Civil Trials: A Film Illusion?
Civil Trials: A Film Illusion?
Taunya L. Banks 0 1
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1 University of Maryland Francis King Carey School of Law , USA
Recommended Citation Taunya L. Banks, Civil Trials: A Film Illusion?, 85 Fordham L. Rev. 1969 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss5/3
The right to trial in civil cases is enshrined in the U.S. Constitution1 and
most state constitutions.2 The lack of a provision for civil jury trials in the
original draft of the Constitution “almost derailed the entire project.”3
According to the French social scientist Alexis de Tocqueville, the
American jury system is so deeply engrained in American culture “that it
turns up in and structures even the sheerest forms of play.”4 De
Tocqueville’s observation, made in the early nineteenth century, is still true
today. Most people, laypersons and legal professionals alike, consider trials
an essential component of American democracy. In fact, “the adversarial
structure is one of the most salient cultural features of the American legal
system. The adversarial jury trial is so fundamental to the American
imaginary that it has become a ‘ghost matrix’ that structures our everyday
approach to social and cultural life.”5 Thus, real-life courtroom trials
continue to be “crucial ritualistic drama[s] reinforcing the legalism of the
* Jacob A. France Professor of Equality Jurisprudence, University of Maryland Francis
King Carey School of Law. The author thanks Gabrielle Phillips, Class of 2018, and Susan
McCarty for their research and editorial assistance. This Article is part of a colloquium
entitled Civil Litigation Ethics at a Time of Vanishing Trials held at Fordham University
School of Law. For an overview of the colloquium, see Judith Resnik, Lawyers’ Ethics
Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration
Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899 (2017).
dominant [American] ideology.”6 But real-life civil trials are disappearing
from the American legal landscape.
In 2012, federal appellate Judge Jennifer Walker Elrod bemoaned the
decline of jury trials.7 Stressing the importance of trials, she wrote:
Great trials have been an essential part of the American fabric, from the
movies that inspired us to become advocates for those less fortunate, like
Atticus Finch in To Kill a Mockingbird, to the movies that have made us
laugh, like My Cousin Vinny, or the true-life events that captivate a nation,
like Inherit the Wind. Not only do we lose this part of our culture, but we
may no longer have the great closing arguments of real-life trials.8
What seems noteworthy is that although Judge Elrod discusses the
decline of both civil and criminal jury trials, she only refers to great
criminal trial films. Perhaps her comments merely reflect the fact that
today, civil jury trial films are as rare as real-life civil trials. But her linking
the decline of real-life civil jury trials to great film criminal trials is worth
considering because it suggests that trials, whether criminal or civil, share
important components that lie at the heart of American democracy. Like de
Tocqueville almost two centuries ago, Judge Elrod’s comments suggest
that, in her mind, the civil jury trial is an important institution that is
reflected in American popular culture.
The term “popular culture” usually refers to “culture based on the tastes
of ordinary people rather than an educated elite.”9 In her comments, Judge
Elrod is referring to American popular legal culture, a society’s “attitudes,
meanings, values, and opinions” about the law10 or “everything people
know or think that they know about the law, lawyers, and the legal
system.”11 Films, like books designed for consumption by the general
public, are cultural documents that embody a society’s attitudes about, and
views of, the law and the jury system.12 Although some scholars argue that
almost any commercial fiction film involves the law,13 law films are a
particular film genre. Within this genre are courtroom films, the most
easily recognizable subset of films about law.
Courtroom films are popular and memorable because they have the
“potential to engage viewers.”14 Although the films in this subgenre vary in
content, they usually involve or lead to a trial.15 The courtroom and trial in
these films provide the stage for an examination of some aspect of a trial—
juries, lawyers, litigants, laws, or the legal process itself. Except in films
like 12 Angry Men or The Runaway Jury, juries are seldom the focus of
criminal or civil courtroom films. Juries, when present in films, are usually
secondary “characters” appearing at the selection process or when
announcing the verdict—a climax because it signals, in most films, that
justice has prevailed. More specifically, in civil law films, the jury’s
determination of damages is often the climax.16 The jury’s role in assigning
damages is present in films like Philadelphia, Runaway Jury, and The
Verdict.17 More importantly, some commentators suggest that juries
seldom appear in courtroom films because the validity and place of the jury
in the American legal system is uncontested by the American public.18
Thus, from a filmmaker’s perspective, most directors treat the viewing
audience as the jury; and the film’s narrative calls on the audience to
perform the judging function.
Judge Elrod makes two claims about the importance of jury trial films to
American popular culture. First, she suggests that some great trials become
the basis for films that not only entertain viewers but also have the potential
to inspire some viewers to become lawyers.19 Second, she claims that
courtroom films about important real-life trials have the capacity to educate
the public about the law and the American legal system.20 Law and film
scholar Anthony Chase adds that legal films generally “draw into question
the legitimacy and fairness of [the] system.”21 Thus, these commentators
contend that legal films have the capacity to teach and encourage film
audiences to think more critically about the legal system.
As Judge Elrod’s comments suggest, the most well-known courtroom
film classics, like 12 Angry Men, Anatomy of a Murder, or Witness for the
Prosecution are about criminal trials.22 This fact may be unimportant
because the distinction between criminal and civil trial films often is lost on
the general public. Unanswered is whether the distinction between criminal
and civil trials is important when determining the impact of the decline in
real-life civil trials on American popular culture and courtroom films in
particular. This question is the focus of this Article.
