Common Misconceptions About the Settlement Communications Rule

Common Misconceptions About the Settlement Communications Rule

Nobody likes it when the other party to a confidential settlement communication spills the beans in public. Like they say, snitches get stitches.

Lawyers try to avoid this problem by putting something like this at the top of their letters and emails about settlement:


Why do lawyers do this?

The answer is that if you put this at the top of your email or letter, then the party who receives it is not allowed to use your statements against you for any purpose. This is federal law.

I’m just kidding. That’s not what the law is. Cue the “Bad Legal Takes” account on Twitter.

But there are some common misconceptions about the settlement communications rule, even among lawyers.

Before I get to those, let’s take a look at the rule itself.

Federal Rule of Evidence 408 says this:

Most states have a similar rule. Texas, where I practice, has its own version of Rule 408, which is similar to—but not identical to—the Federal Rule:

For simplicity, let’s put aside for now the part of the federal rule about certain criminal cases. We can then see, based on the text alone, that both the Texas rule and the federal rule make a statement inadmissible if:

(1) there is a “disputed claim”

(2) the statements is “made during compromise negotiations about the claim”

(3) the statement is offered for the purpose of proving or disproving “the validity or amount of a disputed claim.”

The “exceptions” in part (b) are not exceptions per se; they really just clarify that the rule does not bar admission of a settlement communication offered for some other purpose.

Seems simple enough, but what does this really mean, and why do we have this rule?

Let’s take a very basic example. Suppose you get in a car accident with Dave Driver and there’s a lawsuit. During a discussion of settling the case, Dave says “ok, I ran the red light, but the damages you’re asking for are just too much.”

Under Rule 408, you can’t offer Dave’s statement “I ran the red light” as evidence in court. As the federal version of the rule makes clear, you can’t even offer the statement as impeachment evidence if Dave testifies in court “that light was green.”

At first, this doesn’t seem fair. How can Dave get away with admitting he ran the red light and then say the opposite in court?

But if you think about it, if you could use Dave’s statement against him in court, his lawyer might never let Dave say a word in settlement discussions. Why chance it?

No, we want to encourage people to speak candidly and freely in settlement negotiations. We don’t want them to think anything they say can and will be used against them. That would have a “chilling effect” on attempts to compromise disputed claims. That’s why we have Rule 408.

On the other hand, we don’t want people to use the rule to block admission of evidence that is relevant for some other purpose. Suppose Dave’s insurance company offers Pam Passenger money in exchange for an agreement not to testify that Dave ran the red light. Part (b) of the rule clarifies that evidence offered for some other relevant purpose—such as showing Pam’s bias—could still be admissible.

And keep in mind, the statement has to be part of a communication about a compromise. A statement that simply asserts a party’s position or makes a demand may not be a “compromise” communication.

Now that we understand the elements of the rule and its purpose, let’s look at some common misconceptions about the rule.

1. Thinking that labeling something a “Rule 408 settlement communication” makes it so

This one seems pretty obvious, but some lawyers still seem to think that if they put this kind of label at the top of a letter, the letter can never be offered as evidence. Some will even get bent out of shape and accuse you of being unprofessional if you try.

Whether this is unprofessional will of course depend on the circumstances, but of course, just because one lawyer labeled something a Rule 408 communication does not make it inadmissible. If you’re going to object to the admission of the statement in the courtroom, you will still have to meet each of the elements I outlined earlier.

On the other hand, putting the “Rule 408” label on your letter isn’t a total waste of time. It does at least provide some evidence that at least one party intended the communication as a “statement made during compromise negotiations about the claim,” and that doesn’t hurt.

Conversely, leaving out the Rule 408 label does not mean that Rule 408 does not apply, but again, it probably doesn’t hurt to use the label—if you’re concerned about the communication being used against your client later in court.

2. Thinking that Rule 408 bars admission of a settlement communication for any purpose

This one also seems fairly obvious if you read the rule. But it’s not uncommon for lawyers to object to any evidence of a statement made during a settlement negotiation, even when the evidence is offered for some other purpose. And if the judge doesn’t grasp the distinction, the objection may even be sustained.

But still, lawyers should not think that the rule will keep out evidence of settlement communications, regardless of the purpose. Several times in preparing for a trial I have pulled case law applying Rule 408 to support or respond to an anticipated objection, and I can tell you that most of the cases you run across say that Rule 408 did not bar admission of the evidence, because the evidence was offered for some other purpose.

