Hunter, Robert M

English

Journal of Legal Education (Association of American Law Schools)

MOTION PICTURES AND PRACTICE COURT,ROBERT M. HUNTER *The difficulties which the writer has experienced in endeavoring to makepractice court work interesting and realistic are probably similar to thosefound by others. For a number of years reliance was placed upon the useof printed records of cases which had been carried to the state SupremeCourt. The student attorneys for the plaintiff were given the portion of therecord which contained the plaintiff's evidence in the actual case. The at-torneys for the defendant received the portion containing the defendant'sevidence. Pleadings were drafted on the basis of the facts so disclosed,without access to the pleadings which had been used in the actual case. Theattorneys gave the printed testimony of each witness to some classmate,who was expected to familiarize himself with it and to testify accordingly.There were two chief shortcomings in this method: (1) too little oppor-tunity was given to the attorneys to develop their cases according to theirown ideas; the attorneys in the actual case had established a mold intowhich the practice court case was poured; (2) student witnesses frequentlyfailed to give a forceful presentation of stories which they had memorizedor failed to memorize.From time to time attempts were made to create incidents which wouldresult in practice court cases. It has been practically impossible to stagesuch incident in a manner sufficiently realistic to make the proceedings worthwhile. The manufacture of situations and facts so as to bring about litiga-tion is so contrary to actual experience as to offer little aid in training stu-dents for conducting real litigation.For the past several years almost complete reliance has been placed upona technique involving current motion pictures. The practice court work ispart of a course in Ohio Court Practice which all third-year students arerequired to take. It extends over two quarters in the regular school year,and over both terms of the summer session. In the first quarter, casesand materials in Ohio trial practice are covered in the orthodox casebookfashion. The second quarter is devoted to the practice court. Two stu-dents are named attorneys for the plaintiff and two for the defendant in.each case.Columbus has nearly fifty motion picture theatres, all but three beingsubsequent-run houses, scattered throughout the city. The Sunday paperslist the pictures which are to be shown in all theatres during the week. Theinstructor goes to see pictures, making his selection from the weekly listand taking into account the possibility of witnesses' seeing the picture at thesame theatre or others, if it proves to be usable. Considerable help in theprocess of selection is obtained from a weekly publication of Fox WestCoast Theatres, which is called "Unbiased Opinions of Current Motion Pic-tures." The brief descriptions which are to be found in this publicationmake possible the elimination of many pictures as entirely useless for the* Professor of Law, Ohio State University.1 426LAW SCHOOL DEVELOPMENTSpurpose at hand. While seeing a picture the instructor takes notes of- allnames, addresses, and dates shown on the screen. With these notes, andthe story of the picture in mind, an effort is made to find an incident whichmight have resulted in litigation if the characters involved had seen fit toengage in it. Criminal cases are seldom used because of the practical diffi-culty of adhering to rules of criminal procedure and at the same time giv-ing each side a fair opportunity of getting a verdict.The instructor selects four student attorneys, none of whom has seenthe particular picture. They are given, in considerable detail, the story andthe names, dates, and addresses as taken down by the instructor. Theparticular incident and type of action are suggested. Each pair of attorneysis then expected to have witnesses see the picture and be prepared to testifyas the screen characters might in real life. The attorneys are cautioned torefrain from seeing the picture until after the trial. If the attorneys, aftertheir witnesses have seen the picture and reported to them, decide to changethe character of the proposed action, they are permitted to do so if an in-justice is not done to opposing counsel.A petition, in form comparable to that used in the Ohio common pleascourts, is prepared and filed. When a praecipe for summons is filed it isassumed that service is obtained. The defendant's attorneys plead by mo-tion, demurrer, or answer, and when questions of proper pleading have beendisposed of the case is ready for trial.A pre-trial conference is held two days before the date of trial. Stipula-tions are obtained and many time-consuming factors are eliminated. Eachparty's counsel is required to file with the instructor, who acts as trial judge,a trial brief on the day before the trial.The trials are scheduled for afternoons, commencing at one o'clock andcontinuing until the jury has returned a verdict, usually between five andsix. Each first-year law student is required to serve on at least one jury.When it is explained to the first-year students that this experience can bequite valuable to them as attorneys-to-be, and that it will be the nearest ap-proach to actual jury service they are likely to get, they usually welcomethe opportunity. In the summer term, when first-year law students are notavailable in sufficient numbers, jurors are recruited from other colleges onthe campus.After the jury has returned its verdict the members are requested toremain in the jury box for a short time and to answer questions which theattorneys and the judge ask concerning their deliberations. Jurors arerequested to be frank in criticizing the attorneys, and in suggesting good andbad points in their respective presentations and general conduct throughoutthe trial. The instructor-judge supplements this with such criticism ashe deems advisable.Motions for judgment notwithstanding the verdict and/or for new trialare filed, argued, and disposed of. Even though a new trial is orderedonly one trial is had.In the dozen or more years in which the motion picture technique hasbeen used, a great variety of cases has resulted. In recent years murderpictules have become so common that resort has been had to types of civilactions not formerly used. At the present time cases are being prepared1 Joi.rRnAL or LEGAL EDl.No.3--719491JOURNAL OF LEGAL EDUCATIONwhich are based upon life insurance policies assumed to have been issuedto characters in "Pitfall" and "Apartment for Peggy." In the former aman was shot and killed while leaving the home of the hero, whom he hadcome to kill but who induced him to abandon the idea. Will