Law Professor James Elkins asks scholars to look at how popular culture
impacts the legal system.23 The impact of popular culture on the legal
system is a relevant inquiry because if one cannot answer this question, one
cannot answer the related question of whether real-life changes in the legal
system impact popular culture. Because scholars do not know much about
the effects of popular culture on the law, it is fair to assume that they do not
know much about the impact of the legal system on popular culture. To
provide context for this discussion, Part I briefly discusses the decline in
I. THE DECLINE OF CIVIL TRIALS: A BRIEF OVERVIEW
Although trials today are increasingly less frequent, historically the
American trial was important.24 Court days were community events where
the rural populace came to see justice in action.25 Long after the demise of
court days, law schools perpetuated the centrality of the courtroom to the
American justice system. Legal scholar Marc Galanter wrote in 2004 that
foreign visitors to law schools in the United States
readily conclude that the trial is the central pivot of the American legal
Curiously the view from the law school classroom bears a resemblance
to that from Mars—although the medium is appellate opinions, the
message is the centrality of trial. The world of hearings, depositions,
conferences, bargaining, maneuvering, and routine processing in which
lawyers and judges are immersed is barely visible.26
Legal education continues to perpetuate this view. Yet, a growing body
of legal literature readily acknowledges that, increasingly, real-life lawyers
spend little time trying civil cases.27 According to the Civil Jury Project at
New York University School of Law, the rate of jury resolutions in federal
civil cases has dropped from 5.5 percent in 1962 to less than 1 percent since
2005.28 The situation is much the same in state courts. For example, “in
1997, there were 3,369 civil jury trials in Texas state courts; in 2012, even
as the number of lawsuits had risen substantially, there were fewer than
1,200 [civil trials]. Similar trends are evident in states across the nation.”29
Today civil juries do not hear most private lawsuits.30
As Professor Kent Syverud, writing twenty years ago, observed, “One of
the most remarkable things about reading a jury verdict reporter today is
how extreme and unusual most of the tried cases seem to anyone familiar
with legal disputes. These odd cases are increasingly the only visible part
of civil litigation for the public.”31 A vast array of civil cases involving
contracts, other commercial matters, or property do not go to trial; today
most civil jury trials involve tort cases—especially personal injury or
accident cases.32 According to Syverud, the use of civil trials by
“governments and businesses, of all sizes, when suing as plaintiffs . . . has
effectively disappeared in most of the United States.”33
Scholars disagree about the reasons for the decline in civil jury trials.
One scholar speculates that civil trials are becoming less common because
their defining features34 are no longer necessary to the resolution of civil
disputes.35 Other legal scholars offer different explanations: the high cost
of civil litigation,36 the increased use of alternative dispute resolution
(ADR) forums,37 better case management by judges,38 and transformations
in the legal system over the last half of the twentieth century.39 Still others
blame changes in pretrial procedural rules like “the substitution of
discovery-induced settlements and dismissals” that are more efficient
because they facilitate justice at a lower cost and more quickly than a full
civil trial.40 Thus, one scholar speculates that “the main reason . . . the jury
is disappearing is that litigants who are entitled to demand trial decide to
settle, either because they no longer need trial [due to pretrial procedures],
or because they cannot afford it” because the pretrial procedures are so
This Article, however, does not attempt to explain the reasons for the
decline in civil trials. Rather, its focus is on the possible effect this decline
will have on popular culture, especially legal films. To gauge the impact on
the public, it is necessary to determine public attitudes about civil trials.
Unfortunately, the empirical record about public perceptions of civil trials is
Syverud argues that the civil jury trial is defective in three ways: (
) it is
extremely expensive and takes a long time to resolve; (
) liability insurance
(coupled with the contingent fee system) effectively commodifies civil
claims; and (
) governments and businesses almost universally elect to “opt
out of fact finding by a civil jury.”42 A 1988 study about the experiences of
small claim litigants mirrors some of these complaints, particularly the cost
and time litigation takes and the perceived lack of efficiency.43
The social scientists interviewed small claims court litigants “to gain
some understanding of the perceptions, attitudes, and assumptions that
litigants bring to the system.”44 They found that laypersons had varied
understandings of the civil justice system.45 Survey responses reflected
three themes. First, survey participants failed to understand their role and
corresponding responsibility in civil litigation.46 Many litigants expected
the system to be more hands on like the criminal justice system.47 One
litigant, for example, believed that law enforcement should be responsible
for serving his defendant.48 Another “litigant seem[ed] to view the civil
court as more active and inquisitorial than it is in reality and to
underestimate his own role in prosecuting his case.”49 Second, litigants
also misunderstood the civil courts’ power—many thought the court would
ensure they would be made whole.50 Finally, litigants expressed an overall
dissatisfaction with the legal system.51 These litigants’ disappointment and
40. Langbein, supra note 34, at 571. John Langbein also recognizes the “presence of
institutional litigants” and increasing sophistication of attorneys who specialize in specific
types of lawsuits as factors contributing to the decline of the civil trial. Id. The thought is
that attorneys become so familiar with subject matter that they become better and better at
driving cases toward settlement.
41. Id. at 572.
42. Syverud, supra note 30, at 1943.
43. See generally William M. O’Barr & John M. Conley, Lay Expectations of the Civil
Justice System, 22 LAW & SOC’Y REV. 137 (1988).
44. Id. at 140.
45. Id. at 159.
48. Id. at 147.
49. Id. at 146.
50. Id. at 154.
51. Id. at 159. For example, one party did not like that she was not guaranteed her
money and another did not like the service process. Id. at 149, 154–55.
dissatisfaction with the civil justice system may simply be the result of their
limited exposure to, and understanding of, the legal process.52
II. AMERICAN COURTROOM FILMS Most members of the public learn about the legal system from films and, increasingly, television.53 Thus, this part looks at American trial films and what messages they transmit about the value of civil trials in a democracy.
Federal District Judge William G. Young writes that jury trials are
important because “the jury achieves symbolically what cannot be achieved
practically—the presence of the entire populace at every trial.”54 He
continues, “Through the jury, we place the decisions of justice where they
rightly belong in a democratic society: in the hands of the governed.”55
Scholars who favor this position argue that juries are a democratic
counterbalance to a largely unelected judiciary.56
Since most discussions about the importance of trials in popular culture
revolve around criminal trials, one unanswered question is whether the
stated importance of trials applies equally to civil trial films. This inquiry is
hampered by the low number of civil courtroom films. A survey of top
courtroom film lists finds that an overwhelming majority of these films
involve criminal matters.57 The prevalence of criminal, as opposed to civil,
courtroom films stems from the real-life difference between the two.
