HBOs “Hot Coffee” Documentary Reviewed

HBO premiered a documentary this week dealing with the American legal system, specifically the Civil Courts and tort reform. After watching the documentary, it’s somewhat difficult to review. Do you review it as a documentary? In which case, it slips in many ways. Do you review it as a hit piece? Designed by a Plaintiff’s Attorney, it very much screams, “I’m mad as hell and I’m not going to take this anymore!”

Ultimately, it isn’t really fair to review it as either. As a documentary, it walks and talks like a documentary, but the end result would be like if you developed the doc-Hoop Dreams from a reflective perspective that was designed to show the perils of kids who had dreamed of making it big in basketball. Rather than what it did, picking two talented youths and letting the documentary be taken to wherever they may roam. To label the documentary a hit-piece would also be a bit disingenuous. That does a dis-service to the stories told in the documentary.

But, in the end, this is laid out like a closing argument of one side of a case/issue. In this instance, that side is the side in favor of those who bring lawsuits. To be clear, that argument is laid out very well. And, it’s an effective documentary in the sense that, if public perception is that lawsuits are frivolous, let’s ram it home that there are very real needs for Civil verdicts. And that’s most definitely a discussion that should be had. Let’s take a look…

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Michigan to Change Court Rules Regarding Jury Instructions

The State Bar of Michigan Blog today announced the decision of the Michigan Supreme Court to adopt changes to court rules regarding the role of the Jury in our court system. The order itself that lays out the new court rule can be found here, also through the SBM Blog.

For a quick summary of what the rule changes are, I’ll turn to the Detroit Free Press, because I haven’t made it through all of the Order itself, only the opinion that followed.

Michigan jurors will be able to pose question to witnesses, take notes, get mid-trial commentaries from lawyers and, in civil cases, discuss the evidence while the case is still in progress, under new jury rules.

A recent article in the Michigan Bar Journal also touched on the changes, and actually included a survey that was conducted when these changes were tested in pilot programs. They asked Attorneys and Jurors how they felt Questions During the Trial, Jury Discussion before Deliberation and Notebooks During the Trial affected their process.

Long story short: Jurors liked the programs. Attorneys did not. Overwhelmingly so, in some regards. In terms of discussion of the evidence, 91% of jurors found that this addition helped jurors reach a correct verdict or increased the fairness of the trial attorneys. 10% of Attorneys answered positively on that. In terms of notebooks, the numbers were a bit closer (85% from jurors, 43% from attorneys on the fairness question). Same with Juror Questions during the trial (64% from the jurors, 35% from Attorneys).

I’m certainly not naive to why this would be the outcome. I wouldn’t be a criminal defense attorney if I didn’t understand that. To an attorney, the trial is most definitely not about finding out what really happened. All of these devices tend to help the aspect of finding out what really happened as opposed to the story Attorneys want the jury to believe.

Look, there’s just no good reason why jurors shouldn’t be able to have notebooks and keep notes during the trial. It’s archaic nonsense to think otherwise. The other two areas are a bit more murky, so, I’ll leave that alone in terms of making bold statements (I like them, though). But, we don’t select our jury pools only from kids who dominate spelling bees. Normal people need to write some stuff down before giving a reasoned answer. Some more than others, but, why should the option be off the table?

I’m not saying that if I conduct a great trial that the jurors having notebooks, asking questions and discussing the case will help me win. That shouldn’t be the question. We shouldn’t be concerned with the fairness to Attorneys putting up W’s. The fairness of the results is what should matter. To answer that these things don’t help jurors in that regard seems a bit disingenuous.

Do these things change how lawyers will have to practice? Absolutely. It’s something that changes how you address jurors and prepare for trial because there are more checks in place that will ensure the trial is not simply about the better lawyer, but about the case in front of the jurors.

I haven’t been a practicing attorney for too long, having graduated from Michigan State University College of Law three years ago, so I welcome the changes as I’ll be learning to adapt with these changes at the same time as more experienced attorneys. Before criticizing that these changes don’t make things more fair, attorneys should probably look to how they can adapt to the changes.

OJ Simpson to confess…to Oprah?

For most people, I assume they are quick to tune out when OJ Simpson’s name comes up. I, on the other hand, am not afraid to admit that the OJ Simpson trial was likely the point where I decided I wanted to become an attorney. Combining that trial with a natural thought process that everyone accused of a crime has a right to a fair trial is in large part why I am where I am today.

