New episode of our video podcast, Speaking of Litigation: Courtroom dramas make for great entertainment, but how much of what we see on screen reflects the reality of litigation?
In this episode of Speaking of Litigation, we analyze iconic scenes from Succession, The Good Wife, Bridge of Spies, and more to uncover the truths—and myths—about the legal process.
From Screen to Strategy: Lessons for Litigants
- Filing a Complaint: Learn from A Civil Action how attorneys determine the legal claims to include, as well as how Rule 11 of the Federal Rules of Civil Procedure ensures that lawsuits are grounded in fact and law.
- Attorney-Client Privilege: Discover why confidentiality is critical from the moment you hire a lawyer, as seen in Bridge of Spies.
- Preserving Evidence: Understand the duty to preserve documents and the consequences of failing to do so, hilariously depicted in Succession.
- Settlement Strategies: Explore the art of negotiation and how settlements often resolve cases before trial, as dramatized in Erin Brockovich and A Civil Action.
Join Epstein Becker Green attorneys Sierra Hennessy, Aime Dempsey, and Adam Paine as they separate Hollywood fiction from legal reality, offering practical insights for anyone navigating the litigation process.
Podcast: Amazon Music, Apple Podcasts, Audacy, Audible, Deezer, Goodpods, iHeartRadio, Overcast, Pandora, PlayerFM, Pocket Casts, Spotify, YouTube, YouTube Music
Transcript
[00:00:00] Sierra Hennessy: We've all seen dramatic courtroom scenes played out in famous movies like My Cousin Vinny Legally Blonde. But how accurate are these courtroom depictions and what, if anything, can we learn about litigation from movies and TV shows? We have a fun episode for you today because we'll be discussing the do's and don'ts of litigation based upon scenes from popular movies and tv shows.
[00:00:19] Sierra Hennessy: Hi everyone. I'm your host today, Sierra Hennessy. I'm an attorney at Epstein Becker and Green based out of our New York office. Joining me in our discussion today is Aime Dempsey, a member of the firm, also located in our New York office. Aime, thanks for joining me today.
[00:00:33] Aime Dempsey: Hi, Sierra. Thanks for having me on. I look forward to discussing our topic with you today.
[00:00:39] Aime Dempsey: The law can give rise to a lot of drama that movies and television shows like to show. So it'll be interesting to kind of go through some of it and show you where, what might be accurate and what might not.
[00:00:52] Sierra Hennessy: Thank you. And also joining us today is Adam Paine, an associate in our Boston, Massachusetts office.
[00:00:58] Sierra Hennessy: Adam, thanks for joining us.
[00:00:59] Adam Paine: Thanks for having me. Just like Aime said, I'm excited to watch through these clips and see what we can learn, what is a good idea and horrible idea in litigation.
[00:01:10] Sierra Hennessy: So as I mentioned, today we'll be watching clips from famous movies and TV shows that demonstrate the different stages of a typical litigation.
[00:01:17] Sierra Hennessy: As we watch, we'll be unpacking each clip and discussing whether the clip is accurate and what a client can generally expect during each stage of litigation. Let's get started with our first set of movie clips, which come from the 1998 film A Civil Action.
[00:01:31] Movie Clip: Lawsuits are war. It's as simple as that. And they begin the same way, with a declaration of war, the complaint.
[00:02:23] Sierra Hennessy: As they say in this first clip, a lawsuit officially commences with the filing of the complaint.
[00:02:28] Sierra Hennessy: This clip also shows some of the causes of action asserted in the complaint in the movie A Civil Action. Aime, can you explain how attorneys determine what causes of action to include in a complaint?
[00:02:38] Aime Dempsey: Yeah, a cause of action or a claim is what the plaintiff or the party bringing the lawsuit is asking for.
[00:02:46] Aime Dempsey: And the outline of the legal basis for it. So in order to bring a cause of action, a party may believe someone else did something wrong, but there has to be a legal basis in order for them to get any relief. So breach of contract would be a cause of action. “They looked at me funny” would not be.
[00:03:05] Aime Dempsey: Gender or racial discrimination would be a cause of action, or potentially negligence when the defendant hasn't done what they maintain their required standard of care. The party bringing the complaint must have a good faith basis to believe the facts that they're alleging are true and that the law has been violated in the way that they're asking for.
[00:03:28] Aime Dempsey: So some investigation may be needed first. The complaint lays out the claims as the plaintiff believes them to be true, in a way that shows what law has been violated. So you would lay out the facts as they might show a breach of contract or as they might show negligence, as the case may be.
[00:03:49] Sierra Hennessy: And in this scene, the attorney who receives the complaint mentions Rule 11.
