like Arnie Becker of L.A. Law. In the ’90s it was the not greedy but less than heroic lawyer in Ally McBeal.”
Jarvis links these depictions to how Americans feel about their legal system. “For the most part there is a recognition that we need lawyers. We cannot just have people out there beating each other with clubs. But people do not like lawyers. That is why popular culture is now giving us such ambivalence.”
Like Asimow, Jarvis believes lawyers need to tune in. “What this means for the practicing lawyer is that you really have to appreciate what clients are thinking when they walk into your office. They have an expectation that is formed before they walk in, which is one that you cannot match because it’s either based on Atticus Finch or Perry Mason. Or it’s very negative,” like the money-grubbing lawyer portrayed by Richard Gere in the film version of the play Chicago, he says.
“So one issue is how you take the client’s pulse,” Jarvis continues. Take Erin Brockovich, the film based on the real person whose investigative work as a paralegal for a California law firm led to a $333 million-dollar settlement in a toxic tort suit. “The movie had a great ending, but in the real case nothing was positively resolved,” says Jarvis. “If you have a client who really believes in fairy tale endings, you have to talk to the client about what a win really means. It means not spending an arm and leg on legal fees before we settle.”
Oregon prosecutor Joshua Marquis takes a dimmer view of the media mix. He says popular culture is unfairly tainting the public’s perception of the criminal justice system and making his job harder.
Most television shows and movies about the law are biased against the prosecution, Marquis says.
“How would you like to live in the town where Perry Mason lived, where the DA wrongly prosecuted 249 cases for murder? I’ve been a defense lawyer, too. Most experienced defense lawyers will concede that 98 percent of their clients are guilty, but it is their job to test the prosecution. That is not the impression you get if you watch The Practice or other shows today,” says Marquis, district attorney of Clatsop County, Ore. “The conventional wisdom now is that prisons are full of innocent people and that prosecutors are evil.”
As further evidence, Marquis points to a documentary on the death penalty called Deadline, which aired on NBC’s Dateline news magazine. “What is most significant is that it had the imprimatur of objective journalism when it was an advocacy piece.” Marquis says all of these factors are making his job as a prosecutor tougher. “You have a combination of things going on: There’s this blurring between reality and fiction in what is defined as news, and then the pervasive effect of the entertainment industry in terms of what people think are the roles of judges, lawyers, juries and what resources are available.”
Marquis is referring to the much-touted “CSI effect,” a reference to the TV show about elite teams of police forensic evidence investigators.
Prosecutors and defense lawyers alike have blamed the show’s high-tech analysis scenes for changing jury expectations. Marquis says it is hindering his ability to prosecute cases. “We’ve had cases where people ask where the DNA evidence is. Even if the defense lawyer says DNA has no relevance, they watch the shows and see the people in leather miniskirts running around with high-tech equipment strapped to the back of their vans.”
Jarvis, who practiced maritime law during the TV heyday of The Love Boat, says his clients often were at an immediate disadvantage when juries saw photographs of their boats because they looked so gritty in comparison to the fictional TV cruise ship. “When they saw our engine rooms, which were clean, but not Love Boat-like, they had a very negative perception.”
In some cases, people who have important evidence may favor the entertainment industry over the legal system. Take, for example, the 2003 documentary, Capturing the Friedmans, which looked at the arrest and prosecution of a father and son for child sexual abuse. A post-conviction petition for relief claims filmmaker Andrew Jarecki obtained evidence about police misconduct during interrogations of child witnesses that was not turned over to the defendants.
Jesse Friedman, who along with his father pleaded guilty to multiple counts of child sexual abuse, learned of the evidence only after the release of the DVD version of the film, which offered more material than the original. Friedman tried to proffer the disc in court to bolster his petition, but has so far failed, according to a Friedman Web site. Earlier this year, the U.S. Justice Department reopened a nearly 50-year-old murder investigation into the racially motivated killing of Emmett Till, based on new information contained in two documentary films. The filmmakers found five people who had information about the case that wasn’t known by original investigators.
David Siegel, a law professor at New England School of Law in Boston, says the trend may simply be a reflection of the fact that filmmakers operate under different constraints from lawyers and law enforcement officials when it comes to gathering evidence. But, he adds, movies, documentaries and news stories also may attract witnesses who relish their 15 minutes of fame.
Siegel also admonishes lawyers to stay on top of the media. He cites a made-for-TV movie about the murder of Laci Peterson as an example. The movie aired during jury selection for the trial of Scott Peterson, who is accused of murdering his pregnant wife. “It’s not the sort of thing that might typically come up [during jury selection] because it is not a news account--it is a movie,” Siegel says. “Generally, you don’t think about art as a basis for a change of venue or striking a juror. On the other hand, as the media less clearly define news or entertainment, these kinds of things are going to be more likely in the future.”
