LESSONS FROM A HOLYWOOD LAWYER SCRIPT PLEASE DO NOT READ THIS MATERIAL UNTIL AFTER THE PRESENTATION ON June 9, 2017
NOTE: DUE TO TIME CONSTRAINTS NOT ALL THE FILM CLIPS IN THE SCRIPT WILL BE DISCUSSED LESSONS FROM A HOLLYWOOD LAWYER SCRIPT
I am probably a living, clinical example of an individual with multiple personalities.
On one hand—during the week I am a lawyer.
Before I became a professional talking head, I was a litigator.
I knew the rules of civil procedure and evidence. Though probably not as well as
some of you.
I understood how judges expected me to act in the court room.
I tried to adhere to the rules of professional conduct and the standards of
professionalism established by the bar. I balanced that with an understanding of
how to persuade jurors. On the other hand, I am a movie buff. I go to the movies
as often as I can.
Usually once a week.
I keep Netflix very busy.
1 I have nearly worn out my Kindle Fire stick.
When I go to the movies, what do I see?
LAWYERS!!!!!!!!!!!!
COURTROOM SCENES!!!!!!!!!!!!
Comedies (My Cousin Vinny: 1992, Liar, Liar: 1997), Dramas (Presumed Innocent:
1990, Primal Fear: 1996), Action Films (Carlito’s Way: 1993), Westerns: (The Man
Who Shot Liberty Valance: 1962, Hang’em High: 1968), Horror films (Cape Fear:
1962, 1991), even Fantasy films: (Harry Potter and the Order of the Phoenix: 2007).
Lawyers are everywhere. The lawyers I see from the comfort of my theater seat are
different from the lawyers I deal with every day, or from the lawyer I think I am or
aspire to be.
What is the difference?
Hollywood lawyers never lose (or at least the protagonist never loses).
They do it without answering a single interrogatory or taking a single deposition.
Hollywood lawyers always have great cases, interesting cases, sexy cases.
I’ve never seen a Hollywood lawyer prosecute anyone for speeding, a setback
violation or for dogs running at large.
I WANT TO BE A HOLLYWOOD LAWYER!!!!!!!!!!!
MORE IMPORTANTLY--- jurors and clients increasingly want me to be more like the
Hollywood lawyer.
2 People don’t want long-winded cross-examination on minute points—
o They want Tom Cruise tearing Jack Nicholson apart in A Few Good Men.
Clients don’t want complicated objections that they can’t understand—
o They want Cher explaining the character evidence rule in one sentence in
Suspect.
Jurors don’t want 3-hour closing statements that neatly tie up all the evidence of a
three week trial—
o They want Denzel Washington bringing them to tears in 2 minutes in
Philadelphia.
The theme I want to explore:
Hollywood lawyers don’t try cases the way real litigators have been taught to do so.
Hollywood lawyers often bend and more often break the ethical and professional standards we all swore to uphold.
Yet jurors—and clients—both of whom go to the movies—want to see more Hollywood and less Trial Advocacy Class.
But, if we emulate the Hollywood lawyer too much—we cannot adhere to the ethical and professional codes to which we all swore to uphold. It all becomes glitz and no substance. . . . . On second thought, that is not the kind of practice I want to engage in when the movie’s over and the lights come up.
3 HOLLYWOOD CAN BE INSTRUCTIVE ON ETHICS
WITHOUT BEING DULL AND BORING
4 CLIP #1 Lottery Ticket
Jack Warden plays a crazy, suicidal, burned-out state court judge keeping order in the court and reminding us where we practice our profession in the 1979 film And Justice for
All.
I don’t know about ______but out in New Mexico we still have that wild west mentality. There are still judges in New Mexico that routinely tote their guns to court.
Rule 1.2 Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety
“At All Times”: Good Conduct Expected On and Off Bench
The language of Rule 1.2, that a judge must act “at all times” in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, is an exacting standard that presents a judge with the prospect of living life in a fishbowl.
Disrespectful Conduct
Judges have been disciplined for behaving disrespectfully while on the bench, including the use of profanity or other inappropriate language in court. See, e.g., In re Goodfarb, 880 P.2d 620 (Ariz. 1994) (judge suspended for using racially inflammatory language and profanity in an official court proceeding); In re Bowers, 721 So. 2d 875 (La. 1998) (judge’s pattern of inappropriate language
5 and discourteous treatment of individuals appearing in his courtroom had negative impact on integrity and respect for judiciary, particularly because appearance in that court may have been litigant’s and witness’s only exposure to the system; court stated “[i]t is a presiding judge’s duty to rise above the chaos that may surround him in order to ensure professionalism and civility on the part of all persons involved. . . . While a judge may be forceful and stern, he or she must remain respectful and in control of his or temper— hostile, demeaning or humiliating language is never warranted.”).