[00:03:53] Sierra Hennessy: Aime, can you explain what Rule 11 is?
[00:03:55] Aime Dempsey: Rule 11 is a federal rule of civil procedure, but something very like it appears in most state court jurisdictions as well. It's a requirement that the party or counsel for the party sign whatever pleading or document is brought to the court, and that includes the complaint.
[00:04:14] Aime Dempsey: And Rule 11 requires that the attorney or party certify to the court that to the best of their knowledge, information, and belief, formed after reasonable inquiry, not just something that they make up, that they're representing to the court that to the best of their knowledge, information, and belief, formed after reasonable inquiry and not presenting information for an improper purpose, the claims are warranted by existing law or a non-frivolous intent to change the law, and that the evidentiary support does or will be found to exist for the facts being alleged. The thing about Rule 11 and its analogs in state court law is if it's not followed, the court may sanction the attorney or the party so that there are consequences involved for not following the certification rule.
[00:05:09] Sierra Hennessy: So since we've discussed the complaint, that brings us to our next topic, hiring an attorney. So for this topic, let's take a look at a clip from the 2015 film Bridge of Spies.
[00:05:21] Movie Clip: Are you good at what you do?
[00:05:25] Movie Clip: Yeah. Yeah, I'm pretty good.
[00:05:30] Movie Clip: Have you represented many accused spies?
[00:05:36] Movie Clip: No, not yet. This will be a first for the both of us.
[00:05:49] Movie Clip: Alright.
[00:05:49] Movie Clip: Alright, you accept?
[00:05:49] Movie Clip: Yes. Alright.
[00:05:55] Adam Paine: So this is the first meeting between the lawyer and a defendant accused of spying for the Soviet Union in the movie Bridge of Spies. A key realistic aspect of this conversation is that even before an attorney-client relationship is formalized, a confidential exchange where the party and the litigant are getting to know each other is going to be privileged, which is critical for defendants including those accused of espionage or commercial litigants to have open and honest initial dialogue with a potential counsel, discuss their case and determine whether that lawyer is the right fit for this particular case, which mirrors commercial litigation. A litigant isn't only asking, do you know the law? Do you win these cases? They're asking you about your experience with similar cases and assessing courtroom presence, strategic instincts, how clearly the lawyer can explain and interact with a client.
[00:06:52] Adam Paine: And here the biggest aspect for the defendant is asking frank questions to determine whether he can trust Tom Hanks' character, the attorney here, and whether the lawyer has the skill and judgment to defend him, as well as the ethical fortitude that is going to be critical for this particular case, in a politically, Cold War charged backdrop. Tom Hanks' character is acknowledging that it would actually be his first case of this type, which might not show the best for his experience, and that's not the biggest selling point here. His honesty and his ethical commitment will help convince this defendant that he is exactly the right attorney for this type of case. Without spoiling too much of the movie, the attorney-client relationship and the sanctity of those communications plays a very pivotal role in what is going on outside of this exact initial meeting.
[00:07:43] Sierra Hennessy: So you mentioned the sanctity of attorney-client privilege. If you were James Donovan here, played by Tom Hanks, would you have mentioned that all of these conversations are confidential? Because I noticed that was missing from the clip.
[00:07:55] Adam Paine: I think that would be the first thing that they exchange, and maybe even followed up midway.
[00:08:00] Adam Paine: Later on, these two will formalize the attorney-client engagement and lay out the ground rules for moving forward. But those initial conversations, as well as all confidential communications moving forward, are privileged, meaning that they cannot be forced to disclose them to anyone outside of that relationship.
[00:08:20] Movie Clip: Let's start here. If you are firm in your resolve not to cooperate with the US government then do not talk to anybody else about your case, inside of government or out. Except to me, to the extent that you trust me. I have a mandate to serve you. Nobody else does. Quite frankly, everybody else has an interest in sending you to the electric chair.
[00:08:41] Sierra Hennessy: And I noticed that Tom Hank's character also mentioned to the defendant that he shouldn't discuss his case with anyone else. Why is that?
[00:08:49] Adam Paine: Conversations held without your attorney present or with third parties or people who are not, where those communications are not privileged, can be discovered by a third party, whether it's opposing party in commercial litigation or a government, the government in a government investigation.
[00:09:06] Adam Paine: Communications with non-attorneys are not subject to the attorney-client privilege. And to take that one step further, if you discuss what you talked about with your attorney with someone who is outside of that privilege, that arguably waives the privilege and the opposing parties can then discover and ask about the content of that communication.
[00:09:24] Sierra Hennessy: So once you've hired an attorney, they'll likely advise you to preserve all evidence, including relevant documents and emails, and to make sure that nothing is deleted or destroyed. And that brings us to our next movie clip, which comes from the TV show Succession.