Criminal trials are fact dependent, and, according to Anthony Chase, the
American public is “addict[ed] to the facts of crime.”58 In contrast, real-life
civil trials tend to be less fact dependent because most of the facts are
known before trial due to pretrial discovery and conferences; thus, there are
fewer opportunities for courtroom confrontations. Nevertheless, films
about social issues like sexual harassment (North Country),59 employment
discrimination (Philadelphia),60 civil disputes about divorce (Kramer v.
Kramer),61 child custody (I Am Sam),62 or property matters (The Social
Network),63 where there are possibilities for confrontation, have the
potential to fascinate film audiences as much as criminal trial films.64
Granted, under conventional definitions of a trial, The Social Network does
not qualify, but, as I explain later, this film about intellectual property
disputes has the adversarialness of a jury trial, albeit without a jury.65
Based on Mark Zuckerberg’s disposition, his lawyers “adjudge” him an
unsympathetic defendant and advise Zuckerberg to settle the cases against
Another factor that contributes to filmgoers’ preference for criminal law
films is that the themes of civil films may be less well defined. Criminal
law films involve a clear “villain,” a defendant or enemy of the defendant,
or an abuse of public power by an ambitious and corrupt prosecutor; and the
harm of injustice extends beyond the innocent victim or defendant to
society at large. In contrast, “[m]ore than three-quarters of all civil jury
verdicts concern personal injury disputes,”66 and the villain is not clearly
The “villain” in civil courtroom films might be some private party like
the big law firm in Philadelphia that fires a young associate it has just
promoted upon learning that he is HIV-positive or the doctors in The
Verdict who negligently give a pregnant woman the wrong anesthetic,
leaving her permanently comatose.67 But in popular civil courtroom films
like I Am Sam and Kramer v. Kramer, where child custody is an issue, the
villain is less clear. The villain may even be the law itself. Both I Am Sam
and Kramer v. Kramer highlight biases in child custody proceedings: the
“tender years doctrine,”68 which gives custodial preference to the mothers
of small children, in Kramer v. Kramer69 and the willingness of the law to
sever a close and loving relationship between a child and her biological
parent with diminished mental capacity in I Am Sam.70 These films reflect
filmmakers’ efforts to highlight family laws thought to be antiquated or
59. NORTH COUNTRY (Warner Bros. 2005).
60. PHILADELPHIA, supra note 17.
61. KRAMER V. KRAMER (Columbia 1979).
62. I AM SAM (The Bedford Falls Co. 2001).
63. THE SOCIAL NETWORK (Columbia 2010).
64. CHASE, supra note 21, at 104–05.
65. THE SOCIAL NETWORK, supra note 63.
66. Syverud, supra note 30, at 1938.
67. CHASE, supra note 21, at 108.
68. See Julie E. Artis, Judging the Best Interests of the Child: Judges’ Accounts of the
Tender Years Doctrine, 38 LAW & SOC’Y REV. 769, 770 (2004) (describing the doctrine as
basing child custody decisions on “the notion that mothers have superior, ‘natural’ nurturing
abilities and a biological connection to their infants”).
69. KRAMER V. KRAMER, supra note 61.
70. I AM SAM, supra note 62.
B. Civil Trial Films More Closely Examined
In real life, few civil law plaintiffs sue with the idea of securing justice
for the larger society. For example, when 735 California lawyers involved
in civil jury trials between 1990 and 1991 were asked “why their cases went
to trial, only three . . . said the case was tried because of a desire for public
vindication in the litigation.”71 Two of these lawyers were from the same
case.72 As mentioned previously, the civil trial films that resonate with the
American public usually involve social issues, like environmental justice or
employment discrimination, because they have the potential to impact
people other than the plaintiff. If the connection between doing justice is
stronger in criminal, as opposed to civil cases, then the absence or demise
of civil courtroom films, should it occur, may not greatly impact public
perceptions about the civil law system. Civil trial films, especially those
films that do not involve larger social issues, may have little value beyond
telling a good story about an individual plaintiff or group of plaintiffs. In
fact, these films may contribute to negative public perceptions about the
civil trial system.
A study by political scientists Michael McCann and William Haltom
seems to confirm this last point.73 The authors argue that the civil law films
they reviewed portrayed both lawyers and the civil justice system
negatively.74 Unsurprisingly, most of the cases they discuss are tort claims,
once again reflecting real life. Their conclusion about civil law films
portraying dissatisfaction with the system seems consistent with the
findings of the survey of small claims litigants discussed above.75 In
reaching their conclusion, the social scientists compared the 2000 film Erin
Brockovich about a paralegal turned environmental activist with seven late
twentieth-century and early twenty-first-century films with similar public
interest themes—Class Action, The Rainmaker, The Sweet Hereafter, A
Civil Action, The Insider, North Country, and Runaway Jury.76 They
conclude that civil law films tend to reflect the American public’s
“ambivalen[ce] about lawyers . . . [and] civil lawsuits.”77
McCann and Haltom classify Erin Brockovich as an antilawyer film.78 It
is Brockovich’s diligent research, they argue, that turns what starts out as a
real estate transaction into a major class action against a large utility
company whose activities polluted the area groundwater.79 It is
Brockovich, not the plaintiffs’ lawyers, who gets the plaintiffs to agree to a
71. Syverud, supra note 30, at 1942.
73. See generally Michael McCann & William Haltom, Ordinary Heroes vs. Failed
Lawyers—Public Interest Litigation in Erin Brockovich and Other Contemporary Films, 33
LAW & SOC. INQUIRY 1045 (2008).
