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When Law Goes Pop

Interview with Richard Sherwin

Julie Scelfo | Issue #18

Sitting on his office couch beneath a poster of Andy Warhol's tomato soup can on a shopping bag, Richard Sherwin looks calm. Despite the fact that his recent book When Law Goes Pop: The Vanishing Line Between Law and Popular Culture (The University of Chicago Press, 2000) details the unraveling of the American justice system, Sherwin is convinced a solution exists. On a drizzly evening in November, I met with the full-time law professor at New York Law School to discuss the links between truth, justice, and the movies.

Stay Free: Was there a specific incident that inspired you to write the book?

Richard Sherwin: I showed my students Errol Morris's film, The Thin Blue Line, which is billed as a documentary. It uses the real parties in a real capital murder case. You see the defendant Randal Dale Adams, the real judge, the real attorneys, and the real witnesses. It's face-to-face, one-on-one interviews with all of these individuals.

This guy Randal Dale Adams was a scapegoat who was caught up in a corrupt Dallas criminal justice system, which the film amply revealed. Before showing it to my students, I would ask them to spot all of the procedural errors that we've studied together. They loved it, and it actually was a good review of various errors that took place in the courtroom at trial. But as I watched the film a few more times, I began to notice all the fictional material that Morris was using: all kinds of reenactments, film overlays, not to mention Philip Glass's hypnotic score . . . and that becomes particularly interesting when you realize that Morris's film prompted a review of the case. Randal Dale Adams was ultimately released from prison.

Stay Free: The film prompted his release?

Richard Sherwin: Well, the film was the catalyst that reopened the case. If Errol Morris did not make that film, odds are Randal Dale Adams would still be in a Dallas prison today. And perhaps it was in the interest of justice that this film ended up leading to Adams's release. What was interesting, however, was that in Morris's film you have any number of manipulative devices, fictional devices, being used to make a legal argument.

Stay Free: Something that surprised me in your book was the extent to which law has infiltrated popular culture. Legal stories have long dominated not just television but, before that, film and theater. How come? What is it about law that's so appropriate for popular culture and storytelling?

Richard Sherwin: Well for one thing, it's dramatic. The adversarial structure sets up a natural tension, like the Perry Mason formula, the great climax of revelation on the stand– "AHA! This is the guilty person! Not my client!" Also, law tends to incorporate the most violent and extreme kinds of behavior. This naturally appeals to our prurient interests and voyeurism.

Stay Free: It's not every day that there's an O. J. Simpson trial. Do you think jurors go into the court now expecting the same level of drama that they get from television and the media?

Richard Sherwin: I haven't done a scientific study, but what people see about law from the means of information available to them is highly distorted. If you tune in to Court TV for example, they say this is "justice without scripts." They bill themselves as a window onto real law. But of course it's not, it's television. If you track the kinds of trials that appear on Court TV, they follow the same dramatic formulas that succeed everywhere on TV. They're disproportionately violent, usually murders or gruesome sex crimes.

Stay Free: Like Law and Order: Special Victims Unit. It stepped up the titillation of the original show.

Richard Sherwin: Yes. Once you operate on the basis of that formula, you have no choice but to periodically jack up the stimulation. Even in Russia–I read today about newscasts in which the interviewers are nude. I think television tends to dissuade viewers from either reflecting on what they're seeing or even absorbing very much content. And the danger I perceive is that when you take the esthetics of TV entertainment into the courtroom, you're taking the same formulas for emotional provocation and sensation and gratification that you see on the screen. And that's a form of persuasion that tends to nullify deliberation.

I have nothing against entertainment and I love popular culture, but I worry when the law becomes synonymous with entertainment so that if you don't entertain, you're not convincing.

Stay Free: Could you explain the idea of the law going pop?

Richard Sherwin: The title works on a few different levels. On the one hand, I address what it means for law and popular culture to converge. Popular culture helps to create legal meaning. This leads to what might be called "pop law." There is a cautionary tale to be told about what happens when the law becomes too enamored of popular culture, when it becomes too much like TV and advertising. Then there is the association to pop art. Andy Warhol and the pop-art movement were really ahead of the curve in talking about how culture has become a commodity, and what it means to mass distribute images that then become utterly disconnected from lived reality. Finally, there's also the play on what happens when you stick a pin into a balloon–it goes pop. The ultimate threat to law is delegitimation, public disenchantment.

