[Editor’s Note: This coming Saturday, October 23, 2010, marks the fiftieth anniversary of the release of the classic Western movie, The Magnificent Seven, which starred Yul Brynner, Robert Vaughn, Charles Bronson, James Coburn, and of course, Steve McQueen. Directed by John Sturges, the film was based upon the 1954 Japanese film, Seven Samurai, directed by Akira Kurosawa. To celebrate this occasion, we here at Abnormal Use asked our boss – senior partner Mills Gallivan – for his thoughts on the film and lessons we can learn from it as lawyers.]

“If God didn’t want them sheared, he would not have made them sheep.”

If you are familiar with this quote then you are probably a fan of Westerns and, in particular, The Magnificent Seven. This cult movie is on most, if not all lists of the Top Ten Westerns ever made. This week marks the fiftieth anniversary of the film’s American release. The movie was originally released in Europe and was so popular that it was re-released in America and immediately became a huge hit and financial success. The musical score for the movie was composed by Elmer Bernstein and nominated for an Academy Award in 1961. The theme song is stirring and has been used in numerous other movies, musical compositions and ads, including the old Marlboro commercials. Anyone over the age of fifty would immediately recognize it.

The movie is inspiring as you watch a small band of dedicated professional gunmen take on huge odds in the defense of a hapless Mexican village. I recently read about a college football coach who shows the movie to fire up his team the night before each game. Throughout his career, he has now shown it over 500 times to his various teams.

The quote above is from Calvera, the bandit who regularly pillages a small village in Mexico. He is speaking to the members of the Magnificent Seven, and trying to talk them out of defending the villagers, who he sees as his sheep. His is a great rationale if you are a bully and a thief! As you might expect, this argument does not persuade the seven professionals who have taken the job on a matter of principle. Consider the following exchange between Chris (Yul Brynner) and Vin (Steve McQueen), the two leaders, about their commitment:

Chris: You forget one thing. We took a contract.
Vin: It’s sure not the kind any court would enforce.
Chris: That’s just the kind you’ve got to keep.

So what does this have to do with products liability law?

Oftentimes, corporate defendants in products cases feel much like the villagers in the movie, victimized, bullied and about to be sheared. Certainly, the villagers are much more vulnerable and sympathetic than a corporate defendant. However, the often perceived motivation of the plaintiff’s trial bar is sometimes very similar to that of the bandit Calvera. This motivation can be greed, which is fueled by money and power. One has only to look at the tragic demise of the now infamous trial lawyer Dickie Scruggs to understand that for some plaintiff’s lawyers, justice is not the ultimate goal. Scruggs plead guilty to mail fraud and bribery and when Judge Glen Davidson imposed his sentence he quoted William Barclay, a Scottish philosopher, who said, “The Romans had a proverb that money was like sea water. The more you drink the thirstier you become.”

So what makes The Magnificent Seven magnificent? I like to think it is their courage in the face of insurmountable odds and their unwillingness to cut and run when given the opportunity. One definition of magnificent is noble, and these hired guns see their salvation in taking up the noble defense of the villagers. They are determined that Calvera will not shear the villagers again without paying a heavy price. The bandit releases them after the first skirmish, thinking that they really are not willing to die for peasants who can not pay them and who will not fight for themselves. The concept of a noble cause also resonates with good defense trial lawyers; as a group we believe in our clients’ positions, seek justice and will not be intimidated by an adversary or judicial hellhole. Calvera underestimated the commitment of the men he faced and it was a huge mistake.

Shortly after being released and ordered back across the border to Texas, James Coburn’s character Britt foretells the final showdown when he says: “Nobody throws me my own guns and says run. Nobody!”

A capable plaintiff’s lawyer will not underestimate the defense legal team, or at least, not more than once. So when you are in a battle to defend your products and keep your company from being sheared, where do you turn? After fifty years, six of the members of the Magnificent Seven are dead, and the lone survivor Robert Vaughn (Lee) is an actor not a lawyer.

