References to Television Programming in Judicial Opinions and Lawyers' Advocacy
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Marquette Law Review Volume 99 Article 6 Issue 4 Summer 2016 References to Television Programming in Judicial Opinions and Lawyers’ Advocacy Douglas E. Abrams Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Repository Citation Douglas E. Abrams, References to Television Programming in Judicial Opinions and Lawyers’ Advocacy, 99 Marq. L. Rev. 993 (2016). Available at: http://scholarship.law.marquette.edu/mulr/vol99/iss4/6 This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. REFERENCES TO TELEVISION PROGRAMMING IN JUDICIAL OPINIONS AND LAWYERS’ ADVOCACY DOUGLAS E. ABRAMS* “Think of the poor judge who is reading . hundreds and hundreds of these briefs,” says Chief Justice John G. Roberts, Jr. “Liven their life up just a little bit . with something interesting.” Lawyers can “liven up” their briefs with references to television shows generally known to Americans who have grown up watching the small screen. After discussing television’s pervasive effect on American culture since the early 1950s, this Article surveys the array of television references that appear in federal and state judicial opinions. In cases with no claims or defenses concerning the television industry, judges often help explain substantive or procedural points with references to themes and fictional characters from well-known dramas or comedies. The courts’ use of television references invites advocates to use these cultural markers in the briefs they submit. I. INTRODUCTION ................................................................................. 994 II. TELEVISION AND CONTEMPORARY AMERICAN CULTURE ........ 996 III. TELEVISION REFERENCES IN JUDICIAL OPINIONS....................... 998 A. Dramas ....................................................................................... 999 1. Perry Mason ..................................................................... 999 2. Other Television Dramas About Lawyers and Law Enforcement ................................................................... 1003 3. Reality Television .......................................................... 1007 4. Television Dramas Unrelated to Lawyers and Law Enforcement ................................................................... 1009 B. Situation Comedies ................................................................. 1011 1. Periscope to the 1950s ................................................... 1011 2. More Recent Sitcoms .................................................... 1015 IV. THE PLACE OF TELEVISION REFERENCES IN JUDICIAL OPINIONS AND WRITTEN ADVOCACY ......................................... 1018 * Associate Professor of Law, University of Missouri. B.A. 1973, Wesleyan University; J.D. 1976, Columbia University School of Law. Professor Abrams’s latest book is Effective Legal Writing: A Guide for Students and Practitioners (West Academic 2016). 994 MARQUETTE LAW REVIEW [99:993 V. CONCLUSION .................................................................................... 1019 I. INTRODUCTION “Think of the poor judge who is reading . hundreds and hundreds of these briefs,” says Chief Justice John G. Roberts, Jr.1 “Liven their life up just a little bit . with something interesting.”2 Justice Antonin Scalia similarly advised brief writers to “[m]ake it interesting.”3 He said, “I don’t think the law has to be dull.”4 “Legal briefs are necessarily filled with abstract concepts that are difficult to explain,” he continued.5 “Nothing clarifies their meaning as well as examples,” which “cause the serious legal points you’re making to be more vivid, more lively, and hence more memorable.”6 Brief writers can “liven up” their court filings with memorable examples drawn from television programs generally known to Americans. In written opinions that decide cases with no claims or defenses concerning television programming or the television industry, judges often help explain substantive or procedural points with references to themes and fictional characters from well-known dramas or comedies.7 In civil and criminal cases alike, the courts’ own use of television references (and references to other cultural stimuli such as music, literature, and sports)8 invites advocates to use television in the briefs they submit. 1. Bryan A. Garner, Interviews with United States Supreme Court Justices: Chief Justice John G. Roberts Jr., 13 SCRIBES J. LEGAL WRITING 5, 18 (2010). 2. Id. 3. ANTONIN SCALIA & BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 112 (2008). 