Stay Free: Do you think the law has become commodified?

Richard Sherwin: There's no question that it has. Law has always had a presence on TV and film, but now on top of that we have things like Court TV, Divorce Court, and Power of Attorney, where real attorneys become celebrities in their own right. These so-called "real life" television depictions of the law become even more insidious in a way because people who watch them are internalizing a sense of what law really is.

Stay Free: Are you saying the impressions viewers get from TV about how the legal system works has an impact on the judgments they make when serving as a juror?

Richard Sherwin: Absolutely. It's like a feedback loop: People who learn about the law through the media form certain expectations about how the law works and they bring those expectations into the courtroom. Trial lawyers need to meet people's expectations so they tend to emulate the form of communication people are used to.

Stay Free: What are some examples of how lawyers have modified their practices to adapt to the jury's expectations?

Richard Sherwin: One of the key shifts is the introduction of visual communication in the courtroom. The typical courtroom these days, more often than not, is lined with television monitors. It's a normal part of our lives to get information from the screen. Avi Stachenfeld, in Oakland, Calf., was one of the earliest attorney-filmmakers to provide visuals for lawyers. He said he knew he was on to something really big when he noticed that most people in a courtroom who were faced with the choice between looking at action live or looking at it on a monitor preferred to watch the monitor.

Stay Free: The way some people will bring TVs to football games?

Richard Sherwin: That's right. And jurors in modern courtrooms often have their own monitors. Depositions are being viewed on the screen. Distance-testifying via closed-circuit hookup is increasingly common. And if you're going to operate on the screen you have to abide by the norms of behavior that we're all used to.

Stay Free: In the book you call it "media logic."

Richard Sherwin: Think about politics today. That's a good example of where law is headed. What do we see? Very rapid-paced visual images using the same techniques of persuasion advertisers have been using for years. The quick sound-bite. The fast-cutting images. Think of Ronald Reagan's campaign tape in 1980. Since then, every presidential candidate has felt compelled to have his own version.

Stay Free: Like the Man from Hope?

Richard Sherwin: That's right. And they're very powerful.

Stay Free: In a Wall Street Journal article, one lawyer explained that he puts his lawyers through voice lessons so they can take depositions in the same tone that an anchorman uses.

Richard Sherwin: Right. I've heard judges tell me that when L.A. Law was at its peak, they not only expected lawyers to dress that way, but they expected two-and-a-half minute summations. You know, "Let's make this peppy." But what happens when you put stuff on the screen? You abide by the esthetics of the screen, you have to make things work using visual production values, and that changes everything. It changes politics, it changes journalism, it changes law.

Stay Free: Any good examples?

Richard Sherwin: There was a really big lawsuit in Texas which involved a claim of insider trading. A Texas company was suing Kidder-Peabody, a New York investment banking firm, because they thought every time an analyst came out to visit the company in Texas he would go back with information that would result in a spike of stock increases. So the Texas company felt they had to spend a lot more money for the takeover than they would have had the information not been exploited.

The question was, "How do you make this kind of circumstantial case palpable to a jury?" Stachenfeld helped come up with very compelling forms of visual persuasion. He used a digital map of the United States, with Texas disproportionately enlarged. It was illustrated with the Texas flag–which is inordinately loved in Texas, where the case was being tried. So you have this large state flag at the center of the map, then there's a very small state at the northeast end: New York. All of a sudden the faces of the Kidder-Peabody team come flying out of New York, with Mike Milken dead center, looking very much like the leader.

Then we see what looks like the Texas flag sweeping around New York, like a lasso. And what do you know? It's just like that popular salsa commercial that was playing all over TV at the time. You might recall–it's the one where these cowboys are around a campfire and this cook tries to palm off inauthentic New York salsa on these cowboys, and when they hear it's from New York, the cowboys go, "New York City?!? Get the rope!" And then you see the poor cook tied up by the campfire at the end.

What Avi was doing here was creating association–the familiar "us/them" antagonism–Texas against New York. But it's only intimated indirectly.

Stay Free: So Avi used visuals to create an emotional response?

