Courtroom Lessons from the Marshall Movie

Imagine this. It’s 1941, and the NAACP dispatches a young Thurgood Marshall to a picturesque Connecticut town to defend a black chauffer accused of repeatedly raping a prominent white socialite, binding and gagging her with strips of her own dress, and throwing her off a bridge into a lake.

The headlines are going crazy. A local white man writes a letter to the editor saying, “we should have hung all n*****s while we had the chance, and trust me it would make the world better.” Imagine what it was like trying to pick a jury in that environment.

Except that statement was not printed in a newspaper in 1941. It’s actually what a white high school student said to an African-American girl on Snapchat in 2017, in the affluent mostly-white suburb where I live and saw the movie Marshall with my wife this past weekend.

So, yeah, you could say the movie is still relevant 76 years later.

But don’t go see Marshall like it’s homework or some rite of atonement. What makes it a great movie is that it’s a classic Hollywood courtroom drama, spiced up with some odd-couple buddy-cop flavor. The fact that it also serves as a sort of origin story for the most successful civil rights lawyer of the 20th century is icing on the cake.

On the Five Minute Law Movie Scale, I give it 0.4 hours (that’s on a scale of 0.1 to 0.5 hours).

Granted, I’m a trial lawyer who loves stories from the civil rights movement, so they had me at the preview. Chadwick Boseman could have made any half-way-decent movie about the sensational Joseph Spell trial, and I would have been hooked.

But Marshall was even better than I expected, and one reason is that the courtroom scenes were relatively realistic (by Hollywood standards). In fact, I took away from it some practical lessons on how to be a better trial lawyer. Here are nine of them.

*SPOILER ALERT: These tips contain minor plot spoilers. But if you’re like my mom, who figures out every plot twist in the first 15 minutes of a movie, then I’m not really giving much away.

1. Clients don’t always tell you the whole story

I’m sure Thurgood Marshall believed all defendants have a right to counsel, but a key part of the NAACP’s legal defense strategy was to focus on defendants they believed were actually innocent. This was important to the overall political strategy and to fundraising.

So, one of the first things Marshall (Boseman) does is interrogate his new client, Joseph Spell (Sterling K. Brown), to assure himself that the man is actually innocent. But would you believe that Spell doesn’t tell Marshall the whole story in that first interview?

More about that later.

2. Don’t rely too much on stereotypes for jury selection

On paper, she’s a terrible juror for the defense: a white woman who grew up in North Carolina and now rubs elbows with Connecticut high society. Local defense counsel Sam Friedman (Josh Gad) is ready to strike her, but Marshall says not so fast. She’s an educated woman with a mind of her own, her body language towards the “Yankee” prosecutor showed some hostility, and she likes you, Marshall tells Friedman. Plus, Marshall has a hunch this lady may know things about the victim, Eleanor Strubing (Kate Hudson).

The result: the white socialite gets on the jury. She even becomes the forewoman.

When you have no other information about a juror, you may have to fall back on demographic profiles, but jury consultants say that attitudes about case-specific issues are a better guide than stereotypes. And of course, it never hurts if a potential juror likes you.

3. Some things are better left unsaid

Mrs. Strubing strangely claims that after her chauffer threw her over a bridge into the water, he threw rocks at her. So, when Friedman cross-examines the local police captain who inspected the scene, he asks whether any rocks were found on the bridge. The captain can’t recall.

Friedman then dumps a pile of pebbles on the prosecutor’s table. Would you call these pebbles or rocks, Captain? The witness eventually admits they are pebbles, prompting chuckles from the jury.

The unsaid part: the fact that Marshall collected the pebbles at the scene. The defense never offers any witness to lay a predicate that the pebbles came from the bridge.

But they didn’t have to. In the words of Hall & Oates, Some Things Are Better Left Unsaid.