4. Jan Crawford Greenburg, Justices Scalia and Breyer: Little in Common, Much to Debate, ABC NEWS (Dec. 6, 2006), http://abcnews.go.com/Politics/story?id=2704898 [https://perma.cc/GU9C-EK9Q]; see also RUGGERO J. ALDISERT, WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT § 9.2, at 152 (rev. 1st ed. 1996) (“[I]t is not unconstitutional to be interesting.”); Wiley B. Rutledge, The Appellate Brief, 28 A.B.A. J. 251, 254–55 (1942) (“It helps to break the monotony of the printed legal page to add a bit of life now and then. A dull brief may be good law. An interesting one will make the judge aware of this.”). 5. SCALIA & GARNER, supra note 3, at 111. 6. Id. at 111–12. 7. See, e.g., Spotted Cat, LLC v. Bass, No. 13–6100, 2014 WL 4072024, at *3 & n.32 (E.D. La. Aug. 18, 2014). 8. See, e.g., Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269, 301 (2008) (Roberts, C.J., dissenting) (quoting BOB DYLAN, LIKE A ROLLING STONE (Columbia Records 2016] REFERENCES TO TELEVISION PROGRAMMING 995 Some judges “liven up” their opinions by discussing reality programming and television dramas that regularly feature lawyers and law enforcement; other judges discuss dramas and situation comedies (sitcoms) that rarely mention the law. Some of the shows (such as Perry Mason and Dragnet) feature characters and themes that appeared earlier in novels or on radio, but it is fair to assume that today’s recollections come primarily from their hit television series. Television references may appear in opinions handed down years after the cited show left the air. Typical is Spotted Cat, LLC v. Bass, which disqualified the plaintiff restaurant’s counsel in a damage action alleging that the defendant’s false representations interfered with the restaurant’s efforts to prepare for Hurricane Isaac in 2012.9 The federal district court found that counsel, one of the restaurant’s two members, would be a necessary trial witness (and indeed perhaps the sole witness on the liability issue) because he had the critical face-to-face exchanges with the defendant.10 In Spotted Cat, Judge Jane Triche Milazzo applied Rule 3.7 of the ABA’s Model Rules of Professional Conduct,11 which provides that, with exceptions that the court found inapplicable, “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.”12 The court rejected the plaintiff’s speculation that the defendant “may, upon taking the oath at trial, suddenly decide to fully agree with Plaintiff’s version of events.”13 Judge Milazzo found the speculation remote because it depended “on the occurrence of a ‘Perry Mason’ moment in the courtroom. [I]n the Court’s experience, such moments are usually confined to fictional courtrooms.”14 Part II of this Article discusses television’s pervasive influence on American culture since the early 1950s, the foundation for evident 1965)); Ashcroft v. Free Speech Coal., 535 U.S. 234, 247 (2002) (discussing WILLIAM SHAKESPEARE, ROMEO AND JULIET act 1, sc. 2); Douglas E. Abrams, Sports in the Courts: The Role of Sports References in Judicial Opinions, 17 VILL. SPORTS & ENT. L.J. 1 (2010); Adam Liptak, Dylan Tribute Band in Robes, with Chief Justice as Lead, N.Y. TIMES, Feb. 23, 2016, at A12 http://www.nytimes.com/2016/02/23/us/politics/how-does-it-feel-chief-justice-rob erts-to-hone-a-dylan-quote.html?_r=0 [https://perma.cc/WH9B-J92N] (discussing the Supreme Court’s quotations of Dylan and other singers). 9. Spotted Cat, LLC, 2014 WL 4072024. 10. Id. at *3. 11. Id. at *4. 12. MODEL RULES OF PROF’L CONDUCT r. 3.7 (AM. BAR ASS’N 2011). 13. Spotted Cat, LLC, 2014 WL 4072024, at *3 & n.32. 14. Id. 996 MARQUETTE LAW REVIEW [99:993 judicial confidence that readers will connect with well-conceived references to popular programs. This confidence began in earnest as the first television generation grew into adulthood by the 1980s, and the confidence has continued ever since. Part III surveys the broad array of television dramas, sitcoms, and reality shows that appear in federal and state judicial opinions. Part IV explains why advocates should feel comfortable following the courts’ lead by using these sources carefully to help make arguments (as Justice Scalia put it) “more vivid, more lively, and hence more memorable.”15 II. TELEVISION AND CONTEMPORARY AMERICAN CULTURE National Humanities Medal-winning writer William Manchester reported that “[t]elevision became a major industry and cultural force in 1950.”16 Only 9.0% of U.S. households owned at least one television set that year, but two historians say that “television was finding its place in the American living room (and bedroom and dining room and kitchen and den and basement and hospital ward and bus station . ).”17 The percentages of ownership grew steadily each year throughout the 1950s,