Nine Reasons To Study Lawyer Films
James R. Elkins
9. A student needs an occasional diversion from the straight
and narrow path.
8. The law school curriculum is not the "be all and end all" that it purports to be.
David Mamet, a playwright, screenwriter, director, and essayist, observes that: "The American educational process prepares those with second-rate intellects to thrive in a bureaucratic environment. Obedience, rote memorization, and neatness are enshrined as intellectual achievements." [David Mamet, Bambi vs. Godzilla: On the Nature, Purpose, and Practice of the Movie Business 26 (New York: Random House/Vintage Books, 2008)]
Gerry Spence is a lawyer who has often expressed his disdain for modern day legal education. He doesn't spare law teachers: Students "are taught by professors who have spent the major portion of their lives injecting formaldehyde into their students' brains and, in the tombs of endless dusty books, burying whatever creativity, whatever life, the students might have escaped with before they came there. In law schools students learn little or nothing about trials." [Gerry Spence, O.J., The Last Word 115-111 (New York: St. Martin's Press, 1997)] Spence argues that "[a] trial lawyer is a fighter, one struggling to accomplish justice under the great disability of a legal education. Whether he has graduated from Harvard or the University of Wyoming, it is mostly the person who accounts for the successful trial lawyer." [Gerry Spence, With Justice for None: Destroying an American Myth 43 (New York: TimesBook, 1989)][On Spence's focus on personhood, see "The Power of Discovering the Self" and "The Indomitable Power of Our Uniqueness," in Gerry Spence, Win Your Case 9-18, 19-24 (New York: St. Martin's Press, 2005)] [Gerry Spence's critique of legal education]
7. People learn in different ways; there are different modes of knowing. Perhaps, oddly enough, there is something to be learned from lawyer films.
Philip Meyer, one of our better legal film scholars, notes that he tries to teach his students to “think imagistically and visually” because “imagistic storytelling appeals to emotions and instinctual responses that are the primary targets of rhetorical persuasion.” [Philip N. Meyer, Law Students Go to the Movies, 24 Conn. L. Rev. 893, 904 (1992)] We might note the obvious: trial lawyers are very much in the business of "rhetorical persuasion" and storytelling.
6. There's a growing interest in law and popular culture and the effect of popular culture representations on the legal profession and on how lawyers try cases.
A sociological approach to lawyers and popular culture has a substantial following in legal film circles. The primary questions asked by those who follow the sociological approach are: How does the influence of popular culture representations of lawyers effect the legal system? How is the trial of a case influenced by popular culture representations of lawyers? How are jurors influenced by popular culture representations of law and lawyers? How does the depiction of law and lawyers in popular culture differ from real lawyers?
Let me explain why we will stay clear of this sociological and popular culture approach to lawyer films. If we look at the most basic question--how does the influence, the effect, of popular culture representations of lawyers actually change the legal system?--I think it safe to say we don't really know how to answer this question. Are jurors influenced by what they learn about law from popular culture? I assume they are. I further assume that the nature of that influence is, and will remain, largely unknown.
Will lawyers, in some cases, try to take advantage of what they think they know about lawyers and their representation in popular culture? I assume they will. I assume that many lawyers are already doing so, or attempting to do so. Is it possible that some lawyers will over do it? Undoubtedly, yes. How lawyers make use of popular culture will continue to receive attention. The depiction of law and lawyers in popular culture may, or may not, have a significant observable effect on readers and viewers; it may, or may not, have a significant effect on the way Americans understand law and legal culture; it may, or may not, have an observable effect on jurors; it may, or may not, have an effect on the way lawyers try their cases.
4. Lawyers are storytellers. We have not, to date, made this premise a fundamental part of legal education. If lawyers are storytellers and lawyer films present us with powerful stories, it is possible that a film story might—as a story—have something to teach the lawyer storyteller.
We enjoy and take pleasure in films because they are well-crafted stories. Film stories are compact and intense. The characters in these stories are often vivid, sometimes unforgettable. Ideally, thesefilm stories offer intriguing perspectives on the work we do as lawyers and the life we make out of the work we do.
We seek compelling stories because we all have a need, floating around somewhere in our psyche, to save ourselves from ordinariness. Movies translate the real world into a fiction that re-represents the real world to us; movies vivivfy reality.