3. Thinking that Rule 408 bars admission of evidence that a party to a dispute committed a crime in a settlement communication

This is really a corollary to misconception no. 2. If a party’s settlement communication itself is evidence of commission of a crime, then Rule 408 would not bar offering that communication for the “other purpose” of proving that the party committed a crime.

Suppose a mob boss is a party to a contentious civil lawsuit about a restaurant lease. During a conference call to discuss settlement, he says “this is really a reasonable offer, and if you don’t take it, bad things could happen to your nice restaurant.”

In that case, Rule 408 would not prevent the government from offering the mob boss’s statement as evidence in a prosecution for extortion. The statement would meet the first two elements of Rule 408—it was made during compromise negotiations of a disputed claim—but it would not be offered for the purpose of proving or disproving the validity or amount of a disputed claim. Rather, the evidence would be offered for the purpose of proving that the mob boss committed a crime by making the statement.

4. Thinking that Rule 408 establishes a privilege

This is a somewhat subtle distinction, especially for non-lawyers, but it’s an important one.

Rule 408 on its face talks about whether evidence is “admissible.” It doesn’t say that the evidence is “privileged.”

This is an important distinction. To illustrate, let’s consider the attorney-client privilege rule in contrast. That rule governs both admissibility and privilege. If I have a confidential communication with my lawyer for the purpose of obtaining legal advice, that communication is generally privileged.

Privileged means both that I can’t be required to disclose the communication in a lawsuit, and that the opposing party cannot offer the statement as evidence in court.

Rule 408 doesn’t work like that. It says nothing about making the statement privileged from disclosure. Generally, if a settlement communication is relevant to disputed issue in a lawsuit, then Rule 408 doesn’t prevent a party to the lawsuit from demanding disclosure of the communication, such as in a pretrial deposition or in a request for production of documents.

So, while I can object to the opposing party attempting to offer the settlement communication as evidence, that doesn’t mean the statement is exempt from disclosure.

5. Thinking that Rule 408 bars disclosure to third parties

This one is similar to no. 4. Rule 408 is a rule of admissibility, not a rule of confidentiality. The rule says nothing about disclosing an opposing party’s settlement communication to a third party, or to the general public.

So if Dave Driver says “I ran the red light” during a settlement discussion, there is nothing to stop the other party from going to the press and saying “Driver admitted he ran the red light!”

That is, unless the parties agreed to keep the settlement communications confidential. But that would be a contract law issue, not a Rule 408 issue. Dave would have to prove the existence of an agreement to keep the settlement communications, a breach of the agreement, and damages resulting from the breach. Of course, in some cases there could be public policy issues with enforcement of the agreement.

Practice Tips

This leads to my settlement communication practice tips for lawyers:

1. If you’re concerned about sensitive statements your client might make during a settlement negotiation, consider entering into a written agreement up front providing that both sides will keep the settlement communications confidential and not offer them as evidence for any purpose. (This would be broader than Rule 408.)

2. Understand that, as a practical matter, your client’s only recourse in the event of public disclosure will be a claim for damages, which will probably be difficult to prove and won’t really undo the reputational damage.

3. Suggest your client try to avoid making any statements that could be considered a crime.

Like they say, don’t do the crime if you can’t do the time.


Zach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas Super Lawyer® for Business Litigation. He hereby designates this entire blog post confidential under FRE 408.

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.

Harris County Voting Lawsuit Provides Latest Test for Textualism

Harris County Voting Lawsuit Provides Latest Test for Textualism

I kept having this recurring dream where first I was a teepee, and then I was a wigwam. Night after night, it was the same thing. First a teepee, then a wigwam. Teepee. Wigwam.

I asked my doctor about this, and he said, “I think I see the problem, you’re two tents.”

Two tents. Too tense. Get it? A teepee and . . .

Oh, never mind.

The Hotze challenge to Harris County drive-through voting

Tents are on my mind this week because of a little lawsuit that happened in my neck of the woods down here in H-Town. You might have heard about it. Less than a week before Election Day, a handful of Texas Republicans filed a lawsuit in federal court in Houston, trying to block the Harris County Clerk Chris Hollins from continuing to offer the option of “drive-through” voting.

Dr. Steven Hotze, a prominent white nationalist activist in Houston, was the lead plaintiff. You might have heard of Hotze. He’s the dude who, in the wake of the George Floyd protests, left Governor Gregg Abbott a voice mail urging him to send the National Guard into Houston to “shoot to kill” any violent rioters. “That’s the only way you restore order,” he reportedly said. “Kill ‘em.”

He sounds nice.