the beneficiaryof his policy be able to recover from the insurance company in spite of thedefense that he met his death while in the commission of a crime?In "Apartment for Peggy," a retired college professor befriends a G. I.student and his wife who are caught in the housing shortage. He allowsthem to turn his attic into an apartment and everybody is happy for a time.When things get bad the old professor takes a big dose of what he mistakenlythinks are sleeping capsules. He is forced by others to' drink sixteen cupsof coffee and finally pulls through. For the purposes of the case it is as-sumed that he took a life insurance policy naming the young woman asbeneficiary. This was done at a time when he had abandoned the idea ofsuicide which the picture indicates he had formed before meeting her. Itis also assumed that he died, not as a direct result of the sleeping capsules,which alone would not have caused death, but by being forced to drink theenormous quantity of coffee when his heart was not in perfect condition.Will the suicide defense be successful?In a case based upon the picture "The Velvet Touch," an actress is beingsued for damages by the producer of a play. She permitted him to incurproduction expenses at a time when she was aware of the imminence ofher arrest for the murder of another producer, whose star and mistress shehad been.In "Shed No Tears," an insurance company pays $50,000, the amountof a life policy, to the wife of the insured, who is alleged to be dead. Heis actually alive, surprises his wife and her paramour, and kills the latter.He forces the wife to give him half the insurance money and is shot by herwhen she learns that he has killed her lover. She is accidentally killed beforethe death of the husband, who lives a short time after being shot. It is as-sumed that the policy, with a double indemnity provision, was purchased ingood faith and that the plot to defraud the company came later. May thecompany recover the full amount of the payment, including that part nowheld by the son of the insured, who is administrator of his father's estateand the alternative beneficiary in the policy?In "Ruthless," a young boy saves a little girl from drowning. He needsa home and her family gives him one, and makes it possible for him to gothrough high school. After selling insurance for a couple of years he hasa strong desire to go to college. The girl lets him know that she loves himand they become engaged. Her father borrows the money to finance hiseducation at Harvard. As a swimming star he comes to the attention ofa wealthy girl. She is in a position to help him get started with a New Yorkbrokerage firm. He breaks his engagement to the first girl and goes to NewYork. The facts that she owed her life to him and that she had taken theinitiative in causing the engagement give the defendant some chance of get-ting a yerdict in the breach of promise suit which has been brought.In "Bodyguard" a detective has his new automobile demolished as theresult of plot to have him blamed for a murder. There is some evidence1 JOURNAL OF LEGaL ED.NO.3[VOL. I428LAW SCHOOL DEVELOPMENTSlinking a meat-packing corporation with the plot and with the destructionof the car. He is suing the corporation for damages.Each member of the class is required to prepare a written report of anactual case which he-has seen tried in the common pleas court. The reportmust be filed before the trial of the case in which he is acting as one ofthe attorneys. In previous years there has been a tendency for studentsto rely upon observation of other students in preparing for their own trials.It is believed that they will profit from being required to watch experiencedlawyers in an actual trial.The requirement that a student sit through a trial and report on it hasanother objective. It is hoped that students will be interested in continu-ing a study which was originated in 1935 and not carried further. Twomembers of the law faculty observed the trials of twenty-five civil jury cases,and interviewed the jurors to ascertain, if possible, the real basis for theverdict in each case.'As has been mentioned, the pre-trial conference is a feature of thepractice court, and students are given some indication of its advantagesand disadvantages. Pre-trial procedure is used in six or eight countiesof the eighty-eight in Ohio, but not in Franklin County, of which Columbusis the county seat. A by-product of the assignment to watch an actual trialhas been the selling of the students on the advantages of pre-trial procedure.Nearly every student has experienced inconvenience as a result of the delaysincident to negotiations for settlement after cases have been set up for trial.Parties, witnesses, jurors, and observers cool their heels while the lawyersdicker. Frequently a settlement is reached and delay is experienced whileanother case is being readied for trial. The same negotiation and delay mayalso result in the second case. It is believed that ample demonstration ofthe disadvantages of not having pre-trial procedure is provided for themembers of the class.The most valid objection which may be made to the use of current mo-tion pictures for practice court cases concerns the burden which it placesupon the instructor. It is practically essential that he shall have seen thepicture before assigning it as the basis for a case. It is not very difficultto find incidents in which a plaintiff or a defendant would have a sure-fireaction or defense. The difficulty lies in finding an incident which affords aplausible basis for an action, and which does not give one party a distinctadvantage over the other. To find a sufficient number of such incidentsnecessitates the witnessing of a very large number of motion pictures.Under the pressure of getting cases, going to the movies becomes a burden-some chore, and the instructor takes a complete vacation from them whenthe last case has been assigned-until another class brings on a renewal ofthe pressure.If other practice court instructors are using this device, or desire to doso in the future, an exchange of ideas would be helpful. A postal cardcalling attention to a good litigious incident in a current picture would bea boon to a man who is wasting time and money seeing pictures which arenot inaccurately alluded to as "Stinkeroos."I The study was reported In Hunter, Law in the Jury Room, 2 OHio ST.L.J. 1(1935-36). Reference to it will be found in Rossman, The Judge-Jury Relationwhipin the State Courts, 3 F.R.D. 98, 108 (1944). •1949]

Motion Pictures and Practice Court

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Motion Pictures and Practice Court

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Journal of Legal Education (Association of American Law Schools)