75. Id. at 1052.
76. Id. at 1052–58.
77. Id. at 1046.
78. See id. at 1047.
79. See id. at 1048.
just settlement with the company.80 In the film, Brockovich repeatedly
denigrates lawyers, saying things like, “Ya know why everyone thinks that
all lawyers are back-stabbing, blood sucking scum bags? Cause they are!”
and “All you lawyers do is complicate situations that aren’t complicated.”81
The social scientists found this antilawyer theme in the other films they
compared. Specifically, McCann and Haltom argue that the films they
compared portray what they call public interest lawyers “as incapable of
securing any semblance of justice or satisfaction for their clients or for
anyone else.”82 Justice in these films, according to the social scientists,
occurs through the actions of “‘outside’ agents,” that is, “ordinary people
who are not lawyers.”83
McCann and Haltom identified four common themes in the seven films
they examined: “(
) innocent victims seek corporate accountability but are
stymied by (
) armies of amoral defense attorneys who best (
overmatched and socially maladroit plaintiffs’ attorney until (
) a lay
‘outsider’ ensures the eventual plaintiffs’ victory—dramatizes a plucky
heroine’s triumph over a biased, indifferent system of civil disputing.”84
The social scientists concede that these four motifs are not invariable.85 It
is not, for example, always the layperson or outsider who helps achieve a
just result in civil law films. In the trial film Class Action, for example, the
person who ensures victory is another lawyer, a member of the defense
team who turns on her firm.86
Philadelphia, a film not examined by McCann and Haltom, also fits
some of the motifs they identified.87 The plaintiff, Andrew Beckett, is
seeking accountability from a big law firm for what he sees as his wrongful
termination. His lawyer, Joe Miller, seems overmatched as he faces an
army of “amoral” defense attorneys (the people who fired him because he
had AIDS). Miller and his client appear alone in the courtroom facing a
team of defense lawyers. Miller, a black solo practitioner, also could be
seen as a legal outsider or fringe member of the legal profession. He is
depicted as an ambulance chaser (a type of lawyer frowned upon by the
legal profession), but he secures a victory for his client and thus a just
According to the social scientists, film audiences may not expect justice
to be served in the typical civil law film because, in the civil law films they
examined, filmmakers tend to use stereotypes “to ridicule ‘civil justice’ as
an oxymoron.”88 It also is noteworthy that, as Judge Elrod suggested, five
of the eight films discussed by McCann and Haltom—Erin Brockovich, A
Class Action, The Sweet Hereafter, The Insider, and North Country—are
80. See id.
81. Id. at 1045, 1050 (quoting ERIN BROCKOVICH (Universal Pictures 2000)).
82. Id. at 1047.
84. Id. at 1052.
85. Id. at 1058.
86. CLASS ACTION (Twentieth Century Fox 1991).
87. PHILADELPHIA, supra note 17.
88. McCann & Haltom, supra note 73, at 1052.
drawn from real-life cases.89 Of course, the filmmakers took dramatic
license in omitting or adding elements to tell a more engaging story, but any
positive outcomes in these cases was achieved despite the formal legal
system. As McCann and Haltom conclude, these films portray a flawed
civil justice system, a conclusion with which some real-life litigants might
The social scientists, however, do not squarely address whether the
portrayal of the civil justice system in these films is an accurate reflection
of prevailing public attitudes, and, if not, whether these films distort public
notions about the civil justice system. Instead, they write:
We cannot say with any confidence how these cinematic images and
narratives are interpreted by most people in society. . . . If these films
undermine faith in lawyers as unqualified moral heroes and nurture faith
that ordinary people can struggle successfully for social justice, that is
probably a good thing. If they nurture a more complex insight that
lawyers and the legal system generally are most effective when they learn
to understand and respond to the different worlds of meaning that their
disadvantaged clients inhabit, we sing “Amen.”91
Chase, in his book Movies on Trial, discusses three of the films analyzed
by McCann and Haltom—Class Action, A Civil Action, and The
Rainmaker—and adds Philadelphia to his list of courtroom tort films
released between 1982 and 1997.92 His take is slightly different and more
positive than that of McCann and Haltom. Chase argues that these tort
films “express[ed] a single story or narrative . . . . [T]he villain in tort
cinema is private, not public, power.”93 The civil lawyers in these films,
like their criminal counterparts, are depicted as either heroic young lawyers,
like Joe Miller in Philadelphia or Rudy Baylor in The Rainmaker, or “old
warriors” seeking redemption, like Jed Ward in Class Action or Frank
Galvin in The Verdict.94
More often than not, civil film lawyers, like their criminal film
counterparts, secure or facilitate justice for their clients. Granted,
sometimes the victory is illusory. Rudy Baylor, the young lawyer in The
Rainmaker, wins an insurance bad faith case for his clients only to have the
defendant insurance company declare bankruptcy, wiping out the
substantial punitive damage award.95 At the end of the film, Baylor is so
disgusted with the outcome of his case that he abandons the practice of law
altogether to teach legal ethics!
In A Civil Action, the plaintiffs lose their case to the corporations who are
polluting their community and the plaintiffs’ lawyer ends up in bankruptcy
court after losing his family and home.96 The film’s ending, especially the
negative consequences faced by the plaintiffs’ lawyer, may be unsettling to
some viewers, reinforcing the public’s rather pessimistic view of the civil
law system. Audiences learn in an epigraph that the Environmental
Protection Agency comes to the aid of the plaintiffs. But in the end, the
first three motifs identified by McCann and Haltom are not much different
from the components that make a good legal film, whether civil or
criminal.97 The quest for justice while facing overwhelming odds makes
for good storytelling.
