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What I Learned at the Movies

By Alan L. Rupe

Employment cases: high emotion, high stakes, high drama, and always a few rough-and-tumble skirmishes along the way. I’ve always thought a movie screenwriter could not dream up some of the characters and situations we employment lawyers deal with every day. And nothing is more fun than trying an employment law case. I’ve represented employers in employment and class action lawsuits for 35 years in jurisdictions across the country, and in each case, I’ve learned an important lesson. Some of those lessons have been painful. Defending employers from charges of harassment, discrimination, and illegal employment practices has given me the “scar tissue” I now carry with me into each one of my employment cases.


For a less painful (but equally enjoyable) method of learning about employee-plaintiffs, their lawyers, and how to try a lawsuit, go to the movies. You’ll get the same high emotion, drama, and important lawyer lessons—and the popcorn is pretty good, too. My favorite films are those that convey some useful and important lessons about the practice of law. Here are just a few of the lessons I’ve learned from some of my favorite law movies.


The Cause
There are a couple of workplace-oriented movies that remind defense lawyers about the zeal of plaintiffs and their attorneys and the willingness to fight for a “cause.” North Country,[1] a 2005 movie based on a real-life class action filed by Lois E. Jenson, the representative plaintiff in Jenson v. Eveleth Taconite Company,[2] is a Hollywood-stained account of women’s efforts to be treated equally. Lead character Josey Aimes, a mother of two fleeing her abusive husband, begins working at a local taconite mine, a predominantly male industry. Angry that women, like Aimes, are taking valuable positions from other men, the male employees make the environment as unbearable as possible for the female employees. The pervasive discriminatory treatment of women escalates from sexually explicit comments to battery.


In the face of this intolerable treatment, Aimes quits her job and hires an attorney to file a class action against her former employer. After 90 minutes or so, the women win the case. Defense lawyers should never forget the plaintiff’s attorney’s zeal when recruiting class members: “What are you supposed to do when the ones with all the power are hurting those with none? Well, for starters, you stand up. Stand up and tell the truth. You stand up for your friends. You stand up even when you’re all alone. You stand up.”


Norma Rae[3] is to labor law what North Country is to class actions. The story is based on the early union activity of Crystal Lee Sutton, a union organizer in North Carolina.[4] Norma Rae Webster, a single mother employed at a cotton mill as a textile worker, meets New York union organizer Reuben Warshowsky and joins the effort to unionize Webster’s hometown cotton mill. Again a struggle, again ultimate success. Like North Country, this movie is filled with workplace emotion and passion. Both movies depict employees willing to fight to change their work conditions, no matter how tough the resistance.


Here’s the lesson I learned from these two movies: Be passionate, play to win, and be enthusiastic about your cause. The practice of law should be more than just a job. And you should have fun doing it.


The award-winning movie Philadelphia[5] has a terrific example of a lawyer who takes on the system for a cause, even though he doesn’t particularly like his client. Loosely based on the case of Geoffrey Bowers, an attorney who died of AIDS in 1987, the film features Tom Hanks as Andrew Beckett, a rising attorney at a large Philadelphia corporate law firm.[6] The firm fires Beckett for what it claims is incompetence, but Beckett is convinced that the reasons given for his termination are pretextual and that he was fired because he is homosexual and dying of AIDS.


Beckett tries to find an attorney to represent him in his wrongful termination lawsuit against the firm. His search to find representation is daunting, but he finally gets the reluctant help of a homophobic personal injury lawyer played by Denzel Washington. Despite the personal injury lawyer’s initial dislike of his client, the two work together to prove the allegations and in the process, the personal injury lawyer remembers what he loves most about the law: “It’s that every now and again—not often, but occasionally—you get to be a part of justice being done. That really is quite a thrill when that happens.”[7]


Two lessons from this movie: You may not always like your client, but remember the cause. Second lesson, and this single rule is important in almost every case I’ve ever tried: Employment lawyers live in a world in which a court or jury must determine whether an adverse job action was motivated by discrimination or a legitimate, non-discriminatory reason. There are hardly ever any direct-evidence cases. Philadelphia is a good example of the hard work necessary to piece together the “footprints in the snow” indirect evidence needed to prove discriminatory motive.


