Justice and Fiction 101 By Professor Lisa Justice and lawyers pervade our popular culture in books, TV, and movies, and the inspiration for my new book, Dirty Blonde, came from my interest in the intersection between justice and fiction. I've gotten so interested in this subject that I developed and now teach a course entitled Justice and Fiction, as an adjunct professor at the University of Pennsylvania Law School. The following is a general overview of justice and fiction, and gives context to the development of the modern legal thriller. The analysis is a contemporary one, beginning with fiction circa 1950, because, let's face it, who wants to read Bleak House? Justice, as dramatized in post-war books, TV, and film, used to be confined to a courtroom. Legal thrillers were synonymous with courtroom thrillers, and the courtrooms served as stages for skilled criminal lawyers, who shouted objections and reduced witnesses to tears. The era was quiet and complacent, with only the babies booming, and the stories were accordingly "small," in that they usually concerned a murder trial, with no overarching social or political theme. The hallmark of this era was the Perry Mason series by Erle Stanley Gardner (1958), which were made into an enormously popular TV show starring Raymond Burr. Erle Stanley Gardner was a trial lawyer, and his character reflected an insider's understanding of the courtroom. Perry Mason was smart, upstanding, and tough; the law was just and fair. Mason usually got an innocent man acquitted, and justice triumphed because of his savvy lawyering, not to mention investigative work by Ken-doll Paul Drake. The only woman around was his secretary, Della Street, who was obviously underpaid. Also typical of this sort of courtroom thriller was the Anatomy of a Murder, by Robert Traver (1958), which is a pseudonym for a Michigan judge. The novel was also made into a movie starring James Stewart, and in it a small-town fisherman/lawyer defends a soldier accused of murdering a man who had raped his wife. See also Witness for The Prosecution (1957)(film; English solicitor defends husband on murder case). Fictional views of justice changed with the times and the law itself. The formerly "small" stories exploded in scope when the civil rights movement began, ignited by Brown v. Board of Education (U.S. 1954), in which the Supreme Court declared unconstitutional the doctrine of "separate but equal" schools. The stakes ratcheted up to bigger constitutional issues, such as equal justice under the law and due process, and the law was seen as a way to achieve justice for minorities and the downtrodden. Accordingly, the fictional lawyer grew to heroic stature. Think of it as the Golden Age, with a J.D. To Kill a Mockingbird, by Harper Lee (1960) was the paradigm. Lee, a lawyer herself, was also the daughter of a country lawyer, and it's impossible not to see her admiration for the profession embodied in Atticus Finch, played by Gregory Peck in the subsequent movie. Finch was a well-mannered country lawyer, but he was a good father, too, and he still managed to fight for justice, defending an innocent black man in a town marked by virulent racism. See also, Inherit The Wind (1960)(film; hero lawyer defends a teacher accused of teaching evolution in a Fundamentalist town; fictionalized Scopes trial); Judgment at Nuremberg (1961)(film; hero judge presides over the Nuremberg trials of four German judges accused of war crimes during Nazism); Gideon's Trumpet by Anthony Lewis (1964)(indigent's letter to the Supreme Court leads to a case guaranteeing the right to appointed counsel). The sixties was a time of social upheaval, with the Vietnam War accelerating and being protested around the country, leading to a general distrust of government and authority. The decade was revolutionary in the law as well, and most notably, in 1966, the Supreme Court decided Miranda v. Arizona, reversing the conviction of Ernesto Miranda on kidnapping and rape charges, because the defendant had confessed to the crimes without being told that he had a right to a lawyer. The Supreme Court held that the prosecution may not use statements made by a person in police custody unless procedural safeguards were in place, in what would later be called the "Miranda warnings." (Eventually, Miranda was retried and convicted without use of his confession, but by that time the police, and the public, had learned a bitter lesson.) Miranda was one of the most controversial decisions of the Warren Court, serving as a reality check for the public. Justice had generally been understood to mean that the guilty party goes to jail, but the Miranda decision would set free a confessed rapist. The public wondered, what is justice if a guilty man goes free because of a technicality? Suddenly, the law wasn't seen as the way to do justice, and law and justice weren't one and the same anymore. (By the way, it wasn't the first time this dichotomy had been raised. A writer named William Shakespeare remarked the distinction between law and