[00:09:39] Movie Clip: Greg is chopping it up. Greg is chopping it up.
[00:09:43] Movie Clip: I'm involved in a criminal conspiracy. Oh, really? Yes. Yes I am. Yes. I destroyed some papers that I shouldn't have. Oh, did you? Yes, I did. Is that bad? Uh, yeah. That's bad. Yeah, that could be bad. You could go to jail.
[00:10:00] Sierra Hennessy: Adam, can you tell us what these clips depict?
[00:10:03] Adam Paine: In Succession, for those of you who haven't seen it, there's an unforgettable sequence where the comedic relief character Greg is tasked with sneaking into the corporate headquarters after hours, I believe on Thanksgiving night, to shred potentially incriminating documents and preserve potentially helpful documents.
[00:10:21] Sierra Hennessy: So when a company or individual is investigated by the government or sued in court, whether civilly or criminally, do they have a duty or an obligation to preserve documents?
[00:10:31] Adam Paine: The duty to preserve relevant documents attaches before a suit is brought. As soon as litigation or an enforcement action investigation becomes reasonably foreseeable, a litigant is obligated to preserve potentially relevant documents, and that's they need to refrain from purposefully deleting documents or information or negligently allowing things to become deleted, even if it's pursuant to a regularly scheduled automated deletion protocol. If those documents are potentially relevant to litigation, the company or litigant is obligated to go in and turn that automatic procedure off to preserve anything that's potentially relevant.
[00:11:11] Sierra Hennessy: And Aime, can you explain why it's so important to preserve evidence that may be relevant to a lawsuit or an investigation?
[00:11:17] Aime Dempsey: Well, as part of a lawsuit, both sides will be required to provide the documents and information that they have in their own possession or custody or control to the other side as part of what's known as the discovery process, particularly in civil lawsuits.
[00:11:37] Aime Dempsey: The American system of justice seeks that there be no surprises at trial. And there's a discovery process by which both sides are, you know, supposed to provide what is in their own possession, whether good or bad for their case. The rules of ethics require that attorneys or parties not withhold documents or information. It feeds into Rule 11, which we spoke about before.
[00:12:04] Aime Dempsey: And it's just not ethical to just only give what is favorable to your case and withhold what's not. Furthermore, as I think some of the Succession television show depicts, if not the scenes that we were actually able to show, if you withhold documents or destroy documents there's still likely to be some kind of trace or trail that they existed.
[00:12:31] Aime Dempsey: If that trace is discovered by the other side or by the court and you're asked where are those documents and can't produce them, there's likely to be what's known as an adverse inference against your side, which essentially is just going to make things worse for your client or for your party. In other words, the court can say, hey, these documents existed.
[00:12:57] Aime Dempsey: You can't come up with them. Therefore we're going to assume that they were bad for you or good for the other side. And that adverse inference or what's essentially an order of the court is likely to get read to a jury in such a way that the jury is going to not believe your side in that particular point.
[00:13:17] Aime Dempsey: If it's an important point, it could really lose the case for you.
[00:13:20] Sierra Hennessy: So after you've preserved documents and exchanged them with the other side in a litigation, generally what comes next is depositions, which brings us to our next topic.
[00:13:29] Movie Clip: Good morning, Mrs. Florrick.
[00:13:31] Movie Clip: Mr. DuBeck.
[00:13:32] Movie Clip: According to our pre-agreed ground rules, I will be taping this deposition.
[00:13:36] Movie Clip: Voluntary deposition. Yes, voluntary deposition, and we've agreed to review and correct any mistakes in the fine copy. Okay. Did you discuss your voluntary deposition with anyone before today?
[00:13:48] Movie Clip: Yes.
[00:13:50] Movie Clip: Who?
[00:13:50] Movie Clip: Eli Gold, my husband Governor Peter Florrick, and my lawyer.
[00:13:56] Sierra Hennessy: So in this clip, we see a rushed but fairly accurate depiction of how a deposition begins.
[00:14:01] Sierra Hennessy: Depositions are always transcribed by a court reporter who types all of the questions the attorney asks, and all of the deponent's responses to make a transcript. The deponent is under oath, so he or she is required to answer truthfully, just like if the witness were testifying in court at a trial. And as we saw in this clip, depositions are also often recorded, whether that be an audio recording or a video recording.
[00:14:24] Sierra Hennessy: Adam, can you explain where depositions fit into a lawsuit and how a deposition transcript might be used in a lawsuit?
