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Lawyers: Does Hollywood Get It Right?

In this episode of Summary Judgment, Josh and Aaron discuss how the media, movies, and TV portray what it’s like to be a lawyer. What do they get right?

Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

0:00:16.1 AF: Hey, Josh.

0:00:16.7 Josh Fogelman: Oh, hey, Aaron.

0:00:17.7 AF: Do you have a problem with the way the media portrays lawyers sometimes?

0:00:23.5 JF: Oh, boy. I think more media should portray more lawyers like Joe Pesci in My Cousin Vinny, because that’s really what lawyers are like in real life.

0:00:41.1 AF: Yes.

0:00:42.5 JF: And how court is in real life too.

0:00:44.8 AF: What do they get wrong?

0:00:46.2 JF: I’m not sure so much that the media portrays lawyers incorrectly per se. They do to some extent. I think it’s like the glorification of, or the dramatization of kind of what the legal process is like, what it’s like for a jury to actually be in court, I think is maybe portrayed a little bit incorrectly to what it’s like in real life, in terms of the pace at which things go. There is opportunity for drama really in the courtroom. That is one of the cool things about being a trial lawyer. But the process in real life is much longer and more dragged out than the movies and TV shows portray it to be.

0:01:40.8 AF: But is it true that conflict creates engagement?

0:01:45.0 JF: Oh, yeah. Interestingly enough, I think conflict definitely creates engagement. There are explosive moments in the courtroom. Some of the things that you see on TV with the witness being caught with the smoking gun, sometimes that really actually happens, but it’s like three minutes of a seven day trial.

0:02:12.2 AF: Yeah.

0:02:14.8 JF: And so it’s the other some odd hundred hours that the jury and the lawyers and the judge and all the staff are in the courtroom waiting for something to happen, and having to keep their attention that I think the media doesn’t really get right.

0:02:38.0 AF: So, compared to TV shows, what are some things that you admire about a good trial lawyer that’s different than what the TV shows seem to admire?

0:02:49.8 JF: Yeah. I think something that is maybe under-recognized by people going through law school and trying to figure out if they want to be a trial lawyer is, it’s not really about necessarily putting on a show and being the star of the show. It’s about being genuine, being yourself, using the skills and tools that are naturally available to you organically, and honing those skills to figure out how you can do the best job you can for the jurors in the room that are giving their time, so that they can maintain their attention, they can understand the concepts that you’re trying to present, and you can really relate to them and get them to understand the core of what the case is like. A lot of what we do, for example, when we’re trying cases, is talking about what could be described as moderately complex medical issues, right?

0:04:06.1 AF: Sure, sure.

0:04:08.2 JF: So, trying to figure out the best way to condense complex issues to educate the jury so that they understand what you are talking about, and they can follow what you’re going through in trying to help them understand the true issues at the heart of the case, in personal injury cases it’s usually injuries. Those kinds of skillsets I think are highly, highly valued.

0:04:40.2 AF: A lot of the drama actually takes place out of the courtroom in depositions, right?

0:04:45.4 JF: Definitely.

0:04:46.5 AF: One of the things I find terrible about the way TV shows portray depositions is they go right to the gotcha moment. Immediately. And I know they only got an hour, right? A deposition itself might be six hours long in real life. But what I admire about a great lawyer in deposition is a lawyer who really circles the kill, and before they circle the kill, even they have an intellectual curiosity. So, they start with intellectual curiosity. They come into the deposition, tabula rasa, right? Blank slate. They’re just coming in. They’re like, look, I wanna learn every single possible thing I can about fracking technology on an oil well. Right? And sit down with some expert on the other side, some company representative on the other side, and talk to them like you just were trying to go all the way through college the way they did, get all the nuggets, understand where the pain points are, understand where the efficiencies are gained, where maybe cost savings could be gained at the expense of safety, for example.

0:05:47.7 AF: And then slowly start to work on that with the witness until they’re basically confessing the crimes of the corporation. And that is like, I guess it’s the difference between reading a really awesome novel and listening to a song. When you watch TV, you’re instantly gratified by this gotcha moment and someone’s pointing their finger in someone’s face and everybody is angry. But for me, that slow burn and then just kinda walk away knowing that you’ve just excoriated this corporation, that’s the best drama that you can get.

0:06:24.4 JF: Yeah. No, it happens. I remember one time you and I, one of the first cases we litigated together was a big case that involved an oil field construction accident. More or less, and you and I had this… You had created this theory of the case really early on about some really egregious wrongdoing. Essentially, you believed that this company was training their employees how to lie and cheat the federal government. And I was young and naive at this time, and I just thought, there’s no way that that’s the case. There’s just no way that what you think can actually be going on in our society, in our civilization with this standup corporation.

0:07:19.7 AF: Yeah. They had a nice logo.

0:07:21.0 JF: They had a nice logo, therefore, what could they do wrong?

0:07:23.4 AF: What could they do wrong?

0:07:24.3 JF: And we, ah, man, we took like 14 or 15 depositions just like trying to slog through it and figure some things out. And one of the last depositions we took, we actually had that sort of a moment where it culminated in one of us asking the questions of someone pretty high up in the organization just point blank like, you are teaching these people how to cheat and steal and lie. And like in this sort of shocking turn of events, like ultimately, they admitted it and it was just like case over at that time.

