March 24, 2020

What Hollywood Can Teach Trial Lawyers About Story Telling

Litigators can apply many of the same story elements from film and television that appeal to mass audiences.

Litigators can apply many of the same story elements from film and television that appeal to mass audiences.

By Paul Bergman - UCLA Professor of Law Emeritus

Litigators and screenwriters rely on many of the same rhetorical strategies to present compelling stories. This essay uses excerpts from well-known courtroom films as the bases of lessons that can help litigators develop present persuasive and credible trial stories. 

Lesson One: The Importance of Chronology

The order in which events unfold affects the inferences to which those events give rise. Thus, no matter how they order witnesses’ testimony in the courtroom, litigators need to develop chronologies of critical trial-related events. Prosecutor Claude Dancer’s ignorance of chronology produced a disastrous cross-examination in the classic film Anatomy of a Murder. Lt. Manion is charged with murdering Barney Quill. Manion admits that he killed Quill, but claims that he experienced a form of temporary insanity called “irresistible impulse” when his wife Laura told him that Quill had raped her.

Questioned by defense attorney Paul Biegler, defense witness Mary Palant supports Manion’s rape claim when she dramatically pulls Laura’s torn panties out of her purse while testifying. Palant worked in the tavern that Quill owned, and they lived in adjacent rooms above the tavern. The morning after Manion killed Quill, Palant found the torn panties at the bottom of the laundry chute that was between their rooms. She found the panties when sorting the tavern’s laundry as part of her usual job duties.

Prosecutor Dancer angrily accuses Palant of lying. His cross-examination questions assert that Palant was Quill’s lover, and that she is seeking revenge as payback for Quill’s having dumped her in favor of Laura. The final portion of Dancer’s crossexamination of Laura is as follows:

Q: In the grip of what Mr. Biegler might call irresistible impulse, you rushed in here because you wanted to crucify the character of the dead Barney Quill, isn’t that true?

A: No, I thought it was my duty.

Q: Your pride was hurt, wasn’t it?

A: I don’t know what you mean.

Q: Ms. Palant, when you found the panties, was your first thought that Barney Quill might have raped Mrs. Manion or that he might have been stepping out with Mrs. Manion?

A: (To the judge) What does he mean? I don’t know what he means. Judge: Mr. Dancer, I must ask you to put straight questions to the witness.

Q: Here is a straight question Your Honor. Ms. Palant, were you Barney Quill’s mistress?

A: I was not.

Q: Do you know it was common knowledge in Thunder Bay that you were living with Quill.

A: That’s not true. Barney Quill was my…

Q: (shouting) Was what, Ms. Palant? Barney Quill was what, Ms. Palant?

A: Barney Quill was my father.

Q: (in a stunned tone) No further questions. 

Mary Palant’s answer destroys Dancer’s argument that she was Barney Quill’s mistress. The jury acquits Manion of murder. Dancer’s failure to develop a chronology led to his misguided attack on Palant’s credibility. Had he understood Palant’s story chronologically, Dancer would have arranged the crucial events in this order:

1. Barney Quill is Palant’s father.

2. Barney Quill is brutally gunned down.

3. The next morning, Palant finds Laura’s torn panties while sorting through the tavern’s laundry.

Had Dancer been aware of this chronology, he probably would not have accused Palant of being Quill’s mistress. His cross-examination might instead have focused on when Palant found the panties in the laundry chute. It is perhaps unlikely that Palant would have been sorting the laundry “as usual” the morning after her father was brutally murdered. Dancer might have suggested that she took at least one day off to talk to the police, mourn her father’s death and make funeral arrangements. If so, Manion would have had time to support a phony rape story by having torn panties planted in the laundry chute, where Palant found them. In the absence of an accurate chronology however, this approach to undermining the credibility of Palant’s story is invisible.