[00:14:31] Adam Paine: Depositions occur during the discovery phase where the parties are still gathering evidence and information to inform their positions in the litigation. So the depositions allow attorneys to ask questions of the opposing side's witnesses or other witnesses to the facts, to get their answers on the record, to ask follow-up questions, to find more details, whether there are documents potentially available that haven't been produced in this litigation because they may have been destroyed and shredded after hours some night. And ask questions about getting to the credibility of the witnesses, seeing how witnesses are going to perform on the stand, which help inform both sides and their relative strength of their cases.
[00:15:17] Adam Paine: So the deposition of a transcript can be used at a summary judgment stage for putting in testimony from a party or a witness to support summary judgment before trial.
[00:15:31] Sierra Hennessy: So Aime, the attorney mentioned in this clip that they've agreed to review and correct any mistakes in the fine copy. What is he referring to?
[00:15:39] Aime Dempsey: The rules vary a little bit in terms of how they work from jurisdiction to jurisdiction, but federal court, New York State Court, and most other courts, allow the witness who is giving the deposition testimony to review the transcript. Because what's going on is you have a court reporter or some other means of recording sort of every word that's said on the record, questions asked and answers given..
[00:16:02] Aime Dempsey: There could be inaccuracies in the court reporters typing or a witness may misspeak. So typically, they're allowed an opportunity to go over the transcript once it's completed to see if there are any errors, and to correct those errors. If they don't take that opportunity or if they don't correct certain errors, the final transcript is still viewed as their full sworn testimony,
[00:16:32] Sierra Hennessy: So what happens if the deponent does not make any changes to his or her transcript, but then changes his or her testimony at trial?
[00:16:40] Aime Dempsey: Well, even if the deponent does make some changes, whatever ends up being the final transcript is their sworn testimony.
[00:16:47] Aime Dempsey: If they testify at trial or at hearing differently on the same subject as their deposition testimony they can be what we call, they can be impeached by their deposition testimony. So there have been movies, we don't have them today, but there have been movies where a lawyer will say, hey, were you testifying accurately at your deposition or are you testifying accurately now?
[00:17:10] Aime Dempsey: And what the attorney is permitted to do is to read the exact contradictory deposition testimony after an answer that is different at trial, and show to the judge, the jury, the fact finder that the witness appears to not be telling the truth at some point or another.
[00:17:38] Aime Dempsey: And even if they insist that they're telling the truth at trial and they weren't telling the truth at their deposition, their credibility is harmed. And when a jury or judge, you know, decides the facts of the case, credibility is very important. So having an accurate deposition transcript is important so that you don't improperly or unfairly get accused of changing your testimony.
[00:18:03] Aime Dempsey: And testifying accurately at your deposition is extremely important, as well as at trial.
[00:18:10] Sierra Hennessy: The attorney in this clip also asked the deponent if she had discussed her deposition with anyone. Adam, is that a normal question to ask a witness at a deposition?
[00:18:19] Adam Paine: A hundred percent. One of the first questions will be, what did you do to prepare for your deposition today?
[00:18:25] Adam Paine: Who did you discuss your deposition with? Often it's their attorney and you can't ask the substance of those conversations, but you can ask for a little background of when did you meet with them, how many times, how long, to get a sense of their level of preparedness. If they had discussed the subject matter of their deposition with someone else who's not their attorney, the substance of that conversation is completely fair game for discovery purposes.
[00:18:49] Adam Paine: You can ask what they talked about, whether they looked at documents, what they said about those documents, what they said about the other side, and that whole conversation is potentially subject to discovery.
[00:19:04] Sierra Hennessy: That brings us seamlessly into our next clip, which is just a continuation of our prior clip.
[00:19:10] Sierra Hennessy: So let's roll that clip from The Good Wife.
[00:19:12] Movie Clip: Did you discuss it with Will Gardner too? No. Really? Because you were observed meeting with Will Gardner yesterday, Tuesday the 15th, at the criminal courthouse. I was observed? Yes.
[00:19:23] Movie Clip: When I was being followed, I was observed. Yes. Mm-hmm. And for how long have I been being observed?
[00:19:35] Movie Clip: 35 hours.
[00:19:36] Sierra Hennessy: So in this scene the attorney asks the opponent if she discussed her deposition with Will Gardner. Adam, if she had discussed her deposition with someone who's not her attorney, as you just said, that conversation is not privileged and confidential. Correct?
[00:19:50] Adam Paine: Exactly. Conversations with your attorney leading up to deposition or beforehand, the litigant is permitted to refuse to answer those questions. The attorney will step in and instruct them not to answer anything that divulges attorney-client privilege communication. Speaking with a Mr. Gardner, who is not her attorney, that conversation is entirely outside of any privilege and the substance of that conversation is fair game for as many questions as the examining attorney would like to ask.
