The Reality Critique

James R. Elkins

"As we enter the cinema, we relax our guard. We do so necessarily, because to resist, to insist on reality in the drama, is to rob ourselves of joy.

--David Mamet, Bambi vs. Godzilla: On the Nature, Purpose, and Practice of the Movie Business 133 (New York: Random House/Vintage Books, 2008)

In reading legal film critics, the primary complaint, one so prevalent that it has become a convention of legal film criticism, is that the representation of law and lawyers found in popular culture (novels and legal films in particular) is not realistic. Where, one wonders, does this impulse to measure fictional lawyers against what we are tempted to call real world lawyers, really get us? My sense is that it doesn't get us very far.

Not only do legal film critics want to juxtapose TV, film, and fiction against “the real”—whatever that might mean—the legal profession seems forever in the grip of a fear we cannot shake: That what people learn about law and lawyers from popular culture is so basically and fundamentally misleading—so unrealistic—that it undermines the legal profession and legal institutions. Some go still further, and argue that unrealistic representations of law and lawyers in popular culture undermines the public’s belief in the legitimacy of law.

The realism critique of lawyer and legal films, notwithstanding it’s prominent place in the work of legal film critics, has little merit. It remains to be seen, whether the education the public receives about law and lawyers by way of popular culture has, as is so often alleged, a negative or pernicious effect.

Obviously, individual jurors, given their particular, peculiar and idiosyncratic habits of reading/viewing, may well be adversely affected by what they learn about law and lawyers from popular culture. And I do not rule out the possibility, that a star-struck lawyer who watches too much TV will not take up fanciful thinking and set upon a perilous effort to mimic what he has seen on TV, or in a movie, and then adopts, unwittingly or otherwise, some ploy he’s learned from TV, film, or a courtroom scene in a legal thriller. But the foibles of the film-saturated lawyer can be no more an indicia of what lawyers do, day-in and day-out, than the televised/spectacle TV trial tells us about everyday courtroom trials. The film-educated lawyer and the televised trial spectacle mean something to us, but what it means, may be both less and more than we might think.

That an individual juror or lawyer may be overly influenced by popular media, seems little more exceptional than the real possibility that John Hinckley's attempt to assassinate President Ronald Reagan was influenced by his repeated watching of “Taxi Driver.” The behavior of unstable individuals, with psyches brimming with popular cultural representations, who have access to guns (and the violence they make possible) are sometimes going to bring themselves to our attention by their wayward acts. And when these lost souls come to our attention, they are sometimes going to tell us, by way of their lawyers, that it was a diet of Twinkies, the absence of exercise, too much or too little sex, or reading too many John Grisham novels, that lead them to: a) commit an act of violence, b) make the decision they did as a juror, c) or, as a lawyer, pursue a strategy in the trial of a case to win over movie savvy jurors.

Larry McMurty, in an essay titled, “Cowboys, Movies, Myths, and Cadillacs: Realism in the Western,” has some rather interesting things to say about realism (and the making of movies that feature cowboys). His remarks bear so directly on the reality critique adopted as a convention of legal film criticism, that I want to present it here:

In 1961 I published a novel with cowboys in it, in 1963 it was made into the movie Hud, and ever since then people have been asking me if I think movies and television portray the American cowboy as he really is. I think, of course, that they do not, and personally I have no great desire to see them try. My questioners apparently assume that realism in movies is something more than a method; for them it is a kind of moral imperative. In their view documentary similitude equals truth, equals art, and the western should quit falsifying and become a responsible genre.

For my part, fond as I am of responsible genres, I am not at all sure I want the western to be one. Until I read Robert Warshow’s celebrated essay on the westerner, I had been quite content to think of the western simply as a mode of entertainment, a mode in which the only “real” things were the horses and the landscape. I used westerns . . . as a means of disengaging myself from life for a couple of hours. I am seldom in the mood to look down my nose at such a cheap, convenient escape, and even seldomer in the mood to wonder whether the escape is art. I identify easily, and if I go to a movie that is even slightly real I am apt to find myself more engaged with life than ever; if it is a great movie the engagement may result in a sense of purgation, but great movies are few and far between, and if the film is all-too-believable and only middling good I often regret that I didn’t choose a western. The kind of escapes one chooses is significant, no doubt, but our culture provides such a variety that one’s curiosity about them is apt to be somewhat blunted. Until Hud was made I had never thought much about the western as art, but it had dawned on me that there was a certain lack of similitude in Hollywood’s treatment of cowboy life. Now and then, watching a western, I would see evidence that some director had got together with his technical adviser and made an earnest attempt to get his actors to looking like so-called “real” cowboys; the result, usually, was pretty much mixed pickles, with a few good details overbalanced by numerous examples of ignorance, negligence, or disinterest.