By contrast with Anatomy of a Murder, the film A Few Good Men exemplifies the power of chronology to produce compelling inferences. Lt. Kaffee defends two Marines, Dawson and Downey, against a charge of hazing Private Santiago so seriously that Santiago died. The Marines’ defense is that they were carrying out the order of their commander, Col. Jessup, to carry out a “Code Red” on Santiago. Jessup insists that he gave no such order, and that in fact he had ordered that Santiago be transferred off the base. Seeking to show that Jessup did not order a transfer, Kaffee cross-examines Jessup as follows: 

Q: Colonel, we have the transfer order that you and Markinson cosigned ordering that Santiago be on a flight leaving Guantanamo at 6:00 the next day. Was that the first flight?

A: The 0600 was the first flight.

Q: You flew up to Washington this morning. Is that right? 

A: Yes.

Q: I notice you’re wearing your class “A” dress uniform in court today. Did you wear that on the plane?

A: I wore utilities on the plane.

Q: You brought your dress uniform?

A: Yes.

Q: Toothbrush, shaving kit, underwear?

A: I brought a change of clothes and some personal items.

Q: After Dawson and Downey’s arrest Santiago’s barracks were sealed off and its contents inventoried. “Four pairs camouflage pants, three long-sleeve khaki shirts, three pairs of boots, four pairs green socks, three green T-shirts.” I’m wondering why Santiago wasn’t packed.

A: (No answer)

Q: I’ll tell you what. We’ll get back to that one in a minute. This is a record of all phone calls made from your base in the past 24 hours. After being subpoenaed to Washington, you made three calls.

A: I called Colonel Fitzhughes to let him know that I would be in town. The second call was to arrange a meeting with Congressman Richmond of the House Armed Services Committee. And the third call was to my sister Elizabeth.

Q: These are phone records from Gitmo for September 6, and these are 14 letters that Santiago wrote in nine months requesting-- in fact, begging-- for a transfer. Upon hearing the news that he was finally getting his transfer Santiago was so excited that do you know how many people he called? Zero. Nobody. Not one call to his parents saying he was coming home. Not one call to a friend, saying, “Can you pick me up at the airport?” He was asleep in his bed at midnight, and according to you he was getting on a plane in six hours. Yet everything he owned was hanging neatly in his closet and folded neatly in his footlocker. You were leaving for one day. You packed a bag and made three calls. Santiago was leaving for the rest of his life and he hadn’t called a soul and he hadn’t packed a thing. Can you explain that? The fact is, there was no transfer order. Santiago wasn’t going anywhere. Isn’t that right, Colonel?

As you analyze this cross-examination, ignore Kaffee’s blatant disregard of evidence rules that forbid attorneys from inserting evidence into the record through their own “testimony.” This is a movie after all. Focus instead on how effectively the chronology supports Kaffee’s claim that Jessup lied about ordering Santiago’s transfer. The chronology consists of Santiago writing 14 letters begging for a transfer over a period of nine months. The chronology then switches to the last few hours of his life, when Santiago hasn’t packed for a flight that will take him home in a few hours, and has called no one to tell them that his prayers for a transfer have finally been answered. The chronology leads to only one possible inference: Jessup lied when he testified that he had ordered Santiago’s transfer. Santiago was never told about a transfer because a transfer order was never given.

Lesson Two: Effective Opening Statements

The story in the film Philadelphia involves a civil employment discrimination lawsuit brought by plaintiff Andrew Beckett against the law firm in which he was an associate. Beckett’s complaint alleges that the law firm fired him illegally because he had AIDS (at the time of the film, an incurable and always-fatal disease). The opening statements by plaintiff’s lawyer Joe Miller and defense lawyer Belinda Conine are as follows:

