Florida Criminal Defense and DUI Defense Blog

10Aug, 21

At the movies legal podcastThis week, legal assistant Joe Mancini and I compare notes on some of our favorite movie and TV lawyers, and some things we’ve learned from them.

JM: I love movies, but when I watch movies with attorneys, I have two focuses. One is just the movie itself, and by that I mean the plot, the cast, the photography – all of that sort of thing that I would apply to any movie in general. But when there’s a lawyer involved, I have another focus – the legal aspect of it. How accurate is it? Lord knows, there’s a lot of movies with lawyers in them, where it’s just not accurate.

JM: Today, I’d like to do basically a Marisa Tomei double feature – two movies she was in, both involving lawyers.

JM: The first one is one I think most of you probably have seen, and if you haven’t, you really need to check it out. My Cousin Vinny from 1992.

JM: I won’t bore you with all the details of the plot, It’s basically a fish out of water sort of situation. Vinny is a recently minted attorney, the New York bar, and his cousin gets in trouble in Alabama, and by “trouble” I mean that he’s on trial for murder (a whole host of misunderstandings led to that, so he calls on his cousin Vinny to come down and try to save his hide, he and his co-defendant).

JM: Vinny is a little rough around the edges to say the least. He’s a very sharp guy, very streetwise, but in the ways of the law, he has a lot to learn. He’s never tried any kind of case like this in his life. He’s only been an attorney for a few months.

JM: So, hilarity ensues. And the cast is great. Joe Pesci as Vinny, Marisa Tomei as his fiancee – Mona Lisa Vito (brilliant, in fact, she was so good, she got an Academy Award for Best Supporting Actress in the movie). Fred Gwynne, formerly known as Herman Munster, plays the judge. And a whole host of character actors you’ve seen in a lot of other movies play parts.It’s a great cast.

JM: The director of the movie studied law at Pembroke College, Cambridge in England, and his first rule of thumb was that the legal parts of it needed to be accurate and plausible. Not the sort of fantastical stuff you’ve seen in a lot of other lawyer movies. ANd he pulls it off.

JM: The courtroom scene, from a legal standpoint, what Vinny does that is so accurate, and is so helpful to attorneys, is he basically gives us a textbook lesson on how to conduct a cross examination with the three key witnesses in the case (alleged eyewitnesses).

JM: Now Vinny, as any good lawyer would do, takes a different approach depending on the particular witness.

JM: The first witness is a sort of burly, combative short order cook who alleges he witnessed the defendants go into the convenience store, five minutes later they come running out, get in their car and drive off.

JM: So, in the cross examination, Vinny walks him through, step by step, what he did that morning, in terms of how he prepared his breakfast. And the key point here is the man admitted to having eggs and grits for breakfast, and he said he started his breakfast, five minutes later it was ready, and that’s when he heard the gunshot and saw them running out of the store, from a distance.

JM: Vinny asked him a series of straight-forward, simple questions. Questions the man is really kind of locked into answering yes or no, and regardless of which way he goes, he’s going to hurt his credibility, with the key issue being how long it takes to cook grits. Vinny’s new to Alabama but had learned how long it takes to cook grits.

JM: Vinny’s approach to this guy is somewhat more combative because this guy is ready for bear when Vinny starts his cross examination. He’s not going to treat him with kid gloves.

JM: Knowing your witness and what’s the best way to approach them.

JM: The guy finally admits that, no, he doesn’t use instant grits, that would be an insult to southern tradition. He used real grits, and that takes twenty minutes. That blew a whole in the timeline for the prosecution and his testimony.

JM: So, he started his breakfast and saw them go in. Twenty minutes later, by his own testimony, as his breakfast was ready, he saw them run out of the store. Instead of being five minutes, it’s now established as being twenty minutes.So Vinny totally eviscerates the guy’s testimony.

JM: The next eye witness is an elderly woman with very poor eyesight. Now Vinny realizes, and every good lawyer should realize, that you can’t take the same approach with her that he took with the first witness.

JM: He’s very courteous, sort of with kid gloves. He does a demonstration with a tape measure and shows to everybody in the courtroom, especially the jury, that her eyesight is just horrible. And in a very calm way at the end of it, he asks her, “So, what do you think?” And she says, “I guess I need a new prescription.”

JM: So there goes her testimony, certainly cast it in a very different light from what she testified to on direct.