When it is all on the line, you need defense trial attorneys with consummate skill, integrity, courage and a willingness to fight to the last barricade. Lawyers who know that ultimately justice can and will prevail and who are not afraid to say to the Calveras of the world:

Calvera: Somehow I don’t think you’ve solved my problem.
Chris: Solving your problems is not our line.

The new legal drama “The Defenders,” not to be confused with the superhero team of the same name, premiered last Thursday night on CBS. The premise: Nick Morelli (Jim Belushi) Peter Kaczmarek (Jerry O’Connell) are rough and tumble criminal defense attorneys practicing in Las Vegas. The two name partners are not alone. Joining them is brand new associate Jess Merriweather (Jurnee Smollett, formerly of the excellent “Friday Night Lights”), who is mercilessly mocked by a menacing assistant district attorney for having paid for law school through exotic dancing. Although the program maintains a silly charm, it harbors the same sorts of lawyer cliches and conventions that we’ve seen on network television for decades. Alas.

Belushi, in this clip , describes the two leads as “working class guys who passed the bar and have a great street sense how to figure out the angles.” They go out into the field the day before trial and find new evidence or formulate new theories which ultimately save the day for their previously doomed clients. They’re brash, they’re smug, and they delight in their refusal to play by the book. TV critic Alan Sepinwall curiously referred to them as “ambulance-chasing Vegas defense lawyers,” although there is no reference to them practicing personal injury law.

Here is what I learned about the practice of law from the program, and the top medical malpractice attorneys in Chicago shall also agree with the same:

As in all other television courtrooms, a lawyer can simply object by saying “Objection!” with some level of aplomb, and the court will rule thereupon. Presumably, this preserves error, as it happens so often on television without any ill effect.

At a charge conference, a defense lawyer can condescendingly yell at the judge, “You are wrong!” when a requested jury instruction is rejected.

Criminal defense lawyers, upon leaving said charge conference, advise their partners to handle the judge’s rulings as follows: “Screw him! Instruct them yourself!”

Prosecutors, rather than objecting, simply rise and scornfully ask “Judge, is there a question here?” when opposing counsel is querying a witness.

Judges, rather than ruling upon objections from the bench, say things like “leave the editorials for the papers.” (This is strange, too, because no one reads newspapers any more, right?)

First year associates are apparently already licensed on their first day at work, as they are left to fly solo at arraignments by partners too busy to accompany them.

Young male partners at criminal defense firms negotiate pleas by sleeping with ridiculously attractive and formidably ambitious female assistant district attorneys, and vice versa.

We’ve always dug Jim Belushi (especially in 1990’s Mr. Destiny), but we can’t say we’re too familiar with his modern television career, never having seen any of the 182 episodes of his sitcom, “According to Jim,” which apparently aired for eight years. O’Connell, for his part, we remember fondly from 1985’s Stand By Me, and his brief appearance in 1996’s Jerry Maguire, in which he did his own acoustic cover of Nirvana’s “Something in the Way.”

Let’s face the facts. Television writers are not lawyers. Their only legal education, so to speak, is watching the myriad awful television shows written by other television writers ignorant of legal practice and procedure. Thus, stereotypes and inaccurate portrayals are compounded and perpetuated indefinitely.

Apparently, and unfortunately, NBC is determined to reboot its fateful 1980s series, “Knight Rider,” in the form of a new legal drama. You heard me right. Today, we here at the legal blog Abnormal Use review NBC’s new television show“Outlaw,” a heavy handed new lawyer show which premiered last night. As a series, it takes the aforementioned “Knight Rider” formula (unfortunately the 2008 version) and attempts to apply it to a would-be legal series. Sigh.

