Judicial Process and the Legal Profession in Films
Professor Laurent Mayali
lmayali@law.berkeley.edu
NTU LAW Fall 2018

This course will examine the representation of Justice and judicial process and the image of the legal profession in films. We will explore how this dramatic fiction influences a popular conception of justice that corresponds to a definite model of civil society that is not limited to the resolution of disputes and the enforcement of public order.
Discussions will be based on partial screening and analysis of films produced within the last fifty years. In addition to discussing forms of representation of the adjudication process we will examine the popular portrayal of lawyers, prosecutors, and judges. We will also discuss the public’s expectations of the courts’ function as public forum and of the relationship between legal rules, truth and morality in the popular definition of justice.

Syllabus


Part I THE SETTING – October 22nd


A - Law, Justice and Popular Culture


“Like the notion of ‘popular culture,’ popular legal culture implies the existence of an
official culture of law distinct from everyday legal practices and understandings.
Ethnographic studies of law, in the United States and cross-culturally, underscore the
significance of this distinction, which becomes most apparent in colonial contexts where
a new state system is imposed on traditional legal forms. Yet equally striking differences
have been noted in the industrialized West between an official rule of law codified in
formal statutes, dominated by a professional elite and symbolized in a national system of
courts, on the one hand, and unofficial systems in which informal agreement, various forms
of self-help, gossip, avoidance, and ‘lumping it’ are customary practice, on the other.”
Barbara Yngvesson, Inventing Law in Local Setting: Rethinking Popular legal Culture,
8 Yale L.J. 1689

“Much of the fabric of the modern world is woven on the loom of popular culture. While scholars have defined pop culture differently, there is a general consensus as to its strong influence on modern society. Broadly, it has been described as consisting of “the aspects of attitudes, behaviors, beliefs, customs, and tastes that define the people of any society.” It has also been described more narrowly as “the body of cultural commodities and experiences” commercially produced by the “culture industries” to be consumed by the average person. Combining these definitions, it would follow that the term “legal popular culture” refers to society’s perception of the legal profession and the judicial process formed after partaking of cultural commodities such as film, literature, song lyrics, lawyer advertising, and television. In other words, legal popular culture is everything people know, or think they know, about the law from their consumption of popular culture. Of all the mediums disseminating cultural commodities, television is certainly the most pervasive, persuasive, and, depending on the content of a particular legal show, the most pernicious.” Taylor Simpson-Wood, THE RISE AND FALL OF BAD JUDGE: LADY JUSTICE IS NO TRAMP17 Tex. Rev. Ent. & Sports L. 1

- “Law and lawyering are understood via television, film, and literature through a process of interpretation - a process that translates and shapes our understanding of the law, and of the role of lawyers in legal institutions. This process of interpretation is grounded in experience and varies by such characteristics as race, gender, age, class, education, and geographic location, among others. It is a process that links law, culture and markets to provide a multi-valued and cultural-interpretive frame of the operative place and space of law. It informs us of the place where law originates, where it happens, where it is accessible, such as in the courthouse, on the street, in the police station, at the District Attorney's office, or in the corporate boardroom. It also informs us of the space occupied by the law as a mediator of tension between different cultural-interpretive communities. This space involves the metaphorical space of social relationships, market exchange, and political authority. It represents the way in which law filters into and permeates our lives, and shapes an understanding of our place before, and within the law.
In practice the law operates in places and spaces that are partially hidden from public view. For many, if not most lay people the law appears visible in fragmented ways that are abstract and to a certain extent incomprehensible. Other than for occasionally scripted appearances on the legal stage, individuals generally remain isolated and intermittent participants in the legal system. Their experience of the law is fragmented and may consist of scattered encounters with police officials, brief meetings with a lawyer, the signing of legal documents, responding to legal orders and jury summons, and perhaps a visit to a courthouse or the office of a legal or administrative agency. In all such cases the encounters are brief and partial.” Robin Paul Malloy, LAW AND HUMANITIES: SYMPOSIUM ON THE IMAGE OF LAW(YERS) IN POPULAR CULTURE* INTRODUCTION TO THE SYMPOSIUM 53 Syracuse Law review (2003) 1161


B - Courtrooms and Stage : Trials and Tragedy

“A tragedy is the imitation of an action that is serious and also, as having magnitude, complete in itself; in appropriate and pleasurable language;... in a dramatic rather than narrative form; with incidents arousing pity and fear, wherewith to accomplish a catharsis of these emotions.” Aristotle, Poetics, VI.