JM: And the third person is someone who’s living in a trailer nearby the convenience store who says he was looking out his window and saw this take place, saw these two defendants get in the car, flee the scene, after hearing the gunshot.

JM: Now Vinny, as all good lawyers should do, was prepared. He had gone and taken pictures of the crime scene, but had also taken pictures of this fellow’s windows – the windows themselves were caked in dirt, then there was a screen over that that had even more dirt. And looking out his window, there were two giant trees and seven bushes between his window and the convenience store.

JM: So this fellow was not the brightest bulb on the tree, and Vinny handles him very carefully also, and very patiently walks him through a series of questions, very simple questions, and he shows him pictures of his trailer, his window and his screen.

JM: With each one, he says, “What’s this?””What’s all that brown stuff?” “Well, that’s dirt.” “What are all these bushy things?” “Those are trees.”

JM: It’s a very nice but pointed cross examination.

JM: The cross examination in My Cousin Vinny has been lauded by judges, other trial litigators, other people in the business, all saying this is a classic example of how to do a cross examination.A lesson, in fact, many people have suggested that new attorneys should watch this, and learn how to do it properly.

JM: The other thing you learn from it, or at least should learn from it, is you don’t win the trial when you walk in the courtroom, you do it ahead of time by preparation.

JM: So in this case, he had photos of the crime scene and the windows and the view for this last witness (dirty windows caked with dirt), screen covers, giant trees and about seven or about bushes. Basically, he couldn’t see anything, but if he didn’t have the pictures, didn’t go out there and take those pictures ahead of time, he wouldn’t be able to drive that point home.

JM: He even thought ahead enough to bring a tape measure to court because when he was cross examining the woman with poor eyesight, he just took the tape measure, walked off the distance she was from the crime scene and she couldn’t tell, couldn’t see anything at that point. Very visual impact and a great way to drive home the point that she’s a dear, sweet lady but she has some vision problems.

JM: So that’s what we learn from My Cousin Vinny.

JM: The next movie I want to talk about is The Lincoln Lawyer, a movie that came out in 2011. It has a great cast, and is based on the novel by Michael Connelly. Matthew McConaughey is Mickey Haller, a criminal defense attorney, representing a fair number of lowlifes. Marisa Tomei, in this one also, is Mickey Haller’s ex-wife. She’s a lawyer also; she’s a prosecutor. The movie itself is a really good whodunnit.

JM: McConaughey gets hired by this very wealthy family to represent their son, who’s a bit of a ne’er-do-well, played by Ryan Phillippe. He’s been charged with a very vicious assault against a prostitute, just a lot of damage, physically, to this poor woman. Haller’s representing him, his first big-time client.

JM: As I said, the plot is a great whodunnit in several respects. A lot of twists and turns in the plot, ultimately leading to an ethical dilemma for Mickey Haller, the attorney.

JM: The legal part of it, a little bit sketchy, particularly in how he finally takes care of this ethical dilemma. I think, in a lot of places, if he got caught doing it, he’d be in big trouble with the Bar Association. I’ll just leave it at that.

JM: His cross examination, particularly of the victim, is very well done, makes a lot of good points, and is a little bit aggressive with her, but she’d already contacted a lawyer and is thinking about a civil lawsuit against this very wealthy family, so he tries to portray her as basically making all this up, staging it so that she can get a big payday from the family. That takes several twists and turns also.

MK: Joe and I like the same movies, but for a lot of different reasons. My favorite lawyer played by Matthew McConaughey is Jake Brigance, who was in John Grisham’s A Time To Kill.

MK: A Time To Kill is a very difficult story if you read it. The first chapter has two rednecks snatching and brutally raping a young African American girl. The two guys get arrested. Her father breaks into the courthouse, hides in a closet and when these two men are brought to court for their arraignment, he shoots and kills them.

MK: Jack Brigance, Matthew McConaughey’s character, defends him against very politically-ambitious prosecutor (I know you’re going to say, “Aren’t they all?” well, maybe so).

MK: That’s one of my favorite lawyer books, but it’s not one of my favorite lawyer movies.

MK: For that, I think my very favorite is Al Pacino as Arthur Kirkland in a 70s movie called And Justice For All.

MK: Arthur Kirkland is a very idealistic, young lawyer in practice for himself. In fact, the movie opens with his character in jail for contempt of court.