C. “Trials” Redefined in Recent Films
More than a decade ago, Judith Resnik wrote, “to the extent that ‘trials’
are defined as fact finding by government-employed judges and
government-deployed juries in courtrooms situated in buildings called
courthouses provided by the state, then the rates of trials . . . have
declined.”98 But if redefined as a proceeding that “occurs before any
neutral third party, anywhere, as long as empowered to impose a judgment
that is enforced through the state,”99 then perhaps the United States is
simply moving toward “an inquisitorial judiciary superintending fact
development.”100 Under this alternative definition of a “trial,” certain kinds
of discovery, like depositions, arbitration, and mediation, might satisfy the
Applying this alternative definition, several recent critically acclaimed
films qualify as civil trial films. One is The Social Network, which is about
the lawsuits filed against Facebook founder Mark Zuckerberg by his
cofounder Eduardo Saverin and website developers the Winklevoss
twins.102 The film uses the depositions of the parties as the framework
within which to tell the Facebook story. Another recent film that also
satisfies this alternative definition of a trial is Woman in Gold, a
95. THE RAINMAKER (Paramount 1997).
96. A CIVIL ACTION (Paramount 1998).
97. See McCann & Haltom, supra note 73, at 1047.
98. Judith Resnik, Migrating, Morphing, and Vanishing: The Empirical and Normative
Puzzles of Declining Trial Rates in Courts, 3 J. EMPIRICAL LEGAL STUD. 783, 790 n.15
101. Id. (“[W]ere we to entertain the idea that trials are to be equated with adversarial fact
finding, we might also understand that discovery (superintended in some respects by judges)
is a form of ‘trial,’ for it provides a mechanism for adversarial quests into facts.”).
102. See THE SOCIAL NETWORK, supra note 63.
fictionalized version of the successful real-life effort to recover art works
stolen from an Austrian Jewish family by the Nazis during World War II.103
Randy Schoenberg, the lawyer protagonist in the film, argues his case
before an American court, an Austrian art restitution board, an Austrian
court, and finally Austrian arbitrators. Thus, just as notions of what
constitutes a trial may be changing, so too are the characteristics of some
twenty-first-century civil trial films. Even The War of the Roses, a black
comedy about a divorce proceeding stymied by a fight over marital
property,104 might qualify as a trial under this broad definition.
III. EDUCATIONAL VALUE
Another commonly held notion is that courtroom films educate the public
about the judicial system. In this regard, Philadelphia and The Verdict are
the best examples of civil jury trial films from an educational perspective
because they best mirror civil trial practice. The Verdict, for example, is
one of the few civil law films where the role of the civil court system is
mentioned. In his closing argument, Frank Galvin, the plaintiff’s lawyer,
reminds the jury that the courts are there to do justice. He tells the jury,
“Act as if ye had faith . . . and faith will be given to you.”105 Chase
interprets these words to mean that “we have to believe in the system itself
before we will take the risks, and go to the trouble, to make use of those
courts.”106 Thus, The Verdict embodies the idea that juries serve to render
justice, a theme also found in criminal courtroom films.107
Likewise, Philadelphia depicts a successful employment discrimination
lawsuit and in doing so captures, fairly accurately, much of the civil
litigation process. In the film, the audience sees the plaintiff’s lawyer, Joe
Miller, engaged in most aspects of the case: client intake, weighing the
legal issues, preparation (research and brief writing), service, opening
statements, examination and cross-examination, and jury deliberation. The
film even reveals some substantive law—case law and statutes—and how
lawyers form novel arguments. Additionally, the film mentions the
different kinds of damages available and the availability of appeal. Thus,
Philadelphia may come as close as a civil trial film can get to having
meaningful educational value.
Nevertheless, as mentioned previously, there is no hard empirical data
regarding the effects of legal films on the public’s perceptions of the legal
system. Professor Michael Asimow, for example, argues that American
popular culture portrays trials as a way of “uncover[ing] the truth about past
events.”108 In doing so, the public absorbs film narratives about lawyers
that portray them as “champions of justice and liberty,” in contrast to judges
who occasionally are portrayed as getting in the way of justice.109 Asimow
notes, while American popular legal culture tends to disfavor giving
“judges any more responsibility than they already have,”110 but a 1999
American Bar Association (ABA) poll found that the public has more
confidence in judges than in lawyers.111 Although the public may be
divided over whether to trust lawyers, its faith in the jury system persists.
James Elkins observes that scholars writing in the area tend to make a
“string of assumptions and presuppositions about popular culture [based]
more [on] speculation than actual solid information.”112 Political scientists
McCann and Haltom agree, asserting that “each film might impart little
lasting knowledge”113 and that, after watching legal films, lawyers “remain
the objects of whatever shaken faith or unshakeable cynicism moviegoers
brought to the movie.”114 They suggest that because civil legal films have
so little impact on the lay public, their “inaccuracies and absurdities
regarding civil procedure” should be of little concern.115 Nevertheless,
Elkins adds, no one argues, given the amount of misinformation contained
in these films, that these film representations are “better than having no
education about law.”116
Uncertainty about the educational value of legal films leads Elkins to
opine, “If . . . the basic propositions of what we learn about law and lawyers
from popular culture is more mystery than science, more speculation than
serious critique . . . what are we to learn from (and about) the depictions of
lawyers and law in popular culture?”117 As the 1999 ABA survey suggests,
any lessons learned from films about the legal system may not offset deeply
held public perceptions about the American adversarial system.118
Although the decline in civil trials is unsurprising given negative public
perceptions about the civil judicial system, there is no evidence that this
long decline has impacted the number of civil trial films. Nevertheless, Part
IV asks whether television portrayals of civil trials will offset any concern
about the possible decline in this film subgenre.
109. Id. at 656.
110. Id. at 684.
111. Id. at 654–55 (“[O]nly 14% of the public were extremely or very confident in
lawyers and 42% were only slightly or not all confident. People had far more confidence in
judges: 32% were extremely or very confident in judges and only 22% had slight or no
confidence in judges.”).
