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In the 1991 trial of U.S. v. Bianco in Hartford, Conn., attorney Jeremiah Donovan turned accused mobster Louis Failla into a cinematic-type character. “The government tried to portray Louis as a thug totally beholden to an evil organization,” the Mafia, recalls Donovan, who is based in Old Saybrook, Conn. “We tried to transform Louis into everyone’s favorite Italian uncle, full of stories and fun, who couldn’t say no to people.” Even though government tapes caught Failla saying he intended to murder someone, Donovan countered that his client “was a wonderful exaggerator.” “He wasn’t trying to kill anyone, but he was trying to please everyone,” he told the jurors. (They didn’t buy it. Failla was convicted.) Donovan compares a lawyer to a film director. “The lawyer directs the witnesses. The witnesses are the actors. The difference is we’re not working with a script but the real world. We can’t tell witnesses what to say.” On any given night, viewers can watch multiple episodes of “Law & Order,” “The Practice,” “Judging Amy,” “Judge Judy” and “Ally McBeal,” or films such as “Twelve Angry Men” or “To Kill a Mockingbird.” Legal TV shows, films and books saturate popular culture and are making an impact on jurors’ expectations and the way juries interpret cases, according to several attorneys, jury consultants and law professors. “Most people only know about the law as it goes on in a courtroom from seeing it on TV,” says Robert Thompson, director of Syracuse University’s Center for the Study of Popular Television. How can attorneys use pop culture’s impact to develop their cases? “Jurors are brought up to understand the world through stories, and many of them are based on TV shows and films,” says Philip Meyer, a professor of law at Vermont Law School. “Their sense of reality is constructed through these narratives. To be effective, an attorney has to know how the jury is thinking and translate this material into a narrative that the jury will buy,” says Meyer, who wrote an article “Lawyers as Storytellers and Storytellers as Lawyers” for the Vermont Law Review. Clarence Darrow could present an eight-hour closing argument. Lawyers in 2002 must use snappy, visual language to “entertain, hook and engage” jurors, Meyer says. In fact, “a trial requires a storyboard” like a film script, replete with a strong beginning, end and sympathetic characters, says Richard K. Sherwin, a New York Law School professor and the author of “When Law Goes Pop: The Vanishing Line between Law and Popular Culture.” “Lawyers need to ask themselves who is the main character and how can they present their character’s story,” says Sherwin. “Effective lawyers present their evidence sequentially to build to the closing scene, your summation” just as a scriptwriter builds to the plot’s climax. “In a visually literate society, lawyers have to show their story as well as tell it. People remember better when they see as well as hear information,” he says. MORE VISUAL AIDS Attorneys are increasingly using videotapes, demonstrations and PowerPoint displays to present their cases. If the lawyer doesn’t fit the evidence into a tightly woven whodunit like a TV attorney, jurors are left unsatisfied and unconvinced, he says. Attorneys who employ cinematic techniques can create sympathetic characters that influence juries. For example, in presenting his case defending Failla to the jury, Donovan showed an illustration of Failla, which included quotes from the government tapes juxtaposed with a separate pop-up box coming out of his head, a device usually employed in cartoons, that included invented quotes of what Failla was really thinking. On tape, Failla said, “We got to kill him,” but Donovan showed him thinking, “I’m only out to please the boss. We’re not going to really kill him.” Since Failla never took the stand, this device enabled Donovan to enter Failla’s mind without subjecting the defendant to cross-examination. Meyer, who observed Donovan’s case, says he “translated complex law into a simple imagistic story.” Not only must lawyers develop characters in their presentations, but dominant pop culture themes can influence a jury’s thinking as well. One theme of long standing — from “On the Waterfront” through “A Civil Action” — is the individual battling a greedy corporation or labor union. Because jurors are familiar with it, they interpret cases in terms of “righting a wrong,” says Howard Varinsky, principal of a jury consulting firm in Emeryville, Calif. Reared on “Law & Order” and Jack McCoy, its DA played by Sam Waterston, jurors expect to see “a good guy or a bad guy and moral questions that the jury will decide on. It becomes very important to cast case themes as righting a wrong,” he says. “Pop culture exerts pressure on trial lawyers to live up to their fictionalized counterparts,” Varinsky says. Jurors expect trial lawyers “to speak directly to the juror, go for the jugular and connect all the dots. Jurors want a good performance that brings everything together.” Because jurors are exposed to the cleverness of Ally McBeal and other TV lawyers, if lawyers “don’t speak eloquently or get to the point immediately, they lose credibility,” says Arthur Patterson, a jury consultant at DecisionQuest based in State College, Pa. “The key issue we teach our lawyers is that they need to grab the juror’s attention immediately” so the jurors won’t tune them out, he says. “Law & Order” executive producer Barry Schindel, himself a criminal lawyer, says that most trial attorneys or district attorneys should have no problem matching the eloquence of the McCoy character. However, Schindel acknowledges that McCoy’s character embodies fairness. “We’ve tried to create a character that operates