Desperate Litigators - Or Why Trial Lawyers, And Those Who Hire Them, Need To Watch TV

Seemingly normal people often say to me that they never watch television. Litigators often say that to me too. Invariably, the person telling me that they never watch television is very proud of that fact. They are usually sipping some chardonnay and nibbling on a canap when they ever so casually let slip that there isn't even a TV in their house. I will not comment on the "people" who never watch television, but I do have a view of the litigators who don't, and that is that not watching any TV at all is a big mistake for a litigator.

Any litigator will tell you that any piece of litigation is, first and foremost, a public event. This is especially true of the trial in which the litigation sometimes culminates. A trial is always part theatre, part public policy debate. It is where our society plays out its deepest anxieties and hopes.

One of my old law professors at Yale, Owen Fiss, put it this way:

Adjudication uses public resources, and employs public officials chosen by a process in which the public participates. These officials, like members of the legislative and executive branches, possess a power that has been defined and conferred by public law [.] Their job is . . . to explicate and give force to the values embodied in authoritative texts such as the Constitution and statutes: to interpret those values and to bring reality into accord with them.

Fiss, Against Settlement, 93 Yale L. J. 1073, 1086 (1984)

I do not believe you can succeed consistently in this melodrama we call the American Trial unless you are able to powerfully communicate your client's story in a manner consistent with this society's fundamental values. But how can you communicate that story unless you speak the language of the people who are deciding your client's fate? And where do we go to learn to speak this language? No, not the dictionary: The language of the people, whether you like it or not, can be found in Pop Culture, especially, but not exclusively, in television.

Increasingly, the frame of reference people bring to the jury box (or, for that matter, that judges bring to the bench) is constructed out of the images, words and narratives find in television (as well as other elements of Pop Culture). To imagine it is otherwise is to be fundamentally out of touch with our society. Today's jurors are far more likely to understand a reference to "Lost" than they are Macbeth; more likely to laugh at a joke playing off "American Idol" than one derived from Mark Twain. Our high school English teachers may cringe at the thought of it, but there it is.

Now, I do not want to overstate the matter. I do not suggest that a successful trial lawyer must be a walking TV Guide. Nor do I think a successful trial lawyer must speak only in the ephemeral argot of the fleeting pop cultural moment. That's the job of the Jay Lenos and David Lettermans of this world. But I do think really good trial lawyers and litigators do not cut themselves off from Pop Culture because they recognize, perhaps intuitively, that to do so is to risk being cut off from the hearts and minds of the people who render judgments and verdicts.

My friend Gita Rothschild, from McCarter English, tells a story about how she used to tell jurors that she and they were going to conduct an investigation into what really happened to the plaintiff, like "Quincy." Then one day she noticed puzzled looks on the jurors' faces and realized that most of them were too young to know what "Quincy" was. She now refers to CSI.

So, if you want to do jury work, you have to tune in for at least a few minutes to the "biggies" - the shows that draw the big audiences and help define our culture.

I do not mean to suggest that staying up to speed on Pop Culture is a kind of torture. Actually, it can be lots of fun. To be sure, there is a mountain of unwatchable dreck on TV these days. The other day, I stumbled upon a few minutes of a new show called "The Class" about a bunch of twenty-somethings who were classmates as kids and have stayed in touch since. I thought I was going to throw up. Insipid, inane, insulting. By the time I clicked the channel, thoughts of the Decline of Western Civilization filled my head. Juries be damned, nothing could induce me to watch even one more minute of that thing. Fortunately, I doubt many jurors will have a chance to watch "The Class" for long. I also can't stand "Big Brother" - a show where strangers are forced to live together in a house with practically every moment of their lives filmed for our entertainment. As far as I'm concerned, that's a show for voyeurs with nothing else to do. I think most people watch it to see if the strangers will have sex with each other.

But not all television is bad. The truth is that, amidst the mountains of dreck are some real gems. I have a few personal favorites.

I am very partial to "Curb Your Enthusiasm" - the Larry David show on HBO that is about, well, Larry David. I'm not a TV critic, but I know what I like. It seems to me that the show is a radical critique both of the traditional sitcom (continuing the job begun by "Seinfeld") and the reality TV show (which "Curb" sometimes resembles). Larry David the character (as distinct from Larry David the real person) is a thoroughly modern character. He wants to do the right thing, but he's morally weak, he has no character, and so he always ends up doing the easy thing. If it makes us uncomfortable sometimes, that is part of the point. The show wants to shake us out of our generalized stupor. Now, not too many people actually watch the show, at least not when compared to "Desperate Housewives" or "Survivor," but it nevertheless captures our surreal zeitgeist almost perfectly.

I also like Showtime's "Weeds," a show about a suburban housewife who decides to sell pot to maintain her standard of living. However, the pleasure I get out of it is something like that of watching a train wreck in slow motion - how can anyone screw up their lives so royally? Anything by Bill Moyers is a must-watch - that man really ought to run for President. And a baseball game on a slow summer evening is sublime. I think there can be no real dispute about that.

But whether you like "Curb Your Enthusiasm" or not is not really the point. Almost any exposure to TV will serve the task at hand. You just need to turn the tube on - at least for a little while. If your spouse or children complain, just tell them it's legal research. You need to watch TV because, to be a great trial lawyer, you need to be tuned in to "the people." And the people like to watch TV. Just ask them.

Now, I am not arguing that we should all become couch potatoes. I learned how bad that can be by watching PBS. Everything in moderation. I read - a lot. I play racquetball with my kids. I go to plays and movies and concerts. As a matter of fact, I do lots of uplifting things with my spare time other than watch TV. Indeed, so uplifting are the things I do with my spare time other than watch TV that I was recently (and unfairly) called a snob for the first time in my life. But I'm not afraid to admit that I watch TV. It's one of the ways I understand what Americans are thinking - and there's nothing wrong with that.

Albeit in a very different context, Holmes once wrote that "it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived." [Memorial Day Address, 1884] So it is with TV.

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