Plaintiff’s Opening Statement

Ladies and gentlemen of the jury. Forget everything you’ve seen on television and in the movies. There’s not going to be any last-minute surprise witnesses, nobody’s going to break down on the stand with a tearful confession. You’re going to be presented with a simple fact. Andrew Beckett was fired. You’ll hear two explanations for why he was fired, ours and theirs. It is up to you to sift through layer and layer of truth until you determine for yourselves which version sounds the most true. There are certain points I must prove to you. Point number one. Andrew Beckett was–is–a brilliant lawyer, great lawyer. Point number two. Andrew Beckett, afflicted with a debilitating disease, made the understandable, the personal, the legal choice to keep the fact of his illness to himself. Point number three. His employers discovered his illness. Ladies and gentlemen, the illness I’m referring to is AIDS. Point number four. They panicked. And in their panic, they did what most of us would like to do with AIDS, which is to get it and everyone who has it as far away from the rest of us as possible. Now the behavior of Andrew Beckett’s employers may seem reasonable to you. It does to me. After all, AIDS is a deadly, incurable disease. But no matter how you come to judge Charles Wheeler and his partners in moral and human terms, the fact of the matter is when they fired Andrew Beckett because he had AIDS, they broke the law.

Defendant’s Opening Statement Fact.

Andrew Beckett’s performance on the job varied from competent, good to oftentimes mediocre to sometimes flagrantly incompetent. Fact. He claims he’s the victim of lies and deceit. Fact. It was Andrew Beckett who lied, going to great lengths to conceal his disease from his employers. Fact. He was successful in his duplicity. The partners at Wyant Wheeler did not know that Andrew Beckett had AIDS when they fired him. Fact. Andrew Beckett is dying. Fact. Andrew Beckett is angry because his lifestyle, his reckless behavior has cut short his life. And in his anger, his rage, he is lashing out and he wants someone to pay

Neither opening statement provides the jurors with a chronology of events. How long had Beckett worked for Wyant Wheeler before he was fired? What were his job duties? How and when did the partners discover that he had AIDS? The lawyers’ failure to tell a story makes it less likely that the jurors will empathize with either party or understand the significance of the testimony that they are about to hear.

Miller tells the jurors that he “must prove” that Beckett “was, is, a great lawyer.” This seems a strategic error, as he assumes a burden that he need not bear. Miller needs only to convince the jurors that the law firm fired Beckett because he had AIDS; he need not in addition prove Beckett’s legal brilliance.

Miller’s statement that it’s up to the jurors to decide which version of events is “the most true” (sic) is also a strategic blunder. Jurors are not limited to choosing between competing stories. And Miller disregards the plaintiff’s burden of proof by implying that the law firm loses if its story isn’t “the most true.”

Opening statements provide litigators with an opportunity to identify a theme that ties a story to the reasons that events happened as they did. Miller suggests a motive for why the partners in the city’s most elite law firm intentionally violated the law: they “panicked.” Defense lawyer Conine’s explains that Beckett’s anger led him to lash out in an effort to make someone pay for the reckless lifestyle that has shortened his life. As brief as the thematic assertions are, they serve to remind litigators that opening statement is an opportunity to begin to develop themes that they continue to emphasize throughout trials.

How do you evaluate Miller’s telling the jurors that the defendants acted reasonably and morally? By distinguishing law from morality, Miller explicitly tells the jurors that they can decide the case in Beckett’s favor even if they conclude that the defendants behaved responsibly. Moreover, Miller acknowledges the elephant in the room. Most of the jurors might well think, “I’d have done the same thing the partners did.” On the other hand, Miller’s strategy might backfire if it leads the jurors to conclude that a legal rule that punishes reasonable and moral conduct is unworthy of enforcement.

Not evident from this verbal analysis is that a “Maginot line” of law firm partners sit at counsel table during opening statements and throughout the trial. The suggestion of white male privilege may create sympathy among the jurors for the solitary Miller and the pathetically ill Beckett.

Lesson Three: Direct Examination

Direct examination often gets short shrift in courtroom films, as it lacks the mano-amano drama of cross-examination (at least, the drama of cross-examination as films frequently depict it). For our direct examination lesson, consider the performance of Atticus Finch, perhaps the world’s most iconic cine-lawyer, in To Kill a Mockingbird. The film is set in a virulently racist small southern town in 1930’s. Atticus has the thankless task of defending black sharecropper Tom Robinson against a phony charge of raping Mayella Ewell, a poor and pathetic white woman. Atticus’ direct examination of Tom Robinson is as follows:

Q: Now Tom, were you acquainted with Mayella Violet Ewell?