4. Save that killer impeachment point for closing argument

The examining physician testifies that skin was found under the victim’s fingernails, but there’s a problem: there’s nothing in his examination notes about that. When Friedman brings up this point on cross, the doctor is ready with an excuse. My wife took the notes, he says, and she neglected to include that fact. And then the doctor drops a bombshell. It was a black man’s skin under her fingernails.

On the next break, Marshall berates Friedman for falling into a trap.

Imagine if Friedman, instead of bringing up the point during cross examination, had waited until closing argument to point out to the jury that the doctor’s notes said nothing about skin under the victim’s fingernails. Then it would be too late for the doctor to try to explain away the glaring omission.

5. You can do it if they don’t object

In law school, I had a trial advocacy instructor (now a judge) who told a great story about defending a police officer accused of assault. He started slapping himself on the head with the alleged weapon in front of the jury, causing himself no injury. The students couldn’t believe that was allowed. The instructor’s point: it was allowed because no one objected.

The defense team in Marshall does a similar demonstration. Mrs. Strubing claims she never screamed, even when a police officer was only a few feet away, because she was gagged. In front of the jury, Marshall puts the gag in Friedman’s mouth and pulls it tight, asking Mrs. Strubing if he has it right. Friedman then belts out the loudest, longest scream you can imagine. Point made.

Can they do that? Well, no one objected.

6. Bring up your client’s baggage before the other side does

Mr. Spell is not the ideal defendant: he abandoned a wife and two kids in Louisiana, got dishonorably discharged from the Army, and got fired from his last job for stealing. So here’s what you’re going to do, Marshall says to Friedman, you bring up all those bad facts when you get Spell on the stand. Don’t give the prosecution the chance to do it first.

Friedman does exactly that, getting Spell to admit every check in his checkered history before the prosecutor can ask a single question.

As I wrote here, if you know there are bad emails from your client, don’t try to hide or ignore them. Usually you’ll only make it worse. What was true in 1940 is true now: you look better if you freely admit your bad facts.

7. Be careful with open-ended questions on cross examination

When prosecutor Loren Willis (Dan Stevens) gets his crack at Spell on cross examination, he unloads on Spell’s history of lying. Then, after setting up Spell as a habitual liar, he goes for the jugular with his key question: if you’re innocent, then why did you lie to the police about what really happened?

But the question backfires. Marshall has prepared Spell to knock this one out of the park, and Spell does it. The prosecutor is so shaken, he does the only thing he can think to do and asks the judge to strike the answer. After a long pause, the judge gives his ruling.

Conventional wisdom says you only ask leading questions on cross. That advice is not always realistic; sometimes you just have to ask an open-ended question. But the prosecutor’s blunder in Marshall is a good reminder of why using open-ended questions on cross is dangerous.

8. Persuasion requires meeting the audience half way

When Spell answers the prosecutor’s key question, you sense that the tide is turning. But the defense still has to persuade the jury in closing argument. Over dinner, Marshall tells Friedman what to say in closing.

Throughout the movie, we’ve seen Marshall going on the offensive, so we’re bracing for an all-out assault on Mrs. Strubing’s credibility. But Marshall understands that Friedman is not going to persuade the all-white jury by portraying the white victim as a bad person. Instead, he crafts the argument to get the jury to feel sorry for her (with obvious echoes of To Kill a Mockingbird).

Sometimes persuasion requires accepting the biases of your audience and crafting an argument that appeals to their world view, not yours.

9. Get a non-lawyer’s opinion about the big picture

Boseman portrays Marshall as a supremely self-confident young lawyer who already knows what he’s doing (prompting friend Langston Hughes to quip, “I’d say you have enough confidence for all of us”).

But it’s a non-lawyer who helps Marshall discern the key to the case. Early on, the wife of the local NAACP leader asks Marshall if he really thinks Spell is innocent. “Why would a woman lie about something like that?” she asks.

It is only when Marshall reflects on that question that he realizes his client hasn’t told him the whole story. That’s when he really figures out how to defend the case effectively.

