Every Young Trial Lawyer Needs To Watch My Cousin Vinny
Back when I took Evidence at the Beasley School of Law at Temple University, Professor JoAnne Epps (now Dean Epps) told us that, of all the movies about the law and about trials, there was only one movie we had to watch: My Cousin Vinny.
I’ve always thought To Kill A Mockingbird is a better movie. 12 Angry Men is a better drama. Paul Newman was more compelling in The Verdict. Anatomy of a Murder has more evocative twists and turns. And I have a soft corner for A Civil Action and Erin Brockovich (and I’m sure I’d think the same of Puncture), even if they’re not truly great movies, because they’re sympathetic to my line of work.
But there’s a reason Dean Epps mentioned it in our Evidence class: nothing compares to My Cousin Vinny when it comes to portraying the reality of trial. So, when I heard Abnormal Use was hosting a 20th anniversary celebration of the film, I had to join in.
My Cousin Vinny is a farce but, as New York Times film critic Vincent Canby noted, “the film has a secure and sophisticated sense of what makes farce so delicious.” That “secure and sophisticated sense” allows it to take the reality of trials — the reality of limited budgets, limited preparation, impatient judges, hostile experts, ruined dress suits, hopelessly mangled questions, completely fruitless arguments, and of real life constantly intruding — and mold it into a comedy.
The movie is close to reality even in its details. Part of why the film has such staying power among lawyers is because, unlike, say, A Few Good Men, everything that happens in the movie could happen — and often does happen — at trial. Every trial lawyer winces when they hear the Sheriff read back deadpan the police narrative where Bill inadvertently confesses “I shot the clerk,” without a hint of Bill’s actual intonation and surprise: “I shot the clerk?!”
Every trial lawyer also swells with pride watching the “magic grits” cross examination, recalling their own times when they set up a key witness for the other side to admit indisputable facts, concluding the cross-examination with an unrelenting demand that the witness admit to the court that they’re no longer confident about their testimony. And, like with the “magic grits,” for many trial lawyers their best ideas for cross-examinations only occur to them while eating breakfast that very morning.
After graduating from Temple Law, I returned for the Academy of Advocacy, which felt very much like My Cousin Vinny. We had little time to prepare, almost no knowledge of the case, and then each day we walked into so that far more experienced lawyers and judges could run circles around us. It’s not a good feeling to have, but it’s an important one. Young trial lawyers without much trial experience owe it to themselves to watch My Cousin Vinny, for the reasons raised by Professor Alberto Bernabe:
After Vinny’s girlfriend Mona Lisa bails him out for a second time after having been found in contempt, she criticizes his performance in court and tells him it is pretty clear he does not know what he is doing. She then utters one of my favorite lines in the movie: “Don’t they teach you that in law school?” Vinny’s response is just as classic: “NO! They teach you Contracts…! Obviously, the implication is that in law school they teach “law” not “how to practice law”.
… Vinny is terrible at the things we do teach in law school, but very good at the things we don’t.
Although Vinny is certainly no role model when it comes to knowledge of the law, legal analysis and ethical behavior, law students could learn from him as to how to use legal thinking in the complexity of actual law practice. Vinny needed to learn legal analysis, that which law schools are best equipped to teach, while many of today’s graduates need Vinny’s inherent ability to interview clients, to gather facts, to prepare a theory of a case, to negotiate, to know when to ask a question and when to remain quiet, to cross examine a witness forcefully (but with charm) in order to expose the weaknesses in their testimony and so on.
Let me give you a concrete example. Recently, I was at a deposition in a large federal case involving multiple fatalities and multiple defendants. There were over a dozen lawyers in the room, including two faculty members of the Academy of Advocacy. The deposition was being taken by one of the more prominent trial lawyers in the area, and the witness was being defended by one of the more prominent defense lawyers. Each of the lawyers has probably over 50 permanent injury / death cases trial to verdict and over 1,000 depositions experience.
A conflict arose over a question, with the defense lawyer instructing the witness not to answer a question about his opinion on one of his employer’s safety procedures. The plaintiff’s lawyer said, “do you want me to call the judge?,” the defense lawyer accepted the challenge, and they got the judge on the phone.
Can anyone guess what happened next? If you read my post on deposition coaching, you wouldn’t have to guess. It says it right there in Fed. R. Civ. P. 30(c)(2): “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).”
Neither of these prominent, experienced trial lawyers knew that. When the judge got on the phone, the judge — who has been practicing law for over fifty years, and has been a judge for more than a quarter century — said that, in the old days, lawyers used to stop depositions all the time, but he had just learned recently that, under Rule 30(c)(2), the deposition could only be stopped “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3),” and it didn’t seem the defense lawyer was prepared to do that. “No, Your Honor,” said the defense lawyer, and we all continued.
The smartass in me was quite pleased to know the Rules of Federal Procedure better than the two pre-eminent trial lawyers.
So what? You don’t become a great trial lawyer by being a smartass who has memorized the rules.
You become a trial lawyer by having, as Professor Bernabe describes it, “Vinny’s inherent ability to interview clients, to gather facts, to prepare a theory of a case, to negotiate, to know when to ask a question and when to remain quiet, to cross examine a witness forcefully (but with charm).” If there’s one theme I’ve tried to hammer home to new trial lawyers with this blog, it’s that lawyers don’t prevail by coming up with great ideas; they prevail by coming up with ideas that convince others.
And so it is with Vinny Gambini. You of course should know the law and the rules (e.g., it should not have taken Vinny so long to request the prosecutor’s file), but that’s just one part of the process, and sometimes it’s the less important part.
I would end this post there, but there’s another element to the film that rings true that I can’t help but mention. In Abnormal Use’s interview with the director, Jonathan Lynn, Lynn notes one of the aspects of My Cousin Vinny that struck me:
[T]here aren’t any bad guys in the film. Most films seem to have a corrupt judge or a corrupt prosecutor or there’s somebody who’s a bad guy. There are no bad guys in Vinny. . . . [W]e think that a film has to have, in film jargon, a protagonist and an antagonist – the antagonist being the bad guy. It’s a fact that it would be possible for someone to be convicted of a capital crime when they’re not guilty. But the judge is not corrupt. He’s very correct and a little straight-laced, but he’s not a bad guy. He’s fair. The prosecutor is more than fair. Nobody’s doing anything wrong.
On the one hand, this makes the film more human, believable, and funny, but on the other hand it makes the film deeply unsettling. The antagonist here is the uncertainty of justice in our court system, even when the cops, prosecutors, and judges are all well-intentioned. What if Bill didn’t have a cousin with the raw talent of a great trial lawyer? What if the prosecutor hadn’t turned over the complete file? What if the judge had been unimpressed with Mona Lisa’s qualifications and had precluded Vinny from calling her as an expert witness? What if the real killers hadn’t left skid marks, and so there wasn’t any forensic evidence at all to disprove the prosecution theory? What if the eyewitnesses, so sure of the defendants’ guilt, had consciously or unconsciously shaded their testimony and refused to admit the possibility of error?
My Cousin Vinny may be a comedy, but it raises even more questions about the fragility of the American justice system than even 12 Angry Men, precisely because there is no obvious enemy, no hatred or bigotry, that puts the defendants in jeopardy. They were simply in the wrong place at the wrong time in the wrong car. Wouldn’t have been the first time innocent men went to jail.