Above the Law Goes To The Movies

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Above the Law Goes To The Movies

07/31/2018

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello and welcome to Digital Detectives.

Audience: Yeah.

Joe Patrice: No, no, no, no, no. I am sorry everybody. As some of you may have known last week we had a quick little snafu where what went out to you if you were subscribed to the podcast was another great show from the Legal Talk Network, which hopefully you all listened to and learned something, actually did get one Twitter response from somebody who said, I tuned into my favorite show and I ended up accidentally learning something; and that will happen when you listen to other shows on the Legal Talk Network. But, we are here to bring you back to not learning anything.

So, sorry about that everybody. Hopefully everyone can go back. It’s fixed now, so you can listen to our conversation about for-profit law schools, it was really informative we talked to someone who had actually been in the midst of that world and has written a book about it.

And so, if you haven’t gone back to listen to it you should, it’s fixed now, so be sure to get that.

I am Joe Patrice from Above the Law, who is your usual host and with me as always would be Elie, but I can’t say “as always” anymore, because Elie Mystal is not here today. He’s off doing a bunch of other tasks. So, I am charged with doing this by myself, which means we aren’t going to hear his weekly complaint about life in general, which is — yeah, yeah, yeah, but at least I can play with my sound effects without him getting upset this time. So, we’ve got that going for us.

At this point, I’m going to pop up and just explain that we’re a sponsored show. So we want to thank Major, Lindsey & Africa, who are legal recruiters. If you don’t know, they are the global navigators of legal careers and the world’s leading legal search firm.

The firm offers a range of specialized legal recruiting and talent advisory services to meet the ever-changing needs of law firms and legal departments and support the career aspirations of lawyers and legal and compliance professionals. With more than 25 offices and 200 search consultants around the world Major, Lindsey & Africa uses its market knowledge and experience to navigate its clients and candidates toward opportunities that lead to success. So you can learn more about them at www.mlaglobal.com.

So, what do we talk about when it’s just me talking to nobody? It’s awkward. I don’t have anyone to play off today, so I decided to play off the events going on in our lives.

Earlier today the Above the Law editorial team had some reason why we had to go into this, I don’t even need to get to, but we had some reason to start talking about an old movie, and that got me thinking about the problems with that movie from the perspective of Thinking Like a Lawyer. Okay, actually going back to the title and original concept of this show that we would talk, Elie and I, about the ways in which we and our guests think like lawyers and how that ruins our ability to understand the real world like real people.

That was the original plan for the show. We’ve moved past that, but we’re going to kind of go back to that logic here, because we talked about a movie on our internal chat line and it struck me there were legal problems and it got me thinking, and then I kind of moved on from that to thinking about other movies where there are legal problems and how if you are a lawyer these things probably burn at you every time you see these classic movies, you think that can’t, but no.

Anyway, so earlier today we had a conversation that brought up the classic film and play before that, but the film, the scene involved was only in the film ‘Glengarry Glen Ross’.

So, for those who don’t remember ‘Glengarry Glen Ross’ are about salespeople who are down on their luck, and the company brings in a hotshot salesperson in the form of Alec Baldwin to tell all of them that they’re worthless.

And it’s this clip from that that sticks with me every time I hear it.

Alec Baldwin: Because we’re adding a little something to this month’s sales contest, as you all know first prize is a Cadillac Eldorado. Anybody want to see second prize? Second prize a set of steak knives. Third prize is you’re fired.

Joe Patrice: Okay. So, first prize in a monthly sales contest is a Cadillac Eldorado, monthly. So, the Cadillac Eldorado in 1992 was market-listed for 32 grand, that was the manufacturer’s suggested retail price of a Cadillac Eldorado that.

(00:05:07)

Now the Board behind Alec Baldwin when he says this, points out that the top salesperson of the time has only booked 90,000 in sales for the month. Now, you assume that means 10% commission. That means this is a guy who’s probably making around $108,000 a year in 1980s terms, which is fine. But what you’re saying is that every month you’re giving these people a $32,000 car for winning.

Let’s talk about the tax implications of that. That’s what bothers me. Ever since I took income tax as a young law student, which by the way if you are in law school or considering law school income tax surprisingly fun and interesting class, never had to use it again in my actual day-to-day life as a litigator, was really fascinating.

Income tax, now, that gift is compensation, that is compensation by another term, even though it is not your salary, it is giving something like a gift to you that you have to pay taxes on.

It’s why when Oprah says you get a car and you get a car, she’s actually just saying you get a tax bill and you get a tax bill.

So, he gets this car theoretically every month, it’s implied by the movie that he’s been the top salesperson, Ricky Roma, that played by Al Pacino in the movie, that he gets this every month.

So unless this is some kind of weird special month which it’s implied that it is not, unless this is something weird he’s getting one of these every month. He’s packing on a-third of his salary for the year every month in a new car. That’s a tax and nightmare. That is the worst thing they can do. Firing all the other people for not performing so much nicer than forcing the guy who is actually doing well to have a nightmare with his car every time.