3. We find in legal films a series of binary opposition ground, including law and order, law and justice.
Stories are rooted in conflict and resolution. If we could live free of tension and conflict, transcending the polarities of good and evil, love and hate, friendship and betrayal, the profane and the sacred, we would have little need for stories, so little need that the film industry would be as endangered as the small family farmer. Conflict is central to drama; we make stories of drama, we live in and with the stories we tell and the stories we hear. In lawyer films we find: story, drama, conflict. To understand the stories in our lives and in lawyer films, we need a better understanding of conflict. (Lawyers make their living working with conflict.)
Legal films tell stories made dramatic by invocation of our deep lying sense of
justice and our abhorence of injustice. From the time of the Greek tragedies, we have found
justice—justice betrayed and denied, justice sought and vindicated—a central element of drama.
In lawyer films, we find lawyers pursuing justice (and the villians, lawyers among them, who stand against everything justice represents). We identify, if we have any sense of humanity and empathy,
with those who have suffered injustice, and with those who work to see
justice prevail. Our identification with film lawyers is deepened
by the many obstacles they confront
in their perilous quest for justice. Justice is a quest, and know that justice does not always prevail. The quest for justice
can break your heart.
Those who seek justice, and those that help lawyers in this quest, are doing something worth witnessing. In
lawyer films, we witness those who seek justice and the extraordinary lives they make in doing so.
2. Films help us define who we are as lawyers.
We study lawyer films because they present us with vivid, compelling representations
of lawyers. What we try to do in Lawyers and Film is to work with these representations
of lawyers and see how they play out in our own on-going, unfolding, relentless, sometimes heart-breaking,
always fateful, struggle to give our lives as lawyers meaning.
Lawyers in film become part of the rich storied world in which we try to imagine, think, act, and live a meaningful professional life, a life in which we bring who we are as a person to the work we do, a life in which the work we do gives the person we are a meaning it would not otherwise have. Here is the claim we make in the lawyers and film course: Lawyers in film can help us figure out who we are and what we know about what it means to be a lawyer. And, of course, film lawyers invite us to take on the perennial questions: How is law enacted? How does this troubled relationship between law and justice work? How can an individual lawyer, an agent of the system, stand against the power of the system? How are we to understand and live with the reality of individual failure? How does law, as a lawyer lives it and as an ideology, blind us to the larger reality in which it is embedded?
1. Lawyer films provide a unique focus and perspective on what
it means to be a lawyer.
In an effort to give my teaching, and my life as a teacher, meaning, I
continue to seek out new texts and create new courses. We need all the
texts and all the stories we can get to broaden and deepen our reflections
on the array of skills and sensibilities we'll need in our professional
lives. We might also be interested in texts that might help us
see and understand the pathologies that come our way as lawyers. Lawyer
films present us with a host of pathologies.
Some of my teaching colleagues have great faith in the explicit curriculum
and in the skills we teach future lawyers, yet my colleagues would
readily admit that what a student learns, how it is learned, and how that
learning is transformed into a professional identity and enacted in a
professional life is shaped not only by the law
the student learns, but by the student's life and world beyond the standard
curriculum. Lawyer films provide an opportunity to focus on law school's
implicit curriculum, on what routinely gets left out of traditional law
school courses. The law turns out to be only a small part of who we are
as lawyers.
A lawyer film course may seem to be a rather odd way to bring your focus
around to the question of meanings considering that the films presented
in the course were designed as entertainment. What we have
set out to do is something akin to alchemy: To translate entertainment
into education.
An essential part of the meaning we give our lives as lawyers is the identity
we take-on when we become lawyers and the struggle to make
this taken-on identity fit with who we imagine ourselves
to be. Lawyer films take us deep into that terrain where we find ourselves
enmeshed in the on-going quarrels we have with ourselves, our work, and
our profession.
Notes
N1. Law students, relentless in pursuit of a practical education, expect everything--literally everything--to be relevant to the work that lies ahead for them as lawyers. They listen to a law teacher's claims about the importance jurisprudence, legal history, legal ethics, and the kind of perspective courses that might broaden and deepen their education with skepticism, if not active disdain. The paradox is that the relentless practical orientation of legal education is as much a problem as it is a blessing. We ignore the cost of our practical training at our peril.
