The original post for this episode can be found here.
John August: Hello and welcome. My name is John August.
Craig Mazin: Oh. Oh. My name is Craig Mazin.
John: And you’re listening to Episode 638 of Scriptnotes, a podcast about screenwriting and things that are interesting to screenwriters. Today on the show, you can’t handle the truth.
Craig: You can’t handle the truth!
John: We’ll be talking about lawyer scenes in movies and television with an actual criminal defense attorney, to separate the tropes from the truth. And in our Bonus Segment for Premium Members, Craig, beach vacations. Is there anything better or anything worse?
Craig: Everything is better. Literally everything.
John: I’m with you there. We’re going to have to find some other third party to argue for beach vacations.
Craig: I don’t know if we have the right guy for that, be honest with you.
John: We’ll see. First, Craig, we have some important follow-up here about a mistake that you made. The great Julia Turner herself wrote in to say:
Drew Marquardt: “As your self-appointed chief journalist correspondent, I am obligated to write in to tell you that Stephen Glass published his fabulism in The New Republic, not The New Yorker. That is how his articles made it through The New Yorker’s vaunted fact-checking process, which in fact, they didn’t.”
Craig: God, I feel terrible. Confession time. My entire life, I panic whenever I have to reference The New Republic, The New Yorker, or New York Magazine.
John: 100 percent.
Craig: New Yorker is special. New Republic is also quite special. New York Magazine is not that special. But I panic every time. And I blew it here. And I blew it in the dumbest way, because I made a mistake, a fact-checking mistake about a fact-checking story where a guy was making stuff up. So thank you, Julia, for correcting me. And my deepest apologies to the folks at New Yorker, who have always been very nice to me. And what did I do? I rewarded them by trying to hang Stephen Glass around their neck. I’m sorry about that. It was The New Republic. Craig is shamed.
John: Julia also sent through this link about this article that Hanna Rosin wrote. Hanna Rosin was a contemporary of Stephen Glass working at The New Republic. When the whole thing outbroke, she felt blindsided and betrayed. But in this follow-up article, she goes to Los Angeles to meet with him and see what he’s done with his life. And she finds him as he’s trying to get the California Bar to let him become a lawyer. And so it’s all the drama surrounding that. We’ll put a link in the show notes to this really good article by Hanna Rosin that also ties into our main theme here, which is what does it mean to be a lawyer and what does the law include.
Craig: We should probably get a lawyer to discuss that.
John: Yeah, we should. I have the perfect person for us.
Craig: Oh, do you?
John: Ken White is a defense attorney and a former federal prosecutor, whose expertise includes criminal justice, free speech rights, and the intricacies of the legal system. He’s got this knack for demystifying complex legal topics, which we can witness each week on his podcast, Serious Trouble, which you should definitely subscribe to. Craig, you and I and many people may already follow him on social media, because he’s @popehat, or read his blog posts at popehat.com.
Craig: And Ken and I have known each other I think before the existence of podcasts.
John: Wow.
Craig: It’s going on, what, 21 years or something like that now. Welcome, Ken White.
Ken White: Thank you very much, guys. I’m very happy to be here.
John: Ken, can you talk us through, what do you mostly do in your days? I see you on social media. You’re writing stuff. You’re doing your podcast. But what is your actual day job? Who are you representing?
Ken: I have a practice. It includes criminal defense, in both state and federal courts, and a lot of eclectic civil cases. I really love First Amendment stuff, but I take on all sorts of other civil cases. It’s everything from plaintiffs to defendants, all sorts of subject areas, a lot of stuff.
But to answer your question, what do I do, it’s mostly paperwork. The demystifying, there’s a whole lot of paperwork of various kinds, and then there’s supervising other people doing paperwork and editing their paperwork. Then there’s asking the client to give you paperwork and then saying, “No, that’s not right. Do it again.” Then there’s arguing about paperwork in front of the judge. It’s not a job for someone who really wants the outdoors. You can be a trial lawyer, but even trial lawyers spend a lot of time not actually in court doing exciting things.
Craig: I gotta be honest. You were mentioning just before we started that you’re about to go into a trial. I have lots of friends who are attorneys. Trials seem like these things that sometimes occasionally happen, but most of the time it’s like watching baseball. Every now and again, something happens, but it’s a lot of stuff in between. That is the athletic version of paperwork. Our understanding, in Hollywood at least, of how this all works, I don’t recall seeing a ton of paperwork scenes, John. Do you?
John: No. Actually, in Clueless, one of our favorite movies, there is a lot of paperwork. She comes in and she helps out with highlighting through the depositions or something.
Craig: Which is disturbing.
Ken: As a rule of thumb, for every minute that something dramatic is happening, you spent two hours, at least, preparing for it.
Craig: But at least those hours earn you money.
Ken: Sometimes, yes, that is true.
Craig: Sometimes.
John: Now, Ken, we’re gonna get into scenes in movies and television that involve lawyers and involve the law. But I’m curious, from your side, how much of your decision to become a lawyer was based on seeing it on screen? How much of your early impression of it and your interest in it came from seeing it on screen?
Ken: I think I started, I just wanted to be a lawyer because my dad was a lawyer and I admired him. He was a trust and estates lawyer for his whole career, and I definitely did not wind up doing that. That was my sense. Then yeah, stuff like LA Law, which was our era, and movies like To Kill A Mockingbird and things like that, those influenced it. But most of what I learned about what being a lawyer is actually like didn’t start happening until I had jobs in college or after law school.
John: One of the discussions that actually prompted having you come on this podcast was we were talking about Anatomy of a Fall this last year, which was such a great movie and is a French legal courtroom drama. Watching that movie as an American, you’re just going crazy, like, how are they allowed to do this? All these rules, things we’re expecting from the American system are just not happening there. As we get into lawyer scenes, I guess we should stress that we’re really talking about the realities of the U.S. legal system, because stuff’s gonna be different any place else. This is not necessarily gonna apply to our British listeners, our French listeners, our Australian listeners.
Craig: Noticeable lack of wigs. You don’t have to wear a wig, do you? It would be nice if you could, Ken.
Ken: No, I do not.
Craig: Dammit.
Ken: I’m going in bald these days. Here’s the thing though. Most dramatic presentations of the law are so far from reality that you might as well have them be commentary on law in France or Burkina Faso or whatever you want to choose, because the delta is not meaningful, because there’s such a huge difference between the way it really works and the way you make it work on screen.
Craig: It sounds like we’re nailing it over here in Hollywood is what Ken’s saying.
John: That’s what he’s saying is we’re being 100 percent accurate.
Ken: But I’m okay with that. The way I see it is, it’s an art form and it’s completely different than the medium it’s describing. It’s like if someone says, “How come the movie isn’t like my favorite book?” I understand, because it’s a different medium. The same thing is, if you’re gonna depict legal stuff, it’s a very different medium than a transcript, and so you’re gonna cut out all the horrible, soul-destroying parts.
John: But Ken, it must be somewhat frustrating when you encounter a new client who has an expectation of how this is all gonna go, having seen legal stuff from Hollywood all these years, and then you have to confront them with the reality of what it’s really gonna be like.
Ken: Yes, although often, the clients have a better sense by the time they get to me.
Craig: Because they’re recidivists or… ?
Ken: Sometimes, yeah. The people I represented when I was on the Indigent Defense Panel, people accused of drug crimes, violent crimes, immigration crimes in the federal system, who couldn’t afford a lawyer, they understood. They’d seen it before, and they didn’t have any illusions about it.
The way people tend to consume it based on what they’ve seen, it’s not so much they have these movie-style expectations about the way the case works. What you’ll find is privileged people, affluent people who went to college and grew up in a good neighborhood and have never been in the system before tend to experience the system as conspiratorial. They tend to think, “This criminal case they brought against me, someone must have it out for me. The DEA himself must have it out for me. There’s a conspiracy, because I cannot conceive of any other way that I would be treated like this,” whereas the guy I’m defending in his third bank robbery is, “Oh, this is exactly the way it works. I’m getting ground through the system again.”
It takes a while for people to realize that it’s not just that the courtroom isn’t exciting as it is on a 42-minute TV show, but that the process is a lot more Kafka-esque. And it’s hard to accept that this is the way they’re treating people all the time. In fact, they’re probably treating most people worse than you.
Craig: The lawyers that you run into, I’m guessing both working for the state or fellow defense attorneys, are probably nowhere near as interesting, flamboyant, explosive, tricky, articulate as the lawyers we’re seeing on television and movies, but perhaps are better served by their paperwork skills.
Ken: Let’s not leave attractive off that list.
Craig: Yes, of course.
Ken: Yeah, absolutely.