Now maybe they are grossing up his salary and giving him bonus to cover the amount of the increased taxes, but that’s never discussed. That bugged me ever since I saw it. I love that movie beforehand and then once I saw I took income tax, it’s bothered me ever since.

So, that was my new thing for the day and that got me thinking for this podcast some other movies that have some critical legal screw-ups. All right. So let’s talk about some of these.

First of all I’m going to go to a classic that bugs me. This is the movie ‘Jaws’. This is the characters talking to the Mayor Martha Vineyard here about the shark attacks.

Mayor Vaughn: We depend on the summer people here for our very lives.

Hooper: You are not going to have a summer unless you deal with this problem.

Chief Brody: We are not only going to have to close the beach, we are going to have to hire somebody to kill the shark. I mean, we’re going to have to tell the Coast Guard.

Hooper: Mr. Vaughn, you’ll have to contact the Shark Research Panel. You’ll have to ring this entire harbor.

Mayor Vaughn: I don’t think either one of you are familiar with our problems.

Joe Patrice: No, no, no, no. I’m cutting it out there. No, you’re not familiar with your problems. This is not a decision-making process that will pass any sort of muster down the road. It ultimately when people do die and spoiler alert people that are about to die right after this clip, when people do die about this, it does not resolve the town’s liability to then hire a shark hunter. They have screwed up. They have made an arbitrary and capricious decision even with evidence in front of them to suggest they shouldn’t do this. They went ahead and opened the beaches anyway. They are absolutely viable.

This town should have been wiped off the map after this. I mean, obviously this is not I guess I said earlier that it was Martha’s Vineyard’s Amity but whatever, it’s supposed to be Martha’s Vineyard in any real sense here.

So, they would have been wiped off the map long before Alan Dershowitz could complain about how he has no friends there.

So this, I actually did a little bit of research because I was thinking why didn’t anybody sue them out of existence, am I the only one because I’m a lawyer who thinks like this, am I the only person twisted enough to think that the actual response and the rest of the movie should have just been people suing. As it turns out I’m not.

I went over to our friends Legal Geeks, at The Legal Geeks, who we’ve had on a previous podcast, they actually have devoted a full treatment to this question, a full post going through exactly every reason why the town would have been litigated off the face of the planet for this, and they even found a real case. A real case in Florida that ended with the holding in Florida where a shark attack happened near the beach, their holding was in the instant case there was nothing to indicate that the city had knowledge of a shark hazard. To the contrary, the record shows that the attack was at a previously safe beach, was unexpected.

In the absence of reasonable foreseeability of danger there was no duty on the part of the city to guard an invitee against an attack by an animal and then they insert whatever the Latin for wild animal is, ferae naturae, I didn’t take Latin because it’s a dead language or to warn of such an occurrence.

(00:10:17)

Now, that makes sense, but you know what’s implied there, is that if you did have knowledge of shark attacks in the area, you would be liable. This Florida town escaped it but Mayor Vaughn in that clip is not going to get out of this. Mayor Vaughn is being informed not only by his Chief Law Enforcement Officer but also independent observers, a scientist in this instance, that he’s got a problem that he needs to fix, and he’s doing nothing about it. Indeed, he’s making clear in statements that obviously would be hearsay to the extent they’re not in any sort of official government capacity, but he’s making statements that are at least indicative that he’s lying when he later says that he had no financial motive here, that the only reason they’re doing this is a financial motive. We need those people on those beaches.

This would not stand, this should be what ‘Jaws 2’ was as opposed to the horrible movie that ‘Jaws 2’ became, should have just been ‘Jaws 2: The Legal Fallout’.

All right, so with that, let’s move to my next problem. So, ‘It’s a Wonderful Life.’ Everybody likes this movie, it’s fine, whatever, it’s Christmas movie, see it all time. So, what causes the spiral out to George Bailey potentially committing suicide is that his uncle has misplaced $8,000 right before a bank examiner comes, and when he goes to get a loan from the other bank for that $8,000, the other bank calls the cops on him.

I’m somewhat at a loss for why asking for a loan would constitute a crime? Now, I fully understand that this is where Elie would come in correctly and point out that we’ve had a spate of situations like this recently, where Black people bring a check in that like may not clear and the banks call the cops on them, which is troubling and the reason why that’s so troubling and wrong is that there is no crime being committed just based on that and no reason for the bank to be doing anything.

So, Potter — now Potter obviously has the motive, he’s trying to drive George out of business, but I don’t understand why anybody is listening to this crazy man, who just says, someone just asked me for a loan, go arrest him. I mean, he seems to think that there might be some mishandling of stuff, but he has no reason to actually call for a warrant for this guy’s arrest.