Rule 2.8 Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.
Annotation Order and Decorum Rule 2.8(A) requires that judges maintain order and decorum in their courtrooms.
For instance, a judge may violate Rule 2.8(A) by yelling or making inappropriate remarks to litigants, lawyers, and others appearing before him or her. See, e.g., In re Trettis, 577 So. 2d 1312 (Fla. 1991) (judge reprimanded for directing verbal tirades at jurors, defendants, and attorneys)
Miss. Comm’n on Jud. Performance v. Spencer, 725 So.2d 171 (Miss. 1998) (judge demonstrated outrageous, erratic conduct and hostile demeanor toward those exposed to him.
6 WHAT IS ETHICS? We know it involves a complicated balancing of generally accepted rules of conduct balanced against the specific facts of a situation. The Kansas Rules of
Professional Conduct consist of 55 separate rules—Committee Commentaries to most rules—Ethics Committee Opinions—and of course Court Decisions. Hollywood is able to distill this analysis into a simple statement:
CLIP #2 “Ethics”
Danny Devito plays Deck Shefflet, in the 1997 film The Rainmaker. Shefflet is a law school graduate who can’t seem to pass the Bar—he has taken it 6 times. He is employed by an personal injury attorney—Bruiser Stone—to “find” clients for Bruiser. One of places he is most likely to find clients for a P. I. lawyer is the hospital. Deck and Rudy
Baylor (Matt Damon) have just “signed up” a new client, Mr. Van Landel (James
Cunningham), who was bedridden, in extreme pain and probably under the influence of pain killing narcotics.
“Fight for your client” embodies the ethical requirements of Rule 1.1 mandating that a lawyer shall act competently; Rule 1.2 Dealing with the scope of Representation;
Rule 1.3-Diligence; Rule 1.6 Client Confidences; Rule 1.7 and 1.8 Conflicts,and Rule 3.2 that requires a lawyer to make reasonable efforts to expedite litigation consistent with the interests of the client. Rule 3.2 is the modern counterpart to the Model Code section
DR 7-101 that required an attorney to represent a client zealously.
7 “Refrain from stealing money” is Deck’s way of encapsulating a centuries old prohibition against taking something that does not belong to you; “Thou shalt not steal.”
It is fairly uncommon for lawyers to steal. The probability of getting caught is high, as evidence of stealing is often difficult to hide. Disciplinary Boards are rather uncompromising and unforgiving of lawyers who engage in this practice. See Rule 1.15.
“Refrain from stealing money” might also allude to responsibilities under Rule 1.5, Fees, and 1.15 Safekeeping property.
“Try not to Lie” suggests that for lawyers, complete honesty is an impossibility.
But is it a requirement? Look at Rule3.3--Candor to the Tribunal; 3.4 Fairness to
Opposing Party and Counsel; and 4.1 Truthfulness in Statements to Others. Is the time honoured “honesty is the best policy” workable in the legal world? The lawyer’s duty of confidentiality strongly suggests a different policy in the name of the abstract system of justice. Lawyers must sometimes decline to reveal the truth in favour of preserving a client confidence. Lawyers may not reveal information relating to the representation of a client unless the client consents. On the other hand, a lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm. Is a lawyer ever permitted to lie? We will explain this issue when we address client confidences.
8 CLIP #3 “Let’s Bolt”
After putting the pieces together and coming to the conclusion that Bruiser‘s indictment was imminent, Rudy and Deck, each in possession of $5,500 courtesy of Bruiser and representing their “share” of the Van Landel settlement decide to “bolt” and form a partnership.
Rudy and Deck have now violated two separate provisions of Rule 5.4. The first involves the prohibition against sharing legal fees with a non-lawyer, Rule 5.3(a) and the second concerns the prohibition against a lawyer forming a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law, 5.3(b). The provisions of this rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment, (See Commentary to
Rule 5.4.
9 CLIP #4 “Eliminate the Witness” APPOLIGIZE IN ADVANCE FOR
COLOURFUL LANGUAGE
Class Action (1990) involves a products liability claim based on an exploding gasoline tank in the Argo Meridian. Argo is represented by Margaret Eleanor Ward (Mary
Elizabeth Mastrantonio). Maggie happens to be the daughter of the renowned personal injury lawyer Jedediah Tucker Ward (Gene Hackman), her opponent in this litigation.
[Anyone have a problem with this?] Maggie is a senior associate in a mega California law firm, who is aching to be made partner. Maggie’s resolve and sense of fairness is put to the test during the deposition of the lone survivor of a fiery crash that killed his family.
