Film Review: Brian J. Kelly’s “InJustice” Documentary

Two weeks ago, we here at Abnormal Use offered our review of Plaintiff’s attorney Susan Saladoff‘s anti-tort reform documentary, Hot Coffee, which discussed, in part, the infamous Stella Liebeck McDonald’s hot coffee case.   We were critical of the film, chastising Saladoff for her editorial choices and potential lack of objectivity, particularly in light of her past as a trial lawyer and affiliation with numerous Plaintiff’s lawyers organizations.  Tonight, at 10/9 Central on the ReelzChannel, filmmaker Brian J. Kelly premieres his own documentary and analysis of the courts, InJustice. This project was funded in part by the U.S. Chamber of Commerce, one of Saladoff’s favorite targets in her own film.  Just as we warned you of Saladoff’s possible bias, so too must we advise you that Kelly’s documentary (which excoriates the legal system and the Plaintiff’s bar in particular) may not come from the most objective of sources.  Kelly was kind enough to grant us an interview regarding the film and its agenda.

InJustice purports to offer an in-depth look at the rise and fall of the so-called “kings of torts,” the wealthy and successful Plaintiff’s lawyers like Richard Scruggs, Melvyn Weiss, and William Lerach.  In so doing, Kelly seeks to illustrate the alleged faults of America’s litigation system.  Using interviews with lawyers, InJustice suggests that class-action attorneys have enriched themselves by perpetrating questionable asbestosis, silicosis, tobacco, and securities litigation, while their clients see little, if any, of the spoils.  The film also highlights how these kings of tort made their fortunes outside of the courtroom.  Specifically, the film digs up a quote by Scruggs, who apparently once remarked that the practice of law is a three-legged stool:  legal tactics, political pressure, and public relations.  The men used this hypothetical three-legged stool to perfection, pressuring corporate defendants into settling allegedly baseless claims without ever actually taking the cases to trial.  The men appeared invincible until their questionable tactics backfired on them.  InJustice closes with the story of how each man found himself facing his own judicial woes: judicial bribery (Scruggs), concealing illegal payments to clients (Lerach), and conspiring to improperly pay off plaintiffs (Weiss).

InJustice features interviews with defense lawyers who practiced with Scruggs, Weiss, and Lerach; however, the most compelling interview probably comes from attorney Charles Merkel, Jr., who described Scruggs’ use of the three-legged stool analogy.   Through these interviews, the film aims to demonstrate how well-trained plaintiff’s lawyers can manipulate the system and make millions of dollars without ever seeing the inside of the courtroom.  The story is intriguing and well-told; however, we here at Abnormal Use question whether these so-called kings of tort are a representative sample of the civil litigation system.

Like Hot Coffee before it, InJustice advances an agenda, and Kelly does so well.  Those who watch the documentary will likely be disgusted with the way the kings of tort are portrayed as manipulating the legal system for their own pecuniary gain.  Certainly, the extrajudicial tactics, coupled with the criminal consequences, of the film’s subjects may leave many viewers believing corporations are often the victims in trumped up class action lawsuits.  However, as noted above, InJustice is crippled by one major problem – films funded and promoted by special interests groups can never paint the whole picture or be relied upon as an objective account of a societal problem.

Unlike Saladoff, Kelly is not a lawyer.  Prior to making his new documentary, he made films about such things as the Blue Angels and the Cuban Missile Crisis. However, just like Saladoff, Kelly uses the documentary medium to promote his own opinions about the faults of the legal system. Like Saladoff before him, Kelly acknowledges that there are two sides to every story.  In an interview with Abnormal Use, Kelly insisted that he “tried to look at the other side that’s not typically covered.”  Unlike Hot Coffee, which Kelly believes is “based on opinion,” Kelly told us that with InJustice, he was looking at “right and wrong.”  In a sense, Kelly is correct – InJustice does focus on fully adjudicated cases and leaves much of the speculation up to the viewers themselves.  However, InJustice, like Hot Coffee, is an opinion piece, using stories of a few to draw categorical inferences on the system as a whole. In fact, it was Kelly own bad experience with the legal system that prompted his desire to make the film.  In a recent interview, Kelly told The Blog of Legal Times that he decided to pursue the project, in part, due lawsuit filed against him by a prior tenant.  Kelly prevailed in the suit, but only after amassing $80,000 in expenses defending against the plaintiff’s claims.

Not only does Kelly exhibit a potential bias against the legal system due to that suit, so too does the film’s principal sponsor, the U.S. Chamber of Commerce and its Institute for Legal Reform.  In our interview , Kelly noted that he initially pitched the film to cable network channels such as the Discovery Channel but received little interest.  A business associate in Washington, DC connected Kelly with the U.S. Chamber of Commerce, which ultimately invested in the project. Kelly insists that he accepted their support only upon the precondition that he would maintain editorial control.  Says Kelly: “We were able to work out a deal where they knew what we were out to do.  They really had to let us go and trust us to do what we set out to do.”  However, in the screener of the film we saw, the U.S. Chamber of Commerce is never specifically acknowledged as a producer or funding source in the film’s credits (although it is promoting the film and noting its support on its websites here and  here). Accordingly, it will be very difficult for InJustice to maintain its sense of independence and credibility, particularly in light of recent criticism by people like Saladoff who contend that the U.S. Chamber of Commerce is mounting a secret campaign to influence public opinion on the judicial system. In fact, InJustice may play right into their hands.