Craig: Just lots of Tom Cruises moving through the courtroom.
Ken: Exactly. Eight out of 10 criminal defense attorneys keep their court jacket in the trunk of their car and look like it. There are a lot of characters, actually. I find trial lawyers tend to be more character-ish than people who mostly do paperwork, just because you have to be, and the system guides you to be. There’s a lot more regular, “This is my job. Not every minute is on camera and funny or dramatic,” than you expect.
John: As you start talking through these tropes, I guess we’re gonna mostly focus on criminal stuff, but point out when there’s differences between how a criminal and civil case might work for these situations.
Let’s think about a classic start of any criminal trial or any criminal procedure is that this person has gotten arrested. One of the very first things we hear is the Miranda rights. “You have the right to remain silent.” Can you talk us through what the realities are of a person’s rights and what a person should be doing, what that person who is arrested should be doing versus what we see them doing in movies and television?
Craig: Can I make a prediction?
John: Please.
Craig: Ken is gonna say, “Don’t talk to the police.”
Ken: Yeah, but also don’t talk to the FBI.
Craig: Don’t talk to anyone, really.
Ken: A lot of my clients are white-collar accused people. They’re in a position where someone comes to the door, knocks, and says, “Hey, we’re from the FBI. We just have a few questions.” It’s not happening when they’re getting arrested. That’s true for most white-collar crime. You first find out there’s a problem when people start coming up to you and saying, “Hey,” the whole Columbo shtick, which is very accurate, by the way, the way Columbo would just be, “I just have this one question. You know this isn’t a big deal. Why would you be worried about me?” Totally law enforcement.
Law enforcement loves to put you at ease, make you think there’s nothing wrong here, you should just talk. But you shouldn’t. Whether you’re the guy who’s just got arrested a block away from a bank robbery that just happened or you’re the CFO of a publicly traded company whose stock has taken a nosedive and the SEC shows up at your door and they want to ask you a few questions just over coffee, both times you should shut up and talk to a lawyer, because you don’t know what’s going on. You don’t know your known. Unknowns are unknown unknowns. You probably don’t know the law. You may not even know if you’ve committed a crime. You probably don’t remember all the details of the things, because you haven’t immersed yourself in them yet. You have not looked through the emails or the documents or that type of thing.
Very little good can happen from you saying, “I need to talk to my lawyer.” The trick here is people think, “But if I do that, then they’re gonna arrest me,” or, “If I do that, they’re gonna be suspicious of me.” Possibly true, but the truth is, that reminds me of the argument, “I don’t want to wear a seat belt, because if I drive into a lake, I want to be able to get out easily.” It’s that kind of thinking. You’re protecting against something that’s a lot less of a risk when you’re saying, “I don’t want to make them mad.” The big risk is that they are incredibly good at getting you to say things that are against your best interest. Overwhelmingly, the best thing to do is to shut up.
Craig: That’s something that I didn’t know as a kid until a television show came along: NYPD Blue. That was the first time I had seen cops complain about people lawyering up. They basically were giving you a cheat code. All the cops ever complained about was the idea that somebody would lawyer up. “We gotta get in there and get this guy to talk before he lawyers up.” All I concluded – what else could I conclude from that show other than lawyer up?
Ken: That’s right. Actually, that’s an area where Hollywood and movies or TV gets remarkably close to the way it really is. All those depictions in all those shows of the box and you’ve got the perp in the box, you’re gonna sweat him, that is actually pretty realistic, all of the different techniques you see. There’s probably not quite as much violence anymore as you see portrayed. But pretending to be their friend, conning them into talking, all of that is absolutely classic. That’s what they do.
John: Now, at some point, Ken, you are brought in, and you are their lawyer. Can you talk us through that first meeting? Because I think that’s a very classic scene we’re also seeing is that first time the lawyer is talking with their client. The questions of, are you meeting them in prison or in jail? What is the boundaries of attorney-client privilege? How much can they feel free to say to you during those moments, even if they haven’t specifically hired you at that moment? That first meeting, what are the crucial things that we’re seeing or not seeing in scenes?
Ken: Sure. I’ve done all of those circumstances. I’ve met them the first time in jail. I’ve met them by the phone or Zoom, in person, all those things. If they are consulting me to consider hiring me, then our communications are privilege. I can’t reveal them. There are very few exceptions, one being if they’re currently controlling a bomb that’s about to go off, something on that level, they’re imminently about to commit a violent crime. Other than that, it’s completely privileged.
You obviously have to be very careful about your location. You don’t want to be talking in a crowded restaurant. You have to be careful who’s in the room with you, because that can disrupt the privilege if there are other people in the room with you. You don’t want to be someplace where you can be overheard.
But generally, my message is always, “Okay. I need you to tell me everything that happened. I need you to tell me the whole truth. We’re gonna start slow.” But that’s absolutely key. That’s controversial. You see this all the time in TV and movies. They say, “Don’t tell me what happened,” the implication being, “I want to be able to lie for you.”
There is a rule that as an attorney you can’t put anyone on the stand to lie. You cannot knowingly solicit perjury. If the client tells me, “I was in France,” I can’t put them on and instruct them to testify, “I was in Mexico,” something like that. But that problem is vanishingly small compared to the problem of not knowing all the true facts. Most cases settle. Of the ones that go to trial, few criminal cases have defendants testify. I would say less than 20 percent. To be deliberately telling your client not to fully inform you of the full facts because of this tiny chance that someday you may want them to testify at trial and say something different is a complete misreading of the situation.
Craig: You’re gonna want your client to say, “Yeah, I absolutely murdered my wife.” You kind of need to know that.
Ken: Yeah, I do.
Craig: The other question I have in regards to this first meeting – it’s very typical in television and movies, if the defense attorney is either the hero or the villain, when they show up they have this attitude. They always have this attitude when they walk in, like, “Okay, stupid cops. Beat it. I’m here.” When you show up in jail, at the police station, wherever you may be, if you are interrupting that process, how do you deal with the police, knowing that they’re looking at you with either suspicion or frustration?
Ken: My favorite iteration of that is probably from Fish Called Wanda. But generally, when you meet with a client, you get put in a separate room. You get put someplace where you can consult in private. Generally, you can rely that those are not being recorded in there, although some types of crime, some types of things, I would not have the full conversation there.
There’s rarely that cinematic, the cops are glaring at you. Usually, you’re not dealing with the cops who investigated and arrested. You’re dealing with sheriff’s deputies who are working in the jail or something like that. That type of thing doesn’t often happen. The time when it sometimes happens is when you get a call and your client’s business is being searched by the FBI and they’re sitting out on the curb. Then you roll up and the agents are all around. Then it can be a little awkward. But it’s the job.
John: The other scene I can picture is this guy comes home, his wife is murdered on the floor, he calls his lawyer first and then calls the police. The lawyer’s there at the actual crime scene when the crime is first being investigated. Is that a thing that actually really happens, where someone would call the attorney before calling the police?
Ken: In a manner of speaking. I haven’t encountered that in a murder scenario. But all the time in white-collar cases you encounter, “Are we gonna go to the cops with this? Are we gonna self-disclose that we’ve just discovered that our COO has been cheating customers?” or something like that. That is a very common strategic question faced by attorneys: do you self-report and hope to get out the best?
I value clients who call me and let me know something is going badly at the first available opportunity. Unfortunately, all these good decisions I’m suggesting that people make are not the norm, even for really smart people. I had a client in here the other day who said, “They asked to talk to me, but I said I need to talk with my attorney. And they say, ‘Are you sure? We just want to clear some of the things up.’ I said, ‘Yes, I’m sure, but I’ll have my attorney talk to you.'” I said to him, “Would if offend you if I said I want to kiss you right on the lips?” because that is so rare and it just warms my heart. When clients do that, I’m thrilled. Too often, part of what you get when you get the case, in criminal cases or civil cases, is that the client has already run their mouth or tried to fix things or tried to make things better.
Craig: Now you’re in trouble.
Ken: And it’s made your job harder.
John: Another thing we see at this stage is sometimes a lawyer taking a case that’s outside of their area of expertise. You have known thing that you’re really good at, but if a difficult real estate deal came or if somebody who was normally a corporate attorney but they’re accepting a murder trial.
Craig: Let’s say you’re a guy from Brooklyn who happens to be in the South and your nephew gets pinched for murder.
John: For example.
Craig: What do you do then?
John: Are there rules about what kinds of attorneys can’t even do what kinds of jobs, or basically, if you pass the Bar, you can do that kind of case?