When I get a new case, I like to describe the big picture to my wife, daughter, or another family member. Hearing a non-lawyer’s take is a great way to gauge how a jury is likely to react. That’s just as true today as in 1941.

Some things haven’t changed.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.

A SLAPP in the Face to Texas Trade Secrets Lawsuits – Part 2

Even before I went to law school, one of my favorite Shakespeare plays was The Merchant of Venice, and now that I’m a trial lawyer I like it even more. The climactic scene is basically a courtroom drama. More about that later.

In my last post, I set the stage for Elite Auto Body v. Autocraft Bodywerks, a recent case holding that the Texas anti-SLAPP statute allows a defendant in a trade secrets lawsuit to file an early motion to dismiss before the plaintiff has any real chance to take discovery.

To recap Part 1:

Despite its literal language, the First Amendment’s protection of “freedom of speech” generally does not apply to communication of trade secrets.
The Texas Citizens Participation Act (TCPA) is an “anti-SLAPP” statute intended to protect free speech rights.
The problem with the statute is that its literal text goes far beyond speech protected by the First Amendment.
Elite Auto Body is therefore an interesting test case for the “textualist” approach to interpreting statutes.

So how did the court interpret the statute, and what does it mean for trade secrets litigation?

A typical trade secrets lawsuit

For a case raising important First Amendment and statutory interpretation issues, the facts of Elite Auto Body were about as ordinary as you can get.

Autocraft Bodywerks was an auto-repair shop specializing in high-end collision repair services. Precision Auto Body was a competing auto-repair business founded by a former Autocraft employee. When two Autocraft employees left to join Precision, Autocraft sued, claiming the employees provided Autocraft’s confidential information and trade secrets to Precision.[1]

The alleged trade secrets were typical internal company information: salary and personnel information, financial information, proprietary compilations of technical information, and proprietary client forms. Like every company that files this kind of trade secrets suit, Autocraft claimed that Precision and the former employees used the information to obtain an unfair advantage.[2]

The usual defense would be to challenge the trade-secret status of the information, and/or to claim the defendants did not take or use the information. But Precision asserted an additional defense: it filed a motion to dismiss under the TCPA.

So does the statute apply to an ordinary trade secrets misappropriation case?

The plain language of the TCPA applies to disclosure of trade secrets

The language of the statute is quite simple about when it applies: “If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.”[3]

If that was all the statute said, you could easily argue that these “rights” mean constitutional rights. But the statute has more expansive definitions:

“Exercise of the right of association” means “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.”
“Exercise of the right of free speech” means a “communication made in connection with a matter of public concern.”
“Communication” includes “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.”
“Matter of public concern” is defined broadly and includes an issue related to “a good, product, or service in the marketplace.”[4]

Under the broad definition of “right of association,” when employees of one company go to work for a competitor and communicate the first company’s confidential information to the competitor, that is a “communication between individuals” who are joining together to “pursue common interests,” i.e. making money by competing with the first company.

This was the defendants’ argument in Elite Auto Body, and the Austin Court of Appeals agreed. The court reasoned that the statute would not apply to allegations of using the alleged trade secrets that did not involve communication of the information. But the plain language of the statute would clearly apply to the alleged disclosure of the trade secrets:

Yet it would also be true, at least under a literal reading of the “communication” definition, that Autocraft also bases each of its claims, at least in part, on two types of alleged “communications”—(1) appellants’ “communications” (so defined) among themselves and others within the Precision enterprise through which they have allegedly shared or utilized the information that Autocraft claims is its trade secrets or confidential information; or (2) “communications” (so defined) by appellants to current Autocraft employees to induce them to leave Autocraft and come work for Precision.[5]

So what do you do if you’re Autocraft, the plaintiff in Elite Auto Body, and you want to avoid the motion to dismiss? You argue against a literal reading of the statute. The court should interpret the statute based on its larger context and purpose, you argue, which is to protect constitutional rights and provide a remedy for “SLAPP” lawsuits.

But how do we know the purpose of the statute?