At worst all Potter has at this point is more evidence to give a bank examiner the next morning. He doesn’t have any reason to get the cops in this instance, Bert and Ernie. He doesn’t have any reason to get them involved, this bugs me to no end every time I see it. I’m like, well, why are the cops listening to him here? That’s just a poorly run department, which I mean, I don’t know, on Bedford Falls it’s not exactly your higher-end fake New York town. But still, like somebody should have been — somebody shouldn’t have been the switch there in the police office. So, that one bothers me.

Let’s go with another. Well, you know what’s interesting? Without Elie here, we’re actually getting an extended grinding of gears but just from me, and over the most frivolous possible things. So, that’s what you have to look forward to whenever he doesn’t show up. This should cause an outpouring of support for him and getting whatever he needs so that he’s here all the time.

So, I guess the last one which I think everybody probably knows — oh wait, no, no, no, I have another one, just struck me. This other one real quick. I think everybody here knows this, if you are in law school, contemplating law school, ‘My Cousin Vinny’, actually one of the better movies for actual trial procedure, much closer to reality than most movies ever have come close.

However, there is the scene which I understand is completely done because it would be awkward as a staging matter to do it the right way. When calling for voir dire of the expert witness, in this case Marisa Tomei’s character, they do that in front of the jury so the jury gets to hear whether or not the expert can be considered an expert.

Yeah, they even don’t get to do that. I mean, for obvious reasons, right? Like if you did that then the jury would always have in their minds some prejudice about how the expert answered questions, whether those questions are or are not fair? That’s why you don’t get to do it. So, that always bug me. But, I understand, they couldn’t have two scenes with a jury coming in and out.

(00:15:01)

So, finally is ‘Legally Blonde’, which is a terrible movie and a movie that unfortunately has developed a life of its own because I don’t know. There is nothing really particularly redeeming about this movie, it is a bundle of bad stereotypes thrown together and foisted upon the screen. However, it still years later has a pull over some number of people, so here we are.

But, so she gets to run a murder trial in the middle of her first year of law school. I’ll just alert anybody who’s contemplating law school based on Elle Woods, which every year, we do get tips and tweets about people saying that Elle Woods inspired them to go to law school. You’re not going to run a murder trial in your first year; unless you’re defending yourself per se.

This doesn’t happen, and the movie does gamely attempt to explain why it should happen because they say, there’s a point right before Elle takes the reigns of the case. They cite Massachusetts Supreme Judicial Court Ruling 3.03, I’d to look up what exactly it was, but I knew that they quoted something, which does in fact say that senior law students under the supervision of actual lawyer can appear in court, and defend people.

Now, the problem is, this rule which is real, does limit that to for representing the Commonwealth and representing indigent clients. The character that’s being defended is an incredibly wealthy fitness instructor, who has like a video line, she’s like a stand-in Jane Fonda sort. There’s no way this is the sort of indigent client who is deserving of this.

Not only that, senior law student is not going to be a 1L and she proves basically how incompetent she is by her opening, which starts going over kind of basic crim law day 1 facts like what mens rea means. It’s completely useless, and then at the end of this dragged out terrible embarrassment of a courtroom scene, the judge after the witness confesses on the stand, which probably doesn’t happen as much as you might think.

The judge orders the witness taken into custody and charged with murder, which is not really a thing that they get to do. You don’t actually have a situation, generally speaking, where judges get to charge people with crimes. It’s one of those separation of powers things.

So, that doesn’t make any sense, and that’s kind of what I got. Sorry everybody for going on an extended rant there, but I mean these things were bugging me today. So felt that you all should have to deal with them too. And now, you’re going to have buried in your head all of these complaints about movies that you’ve seen over the years.

You should send them to us. Just go ahead and send them to [email protected]. We will pull them altogether and maybe a few months down the road, we might have a follow-up when I get Elie back in here or maybe we can get some other guests out here and we can break down your favorite or least favorite 18:29 maybe movie screw-ups. So, that seems like a good idea. Anyway, cool.

Hopefully, you have been subscribing this show. If you did, then you should have enjoyed Digital Detectives last week. But also, if you’re subscribing you will be getting every one of these delivered directly to your device when they come out, that is the easiest way to listen.

You should also be reading abovethelaw.com obviously where you can see the ramblings of me and Elie every day. You can also be listening to the other Legal Talk Network shows, now that you know of some of them, which we should, we should be talking to — more about that. We should get some more Legal Talk Network crossover, maybe not by the episodes themselves but some more talking to some other hosts to introduce you to some of the other great offerings.

So, you can listen to others of those at the legaltalknetwork.com. You should follow me on Twitter, I’m @JosephPatrice, Elie is @ElieNYC, though you haven’t heard him, so if this is your first episode, you would have no idea why you should follow him, but you probably should because he’s entertaining.

And you should give us reviews on all of your downloading paraphernalia whether it’s your iPhone, or Google or whatever, give us stars, give us reviews, tell people about it. It certainly helps the show.

So with that, thank you for listening. Thank you Major, Lindsey & Africa for sponsoring the show and there we go, thanks. Talk to you next time.

(00:20:00)

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