But I’m not going to get into the politics of the lawsuit, other than to point out that even a lot of Republicans were against it. Harris County may have gone blue, but it’s not like every one of the 127,000 drive-through voters was a Democrat. Joe Straus, the former Republican Speaker of the Texas House, even joined an amicus brief in support of the Harris County Clerk.

No, I just want to focus on one of the narrow legal issues in the case, and what it teaches us about the theory of adjudication known as “textualism.”

The legal issue, in a nutshell, was whether a tent is a “building.”

See, the Hotze plaintiffs argued that the use of temporary tents for voting violated the Texas Election Code, which provides for voting in a “building.” They asked the court to enter an injunction against further drive-through voting and to “reject” the 127,000 drive-through ballots already cast. They filed the federal lawsuit on October 28, shortly after the all-Republican Texas Supreme Court rebuffed their bid to obtain similar relief in Texas state court.

The case was assigned to U.S. District Judge Andrew Hanen. This caused Democrats a little discomfort, considering some press reports characterizing Judge Hanen as a highly partisan Republican appointee.

I did not share their concern. I made this prediction on Twitter:

I just knew a federal judge was not about to tell 127,000 Houstonians “sorry, the County Clerk messed up, so your votes just don’t count.”

And I was right. Judge Hanen denied the request to “reject” the drive-through votes already cast. In fact, he dismissed the whole lawsuit on the procedural ground of lack of standing.

(There were several strong procedural grounds for rejecting the request for an injunction, including the plaintiffs’ delay in seeking relief and the fact that, even when there is a violation of the Election Code, “rejecting” votes is rarely the warranted remedy.)

But just to cover his bases—knowing the ruling would be appealed—Judge Hanen issued an order stating how he would have ruled if the plaintiffs had standing. And he said he would have sided with the Hotze plaintiffs on at least one issue: a tent is not a “building.” He cited dictionary definition of “building” to support this conclusion. Thus, he applied the theory of textualism to decide the issue.

And that was the most interesting part of the case to me.

Another Test Case for Textualism

My loyal Fivers already know about my interest in textualism. I wrote about it in Bostock Opinion Shows That Strict Textualism Fails to Deliver on its Central Promise.

My thesis: In Bostock, the phrase “because of sex” was ambiguous as applied, i.e. subject to more than one reasonable interpretation, so the application of strict textualism did not yield one determinate answer, contrary to the textualist arguments offered by both the majority and the dissenters.

For me, the lesson of Bostock was that strict textualism failed to deliver on its central promise of determinacy and legitimacy. The text of the statute by itself just wasn’t enough; the Court had to look to something else to decide the question, even if it pretended like it didn’t. Not only did textualism fail to deliver on its promise, I wrote, it failed spectacularly.

But maybe the Hotze case would give textualism a chance to redeem itself.

Perhaps it was unfair to treat Bostock as a test case. You could not get a more “hot button” political issue than the question in Bostock: whether federal law prohibits discrimination against homosexual and trans-sexual employees. You might argue it’s going to be hard to find any neutral theory of adjudication that’s going to satisfy everyone on such an issue.

Maybe textualism would fare better when the issue was less incendiary, mundane even.

Granted, the issue came up in the context of a hotly contested presidential election. But the issue itself had hardly any political valence. It’s not like there’s a “liberal” or “conservative” position in the abstract on whether a tent is a building. Ask some of your friends and family. Unless they’re familiar with the issue in the Hotze case, it’s not like all the MAGA people are going to say one thing and all the libs the opposite.

Just like there’s no “Republican” or “Democrat” position on whether Batman is a superhero. (Or is there?)

Anyway, the point is that when the legal issue isn’t a contested battle in the culture wars, you might expect textualism to do a better job of delivering on its central promise. So let’s see how it did in Hotze.

Application of Textualism in Hotze v. Hollins

The first thing we find when we look closer at Hotze is that the statutory interpretation question was slightly more complicated than we thought. It turns out there were two different statutory sections at issue in Hotze, one for early voting, and another for Election Day voting.

As for the early voting statute, the Hotze plaintiffs just didn’t have a strong argument. The statute on early voting referred to a “movable structure” rather than a “building.” This is an issue where textualism is probably adequate. I just don’t see a reasonable argument that a tent is not a “movable structure.”

Judge Hanen didn’t either. To decide whether a tent is a structure, he looked to Black’s Law Dictionary:

Applying the dictionary definition, Judge Hanen found that a tent was a structure. Thus, he did not think that the use of drive-through tents for early voting violated the statute.