Influence Not So Great
Some don’t paint as frightening a picture. Nancy Marder, a law professor at Chicago-Kent who is writing a book on juries, says no empirical studies have been done to measure whether juries, lawyers and judges are influenced by the media. Her book, The Jury Process, will be published later this year.
Marder says the average person is smart enough to know the difference between what is portrayed on television or movies and real life. Besides, she asks, if people really believed that sitting through a trial would be as exciting as CSI or Law and Order suggest, wouldn’t more people be reporting for jury duty?
For all his concerns, Marquis concedes that people still tend to do the right thing. “Generally, when people get the facts, be they jurors or the general public, they usually make the right decisions,” he says.
He does worry, however, about how lawyers themselves will fare in the public’s mind when the new lawyer reality shows debut this fall. One, called The Partner, is a law firm takeoff of The Apprentice, the popular show in which young business professionals compete for a job with Donald Trump.
In The Partner, two teams are set to test their skills in a television courtroom for a partnership at a law firm yet to be named. One team is composed of Ivy League graduates and the other is composed of grads from second-tier law schools.
Emmy-award winner David E. Kelley also will be producing a reality show where lawyers will compete each week against one another to be the last lawyer standing and to win a million-dollar prize.
Marquis says these shows are further evidence of the “Hollywoodization” of the practice of law. “It’s a dangerous thing. If you want to be in entertainment, be an actor. If you want to be a lawyer, be a lawyer. You have to have a clear line between reality and entertainment.”
He says the new legal reality shows will worsen the public’s already dismal opinion of lawyers. “As a group, people see us as venal, vain and selfish.” And the new shows, he says, will only exacerbate the situation.
“If you watch a real trial you will see what lawyers really do,” says Marquis, who advocates cameras in the courtroom for that reason.
Newton Minow, a Chicago lawyer and former chairman of the Federal Communications Commission, also advocates cameras in the courtroom for similar reasons. But he says the focus on the law and lawyers in popular culture may be beneficial.
An admitted fan of several law-oriented television shows, Minow says legal-themed entertainment has been able to enlighten the public about civil liberties and the Constitution in ways that no other forum can. “Many people would disagree with me, but in many ways I think it builds respect for the system.”
Minow suspects that the abundance of legal focus in popular culture is a driving force behind law school applications.
Jarvis, of Nova Southeastern Law, has similar suspicions. But he wonders how movies like Legally Blonde, in which actress Reese Witherspoon plays a fashion-conscious student who eases her way through Harvard law school, affected applications to Harvard as compared with The Paper Chase, the 1973 film that portrayed the school as a grueling competition.
“The Harvard depicted in Legally Blonde is so different than in The Paper Chase,” he says.
Nonetheless, he assumes that Harvard appreciates both depictions because it shows the central place the law school occupies in both legal and popular culture.
Harvard law spokesman Michael Armini affirms the assumption. “Certainly people are free to set movies wherever they want, but when the school is shown as the pinnacle of legal education, as it was in Legally Blonde, we do not mind that.”
Nor will law students escape the impact of popular culture inside the hallowed halls, no matter what their motivation in applying.
For years law schools have preached the importance of visual storytelling techniques in upper-level trial advocacy courses. But many law schools have bowed to the forces of Hollywood by teaching students media-related techniques that are more likely to mesmerize a jury or bored judge.
Chicago lawyer Peter Bensinger Jr. teaches a course on high-tech trial techniques at Northwestern University law school in Chicago. The course instructs students how to use technology to jazz up evidence, including how to style documents to resemble magazine layouts (complete with words blown up for visual effect), as well as how best to use video in the courtroom.
Bensinger says such skills are prerequisites for any trial lawyer. “When I train associates I train them to show, don’t tell. Show the proof. Don’t tell about it the way lawyers used to do it with a yellow pad and talking about it for hours.”
At New York Law School, Richard Sherwin is teaching students about visual persuasion by instructing them how to make videos. The class, which requires students to master digital media, culminates in presentations in which each student must present a story or theory about a case in a 30-second video.
“It’s a hands-on class. We stress that this digital technology is just a tool and to be an expert in it is to be a better lawyer,” says Sherwin.
Jarvis, for his part, thinks law students can learn a lot about their place in society by studying lawyers on television shows and in movies. He teaches a law and popular culture course that looks at those depictions.
The course’s goal is to get students to think about what the lawyer is doing and whether the lawyer’s action is helping or hurting society. “You are really stopping and asking what is the motivation or the consequence so that when you are a lawyer, you have that much sharper acuity to peel away the layers.”
That or it’s just pure viewing fun.
Jill Schachner Chanen, a lawyer, is a legal affairs writer for the ABA Journal.