Rule 4.4 states that a lawyer a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. Certainly, Maggie was entitled to explore the facts and circumstances surrounding the accident involved in the litigation, and any underlying issues that may have played a part, but her actions in producing photographs of the deponent’s dead family cross the line. What about the comment at the end of the clip “Jed, we have angles like this on all your witnesses”?
The unfortunate truth is that the Federal Rules, and most local rules do not adequately deal with the problem of abusive questioning. FRCP Rule 30(d)(1) permits an attorney to direct a witness whom (s)he represents not to answer a question that is designed to embarrass or burden the deponent, but that same right does not extend to non-
10 clients such as other fact witnesses or expert witnesses. The only real remedy in these cases is for the attorney to seek a protective order under FRCP Rule 30(d)(3), but from the judges I interviewed for this paper, most judges despise being dragged into discovery squabbles.
11 CLIP #5 “Bury It”
During her pre-trial preparation Maggie uncovers a test report from Argo’s Chief
Engineer Alexander Pavel (Jan Rubes). During the course of the plaintiff’s pre-trial preparation, Jedediah Ward makes a Request for Production of documents pursuant to
Rule 34. Maggie prevails upon her partners, Michael Grazier , who is also her lover
(Colin Friels) and Senior Partner Fred Quinn (Donald Mofatt) that discovery of the report is authorized under the rules. Here is her discussion with her partners concerning production of the report.
They agreed to bury the document, but in reality, Grazier removed the entire document from the production and transposed numbers in the document index. Maggie and Michael are guilty of what is called a “file dump” which is production of the requested documents mixed in with a large number of worthless documents. A variation of this is the practice of “shuffling” documents whose significance is apparent only when read in a certain order. The Federal Rules of Civil Procedure, in an effort to address these unfair practices amended Rule 34 to require that documents be produced “as they are kept in the usual course of business or. . .organized and labeled to correspond with the categories in the request. “
Removing and destroying the document is a clear violation of the discovery rules as well as Rule 3.4 of the Rules of Professional Conduct. Is the intentional concealment of the document a violation as well? If the indexing of the documents was responsible for the inaccessibility of the document, that fact might be sufficient to overcome the allegation that the obstruction of the document was unlawful, but Michael’s actions in
12 creating a sophisticated and nonsensical indexing system indicates intent to obstruct access to the document in violation of Rule 3.4
13 CLIP #6 Vinny’s Opening
My Cousin Vinny 1992. Joe Pesce is Vinny Gambini, an ex-auto mechanic who recently became a lawyer after taking the bar a 6th time. He is in Alabama to represent his cousin and a friend who have been charged with murder Here is Vinny’s opening statement.
Something I’ve always wanted to do.
Did Vinny violate any rules?—Probably none that would get him prosecuted.
He might be guilty, however, of stating a personal opinion as to the justness of a case, although Vinny’s opening statement only referred to the content of the prosecutor’s opening statement.
Although it was a huge lack of decorum.
ABA Model Rule 3.4 prohibits asserting a personal opinion as to the justness of a case.
Rule 3.4(c) knowingly disobeying an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists?
Rule 3.4 (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except while testifying as a witness, or state personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of the accused.
What about Rule 8.4 conduct prejudicial to the administration of justice?
Not according to the Kansas commentary seems to suggest that Rule 8.4 will be invoked primarily in matters relating to moral turpitude.
14 CLIP #7 Kirkland’s Meltdown
And Justice For All. Al Pacino plays Arthur Kirkland, a Baltimore criminal defense lawyer forced to represent Judge Henry T. Flemming, whom he has always loathed against a rape charge. Just as the trial is set to begin, Kirkland learns that his client is not only guilty, but that he has rigged the trial in his favor.
May have violated Rule 3.4(c) by disobeying an obligation under the rules of a tribunal
Definitely violated ABA Model Rule 3.4(e) by referring to matters that are inadmissible and that never will be admitted.
What about Rule 1.6 re: revealing information obtained during the representation without client consent?
The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.
Kirkland did reveal information related to the representation of the client.
Rule 1.6 permits such a revelation to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; IS THIS THE CASE?
What about Rule 3.5(c) A lawyer shall not engage in conduct intended to disrupt a tribunal?
He most certainly did this.
What about Rule 8.4 conduct prejudicial to the administration of justice?
Was his conduct an offense involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category? (This is the standard in Kansas)
Did he do anything right? What is his obligation once he determines That Fleming has rigged the case?