Saying that never really sounds comfortable. To most, OJ Simpson is just a murderer who got away with it. To me, as a criminal defense attorney, one of the things you learn is that one should not have that sort of amazing defense only when they are rich. Everyone should have someone in their corner willing to fight for them. So, for better or for worse, the OJ Simpson saga had a huge impact on my life.

To the news…A publication in the UK is reporting that OJ Simpson is going to confess to killing Nicole Brown and Ronald Goldman. And, he’s going to give that confession to…OPRAH.

Didn’t Oprah retire from her TV show? Is she going to bring the show back for one night only? Ok, maybe those aren’t the big questions regarding this news, but, part of me has to wonder whether OJ isn’t just messing with Oprah.

According to the article in the Daily Mail, Simpson claims that the killings were done in Self-Defense. Apparently, Oprah was working on the Juice for a year to get him to cold break down and make this revelation. With OJ saying the killings were done in self-defense, they probably won’t provide closure to the matter, either. But, as an attorney, what is interesting to note is that if you were to take the huge leap of faith and decide to believe Simpson, that he acted in self-defense, it illustrates a lot of the decision making that goes in to trial strategy. Off the top of my head, and trying to remember to when I was 14 years old, self-defense was not presented by the defense. Glove doesn’t fit, you must acquit, most certainly was, however.

We often hear of trials as a search for truth. That’s probably just someone saying something to make themselves try and sound good. The Simpson case, no matter where you fall on the matter, illustrates that trials are not a search for truth. They are a search for winning, because both sides need to fight for their side and believe in their side. The Simpson case can also show that guilty people go free (irregardless of your opinion on Juice), but, within that, you have to remember that the flip side of that coin is that the same can happen with innocent people being found guilty.

In the end, the Juice is likely starved for attention and there probably isn’t much to take away from this, but, it is undeniable that the Trial affected a lot of people. Even if just as spectators, and, an interview confession would be a huge spectacle as well.

Legal Television: Franklin and Bash

So, let’s talk about legal work through the backdrop of a very silly legal dramedy. Specifically, how some of these shows can help relate to trial work.

As an attorney, my enjoyment of television shows that feature lawyers is a bit all over the map. I’m often asked by non-lawyers for opinions on those shows, which is why I’m choosing to write about legal movies and television on this blog. But, for the most part, the only consistency in the courtroom seems to be that procedures are different all over. Which is what makes it tough to have a legal show that feels true to everyone.

Then, you have the Law and Order situation. Widely considered an accurate legal show, despite every drama ringing to a conclusion within 60 minutes. So, when tonights episode of Franklin and Bash opened with the two main lawyers shooting pool in office, and led to an hour of generally not portraying legal procedured accurately, I didn’t mind in the least. As a lawyer I don’t necessarily need my legal shows to be accurate…just entertaining. Franklin and Bash certainly isn’t for everyone in that regard, but I’ve found myself drawn to the inane recently. Another example being Harry’s Law on NBC a few months back.

While I faded out on watching Harry’s Law a bit, the episodes that I did catch carry some of the same principles you’ll find in a show like Franklin & Bash. It sounds weird, but, when you peel back some of the craziness and lack of legal particularities on these shows, at the core, there is something about these shows that relate to principal legal work.

Specifically, connecting with a jury. One of the most important aspects of trial work is how you can relate to a jury. After my first jury trial I went back and spoke to the jurors about what worked and what didn’t work. Almost all of the jurors told me that even through the stumbles I had in the trial, because I was able to connect with the jury on a deeper level, they’re more inclined to follow through the down moments.

In tonights Franklin & Bash, one of the attorneys representing a client on a DUI, decided the best way to demonstrate to the jury that his client wasn’t drunk at the time he drove, but may have become drunk a half hour later as the alcohol entered his system, was to drink beer in court. For any prospective DUI clients I might have out there, let me be clear, I don’t believe I would take this tactic to defend you. The point remains, however, that the attorneys on the show did whatever they could to present their case to a jury in a manner that they felt the jury could connect with.

That’s important for every lawyer when going to trial, and something that I feel is represented better in over the top shows such as Franklin and Bash. Another thing that shows of this nature represent is the need for a lawyer to understand their client and their clients story. These shows do a good job of humanizing clients that you often don’t see in more pretentious legal dramas.

You don’t win cases without understanding your facts and understanding your clients. Franklin & Bash may be goofy as hell, but it gets these two concepts.

