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February 18, 2020 Appellate Issues | Winter 2020

Reel Appeal II: You Can’t Handle The Truth!, or Can You?

By Mark A. Kressel

In the long awaited, much anticipated sequel to their 2016 panel, “Reel Appeal,” panelists Kirsten M. Castañeda, of Alexander Dubose & Jefferson LLP, Professor Paul Bergman, of UCLA School of Law, and Mark A. Kressel, of Horvitz & Levy LLP, led by their fearless leader and moderator, Hon. James E. Lockemy, of the South Carolina Court of Appeals, reunited for another presentation of movies, mayhem, and Model Rules of Professional Conduct.  This time, the panel was aptly titled, “Reel Appeal II: You Can’t Handle The Truth!, or Can You?”

As they did in 2016, the panelists took the 2019 Summit attendees on a journey through Hollywood movies from yesterday and today, reviewing scenes depicting ethical quandaries for attorneys and judges in and out of the courtroom.

After the lights dimmed in the Grand Hyatt ballroom, the program opened with the iconic clip from A Few Good Men, in which an angry Jack Nicholson, playing defendant Colonel Nathan Jessep, taunts military lawyer Lieutenant Daniel Kaffee, played by Tom Cruise in his prime, saying, “You can’t handle the truth! ” before admitting in a surprise moment of candor that “you’re darn right, I ordered the Code Red!”  The panel did not discuss this clip further, but it set the stage for what was to come. 

Next, the panel played a clip from The People vs. Larry Flynt, a movie telling the story of how Jerry Falwell sued Hustler magazine publisher Larry Flynt over a satirical parody of a Campari ad depicting Falwell having sexual relations with his mother.  In the scene, Alan Isaacman, played by Ed Norton, deftly fields questions from a hot Supreme Court bench, persuading both a skeptical Justice Scalia and a dubious Thurgood Marshall that even wildly fanciful depictions of public figures should receive First Amendment protection. 

Commenting on the clip, Ms. Castaneda observed that it demonstrates how implicit bias against clients or having unpopular clients can cause these clients’ attorneys to undervalue their chances of success.  See Nicole E. Negowetti, Navigating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigators, 4 St. Mary’s Legal Mal. & Ethics 278 (2014).  Mr. Kressel pointed out that the movie’s oral argument scene was taken almost verbatim from the actual oral argument transcript, and the judges who asked questions in the movie were the same judges who asked those questions during the real oral argument.

No “lawyers in the movies” presentation would be complete without a clip from My Cousin Vinnie, and the panel obliged by entertaining the crowd with the famous clip in which Vinny gently undercuts the visual ability of a prosecution eyewitness.  Defense attorney Vincent Gambini, played by Joe Pesci, performs an in-court demonstration in which he walks back 50 feet from the witness, who claimed to have identified the witnesses from 100 feet away, and asks her how many fingers he holds up.  The first time, his efforts are impeded by the judge, who accidentally contaminates the test by saying, “let the record show that counsel is holding up two fingers.”  The second time, the judge remains silent, and counsel again holds up two fingers, but the witness testifies she sees four.  She wearily concedes she probably needs thicker glasses, and the jurors realize her identification testimony is worthless.

Ms. Castaneda observed that ethical rules prohibit judges from interjecting themselves too strongly into the case.  See Abram Chayes, The Role of the Judge in Public Litigation, 89 Harv. L. Rev. 1281, 1286 (1976); Model R. Prof. Conduct 3.5(d).  She also pointed out that while the judge was probably trying to improve the record for appeal by reciting how many fingers were held up the first time, ironically, after the second test, no one remembered to put the number of fingers on the record, leaving the record unsatisfactory for appeal.  Professor Bergman pointed out that the judge seemed to have gone on autopilot when blurting out the number of fingers held up, rather than being sensitive to the needs of the moment.