A: Yes sir. I had to pass her place going to and from the field every day.

Q: Is there any other way to go?

A: No sir, none’s I know of.

Q: And did she ever speak to you?

A: Why yes, sir. I tipped my hat when I go by. Then one day she asked me to come in and bust up a shifarobe for her. She gave me the hatchet and I broke it up. And then she said I reckon I’ll have to give you a nickel, won’t I? I said, “No ma’am, there ain’t no charge.” Then I went home. Mr. Finch, that was way last spring, way over a year ago.

Q: And did you ever go on the place again?

A: Yes sir.

Q: When?

A: Well, I went lots of times. It seemed like every time I passed by yonder, she’d have some little something for me to do, chopping kindling and toting water for her.

Q: Tom, what happened to you on the evening of August 21st, last year?

A: Mr. Finch, I was going home as usual that evening, when I passed  the Ewell place, with Mayella on the porch, like she said she was. And she said for me to come there and help her a minute. Well, I went inside the fence and I looked around for some kindling to work on, but I didn’t see none. And then she said to come in the house, she has a door needs fixing, so I follows her inside and I looked at the door, and it looked all right. Then she shut the door. All the time, I was wondering why it was so quiet-like. Then it come to me. There was not a child on the place. And I said, Miss Mayella, where are the children. She said, they all gone to get ice cream. She said it took her a slap year to save seven nickels, but she done it, and they all gone to town.

Q: What did you say then?

A: Uh, I said something like, uh, “Why Miss Mayella, that’s right nice of you to treat ‘em.” She said, “You think so?” “Well,” I said, “I best be going.” I couldn’t do nothing for her and she said Oh yes I could, and I asked her what. And she said to just step on the chair yonder and get that box down from on top of the shifarobe. So I done like she told me and I was reaching, when the next thing I know she grabbed me around the legs. She scared me so bad I hopped down and turned the chair over. That was the only thing, the only furniture disturbed in the room, Mr. Finch, I swear, when I left it.

Q: And what happened after you turned the chair over? (after tom hesitates in answering) Tom? You’ve sworn to tell the whole truth. Will you do it? What happened after that? A: Mr. Finch. I got down off the chair and I turned around. And she sort of jumped on me and hugged me around the waist. She reached up and kissed me on the face. She said she’d never kissed a grown man before and she might as well kiss me. She asked for me to kiss her back. I said, “Miss Mayella let me out of here.” And I tried to run. Mr. Ewell cussed at her from the window, said he’s gonna kill her.

Q: And what happened after that?

A: I was running so fast, I don’t know what happened.

Q: Tom, did you rape Mayella Ewell?

A: I did not, sir.

Q: Did you harm her in any way?

A: I did not.

Atticus’ questioning illustrates a variety of effective direct examination techniques. Tom Robinson’s story unfolds chronologically, starting with brief testimony about an interaction that took place over a year before the alleged rape. These scene-setting questions contribute a sense of reality to the testimony while constituting important circumstantial evidence supporting an inference that Mayella initiated the physical contact on the day of the alleged rape.

Atticus effectively uses open-style questions, such as, “Tom, what happened to you on the evening of August 21st, last year?” The open questions encourage Robinson to describe events in his own words. By contrast, Atticus concludes the chronology with two pointed closed questions that emphasize Robinson’s explicit denial that he attacked or in any way harmed Mayella Ewell.

Despite the many positive qualities of the direct examination, Atticus neglects to include testimony that might have allowed the jurors to find a way to find Robinson not guilty while holding on to their racist beliefs. For example, Atticus might have signalled to the jurors that Robinson “knew his place” by having him testify that he knew it was wrong to go into Mayella’s house, and did so only because he was obligated to comply with a white woman’s request. (Atticus may have had to set aside his personal commitment to racial equality in order to appeal to the 12 jurors who would determine Robinson’s fate.)