Ken: For the most part, yes. There are a few specialties where you have to be specially licensed, but generally, you can blunder in and screw up anybody’s life in any field of law. I am very careful about not taking on areas of law that I don’t know. I will tell clients, “If you want to do that, you’re gonna have to pay me to learn the law in this area. I don’t think you want to do that,” because I’ve seen how people going and not knowing what they’re doing can be dramatically bad. Having experience both in federal and state court, for instance, I’ve seen how competent, experienced state criminal defense attorneys wander into federal court and it’s a completely different world and they don’t know what they’re doing. They can just cause complete havoc, very bad for their client.
I had a client not that long ago who was in some skirmish with a neighbor. They got something from the city attorney’s office calling for them to come in for an office meeting to talk about it. They went to the real estate lawyer, who thought he was smart and says, “Ignore it. You would never talk to them.” Real estate lawyer doesn’t know that an office meeting is a city attorney thing where they basically mean, come in, we’re gonna have you shake hands, and we’re gonna send you off and dismiss it. And so instead, he got charged, because he didn’t go to the office meeting.
You gotta know what you’re doing. You have an ethical obligation to be reasonably competent at the area where you’re practicing. Criminal is one of the areas where you can make things much worse very quickly. I’m very much against people blundering where they do not belong.
John: No My Cousin Vinny for Ken. He’s ruining movies.
Craig: It sounds like, but also, he’s foreclosing the possibility of a great television show. Hear me out. Do you remember those wonderful shows where itinerant heroes would just wander peripatetically from place to place?
Ken: B.J. and the Bear. Kung Fu.
Craig: Highway to Heaven. Kung Fu. There’s tons. They would roam the earth like dinosaurs, Drew.
John: Reacher does the same thing today.
Craig: Actually, Reacher does, although it’s a season.
John: A little more limited.
Craig: It’s not week to week. Highway to Heaven, he would literally be like, “I’m done.” The Incredible Hulk.
John: Totally.
Craig: My idea is that kind of show but with a bumbling lawyer. Every week he wanders into a new town, encounters a new case that he’s completely unqualified for.
John: I love it.
Craig: Blows it completely and then is like, “Meh, did it again,” and just moves on. Ken, any chance that that would-
Ken: I could see it work as a farce. I love My Cousin Vinny. It’s a great legal movie, because it’s entertaining. It gets some things surprisingly right. Some of the expert cross-examination stuff they show law students. Was it a good idea for this dude who had never done a trial before to do a criminal trial? It was absolutely not a good idea.
Craig: Wow, except hold on a second, because his beautiful girlfriend understood about Positraction, so that part worked.
Ken: The other thing is you’re not gonna have Marisa Tomei with you when you’re looking to step in [crosstalk 00:23:11].
Craig: You probably won’t have Marisa Tomei. I guess that’s true.
John: Ken, you brought up ethical issues. Can we talk about conflict of interest? Because you taking on a certain client, you have to disclose your conflicts of interest there. What might those conflicts be?
Ken: A few of them are you can’t represent people in the same case, where their interests conflict, unless you have a knowing, intelligent written waiver from them. Typically, you’re not allowed to represent two defendants in the same trial, because they may want to point the finger at each other. It’s very rare for you to be able to do that. In civil cases, it’s much more common to represent multiple defendants in the same case. But you always have to get an elaborate waiver from them, saying, “I understand all these risks and downsides.”
There can be problems where someone wants me to sue a former client, which I won’t do. Generally, you can’t represent one client against another current or former client if you might have gotten relevant secret information from that former client. There are all sorts of rules like that. When you have a personal financial stake in what’s going on, you can’t do it. There are often ways to get waivers from clients. Sometimes there’s not. The judge gets to make the ultimate call about whether or not it’s right.
It’s something you really have to watch out for. When you have a harmonious group of people who want to hire you, and obviously they want to hire one lawyer and not pay for five lawyers for the five of them, things can go south very quickly when they stop being harmonious. When that group gets angry at each other, then all of a sudden you’re hoping that you did the conflict waivers right.
Craig: The collection of dingdongs around Donald Trump constantly backbiting at each other. What a wonderful clown party that is to watch. But the other conflict of interest that we tend to see in movies and television are lawyers sleeping with each other.
John: I was gonna say, is it a conflict of interest if you fell in love with your client?
Craig: Or a client. Oh, god.
Ken: First of all, ew. Second of all-
Craig: That’s just based on your client [crosstalk 00:25:18].
John: Absolutely. You don’t have Sharon Stone as your client?
Ken: Believe me. You could have the most attractive client in the world and spend an hour talking to them and you may not want to sleep with anyone ever again. Most State Bars have rules about carrying on romantic relationships with clients. It’s sometimes not classified as a conflict-of-interest issue, although it could be. But it’s generally, in most states now, considered unethical and improper, because it clouds your judgment. They can’t make the right decisions about whether or not to get a new lawyer. Their judgment is clouded. But of course, it’s a trope in fiction forever, and that’s because it does happen and you see it. And it quite often winds up very badly.
John: I want to circle back to this idea of representing multiple parties, because I think to Succession, and as the Roy family starts suing each other, one of the things that comes up again and again is, are you going to join this bigger group or have your own lawyer? The smart people seem to have their own lawyer.
Ken: Yeah, particularly if you’re the weakest person in the group. If the corporation is in the face of a criminal investigation and they hire one lawyer to represent the CEO, the CFO, and Jimmy the janitor, Jimmy may take it in the shorts, because most of the attention is not gonna be given to him. He has a reason to worry that they’re not gonna be looking out for his best interests or alerting him when a real conflict of interest comes up.
There are always problems in situations where there are all sorts of conflicting loyalties and things like that. That’s why you have to very carefully analyze who the clients are, what their relationship is, to what extent are they going to want to point the finger at each other to defend themselves in this case, and how can we deal with that. That comes with very frank early conversations with clients, which is difficult, because – and this is something we should talk about – clients lie.
John: Let’s get into that, because that’s also a trope of these stories is that the lawyer, very deep into how it all goes, realizes there’s a whole separate thing that they’ve not been told about.
Craig: Richard Gere shows up and he’s like, “What about the book and the videotape and all that?”
John: Or Edward Norton is actually a psychopath.
Craig: Edward Norton, he didn’t do anything wrong, and then he did.
John: Yeah, and then he did.
Craig: Then he didn’t, but then he did. Then he didn’t, he did. But you catch your client in a lie. What is that? Is that a confrontation? Does it get sparky?
Ken: It can. It depends on the nature of the lie. The thing is, clients lie, not because clients are bad or because these are evil people involved in crime and civil disputes. Clients lie because people lie. People particularly lie when they’re scared and under stress and upset. The people I meet are scared and under stress and upset. They’re often embarrassed and humiliated by what’s happened. They’re trying to figure out what’s going on. They’re trying to wrap their mind around it. It takes a while for them to get a comfort level with you so they’ll come completely clean.
Think about it. How many people do we all really be completely transparent and nakedly open with about things? Probably a lot of the time, not even our spouses or best friends or confessors or whoever. It’s not human nature. It can take a lot of work to get the point where the client is comfortable doing that. Some of them never get all the way comfortable. Some of them can’t admit out loud they’ve done something. Sometimes they lie, and it causes me problems.
I’ve had clients lie up and down after I’ve given them the whole speech for hours, and it’s had bad impact on the case. I’ve had clients lie in the first meeting and I found out an hour after I left. And I fired them, just because I didn’t want to deal with it. Every attorney knows this. I represent humans in bad positions. People like that take a while to get around to being able to tell me the truth.
John: Circling back to the article from The New Republic that Julia Turner sent through, one of the things interesting is Stephen Glass is working as a paralegal, and one of his jobs was, as new clients came in, he was the person who first talked them through this is how it’s all gonna go. He fully disclosed, “I was fired for doing this terrible thing where I made up all this stuff and I lied.” He spends a lot of time explaining how he lied and how it was a bad thing, and in the belief it actually got the clients to be more open and transparent about what stuff was actually happening. That’s also his point of view on the whole thing, so he may be doing some fabulism right there.
Craig: Possibly.
John: But your ideal client would just sit down with you from the first meeting and say, “Here is everything. I am holding nothing back,” correct?
Ken: My idea is that anything that’s remotely complicated, that it’s gonna take a lot of meetings. I’m gonna set the table with the first meeting by explaining how important this is and going through some stuff. Then we’re gonna go through it in more detail. I’m gonna take the measure of the client. This is something you learn over the course of this career over decades. Take a sense of them, how long it’s gonna take to romance the truth out of them. Sometimes that gets right; sometimes that gets wrong.
The things you see in movies and TV, it’s very classic, it’s almost a cliché, I think, where the defendant has told them some of it, but then there’s one aspect they haven’t told them. They say, “I was embarrassed. I thought you wouldn’t believe me.” That’s very real. That happens frequently, where they’ve told me 80 percent of it but not the other 20 percent or something like that. That’s again just human nature.