The purpose of the TCPA is to protect constitutional rights

In this case, the legislature made it easy for us by expressly stating the purpose of the statute:

The purpose of this chapter is to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.[6] (emphasis added)

The statute also says it “shall be construed liberally to effectuate its purpose and intent fully.”[7]

This gives you Autocraft’s argument: the statute has a First Amendment “overlay.” Despite the broad definitions of “right and association” and “right of free speech,” you should limit the statute to its stated purpose of protecting constitutional rights. There’s no constitutional right to communicate trade secrets, so the statute shouldn’t apply to trade secrets lawsuits.

This is a plausible argument, the Austin Court of Appeals said, but it is foreclosed by the Texas Supreme Court’s recent decision in ExxonMobil Pipeline Co. v. Coleman.

Coleman held that the TCPA applied to a former employee’s defamation claim based on internal company statements about his job performance. The Coleman court based this holding on a textbook formulation of textualism. “We do not substitute the words of a statute in order to give effect to what we believe a statute should say,” the court said, but “instead, absent an ambiguity, we look to the statute’s plain language to give effect to the Legislature’s intent as expressed through the statutory text.”[8]

Let me pause here to note that the TCPA itself seems to instruct courts not to construe it this way; the statute says it should be liberally construed to effectuate its purpose. Oh well.

Citing this language, Elite Auto Body construed Coleman as an instruction that Texas courts must adhere to a “plain-meaning” construction of the statute, “notwithstanding an acknowledged expansiveness and breadth.”[9]

Reading between the lines, Justice Pemberton’s opinion in Elite Auto Body seems to be saying “we know this result is kind of crazy, but that’s what the statute says, and the Texas Supreme Court says we have to apply the statute literally, so our hands our tied.”

That’s a reasonable position, but is this really the result the legislature would have wanted?

Elite Auto Body shows us the problem with strict textualism

I haven’t researched the legislative history of the Anti-SLAPP Statute. But I think it is safe to say that the legislature did not intend the statute to apply to ordinary claims for misappropriation of trade secrets.

Let’s assume I’m right, and (1) the literal terms of the statute apply to trade secrets lawsuits, but (2) the legislature did not intend the statute to apply to trade secrets lawsuits, because there is no constitutional right to disclose trade secrets.

So what is a judge to do? Apply the “plain meaning” of the text even though it leads to a result the legislature didn’t intend?

This is where the true textualist must bite the bullet. Yes, the strict textualist would say, you apply the plain meaning of the statute, even if the result is bad public policy or not what the legislature intended. You do that because the plain meaning of the text is objective, while the subjective intent of the legislature is too easy for litigants and judges to manipulate to serve their own agendas. Focusing on “purpose” rather than the text would allow courts to substitute their own policy judgments for the decisions of the legislature.

There is some merit to this line of argument, but on the whole I think it is wrong, and the odd result in Elite Auto Body illustrates why.

The problem with this kind of strict textualism is that it thwarts the intent of the legislature in the name of deference to the legislature.[10]

In practice, strict textualism tends to undermine the legislature’s purpose—and can lead to absurd results. When courts strictly apply the “plain meaning” of a statute, in conflict with its obvious purpose, they are effectively saying to the legislature, “we know what you were trying to do, but you screwed up in the language you used, and we’re going to hold you to your sloppy language.” Hey, if you don’t like it, amend the statute.

Shakespeare’s view of anti-SLAPP statutes

This kind of textualism reminds me of the final “courtroom” scene in Shakespeare’s Merchant of Venice, where Portia, posing as a man and a legal scholar, thwarts Shylock’s purpose by strictly construing his contractual right to a “pound of flesh.” The audience, typically, is rooting for Portia because she is trying to save Antonio from the horrific results of an unjust contract. But there is no denying that she effectively deprives Shylock of the remedy intended by the parties to the contract.

Texas courts are doing something similar with the TCPA when they say we’re going to hold you to your incredibly broad definitions, even when they conflict with your obvious purpose.