Atticus might also have taken advantage of Robinson’s lengthy answers to emphasize important evidence by asking follow-up questions. For example, after Robinson testifies that Mayella grabbed his legs, Atticus might have asked, “What portion of your legs did Mayella grab?” The answer would emphasize Mayella’s aggressiveness while supporting Robinson’s credibility by demonstrating his ability to recall what happened accurately.

Another weakness is that the direct examination lacks details and visual aids that would have added power and visual reality to Robinson’s oral account of events. For example, Atticus might have asked Robinson to comment on a diagram of the room and indicate the window where Bob Ewell stood. Robinson might also have gotten off the witness chair and demonstrated physically key moments of Mayella’s aggressiveness, perhaps using Atticus as a stand-in to illustrate how she grabbed him around the waist and how he broke free to run out of the room.

Lesson Four: Direct Examination of an Expert Witness

One of the most popular lawyer comedies in film history, My Cousin Vinny provides a menu of effective strategies for eliciting experts’ opinions. Driving cross country to transfer from NYU to UCLA, college friends Bill and Stan stop for refreshments at an Alabama convenience store. Shortly after they drive away, a police officer arrests them for robbing the store and killing the clerk. Bill’s cousin Vinny arrives in Alabama with his fiancee Mona Lisa in tow, and he soon represents both defendants.

Unexpectedly, Vinny’s cross-examinations negate the testimony of the prosecution witnesses. However, all seems lost when prosecutor Trotter calls an FBI expert to testify that the tire marks left by the car that sped away from the convenience store after the crime were made by a 1964 Buick Skylark, the make and model car that Bill and Stan were driving. Vinny stares at a photo of the tire marks, then calls his fiancée Mona Lisa Vito to testify as an expert in “general automotive mechanics.” Vinny’s direct examination of Mona Lisa proceeds substantially as follows: 

Q: The defense has argued that two sets of guys met up at the Sack of Suds driving identical metallic mint green 1964 Buick Skylark convertibles. Can you look at the photo of the tire marks outside the Sack of Suds and tell me if the defense’s case holds water?

A: No, the defense is wrong. I’m positive.

Q: How can you be so sure?

A: Because there is no way that these tire marks were made by a 1964 Buick Skylark. These tire marks were made by a 1963 Pontiac Tempest.

Q: I find it hard to believe Ms. Vito that this kind of information can be ascertained simply by looking at a picture. I would love for you to explain.

A: The car that made these two equal length tire marks had Positraction. You can’t make those marks without Positraction, which was not available on the 1964 Buick Skylark.

Q: What is Positraction?

A: It’s a limited slip differential which distributes power equally to both the right and left tires. The 1964 Skylark had a regular differential, which anyone who’s been stuck in the mud in Alabama knows that you step on the gas, one tire spins, the other tire does nothing.

Q: Is that it?

A: No, there’s more. The left tire mark goes up on the curb but the right tire mark stays flat and even. The 1964 Skylark had a solid rear axle. If the left tire went up on the curb, the right tire would tilt out and ride along its edge. But that didn’t happen here, the right tire mark stayed flat and even. The car that made these marks had an independent rear suspension. In the 1960’s there were only two cars that were made in America that had Positraction, an independent rear suspension, and enough power to make these marks. One was the Corvette, which could never be confused with the Buick Skylark. The other had the same body length, height, width, weight, wheel base and wheel track as the 1964 Skylark, and that was the 1963 Pontiac Tempest.

Q: And because both cars were made by GM, were both cars available in metallic mint green paint?

A: They were.

