August 06, 2016

TV screenwriters on the CSI effect, O.J. and aspiring to show law as a “noble beast”

In a wide-ranging discussion on the law and its impact on pop culture, television screenwriter Jonathan Shapiro said that “Americans love the law because it’s where every story can be told,” and that for him and fellow panelist David E. Kelley, “there’s a wish fulfillment that law can evolve, adapt and be better.”

(left to right: Houston attorney Kelly-Ann Clarke, NPR host Renee Montagne, screenwriter David E. Kelley, screenwriter Jonathan Shapiro)

The two former lawyers spoke at a program moderated by NPR’s Renee Montagne entitled “Pop Culture and the Perception of Justice,” held Aug. 5 at the ABA Annual Meeting in San Francisco.

The duo have a new show, “Goliath,” which will stream this fall on Amazon, about a down-and-out lawyer played by Billy Bob Thornton who seeks redemption by going up against a rich and powerful law firm. The program is described as a “David versus Goliath” battle fought in the 21st century legal system. Although the show will take poetic and legal license, Kelley said it also gets into the legal weeds.

Shapiro said he wanted to tell stories of what practicing law can cost both lawyers and witnesses professionally and personally, and that this format of a series focused on a single case allows that.

He said so much has changed since the two were writing “Boston Legal” a decade ago, most notably:

  • Fully 20-27 law firms have revenues of more than $1 billion (“That’s Goliath.”)
  • At the same time, 28 percent of the profession have problems with alcohol and depression (“That’s David.”)

Shapiro referenced Alexis DeToqueville, who when writing about his impressions of American in the 1800s, said the most important democratic institution in America was the jury system. Since he’s become a lawyer, Shapiro said, the number of jury trials has gone down 50 percent, and “that’s bad for democracy.”

David E. Kelley

David E. Kelley

Kelley said Americans share the perception that there is an unlevel playing field when it’s the state versus the criminal defendant, but pointed out that the same is true in civil cases. And that is why “Goliath” centers on a civil case.

“It is such a mismatch now between the solo practitioner -- or even the small firm -- and the big firms, that it’s just not fair,” he said.

Although they started the project before the Bernie Sanders movement, Kelley said one theme the show has in common with his supporters is the belief that “the judicial system is in part rigged.”

“It’s just not a fair fight anymore,” Kelley reiterated, saying there is less than a 1 percent chance of winning a civil litigation suit against a big firm. In “Goliath,” the protagonist is hoping just to get a chance to take his case before a jury, where he might have a tiny shot at winning.

Asked what he cares about when writing legal shows, Kelley said a show has to resonate beyond its entertainment value. He acknowledged that most shows don’t aspire to that, but he strives to deliver an “emotional center” and that he always considers the audience to be a character in his shows.

For his part, Shapiro says the two of them look to move the discussion forward. Before 9/11, he spent time at the Department of Justice on a new terrorism unit. By the time the 9/11 attacks occurred, he was writing “The Practice.” He predicted to Kelley that the government would pass laws regarding the Foreign Intelligence Surveillance Act and it would be hard for defense lawyers to get discovery. Kelley told him to write about it for the show.

Shapiro wrote an episode where an Arab-American gets caught in a Catch-22 and is afraid to ask for a lawyer. The episode aired six weeks after 9/11, and in the following months and years the situations depicted played out.

Jonathan Shapiro

Jonathan Shapiro

The discussion turned to how viewers have become more sophisticated about legal proceedings and evidence, called “the CSI effect.” Shapiro said that “jurors in criminal cases now expect a level of forensic proof that doesn’t exist.”

Speaking of non-fiction, episodic series, Kelley said he was “rapt” watching “Making a Murderer” and “O.J.: Made in America” and thought, “That’s it, I’m done ­­-- I can’t do what they accomplished.”

But Shapiro said those documentaries helped showed him that there was an opening for a show about civil cases. He said “Goliath” is about “what happens to law in a free society during a time of perpetual war.” The series’ civil case involves American policies both at home and abroad, he said.

Speaking about how Americans view the criminal justice system today compared to during the O.J. Simpson trial, Kelley said, “the distrust is exponentially compounded.”

Back then, Shapiro handled police brutality and civil rights cases, including the Rodney King case. His new novel, “Deadly Force,” an ABA Ankerwycke book, draws on his experience.

What was once a 95 percent conviction rate at the U.S. Attorney’s office is down to 50 percent, he said, in part because jurors are mistrustful and understand now that defendants get framed.

In “Deadly Force,” Shapiro wanted to show what those cases cost the community, the prosecutor and the witnesses.

He said in his experience most of the victims of police brutality weren’t black, but that what all police brutality victims have in common is being poor and living in neighborhoods with “lousy police departments.”

He said the Black Lives Matter movement “is incredibly important,” but that the bigger issue is that “we need a national standard for what constitutes excessive force,” or we won’t see change, and he noted that none of the police officers involved in the police shooting cases since Ferguson have been found guilty.

Asked about the differences between writing “Ally McBeal” and “Goliath,” Kelley said that streaming is a “different art’” than network TV and that TV watching is less communal now as people watch on their devices. He noted that with so many viewers binge-watching, there is less need to reprise plot points, which makes for more efficient storytelling.

He added that he doesn’t like that with “Goliath” he’s “selling an addiction of sorts” and that he misses that time when the viewer had a week to process an episode.

The writers pointed to the “WTF effect,” seen on shows like “Scandal,” which features entertaining, sometimes outrageous plots that engage discussion on social media but don’t necessarily make sense.

With the advent of the WTF effect, Shapiro said that if he were trying a case today he would be concerned about how to keep jurors engaged, and that it threatens to change both the expectations and the perception of justice.

Kelley said that at their essence, he hoped that his shows reveal “a love of the law” and that “law at its very best is a very noble beast. We aspire to that.”