N2. Law school requires the student to "internalize certain repetitive and preconfigured analytical forms. The student must learn how to analyze, synthesize, and analogize cases, and how to apply doctrinal law to 'the facts' within these tightly organized structures." The "formulaic reasoning pattern" represented in traditional law school analytics is itself an "aesthetic convention" and a "particular genre" of storytelling. [Philip Meyer, Convicts, Criminals, Prisoners & Outlaws: A Course in Popular Storytelling in the Law School Curriculum, 42 J. Legal Educ. 129, 130 (1992)] The mechanics of the law school form and genre of storytelling is problematic, according to Meyer, because it fails to address, "the multi-dimensional, complex, conflicting, ambiguous, and particularistic stories at the heart of legal problems . . . ." What the law school version of story-making sacrifices is the "imaginative vision capable of organizing . . . facts into stories." The underlying, driving force in Meyer's pedagogy is his relentless focus on the students' (and lawyers') story sensibility. It's an effort to bring students back around to their "innate sense of narrative . . . ." [Id.]
N3. Philip Meyer, a Vermont Law School colleague, has written numerous articles and essays about law, lawyers, and film. Unlike what we do in the Lawyers and Film course, Meyer works closer to bone: He contends that what lawyers do in a trial is not only a form of storytelling but a way of working with stories that is akin to what a scriptwriter and director do in the creation of a film. Meyer's premise is best stated in his own words:
Like the movie-maker, the trial attorney is an oral cultural storyteller who tells fact-based narratives that convey a story and a particular vision of the world. The principles of narrative ordination for a trial storyteller are like the aesthetic structures that compel movie directors to craft stories along a tightly ordered narrative spine. Severe constraints are placed on narrative subjectivity by certain storytelling conventions, such as the rules of evidence.
The trial attorney, like the movie director and unlike the novelist, describes action in a shared external world. The trial attorney, like the movie-maker, plays to a passive audience with a compressed attention span. The trial attorney speaks directly to the audience only in the opening and closing arguments. Otherwise, he tells his story exclusively through the presentation of witnesses and real evidence. The audience at the cinema or at trial watches and listens to the "uninflected" material characteristic of “montage” without the explicit guidance of the writer’s subjective and controlling narrative voice. The audience must attribute meaning. Meanwhile, the form demands that the story move ineluctably forward.
[Philip N. Meyer, Law Students Go to the Movies, 24 Conn. L. Rev. 893, 897-98 (1992)]
[Meyer's work on the thesis that the trial lawyer is something akin to a screenwriter and film director is explored in a series of essays. I highly recommend that you read them: "Desperate For Love”: Cinematic Influences Upon a Defendant’s Closing Argument to a Jury, 18 Vt. L. Rev. 721 (1994); “Desperate for Love II”: Further Reflections in the Interpenetration of Legal and Popular Storytelling in Closing Arguments to a Jury in a Complex Criminal Case, 30 U.S.F. L. Rev. 931 (1996); “Desperate for Love III”: Rethinking Closing Arguments as Stories, 50 S.C. L. Rev. 715 (1999); "Why a Jury Trial is More Like a Movie Than a Novel," in Stefan Machura & Peter Robson (eds.), Law and Film 133-146 (Oxford, United Kingdom: Blackwell Publishers, 2001)]
[Meyer has long used films in his courses and he has taught courses that focus on films. He notes that his own film course straddles lines between law and narrative, and law and film studies. Philip N. Meyer, Using Non-Fiction Films as Visual Texts in the First-Year Criminal Law Course, 29 Vt. L. Rev. 895, 913 (2004)(with Stephen L. Cusick). See also, Philip N. Meyer, Law Students Go to the Movies, 24 Conn. L. Rev. 893 (1992); Visual Literacy and the Legal Culture: Reading Film as Text in the Law School Setting, 17 Legal Stud. F. 73 (1993) [on-line text]; Convicts, Criminals, Prisoners & Outlaws: A Course in Popular Storytelling in the Law School Curriculum, 42 J. Legal Educ. 129 (1992); Criminality, Obsessive Compulsion, and Aesthetic Rage in “Straight Time,” 25 Legal Stud. F. 441 (2001) [on-line text]. In more recent years, Meyer has taken up the teaching of criminal law, and, emboldened by his early experience teaching film, now makes films a regular part of his criminal law course. See Philip N. Meyer, Using Non-Fiction Films as Visual Texts in the First-Year Criminal Law Course, 29 Vt. L. Rev. 895 (2004)(with Stephen L. Cusick)]
N4. For a popular culture approach to lawyer films, see:
Michael Asimow & Shannon Made, Law and Popular Culture: A Course Book (New York: Peter Lang, 2004)(with chapters on several films that are on the "to show list" in "lawyers and film," including: "Anatomy of a Murder," "To Kill a Mockingbird," "The Verdict," and "Class Action.")(There also chapters on: "Philadelphia" (1993), "Kramer vs. Kramer" (1979), "The Paper Chase" (1973), "12 Angry Men" (1957, "The Star Chamber" (1983), "Dead Man Walking" (1996).