“The courtroom itself, as a forum in which good and evil, truth and falsehood, and right and wrong do justice is a familiar one to modern playgoers.
“The fictional courtroom as setting for a critique is particularly apt. It focuses on the characteristics of lawyers in an adversary system. The courtroom is the prototypical battlefield for both lawyer and client; both participants and observers recognize it as the most public arena, besides the media, in which a cause can be vindicated, even though actual litigation, at least in civil cases, may be the least favored means by which to settle a dispute. The fictional courtroom is alien territory for the client, who nevertheless may welcome his "day in court," and familiar territory for lawyers. Yet lawyers tend to object to the portrayal of the legal system in such dramas, while nonlawyers welcome the portrayals, at least in terms of justification for mistrust in "the system." Likewise, the actual courtroom serves as a real-life stage on which the participants may present their own versions of truth to a presumably impartial audience.”
Christine Alice Corcos LEGAL FICTIONS: IRONY, STORYTELLING, TRUTH, AND JUSTICE IN THE MODERN COURTROOM DRAMA. 25 U. Ark. Little Rock L. Rev. 503


“Despite the portrait, until now, of the trial film's aim in meting out justice through the viewer-subject's balancing of monumental structure and minute detail, diverse perspectives and acute focus, the trial film's finale is often an unsophisticated revelation of some hidden essential truth - be it the facts of the case or the law's inability to assess those facts fairly. Poised to negotiate the contradictions in law's goal of individual and equal justice with its institutional organization of constant, consistent rules and hoops, the viewer subject instead is made to experience the conclusion of the courtroom drama as a triumph of neatly-tied loose ends. Rarely is the issue at trial in these films about the perplexing (and sometimes unanswerable) questions of law, such as the ambiguity of legislative interpretation, the constitutionality of a state law, or the problematic dichotomous categories of guilt or innocence.
Instead, the framing patterns and courtroom shots that are consistent in so many of these films serve not to make complex the relationship between the legal subject and his desire for justice through the process of law, but to simplify that relationship as an individual's decision between right or wrong, truth or falsehood.

In the genre of the trial film, there are two common conclusions toward which the above mapped framing patterns and courtroom scenes eventually lead:

(i) trial law helps to uncover a long-kept secret and to fit it, like a puzzle piece, into its proper place, thus perpetuating law's reputation as a means toward the whole truth and its resultant justice; or
(ii) trial law is a process through which law extends its authority and power, despite what the viewer knows to be the facts of the case, perpetuating law's reputation as an ever-present social organizer - not because the law is always right, but because it is always the law, the last sanctioned force, the foundation upon which everyone has dared to stand.
In both scenarios, the truth is made known to the viewer-subject eventually, either at the end of the trial as law fulfills its promise, or before the trial, in which case the issue is not who did it and why, but whether the law will be able to account for the truth the viewer understands to be facts of the matter.
This is not a representation of law and its force as tyrannical, but a representation of society which cannot imagine sustainable human civilization without law. It is a very rare film about the legal system (and certainly not a mainstream feature film) whose message is truth at all costs, even anarchy.”
Jessica Silbey, Patterns of Courtroom Justice , 28 Journal of Law and Society 97 2001

- Philadelphia, U.S.A. 1994, Director Jonathan Demi.
- True Believer, U.S.A. 1989, Director Joseph Ruben
- Heavens Fall, U.S.A. 2005, Director Terry Green
- The Rainmaker U.S.A. 1997 Director Francis Ford Coppola
- Primal Fear, USA 1996, Director Gregory Hoblit.
- Murder in the First, USA 1995, Director Marc Rocco.
- Silent Witness, CHINA 2013, Director Fei Xing.
- The Rose Garden, USA 1989, Director Fons Rademaker.

Part II The Actors: Practicing Law: The Legal Profession

- October 23rd: To Be or not to Be a Lawyer

“The exercise of their profession daily reminds them of this superiority: they are the masters of a necessary and not widely understood science; they serve as arbiters between the citizens; and the habit of directing the blind passions of the litigants toward the objective gives them a certain scorn for the judgment of the crowd.”
A. de Tocqueville, Democracy in America, cited by G. Hazard, The Future of Legal
Ethics 100 Yale Law Journal, 1239 at 1269.