But the section on Election Day voting was different. It provided that each polling place on Election day “shall be located inside a building.” Tex. Elec. Code § 43.031(b). Most people would probably agree a tent is a “movable structure,” but is it a “building”?

Let’s pause here and just reflect on the fact that there are different ways you could approach this question. Before textualism became fashionable, I think most Texas judges—liberal or conservative—would have approached the issue pragmatically. “I don’t see anything wrong with drive-through voting, so sure, for this purpose I can say a tent is a building” would be the typical thought process.

But the Harris County Clerk, probably considering the audience, took a different approach, the textualist approach. This applies the “plain meaning” of a statute’s words, and as a recent textualist opinion in Texas said, “[d]etermining a word’s plain meaning is a dictionary-driven process.” Kawcak v. Antero Resources Corp., 582 S.W.3d 566, 573 (Tex. App.—Fort Worth 2019, pet. denied).

So, notably, both the lawyers for Hollins and Judge Hanen looked to Black’s Law Dictionary for the meaning of “building.”

Here are excerpts from the brief filed by Hollins (top) and Judge Hanen’s order (bottom):

Notice any discrepancy?

Yes, of course. They cite different editions of Black’s Law Dictionary that have slightly different definitions.

I think this exercise in dueling dictionaries teaches us some things about “dictionary-driven” textualism.

Textualism fails to deliver determinacy, again

First, and perhaps most obvious, dictionaries will have multiple definitions of a word, and different dictionaries will define words differently. This is a problem for textualists, but one they are aware of. In the Kawcak opinion, for example, the court painstakingly parsed multiple definitions of the word “common” from three different dictionaries, even getting down into the order of the different definitions.

The problem is that multiple definitions and multiple dictionaries can create ambiguity. If one definition leads to one result and another definition leads to the opposite result, then the dictionary exercise doesn’t answer the question.

And that seems to be exactly what happened in Hotze. The only thing the dueling definitions seemed to agree on is that a building has walls.

But it was even worse than that. Not only were the two dictionary definitions of “building” different, neither definition definitively answered whether a tent is a building.

The definition cited by Hollins focused on the purpose of a building, i.e. what it is designed for, but none of the examples it cited included voting. So you could argue it either way.

Same for the definition cited by Judge Hanen. That definition said “especially a permanent structure,” but it didn’t say a building has to be permanent. So again, you could make a reasonable argument either way.

This is a problem. If the point of dictionary-driven textualism is to apply an objective method of statutory interpretation that provides a single determinate answer, then it failed in Hotze, just like it failed in Bostock.

But even aside from the determinacy problem, which I explained in the Bostock post, I think the Hotze example shows how misguided the whole dictionary-driven enterprise is in the first place.

The problem with “dictionary-driven” textualism

The basic problem is the nature of language itself. Most words, even simple ones like “common” or “building,” are inherently fuzzy. When the authors of Black’s Law Dictionary—or any dictionary—try to define a word like “building,” they are just trying to capture the gist of the meaning. Their purpose is not to draw sharp lines between what things the definition embraces and what things it doesn’t.

In other words, when the authors of Black’s Law Dictionary wrote a definition of “building,” they were not thinking about defining the word in a way that would determine whether a tent is a building. If they had been thinking about that question, they might have drafted the definitions differently.

For this reason, the dictionary approach strikes me as misguided from the start, even before we get to the indeterminacy problem. It’s like looking at a dictionary to determine if a hot dog is a “sandwich.”

Granted, there is precedent for this approach. When Stephen Colbert asked Ruth Bader Ginsburg whether a hot dog is a sandwich, she gave a classic textualist answer her late friend Antonin Scalia would have loved: “you tell me what a sandwich is, and then I’ll tell you if a hot dog is a sandwich.”

With much respect for the late great Notorious RBG, I think that’s the wrong approach.

Here’s the thing. We all know what a “sandwich” is; we don’t need to look at a dictionary. The problem is that in some ways a hot dog is like the things that we all agree are sandwiches, and in other ways it is not. So, even if the dictionary definition of “sandwich” provides a single determinate answer, the dictionary exercise just doesn’t seem that valuable to me. The authors of the dictionary wrote the definition for a general purpose, not for the purpose of either including or excluding a hot dog.

(There is actually some legal precedent about whether a hot dog is a sandwich, as one of my son’s favorite YouTubers explains in Food Theory: What Makes a Sandwich a Sandwich?)

If dictionary-driven textualism is all wrong for the internet parlor game of asking whether a hot dog is a sandwich, then surely it is even more misguided for serious questions of justice and public policy.