Next came a clip from a 1930s classic, Counselor at Law, starring John Barrymore.  At the end of the scene, Barrymore’s character, attorney George Simon, increases a client’s bill by $2500 (which must have been a staggering sum in 1933) to cover the amount of a loan he had just made to a friend with cash flow issues.   Mr. Kressel explained that, not surprisingly, this violates the rules of professional conduct.  Under Model Rule of Professional Conduct 1.5(a), a lawyer is prohibited from charging or collecting an unreasonable fee or an unreasonable amount for expenses.  Furthermore, Rule 1.5(b) provides that the basis for the fees and expenses for which the client will be responsible, and any changes in that basis, must be communicated to the client.  Relatedly (although not shown in the movie clip), Rule 1.8(a) regulates the terms under which a lawyer may engage in a business transaction with clients.  The lawyer may only engage in a business transaction with a client if the terms of the transaction are fair and reasonable, they are transmitted in writing, the client is advised to and given the opportunity to seek the advice of independent counsel, and the client gives informed written consent.

Sometimes in this world, you just need to take a moment to have fun and enjoy life, and the panel next presented a bit of a “palate cleanser” in the form of a pair of clips.  First, in a Three Stooges movie called Disorder in the Court, an increasingly frustrated judge and bailiff try to administer the witness oath to a hapless Curly by ordering him to take off his hat as he tries to follow their conflicting instructions about where to place his right and left hands.  Second, in Roxie Hart, we see courthouse antics of grand scale.  As defendant Roxie Hart, played by a young Ginger Rogers, attempts to deliver dramatic testimony under the watchful coaching of her attorney, played by Adolphe Menjou, the paparazzi keeps interrupting to take pictures, into which a publicity-hungry Judge Cannon keeps inserting himself.  Judge Cannon is played by George Lessey, a successful and prolific actor in his own right.

After enjoying a laugh from those clips, turning back to more serious matters, the panel next presented the climactic scene from “The Post,” in which Katharine Graham, played by Meryl Streep, finds her voice and makes the fateful decision to publish the Pentagon Papers in her newspaper, The Washington Post

Ms. Castaneda explained that this scene dramatizes the way implicit bias can affect how lawyers advise their clients.  The Model Rules of Professional Conduct require a lawyer to act with reasonable diligence.  Model R. Prof. Conduct 1.3.  This rule requires more than prompt attention, demanding that a lawyer act “with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Id. cmt. 1.  In order to meet this demand, an attorney must first understand the client’s goals and motives.  Negowetti, Navigating the Pitfalls, 4 St. Mary’s Legal Mal. & Ethics at 295.  But implicit biases may interfere with an attorney’s ability to comprehend and represent a client’s experiences, viewpoint, and goals.  Id. at 295-96.  For example, a client’s appearance, race, religion, age, gender identification, sexual orientation, socio-economic background, or political affiliation could lead a lawyer to incorrect presumptions and value judgments.  Id. at 296.  Recognizing (and admitting) the tendency for implicit biases to affect one’s judgments about people can help a lawyer ask questions that will move the discussion beyond these stereotypes.  See id.  Similarly, allowing implicit bias to paint a client as less able to understand a complex legal argument or to comprehend the “big picture” can lead a lawyer to downplay the client’s goals or to advocate for strategic choices that undermine, rather than serve, the client’s objectives and interests.  Equally, the lawyer may try to simplify or gloss over more complicated aspects of the case, running afoul of duties regarding client communication.  For instance, a lawyer must “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”  Model R. Prof. Conduct 1.4(a)(2).  The clip from The Post illustrated how, contrary to these Model Rules, Katharine Graham’s lawyers and advisors were very heavy-handed with their advice and delegitimized Graham’s journalistic instincts because she was a woman. 

Mr. Kressel then offered some movie trivia from an interview The Post’s costume designer gave after the movie was released.  The costumes were designed so that, over the course of the movie, they physicalized and dramatized Graham’s journey of self-actualization.  In the early movie scenes, the costumes were drab and buttoned-up, but by the scene in which Graham discovered her inner strength and made the risky decision to publish the Pentagon Papers, Streep was clad in a shimmering, flowing, gold kaftan. 