John: In these initial setup things, and before we get to any trial or any sort of settlement, talk through some possible escape hatches. Spousal privilege, like the idea that you cannot be forced to testify against your spouse, is that a real thing? What are the edges of that? Because you see this in movies and TV.
Ken: This is a great Bar Exam question. There are two spousal related privileges. One is a spousal communications privilege. That means I can prevent my wife from testifying about a confidential communication we had during the course of our marriage. The other is testimonial privilege. That’s my wife can’t be compelled to testify against me while we’re married, not that she would need to be.
Craig: She could choose it though.
Ken: Exactly. She could [crosstalk 00:31:58].
Craig: Certainly, your wife would.
Ken: Yeah. They would have to say, “No, you’ve testified enough, Ms. Harbers. That’s enough.”
Craig: “Please sit down.”
Ken: Those are real things. They actually do come up all the time. They come up in context like taking the deposition of a husband or wife and asking them about something that their spouse said to them. That can be under the privilege. Things like that. Those are real things. Those come up. Those are usually evidentiary issues that come up at trial or during the discovery process.
John: You bring up evidentiary issues. One of the things we also see in movies and TV is where the attorney or Matlock’s assistant goes out and does some digging around and finds out the truth and does some investigation. How much investigation, discovery, and evidence gathering is actually typical and allowed and commonplace in the kinds of cases that you’re taking?
Ken: My types of cases, quite a lot. Now, in criminal cases, you’re supposed to be getting discovery from the government. They’re supposed to be turning over stuff. But you will definitely do your own supplemental investigation, whether it’s having people interviewed or researching records or whatever it is, depending on the nature of the case.
I learned very early on how important that was. A very early case I had when I got out of the government was a young guy who had been arrested while doing a summer at a prestigious college. He gets arrested for having meth and a gun in a drawer in his bureau in the college dorm room. He says, “It’s not mine. Someone must’ve put it there.” I’m like, “Yeah, sure, kid.” I hire an investigator to investigate the roommate, because the parents have the money to do this. Come to find out the roommate just got out of jail for stealing things from other people at this prestigious college and blaming it on other people, trying to frame other people for the crimes.
Craig: Wait a second. Hold on.
Ken: I went and I used that information, because this guy who did that was the one who turned my client in to the police, said, “Look what I found in the drawer of the bureau.” I brought that to the DA. I said, “Your witness is probably gonna be taking offense, but I’m gonna make mincemeat out of him.” They wound up giving my client a deal, a diversion program, stay out of trouble for a year and no charges.
That’s an example of why you have to learn to investigate things, even if you’re dubious, because the thing about these cases and this system is you can get so worn down and so into a rut that you can stop seeing people as individuals, stop believing their stories, just see them as a statistic. I’ve seen this case a million times before. It always plays out like this. Lose your edge that way. You’ve gotta keep your edge. You’ve got to always make the inquiries and put in the work to do that job for your client.
John: Let’s talk about who’s doing that work. You said you hadana investigator. Is that a private investigator, or is that classically a person who’s licensed to do that, or is it someone else who’s working for the firm? Who does that?
Ken: It depends on the case and the type of law. Typically, criminal cases, we have private investigators we have relationships with. A lot of them are ex-journalists or ex-federal agents, things like that. They’re good at wheedling information out of people, that type of thing. There’s not a lot of gunplay with them, but there’s a lot of tracking people down and talking to them, getting them to talk. We have different investigators for different types. Sometimes they’re in-house; sometimes they’re not. It really depends on the occasion.
Civil is often very different, because civil discovery is a lot more active. You’re sending formal demands to the other side. You’re entitled to do things like demand they produce particular documents or answer questions or sit for a deposition. You have a lot more leeway of how you investigate in a civil case.
John: Let’s say that you’ve talked to the client. You see what the case is laid out before you. Before you would go to trial, there’s some discussion of reaching a settlement. Are you the person who reaches out with, “Hey, let’s sit down and talk this through.” When something comes to a settlement before trial, what’s tended to happen?
Ken: It very much depends on the type of case and how serious it is. Your run-of-the-mill misdemeanor or petty felony, probably at arraignment they’re gonna tell you the offer. If you show up on a DUI, they’re probably gonna tell you this is the standard offer for first-offense DUIs. They’ll tell you that at the first appearance. Other cases, either you approach the prosecutor, or the prosecutor approaches you, say, “Are you interested?” There’s the dance of pretending, “No. I’m taking this to trial, but just for the sake of argument, what are you offering?” It’s a lot more formal and complex in federal court. A federal plea agreement is just monstrosity, 20 pages long. It’s a lot more informal in state court.
But the bottom line is usually one side or the other suggests, “Can we talk about it?” That’s really just a matter of schedule management. If you’re the prosecutor and you have 20 cases set for trial, you want to figure out which one of them is gonna go, and so they’re gonna want to make inquiries. If you’re a defense lawyer, you know that if someone’s gonna plead, the earlier they plead and possibly cooperate with the government, the more credit they’re gonna get, the more lenient sentence they’re gonna get.
John: A thing we saw out of Georgia was the use of racketeering laws, and so where you’re rounding up a bunch of people and you’re putting them all together on trial as one big thing.
Craig: Ken loves RICO, by the way.
John: Yeah, loves it. I listen to your podcast, so I know RICO is one of your favorite things on earth.
Craig: I like when he says he did a RICO.
John: In those situations, there could be a real benefit to being the first person to turn on the rest of the group. As the attorney representing that individual person, you’re looking at everybody else around you, and it feels like there’s a prisoner’s dilemma aspect to that as well.
Ken: Sure, there is. It’s not just RICO or really complicated cases. Any multi-defendant case or any case that’s connected to a larger investigation, if you can say, “My guy’s gonna come in and tell you everything,” and you’re the first in the door, then you’re gonna get the very best deal. In state court, that means allowed to plead to the most lenient thing with the most lenient recommendation. In federal court, it means allowed to plead to a lesser set of charges with a better sentencing recommendation in a more complex way.
The thing is that, yeah, it’s always a prisoner’s dilemma. You know that everyone in this situation is trying to find the least terrible way out of it. You always decide who’s gonna jump. A lot of the time, cases like the one we see in Georgia with Donald Trump and in similar cases, you have what’s called joint defense agreements. Those are agreements among the lawyers for the defendants. What they agree is that, “I’m gonna share information about what I learned from my client about this case and this situation. You’re gonna share yours. And we all agree to keep it confidential among ourselves and not disclose it.” And if anyone starts to cooperate, then they have to leave the group.
The point of this is to preserve the attorney-client privilege. The idea is that normally the attorney-client privilege only applies to a confidential communication. But the idea is if you talk to a group of people that has equal obligation to keep it secret, then you haven’t taken it outside the circle of privilege. That’s very common. In there, someone will say, “We’re leaving the group,” and then you know, okay, they’re about to cooperate, something like that.
But yeah, all the time. And usually in white-collar cases, it’s a lot more friendly, collegial. A lot more information is exchanged. Less of that in drug cases, violence cases, things like that. It’s a little more cutthroat. But yeah, that type of thing, that type of maneuvering is absolutely real.
John: Despite your best efforts, there’s no ability to reach a negotiated settlement. Talk us through what are the steps before we get to trial, what kind of things we would see before we get to trial.
Ken: Usually, when you’re getting ready for a trial, you have to put together all the exhibits that you’re gonna use. You have to have a witness list. Often, you’re required to propose jury instructions ahead of time. Those are crucial, because that’s where the judge tells the jury what the relevant law is. You’re gonna file a trial brief pointing out the legal issues that are gonna come up at trial.
Probably most crucially, you’re gonna be filing something called a motion in limine, meaning a limiting motion. That’s a motion saying, “Judge, this piece of evidence is illegal. You should keep it out. This piece of evidence is too inflammatory. You should keep it out. You should let me bring in this piece of evidence.” The motions in limine are incredibly important, because they can completely shape how the trial goes by what evidence is allowed to come in and what evidence isn’t allowed to come in. Before you’re picking that jury, we’ve alighted tons of work that’s very paperwork-intensive, very boring to show on film, but actually has a huge influence on how the case comes out.
John: Now let’s talk about – you’ve gone through all the evidentiary hearings. You’ve figured out what stuff is gonna get eliminated. Can you talk us through the jury selection process? What is that actually like? What do we see on film versus what the reality is?