15 --Withdraw? --Disclose
He certainly prevented a fraud from being Perpetrated on the court. He prevented a Crime (perjury) from being committed.
See Rule 1.2 (A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent)
The lawyer may not reveal the wrongdoing except under Rule 1.6, but the lawyer may not continue to assist in the fraudulent conduct. Lawyer may have to withdraw (See Rule 3.3)
See Rule 3.3(a)(3) A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
SEE: Comment to 3.3 Three solutions are available:
The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted (is this a Competence Rule 1.1 issue?) as well as open the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. A second suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.
The third resolution of the dilemma is that the lawyer must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 1.2(d).
Did he go too far?
Remedial Measures
16 Rule 3.3 Requires:
If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done--making a statement about the maker to the trier of fact, ordering a mistrial, or perhaps nothing.
Look at Rule 1.16
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client, if: (1) the representation will result in violation of the Rules of Professional Conduct or other law;
(b) Except as dated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
BUT: WHEN ORDERED TO DO SO BY A TRIBUNAL, A LAWYER SHALL CONTINUE REPRESENTATION NOTWITHSTANDING GOOD CAUSE FOR TERMINATING THE REPRESENTATION.
17 CLIP#8 MissAmerica
1971 film Bananas where Woody Alien plays Fielding Melish—an anti-war protester who becomes President of a small South American country and who is later put on trial for treason when he returns to the US seeking money for his country. This is the direct examination of one of the witnesses against Melish.
Violates FRE 701 re: Opinion evidence offered by non-experts.
Bored Bar Counsel might argue a violation of Rule 3.4(c) disobeying an obligation Under the rules of a tribunal (Rules of Evidence)
UNLIKELY THAT THESE CHARGES WILL GO VERY FAR IF THEY ARE BROUGHT AT ALL.
18 CLIP # 9 “Leading”
This clip from the 1997 film The Rainmaker shows Matt Daymon as Rudy Baylor in his first trial as a newly admitted lawyer. He is about to examine his very first witness, the mother of his deceased client before the honorable Danny Glover.
Leading questions on direct are objectionable under FRE 611(c) “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” It is not a categorical prohibition.
One possible disciplinary violation is 3.4(c) knowingly disobeying an obligation under the rules of a tribunal.
The judge is probably better suited to deal with this violation of the rules
What about Rule 1.1 Competence? Possible violation, but all trial judges and bar counsel will undoubtedly remember how green they were during their first trial and cut some slack.
Was it proper for Drummond to continue to object to the leading nature of the questions?
19 CLIP #10 Voir Dire
My Cousin Vinny. Here we have the District Attorney Jim Trotter III (Lane Smith) conducting voir dire examination on Miss Mona Lisa Vito—played by the Marisa Tomei.
She is an out of work hairdresser who grew up the daughter of an auto mechanic. She is also Vinny’s girlfriend.
Trotter’s voir dire of Mona LisaVito may have crossed the line under Rule 4.4 because he was asking questions with no substantial purpose other than to embarrass the witness.
He is entitled, however to ask questions that point out limitations in the witness’ knowledge, skill, experience, training or education to the point that the witness would not be accepted by the judge as an expert.
20 CLIP #11 The Confession
In Legally Blonde 2001 -Reese Witherspoon plays Elle Woods, a Harvard law school student who enrolled in school to be close to her boyfriend who recently dumped her because she was not serious enough for him—she was a 4.0 student in fashion merchandising. During her internship, her firm was retained to represent Brooke Taylor
Windam who is accused of killing her husband. The senior partner has been fired by the client, and Elle has been hired—she is working under a supreme court rule allowing her to represent clients if supervised by a lawyer.
Inept, but probably not unethical. Her rapid fire questioning without giving the witness an opportunity to answer is objectionable as is her irrelevant banter concerning the wet t- shirt contest at the sorority.
The judge is better equipped to handle this situation than the disciplinary process.
21 CLIP #12 Barney Quill
Anatomy of a Murder 1959 George C Scott portrays the Assistant Attoprney Claude Dancer (from the “Big City of Detroit”). Here he is cross examining Mary Pilant, the quiet woman who manages the Thunder Bay Inn for Barney Quill—the victim of a murder. Pilant has been called as a surprise witness for the defense to produce the missing underwear worn by Lee Remmick when she was allegedly attacked by Quill on the night of the murder.
This is a classic example of an attorney bullying, badgering and otherwise intimidating a witness.
Possible violation of Rule 4.4 because he was asking questions with no substantial purpose other than to embarrass the witness.
But this is cross examination-- pointing a finger at the witness, or raising the volume of his voice were intended to apply psychological pressure to the witness and increase the probability that the witness would admit uncertainty or commit perjury.