Before I lose the readership in this comparison, allow me some introduction and factual development. “Outlaw” is one of NBC’s attempts to return to scripted programming after “The Jay Leno Show” debacle. I was a bit skeptical of the premise when I read that Jimmy Smits portrays “former Supreme Court Justice Cyrus Garza, a playboy and a gambler who always adhered to a strict interpretation of the law until he realized the system he believed in was flawed.” But there’s always hope, however naive, that NBC will come up with a decent legal drama before the “Law and Order’ concept becomes too worn.

Here’s the plot summary: Cyrus Garza is “arguably the most conservative justice” on the Supreme Court. Cyrus has a problem because he feels like he has let down his dear old dad, a recently deceased lawyer-activist who championed liberal causes. After a one night stand with an twenty-something ACLU member, Cyrus realizes that conservatism is innately wrong, and before resigning his appointment, he grants a new trial to a convicted cop killer. Cyrus joins a law firm (at which Jan from “The Office” is the managing partner) and assembles a team who will fly all over the country righting wrongs perpetrated by our justice system. Cyrus then becomes the head lawyer on the defense team of the cop killer. His team discovers evidence not presented at trial establishing that the dead cop’s husband actually killed the cop. I will affirm that I in no way have embellished the plot. If this were not enough, Cyrus owes his bookie $250,000 and will have to pay at some point during the next three months.

Here’s the deal. As you can tell from my summary, the premise of the show is absurd. But as we’ve noted before, real life law practice can be pretty boring, so I’m not asking the show to be real. Legal Knight Rider though, is a bit much. The dialogue beats you over the head with the idea that Cyrus is sick of preserving a justice system at the expense of the innocent. He actually says things like “I’m hurting the people that I should be protecting.” By the end of the show, after Cyrus and company free the innocent man, it’s clear that “one man can make a difference.” The absurdity of the premise will likely mean the end of the show. Cyrus had his epiphany in episode one. He is now a crusader, a man of great moral fiber. What is left to do now? There’s no internal conflict in the protagonist. Trying to give Cyrus instant depth works against the longevity of Outlaw. And it promotes the same hackneyed legal plots. Moreover, there is no sense that there will ever be any real characters other than Cyrus. He has three lawyers and a private investigator that work under him, but the characters all seem a bit fungible. It’s possible they were cardboard cutouts, or to be less harsh, merely extensions of Cyrus himself, since even this champion of the people can’t be in two places at once or carry on an extended dialogue with himself. I would not be surprised if, at some point in the future, we discover that Cyrus has an evil twin, allowing Cyrus to carry on conversations with evil Cyrus. This would ensure that we all know that Jimmy Smits is the main character on the show.

From a legal standpoint, do you think there is anything questionable about the judge who essentially overturns a murder verdict becoming a lawyer for the criminal defendant? The show also asserts a stale take on jurisprudence, namely, that the court is not really an actor in our legal system. You kind of get the feeling that, without Cyrus preaching about the real meaning of justice, the judiciary would sit around for the next few years, throwing their hands in the air, not knowing what to do about all the terribly conservative legal precedent, and let a lot of innocent prisoners be executed. Thankfully, there is the Outlaw, who I presume to be Cyrus. Now judges everywhere will be able to take some steps to move our system forward. Yet again, one man can make a difference. The passivity attributed to the judiciary is too much. It takes the form of powerlessness rather than stare decisis. I don’t know anyone who thinks that the judiciary is powerless. But apparently Cyrus does, because after all, he quit his lifetime appointment on the world’s most powerful court to dispense some real justice.

That being said, this show isn’t nearly as bad as the freshman lawyer drama, “The Deep End.” To be reminded of why that show lasted 5 episodes or so, please revisit our initial review of that show here. But “Outlaw” isn’t really that good either. It’s obvious that NBC is depending on Smits‘ star power to carry the show. In fact Smits‘ bio on the cast page recites the phrase “critically acclaimed” about Smits or his prior work six times. Notice I said prior work. Will Smits enjoy the same success as had by Joe Mantegna, who spurred CBS’s 2002 Supreme Court drama, “First Monday” to an amazing 4-month, 13-episode run? Only time will tell. Meanwhile, I hope the writer’s will immediately begin to add something to this so-far bland show.