As in The Merchant of Venice, this may lead to a just result in some cases. Instinct tells me the information at issue in Elite Auto Body probably did not deserve trade-secret protection, so maybe early dismissal of part of the trade secrets claim was a good thing. But as a broader matter of public policy, applying the TCPA to trade secrets lawsuits that do not involve any constitutional rights seems like a mistake.

Ok, you say. That’s all very interesting, Mr. Smarty Pants. But what if I’m a litigator who sometimes handles non-compete and trade secret cases? What are the practical consequences?

I cover that in Part 3.

*Update: The Austin Court of Appeals addressed the TCPA’s application to a trade secrets claim again in Craig v. Tejas Promotions, LLC, No. 03-16-00611-CV, 2018 WL 2050213 (Tex. App.–Austin May 3, 2018). The court held that the TCPA applied to a claim for conspiracy to misappropriate trade secrets. This was a fairly straightforward application of Elite Auto Body. The court also held, for somewhat esoteric reasons very specific to the case, that the TCPA did not apply to a declaratory judgment claim.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC.

[1] Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 2017 WL 1833495, 520 S.W.3d 191 (Tex. App.—Austin 2017, pet dism’d).

[2] Id.

[3] Tex. Civ. Prac. & Rem. Code § 27.003.

[4] Tex. Civ. Prac. & Rem. Code § 27.001.

[5] Elite Auto Body, 2017 WL 1833495 at *4.

[6] Tex. Civ. Prac. & Rem. Code § 27.002.

[7] Tex. Civ. Prac. & Rem. Code § 27.011.

[8] ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 901 (Tex. 2017). The qualification “absent an ambiguity” further complicates the issue, but I don’t have time to address that here.

[9] Elite Auto Body, 2017 WL 1833495 at *7.

[10] Personally, I have little confidence in the Texas legislature doing anything right, especially when it meddles with the civil justice system, but as a general proposition I agree that courts should interpret statutes to effectuate the legislature’s purpose.

Essential MLK Day Reading for Lawyers and Other Humans

Script Idea for New Courtroom Drama

For this Martin Luther King, Jr. Day, I’ve got a movie idea to pitch. Picture this. A racist white sheriff rules his county in the Jim Crow South with an iron fist. A teenage white girl falsely claims she was raped by a black man. An all-white jury convicts on the flimsiest of evidence. It is very likely the young woman was not assaulted at all.

You think it’s been done before in To Kill a Mockingbird? Well I’m going to spice it up for an audience of millennials. Though undeniably gripping, the courtroom drama in the Gregory Peck classic was, sadly, a fairly ordinary story. An all-white jury convicts a wrongfully accused African-American man of raping a young white woman in the segregated American South? No big surprise. The only parts that are at all hard to believe are that a small-town white lawyer would mount a serious defense of the case, and that the defendant would actually make it to trial without getting lynched.

mlk-at-microphones — I’ve got a book recommendation for MLK Day

My movie will be wilder, crazier, more dangerous. Instead of one accused black man, there will be three. One of the accused men will not even be in the same county when the “crime” occurred. Instead of a no-name small town lawyer, the lead defense counsel will be a famous civil rights lawyer. Instead of one trial, there will be two, and in between the two trials the case will go all the way to the U.S. Supreme Court.

Action and danger? Imagine this. In the opening scene, the civil rights lawyer runs from the courthouse and jumps in a car that speeds out of the county with angry Klansmen in hot pursuit. Sheriff’s deputies beat false confessions out of two suspects, but a third refuses to confess. In between the two trials, the racist sheriff picks up two of the accused from prison, pulls over to the side of a country road in the middle of the night, pulls a gun, and then . . . well I don’t want to spoil it.