Ken: It can go anywhere from super simple to super complicated. There are judges, particularly in simple cases, who do it lightning fast. The judges do all the questioning themselves, don’t let the lawyers talk to the jurors. I’ve known judges where you can have a jury picked in half a day. There are other cases, particularly cases that are gonna be super long or complicated, where you might have to do preliminary work. You might have to do something called qualify the jury. This RICO case against Trump and his pals in Georgia is such a one. Jurors are gonna get questionnaires saying, “Hey, would you be available for the next 9 to 12 months to sit in the uncomfortable chairs?”
Craig: Totally available. Wait, is it for RICO? Then yes.
Ken: Also, “Have you ever heard of Donald Trump? Do you have opinions about him?” That type of thing.
Craig: Who?
Ken: Bigger, more complicated cases, there will be screening of the jurors. Then there’s disputes over who gets to ask questions of the jurors. Some judges want to do it all themselves, because when we lawyers do it, then it’s called voir dire. We’re really doing two things. One is we are questioning the juror to find out whether we think they’re a good juror or not, but another is we’re developing a rapport with them and showing them themes of our case, like, “Ma’am, would you agree that if someone is standing there and a guy runs up with a knife that you might think he’s danger and might have to defend himself?” That type of thing. You’re trotting out your themes. You’re starting to get them thinking about who the people in the cases are. You’re making yourself hopefully entertaining or at least palatable to the jury.
Then you just go through, and different courtrooms have different ways of doing it, but generally there are jurors that you ask the judge to get rid of for cause, meaning that the judge strikes them because there’s some legal cause they shouldn’t be a juror, like they really can’t speak English well or they said that, “My dad’s a cop. I couldn’t be fair,” something like that.
Then you generally have what are called peremptory challenges, which are challenges that you get to use in your discretion to knock people out. You’re not allowed to use them based on race or gender or prohibited characteristics like that, notwithstanding that of course it happens all the time, particularly from the government. You’re using your sensibility. Who’s gonna be a good juror for me, who’s not. If you’re a prosecutor or if you’re the defendant in a case where the plaintiff’s asking for a lot of money, you want a solid citizen, someone who doesn’t believe in handing out money, someone who works for their money, someone who’s respectable, somewhat conservative, that type of thing. If you’re the defendant in the criminal case or the plaintiff in the case, it’s the other way around. You’re looking for people.
It’s totally an art and not a science. There are all sorts of shows about how it’s a science and you can attach electrodes to them and stuff like that and do it scientifically. My wife watches some of those, and I’m not allowed to be in the same room, because it agitates me almost as much as NCIS. I’m not allowed to be in the same room because of the comments I make.
John: Because what you’re seeing is that it does not reflect reality at all in terms of the ability to micro-slice who these people are?
Ken: No. There are people who make tons of money doing it, but I am super skeptical of that. I think it’s dousing, basically. I think it’s [unintelligible 00:44:56].
Craig: There was an entire movie about – was it Rainmaker or something like that? It was the Coppola movie where it was an expert to figure out exactly who should be on the jury using their mind powers. Basically, you’re just getting people that said that they would be available for nine months. There are certain things we can all conclude.
John: Maybe a speed round here. I want to talk a little bit about courtroom etiquette, because there’s things we see a lot in movies and television.
Craig: I object.
John: Talk to us about “I object.” Talk to us about objections and talking over objections. What does object mean and what are the edges of the reality of objection?
Ken: There’s a sliding scale of the formality of objections. The low end is a local, state court, and the high end is federal court. I always do it as if I’m in federal court, because then I can’t screw up. To do it properly, you stand up, you say, “Objection,” and then briefly the basis, “Hearsay.” The judge rules. What you’re not supposed to do is say it from a seated position. You’re not supposed to go off on a speech.
Craig: Objection.
Ken: “Objection. He knows he can’t do that. Since the beginning of time, the laws… ” That’s a speaking objection. You’re supposed to do it briefly. It’s a rule often broken. You’re not supposed to make a lot of bogus objections just to throw somebody off. Judges will eventually call you on that, and the jury will see it.
Craig: Has a judge ever said to you, “I’ll allow it, but watch yourself, counselor.” That seems to be in literally every – judges are constantly allowing objections but saying, “But I’ve got my eye on you.” Is that a thing?
Ken: If they were gonna say something like that, it would probably be at a sidebar, outside the hearing of the jury. That’s something that does happen. But no, they don’t put it like that in front of the jury. They might say, “I’ll let you ask a couple of questions, but get to the point quickly.” Something like that.
Craig: “Where are you going with this?”
John: Something that frustrates Craig and I – is begging the question actually a legitimate objection? If someone says, “Objection; begging the question.”
Ken: It is not a legal objection. I think actually-
Craig: It’s a mistake of thought.
Ken: … “states facts not in evidence” might be the right… Let’s face it; 90 percent of people use “begging the question” wrong anyway.
Craig: 90 percent is a very low estimate.
Ken: I discovered, to my dismay, having been married for nearly 30 years now, that being able to use “begging the question” correctly drives literary people wild. If I had known this in my early 20s, it would’ve been a completely different social scene for me.
Craig: Absolutely. No question. It’s a very narrow group of people, very curious group of people. Peter Sagal over there at NPR I think is the king of the movement.
John: Here’s a question for you. I see in movies and TV where the attorney seems to be addressing the jury rather than addressing whoever is on the stand. That’s a no-no, correct?
Ken: Unless it’s an opening or closing statement, correct, you’re not supposed to address the jury. And the judge will yell at you if you do that sort of thing.
Craig: What about that sly look over to the jury? Are you allowed to do that?
Ken: The thing is you want to be careful about that, because you might not be as irresistible to the jury as you think you are. One of my partners did a trial against the SEC. About midway through the trial, the jury sends out a note saying, “Can you ask the lawyer from the SEC to stop looking at us? He’s creeping us out.”
Craig: Oh, man.
Ken: Kind of sunk in his chair for the rest of the trial. It’s a bit of a blow to his ego. You want to be careful with that. If I’m cross-examining something and they’re being really argumentative or not answering the question, I will mug a little bit for the jury. I’ll roll my eyes and look in their direction, make eye contact, that type of thing. But you want to do it sparingly.
John: A thing we see in movies and TV is forceful gavel banging, where the judge is banging to get people to shut up or stuff. Is that a thing that you’ve encountered in your real life?
Ken: The only time I’ve seen gavels used is to open a session. I’ve had judges pound on the bench, one memorable occasion, to punctuate, “Mr. White, no, you may not.” But it’s pretty rare. Judges will yell, but banging on things, that type of theatrics, not so much anymore.
John: You brought up sidebar. Tell us, what conversations should be happening in sidebar that probably too often in our scenes are happening in front of the jury and everybody else?
Ken: Stuff that is not clear whether it’s admissible or not, and it might be prejudicial. Let’s say that we’re in a trial and the attorney questioning the witness starts getting into an issue of whether they’re having an affair, and it has nothing to do with the subject matter of the case. You would ask to speak at sidebar, because you don’t want to spell out to the jury, oh yeah, we don’t want you guys to know about the client having an affair, because you might treat them badly. Things like that where the judge may decide the jury shouldn’t hear about this are typically done at sidebar. All sidebar really is is a mechanism to keep things going, because it takes forever to troop the jury in and out of the jury box, and so you don’t want to send them all back into the room, because then you waste 15 minutes.
Craig: Maybe you should try directing a scene with 100 extras, my friend.
Ken: I’m sure. They’re probably better behaved than jurors.
Craig: Possibly.
Ken: It’s a way to do things. And it frustrates jurors, I think. Again, you don’t want to be constantly going up to sidebar, because the judge will start just telling you no. You gotta use it sparingly.
John: Great. We’re in trial. One of the cliches we see is people who decide to represent themselves at trial, which I’m sure for you is terrifying. What are the realities? If I got accused of a crime, I’m allowed to do that, right, even if I don’t have any background in law?
Ken: You are. Actually, it’s kind of tricky, because the judge has to give you sufficiently full explanation of why it’s really stupid to do that. If the judge doesn’t, you might have an appeal later. “I didn’t realize how stupid it was.” But the judge can’t prevent you from doing it, unless the judge finds basically that you don’t understand what you’re doing or not competent or something like that. It’s threading the needle for the judge.
It’s almost always horrific for the person. I’ve heard it described as a slow plea. This isn’t rocket science, what I do, but there’s a lot of things to it. You gotta know how to do it. You gotta have learned how to do it. If you’re just throwing it in, you don’t know the jargon, and there’s lots of jargon. You don’t know the rules. Just getting something into evidence, understanding what it means to lay a foundation for a piece of evidence so it can be admitted into evidence is something that you have to learn. It’s generally terrible. Usually, people wind up making things much worse.