Richard Sherwin: Yes, inevitably the video elicits an emotional response that is operating on a subconscious level. There's a very famous video that was offered in lieu of an oral summation in a case involving Price-Waterhouse. The video was used by the plaintiff, who was suing Price-Waterhouse for negligence. The video was trying to say, "We lost a lot of money because Price-Waterhouse failed to notice warning signs at the bank they were auditing."

So what they did in this visual is they start off with an image of the Titanic leaving port, using original documentary footage. The Titanic–the largest sailing vessel in its class, you know this notion of the unsinkable, the largest, the best. Well it sank, didn't it? It sank because of negligence. Throughout the video, the plaintiff's lawyers cross-cut between images of the Titanic and the warning signs that Price-Waterhouse accountants ignored. And what's interesting is that while the summation starts with documentary footage, it then cuts to a feature film made in England in 1957 called A Night to Remember. So now you see the captain pocketing warnings, you see water cascading into the lower decks and at one point this serious narrator will say, "inexperienced auditors were being used just as in the Titanic," and they'd flash to sailors scurrying out of the lower decks. This was in Arizona.

Stay Free: And the judge permitted this tape to be used in court?

Richard Sherwin: He did, although they got into trouble later, on appeal. But at the trial, the judge told the lawyers that since this case involved lots of numbers, he invited them to do something that would keep the jurors awake. So I guess he couldn't very well preclude the video since it accomplished exactly what he wanted. In fact, I think that the jury award in that case was something like $350 million. So these are very powerful tools.

Stay Free: In the American legal system, lawyers are supposed to rely on legal arguments, not emotions. What happens with trials based on these types of intangible–and in some cases subconscious–methods, as opposed to the traditional oral arguments based on substance?

Richard Sherwin: The biggest fear associated with visual persuasion is that the ideal of rational deliberation is being short-circuited by a more emotional form of judgment. The fear is that certain forms of prejudice which might not work through an oral presentation can work visually because visual images are so overdetermined. Floating around somewhere in the subterranean depths of the image are useful associations. One of the things I'd like to accomplish with the book is to educate judges about the complexity of visual imagery so they can deal with the dangers of prejudice more effectively.

Stay Free: Are judges reading the book?

Richard Sherwin: I'm in touch with judges, and they are eager to get input because they're seeing more and more visuals in court, like surveillance videos that have been edited. Think about the Rodney King case where you had a prosecutor who was absolutely convinced that it was an open-and-shut case based on the George Holliday video, which showed King being beaten by the police. Little did he realize that by re-editing the images, the attorneys defending the L.A. police officers, in the first criminal case, totally changed the story.

Stay Free: How did they edit the video?

Richard Sherwin: The defense team slowed it down tremendously, so you saw frame-by-frame sequences that softened the violence. But even more devastating to the prosecution was a re-pacing of the images in coordination with the defense theory. The defense theory was that Rodney King was in control and that if he had assumed the prone position as instructed, none of this would have happened. The only reason he was struck, went the argument, was that he resisted arrest. And what the images showed in this slowed-down form was Rodney King rising up and a baton coming down.

Stay Free: In that order?

Richard Sherwin: In that order. When King's limb would go down, the baton would go back and then another limb would rise up and another baton would come down. And this was what the jurors saw. In other words, they read causation into the imagery. The defense orchestrated the tape so that jurors would infer causation.

Stay Free: Which is counterintuitive. One would think the videotape would have caused the jury to leap to the conclusion that the officers who beat King were guilty.

Richard Sherwin: The prosecutor constantly urged the jury to watch the tape, without saying anything more. "Just watch the tape." But what he didn't realize was the other side had colonized the meaning of the images by telling the story in a different way, so that when people watched the videotape they read it through the prism of the defense's story. The prosecutor offered no narrative of his own, so this was the only story the jury had available. They used it to organize the information contained in the tape. Cognitive psychologists have shown that the way people reach judgments in legal cases is by telling a story about what happened. Lawyers win cases by telling the best story–the one that captures the most evidence, the one that makes the most sense, the one that's the most compelling. And if you don't tell a story, if the other side is telling a story and you are simply giving fragments of an argument, you will have a much harder time capturing the belief of the jury.

Stay Free: I don't know how you feel about the King verdict, but do you view the use of visual technology as a triumph?