Rennard Strickland et.al., Screen Justice--The Cinema of Law: Significant Films of Law, Order, and Social Justice (William S. Hein & Co., 2005)(with chapters on "To Kill a Mockingbird," "The Verdict," "True Believer," "Philadelphia," "The Sweet Hereafter")
N5. Compelling stories, the stories to which we are drawn and those which repel us, “matter, and matter deeply, because they are the best way to save our lives.” [Frank McConnell, Storytelling and Mythmaking: Images From Film and Literature 3 (New York: Oxford University Press, 1979)]
N6. In virtually every lawyer film, we will find lawyers struggling with the idea of justice, with law and its relationship and impediment to justice.“The dominant theme in law films has . . . been how the lawyer pursues justice.” [See Stefan Machura & Peter Robson (eds.), Law and Film: Introduction, in Law and Film 1, 2 ( 2001)][See also, Nicole Rafter, "American Criminal Trial Films: An Overview of Their Development, 1930-2000," in 28 J. Law & Soc'y 9 (2001) (focusing on justice and the “justice figure” in criminal trial films)] [For a scholarly exposition of the place of justice in drama, see Daniel Larner, Passions for Justice: Fragmentation and Union in Tragedy, Farce, Comedy, and Tragi-Comedy, 13 Cardozo Stud. L. & Literature 107, 107 (2001); Daniel Larner, Justice and Drama: Historical Ties and “Thick” Relationships, 22 Legal Stud. F. 3 (1998)(proposing that drama influences cultural ideas about justice) [on-line text]; Daniel Larner, Teaching Justice: The Idea of Justice in the Structure of Drama, 23 Legal Stud. F. 201 (1999)(exploring whether there is something “fundamental in the experience of drama that implies an experience of justice”) [on-line text]; Daniel Larner, Justice and Drama: Conflict and Advocacy, 23 Legal Stud. F. 417 (1999)(analyzing the theme of justice in literature) [on-line text]]
N7. "We go to the movies to enter a new, fascinating world, to inhabit vicariously another human being who at first seems so unlike us and yet at heart is like us, to live in a fictional reality that illuminates our daily reality. We do not wish to escape life but to find life, to use our minds in fresh, experimental ways, to flex our emotions, to enjoy, to learn, to add depth to our days." [Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting 5 (New York: HarperCollins/ ReganBooks, 1997)]
N8. John Jay Osborn, Jr., the author of Paper Chase, and now a law professor, teaches a course on Law and Literature. He says he has continued, over the years, to ask his students why they take the course. Osborn's observations about what his students tell him might be of interest to students in a lawyers and film course:
When you ask students why they want to take a course in law and literature, they say "because I hate law school." And because they hate law school, they are drawn to courses in law and literature because those courses promise to take them away from law school. They want to read works which will carry them away to other places, if not physically, at least mentally. The spaceship is going to ancient Greece, to Elizabethan England, to the Middle Ages. Those places seem to be better than where they are now.
And when they actually take the courses, what is it that they find fulfilling? The law and literature courses become a way for students to hook up again with methods of thinking that have been scorned in the traditional law firm courses. Further, I want to suggest that these methods of thinking are innate, biological tools for survival in the real world. The traditional process of making students "think like a lawyer" has disconnected them from real world thinking, which is one of the reasons the students hate law school in the first place. Sensing that something is terribly wrong, law students see law and literature as a way of re-learning modes of thought that have practical value to them.