Indeed, we here at Abnormal Use were initially contacted about the film by a Washington, DC consulting firm, Hamilton Place Strategies.  On its website, Hamilton Place bills itself as a bipartisan policy and communications firm, an odd entity to be promoting a television documentary film.  The firm’s public policy advisory unit, HPS Insight, was founded by two alumni of the George W. Bush administration.  Further, that firm’s partners include members of President George W. Bush’s staff and advisers to Senator John McCain and Representative Paul Ryan.  If the firm has any members affiliated with the Democratic Party or more liberal groups, it was not readily apparent on the website.

We’re somewhat troubled by the arrival of two documentaries arriving with weeks of each other both attacking the judicial system from different perspectives. If Hot Coffee and InJustice were screened together, many viewers would probably leave the theater believing that the denizens of our judicial system – from the Plaintiffs lawyers suing corporations to the corporate defendants themselves – are corrupt and dominated by parties only out to protect their own self-interests by whatever means necessary. As officers of the court, we’re not sure that’s the best message to send, nor do we believe that the system is beyond repair (or even as disabled as Saladoff and Kelly contend).  Hot Coffee and InJustice both fail in one key aspect – they focus on exceptions rather than rules.  Saladoff’s selective presentation of the cases in Hot Coffee does not mean that tort reform is unnecessary, nor does Kelly’s highlighting of the ill-advised tactics of Scruggs and Weiss offer proof that all trial lawyers are somehow sinister and corrupt.  The cases presented in these two films are sensationalized exceptions, not the judicial norm.  In the end, though, InJustice is an opinion piece no better or worse than Hot Coffee.

Comments

  1. I liked your review of the film.

    However, I do not agree with your equation of the film to “Hot Coffee”.

    I think that Saladoff’s film DID show that there is a wide-ranging national campaign to curb the Seventh Amendment civil rights of the average person to a jury trial and that this coordinated campaign is almost invisible to the average citizen. She shows that political actions that appear unrelated on the surface (such as legislation and judicial elections) are actually part of the same campaign to strip down Constitutional Rights without an obviousness of changing the Constitution itself. The fact that these different political activities are being financed by the same organizations for one specific goal is clearly and inarguably shown by Saladoff.

    (As is mentioned in her film: The Seventh Amendment of the Constitution says that in civil cases, “…the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined…” The amount that a person was damaged by another is a “jury determined fact.” By the Constitution, no court can reexamine that fact. TORT reform that places a cap on damages is a way of changing a “fact” determined by a jury thus thwarting the Seventh Amendment to the US Constitution.”)

    While Kelly’s film focused on the criminal acts of specific lawyers and is being funded and used by an organization as an argument FOR Tort Reform. However, this is a false argument as, under TORT reform, those who were defrauded of their settlements by these lawyers may find that they could only receive a fraction of THEIR money due to the settlement caps put in place by TORT reform laws! (The very laws that are being put forward to fix these problems!)

    Kelly’s film creates sympathy for the individual victims of unscrupulous lawyers, but the fact that he does not address how these victims may lose out because of TORT reform, combining that with the fact that this film was funded by and IS BEING USED as a platform to ARGUE FOR TORT reform to “solve these problems” can only be labeled as “grossly misleading propaganda.”

    I have yet to see anyone claim that Saladoff has done any thing similar in her film, other than the fact that she is guilty merely by virtue of having been a trial herself.

    (As a point of disclosure, I am not a lawyer nor am in any way affiliated with Saladoff or the film, but a chef who has no other investment in this argument other than his constitutional rights.)

  2. Tort Victims says:

    I am not a lawyer, but am a citizen residing in Texas who witnessed, along with 7 other family members, the killing of our father. The corporation responsible for the person who did this, reported that dad died of natural causes. I don’t know if you can call someone drowning in the medication forced into their upset stomach as natural, but the image that plays back daily of dad flailing arms and legs for his last breath was not considered a natural death in his family’s opinion. The reality of his family having to give him CPR as the “Nursing” staff stood dazed and had no clue of what to do, was not natural. The emergency room doctor agreed that aspiration was cause of death. Although the nurses admitted they were not trained on how to use that AED on the Crash Cart and they admitted the medication was shooting out of the tube before they forced the 150ccs of fluid into his stomach with a plunge, the Department of Disabilities and Aging rubber stamped their report and refuted our claim as unsubstantiated. In other words what we saw did not happen, and we should just move on and get used to it. Tort Reform in Texas is allowing these Corporations to get away with hurting and even killing citizens who have no recourse as the caps on damages have eliminated access to the courts. They can change the event of what happen, saying it did not happen, and they are able to do that without fear of accountability. That is a scarey propostion for our most vulnerable. The aged, handicapped, and our children, who are not contributors financially, are punished with no court access when harmed or even killed by a corporation’s incompetence. The regulating of these corporations is done by Government departments created and appointed by the Governor, who is a huge defender of Tort Reform. We who have lived the dark side of Tort Reform would not call it the exception. How many lives are worth the so call jobs created by Tort Reform? How many more must die before this injustice is corrected? Tort reform has defined all lawsuits as frivolous lawsuits for a large segment of our most vulnerable people. THIS IS IMMORAL AND IT MUST CHANGE!

  3. Summary Judgment, is another way of keeping us out of the courts, please see liggins vs. McDonnell Douglas, Boeing, International Association of Machinist. If you want to see a rare view of how are court systems are ran. And the injustice poor people face. This is an 18 year battle that still wages on.

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