112. Elkins, supra note 23, at 747–48.
113. McCann & Haltom, supra note 73, at 1058.
114. Id. at 1059.
115. Id. at 1058. Of course it could be that any inaccuracies or absurdities are the reason
the lay public misunderstands and is disappointed with the civil justice system. See O’Barr &
Conley, supra note 43, at 137 (finding laypersons fail to understand the power of the civil
116. Elkins, supra note 23, at 750.
117. Id. at 753–54.
118. See Asimow, supra note 108, at 654–55.
IV. TELEVISION AS A VISUAL ALTERNATIVE
TO FICTIONAL CIVIL TRIAL FILMS
The relative paucity of civil trial films does not mean there are few
images of civil trials in visual popular culture. As Michael Asimow
reminds us, the general public consumes “massive amounts” of pop
culture,119 but it is television, as opposed to film, that “stands alone in its
ability to shape the opinions of mass audiences.”120 Kent Syverud, writing
two decades ago, remarked that despite the decline in civil jury trials,
television has made the civil trial more visible than ever before.121 Thus,
members of the public who have never seen a civil trial or served on a civil
jury “can directly observe the process, often aided in notorious cases by
sophisticated play-by-play coverage and analysis”122 on their television
Once again, it is not the mundane civil case that captures the interest of
television audiences. Instead, it is judge reality court shows like Judge
Judy that are the civil “trials” seen most often on American television
today.123 To some, these reality shows may seem like the modern day
counterparts to the old county court days when the local community showed
up to observe court proceedings, gossip, and socialize.124 Although these
TV courtroom shows mirror small claims courts, in reality they are
televised arbitration proceedings.125 They portray “trials” without lawyers
or juries, modern day versions of trials in the sense of adversarial
proceedings before a decision maker. But television viewers of these shows
may gain little insight into the traditional civil trial process.
Other television legal shows about civil practice do not focus on civil
trials. Damages was a TV drama about a prominent and highly successful
civil litigator, Patty Hewes.126 Hewes was most often seen in conference
rooms rather than in courtrooms. Perhaps this realistic picture of a big-time
civil practice proved insufficiently entertaining. As the series progressed,
the storyline focused more on Hewes’s criminal behavior than on the
litigants she represented in civil matters. On the other hand, Boston Legal,
a spin-off of the highly popular show The Practice, featured courtroom
scenes in both civil and criminal matters.127 But, like The Practice, most of
Boston Legal’s storylines revolved around what happened outside the
courtroom, although depositions were frequently part of the storyline. Like
their film counterparts, the educational value of these TV shows is
In addition to television shows, there are documentary films about the
law on both the big and small screen. Documentaries, because they claim
to tell true stories, may be better vehicles than television or fictional films
to transmit educational information about the civil trial system. Arguably,
the similarities “between the cinema and the trial [are] . . . more pronounced
in documentary films.”128 Few real-life trials have the same capacity “for
broad cultural influence” as documentary trial films.129 But there are
important differences. Documentaries like Hot Coffee, about the
McDonald’s lawsuit and tort reform,130 reflect the perspective and editorial
decisions of the director. Thus, some scholars argue that trial
documentaries “intervene in the production of cultural memory and shape
the social legacy of their trial narratives.”131 In other words, documentaries
about real trials “become both an alternative ‘public’ trial for their subjects
and a meta-trial on the legitimacy of the actual trials.”132 They are subject
to distortions, even about the legal system.
With the increased popularity of settlements, arbitration, and mediation,
civil justice in real life is no longer a public event—justice is determined by
fewer people, in a more private space. Nevertheless, “popular film and
media representations of the courtroom influence the way in which the
public comes to see the law in action.”133 American film and television
audiences remain the real jury, judging criminal and civil disputes. As
Professor Carol Clover writes, “[W]e are a nation of jurors, and we have
created an entertainment system that has us see just about everything that
matters—from corporate greed to child custody—from precisely that
vantage and in those structural terms.”134 She continues, “The jury may be
up for grabs in the world of law and politics, but in the world of popular
culture, it remains serenely untouchable.”135
Further, the influence of the American trial film is global. To outsiders
like the editors of the French language film magazine Cahiers du Cinema,
“it is ‘America itself which constitutes the Jury, and who cannot be wrong,
so that the truth cannot fail to manifest itself by the end of the
proceedings.’”136 The jury is so sacrosanct in the United States that
American courtroom dramas do not critique the jury. Thus, it could be that
128. Fuhs, supra note 5, at 782.
129. Id. at 804.
130. HOT COFFEE (The Group Entertainment 2011).
131. Fuhs, supra note 5, at 784.
133. Id. at 782.
134. Clover, supra note 4, at 272–73.
135. Id. at 271.
136. Id. at 272.
any decline in feature civil trial films will have no real impact on the
public’s perception of the civil trial.
More worrying is that many of the classic late twentieth- and early
twenty-first-century civil law films discussed in this and many law and film
articles are no longer readily available for purchase or streaming. Thus,
there may be few readily available fiction films that depict traditional civil
trials. What may become more common film images are the more modern
civil trial films, like The Social Network and Woman in Gold. More
troubling, from an educational perspective, however, is another recent
twenty-first-century film, Michael Clayton.
The critically acclaimed Michael Clayton probably is unrecognizable to
the general public as a law film. Yet throughout the film, the viewer sees
evidence explaining the decline of civil jury trials and the changing nature
of civil practice.137 The murder and attempted murder in Michael Clayton
notwithstanding, the film reflects the changing nature of
twenty-firstcentury law practice. The protagonist, Michael Clayton, is a
wellcompensated, experienced trial lawyer who does no legal work. Rather he
“fixes” or tries to control situations for his big law firm’s corporate and
wealthy clients. Over six years, the law firm earned millions of dollars
representing U-North, an agro-chemical corporation, in the pretrial
proceedings of a class action, hoping that the overmatched plaintiffs would
become exhausted and settle quickly, a theme from civil trial films
mentioned previously. When the corporation’s culpability becomes clear,
there is an attempt to hide the evidence from the plaintiffs, and U-North
decides to quickly settle before this evidence is discovered. There was no
trial and only a snippet of a disrupted deposition. Yet the film is a scathing
critique of the civil justice system.
In the end, perhaps it is because “American courtroom films have created
a manner of portraying legal procedure which has been followed in
courtroom films set in other countries and other legal systems”138 that they
will continue to be produced in the United States. So, real-life jury trials
may continue to decline. But the American civil courtroom film, whether
flawed or not, is too deeply embedded in American popular culture to
disappear entirely. Perhaps more importantly for film companies looking to
turn a profit, the trial format is too appealing to film audiences to discard.