I know, it sounds too sensational. But this story is real. You can read it in Gilbert King’s Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, which won a Pulitzer Prize. If you care about the American civil rights movement, you will want to read this book. If you are a lawyer, you will enjoy learning how Thurgood Marshall and his colleagues handled the actual nuts and bolts of defending three wrongfully accused men under the most difficult conditions. If you are a trial lawyer, you absolutely must read this book.

You can read reviews of the book to find out more details about the story. Here are just a few of the broader points I took away from this riveting account of a chilling episode in American legal history.

Thurgood Marshall, Super Lawyer

I knew that Thurgood Marshall was a pioneering civil rights lawyer who won the landmark Brown v. Board of Education case and went on to serve as the first African-American justice on the U.S. Supreme Court. But before this book I did not realize that Marshall was one of the best trial and appellate lawyers in the country. I pictured the young Thurgood Marshall as a political activist who happened to be a lawyer. But Devil in the Grove shows that Marshall was a lawyer’s lawyer, a top-notch practitioner who wrote meticulous briefs and loved to argue cases.

Marshall was also a shrewd strategist who carefully chose the cases the NAACP Legal Defense Fund took on. In the Groveland case, the goal was not only to save three innocent lives, but to set up a legal challenge to a system that denied due process based on race.

A System Built on Dishonesty

Aside from the obvious injustice of the state-sponsored discrimination that reigned in the South until the 1960s, the most striking feature of the system was its fundamental dishonesty. The basic legal problem for southern segregationists was the 14th Amendment. (Remember that one? We had to fight a civil war to get it.) It guaranteed due process and equal protection of the laws, and it was the supreme law of the land.

secondtrial2 — The defense table in the second Groveland trial

So ultimately, the law was on Thurgood Marshall’s side. This meant that openly defending racial oppression was not a viable long-term strategy for defenders of the racist status quo. They had to pretend that African-Americans actually had civil rights. They had to maintain the fiction that black and white schools were “separate but equal.” Brown v. Board of Education’s rejection of the separate-but-equal doctrine was like a collective “come on, man!” from the Supreme Court. Don’t pee on my leg and tell me it’s raining.

Appellate Courts Sometimes Have to Get Real

A related lesson is that appellate courts can’t always take legal arguments at face value. Defenders of the most unjust system can always come up with arguments that have a surface plausibility. For example, when Texas Attorney General Price Daniel and his assistant Joe Greenhill defended Dallas County’s history of all-white grand juries, they could argue with some plausibility that exclusion of blacks from the grand jury was not a denial of equal protection, but merely a result of the fact that the grand jury commissioners did not know any black people who were qualified to serve.

supremecourt2 — Thurgood Marshall and colleagues on the steps of the Supreme Court

But this was effectively a lie. Everyone knew the system was designed–formally or informally–to exclude African-Americans. The Supreme Court implicitly recognized as much in Cassell v. Texas, 339 U.S. 282 (1950), when it reversed a murder conviction on the ground that blacks were excluded from the grand jury. One year later, in Sheperd v. Florida, 341 U.S. 50 (1951), the Supreme Court cited Cassell to reverse the convictions in the first Groveland trial. Justices Jackson and Frankfurter wrote a concurring opinion saying they would have reversed based on the failure to remedy prejudicial pretrial publicity of the defendants’ alleged confessions.

Formal Rights Don’t Guarantee Actual Justice

The story of the Groveland trial also teaches a related fundamental point about the law. Formal rights under the law mean nothing if judges and juries don’t sincerely enforce them. When a judge refuses to allow defense lawyers to call to the stand the physician who examined the alleged rape victim, the Equal Protection Clause has not done the defendant much good. When a jury convicts three African-American men based on community outrage and racism, not on solid evidence, the Due Process Clause hasn’t given the defendants much comfort. Favoritism and prejudice on an individual level can make a mockery of even the best-designed institutions.

But these points are way too abstract. At its core, Devil in the Grove is great story-telling. And it really happened. Hollywood couldn’t make this stuff up.

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Zach Wolfe (zwolfe@fleckman.com) is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. These are his opinions, not the opinions of his firm or clients.

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