[Larry McMurtry, “Cowboys, Movies, Myths, and Cadillacs: Realism in the Western,” in W.R. Robinson (ed.), Man and the Movies 46-52, at 46-47 (Baton Rouge: Louisiana State University Press, 1967)]

McMurtry argues that, “[t]he effectiveness of the western as a genre has scarcely depended upon fidelity of detail . . . .”

[McMurtry goes on to note that "The cowboy (or gunfighter), whatever he may be like in real life, lives in the American imagination as a mythic figure, or at least a figure of high romance; his legend, however remotely it may relate to his day-to-day existence, is still one of the most widely compelling of our diminishing number of national legends." Id. at 48. Could we not, as McMurtry claims for the cowboy/gunfighter, make a similar claim for the trial lawyer?] Michael Roemer has observed that, “[t]hough our movies are clearly formulaic, the audience believes in them, just as we once believed in myths, legends, and fairy tales. They tell us what we know and confirm the truths we live by.” [Michael Roemer, Telling Stories: Postmodernism and the Invalidation of Traditional Narrative 282 (Lanham, Maryland: Rowman & Littlefield, 1995)(quoted in Philip N. Meyer, Making the Narrative Move: Observations Based Upon Reading Gerry Spence’s Closing Argument in the Estate of Karen Silkwood v. Kerr-McGee, Inc., 9 Clinical L. Rev. 229, 266 (2002)]

We know the reality critique is powerful; it is both widespread and still it is presented with the fanfare of revelation. But is the reality critique serving any viable purpose? We know it is a reassuring move for legal film critics—it gives them something to do, drawing on a purported expertise the lay viewer does not have—and yes, it represents a substantial blindness. The problem with the reality critique is that it props up and maintains a convention of legal film criticism that leaves us thinking we’re film critics when we are doing little more than defending the moral uprightness of the legal profession. Basically, the reality critique impoverishes the way we read lawyer films. The reality critique obscures the meaning of lawyer films even as it purports to be an essential element of a legal film critics work. The conventional realism critique leaves us with an inadequate understanding of a film as a story, as a drama with meaning, as a struggle to tell a story about justice.

In teaching Lawyers and Film, I concluded early on that the reality/legalism critique had no necessary place in the course. If comparing film lawyers to real world lawyers impedes our reading of the film, our focus on the story in the film, and prompts an inattentiveness to the film’s characters and their conflict, and the drama unfolding in the film—as I think it does—then we must find another way to watch a film, another way to read the film, another way of speculating about the meaning of the film. My conclusion, simply put, is this: The meaning of a film does not turn on its faithful portrayal of the everyday world of lawyers.

Note and a Website

The conventions of the reality critique of legal films reminds us of film studies scholar David Bordwell’s admonition that: “[C]riticism is shaped by the institutions that house it . . . .” [David Bordwell, Making Meaning: Inference and Rhetoric in the Interpretation of Cinema xiii (Cambridge: Harvard University Press, 1989)] And, we’re reminded of this basic proposition yet again, in David Kennedy’s claim that, “Projects of criticism and reform in a professional field arise in the context of an ongoing disciplinary practice.” [David Kennedy, When Renewal Repeats: Thinking Against the Box, 32 N.Y.U. J. Int’l L. & Pol. 335, 340 (2000)(“A great deal of what international lawyers do is polemicise for the existence, power, and usefulness of ‘international law.’” Id. at 343)] Kennedy goes on to note that to appreciate, the “mental map” of critics, “we should treat their pronouncements about the tradition they criticize and the future they urge into being almost as symptoms of their professional character.” [Id. at 344]