1. U.S. CONST. amend. VII (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law .”).
2. “ The rights to trial by jury in civil . . . cases in state constitutions are not an exact mirror image of the corresponding rights in . . . [the] Seventh Amendment of the United States Constitution.” Randy J. Holland, State Jury Trials and Federalism: Constitutionalizing Common Law Concepts , 38 VAL. U. L. REV. 373 , 373 ( 2004 ) (footnotes omitted). The Seventh Amendment guarantee to a jury trial in civil cases has not been made applicable to the states. See Suja A. Thomas, Nonincorporation: The Bill of Rights After McDonald v . Chicago, 88 NOTRE DAME L. REV. 159 , 160 , 172 - 75 ( 2012 ) (citing Minneapolis & St. Louis R.R . v. Bombolis, 241 U.S. 211 ( 1916 )).
3. Dmitry Bam , Restoring the Civil Jury in a World Without Trials , 94 NEB. L. REV. 862 , 897 ( 2016 ).
4. Carol J . Clover, “ God Bless Juries!,” in REFIGURING AMERICAN FILM GENRES: HISTORY AND THEORY 255 , 256 (Nick Browne ed., 1998 ).
5. Kristen Fuhs , The Legal Trial and/in Documentary Film, 28 CULTURAL STUD . 781 , 790 ( 2014 ) (citing Carol Clover, Law and the Order of Popular Culture , in LAW IN THE DOMAINS OF CULTURE 97 , 102 (Austin Sarat & Thomas R. Kearns eds., 2000 )).
6. David Ray Papke , How Does the Law Look in the Movies?, 27 LEGAL STUD . F. 439 , 446 ( 2003 ). Papke asserts that most other countries “do not employ a courtroom trial convention as frequently as the American popular culture industry . ” Id. at 447 . Professor Jessica Silbey writes that “the trial is a ritualistic aspect of the law that is often overlooked . . . but that is crucial to the law's binding of its practice with its ideals in culture .” Jessica Silbey, Patterns of Courtroom Justice , 28 J.L. & SOC 'Y 97 , 97 ( 2001 ).
7. Jennifer Walker Elrod , Is the Jury Still Out?: A Case for the Continued Viability of the American Jury, 44 TEX . TECH. L. REV. 303 , 319 - 20 ( 2012 ) (arguing that costs and alternative dispute resolution forums contribute significantly to the decline of civil trials).
8. Id. at 331.
9. Ronald M. Sandgrund , Does Popular Culture Influence Lawyers, Judges, and Juries? (pt. 3), COLO . LAW., Mar . 2015 , at 51 , 53 (quoting Popular Culture, OXFORD ENGLISH DICTIONARY ONLINE ( 2015 ), https://en.oxforddictionaries.com/definition/ popular_culture [https://perma.cc/7EXG-BLGS]). Another scholar writes that popular culture is reflected in the “'norms and values' held by ordinary people at a particular point and time in the society's history.” Katherine Lee Klapsa, Lawyers Bring Big Screen Drama to the Courtroom: How Popular Culture's Influence on the Law Has Created the Need for “Professional Witnesses,” 18 BARRY L . REV. 355 , 358 ( 2013 ).
10. Klapsa , supra note 9, at 358.
11. Id .
12. Papke , supra note 6, at 446.
13. DAVID A. BLACK, LAW IN FILM: RESONANCE AND REPRESENTATION 3 ( 1999 ).
14. Papke , supra note 6, at 446.
15. STEVE GREENFIELD ET AL., FILM AND THE LAW: THE CINEMA OF JUSTICE 45 ( 2010 ).
16. Id . at 144.
17. See PHILADELPHIA (Clinica Estetica 1993 ) ; RUNAWAY JURY (Regency 2003); THE VERDICT (Twentieth Century Fox 1982 ).
18. See Fergal Davis , The Jury as a Political Institution in an Age of Counterterrorism, 33 POLITICS 5 , 11 ( 2013 ); David Ray Papke, Conventional Wisdom: The Courtroom Trial in American Popular Culture, 82 MARQ. L. REV. 471 , 481 ( 1999 ).
19. See Elrod, supra note 7 , at 331.
20. See id. at 330.
21. ANTHONY CHASE , MOVIES ON TRIAL: THE LEGAL SYSTEM ON THE SILVER SCREEN 164 ( 2002 ).
22. See 12 ANGRY MEN (Orion-Nova Productions 1957 ) ; ANATOMY OF A MURDER (Carlyle Productions 1959); WITNESS FOR THE PROSECUTION (Edward Small Productions 1957 ).
23. James R. Elkins , Popular Culture, Legal Films, and Legal Film Critics, 40 LOY. L. A. L. REV . 745 , 747 ( 2007 ).
24. See William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitution, 40 SUFFOLK U. L. REV. 67 , 78 ( 2006 ).
25. See , e.g., OLIVER P. CHITWOOD, JUSTICE IN COLONIAL VIRGINIA 94-95 ( 1971 ).
26. Marc Galanter , A World Without Trials , 2006 J. DISP. RESOL. 7 , 7 .
27. Elrod , supra note 7, at 318; Young, supra note 24, at 73.
28. CIVIL JURY PROJECT N.Y .U., http://civiljuryproject.law.nyu.edu/ (last visited Mar. 25 , 2017 ) [https://perma.cc/2LL4- BL67 ].
29. About , CIVIL JURY PROJECT N.Y .U., http://civiljuryproject.law.nyu.edu/about/ (last visited Mar. 25 , 2017 ) [https://perma.cc/6LR6-5T25].