John: Let’s say we’re in trial now. You’re gonna have witnesses up on the stand. You might have your own client, which for good reasons you probably won’t put your client on the stand, but you might. There are gonna be other witnesses that you’re gonna be putting up there. What kind of preparation can you do with a witness, are you allowed to do with a witness, if it’s your client, versus if it’s somebody else? What are the edges of what you’re allowed to do there in terms of getting them ready for it? There’s limits to how much you can coach them.
Ken: Let’s take non-clients first. You can absolutely talk to non-clients, unless they’re represented by a different attorney. You can ask them questions. You can say, “Do you mind if we go through the questions I’m gonna ask you?” You might even use the word “practice,” depending on how friendly they are. You can go through. You can ask them.
I’m careful. I don’t tell them, “It’d be better if you didn’t say that. It would be better if you said this instead.” I try to be more subtle and say, “Let me ask you about that answer. My impression was X, but you’re saying Y. Can you explain how I have it wrong?” They eventually get to maybe they were wrong. When they realize they were wrong, they clarify it. Whatever.
You can’t tell them what to say, and you absolutely can’t tell them to lie. But there’s a fair amount of leeway in going through their testimony in advance. And everyone does it. You can believe that federal prosecutors, before they put someone on the stand in Sam Bankman-Fried’s case, have gone through the questions with that person two to five times.
Craig: Debate prep.
Ken: Exactly, exactly. With a client, it’s different, because it’s protected by the attorney-client privilege. You cannot put the client on the stand to lie. You cannot knowingly elicit perjured testimony. That’s why that thing we discussed before, this trend where some lawyers say, “That’s why you’d never ask the client what happened and you’d tell them not to tell you yet, so it doesn’t prevent you from putting any story on they want,” to me, that’s absolutely lunatic, because you can’t defend them. You can’t know what the defense is. You can’t organize the case, know where the pitfalls are, unless you know what happened and what they know.
Craig: That does seem like a terrible strategy, like, “Look, the deal is we’re just gonna black box this thing. I’m gonna put you on the stand. You’re gonna say some stuff. That’ll probably work.” What do I need a lawyer for?
Ken: The thing is, this is a real thing that some lawyers do.
Craig: It’s crazy.
Ken: I watched a debate that turned into basically a screaming match between Alan Dershowitz and a different professor 30 years ago in the trial skills class I took, where they were arguing over this very thing, whether or not you stop the client from blurting out stuff, prevent them from locking themselves in. This is one of the few times you’re on Alan Dershowitz’s side. It’s lunacy not to get every piece of information you can get out of the client. The downside of not being able to get them to lie is comparatively extremely minor.
John: Let’s talk about witnesses. Prosecution and defense are both going to, I guess, provide a list of the witnesses they’re going to bring, so that both sides can prepare. But in movies and TV, we’re constantly seeing surprise witnesses, like, oh my god, this person we thought was dead is now coming to sit on the stand. What are the rules around witnesses who were not previously announced and scheduled?
Ken: Generally, that doesn’t happen. It’s rare for it to happen. It’s rare to find out that someone you didn’t know before – especially civil cases. In civil cases, you’ve had years of written discovery, where each side has been telling the other, “Name every person in the universe who has knowledge about this case and that you’ve decided to depose them or not,” and then you’ve made a witness list for trial and all those sort of things. Showing up and saying, “Oh, I’ve got a new guy,” usually is not gonna go over well. There’s gonna have to be some pretty convincing reason that you could not have found them before for the judge to let that happen. The more important they are, the more that is the case. The same with evidence. Unless you can really show you couldn’t have found it without due diligence earlier, then it’s gonna be very hard to get it in at trial.
Now, one way that can happen is if the other side reveals something for the first time. Then you’re allowed to rebut. The things about disclosing evidence generally don’t prevent you from keeping a few things back for your rebuttal case. If the other side has lied, as they often do, calling them out as liars. That’s tricky, and you might not get the opportunity to do it. But that is not common.
John: We’re talking about witnesses and evidence, but sometimes in films and TV, the lawyer themselves is demonstrating something to the jury. It could be as part of the closing argument or something else that happens. You mentioned To Kill A Mockingbird. Atticus Finch throws a glass at Tom to prove that he’s left-handed. Is that a thing that could actually happen in real life?
Craig: You’re gonna throw glasses in the courtroom?
Ken: It could happen, but the judge would blow their stack.
Craig: You’re saying even if you asked your client to put on some gloves in front of the jury and they didn’t fit-
Ken: That’s different. When Atticus Finch throws that cup, the client catching it in one hand is not testimonial, and the client’s not under oath. There’s an implicit, “Here’s how I do things,” but it’s not under oath and it’s not subject to cross-examination. That’s why it’s inappropriate. You could get a client who is on the stand to demonstrate something, with the judge’s permission there, and you can get them to say, “Yes, I’m lefthanded.” The judge probably is not gonna let you surprise them in the middle and throw something to them. Generally, anything that looks super cute or gimmicky probably is gonna get you yelled at by the judge.
John: But what is the actual impact of being yelled at by the judge? Is it causing a mistrial? Is he then giving jury instructions? What actually happens? What is the consequence?
Ken: I love this question, because it’s so much of what you learn over the course of the practice. You don’t want the judge to yell at you in front of the jury, because the jury’s gonna become convinced that you’re a bad person and you’re doing bad lawyer things, unless the judge is kind of an asshole and the jury is sympathetic with you.
Once upon a time I tried a case as a prosecutor where the judge was being super mean to the rookie defense lawyer and yelling at her and beating her up and generally being a bully, and the jury was looking sympathetic to her. I was thinking, okay, this could go badly. They could “not guilty” just out of sympathy. I was pretty young. I thought, “I have an idea. I’ll make the judge yell at me too.” This was a judge who was famous for yelling. I wandered into the well in the center of the courtroom. I spoke from a seated position. I called them “Judge” instead of “Your Honor.” Before long, he was yelling at both of us. Then the young public defender comes over and says to me, “I know what you’re doing,” and she steps in. Arguably, this is where it went off the rails a bit. But by the end of the day, the guy is bright purple. Usually, you don’t want to do that sort of thing.
Here’s the thing about judges yelling. If it’s not in front of the jury and if it’s not impacting actual rulings, you’ve gotta learn to deal with it. Judges yell. Judges are human. They deal with a lot of stress. Some of them have personalities. You want to learn more about the bite than the bark.
When I have young associates I supervise and a judge is getting mean or they’ll worry the judge is gonna get mean, I refer them in the end of Quentin Tarantino’s Inglourious Basterds, where Brad Pitt’s character shoots the Nazis’ aid, because he’s so mad that the Nazis-
Craig: You’ll be shot [crosstalk 00:59:24]. More like chewed out.
Ken: I’ve been chewed out before.
Craig: I’ve been chewed out before.
Ken: I’ve been chewed out before.
Craig: Chewed out before.
Ken: I’ve been yelled at by judges before, and I’ll be yelled at by judges again. You just deal with it.
John: A trial happens. We’ve gone through all – it could be months. It could be short. But ultimately, there’s a verdict. That verdict becomes the title of many movies. That is the moment of closure for this whole experience. What do you see in movies and TV that get it right and what are the things that frustrate you about how they get it wrong about verdicts?
Ken: They get it right in terms of dramatically. They make it a good close to the story. In real life, you have appeals. You’ve got post-trial motions. Most times if you win a big civil jury award, the other side is gonna file a motion-
Craig: To reduce it.
Ken: … for a new trial, a motion to reduce it, a motion for judgment notwithstanding, blah blah blah blah blah.
Craig: Paperwork.
Ken: Yeah, there’s always a lot of paperwork. We see this with all the stuff in the news right now that Trump is going through, where there are these big judgments and now he’s posting bond so that he can appeal them without being collected on. Sentencing can often be quite dramatic. Usually, that does not happen at the time of the verdict. It’s another time. That could be a good moment for drama.
It’s certainly stomach-wrenching when you’re the defense attorney standing next to your client who’s gonna find out how long they’re gonna be in jail, and when you worry about what your client’s about to say, because one dramatic part about sentencing is that they always ask the client – the client has a right to allocate, to say something. This is an absolutely terrifying, piss in your pants moment for the defense attorney, because clients, no matter what, if they’ve been convicted, they feel it’s unfair. And if they express that, it goes badly.
I’ve seen clients, even though they were exquisitely prepared, go from probably they were gonna do community service to jail, by talking about what a victim they are in all of this. Client in that moment can make it much worse. You really have to sit on them and make them not express how they’re feeling, because how they’re feeling is a victim.