justice in "The Merchant of Venice," in which Shylock demanded the pound of flesh to which he was contractually entitled, until a cross-dressing Portia intervened in the name of justice. Shakespeare got a movie deal, and in the most recent version, Shylock was played by Al Pacino. I mention this for a reason. As you will see, justice and fiction owe everything to Al Pacino.) The Vietnam War and the Miranda decision not only drove a wedge into our national beliefs about authority, justice, and law, but they also turned upside-down our understanding of who were the good guys and who the bad, in fiction. If the rapist walked and the police were admonished, then the world has gone topsy-turvy and it's no accident that on the heels of Miranda follows Michael Corleone. The Godfather, by Mario Puzo, was first published in June 1, 1969, and then made into the trilogy, The Godfather (1972), Part II (1974), and III (1990), starring (who else) my new boyfriend, Al Pacino. Not since Paradise Lost had Satan been so interesting, and the popular culture rushed to embrace Mafia family values, in which the killers were the heroes. Michael Corleone was the target of assassins throughout three movies, and the audience never wanted him to get shot. And where had all the lawyers gone? The only lawyers in the Corleone family were consiglieri, which is Italian for co-conspirator. As played by Robert Duvall, attorney Tom Hagan advised the family in its crimes and illegal businesses; he even witnessed murder. In the world of The Godfather, not only the lawyers, but all authority - the judges, mayors, and cops - are crooked. We had come a long way from Atticus Finch, and the law was marginalized, too. Justice was dispensed by Marlon Brando and his catchphrase, "I'll make him an offer he can't refuse." It didn't help that about the same time, in June 1971, the Pentagon Papers, the Defense Department's covert history of the Vietnam War, were published, driving a deeper wedge into public confidence in government. And if that weren't enough, almost a year to the day later, a crew of burglars broke into the Watergate hotel in Washington, D.C., launching a constitutional crisis that would bring down a sitting president - and an attorney general, a White House Counsel, and an array of other powerful lawyers. In the new topsy-turvy world, the very people charged with enforcing justice were convicted of its obstruction. At the same time, lawyer advertising increased on TV, radio, and newspapers, bringing the image of lawyers too far down to earth that it was almost buried. When the Supreme Court decided Bates v. State Bar of Arizona (1977), holding that attorney advertising was a form of commercial speech entitled to First Amendment protection, it threw open the airwaves for the 1-800-WANNA-SU ads we know and love. It should come as no surprise, then, that fiction reflected a new cynicism about justice and lawyers. In the film, And Justice for All (1979), attorney Arthur Kirkland, played by Al You-Know-Who, represents a judge charged with rape - the very personification of justice turned on its head. In the meantime, in another one of Kirkland's cases, he lost to suicide a client who had been in prison "on a technicality," and his law partner went crazy because a murderer he got acquitted "on a technicality" killed again. After the corrupt judge admitted to Kirkland that he was guilty, the disillusioned lawyer struck a blow for justice when he blew the judge's cover and told the jury that his client was guilty. Then things go from bad to worse, for the portrayal of lawyers and justice in fiction. As lawyers were increasingly seen as fallible, if not felonious, the scene shifted from courtroom to law firm and home life. The characterization of lawyers deepened and they were more fully-realized, but the portrayals were rarely flattering. The TV series L.A. Law, by Steven Bochco, debuted in 1986 and starred a cabal of a law firm. Lawyer jokes got told around the water cooler (this was before email, and you weren't born yet), and books and movies followed (three-piece) suit. Mercenary, flawed, or arrogant lawyers appeared as main characters, anti-heroes like Mitch McDeere in The Firm, by John Grisham (1991). Mitch, played by Tom Cruise in the film, is a rookie associate who joins a law firm that murders anyone who tries to leave. (The only law firm more evil would come later, in "The Devil's Advocate" (1998), in which the named partner is Satan himself. Played by our favorite jurisprude, Al Pacino.) The eighties and nineties almost righted the balance, with fictional justice redeemed by flawed but realistic lawyers who, as my kid used to say, "turn good in the end." The best examples are the following books, which were also made into movies, so that they both captured - and popularized - a certain image of justice and lawyers: Verdict, by Barry Reed (1980)(alcoholic lawyer brings a med mal case and saves his own soul); Presumed Innocent, by Scott Turow (1987)(adulterous lawyer acquitted of mistress's murder); A Few