The panel next presented a pair of clips touching on the importance of judicial independence in the face of political pressure.  In the scene from Miracle on 34th Street, a judge confronts the realization that, if he rules there is no Santa Claus, he may cause significant financial harm to the various local industries that benefit from holiday business, not to mention alienate the voters who will decide whether to reelect him.  In Talk of the Town, Michael Lightcap is praised as a distinguished law professor, and is honored to learn that he has been asked to accept a nomination for the United States Supreme Court. Just the mere mention of the Court causes the film’s soundtrack to swell with regal orchestral music.  Professor Bergman asked the audience to think about which clip better represents current popular attitudes towards judges—does the public think judicial decisions reflect political or intellectually independent reasoning? 

Mr. Kressel explained that these two clips demonstrate two different circumstances when political pressures can impose themselves on the judiciary: during the nomination and appointment process (Talk of the Town), and when a sitting judge is required to decide issues in a case that have far-reaching implications (Miracle on 34th Street).  Mr. Kressel observed that the understanding that an independent judiciary is essential for a just government predates the founding of the United States.   He read an excerpt from “The Federalist Papers: No. 78,” an essay in which Alexander Hamilton expounded upon the importance of the independent judiciary: “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

Finally, the panel turned to the ethical and professional risks created by the pressures endemic to the legal profession that attorneys and judges face.  Judge Lockemy explained that these pressures can be particularly acute when judges have to shoulder the responsibility of making decisions that affect people’s lives.  Mr. Kressel commented that these pressures have led to a great problem with substance abuse in the legal profession.  A 2016 study commissioned by the ABA found that 16.1 percent of judges had self-reported problematic drinking, as did 23.4 percent of private firm lawyers, 19 percent of in-house lawyers working for government, public, or non-profit institutions, and 19.2 percent of in-house lawyers at for-profit entities.  The pressures of the profession also cause some older lawyers to continue working long after their mental abilities become insufficient to perform competently.  In California, where in 2011 already 43 percent of practicing attorneys were over the age of 60, they refer to this impending crisis as the “silver tsunami.”  The State Bar of California has been studying this problem, and they are advising lawyers to be aware of when their colleagues may be getting too old to continue practicing and help those elderly colleagues to begin considering how to transition their practice and retire.   Ms. Castaneda observed that abiding by the rules of judicial and professional conduct sets us free to practice law as the best and finest versions of our professional selves.  Professor Bergman emphasized the importance of continuing to value the passion for service and justice that brought us to a legal career in the first place.  

Having explored these issues, the panel ended with another clip from the end of Counselor at Law.  This clip finds its hero, George Simon, so depressed from his experiences practicing law that he is standing on a window ledge contemplating suicide.  His secretary, who was suspicious when she saw his office light on from the street, runs into the office just in time and startles him into coming down from the ledge.  Just then, the phone rings, with a potential new client.  Although at first Simon is too depressed and hopeless to take the call, his curiosity gets the better of him.  And, as soon as he starts hearing about the details of this exciting new case, the thrill of a new matter energizes him and inspires him back to a feeling of hopefulness.  As the movie fades to an iconic “The End” title, Simon and his secretary dash into the elevator, racing down to meet the client and to throw themselves into the joys of a job well done and a life well lived. 

As “The End” flashed on the screen, Judge Lockemy and the panelists took a bow, and the 2019 Summit concluded. 

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Mark A. Kressel

Mark A. Kressel is a partner at Horvitz & Levy LLP, an appellate boutique in Los Angeles, California.  Mr. Kressel helps clients by first understanding their business needs and goals and how litigation can play a part in solving their problems, whether by winning on appeal, developing a multi-forum litigation or settlement strategy, or identifying vehicles to change the legal landscape. Major studios and government entities rely on Mr. Kressel for his extensive multi-forum strategy and appellate advocacy capabilities. He has handled appellate matters in a wide range of areas, including patent, the California Environmental Quality Act (CEQA), the anti-SLAPP statute, the First Amendment, punitive damages, elder abuse, general business litigation, and premises liability.