The pilot episode of Outlaw aired at 10 p.m. EDT on NBC. The episode was written by John Eisendrath and directed by Terry George. The cast includes Jimmy Smits (Cyrus Garza), David Ramsay (Al Druzinsky), Ellen Woglam (Mereta Stockman), Carly Pope (Lucinda Pearl), and Jesse Bradford (Eddie Franks).

Although there are no doubt a litany of issues considered by a drugmaker prior to its ceasing production of a particular medication, it’s unfortunate to see such an incredibly useful product withdrawn from needy markets as the result, at least partially, of two anomalous events such as these, neither of which has anything to do with an inherent defect in the drug.

Above: A promotional still from the new ABC series, “The Deep End.”

In an attempt to keep this blog refreshing, the powers that be have consented to a minimal amount of frivolous Friday posts exploring the depiction of the legal profession in popular culture. Today’s post reviews last night’s series premiere of The Deep End, a legal comedy/drama on ABC shown from the perspective of five first-year associates at a BigLaw Los Angeles law firm, Sterling, Huddle, Oppenheim & Craft, not to be confused with Sagman, Bennett, Robbins, Oppenheim & Taft, a firm with a much more esteemed place in TV history.

It’s easy to attack The Deep End for its utter lack of realism. No one would watch a show about associates sitting in their offices 11-12 hours a day staring at documents and holding Dictaphones. So don’t expect realism. Really, don’t. A bitter custody dispute between a mother-in-law and daughter-in-law over the grandson/son ends with the litigants holding hands. (How many bitter family law cases do BigLaw first year associates handle? Don’t ask.).

From a legal perspective, the depicted firm has several strange conflicts of interests. Cliff Huddle (Billy Zane), the Managing Partner, schemes against his firm’s own pro bono client, while new associate Beth Branford (Leah Pipes) fails to protect an elderly, vulnerable corporate CEO (although it wasn’t especially clear who the actual client was or should be – the corporation itself or the officer in his individual capacity.). There is a seemingly ex parte meeting with a judge. Another first year associate, Liam Priory, (Ben Lawson) almost breaks an ethical rule by having sex with a client, but thankfully, any sexual activity that may or may not have occurred took place before any retention agreement was signed. For a group of lawyers who purport to work 24/7, they seem to find enough to time to gather together to lament the fact they work 24/7.

Moreover, the show is simply predictable and boring, flaws which are not confined to legal dramas. Plots and characters are far from compelling, and cliches abound. The idealist associate wins in the end. (Of course). The spineless associate suddenly shows some backbone, earning respect for suddenly showing courage. The privileged associate fails to stand up to her overbearing father, provider of the privileged status. In addition, the writers offer awkward exchanges of dialogue in an attempt to capture the essence of first-year lawyering, e.g., (“Q: Are we supposed to love this job or hate it? A: Both.”). (This dialogue is said with excited smiles). I suppose that some of the shaky camera style was supposed to give us the feeling of a first year as well, along with first year associate Dylan Hewitt’s (Matt Long) constant hugging of his briefcase when things get tough. Yes, you are scared about failing. We get it. What I don’t get is why these first-year associates even have jobs. Who is this firm’s recruiting coordinator, who, I should note is conveniently absent from the pilot episode, perhaps due to the poor hiring choices?

The pilot episode of The Deep End aired at 8 p.m. EST on ABC. The episode was written by David Hemingson and directed by Michael Fresco. The cast includes Matt Long (who plays Dylan Hewitt); Leah Pipes (Beth Branford); Ben Lawson (Liam Priory); Tina Majorino (Addy Fisher); Billy Zane (Cliff Huddle); Nicole Ari Parker (Susan Oppenheim); and Clancy Brown (Hart Sterling).