Another lesson I’ve learned from defending employers over the years is that it is always personal. Without exception, I have never defended a case in which someone in the employer’s organization was not personally and negatively emotionally affected by a discrimination lawsuit. The movie Disclosure[8] brings the lesson home. Movie character Tom Sanders is passed over for a job promotion and almost immediately, his new supervisor, a woman, becomes sexually aggressive with Sanders. When Sanders cuts off the supervisor’s advances, the female supervisor is outraged and files sexual harassment charges against Sanders. Sanders counter-sues for sexual harassment, and the case goes to arbitration.


Disclosure is also a reminder that the matters we attorneys often view in terms of case citations and war stories have an enormous impact on our clients’ lives. Tom Sanders nearly loses his job and his wife because of the lawsuit. Our clients are no less vulnerable. These cases involve real people and real emotions. Our job, as attorneys, is to communicate the potential of hard times and heartbreak to our clients, and to persuasively communicate the effects of that reality to the court and jury.


Disclosure also depicts the narrow line between truth and fiction. In the movie, as in real life, evidence in a sexual harassment case often boils down to “he said/she said.” We have to be able to distill truth from fiction. In every lawsuit, intent and credibility are—as in Disclosure—at center stage.


No inventory of workplace films would be complete without mention of Office Space.[9] Office Space is the workplace story of Peter Gibbons, a bored computer programmer who embraces a work style of laziness and ambivalence as a result of a misplaced post-hypnotic suggestion. He is rewarded with a promotion while his hardworking friends, on the other hand, are fired. The memorable scenes from this movie? Three disgruntled employees destroying the office’s recalcitrant computer printer. And the scheme to embezzle corporate money, a penny at a time. Although the movie is a comedy, the lessons are real: Work permeates every aspect of every employee’s life, and sometimes truth is stranger than fiction. I’m betting each of us can point to workplace situations like those portrayed in Office Space, and I’m also betting that at some point during your legal career, you will defend someone in very similar circumstances. Good luck with that case and let me know how it turns out.


The Witness
Now for some law movies not about the workplace, which teach employment lawyers courtroom lessons. There’s only one lesson from the movie A Few Good Men.[10] In this film, actor Tom Cruise plays criminal defense attorney Lieutenant Daniel Kaffee, who defends two clients on a murder charge. Kaffee conducts a grueling cross-examination of Colonel Nathan Jessep (famously played by Jack Nicholson). Kaffee’s incisive cross-examination leads to Jessep’s witness-stand confession that Kaffee’s clients were acting on his orders. The jury finds the two defendants not guilty, and Jessep is arrested and led from the courtroom. I’ve tried cases for 35 years, and I’ve only seen one defendant confess. Unfortunately, it was my client who, during my courtroom examination of him, said, “I did it.” The one lesson: It almost never happens like that, so don’t count on your brilliant cross-examination to lead to confessions in front of a jury. Great movie, but not so realistic.


Contrast Lt. Kaffee’s cross-examination of Col. Jessep with the cross-examination of an apparently unimportant fact witness in the movie The Verdict.[11] Plaintiff’s lawyer Frank Galvin (played by Paul Newman) has reached the end of a failing career. He has one lawsuit left, referred to him as a gift from his former mentor. Galvin sues the hospital, the surgeon, and the anesthesiologist on behalf of his client, a young woman who remains in an irreversible coma following a botched surgery. Galvin’s case flounders until finally, near the end of the trial, he is able to locate the admitting nurse and convinces her to testify at trial. Galvin puts the young nurse on the witness stand and with just a couple of open-ended questions, lets the nurse tell her story. The nurse convincingly explains to the jury that she wrote a 1 on the hospital admittance form, indicating the patient had eaten one hour before surgery. Galvin sits down and the acclaimed defense attorney (played by James Mason) rises to cross-examine the young woman. “And how is it you can recall this so clearly after all these years?” The nurse pulls a document from her handbag and says, “because I kept a copy.” She tells the jury the doctor told her she would be fired if she didn’t change the number on the form from a 1 to a 9. The testimony obviously remaining in the jury’s mind, when voting to award more money damages than the plaintiff asked for, was the nurse’s cry “He told me that if I didn’t change the form, I would be fired. Who were these men? I wanted to be a nurse!” Galvin didn’t make himself the center of attention with a great cross-examination; he let the witness and the facts be the star.