John: But I want to be clear here. If they were to confess to the crime or admit guilt in that moment, that is evidence that can be used against them in any sort of future appeal. They obviously don’t want to say, “I did it, but just be merciful on me.”
Ken: It wouldn’t be used against them in an appeal. The problem is more if they demonstrate lack of contrition or if they make their image in the judge’s eyes worse. If you’ve pled guilty in particular, you don’t want to get up there and suggest you don’t think you really did anything wrong, because you pled guilty. Like we saw recently, Sam Bankman-Fried’s sentencing, the judge found him very not remorseful, because of his personality and the way he talks, and that probably contributed somewhat to the sentence.
John: Ken, as we wrap up here, are there any other aspects of law as portrayed on film and television that we haven’t talked, that you want to make sure that our listeners, who are mostly writers, are aware of?
Ken: Sure. Entertainment gets some things right. Trial lawyers, criminal lawyers, terrible divorce rates, lots of alcoholism, lots of drug abuse, lots of mental health problems, suicide rate that looks like a Latvian phone number, it’s all really terrible, and it’s a high-stress job. So when entertainment portrays people as suffering through it, that’s actually fairly accurate. They are. There are people out there who are just unflappable and seem to have no problems getting through it. I always suspect they’re just in their office sucking off some huge bong to be that mellow going through this, because-
Craig: Or killing cats.
Ken: … it’s incredibly stressful. That part gets right. Gets wrong” objections. Objections are a big part of most legal TV shows and some movies. I would be almost happier if you didn’t even try, unless you have a lawyer actually tell you what a real objection is or not, because that’s another thing that takes me way out is when it’s a completely stupid nonsense objection and the response is completely nonsense. I would say it would be worth it to ask a lawyer about the objections. You could still make them dramatic. You could make good ones. But some ones, every lawyer watching is gonna go, “Oh, Jesus Christ.” And then my wife says, “Shut up. Shut up.”
Craig: I’ve heard her say that.
John: Ken, thank you so much for all this legal stuff. Let’s get to our One Cool Things. Craig, you have a One Cool Thing here I see in the Workflowy.
Craig: Yeah, this is really in honor of you, Ken. There is a category of videos that every now and then, when I’m feeling a little sad, I turn on and watch, because, god, it makes me feel great. There’s hundreds of them compiled all for your enjoyment. Just google “sovereign citizens getting owned.” It is so much fun. Are you familiar with this, John?
John: I have no idea what this is.
Craig: Sovereign citizens are dipshits who subscribe to a theory that they aren’t really people under the law, that the United States as currently constituted is some sort of admiralty or maritime law thing, that they aren’t really a person but a corporation. It’s endless reams of nonsense. Inevitably, they will get pulled over for speeding or their tags are expired or they’re in court for a misdemeanor, a traffic problem, or something more serious, and they begin this nonsense talk. It goes so bad for them so quick every single time. There are people who sovereign citizened their way into like, this cop was gonna give you a $25 parking ticket and now you’re tazed and you’re going to jail. They’re so stupid. Apparently, the one thing about sovereign citizens is they don’t watch these videos, because if they did, they would stop it. Anyway, if you want to see people representing themselves pro se, being idiots, saying nonsense, having judges roll their eyes and go, “I literally don’t know what you’re talking about,” just go ahead and google “sovereign citizens getting owned.” It’s a joy.
Ken: I’ll echo that.
John: Excellent.
Ken: Sovereign citizens, you have to think of them as really, really committed legal furries. They’ve got this persona. They’ve got the costume. They’ve got the lingo. They’re super into it, no matter what consequence it has on living their lives.
Craig: They’re so into it. They think they know the law. You’re seeing somebody reading this, and you’re like, “What?” They like Latin.
John: Of course.
Craig: They love Latin, but they don’t know why. It’s wonderful.
John: It’s excellent stuff. My One Cool Thing is something that was very useful for me this past week. It’s called LibreOffice. It’s a multi-platform app you can find for Windows, for Mac, for everything else, that I would never actually use as a word processor. You could use it as a word processor. But it could just open anything. You can throw any old file type at it, and it seems to be able to open it. I have these old, right now, files for pitches that I did in the ’90s, and it’s the only thing I could find that could open it, but it opens it beautifully. I discovered like, “Oh, that’s right, this is one I was pitching on Highlander in the ’90s.” I can now pull up that old Highlander pitch.
Craig: You can finally read that thing. Can we do some research? I feel like LibreOffice was one of my One Cool Things at some point a while ago.
John: It totally could be.
Craig: Dig it up. I’m so rarely ahead of the curve. It’s almost always that I say something, John’s like, “That was my One Cool Thing two years ago and you said it was stupid.”
Ken: Craig, my cohost doesn’t listen to me either, so this is-
Craig: Good company.
John: The book Less, you had recommended it, and then three years later I recommended it, and we found out it was great.
Craig: There you go. Every now and again.
John: LibreOffice, I would never actually use it as my main word processor.
Craig: I do remember something like that being an open-source thing, just because Microsoft Word is so goddamn annoying. I do have a bunch of old files. I don’t even know what they are at this point.
John: Exactly. I throw it on and see if it happens. The thing I’m probably most frustrated, I used to use Movie Magic Screenwriter, and that’s actually a binary format.
Craig: It’s dead.
John: It’s dead, hard to open.
Craig: Gone.
John: Ken, do you have a One Cool Thing to share with us?
Ken: I do. Obviously, your listeners are podcast fans. I’m a huge history podcast buff. I love them, particularly when I’m commuting or on trips or things like that. I’ve just been having a blast with a podcast The Rest is History. It’s two British historians, one of them named Tom Holland, not the Spider-Man one, the other one, and the other one named Dominic Sandbrook. They have a real great rapport and chemistry. They are really knowledgeable of a wide variety of things. They delve into a huge range of different historical things. Each podcast is maybe a half an hour, 40 minutes long, perfect for a commute. Sometimes they do deep dives that are multiple episodes about something, like the background of the Titanic or JFK assassination or whatever. But they have a real love for the subject. They have a great way of conveying the similarities between these people in history and us and seeing the common threads.
They’re great at conveying how the values of historians that have told us about this stuff, how those impact how the story gets told and why you have to discount some things, because you can’t listen to the Greeks talk about the Persians, because they have all these stereotypes and that overrides everything. Stuff like that. I find it endlessly entertaining. They’ve got a huge back catalog. I’ve been listening to this nonstop on commutes for six months and enjoyed every minute of it.
John: Absolutely. While our listeners are adding podcasts to their players, they should also be adding Serious Trouble, the podcast you do with Josh Barro. Is it every week?
Ken: It’s 45 weeks a year, roughly.
John: That sounds good. I find it just terrific. It’s Ken talking through the cases of the day, which has been phenomenal. I’ve learned so much on your podcast.
Ken: Thank you.
John: Everyone take a listen to that.
Ken: Thank you.
John: That is our show for this week. Scriptnotes is produced by Drew Marquardt. It’s edited by Matthew Chilelli. Outro this week is by Lou Stone Borenstein. If you have an outro, you can send us a link to ask@johnaugust.com. That’s also the place where you can send questions. You will find the show notes for this episode and all episodes at johnaugust.com. Also where you’ll find the transcripts and sign up for our weekly newsletter called Inneresting, which has lots of links to things about writing. We have T-shirts and hoodies. They’re great. You’ll find them at Cotton Bureau. You can sign up to become a Premium Member at scriptnotes.net to get all the back-episodes and Bonus Segments, like the one we’re about to record on beach vacations. Ken White, an absolute pleasure having you on the show.
Ken: It was a joy to come. Thank you so much.
Craig: Thanks, Ken.
[Bonus Segment]
John: Craig, so let’s pretend that you’ve finished delivering Season 2 of The Last of Us, and now you can take a vacation. You can go to Mexico and sit on a beach for a week. Is that something you’re aspiring to?
Craig: Absolutely not. Let me count the reasons why. First of all, sitting outside under the sun, which some people really seem to like to do, is simply getting radiated. That’s what you’re doing. Everyone’s terrified of radiation. Fukushima happened. People in California were like, “Don’t eat fish anymore. It’s coming.” I’m like, the ocean is swallowing up this amount of radiation. It will never reach you. But you are gonna get radiated when you get in a plane and fly to San Francisco, and you will absolutely get radiated if you sit outside. That’s what sunburning and suntanning is. It’s a response to radiation. A, no.
B, sand. Much like Anakin and whatever, I hate sand. It’s coarse. It gets everywhere. It’s annoying. The ocean is disgusting. It stinks.
John: It’s a fish toilet.