MK: I remember when I saw this movie, before I went to college let alone law school, that I thought, “Well, that’s gonna be part of my life as a lawyer, as a criminal defense lawyer, from time to time, going to jail for contempt.”

MK: To my surprise, and to the surprise of most people who know me, that hasn’t happened, yet. In Pacino’s case, it happened because he took a swing at a judge. That hasn’t happened in my life, yet, either.

MK: The judge was a horrible judge and a horrible human being, played wonderfully by John Forsythe (some of you might remember John Forsythe’s voice as the voice of Charlie on Charlie’s Angels.

MK: Well, John Forsythe and Al Pacino hated each other. Forsythe’s character, the judge, gets arrested for rape. His political allies coerce Pacino into defending him. And they’re very cold and calculated about it. They don’t want him because he’s good; they want him because everybody knows how much he and the judge hate each other. And so they figure if he’s willing to defend the judge, it must be because he knows the judge is innocent.

MK: The case goes to trial. It’s a great cast. Jack Warden is the trial judge, and he’s crazy. Craig T. Nelson, who later played Coach on TV is the prosecutor, and for him, this is his Super Bowl.

MK: Al Pacino gives the greatest opening statement that I have seen any lawyer give, fact or fiction, in my life. He goes through chapter and verse of what’s wrong with the prosecutor’s case. They don’t have a motive. They don’t have an eye witness. My client has character witnesses from here to Washington, DC.

MK: And despite this being completely improper, Pacino tells the jury three or four different times that his client has passed a lie detector test. He keeps saying to the jury, “I kept wondering why would she do this? What’s her motive? And I realized, if she’s lying, she’s gotta have a motive. I mean, people lie for all kinds of reasons, but they always have a reason why they’re lying.”

MK: And he finally says, “I realized why. Because she’s not lying.”

MK: He looks over at his client, the judge, and he goes, “The prosecution is not going to get that man today. Oh, no. I’m gonna get him!” And then he tells the jury the honorable (I don’t remember his name) the honorable so-and-so should go right to Hell he’s absolutely guilty!

MK: Well, you know, if I did that, my career as a lawyer would be over. I probably would go to jail. The judge on trial would get a mistrial. They would try the case again some other time.

MK: That was entertaining and it was great theatrics, but it’s not something that I could do.

MK: For inspiration on things I could do, there’s a lawyer show that was on the BBC for a while based on a series of books by John Mortimer called Rumpole Of The Bailey. The “Bailey” is the name they gave to the main criminal court in downtown London. And Horace Rumpole is legendary.

MK: He has two articles of faith. Never plead guilty. And never prosecute.And he’s always looking for “how am I going to win this case?”

MK: He doesn’t win all of his cases. But he’s very, very good, and I’ve learned a lot about preparation and cross examination from Horace Rumpole. Or, as Rumpole suggests, not putting your client on the witness stand, because cleints on the witness stand have a tendency to blurt out things that are better left unblurted.

MK: Rumpole plays to win. I play to win. People who come to me don’t come to me for truth, justice and the American way, they want to win their case. They want me to win their case.

MK: Tom Cruise played a great movie lawyer in A Few Good Men. He’s a young buck, Lt. Daniel Kaffee. He’s a plead-them-out, move-the-case kind of lawyer, and he gets assigned the case of a lifetime. He gets to defend one of two Marines who are accused of murdering a Marine in Guantanamo Bay, Cuba.

MK: In order to win the case, he has to get the base commander, Jack Nicholson, to admit to having given an illegal order. And he does what he needs to do. He figures out a way to cross examine Nicholson to provoke him to the point where he says what he’s dying to say, “You’re goddamn right I gave that order!”

MK: I think my other favorite for much the same, well, I won’t say for much the same reason, but for playing to win, is William Shatner as Denny Crane. I love Denny Crane.

MK: Denny Crane is the senior partner at Crane Poole and Schmidt, a fictional Boston law firm (from the show Boston Legal). He’s in his seventies and he’s never lost a case. And every room he walks into, he only says two words…”Denny Crane”.

MK: But when he is mentoring Alan Shore, who is really the star of the show and a terrific lawyer, he impresses on Alan Shore (played very well by James Spader), you play to win. And sometimes that means pulling a rabbit out of a hat.

MK: I can’t do the things that Denny Crane did to pull rabbits out of a hat, but I gotta tell you, I pulled a lot of rabbits out of a lot of hats in my time and that’s at the top of my to-do list on every single case I take.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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