[00:20:18] Sierra Hennessy: Aime, overall, is this second clip from The Good Wife an accurate depiction of a deposition?
[00:20:23] Aime Dempsey: No. I mean, a deposition is a way, it's a means of discovery where one side is entitled to get sworn testimony from a witness through structured questions asked by the examining attorney and sworn answers given by the witness.
[00:20:40] Aime Dempsey: It's not a conversation, it's not a time for the witness to make the points that they want to make in terms of argument, in terms of asking questions to the attorney or to anyone else at the table. In an actual deposition, if this happened, the examining attorney would remind the witness that they don't get to ask the questions and would just move on with their own questioning, not entertain the questions asked by the witness.
[00:21:09] Sierra Hennessy: Thanks, Aime. We have one more movie clip concerning depositions. And this brings us to our next clip, which comes from the 2010 film, The Social Network.
[00:21:17] Movie Clip: Did you know Tyler and Cameron came from a family of means. A family of means? Did you know their father was wealthy? I had no idea whether they came from money or not.
[00:21:28] Movie Clip: In one of your emails to Mr. Narender, you referenced Howard Winklevoss’ consulting firm. If you say so. Howard Winklevoss founded a firm whose assets are in the hundreds of millions. Mm-hmm. You also knew Tyler and Cameron were members of a Harvard final club called the Porcellians. They pointed that out. Excuse us for inviting you in. To the bike room.
[00:21:47] Movie Clip: So it's safe to say you were aware that my clients had money. Yes.
[00:21:52] Sierra Hennessy: Now, Amy, would you say that this clip from The Social Network is a more accurate depiction of a deposition?
[00:21:58] Aime Dempsey: While this clip is compressed in time and, you know, dramatized a little bit, it does show that an attorney might have to ask a question a couple of different ways, or using a couple of different methods, in order to get a full and accurate answer.
[00:22:15] Aime Dempsey: So here we see they're shown documents and that the question is rephrased at points. And that's something that happens very frequently in a deposition.
[00:22:26] Sierra Hennessy: And Aime, in all of these clips, we see an individual witness testifying at depositions. But what happens when someone is suing a company or corporation? Who testifies?
[00:22:35] Aime Dempsey: It depends partly on the jurisdiction you're in and partly on what you're trying to get. But typically a deposition notice will request deposition testimony on certain topics, or certain areas that are important to the litigation from the corporation. And the corporation, in consultation with counsel, will usually determine one or more people who are best, knowledgeable about the particular topics that the examining attorney wants to find out about. Sometimes the person who testifies on behalf of the corporation actually might be educated by others in their corporation before going to the deposition so that they're able to give accurate answers as to what the corporation does for particular topics.
[00:23:26] Aime Dempsey: An individual deposition, on the other hand, is when the examining attorney can ask the individual, you know, what they know about whatever topics are relevant to the litigation. If they stray beyond what's relevant, the defending attorney is likely to point that out and in extreme situations, shut questioning down. But you can't ask an individual for a corporation to testify outside of what they know on behalf of the corporation.
[00:24:00] Sierra Hennessy: Now that we've discussed document discovery and depositions, there's one last kind of discovery to be discussed, and that's expert discovery.
[00:24:09] Sierra Hennessy: For this topic, we're again going to watch another clip from the 1998 film A Civil Action.
[00:24:14] Movie Clip: Well, what we have to do is show how the toxic solvents, these two factories, dumped on the land there, migrated underground and were drawn into the city wells here, and were then pumped into the homes of East Woburn.
[00:24:26] Movie Clip: And to do that, it's quite simple. Really. I'll need to inspect the land, map out the location of debris, and drill some monitoring wells, conduct seismic tests.
[00:24:39] Movie Clip: And you're talking about you and a couple of assistants or something? No, I mean a team of geologists and engineers.
[00:24:51] Sierra Hennessy: Aime, can you explain what is happening in this movie scene and why an attorney might need to hire a team of geologists?
[00:24:57] Aime Dempsey: In this movie, for those who may not have seen it, the plaintiffs are trying to show that certain companies dumped chemicals, and that the way they did it and the fact they did it caused damage to the plaintiffs, particularly illness.
[00:25:09] Aime Dempsey: Experts can use their scientific knowledge to explain how or why certain effects are seen or certain things have happened. So here the geologists may be able to explain, or at least the plaintiffs would like the geologist to explain how chemicals dumped or placed in one part of a site might end up in another part of a site that could cause damage to the plaintiffs.
[00:25:37] Sierra Hennessy: And when exactly is expert testimony permitted in a lawsuit?