Great latitude is given lawyers on cross.
Does he cross the line when he gets nose-to nose with the witness?
I think so, but the individual trial judge will probably decide where that line is.
22 CLIP#13 “ILied”
During Woody Allen’s trial for treason in Bananas, he confronts one of the witnesses against him—it’s a great take off on every Perry Mason court room scene you have ever seen.
My most favourite example of cross examination.
Very “Perry Masonesque”. Although we don’t know what exactly he said, is appears to be an effective cross examination with little harassment or intimidation of the witness.
23 CLIP #14 “Your Momma
From the 1990 film Presumed Innocent. Harrison Ford-(Rusty Sabich) is accused of killing his former love interest and fellow assistant district attorney. He is on trial for murder. The DA Nico Delia Guardia is trying to talk Judge Larren Little (Paul Winfield) into letting his chief deputy Tommy Molto (Joe Grifasi) testify. This clip seeks permission for Molto to testify concerning the alleged confession of the defendant Rusty
Sabich (Harrison Ford). The movie judge (Winfield) supplies the correct answer in the film, and does so in a way that should have discouraged Mr. Delia Guardia.
Rule 3.7: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue.
If the matter upon which the lawyer intends to testify are uncontested, then ambiguities in the dual role of the lawyer become purely theoretical.
Prejudice to the opposing side is the main issue this rule seeks to address. Whether the opposing side will be prejudiced depends on: a) the nature of the case b) the importance and probable tenor of the lawyer’s testimony. c) Probability that the lawyer’s testimony will conflict with the testimony of oothers. In deciding whether to disqualify the lawyer, consider the effect of the disqualification on the client.
But see Rules 1.7 Conflicting Interests and 1.9 Mandatory withdrawal.
24 CLIP #15 You’re the DA
Not deterred, Delia Guardia himself offers testimony in order to refute pointed cross- examination of the former District Attorney Raymond Horgan (Brian Dennehy). Once again this proffered testimony is correctly refused.
Rule 3.7: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue.
If the matter upon which the lawyer intends to testify are uncontested, then ambiguities in the dual role of the lawyer become purely theoretical.
Prejudice to the opposing side is the main issue this rule seeks to address. Whether the opposing side will be prejudiced depends on: d) the nature of the case e) the importance and probable tenor of the lawyer’s testimony. f) Probability that the lawyer’s testimony will conflict with the testimony of oothers. In deciding whether to disqualify the lawyer, consider the effect of the disqualification on the client. But see Rules 1.7 Conflicting Interests and 1.9 Mandatory withdrawal.
25 CLIP #16 Drummond Closing
In The Rainmaker, Jon Voight plays Leo F. Drummond, a win at all costs corporate lawyer who is representing Great Benefit Insurance Company against a claim of bad faith brought by Rudy Baylor. This is his closing argument.
Totally irrelevant closing made only to inflame the jury and to ask them to vote their hearts and not according to the evidence. Totally improper and probable violations of
Rules 3.4 (c) and ABA Model Rule 3.4(e)
26 CLIP #17 The Bonnet
In the 1949 film Adam’s Rib Spencer Tracy prosecutes Billy Holliday for shooting her wayward husband at the apartment of his girlfriend. Holiday is represented by Katherine
Hepburn, Tracy’s wife. Throughout the trial, Holliday has worn a hat that Hepburn let her borrow, but which was actually purchased by Tracy.
Possible violation of 3.4(c) in that he was offering new evidence during closing when he should have been summing up the evidence.
Do the Rules of evidence speak to this conduct, or is it normally handled by the trial judge during closing?
Rule 4.4 using means with no other purpose other than to harass or burden the witness.
8.4 Conduct that is prejudicial to the administration of justice— Violence?--he committed a battery on the witness.
Rule 3.7: A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where the testimony relates to an uncontested issue.
Was this the case?
What about Rule 8.4—A criminal act reflecting adversely on his honest, trustworthiness fitness as a lawyer in other respects? KS
27 CLIP #18 Colt’s Fan (Judges)
John Forsyth, the voice behind “Charlie” of Charlies Angels (1976-1981) plays Judge
Henry T. Fleming. Fleming is a hard-line, prosecution favoring, by the book kind of judge who has little tolerance for criminals. Here, the clerk has just called the case of
State v. Robert Wenke for what appears to be an arraignment. The defense attorney Jay
Porter is played by Jeffrey Tambor.