Craig: It’s a fish toilet. I’ve been scuba diving in the ocean ocean. That’s wonderful. But where the ocean hits the land, gross. Sewage. A lot of just garbage and plants. There’s little tiny crabs that pinch at you. It’s nasty.
D, four, the other people who are at the beach are horrible, because they’re beach people. They’re all like, “I gotta get there and I gotta put my blanket down,” a blanket which turns into a weird loincloth within seconds on the sand, so there’s no reason to be there at all. Everyone smells like that gross suntan lotion, which is just offensive. People are drinking for some reason at the beach, so now they’re being radiated while they’re getting drunk. Beach food is gross. Beach music is awful. That stupid fricking country/Caribbean Bahama Jimmy Buffett nonsense, horrible. Other than that, great day.
Ken: John, are you with me that that’s pretty much exactly what you expected if someone asked you what is Craig Mazin gonna say about whether he likes the beach?
John: Will Craig have a prepared rant about beach vacations?
Craig: Oh, no, it was not prepared.
John: But we can predict it.
Craig: I assure you that was entirely off the cuff. I just went through my mental library and put myself on the beach and then started to complain.
John: Absolutely. Ken White, a beach vacation or let’s say any sort of poolside vacation, so we can get rid of the sand and some of the other objects.
Craig: Oh, pools.
John: Ken, talk us through that. Appealing or not appealing?
Ken: It’s appealing to me, mixed with other things. I like vacations where we’re doing some stuff but there is at least some lounging and drinking and relaxing. My wife increasingly is not happy unless she has climbed at least one mountain a day. This is a point of contention with us.
Craig: Huge problem.
Ken: It’s true that I’ve gotten to the point where I can’t just lie around for seven days. I go crazy. I like a good vacation with a mix, some of which is drinking things I shouldn’t, eating things I shouldn’t, while lying on a hammock and reading or watching terrible things.
Craig: Now, a hammock, that’s not at the beach. I get the idea of being in the shade or being in a hotel room or a spa even. Look, I have a lot of core shame issues, so if I’m not working, I feel like I’ve done something terribly wrong. Also, I think HBO needs me to keep working, so they think I’m doing something terribly wrong. But I get the concept of vacations. Don’t get me wrong. It’s just the beach. You don’t like the beach?
John: I don’t like the beach at all. I’m the palest person on earth. All of the objections you’ve raised, I have raised as well. One of my actual biggest phobias is being trapped somewhere like in the beach or in Santa Monica without a hat.
Craig: Oh, god. You know and I know and Ken knows, but Drew don’t know. Maybe one day, Drew, if you’re lucky, you’ll know. It’s the worst. My head will start burning. I also get this thing. Do you guys get this when you go to a restaurant and they’re like, “Let’s go outside.”
John: The heat lamp.
Craig: The heat lamp. No, you’re not, because my head will burn.
John: Sizzle.
Craig: They don’t get it.
John: They don’t get it.
Craig: A lovely woman with this beautiful head of hair is like, “What’s the problem?”
Ken: I think the hair issues are a whole other episode.
Craig: We need to talk about being bald.
John: I think we’ve talked about it some.
Craig: More.
John: More.
Craig: More.
John: More bald. I’m not good with just the chill-out vacation, where you go to a place and you sit, you don’t do anything. I do need a certain minimum number of activities. That’s why sitting poolside, even if I’m in the shade, I can only read my book for so long. At a certain point, if I’m just reading a book or playing Hearthstone on my iPad, why am I not at home?
Craig: Why are you spending all this money? If I could go to a place where there’s a beautiful resort, lovely room – we’re married. We’ve all been married for a long time. Not you, Drew, but one day. Just having sex in a different place is nice, for a change. There are great dinners and things. But then also you could go play D&D or you could go solve puzzles or you could go do the things that other people like to do. I don’t know what those things are. But if I could just do the things I like to do while also on vacation and getting all these lovely services around me, that would be great. But I can’t. Instead, what happens is you go on vacation and you have to walk around, go to a museum, take picture and take picture.
John: Gotta prove you were there.
Craig: So many goddamn pictures. For what?
Ken: Then there’s the whole issue of traveling with kids, which is a very different experience.
Craig: Thank god ours are grown.
Ken: Kids are assholes. Depending on what age they are, different types of assholes.
Craig: I love them, but yes.
John: The closest I came to enjoying a chill-out vacation I would say actually was in Hawaii at the Aulani, the Disney resort there, because if you go there with a young kid, you can drop them off at the kid play area and just like, “Bye. I’ll see you in six hours.” That was actually [crosstalk 01:16:39].
Craig: Very expensive, very effective babysitter.
Ken: See, that is the only thing that would ever get me on a cruise, the concept that you can just leave them with some-
Craig: Oh, god.
Ken: … group of ne’er-do-wells who like-
Craig: I would send them on the cruise. I finally got – and this is a hard thing for Melissa, but she got there with me. We would go on vacation with the kids. Especially if we went somewhere where the time zone shifted dramatically, let’s say it’s Europe, they’re tired, they’re cranky. They don’t want to do the list of – because Melissa’s very much a guidebook, do the list of the things. I’m more like a, let’s just randomly walk around and see what happens. The kids were like, “I don’t want to leave my room,” or, “I just want to be on my computer, my iPad,” whatever. It would drive her nuts. My whole thing was, fine. If you want to stay in your room and do nothing, I would gladly pay for that, for the privilege of being able to walk around with my wife somewhere and not listen to your nonsense. I’d pay double.
Finally, we went on a vacation, the last time we went on a vacation, all four of us, to Europe – it was a couple of Christmases ago – I was just like, “Just leave them in the room.” And it worked great. It was awesome. It was amazing. Leave them in the room. That’s my advice.
John: I’ve never taken a cruise, but I’m considering taking, because as we’ve established, I’m bad on boats, and I have the same motion sickness problems you have, so I’m gonna be testing out the motion sickness stuff, because my extended family is talking about doing an Alaska cruise. That’s actually an exceptional make, because it’s difficult to visit some of those places in Alaska by land. On a boat there, that makes sense.
Craig: Those boats aren’t gonna rock you too hard, but the patch.
John: The patch.
Craig: Problem solved. You will not have the sickness problem.
John: Ken, a cruise, yes or no? Thumbs up, thumbs down?
Ken: There has been talk about doing an Alaska cruise, and seeing something that amazing might get me on the boat. I’m not a fan of legionnaire’s disease, but I might risk it for those purposes. The problem is, again, we’re at the point where my lovely wife, Katrina, is such a hiking badass that probably is gonna be – we’re gonna cruise to this new location, and when I wake up, she says, “Okay, we’re walking 12 miles straight up a peak called Hiker’s Doom.” “Okay. That sounds like fun.” I’d be a little worried about surviving it.
Craig: I think you’ll be too busy having diarrhea in a cabin that’s eight feet by four feet.
John: Yes, that.
Craig: That’s what cruises are to me. I would never, ever, ever, ever, ever go on a cruise. Ever.
Ken: Oh, but I have just the one for you, Craig, because there’s this Australian billionaire who just announced that he’s doing a complete replica of the Titanic.
Craig: Oh, great.
Ken: It’s gonna be an anti-woke Titanic. No vaccinated people.
Craig: Wait. Sorry.
Ken: No vaccinated people.
Craig: Sorry. I love this anti-woke Titanic. First of all, I love the idea that the original Titanic was kind of woke, because it allowed, what, the Irish on board. But I like that you compare the inevitable rotavirus with a total lack of vaccination and proximity to people who would be attracted to something called the anti-woke Titanic, a boat that sank.
Ken: I think you have a real shot at getting smallpox to come back with one of those, so I think it’s worth a try.
Craig: If anything were to ever get me on Team Iceberg, I think we’ve found it.
John: Craig and Ken, thank you so much for a fun episode. I will see you both and D&D tonight.
Craig: Thanks, guys.
Ken: See you later. Bye.
John: Bye.
Links:
- Ken White on BlueSky, Facebook and Threads
- Serious Trouble podcast
- The Popehat Report by Ken White
- Hello, My Name Is Stephen Glass, and I’m Sorry by Hanna Rosin for The New Republic
- LibreOffice
- Sovereign Citizens Getting Owned
- The Rest is History podcast
- Get a Scriptnotes T-shirt!
- Check out the Inneresting Newsletter
- Gift a Scriptnotes Subscription or treat yourself to a premium subscription!
- Craig Mazin on Threads and Instagram
- John August on Threads, Instagram and Twitter
- John on Mastodon
- Outro by Lou Stone Borenstein (send us yours!)
- Scriptnotes is produced by Drew Marquardt and edited by Matthew Chilelli.
Email us at ask@johnaugust.com
You can download the episode here.