“The image of lawyers is a special case. No doubt many lawyers feel, with some justice,
that nobody appreciates them. .Americans “carry around with them” , as Anthony Chase
puts it, a “split image” of law and lawyers: there are lawyers who seem noble and just,
“ardent defenders of the isolated individual”; others conform more to the image of the
shyster. The criminal defense lawyer gets much of the good press; other lawyers tend to
be dismissed as mountebanks.”
Lawrence Friedman, Law, Lawyers, and popular culture, 98 Yale Law Journal (1989) 1599


“The juridical field is the site of a competition for monopoly of the right to determine the law. Within this field there occurs a confrontation among actors possessing a technical competence which is inevitably social and which consists essentially in the socially recognized capacity to interpret a corpus of texts sanctifying a correct or legitimized vision of the social world. It is essential to recognize this in order to take account both of
the relative autonomy of the law and of the properly symbolic effect of that results from the illusion of the law’s absolute autonomy in relation to external pressures.
Competition for control of access to the legal resources inherited from the past contributes to establishing a social division between lay people and professionals by fostering a continual process of rationalization. Such a process is ideal for constantly increasing the separation between judgments based upon the law and naive intuitions of fairness. The result of this separation is that the system of juridical norms seems (both to
those who impose them and even to those upon whom they are imposed) totally independent of the power relations which such a system sustains and legitimizes.”
Pierre Bourdieu, The Force of Law: Toward a sociology of the juridical field, Hastings LR 38 (1977) at 814

ABA Model Rules, Professional Conduct, Preamble (USA)
“ A lawyer's conduct should conform to the requirements of the law, both in professional
service to clients and in the lawyer's business and personal affairs. A lawyer should use
the law's procedures only for legitimate purposes and not to harass or intimidate others.
A lawyer should demonstrate respect for the legal system and for those who serve it,
including judges, other lawyers and public officials. While it is a lawyer's duty, when
necessary, to challenge the rectitude of official action, it is also a lawyer's duty to uphold
legal process.”

Attorney Regulation Act (Taiwan)
Article 1 Attorneys take upon themselves the goals of promoting social justice, protecting human rights, and contributing to democratic
government and the rule of law.
Guided by these professional goals, with the spirit of self regulation and self governance attorneys should strive to faithfully execute their professional responsibilities, contribute to the preservation of social order, and work towards the improvement of the legal system.
Article 2 Attorneys should strive to meet the highest standards of ethical conduct, seek to preserve the integrity of the legal profession, abide by codes of professional ethics and be constantly improving their knowledge of the law.

IBA International Principles on Conduct for the Legal Profession Adopted on 28 May 2011 by the International Bar Association

1. Independence A lawyer shall maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of success of the client’s case.
2. Honesty, integrity and fairness A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the lawyer’s clients, the court, colleagues and all those with whom the lawyer comes into professional contact.

5. Clients’ interest A lawyer shall treat client interests as paramount, subject always to there being no conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards.

- Michael Clayton, U.S.A. 2007, Director Tony Gilroy.
- The Sweet Hereafter, Canada 1997, Director Atom Egoyan.
- Philadelphia, U.S.A. 1994, Director Jonathan Demi.
- My cousin Vinny , U.S.A. 1992, Director Jonathan Lynn.
- A Civil Action, U.S.A 1998, Director Steve Zallian
- Class Action, U.S.A. 1991, Director Michael Apted
- Marshall, U.S.A. 2017, Director Reginald Hudlin
- Primal Fear, USA 1996, Director Gregorit Hoblit




- October 24th: Being a Lawyer and acting as one.

“The issue here is the role of the hero-lawyer in the delivery of justice. More fundamentally it concerns the leeway, given to the central figure, to ignore the procedures of law where he feels it necessary to reach the right' result. In essence this is part of the subjective core-of the lawyer's function. One part of this is the narrower issue of professional legal ethics and how these have been dealt with within legal films. An important point is how the cinematic lawyer is influenced by such professional ethics in his association with clients, the legal process and ultimately justice. The emphasis here is on the relationship between the lawyer, the court, and the client and whether procedural rules and ethical requirements can be ignored in order to achieve a higher ideal. This has implications for the sanctity and probity of the legal profession, the relationship between law and justice, and the fundamental question of to whom does a lawyer owe a duty.” Steve Greenfield, Hero or Villain? Cinematic Lawyers and the delivery of justice., Journal of Law and Society 28(2001) at 34.