[00:25:41] Aime Dempsey: Well, at least in federal court, the federal rule of evidence 702 covers that. There are analogous rules in most state jurisdictions, and in some administrative situations. So a witness must be qualified as an expert based on their knowledge, their skill, their experience, their training, or their education.
[00:26:05] Aime Dempsey: And in those situations when they're qualified, they can testify as to their opinions or otherwise. But the person who wants to put forth, the side that wants to put forth expert testimony in order to get it qualified needs to demonstrate that the expert's scientific, technical, or other specialized knowledge will help the trier of fact.
[00:26:26] Aime Dempsey: That is, will help the jury or the judge to understand the evidence or to determine a fact that's at issue. And the testimony must be based on sufficient facts or data, and it must be based on reliable principles and methods. So opinion testimony is not permitted just because somebody has an opinion.
[00:26:52] Aime Dempsey: The person who wants to put forth expert testimony has to show what makes the person an expert, and that they have relied on proven methods to come to their opinions.
[00:27:04] Sierra Hennessy: So now that we've talked about these different discovery topics, I think it's important to note that all of these different avenues of discovery, document production, depositions, et cetera, can be used to support a motion such as a motion for summary judgment.
[00:27:20] Sierra Hennessy: Which brings us to our next topic, summary judgment. Adam, before we watch our next clip, can you explain what a motion for summary judgment is and where it falls within the litigation process?
[00:27:30] Adam Paine: A motion for summary judgment comes at the close of fact and usually expert discovery periods, where the parties have exchanged documents, taken depositions of all the fact witnesses, the parties themselves, and potentially experts, to weigh in on the case and have assembled the universe of potentially relevant evidence for the case. A party seeking summary judgment can file a motion with the court essentially asking the court to decide the case before trial. They present their evidence to show that there's no real material facts in dispute.
[00:28:01] Adam Paine: The evidence will show a certain set of facts have been established through the discovery process. There's no need for a jury, and that as a matter of law the court can rule in favor of the moving party. So they'll submit documentary evidence, deposition testimony, potentially expert testimony or the report, and ask the court to review the evidence and rule in favor of that party.
[00:28:26] Sierra Hennessy: So keeping that in mind, let's watch our next movie clip, which comes from the 2018 film On the Basis of Sex.
[00:28:38] Movie Clip: Page 21.
[00:28:41] Movie Clip: I don't read tax court cases.
[00:28:43] Movie Clip: Read this one. The IRS denied a petitioner a tax deduction to hire a nurse to take care of an invalid mother.
[00:28:50] Movie Clip: Sounds like a real page turner? Mm-hmm.
[00:28:53] Movie Clip: Ask me why.
[00:28:54] Movie Clip: Marty, I have a lecture to write.
[00:28:56] Movie Clip: Hmm. Okay.
[00:29:01] Movie Clip: It's because the petitioner is a man.
[00:29:04] Sierra Hennessy: Aime, in addition to the evidence obtained during discovery, why is prior case law so important in motion practice?
[00:29:11] Aime Dempsey: In making decisions, courts generally must rely on existing law. If the same court or if a higher court has decided the issue being presented, courts will generally… must follow that precedent.
[00:29:26] Aime Dempsey: But it can be a matter of argument or interpretation as to whether a particular case that was previously decided is completely controlling of the facts at issue in your case. So when you're asking for summary judgment or otherwise writing briefs to persuade the court of your side, you want to find the cases that are going to be most likely to show the court that they should rely on those cases to decide in your favor.
[00:29:57] Aime Dempsey: So in writing briefs, attorneys make courts aware of the precedent, that is the cases that have been decided by either that court or other respected courts before the day that you're arguing, make courts aware of the precedent and point out the precedent that you or the arguing attorney finds most important and most persuasive to get the court or the judge to find in your favor.
[00:30:24] Sierra Hennessy: So keeping that in mind, let's keep watching this scene from On the Basis of Sex.
[00:30:29] Movie Clip: Marty?
[00:30:32] Movie Clip: Section 2-14 of the tax code assumes a caregiver has to be a woman.
[00:30:40] Movie Clip: This is sex-based discrimination against a man.
[00:30:46] Movie Clip: Poor guy.
[00:30:48] Movie Clip: If a federal court ruled that this law is unconstitutional, then it could become the precedent others refer to and build on.
[00:31:00] Sierra Hennessy: So in this clip from On the Basis of Sex, we see Ruth Bader Ginsburg refer to setting precedent, just as Aime previously mentioned. Aime, can you explain what is happening in this scene?
[00:31:10] Aime Dempsey: So Justice Ginsburg is discussing bringing a lawsuit, and if the court rules in her side's favor, it would result in new precedent in all future cases because the court hadn't decided in favor of her position in the past.