28 CLIP #19 Leading II (Judges)
In this scene from The Rainmakeri defense attorney Leo Drummond (John
Voight) is cross examining the plaintiff Dot Black (Mary Kay Place). Rudy Baylor (Matt
Damon) remembering that he was subjected to numerous objections for invoking leading questions, objects when Drummond begins to pepper Dot with leading questions. Judge
Tyrone Kipler (Danny Glover) rules on Baylor’s objection.
29 Clip # 20 Surprise Witness (Judges)
This clip, also from The Rainmaker has Leo Drummond (John Voight) objecting to a witness called by Rudy Baylor (Matt Damon). The witness was an employee of
Great Benefits Insurance Company that the company (fired/permitted to resign).
Drummond is objecting to the witness because she was a surprise and it was not anticipated that Baylor would be able to find her.
30 CLIP # 21 Lose My Case (Judges)
In this scene from The Verdict, Frank Galvin (Paul Newman) is a down and out alcoholic lawyer who has just been referred a big medical malpractice case. Galvin has only handles four cases in the previous three years and handled them badly at that. Judge
Hoyle (Milo O’Shea) has denied Galvin’s request for a continuance after Galvin’s expert witness mysteriously disappeared and the case has begun. Galvin offers his new-found expert witness, a 72 year old general practitioner whose main focus lately has been to testify against fellow physicians. Judge Hoyle has decided he needs additional information from the witness.
31 CLIP # 22 LoseMyCaseII (Judges)
Following Judge Hoyle’s brutal and damaging cross examination of his witness
Galvin makes a comment to Judge Hoyle suggesting that if the judge were going to try his case that he wished he wouldn’t lose it for him. Both lawyers were immediately summoned into chambers where Hoyle unleashes a tongue lashing on Galvin. Years ago,
Galvin while a member of a prominent law firm, was accused of jury tampering and brought before the disciplinary board. Although cleared of the charges, he withdrew from the firm and fell into his alcoholic way of life.
32 CLIP # 23 Get a License (Judges)
Rudy Baylor (Mat Damon) with his freshly printed law degree, appears before the
Honorable Harry Hale (Dean Stockwell). His boss and supervising attorney Bruiser
Stone (Mickey Rourke) is not in the court room. Baylor announces that he is prepared to argue the pending motion to dismiss.
33 CLIP # 24 Rule 11 (Judges)
In this excerpt from A Civil Action Judge Walter J. Skinner (John Lithgow) exhibits his obvious disdain and prejudice against plaintiff’s lawyers with his snide comments directed towards Jan Schlictman (John Travolta) during a hearing of defense counsel’s
(William Cheeseman, played b y Bruce Norris) motion to dismiss and for sanctions under
Rule 11 FRCP.
34 CLIP#25 210K (Judges)
This scene from The Verdict gives the viewer a good look at Judge Hoyle’s (Milo
O’Shea) disposition in this case. Frank Galvin (Paul Newman) is a struggling alcoholic lawyer who is in the middle of a big medical malpractice case. His opponent in the case is the senior partner in a prestigious law firm Ed Concannon (James Mason). Concannon has just offered Galvin $210K to settle the case out of court. What follows is the conversation among Hoyle, Galvin and Concannon concerning the settlement offer.
35 CLIP # 26 Case Dismissed (Judges)
In Presumed Innocent the prosecution has just finished its case, and the court is set to entertain a motion for directed verdict from the defense. Prior to granting the motion, Judge Larren Little (Paul Winfield) “explains” his ruling.
36 CLIP #27 Attorney Client
Consider Rudy Baylor (Mat Damon) in The Rainmaker. Baylor is retained to prepare a will for an elderly client Miss Birdie (Teresa Wright). Miss Birdie has inherited a small amount ($25,000) from her spouse who has just passed away and is inclined to cut her two children out of the will because they are money-grubbing losers. Baylor, when confronted by “Birdie’s youngest” Delbert Birdsong (Sonny Shroyer) invokes the attorney-client privilege when it becomes apparent that his client Miss Birdie doesn’t want to discuss the situation of the will with Delbert. But Baylor, takes another step by telling Delbert (out of Miss Birdie’s earshot) that she has inherited “millions”.
He started out doing exactly the right thing—did he finish accordingly? Did his final statement to the son violate the confidences of the client?
Baylor tells Birdie’ s son a lie; Baylor tells him that Birdie has inherited “millions”, but in doing so seemingly improves the manner in which the children will treat Miss Birdie in the future. Does this rise to the level of professional misconduct?
Rule 4.1 provides that a lawyer shall not knowingly make a false statement of material fact or law to a third person. Is Baylor's statement to the son, a statement of material fact?
Did the fact that the disclosure ultimately benefit the client matter?