“Atticus Finch the hero of Harper Lee’s novel To Kill a Mocking Bird has become the
ethical exemplar in articles ranging from military justice to moral theology. If we do not
do something fast, lawyers are going to start taking him seriously as someone to emulate.
And that would be a bad mistake. “
Monroe Friedman, Atticus Finch Esquire., R.I.P., Legal Times, Feb. 24, 1992, at. 20.


- Puncture, U.S.A 2011, Director Adam and Mark Kassem
- The Attorney, Korea 2013, Director Yang Woo-Seok
- To Kill a Mocking Bird, U.S.A. 1962, Director R. Mulligan
- The Lincoln Lawyer, U.S.A. 2011, Director Brad Furman
- Christmas Rose, Hong-Kong, 2013, Director Charlie Yeung
- Roman Israel Esq, U.S.A. 2017, Director Dan Gilroy



- October 25th : Being a Woman and a Lawyer

“The stories that these films tell us about the abilities of women lawyers, and the stories these women tell us about themselves, are therefore in conflict. The verdict seems to be, however, that women lawyers, because of the nature of society in general, can never be as successful or as happy as men, nor can they be heroes in the traditional sense. But much of the behavior that we see women lawyers engage in is heroic, if by heroic we mean behavior that represents fidelity to an ideal greater than and apart from oneself even at the cost of one's career and friends and as well the willingness to redefine oneself and one's role in order to achieve that ideal.
If that is our definition of heroic behavior, then some women popular culture lawyers achieve heroism, and some have it thrust upon them in exchange for personal defeats. In the first category

Movie images of the female attorney that reiterate her incompetence or immaturity continue to damage real life women attorneys in their quest to make their own contributions to the profession. Further they denigrate the male attorney by implying that he is so insecure, so incapable and so jealous of a female colleague's success that he must resort to the raw use of physical power or emotional blackmail to triumph over her. Such images do neither sex much good, as they reinforce cynicism, self-satisfaction and justification or fear in the more mature viewer and inculcate injurious and limiting patterns of thought in the young.” Christine Alice Corcos, "We Don't Want Advantages" the Woman Lawyer Hero and Her Quest for Power in Popular Culture, 53 Syracuse L. Rev. 1225, 1227 (2003)


- The Client, USA 1994, Director Michael Shumacher
- The Music Box, USA 1989, Director Costa Gavras
- The Rose Garden, Germany-Netherlands 1989, Director Fons Rademakers
- The Accused , USA 1988 Director Jonathan Kaplan
- Erin Brokovich, USA, 2000, Director Steven Soderberg
- Jagged Edge, USA 1985, Director Richard Marquand
- Conviction, USA 2010, Director Tony Goldwyn
- Silent Witness, CHINA, 2013, Director Fei Xing


- October 29th Judges and the Judicial Process

- The power thus entrusted to a judge is wholly unrelated to his personal sensibilities, be they tender or rugged. But judges also are human, and may, in a human way, quite unwittingly identify offense to self with obstruction to law. Accordingly, this Court has deemed it important that district judges guard against this easy confusion by not sitting themselves in judgment upon misconduct of counsel where the contempt charged is entangled with the judge's personal feeling against the lawyer. The vital point is that, in sitting in judgment on such a misbehaving lawyer, the judge should not himself give vent to personal spleen or respond to a personal grievance. These are subtle matters, for they concern the ingredients of what constitutes justice. Therefore, justice must satisfy the appearance of justice. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954)

American Bar Association Model Rule
An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law.

• Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

New Mexico Supreme Court Advisory Committee on the Code of Judicial Conduct, Advisory Opinion Concerning Social Media, ¶ 4 (Feb. 15, 2016)
• These limitations apply with equal force to virtual actions and online comments and must be kept in mind if and when a judge decides to participate in electronic social media. See Rule 21–001(B) (“Judges and judicial candidates are also encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.”);


- A Civil Action, U.S.A 1998, Director Steve Zallian
-The Verdict, U.S.A 1982, Director Sidney Lumet
- And Justice for All, USA, 1979, Director Norman Jewison
- The Rainmaker, U.S.A. 1997, Director Francis Ford Coppola
- Gideon’s Trumpet, U.S.A 1980, Director Robert Collins
- The Judge U.S.A 2014, Director David Dobkin
- Broken Arrow, Korea 2012, Director Chung Ji Young

- October 30th Prosecutors

A- “[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. U.S., 295 U.S. 78, 88 (1935)