0:08:03.8 AF: Well, and it’s one of the few cases of where you could point to it and say that’s gross negligence in Texas. Someone died, and the corporation was, we’ve always said proving gross negligence is almost like proving murder. It’s really hard. You gotta show an evil mindset and all this stuff. And I think in that particular case, arguably, we got there, the Texas Supreme Court has been kind of antagonistic to those types of cases over the years, but that was thrilling. And I don’t know that you could put that in a TV show and make it one hour, but yeah. So, TV versus reality, maybe sometimes, reality is better. Yeah.

0:08:42.9 JF: Yeah. You know what’s interesting about how media and TV paints the picture of what trial is supposed to be like is it really forces us. And this, I think this is also made more true just by kind of the instant gratification culture we live in. That’s chock-full of how too videos, everything is streamlined. People are learning by video and learning by photographs. So, the expectations that jurors have coming into court, if they get called for jury duty, there’s kind of this weird juxtaposition, right? Because on the one hand, they’ve heard all their lives, how boring and terrible jury duty is, but they’ve seen on TV, how exciting and interesting court could be. And so, I feel like that puts us as trial lawyers in a position of having to really try to exceed their expectations as far as what they’ve heard jury duty is like, and meet their expectations as far as providing some degree of entertainment.

0:10:01.7 JF: So, a kind of a big push that we have had in our organization and just of people trying to get better at our craft over the years is really being thoughtful ahead of jury trial or ahead of depositions and trying to understand, okay, long term, we might find ourselves in front of a jury presenting this case to people who are giving their time, basically as volunteers, as a civic duty. How are we going to present the case and present the evidence in a way that’s captivating, in a way that makes sense, in a way that allows them to really understand the core issues?

0:10:51.0 JF: And when you’re dealing oftentimes with complex, not just complex concepts, people are smart. They can understand the complex concepts, but when you have to spend so much time slogging through the procedural necessities, and the constant breaks, and the shuffling of witnesses in and out, how do you really give them a show? And the master of that, of course is Mark Lanier, he’s just…

0:11:20.5 AF: Yeah, he’s great.

0:11:21.7 JF: Incredible at that. But we’ve studied from him and been to some of his conferences and really understood. And I think when you understand that your job as an advocate in a jury trial is that, is to captivate the jury not to be like intellectually dishonest with them, that’s not what we’re talking about. It’s not acting, it’s educating.

0:11:49.8 AF: No, it’s neuroscience.

0:11:51.1 JF: Yeah.

0:11:51.1 AF: Yeah. And to get someone to remember the concepts, to learn difficult medical issues, if you can get them engaged through some kind of entertainment, and also give them multiple on-ramps, it’s gonna be played in a video for you. There’s gonna be a transcript, there’s also gonna be a diagram. All those things intersect in the brain and allow it to stick. And so it’s not like mind control, it’s just good educational principles.

0:12:22.8 JF: Absolutely.

0:12:23.4 AF: If you were teaching in an elementary school…

0:12:25.6 JF: Absolutely.

0:12:26.2 AF: These are the principles you would follow.

0:12:28.1 JF: A hundred percent.

0:12:28.8 AF: So, and it does… I think it can be really entertaining without a lot of conflict, although conflict does arise in trial. That’s the nature of it. Right?

0:12:38.8 JF: Sure.

0:12:39.5 AF: I know we’re getting close on time, but can I tell you what I like about My Cousin Vinny?

0:12:44.0 JF: Please do.

0:12:45.8 AF: Okay. So, as opposed to most of your TV shows, My Cousin Vinny is coming in, admittedly terrible. He’s not like the legal genius who just walks in the room, owns the place, figures out in three seconds how to blow up the witness and win the case. He’s someone who comes in intimidated and just says, “God, I’ve gotta figure this out.” And just like, works really hard, hits his head up against the wall a hundred times, finally gets the breakthrough because of how hard he tried. He brought the will first and then the rest followed. And that’s what real trial is like. You go in and you’re like, “God, this is gonna be incredibly hard to get these 12 people to understand what my client has been through.”

0:13:33.5 JF: Yep.

0:13:36.0 AF: Some of these concepts are boring. I’ve gotta get them to listen. The defendant has some good points, but I know they’re wrong. If people will listen to me, I can explain it. But of course, if you’re explaining, you’re losing. So, you gotta find a way to go on offense. Creativity is paramount, but willpower has to be there. You gotta just say to yourself, we have the will to win and we’re gonna win. And that’s what I like about that movie.

0:13:58.0 JF: Yeah. Yeah, well, kind of to your point too and wrapping up, you never know what’s gonna happen in trial. You can prepare… You can and you should prepare and you do prepare, but I’ve always been amazed at the things that you think are going to be major sticking points or major issues as you’re preparing and approaching trial that just never, ever, ever come up. So, thinking on your feet and being prepared to pivot those are the things that the hallmarks of I think a good trial lawyer and a successful trial outcome. But yeah, sometimes it’s like the movies.

[music]

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