Good Men (1992)(too-cool-for-school JAG lawyer defends two Marines on murder charge and takes on Jack "You Can't Handle the Truth" Nicholson); A Time To Kill, by John Grisham (1992)(vain lawyer fights for African-American father who killed men who raped his child); Philadelphia (1993)(homophobic lawyer who represents an HIV-positive gay lawyer who sues law firm; film); A Civil Action, by Jonathan Harr (1995)(greedy lawyer defends Massachusetts town from toxic torts; non-fiction); Sleepers, by Lorenzo Carcaterra (1995)(lawyer manipulates trial to convict defendant who molested him and his friends). And, in more recent years, the lawyer jokes lost their heavy-handed edge and got lighter and funnier. See My Cousin Vinny (1992)(fish-outta-water Italian lawyer defends cousin on murder charge); Liar, Liar (1999)(selfish lawyer cannot get through day without lying); Legally Blonde (2001)(ditzy blond lawyer gets acquittal based on hair expertise). It's a happy ending. And finally, as the number of women and minority lawyers increased in law schools and the profession, the popular culture began to reflect a more diverse fictional bar. My first suspense novel, Everywhere That Mary Went, was published in 1994, starring Mary DiNunzio, a young Italian-American lawyer from Philadelphia (hey, write what you know), and I was among the first women to make the lawyer-to-author transition, along with Carolyn Wheat and Lia Matera. The first female lawyer starred on TV not long after, with the 1997 debut of Ally McBeal, who became the longest-running girl lawyer, even if she was no distaff Perry Mason. Created by David E. Kelley, a former trial lawyer himself, Ally was smart but insecure, in and out of the courtroom. She lamented her lack of a social life and she needed emergency lasagna. Her skirts were too short, but she was funny and watchable. We await the next woman-lawyer star on TV, sometime in the third millennium. And more recently, in 2002, Stephen Carter, an African American professor at Yale Law School who has written non-fiction about important societal issues, brought his own perspective to justice in fiction, in The Emperor of Ocean Park, which tells the story of Talcott Garland, a law professor who investigates his father's murder. Still, more diversity is needed. We see new evidence, on almost a daily basis, that people from all strata of society and ethnic backgrounds experience our system of civil and criminal justice differently, and in my view, those voices should tell their stories, because both law and fiction will benefit. It may just happen. Our fascination with justice is at an all-time high, with Law & Order on a continuous loop, and the legal thriller most recently expanding, expressing a view of justice that is, appropriately, in grayscale. The characterization of lawyers has become even better and more real, so that it becomes almost beside the point, for fictional purposes, that the characters are lawyers at all. This is more in keeping with current society, in which all of us are less defined by our work than we used to be, now that we have more than one type of job over a lifetime and the conventional office has broken down, with flex-time, tele-commuting, or working from home. Not only lawyers, but lots of different types of people are interested in justice. Thinking, caring, smart people. The kind of people I write books for. You. But so what? Does the way justice is portrayed in fiction matter, other than the fact that I like to think about it? In my view, the portrayal of fictional justice and lawyers has serious implications for the legal profession, the popular culture, and our democracy as a whole. For instance, how does it affect a society to learn its criminal law from Boston Legal? What effect does it have on law students and lawyers, and their expectations of real-life practice? How does it affect potential jurors, if at all, what are the long-term implications if it does? If we have only a fictional understanding of justice and the law, what happens in the voting booth? Conversely, fiction has an impact on the law itself. For example, it isn't unusual for TV shows to be evidence in criminal trials, i.e., the defense's use on appeal of a Law & Order episode to impeach an expert's testimony in the Andrea Yates' trial, leading to the overturning of her conviction for the triple murder of her children. Is this a good thing, or terrible? What about those crimes in which the defense is that the accused "got the idea" from a movie, a TV show, or a video game (they never say they got it from a book, so maybe kids should read more). Why does justice make great entertainment? And why are there still so few women lawyers on TV and movies? I've been thinking about these questions for over thirteen books now, and am slowly inching my way to answers. Stay tuned for the next installment. And feel free to let me have your thoughts on all of this, or anything else. I love to hear from you, and appreciate your support, friendship, and loyalty. All best for the holidays, L.