B - “The starting premise from which all proposals to reform the American prosecutor seem to begin is the worry that American prosecutors, because they possess “virtually unlimited control over charging” are nearly omnipotent within our system of criminal procedure. Instead of accepting that such power conveys with it responsibilities, prosecutors are pictured as clinging fiercely to their discretionary power, unwilling to contemplate any structures for exercising discretion that would limit their freedom of action in a significant way.
In terms of the formal controls over prosecutorial discretion, it is certainly true that American prosecutors have far more discretion than their continental counterparts. If an American prosecutor decides not to file a criminal charge, there usually is no mechanism that would permit judicial review of that decision and, even when there is a statute permitting review, judicial approval is given perfunctorily. Thus prosecutors have tremendous discretion in deciding whether to charge someone with a crime, even when the evidence is strong.» William Pizzi, Ohio St. Law Journal 1993 at 1325 UNDERSTANDING PROSECUTORIAL DISCRETION IN THE UNITED STATES: THE LIMITS OF COMPARATIVE CRIMINAL PROCEDURE AS AN INSTRUMENT OF REFORM

- Presumed Innocent, USA, 1990, Director Alan Pakula
- Beyond a Reasonable Doubt, USA, 2009, Director Peter Hyams
- The Accused, USA 1988, Director Jonathan Kaplan
- Ghosts of Mississipi, USA 1996, Director Rob Reiner
- Indictment, U.S.A. 1995, Director Mick Jackson
- The Client, USA 1994, Director Michael Shumacher .


- October 31st Juries and Lay Judges

“Juries are made up of a diverse group of people from all walks of life, a group of peers drawn from the respective county. There are many factors to consider when determining what influences a jury, including group dynamics, an individual’s lifestyle and each juror’s personal values. Nevertheless, the entertainment industry has a considerable impact on how our justice system is viewed, and law enforcement and our justice system provides the perfect framework for storytelling. Timing is one of the most prevalent areas where juror perception has been impacted by popular culture’s storytelling. Timing refers to how television shows like CSI and Law & Order have compressed time frames in order to tell the story within its primetime slot. Popular culture’s depiction of how quickly evidence can be processed or how much evidence is gathered during the execution of a search warrant creates expectations among prospective jurors, making it almost impossible for litigators to live up to. Additionally, well written arguments presented in court scenes create another challenge for today’s litigators. Television and movie viewers have grown accustomed to professional actors making flawless presentations, which in turn raises their expectation on how the litigators are to perform in the case in which they are trying.” Katherine Lee Klansa, LAWYERS BRING BIG SCREEN DRAMA TO THE COURTROOM: HOW POPULAR CULTURE’S INFLUENCE ON THE LAW HAS CREATED THE NEED FOR “PROFESSIONAL WITNESSES”18 Barry L. Rev. 355

- The Verdict, U.S.A 1982, Director Sidney Lumet
- Twelve Angry Men, USA, 1957 Director Sidney Lumet
- 12 Citizen, China, 2014, Director Ang Xu
- 12 , Russia, 2009, Director Nikita Mikhalkov
- The Runaway Jury, USA, 2003, Director Gary Fleder
- Trial by Jury, USA 1994, Director Heywood Gould
- Philadelphia, U.S.A. 1994, Director Jonathan Demi

Part III THE PLOT - November 1st

Judicial Process and Story Telling

“The law serves as the language into which other languages, and stories are told in them, are translated and in that way comprised into a single order” James Boyd White, Law as Law in Heracles’ Bow. Essays on the Rhetoric and Poetics of the Law, U.W. Press, 1985, , , at 240.

“A trial is also a narrative competition. Each side tells a story, and tries to convince the jury (or judge) to buy its particular vision and version of fact. In an important sense, neither story line is ‘true’ or ‘false’. The two sides spar with each other before the trier of fact; each embroiders and displays its message with slogans and narrative bits which are thought to be particularly compelling, logical, or attractive. Hence arguments presented in trials are often important clues to what stories count as good, or true, or compelling stories, within a particular culture. A few historians and others have used trials for this specific purpose: as dramatizations of cultural norms.”
Lawrence Friedman, Law, Lawyers, and popular culture, 98 Yale Law Journal (1989) 1595.

- Snow Falling on Cedars, USA 2000, Director Scott Hicks
- To Kill a Mocking Bird, USA 1962, Director R. Mulligan
- Ghosts of Mississipi, USA 1996, Director Rob Reiner
- The Whole Truth, USA 2016 Director Courtney Hunt
- Pink, INDIA 2016, Director Aniruddha Roy Chowdhury