So take some time to watch and compare A Few Good Men with The Verdict. Watch the two scenes described above and you will come to the same conclusion I have: The most powerful persuasion does not come from lawyers who conduct flamboyant cross-examinations, but rather from the right witness testifying to the right facts that allow the jury to come to the right conclusion.


The Jury
My mother-in-law always says, “Every tub sits on its own bottom.” I think she means that every person looks at a situation from his or her own point of view. From my experience, I believe this is certainly true in the jury box. Jurors view unfolding testimony from their own set of circumstances and interests; then they apply those individual points of view to what they believe the outcome of the case should be. From the movies, I’ve learned several persuasive techniques that seem to work.


Three movies, My Cousin Vinny,[1]2 How to Murder Your Wife,[13] and Midnight in the Garden of Good and Evil,[14] illustrate these techniques. Think about Mona Lisa Vito, the “automotive mechanic expert witness” in My Cousin Vinny, who explains to a diverse group of jurors the difference between a “regular differential” and a differential with “positraction.”[15] She looks and speaks to each individual juror. She is excited about her subject. And the jurors nod. They understand Mona Lisa’s point that “anyone who’s been stuck in the mud in Alabama” understands how the car wheels spin. Mona Lisa makes the point, and the jurors get it. In my personal award book, I give Mona Lisa Vito the lifetime achievement award for “Best Testimony by Any Witness to a Jury.” Don’t tell opposing counsel, but I frequently show this movie clip to witnesses before I put them on the witness stand. Talk to the jury. Relate to the jurors. Be enthused. Know your subject.


The 1964 comedy How to Murder Your Wife could surely not be filmed today because of sheer offensiveness, but is, however, a great example of the self-centered jury. Accused of murdering his wife and on trial for his life, the lead character Stanley Ford (played by Jack Lemmon) realizes he is going to be convicted of murder (although we know he didn’t do it—his wife is alive and well) if he doesn’t come up with a new defense. In closing argument, Ford’s attorney appeals to the all-male jury and invites each juror to push an imaginary button on the jury rail to forever eliminate their spouse and their personal conflicts. Each of the 12 male “tubs” sits on his own “bottom” and votes to acquit Stanley Ford. What did the defense attorney do? He appealed to the juror’s individual points of view and sense of fair play.


The closing argument made by the defense attorney in the true-life-based movie Midnight in the Garden of Good and Evil is one of the best silver screen trial scenes ever. The defense lawyer pleads with the jury to put themselves in the shoes of the defendant, accused of murder. Again, the defense uses an argument tailored to each juror’s personal experience and interests. And the defendant is found not guilty.


The Trial Lawyer
The most important courtroom lesson learned in 35 years of practice is to be the guide the jury can trust. Think about Scott Turow’s courtroom drama Presumed Innocent.[16] Actor Raul Julia’s role as defense attorney Sandy Sterns is spectacular; his cross-examination of the county coroner, the state’s key witness in a murder trial against his client, is a “must see” roadmap for all attorneys. Raul Julia is calm, confident, deliberate, and thoughtful. He begins his cross-examination of the evasive coroner at counsel table, moves confidently to the front of the jury box, and moving in slowly and deliberately toward the witness box, thoughtfully and deliberately guides the jury to the conclusion that the coroner was mistaken in the results of his autopsy. As the coup de grace, Julia gently touches the witness box and hits the mark: “We have had enough unsupported allegations, Dr. Kumagai.” (Incidentally, I’m not the only one impressed by the late Mr. Julia’s performance. Presumed Innocent was filmed in a federal courtroom in Cleveland, Ohio, and a former assistant district attorney, William Fordes, offered technical assistance to the film director, Alan J. Pakula. Fordes was so impressed, however, by Mr. Julia’s “courtroom” presence that he wanted to use Julia’s performance as a training film for attorneys in the district attorney’s office).[17] Julia’s performance taught me to use the very powerful courtroom tools of movement, demeanor, deliberation, and intensity. Attorneys, be the guide the jury can trust.