Q: Thank you Ms. Vito. Thank you very much. You’ve been a lovely, lovely witness. Judge: Would you like to cross-examine the witness Mr. Trotter? Trotter: No questions

Vinny’s direct examination of Mona Lisa Vito illustrates a number of effective expert witness questioning strategies. He emphasizes the conflict between her opinion and that of the prosecution’s expert by eliciting it at the start of the testimony. His strategy takes advantage of the “primacy principle,” which postulates that listeners’ attention tends to be high when a person begins to speak. By eliciting Mona Lisa’s opinion at the outset, Vinny increases the likelihood that the jurors will understand the connections between her opinion and the supporting evidence.

Vinny also aligns himself with the jurors when he follows the opinion by asking Mona Lisa the question the jurors surely would ask if they could: “I find it hard to believe that this kind of information can be ascertained simply by looking at a picture.” Vinny effectively portrays presents himself as the jurors’ spokesperson.

Mona Lisa refers to Positraction, a car feature that some jurors may not have heard of and that other jurors may not understand. She adds depth to her expertise and credibility through a common sense explanation accompanied by an illustration that is quite familiar to the local jurors. (The film reinforces the effectiveness of the illustration: the jurors smile and nod to each other when Mona Lisa talks about wheels spinning in the mud.) Use of concrete and familiar examples facilitates lay understanding of unfamiliar concepts.

Throughout the testimony, Vinny keeps Mona Lisa and the jurors focused on the photo. His question, “Is that it?” is the ultimate open question as he leaves it entirely up to Mona Lisa to find further support for her opinion in the photo. When she concludes by identifying the exact make and model of the car that left the tire marks, even the prosecutor knows that it’s pointless to try to undermine her opinion.

Lesson Five: Cross Examination

In the wonderful comedy Legally Blonde, Elle Woods is a seemingly vacuous Beverly Hills fashionista who applies to Harvard Law School to be near her boyfriend. Elle is improbably admitted, and after a rough start does so well that the sleazy law professor who is defending trophy wife Brooke Windham on a charge of murdering her husband adds Elle to his team of student assistants. Just in time for the cross examination of the crucial prosecution eyewitness Chutney, who is also the victim’s daughter, Brooke fires the professor and asks Elle to take over the defense. Elle’s cross-examination unfolds as follows:

Q: So at some point in the twenty minutes you were in the shower your father was shot?

A: I guess.

Q: But you didn’t hear the shot because you were in the shower?

A: Yes. I was washing my hair.

Q: Can you tell us what you’d been doing earlier in the day?

A: I got up, went to Starbucks, went to the gym, got a perm and came home.

Q: Where you got in the shower? Judge: I believe the witness has made it clear she was in the shower.

Q: How many perms have you gotten before?

A: Two a year since I was 12, you do the math.

Q: Chutney, isn’t it the cardinal rule of perm maintenance that you are forbidden to wet your hair for at least 24 hours after getting a perm at the risk of de-activating the ammonium thyglocolate?

A: Yes.

Q: And wouldn’t someone who’s had say, thirty perms, be well aware of this rule?

A: (No answer)

Q: And if you were in fact not washing your hair, as I suspect you were not since your curls are still intact, wouldn’t you have heard the gunshot?

A: (No answer)

Q: And if you in fact heard the gunshot, then Brooke Windham wouldn’t have had time to hide the gun before you got downstairs. Which would mean that you would have had to find Mrs. Windham with a gun in her hand to make your story sound plausible, isn’t that right?

A: She’s younger than I am. Did she tell you that? How would you feel if your father married someone younger than you?

Q: You however had time to hide the gun, didn’t you Chutney, after you shot your father?

A: I didn’t mean to shoot him. I meant to shoot YOU (looking at the defendant)!

During his hugely popular summer lecture series, the late Dean and Judge Irving Younger used to warn litigators, “If you ask anything other than a leading question on cross-examination before you have had 25 trials, I will come back from wherever I am and haunt you.” Perhaps Elle Woods attended this lecture, because her effective use of leading questions produces a confession from the victim’s daughter. Elle’s leading questions are in reality assertions, with an occasional “isn’t that right” tacked on to signal to the judge that she knows that evidence rules limit her to questions. Elle was no doubt hoping at best to undermine the witness’ claim to have been in the shower; the confession is improbable (again, this is a film, and a comic one at that). Nevertheless, Elle’s examination is a template reminder that leading questions allow cross-examiners to focus on the portions of stories that they want to tell. 

