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.