[00:31:27] Aime Dempsey: So, as I mentioned, briefs are the means of showing the court or the judge why your side should win when the law is applied to the facts of your case. They call for clear storytelling, clear writing, and as illustrated in this clip, thoughtful and sometimes even innovative and new consideration of the cases to rely on.
[00:31:47] Aime Dempsey: For those who haven't seen it, the movie is largely about how Ruth Bader Ginsburg used laws that discriminated against certain men to argue her points when her ultimate goal was to reduce discrimination against women in laws and in their interpretation. So she went outside the normal sort of box of precedents that decided exactly the same facts to try to apply application of different facts in a way that she hoped would persuade the court.
[00:32:17] Sierra Hennessy: And that brings us to our final topic of the day, which is settlement. Now of course, many TV shows and movies show dramatic trial scenes, however, over 95% of cases don't actually go to trial. They might be dismissed through motion practice, such as motions for summary judgment, which we just discussed. Or more often than not, they might settle.
[00:32:40] Sierra Hennessy: But before we watch our last set of movie clips, Adam, can you explain where in the litigation process settlement generally occurs?
[00:32:47] Adam Paine: Honestly, settlement can occur at any time throughout the litigation process. It can occur before a complaint is even filed, as the parties are gearing up and exchanging their positions on a dispute that has arisen. After a complaint is filed, a defendant may explore the possibility of settling instead of disputing or filing an answer. As the case is underway and the parties are gearing up to spend a lot of money in a discovery process, collecting documents and taking depositions, the parties can explore the possibility of settlement at that point.
[00:33:24] Adam Paine: At the end of discovery after the parties have gotten and analyzed the universe of evidence relevant to their case and have assessed the relative strengths and weaknesses of their cases and how their witnesses are potentially going to stand up to testimony and examination and cross examination. They might view that as a great opportunity to discuss settlement.
[00:33:47] Adam Paine: And at any one of these off ramps, the litigants and their counsel can identify other levers or mechanisms that might help that settlement conversation… facilitate that settlement conversation, whether it's a mediator or some other alternative dispute resolution component. A mediator can often help clients view the relative strength or weaknesses of their cases and have a little bit more honest assessment of their position and reach a settlement before getting to a motion for summary judgment or trial, as the case may be.
[00:34:20] Sierra Hennessy: So, Adam, can a settlement even occur after trial started?
[00:34:24] Adam Paine: Practically? Sure. Settlement conversations can happen at any moment. As a litigant is putting on their case at trial, they may be understanding the relative strength or or weakness of their case as their witnesses are testifying in front of a jury or the judge. They may be doing incredibly well and walking away from trial that day feeling that their testimony is coming out very clearly and convincingly.
[00:34:58] Adam Paine: On the other hand, their witnesses may be faltering, they may be encountering instances where their deposition testimony is inconsistent with their trial testimony and being faced with these impeachment scenarios where their credibility is under attack, and counsel or parties may be viewing those as possibilities for a settlement to avoid a final judgment from the jury and potentially very high damage awards.
[00:35:20] Sierra Hennessy: So let's watch our first clip concerning settlement, which comes from the 2000 film Erin Brockovich.
[00:35:26] Movie Clip: Let's be honest here, $20 million is more money than these people have ever dreamed of.
[00:35:31] Sierra Hennessy: So in this scene, we see the attorney representing the defendants making a settlement offer of $20 million. Aime, can you explain the process of making settlement demands and offers?
[00:35:41] Aime Dempsey: It can vary widely from case to case and depending on who the parties are, but in general, plaintiffs want to get as much as they can in settlement, and defendants want to pay as little as possible. The settlement talks, on one level or another, are an exploration of how to get to a potential number that both sides can agree on, even if it's a little lower than the plaintiff wanted, or higher than the defendants wanted. So oftentimes what happens is the plaintiff will make a demand and say, you know, I will settle if you give me some number. Here the defendants offer $20 million as payment for the cases being brought by several families in this movie.
[00:36:26] Sierra Hennessy: So let's keep watching the scene to see how the attorneys for the plaintiffs respond to the defendant's offer of $20 million.
[00:36:32] Movie Clip: Second of all, these people don't dream about being rich. They dream about being able to watch their kids swim in a pool without worrying that they'll have to have a hysterectomy at the age of 20, like Rosa Diaz, a client of ours, or have their spine deteriorate like Stan Bloom, another client of ours.
[00:36:49] Movie Clip: So before you come back here with another lame ass offer, I want you to think real hard about what your spine is worth, Mr. Walker, or what you might expect someone to pay you for your uterus, Ms. Sanchez.