Just as Vinny in My Cousin Vinny turned out to be an expert in “general automotive mechanics,” Legally Blonde’s Elle turns out to be an expert on hair care. Together, these two films teach that questioning skills alone are not enough for success as a litigator. In addition, advocates have to know at least as much about the subject matter of witnesses’ testimony as the witnesses themselves. Elle succeeds not only because she heeds Judge Younger’s warning, but also because she knows that water destroys permanents.

Nevertheless, Elle’s confrontational questioning was risky. Chutney might have stuck a pin through Elle’s balloon with a simple explanation: “I made sure to keep my hair dry; I wore a shower cap while I was in the shower.” Elle might have employed the “close the doors first” technique to avoid the possibility of an embarrassing pie in the face explanation. Before asking questions that signaled the importance of the answers, Elle might have asked Chutney questions such as, “By the way, when you were in the shower, I take it that you washed your hair?” “You weren’t wearing a  shower cap, right?” Only after establishing that Chutney was not wearing a shower cap could Elle safely launch into her series of leading questions. 

Lesson Six. Closing Argument

For the final lesson, return to To Kill a Mockingbird and consider an excerpt from Atticus Finch’s dramatic closing argument on behalf of a not guilty verdict for Tom Robinson on the charge of raping Mayella Ewell.

“I have nothing but pity in my heart for the chief witness for the State. She is the victim of cruel poverty and ignorance. But my pity does not extend so far as to her putting a man’s life at stake, which she has done in an effort to get rid of her own guilt. Now I say “guilt” gentlemen, because it was guilt that motivated her. She’s committed no crime. She has merely broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with. She must destroy the evidence of her offense. But, what was the evidence of her offense? Tom Robinson, a human being. She must put Tom Robinson away from her. Tom Robinson was to her a daily reminder of what she did.

“Now what did she do? She tempted a Negro. She was white and she tempted a Negro. She did something that in our society is unspeakable: She kissed a black man. Not an old uncle, but a strong, young Negro man. No code mattered to her before she broke it, but it came crashing down on her afterwards.

“The witnesses for the State, with the exception of the sheriff of Lincoln County, have presented themselves to you gentlemen–to this Court– in the cynical confidence that their testimony would not be doubted; confident that you gentlemen would go along with them on the assumption, the evil assumption, that all Negroes lie; all Negroes are basically immoral beings; all Negro men are not to be trusted around our women, an assumption that one associates with minds of their caliber, and which is in itself, gentlemen, a lie–which I do not need to point out to you.

“And so a quiet, humble, respectable Negro, who has had the unmitigated temerity to feel sorry for a white woman, has had to put his word against two white peoples. The defendant is not guilty. But somebody in this courtroom is.

“Now gentlemen, in this country our courts are the great levelers. In our courts, all men are created equal. I’m no idealist to believe firmly in the integrity of our courts and of our jury system. That’s no ideal to me. That is a living, working reality!

“Now I am confident that you gentlemen will review without passion the evidence that you have heard, come to a decision, and restore this man to his family. In the name of God, do your duty. In the name of God, believe Tom Robinson.”

Atticus Finch’s closing argument stresses equality under the law and faith in juries. However, the argument was probably far more likely to impact the film’s audiences (especially during the civil rights era of the 1960’s) than the small town Southern white jurors of the 1930’s. While any defense that Atticus offered may have been doomed to fail, nevertheless his rhetorical strategies offer important lessons in trial advocacy.

Most noticeably perhaps, Atticus fails to discuss the prosecution’s evidence and attack its weakness. He implicitly attacks the credibility of Mayella and her father but doesn’t stress the implausibility of their stories. Soaring oratory is not a substitute for evidentiary analysis.