37 CLIP #28 The Alibi
Consider also, Elle Woods (Reese Witherspoon) in Legally Blonde. Elle is a law student who is working in an internship program in her Criminal Law professors’ private law firm. The firm has been retained to represent Brook Taylor Windham (Ali Taylor) who is accused of murdering her husband. The lead counsel, Professor Callahan (Victor Garber) is interested in finding out whether Brooke has an alibi to present. Elle visits Brooke at the jail, and during the course of exchanging various health and beauty articles obtains the alibi from Brooke. It seems that Brooke is a health guru, but at the time of the murder, she was undergoing liposuction. She swears Elle to silence under the bonds of sisterhood
(Delta Nu Sorority).
Elle returns to the law firm and announces that she has obtained the alibi, but cannot share it with the defense team. She is browbeaten and humiliated, but nevertheless is steadfast in her refusal to disclose the potentially disastrous, yet case-saving alibi.
Rule 1.6 prohibits a lawyer from disclosing information related to the representation of the client unless the client gives informed consent or unless disclosure is impliedly authorized to carry out the representation of the client.
Could Elle have ethically disclosed the client’s secret to her supervising attorney?
This was a perfect alibi to the criminal charges.
Isn’t this evidence “impliedly authorized to carry out the representation of the client?
Elle is not a lawyer, could she have made the disclosure to her supervisor or to another associate in the firm?
38 RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a non-lawyer employed or retained by or associated with a Lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer, if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
The Commentary to the Rule states: A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product.
What about Rule 1.2?
Can the Client limit then scope of the representation? Remember, the client made it clear to Elle that she did not want the secret disclosed.
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued.
39 Commentary: The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives.
Would Elle or Callahan be guilty of violating Rule 1.1 if they had an airtight alibi that they failed to present and Brooke got convicted?
What if Brooke brings a habeas corpus after a couple of years in prison alleging ineffective assistance of counsel?
40 CLIP # 29 Conspiracy Theory
We are nearing the end of the case in Class Action. Maggie Ward (Mary
Elizabeth Mastrantonio) has discovered that the pivotal engineering report of Dr. Pavel
(Jan Rubes) has been destroyed and not produced to the plaintiff. Maggie has also deliberately put Michael Grazier (Colin Friels) on the witness stand knowing he will lie concerning any knowledge of Dr. Pavel’s report. (An ethical violation in its own right)ii
Now Maggie has taken the added step of providing the plaintiff’s attorney, her father, with the name of the company “bean counter” who has just testified that it was the company’s position that it was more cost effective to ignore the engineering problem and refuse to fix the mechanical problem, opting instead to pay for the occasional claim for personal injuries and wrongful death should they arise.
Senior partner Fred Quinn (Donald Mofatt) is outraged.
Rule 1.6 prohibits an attorney from revealing information relating to the representation of a client, unless the client consents after consultation. This confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source, (See Commentary to Rule 1.6).
Lawyers may reveal client confidences to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm or to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to
41 allegations in any proceeding concerning the lawyer’s representation of the client, Rule
1.6). Neither of these exceptions is applicable in this case.
Putting aside the fact that Maggie offered the perjured testimony of Michael
Grazier (Colin Friels) in direct violation of Rule 3.3, as Maggie under an obligation to do something concerning her knowledge that Dr. Pavel’s testing report was withheld from discovery and ultimately destroyed? Although Maggie did not personally violate Rule
3.4 concerning the obstruction or destruction of material evidence from the opposing party, she has actual knowledge that her partners did. What is her obligation to the
Court? Maggie may be required under Rule 3.3(a)(1) to disclose this fact to the Court.
The Rule states: A lawyer shall not knowingly fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client,
(Rule 3.2(a)(2)). This duty continues to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1. (Rule
3.2(a)(2))6. But this put the essence of attorney-client confidences at risk because Rule
1.6 prohibits disclosure of confidential information concerning past criminal activity.
Maggie thought her obligation under the Rule went further. Instead of reporting the unethical conduct of her partners, she took it upon herself to provide the opposing side the name of a witness (the beancounter) who could corroborate the testimony that was destroyed. Maggie had an obligation to disclose to the court and possibly to the opposing side the fact that the evidence had been destroyed, but the duty not to conceal evidence does not imply a duty to report or volunteer all relevant information. In fact, it
42 was probably a violation of Rule 1.6 for Maggie to have provided the name of the bean counter to the opposition.
The best course of action would have been for Maggie to withdraw from the representation. Rule 1.16 permits an attorney to withdraw from the representation if the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; or the client has used the lawyer’s services to perpetrate a crime or fraud. This would have killed her career at the firm, but she was already well on her way to ending her legal career by her actions.
