A friend recommended several films as classics about trial, so my wife and watched one of them over the weekend, Otto Preminger's, Anatomy of a Murder. The film won seven Academy Awards in 1959, and is based on the book by Robert Traver. (You can get a used copy of the book on Amazon.)
I find it almost impossible to watch a movie involving trial scenes. The real work of trial is slow, methodical and precise. There are evidentiary foundations to be laid, voir dires to conduct, rules of evidence constantly at play in a multi-dimensional game of something like chess. Watching another lawyer try a case, if you do not understand his strategy, is like watching ice melt. Watching a producer's idea of trial on film is like watching a field hand conduct surgery.
But I am old enough, finally, to have tried all the techniques in my bag of tricks many times. I am eager to learn how to become a better tryer. Why had this film been recommended to me? I watched eagerly.
The defendant is represented by James Stewart, a man who could play a sympathetic serial killer. He exudes a homespun sort of decency that makes you predisposed to like him. One of the defense lawyers was played by a very young and oh-so-slick George C. Scott, a man so polished it hurt to watch him. The issue: whether an army lieutenant killed a man in a fit of temporary insanity after the rape of the lieutenant's wife.
I hesitate to recommend this movie to youngish lawyers -- those who have tried fewer that 20 or 25 cases to a verdict. Doing what these lawyers did in a contemporary courtroom could well land you in the poky on a contempt citation. The lawyers give inflammatory speeches during their objections; they shoot sharp and lengthy barbs at one another again and again; the judge's admonishments are ignored. It's a great courtroom drama but it is, for all that, fiction. I'd hate to see some young stud defend himself against a judge's present day wrath by stammering, "But Jimmie Stewart did it."
But for all its exaggerated form, the movie does teach a great lesson: The art of trying a case is in telling a story. And sometimes the telling of a story requires drawing objections. This is the lesson an old lawyer learns watching the film.
Trial preparation is thinking. In the days and weeks leading up to a trial, a good lawyer is engaged in something like a non-stop internal monologue. Each fact, good and bad, material to the case is weighed and assessed from a variety of angles. How to meet the so-called bad facts? How to present the good facts in the most favorable and persuasive light? And always and forever the constant weight of the code of evidence. What is admissible? Why is it admissible? How will you meet your adversary's objections? What traps lay waiting for the unwary? What snares can you lay to entangle the other side?
I don't think lawyers take the evidence code seriously enough these days. The stress on arbitration and mediation is making dull tools of trial lawyers. When it's all kumbaya and sweet reason in the forum, forgive me if I yawn. Cases are won and lost based on evidentiary rulings: That's why there are so many reported appellate decisions.
In Anatomy of a Murder, whether the lieutenant's wife was in fact raped or was a strumpet on the prowl became a centerpiece of the trial. The state constructed a theory of the case that made it irrelevant, and then gave the theory up by opening evidentiary doors through sloppy questioning. Once the doors were opened, the character of the defendant's wife was on display in a manner that would not quiet suit the tender sensibilities of the rape-shield era.
What makes the film worth watching, however, was the manner in which both sides asked patently improper questions designed and intended to anchor themes in the minds of the jurors. Once such a question was asked, the other side predictably objected, and in the course of the objection reframed the issue at hand in the manner intended by the party asking the question. Here's an example: Question: And when you went out on prowl at night did you wear panties? Objection: The use of the word prowl is improper, and this case isn't about what the witness did or did not usually do. Court: Sustained.
This exchange told the jury plenty: The victim went out at night for questionable and furtive purposes. When she did so, she was dressed, or, as the case may be, not dressed, for questionable purposes. She's no longer a demure victim of a sexual assault; she is now a predator herself. The state drew an objection hoping for a response that would tell it's story. It was a brilliant move in a ham-handed Hollywood sort of way.
I once flirted with becoming a judge. I suppose it is a good thing that flirtation ended without success. Were I trying the case, I would have shut the lawyers down. No speeches. Questions patently improper would have drawn admonishments after a warning or two. The trial would not have become a sideshow. In Anatomy of a Murder, the real issue, whether the defendant was legally insane at the time of the shooting, got lost: Was the woman really raped? Of course, the answer to that question hardly mattered given the question presented. The state tried an incompetent case and was tricked into a dead end alley.
Therein lies the lesson for older lawyers. My fear is that as the hairs on my head gray, I have become increasingly conservative. Rather than thinking outside of the box, I reckon where the walls are before trial and then try to stay within them, to demonstrate my legal acumen. But since when is trial about anything other than the narrative at hand? Is time spent in silent struggle with evidence code time that could better have been spent constructing a narrative that persuades, and then finding the means to tell it, including the drawing of objections?
I think I know the answer to that question.
Check out Anatomy of a Murder. Young lawyers should keep an eye out for the technique of anchoring themes and reframing topics through an explosive question, but realize this is Hollywood. Older lawyers should be wary of the dead hand of legal doctrine: don't try your case so well that you leave the gripping story in the hallway. Trial is part passion, part learning: finding just the right mix is what makes the life of a trial lawyer the sort of intellectual combat that keeps you forever young.