[00:37:01] Sierra Hennessy: Aime, would you say that this scene is an accurate depiction of a response to a settlement offer?
[00:37:07] Aime Dempsey: It is a dramatization, but the accurate sort of nugget in it is that it frequently happens that when a plaintiff in this case is rejecting a settlement offer, they make some kind of explanation as to why they see it insufficient, whether on the basis of the law or the facts. And here the character played by Julia Roberts, in other words Erin Brockovich, suggests that it might be insulting to the families that she's representing overall.
[00:37:40] Sierra Hennessy: So we have one more movie clip to share with you concerning settlement, which comes from the 1998 movie, A Civil Action.
[00:37:47] Movie Clip: Gimme a number. Well, I'm not going to negotiate with myself, Al. I'm not gonna just throw out numbers so you can say no to them. You'll have to come up with a number. 8 million. I can't go to the families with that.
[00:38:00] Sierra Hennessy: Aime, would you say that this is perhaps a more accurate depiction of settlement negotiations between attorneys?
[00:38:05] Aime Dempsey: This is more accurate in the sense that they tend to, you know, be back and forth of an offer being made, here $8 million, and in this case a rejection with some rationalization given for the rejection, but not a lot more.
[00:38:25] Aime Dempsey: They don't tend to… the side rejecting the offer doesn't tend to go into a lot of detail about the strengths and weaknesses of their case or those kinds of things.
[00:38:37] Sierra Hennessy: And Adam, we see in all of these movie scenes that the parties are having settlement discussions in person with only the attorneys present.
[00:38:44] Sierra Hennessy: Is this typical or are there other methods through which parties might reach a settlement?
[00:38:48] Adam Paine: Settlement communications can take all forms, whether it's exchanging formal correspondence and letters that, like Amy said, are going to highlight all of the relative strengths of a party's case, all of the facts and evidence and case law that's lining up in favor of their position and before putting forth their settlement position.
[00:39:08] Adam Paine: Communications can happen between lawyers over the phone or in person or between all parties, in person, or now virtually in alternate dispute resolution forums like mediation, where a judge or other neutral can weigh in on the party's cases and steer them towards a mutually beneficial resolution.
[00:39:31] Adam Paine: Jumping back to the timing of the settlement, when it occurs in the case lifecycle, regardless of when it occurs settlement is the one opportunity the litigants have, the last opportunity the litigants have to control all aspects of the outcome before handing it over to the judge or jury. So they can include monetary or non-monetary factors and really control all terms of the resolution, and it gives them the opportunity to craft something that works practically or from a business sense for all parties involved.
[00:40:00] Sierra Hennessy: So that brings me to my closing questions. After watching all of these movie clips and TV show clips depicting the different stages of litigation, what is one takeaway that an individual or company going through a lawsuit for the first time should keep in mind? Adam, I'll come to you first.
[00:40:16] Adam Paine: Sure. I think picking the right lawyer who's going to be able to communicate the facts, the law, the strengths, the weaknesses of your case, just like in Bridge of Spies, having that lawyer who was speaking frankly with him from day one is a critical decision, and it's going to guide and inform every decision through discovery, motion, practice, trial, and settlement that a party in litigation is going to have.
[00:40:42] Sierra Hennessy: Aime, what are your thoughts?
[00:40:43] Aime Dempsey: A lot of movies show dramatic aspects of the trial process itself. I think there's a portion of trial in every episode of Law and Order, for example. But what we've tried to show here is that there are a lot of aspects of litigation that occur before trial. Some of them can be dramatic, and some of them as depicted in movies and television shows, while not quite accurate, have a nugget of truth and accuracy to them.
[00:41:18] Aime Dempsey: So the best thing for a litigant to do is to be patient through the kind of long period before trial. Try to be clear about your goals so that you can get to a good settlement after you've chosen a good attorney, like Adam said. And be upfront with your counsel.
[00:41:34] Sierra Hennessy: Well, thank you Aime and Adam for joining me today, and thank you so much to our audience for listening.
[00:41:39] Sierra Hennessy: Please make sure you subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts.
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No business likes litigation. Lawsuits and trials can be stressful, unpredictable, and often confounding—even for battle-scarred business leaders. But they’re something almost every business must confront. The Speaking of Litigation® video podcast pulls back the curtain for an inside look at the various stages of litigation and the key strategic issues businesses face along the way. Knowledge is power, and this show empowers executives and in-house counsel to make better decisions before, during, and after disputes. Subscribe to Speaking of Litigation® for a steady flow of practical, thought-provoking insights about litigation from Epstein Becker Green litigators.
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