43 CLIP #30 HelpfromtheJudge (Judges)
In this scene from the Juror, Annie Laird (Demi Moore) is a single mother who has been selected to serve on a jury of a murder case against a member of the Mob. She almost insisted on being seated after being given ample opportunity to be excused. During the course of jury selection and the trial, Laird has been contacted on several occasions by
“The Teacher” (Alec Baldwin). At first, the Teacher treated her nicely, they even began a social/romantic relationship. Soon the plot turned sinister. Teacher began to threaten
Annie and her son, but he assured her everything would be OK if she could repeat two words---“Not Guilty”
Annie has decided to take the issue up with Judge Weitzel (Michael Constantine)
44 CLIP#31 “LeanonLeo” (Judges)
After taking Leo Drummond’s (John Voight) motion to dismiss under advisement, Rudy
Baylor (Mat Damon) and Drummond are invited into Judge Harry Hale’s (Dean
Stockwell) chambers to discuss how the case will proceed.
45 CLIP # 32 No Sympathy (Judges)
Galvin has rejected Concannon’s offer of $210K to settle and Judge Hoyle’s not so gentle prodding. It is the eve of trial and Galvin’s witness has suddenly decided to take a vacation to Bermuda. After trying to locate him for several hours, Galvin, in desperation, goes to visit Judge Hoyle at home.
46 CLIP #33 Sharks in the Water (Finishing Clip)
The Rainmaker—This is a thought provoking ending.
47 CLIP #34 Your Father’s Passing (Alternate Finishing Clip)
To Kill a Mockingbird 1962 represents the kind of Hollywood Lawyer I would like to be.
Gregory Peck agreed to represent Tom Robinson, a young African American accused of beating a raping a white woman in a small southern town. Despite all his efforts,
Robinson is convicted.
48 Clip # 35 “Liar”
In Liar, Liar 1997—Jim Carey is Fletcher Reede, a matrimonial lawyer who is forced to tell the truth for 24 hours as a result of his son’s birthday wish. Here, he is defending the wife in a divorce proceeding in which she is challenging a prenuptial agreement in light of accusations of frequent infidelity. Here Reede is examining the wife’s boyfriend. In the previous scene and earlier in the film, the boyfriend and wife decided to lie about the true nature of their relationship.
Silly, but entertaining. If it happened in a real courtroom the judge probably would probably handle this through her contempt powers.
Possible violation of 1.6—revealing information relating to the representation of a client without consent.— IS the fact of client’s multiple indiscretions the type of information contemplated by the rule?
BUT NOTE:
3.3(a)(4) requires the lawyer to take remedial steps if a witness offers material evidence that is false. Lawyer required to (1) try to pursuade the client not to commit the fraud; (2) withdraw from the case; and finally (3) make a disclosure to the court.
Did Reede’s “remedial action” go too far?
ABA Model 3.3(b) similar rule regarding knowledge of a client or witness’intent to offer perjured testimony. Lawyer is required to take remedial measures.
What about 1.2 prohibiting a lawyer from engaging or assisting a client in fraudulent conduct?
Did he do enough to discourage the presentation of perjured testimony?
Reede knew the boyfriend was going to lie and he put him on the stand anyway.
Rule 3.3 A lawyer shall not knowingly offer evidence that the lawyer knows to be false.
49 Possible violation of the“catch-all rule. 8.4 prohibitinga lawyer from engaging in conduct that is prejudicial tothe administration of justice.
THIS IS NOT NORMALLY CHARGED IN THE ABSENCE OF OTHER SPECIFIC ALLEGATIONS OF MISCONDUCT
50 CLIP # 36 “I Object”
Same film, Reede objects to the introduction of an audio tape make of the wife and her boyfriend by a private investigator.
Sometimes during testimony, we find ourselves in a position of wishing we could interrupt the flow of the speaker. The opposing lawyer is making points that are destructive to your case. Ever been there? Assuming that the lawyer is strictly complying with the rules of the tribunal, is it unethical to interpose an objection simply to interrupt your opponent’s flow? Consider the film Liar, Liar, when Fletcher Reede (Jim
Carey) objects to the introduction of evidence because it is “devastating to my case”.
Could the objector be guilty of an ethical violation?
Consider Rule 8.4(d) what I lovingly call the general “catch-all” rule. Rule 8.4(d) makes it professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. Is Mr. Reede’s groundless and unfounded objection prejudicial to the administration of justice? You be the judge. I doubt that any disciplinary authority would seek sanctions for such a stupid objection. I feel certain that the trial judge’s sanction at the time the objection was made will provide sufficient incentive not to repeat the same mistake.
51