Child Support hearings – Lansing, Michigan, Ingham County

According to SCOTUSBlog, the Supreme Court ruled that there is no right to counsel in a civil contempt hearing for failure to pay child support. I have not yet read this opinion, but according to SCOTUSBlog:

The Supreme Court unanimously held on Monday in Turner v. Rogers (No. 10-10) that a father has no automatic due process right to counsel in a civil contempt proceeding, even when he is facing jail time for failing to pay child support.

Further, the article states that “substitute procedural safeguards” are to be given to parents who have not paid child support. These safeguards would go towards a determination of whether the Defendant was able to pay child Support.

To compare this situation to Ingham County, Michigan, Defendants here are afforded counsel in civil contempt proceedings for Failure to Pay Child Support. Currently, attorneys in Ingham County can receive appointments to child Support cases on a rotating basis. For the current month, June, I have been working these cases as appointed counsel.

While not commenting on the Supreme Court decision, I feel that the procedures in Ingham County are ones that should be taken advantage of if you find yourself before the court for a civil contempt proceeding regarding child Support. Of course, there is always the possibility of hiring your own attorney for the proceeding, but, if you can not afford one, it is good to know that there will be counsel there to fight for you in the proceeding. A lot of the hearing takes place before even the civil contempt hearing, where the accused or his attorney will meet with a representative of the Friend of Court in order to make an agreement towards paying back the child support.

It is important to keep in mind that while the situation may seem overwhelming at times, having your attorney learn your situation and what you are able to pay is very important. Your attorney will get an understanding of your circumstances and hopefully work out an agreement that will keep you out of jail. One thing to keep in mind when you find yourself in this position is to make sure your attorney is aware of your child support payment history. That is an important factor in coming to an agreement that both sides can live with.

Ultimately, when talking about the right to counsel in these situations, while the Supreme Court has not deemed it a right, counties like Ingham County are providing an important service.

Let’s try something different…

Last night, AMCs The Killing wrapped up their first season to mostly negative feedback. I’ve been on board for all 13 hours of this show and certainly had a lot of negative moments, but I’m not yet convinced that this wasn’t a decent ending. For those that checked out of the show and only stuck with the show to find out who killed Rosie, well I can understand that disappointment.

First, why am I talking about a television show on a law blog? Obviously s good question. As you may be able to see from the lack of content below, I think it’s time for a change in direction. Simply put, I hope this time around to put more in to the blog and one of the things that I want to write about is the law as seen through, well, the main way the law is viewed: entertainment.

The idea came to me when remembering the night before a criminal procedure final exam where I spent more time thinking about whether the law of double jeopardy was portrayed accurately in the movie Fracture. I guess part of it was simply needing a distraction from the stress of the exam period, but, even in flawed legal television there is a lot that can be used for good jump off points to legal conversation. And speaking of that if you have a legal entertainment moment you’re curious about, feel free to make this the place to ask about it.

So, back to The Killing, and OK maybe not the best example of potential legal conversation, but I had to kick this blog off somehow. So, let’s start with how the show ended. Spoilers coming, I guess, although is no resolution to the season even something that can be considered a spoiler? As for Holder, over the course of the season, he has been the character I have most enjoyed. He’s been consistently good throughout and in a very layered manner.

When the show ends by the audience learning that Holder had fabricated evidence, I think it was an acceptable moment. Holder had an up and down history in a lot of ways on the show. His desire for career improvement and a knack for cutting corners to make the big case was something I felt they had done solidly at establishing. So, despite the end result being a red herring in a season filled with that sort of all too easy misdirection for the sake of misdirection, I could live with it.

So, what about it didn’t work? Do we really need this air of conspiracy around Holder? Rather than just a moment of overzealous police work, we see Holder hop in to a car and cooly brag about his set up to an unknown entity. It felt forced and unnatural and overall, that was probably the thing that held back season one of The Killing the most. The show producer called The Killing the “anti-cop” show. And, if you’re only comparing the show to Law and Order, that might be factually correct, but this is also a World that has now been privy to The Wire and The Shield. The Killing clearly isn’t in that class of quality and for season two should recognize that. Instead of trying as hard as you can to make a classic show, I think the show can find some breathing room if the show is a bit less full of itself and embraces its flaws.

It wasn’t a bad season, and I thought there were definitely some really good moments, but if you were going to take the viewer through this many twists, I’d rather they seem to have more fun with it.