Richard Sherwin: I'm a big advocate of the adversarial system, but only if it's really working. So if a lawyer or a judge is insufficiently literate in a medium, such as the visual medium, then the use of that medium might not be subjected to cross-examination. And if it's not being tested in that way, then the adversarial system isn't really working. So my beef with the King case is that the defense had it too easy. If a prosecutor with the same storytelling ability and the same visual savvy competed for the jury's belief, in that case, I think we would have seen a different outcome.

Stay Free: In other countries, specifically Canada, they've had media literacy as part of their education for a long time. Media critics in this country have long lobbied for it here. When will we get it?

Richard Sherwin: The United States has always lagged behind the world in media literacy. You know, paranoid fantasies might suggest why that's been the case and who's in control here. I don't know. It seems to me one of the objectives when you live in a democracy is to have a meaningful flow of information. A meaningful exchange. This has always been the premise of our government from the days of our origin. You cannot have a flourishing democracy if people are not adequately informed. Especially given the distorting influence of television, I think media literacy is essential to an informed electorate, and an informed jury. And if you're responding to images because they remind you of a film, or they elicit an emotional response based on an advertisement that you like, this is not consistent with the ideal of deliberative discourse we should be aiming for.

You've basically added yet another reason to endorse media literacy, which is that it also helps enable citizens to better contribute to the judicial process.

That's right. I think the consumption of information is the most important act of consumption there is. And if we don't do it in a discriminating way, our political fate is up for grabs, and at risk.

Stay Free: We're at the beginning of an entirely new millennium. What are the things that people need to do now to try to prevent law from going pop?

Richard Sherwin: It's related to what we were just saying about cultivating more critical reflection, learning skills for interpreting what you're seeing. Also, of course, there has to be a willingness to go beyond the surface pull of images. One thing that is true about the postmodern era is that trying to distinguish between fiction and reality, or between fantasy and reality, is getting harder. To the extent people make political or legal judgments that have no anchor in real life but instead take their impetus from film or television–that's a disturbing thought. One of the reasons The Matrix was such a popular film perhaps is because it touched this nerve, that maybe we are living in that kind of free-floating world of images, and maybe it doesn't matter. If it's only images that we create and react to, if there's nothing else to get to, then let's just go along for the ride. It's like Quentin Tarantino's world in Pulp Fiction: violence is funny. Making real life ultimately depend on entertainment values is, in my way of thinking, a scary thing when it comes to politics and law. In the movie theater, maybe not, but in politics and law, yes.

Stay Free: You brought up postmodernism, the one thing I took you to task for in my review in Brill's Content . . .

Richard Sherwin: There's a sense of endless play and irony because they're not going to be tricked into believing anything. Everything is up for grabs, it's all grist for the entertainment mill. The problem with that is at some point we have to affirm something. And simply affirming irony and playfulness never allows us to touch down. Like just breathing nitrous oxide, you don't have sufficient nourishment to bring you back to earth.

Stay Free: So you're saying that there has to be some reality somewhere.

Richard Sherwin: I'm not saying there needs to be some reality in the familiar sense of some provable objective thing, this is it. But there are meanings and values and beliefs that we can affirm even while knowing how they're constructed. You can watch a movie and enjoy it, go to a class, have it dissected, watch it again and enjoy it even more. If you understand how it was created and how it was made to work you can still watch it the very next day and still be captured by its power. Eventually you need to affirm some sort of meaning. Eventually. A steady diet of disenchantment is insufficiently nourishing to have a good life. We need to make clear what our beliefs are and to affirm them, and what are value are and to affirm them.

Stay Free: How would you respond to critics who say, "Well, you're a lefty, you're saying society's coming apart, that law and media and entertainment and reality are all getting jumbled up, but really it's always been like that. People have always turned to fiction and fantasy to understand their own lives and to interpret their own lives."

Richard Sherwin: I think that's all right. I agree. But we have to know how these different things are operating. The question is not "Can we eradicate fiction from our lives?" The more important question is: When fictional interpretations have real-life consequences in politics and law, how are they affecting life around us? We shouldn't simply indulge in the self-delusion that since it's only fiction, or only an image, let's just go along for the ride because it's a nice sensation. I'm not against sensorial buzzes, but I wouldn't want to have someone's life in a capital murder case depend upon it.