An associate in my office recently conducted her first cross-examination at a hearing. I told her that once she thought she was completely prepared, the best thing she could do the night before the hearing was to watch the scene from Star Wars[18] in which Obi-Wan Kenobi trains Luke Skywalker to use the lightsaber. Skywalker is challenged to deflect lasers from a small orbiting ball while blindfolded. He must rely completely on his instincts. After further reflection, I suggested she also watch Legally Blonde[19] to see how law student Elle Woods suddenly plugs her own experience with hair permanents into a pre-scripted cross-examination. Woods stops and thinks. And she wins the case.


Real Life
Our office hallways are lined with posters from movies about lawyers and trials, including Chicago,[20] Amistad,[21] Primal Fear,[22] Kramer vs. Kramer,[23] Adam’s Rib,[24] and, of course, all the John Grisham movies. Visiting clients frequently ask, “What is the most authentic movie about lawyers?” Let me set the bookends: The Verdict is Rocky[25] for plaintiff’s lawyers. The courtroom scenes are realistic, and I’ve personally sparred with (or represented) each character type over the years. (Don’t get me started about the movie judge and his exclusion of evidence.) A Civil Action[26] is the best depiction of the worst a civil action can be: horrendous damages, years of litigation, and a very poor outcome for everyone involved. The one lesson from A Civil Action (based on a true story involving groundwater contamination in Massachusetts): Bad things can happen at trial.[27] I keep the posters of my two personal picks for authenticity, The Verdict and My Cousin Vinny, in my office.


Conclusion
Had you dropped by a courtroom in Montgomery County, Maryland, recently, you might have caught me approaching the witness box, slightly tapping my fingers on the jury box and quietly mentioning the problem with “unsupported allegations.” You might have thought it was theater. It was. I’ve learned a lot at the movies.


Keywords: Movies, juries, witnesses


Alan L. Rupe is a partner in the Wichita, Kansas, office of Kutak Rock LLP.


This article appears in the forthcoming Fall 2009 issue of Employment & Labor Relations Law.


 

Endnotes


  1. North Country (Warner Bros. Pictures 2005).
  2. 130 F.3d 1287 (8th Cir. 1997).
  3. Norma Rae (Twentieth Century Fox Film Corp. 1979).
  4. Robert Neimi, History in the Media: Film and Television, at 331 (2006).
  5. Philadelphia (Clinica Estetico 1993).
  6. See Paul Bergman & Michael Asimov, Reel Justice: The Courtroom Goes to the Movies, at 136 (1996).
  7. Philadelphia (Clinica Estetico 1993).
  8. Disclosure (Warner Bros. Pictures 1994).
  9. Office Space (Twentieth Century Fox Film Corp. 1999).
  10. A Few Good Men (Castle Rock Entm’t 1992).
  11. The Verdict (Twentieth Century Fox Film Corp. 1982).
  12. My Cousin Vinny (Palo Vista Prods. 1992).
  13. How to Murder Your Wife (Murder Inc. 1965).
  14. Midnight in the Garden of Good and Evil (Malpaso Prods. 1997).
  15. Paul Bergman & Michael Asimov, Reel Justice: The Courtroom Goes to the Movies, at 111 (2006).
  16. Presumed Innocent (Mirage 1990).
  17. Rochelle Siegel, Presumed Accurate, ABA J., Aug. 1990, at 42–47.
  18. Star Wars (Lucasfilm 1977).
  19. Legally Blonde (Metro-Goldwyn-Mayer 2001).
  20. Chicago, (Miramax Films 2002).
  21. Amistad (DreamWorks SKG 1997).
  22. Primal Fear (Paramount Pictures 1996).
  23. Kramer vs. Kramer (Columbia Pictures 1979).
  24. Adam's Rib (Loew’s 1949).
  25. Rocky (Chartoff-Winkler Productions 1976).
  26. A Civil Action (Touchstone Pictures 1998).
  27. For a recitation of the facts surrounding the actual case, see Anderson v. Cryovac, 96 F.R.D. 431 (D. Mass. 1983) and Anderson v. W.R. Grace & Co., 628 F. Supp. 1219 (D. Mass. 1986).

 

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