Along with neglecting to attack the prosecution’s evidence, Atticus fails to mention that the prosecution has to prove Robinson guilty beyond a reasonable doubt. Indeed, Atticus’ last words (“believe Tom Robinson”) suggest that the defense has to convince the jurors that Robinson’s story was more credible than that of the Ewells to justify an acquittal. Atticus is in an uncomfortable yet familiar position. When defendants present their own version of what happened, defense attorneys need to emphasize the credibility of that version while at the same time reminding the jurors that the prosecution or plaintiff has the burden of proof. Atticus’ last words unfortunately imply that the burden of proving what happened lay with Robinson.

Atticus misreads his audience when he refers to courts as “great levelers.” The metaphor assumes that once they set foot in a courtroom, the jurors become capable of disregarding a social order in which the status of even the poorest white person is higher than that of a “Negro.” Immoral though that social order may be, a strategy that depends on jurors’ willingness to set aside such deeply held beliefs is unlikely to succeed. In a similar though less moralistic vein, Atticus’ reference to “unmitigated temerity” might be offensive to the poorly educated jurors!

Atticus does offer the jurors a “theory of the case” that accounts for Mayella’s false claim of sexual assault. Atticus’ theory is rooted in psychology: Mayella needed to “get rid of her own guilt.” As this is a possible inference from the evidence, Atticus does not violate the rule against arguing facts “outside the record” even though no psychologist testified. However, Atticus might have offered a more straightforward theory rooted in the testimony: realizing that her furious father Bob was watching from the window, Mayella cried rape in an effort to prevent her father from beating her for “kissing a black man.” 

While the fictional Atticus has to lose, might a real Atticus have been able to make a more effective closing argument? As for any attorney who represents an unpopular client, a real Atticus might try to develop an approach that offered the jurors a chance to rule in Robinson’s favor without having to abandon their ingrained beliefs. Here are two possibilities:

Atticus might take advantage of the southern jurors’ likely anti-Yankee bias. That is, Atticus might argue that northerners unfairly attack southern justice, and that the trial is an opportunity for the jurors to demonstrate that southern justice is alive and well by recognizing that Robinson’s guilt has not been proved.

Atticus might argue that Mayella does not deserve the protection of the local social order that elevates all white people over all black people. Mayella had previously violated the rules by luring Robinson onto her property. As a result, the mantle of credibility that applies to white witnesses in general does not extend to this particular white witness.

Conclusion

The creators of law-related films (and television shows) craft stories that they hope will connect with mass audiences. As the lessons in this essay suggest, the same material that entertains mass audiences can educate litigators. While courtroom formalities and rules of evidence restrict litigators’ creativity, many story elements that appeal to mass audiences apply equally to audiences that consist only of one judge or 12 jurors.

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Paul Bergman

UCLA Professor of Law Emeritus

Paul Bergman is a Professor of Law Emeritus at the UCLA Law School and a recipient of two University Distinguished Teaching Awards. His books include Criminal Law: A Desk Reference (Nolo); Nolo’s Deposition Handbook (with Moore, Nolo); Reel Justice: The Courtroom Goes to the Movies (with Asimow); Trial Advocacy: Inferences, Arguments and Techniques (with Moore and Binder.); Trial Advocacy in a NutshellRepresent Yourself in Court: How to Prepare and Try a Winning Civil Case (with Berman, Nolo); Depositions in a Nutshell (with Moore, Binder, and Light); Lawyers as Counselors: A Client-Centered Approach (with Binder, Tremblay, and Weinstein); Evidence Law and Practice (with Friedland and Benham); Cracking the Case Method (with Goodman and Holm); Fact Investigation (with Binder); and You Matter: Ten Spiritual Commitments for a Richer and More Meaningful Life (with Rabbi Mark Borovitz). He has also published numerous book chapters and articles in law journals.

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