above the fray,” he says. DOG MAULING As a jury consultant for the prosecution in the recent Diana Whipple case, the San Francisco woman who was mauled by two dogs, Varinsky sensed that the prosecuting attorney’s first draft was drab, he says. The opening was injected with pizzazz by including an imagistic timeline of warnings that the accused couple had received concerning their dog followed by a videotaped interview from “Good Morning America” in which the accused couple denied any responsibility. “We made the opening into a dramatic TV show,” recalls Varnisky, who says that contributed to winning the case. “The jurors’ set of expectations is defined by what they see on ‘The Practice,’” he says. “People use this unconsciously as a yardstick.” He says he encourages lawyers to be as dramatic as Dylan McDermott on “The Practice” — without going overboard and embellishing as TV characters do. Varinsky’s voir dire advice considers the juror’s cultural habits. Lawyers ask potential jurors if they watch “Court TV,” “The Practice,” PBS and “Frontline.” Those who watch legal thrillers often display a higher need to be “engaged and may not be as intellectually curious,” says Varinsky. But a juror who listens to PBS and watches “60 Minutes” may be more independent and can handle more information without being spoon-fed. If most jurors watch “Law & Order” and other legal shows, he encourages attorneys to present their cases in a more graphic way, emphasizing visuals, showing the case step by step. Attorneys can learn from legal TV even when shows exaggerate reality. When DecisionQuest was doing mock trials in an age discrimination case, feedback from the mock jury was that the barrister wasn’t speaking directly to the jury, related Patterson, the trial consultant. One mock jurist remembered an “Ally McBeal” episode where the lawyer had the jury repeat “Say it with me.” Of course, lawyers cannot engage a jurist in dialogue, but the feedback encouraged the actual trial lawyer to change strategy and ask the jury the rhetorical question, “Isn’t it better to lay off 10 people to save a hundred jobs?” while he nodded to the jury to get them involved. “The big influence that legal shows have is not only on juries, but on clients,” says Jan Schlictmann, the Beverly, Mass.-based environmental lawyer who represented the Woburn families in Jonathan Harr’s “A Civil Action” and was played by John Travolta in the film. “The client comes in on Monday and expects that Wednesday will be deposition, Thursday a trial and a verdict before the commercial,” he says. “In reality, the system takes so many weird turnabouts that lawyers spend most of their time trying to apologize” for the delays. When Schlictmann meets a client, he spends the first session establishing expectations and ground rules to dispel the romantic notions triggered by the glut of legal shows. But attorneys must also recognize that what transpires in real life differs from the television courtroom. “On TV, we’re trying a case in 43 minutes. In real life, the proceeding, strategies and maneuvers can stretch on for months or years,” says “Law & Order” producer Schindel. “In real life, everything isn’t as antiseptic as it is on television. Mistakes are made in real life.” Legal TV shows eliminate mundane procedures, including arraignments, applications for search warrants or a hearing about admissibility statements. “We can twist the law to serve our needs for dramatic plot,” Schindel says. “The law is not twistable in the real courtroom. The danger for litigants is that jurors educate themselves about the law from ‘Law & Order.’” Since TV condenses and oversimplifies trials, a case that emphasizes a simple solution will carry more weight than one dependent on complex and technical testimony, suggests Patterson. “If a lawyer isn’t successful at capturing the jury’s attention, it favors the side with the simple, emotional case as opposed to a more complex case,” he says. Jurors, therefore, will favor the plaintiff who says “that drug ruined my life” over the pharmaceutical company that brings in scientists to explain the drug’s chemistry in technical terms or jargon.” TV confirms to a juror that it is acceptable to judge a case on the briefest of information,” Schindel says, which makes an attorney’s job of presenting a complex case less likely to be effective. Ironically, Sherwin notes, real trial lawyers can also employ their own form of exaggeration and splicing. In the Rodney King trial in Los Angeles, the defense digitized the videotape of policemen hitting King, and “reversed the causation so it appeared that Rodney King was in control of the situation, causing the police to beat him.” That image was consistent with their defense that the defendant was so dangerous that the police had no option but to defend themselves. POP CULTURE’S LESSONS What can lawyers learn from the pervasive nature of legal pop culture? “Take popular culture seriously,” Sherwin says. “It’s the stories and images that wind up in the heads of people you need to reach. Learn how to become visually literate to tell your story.” Philip Meyer adds, “Jurors want the story boiled down to 50 words, just as on television. Jurors need facts translated into a story.” Legal pop culture has taught Schlichtmann “the power of storytelling. The bare recitation of facts in a clinical rendition doesn’t reach people,” he says. “If anything, TV and movies recreate the power of storytelling.” Donovan, a natural storyteller himself, agrees. He says, “The lawyer’s key role is developing a good story, telling the story in a way that is understandable to the jury, choosing the facts that bring out the story, and helping the witnesses support the story.”

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