The first of these modes involves the ability to move from the discussion of any particular work to the real events in one's own life, and back again. That is to say, to draw analogies from one's own life to the work under discussion; to test academic discussion against the parameters of the world as they have experienced it. Who is King Lear? He's the father who gives you a car on your sixteenth birthday. And extracts a psychological interest payment on the first of each month for the rest of your life. Who is Bartleby, the Scrivener, if not a precursor to the homeless who are sleeping in San Francisco's Union Square? Who is Hamlet? He must be that partner who cannot begin to work on a major brief until the night before it is due. The partner who cannot start his work because in the great cosmos of things, he views it as too insignificant. And who are Hamlet's friends? Are they those associates who are going to be fired because that partner does not finish his brief? Who is Jocasta? (You remember Jocasta. She is the mother/wife of Oedipus.) Is she not that practical woman who tells you to forget about divine intervention and get down to brass tacks; and then goes to the temple to pray just in case she is wrong? Who wants to cover all the bases?
This sort of discussion moves back and forth—testing theory against what we know to be true—our own experience. It helps us develop skills of insight and inclusion, rather than exclusion and division. These are the kind of skills that we use to analyze our own lives and give them meaning.
[John Jay Osborn, Jr., UFOs in the Law School Curriculum: The Popularity and Value of Law and Literature Courses, 15 Legal Stud. F. 53, 54-55 (1990)]
N9. We find all kinds of lawyer pathologies in lawyer films. We find them as well in legal education but we make sure that we sweep them under the rug. Our pathologies are worth pursuing; they know us and we must know them. The archetypal psychologist James Hillman says, "Pathology always makes the deepest impression." [Hillman interview with Sean Abbott, "At Random," Random House Publishing; an interview in association with the publication of Hillman's book, The Soul's Code: In Search of Character and Calling (General Central Publishing 1997)]
Following Hillman, I suggest that we use lawyer films to see ourselves through our pathologies. Hillman calls it pathologizing. [On Hillman's introduction of the term, see James Hillman, Re-Visioning Psychology 55-58 (Harper Colophon Books, 1975)] Hill argues that "[t]he insights of depth psychology derve from souls in extremis, the sick, suffering, abnormal, and fantastic conditions of the psyche." [Id. at 55]
Given this orientation we might find in lawyer films a glimpse of the soul of lawyers. We attribute this powerful word, soul, to what we see in films in the way films bring us around to see ourselves in extremis: sick, suffering, abnormal, fantastic.
Hillman puts this idea of pathologizing and the soul-work it entails on our doorstep when he says
Each soul at some time or another demonstrates illusions and depressions, overvalued ideas, manic flights and rages, anxieties, compulsions, and perversions. Perhaps our psychopathology has an intimate connection with our individuality, so that our fear of being what we really are is partly because we fear the psychopathological aspect of individuality. For we are each peculiar; we have symptoms; we fail, and cannot see why we go wrong or even where, despite high hopes and good intentions. We are unable to set matters right, to understand what is taking place or be understood by those who would try. Our minds, feelings, wills, and behaviors deviate from normal ways. Our insights are impotent, or none come at all. Our feelings disappear in apathy; we worry and also don't care. Destruction seeps out of us autonomously and we cannot redeem the broken trusts, hopes, loves.
The study of lives and the care of souls means above all a prolonged encounter with what destroys and is destroyed, with what is broken and hurts--that is, with psychopathology
. . . .
Pathologizing is present not only at moments of crises but in the everyday lives of all of us. . . . Indeed, pathologizing supplies material out of which we build our regular lives. Their styles, their concerns, their loves, reflect patterns that have pathologized strands woven all through them. The deeper we know ourselves and the other persons of our complexes, the more we recognize how well, we, too, fit into the textbook sketches of abnormal psychology.
. . . .
We owe our symptoms an immense debt. The soul can exist without its therapists but not without its afflictions. [Id. at 55-56, 70, 71]
Lawyer films return us, in pathologizing, to the soul work we do as lawyers.