30. See Kent D. Syverud , ADR and the Decline of the American Civil Jury, 44 UCLA L . REV. 1935 , 1938 ( 1997 ).
31. Id . at 1943 .
32. Id . at 1938 .
33. Id .
34. The author identified five “defining traits” of civil trials: (1) “Concentration” (trials are uninterrupted); (2) “The Pretrial/Trial Division” (pretrial procedure to narrow the scope of the trial); (3) “Bifurcation and Jury Control” (“procedural and evidentiary law to regulate the internal relationship between” the judge and the jury); (4) “Orality, Immediacy, and Public Access” (jury trials as public educational exercises); and (5) “Partisan Investigation and Presentation of Fact; Cross-Examination” (lawyer as fact gatherer) . John H. Langbein, The Disappearance of Civil Trial in the United States , 122 YALE L.J. 522 , 529 - 38 ( 2012 ).
35. Id . at 551.
36. Galanter , supra note 26, at 13.
37. Elrod , supra note 7, at 319; Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD ., 459 , 515 ( 2004 ). This argument is contested by some scholars who argue that ADR is a beneficiary, not the proximate cause, of the decline in civil trials . See Syverud, supra note 30 , at 1943 .
38. Young , supra note 24, at 81 ( noting that there is a judicial preference for arbitration and a trend to “manag[e] cases toward settlement”).
39. See Margo Schlanger , What We Know and What We Should Know About American Trial Trends , 2006 J. DISP . RESOL. 35 , 39 . The decline may be caused by a change in court administration, nontrial outcomes like nonfinal terminations, or settlements via arbitration or mediation .
52. Not all survey participants misunderstood the nature of the civil trial system. One of the litigants was “a street person in fact and appearance,” but he had a “remarkably accurate” understanding of the civil system . Id. at 155 . This participant's knowledge might be a result of the popularity of television reality court shows like The People's Court . See, e.g., Margot Slade , The Law; 'The People's Court': The Case for and Against It , N.Y. TIMES (May 5 , 1989 ), http://www.nytimes.com/ 1989 /05/05/us/the -law-the-people-s-court-the-case-for-andagainst-it.html (noting that The People's Court had “vastly increased public awareness of court procedures and the law” ) [https://perma.cc/7QNQ-M9PB].
53. See , e.g., Steven A. Kohm, The People's Law Versus Judge Judy Justice: Two Models of Law in American Reality-Based Courtroom TV , 40 LAW & SOC'Y REV . 693 , 694 ( 2006 ) (“American television programming focusing on the law forms a significant part of the cultural legal landscape for many Americans .”).
54. Young , supra note 24, at 69 ( quoting PAULA DIPERNA , JURIES ON TRIAL: FACES OF AMERICAN JUSTICE 21 ( 1984 )).
55. Id . at 69-70.
56. Id . at 70.
57. See , e.g., Richard Brust, The 25 Greatest Legal Movies , A.B.A. J. ( Aug. 1 , 2008 ), http://www.abajournal.com/magazine/article/the_25_ greatest_legal_movies/ (listing seven civil trial movies and seventeen criminal trial movies, as well as one set in law school ) [https://perma.cc/4JDS-7QB7].
58. CHASE, supra note 21, at 104.
89. Erin Brockovich is a dramatization of the named character's efforts to highlight the litigation against Pacific Gas and Electric. A Civil Action is based on Anderson v . Cryovac, Inc., 862 F.2d 910 ( 1st Cir . 1988 ), which formed the basis of Jonathan Harr's 1995 book by the same name . JONATHAN HARR, A CIVIL ACTION ( 1995 ). The Sweet Hereafter is based on an actual 1989 bus crash in Alton, Texas. Author Russell Banks changed the location to Canada in his 1991 novel by the same name . RUSSELL BANKS , THE SWEET HEREAFTER ( 1991 ). The Insider is a fictionalized account of the struggle of tobacco industry whistleblower Jeffrey Wigand and CBS producer Lowell Bergman to combat the industry's efforts to discredit a segment on 60 Minutes about Wigand . North Country is based on Jenson v. Eveleth Taconite Co., 130 F.3d 1287 ( 8th Cir . 1997 ), chronicled in the book CLARA BINGHAM & LAURA LEEDY GANSLER , CLASS ACTION : THE STORY OF LOIS JENSON AND THE LANDMARK CASE THAT CHANGED SEXUAL HARASSMENT LAW ( 2002 ).
90. McCann & Haltom, supra note 73, at 1062.
91. Id . at 1067-68.
92. See generally CHASE , supra note 21.
93. Id . at 105 , 108 .
94. Id . at 106-07.
103. See WOMAN IN GOLD (Origin Pictures 2015 ).
104. See THE WAR OF THE ROSES (Twentieth Century Fox 1989 ).
105. The Verdict: Quotes, IMDB, http://www.imdb.com/title/tt0084855/trivia?tab =qt& ref_=tt_trv_qu (last visited Mar . 25 , 2016 ) [https://perma.cc/WK62-DVHC].
106. CHASE, supra note 21, at 106.
107. Id . at 106-07.
108. Michael Asimow , Popular Culture and the Adversary System , 40 LOY. L. A. L. REV . 653 , 655 ( 2007 ).
119. Id . at 670.
120. Id . at 676.
121. Syverud , supra note 30, at 1935 .
122. Id . at 1935- 36 .
123. See Kimberlianne Podlas, Blame Judge Judy: The Effects of Syndicated Television Courtrooms on Jurors, 25 AM. J. TRIAL ADVOC . 557 , 560 - 61 ( 2002 ).
124. CHITWOOD, supra note 25, at 94-95.
125. Philip Z. Kimball , Syndi-Court Justice : Judge Judy and Exploitation of Arbitration, 4 J. AM. ARB . 145 , 145 - 47 ( 2005 ).
126. Damages ( FX television broadcast 2007-2009, Audience Network television broadcast 2010- 2012 ).
127. Boston Legal (ABC television broadcast 2004- 2008 ).
137. See MICHAEL CLAYTON ( Castle Rock Entertainment 2007 ).
138. Stefan Machura & Stefan Ulbrich , Law in Film: Globalizing the Hollywood Courtroom Drama , 28 J.L. & SOC 'Y 117 , 123 ( 2001 ).