Judges aren’t playing some game of Scrabble. They are deciding real disputes that have serious consequences for the parties. And in some cases, like the Hotze lawsuit, they are deciding issues that impact major matters of public concern. Do we really want such momentous decisions to turn on some kind of word game?

No, playing the dictionary game is not how they should do it.

I’m not saying dictionary definitions are totally irrelevant. But framing the question as “is a tent a building?” strikes me as looking through the wrong end of the telescope. The question should not be whether a tent is a building in the abstract, but whether for the purpose of this particular statute, in this particular dispute, the court should construe “building” to include a tent, considering the consequences of the decision and the special circumstances, i.e. the COVID-19 pandemic.

When you frame the question that way, it practically answers itself.

We’ve got you surrounded, textualism

But don’t take my word for it. I’m not the only one who says judges should look to the purpose of a disputed term, the surrounding circumstances, and the consequences of a particular construction.

For one thing, you can find support for my view in Texas contract law. The Texas Supreme Court has recognized that “surrounding circumstances” can bear on the meaning of a contractual term, even when the term is not ambiguous on its face. See Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521-22 (Tex. 1995).

I think this contract principle provides an important lesson for statutory interpretation.

In theory, it’s fine to say that courts should apply the plain meaning of an unambiguous statutory term, without looking to extrinsic evidence. But to determine whether a term is ambiguous, we must first ask if it has more than one reasonable interpretation, and it’s hard to say if an interpretation is reasonable without looking to the surrounding circumstances. See CBI Industries, 907 S.W.2d at 521 (“The ambiguity must become evidence when the contract is read in context of the surrounding circumstances”). That’s why contract law allows judges to look at surrounding circumstances.

Now let’s apply that idea to the election statute.

Suppose there was an election where drive-through voting on Election Day resulted in numerous problems, leading to a public outcry and demand for reform. As a result, a state representative sponsored legislation to require all voting to take place “inside a building,” with the aim of putting a stop to drive-through voting in future elections.

That’s not what actually happened. There’s no indication that the definition of “building” in the Texas Election Code had anything to do with tents. The section at issue is mainly concerned with distinguishing between public and non-public buildings and addressing what kind of non-public buildings can be used. The provision requiring voting in a “building” seems incidental to that other purpose.

But what if the definition of “building” did result from the hypothetical public outcry described above. Wouldn’t that surrounding circumstance have some bearing on whether construing building to include a tent was a reasonable construction or not? Wouldn’t that be the most logical place to start?

But the strict textualist says no, unless the undefined statutory term is ambiguous, you look to the dictionaries and no further.

Ok, but let’s consider another hypothetical. Imagine the legislature itself, while not providing a definition of “building,” did provide express guidance to the courts on how to interpret the statute.

Let’s say the legislature, rather than restricting judges to the dictionary definition of a statutory term, instructed judges that when construing a statute they can look to the purpose of the statute, the circumstances surrounding its enactment, the legislative history, and the consequences of a particular construction, even if the statute is not ambiguous. In other words, suppose the legislature expressly told courts they are not required to apply strict textualism.

What if I told you that is exactly what the Texas legislature did? Here is Section 311.023 of the Texas Code Construction Act:

As you can see, the legislature has invited Texas courts to consider extrinsic sources when construing a statute, even when the statute is not ambiguous.

But Judge Hanen’s order in the Hotze case said nothing about Section 311.023. He didn’t look at the purpose of the statutory provision or its surrounding circumstances. Instead, he just quoted from one of the Black’s Law Dictionary definitions and then said a tent isn’t a building. Was this a mistake?

The Tex-tualists strike back

To be fair, Hollins did not argue Section 311.023. Plus, the Texas Supreme Court has expressly declined the legislature’s invitation in Section 311.023 to consider extrinsic factors to construe a statute. See Texas Health Presbyterian Hospital of Denton v. D.A., 569 S.W.3d 126, 136 (Tex. 2018).

Texas Health was a medical malpractice case involving a classic statutory interpretation problem: whether a modifying phrase at the end of a clause applies to all the terms of the clause, or only the last term.

The statutory clause at issue was: “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.” The question was whether “following the evaluation or treatment of a patient in a hospital emergency department” applied to “in a hospital emergency department.” The outcome of the case turned on this question.

The plaintiffs urged the court to consider extrinsic evidence, including legislative history, citing Section 311.023. But the Texas Supreme Court refused. “Although this section may grant us legal permission,” Justice Boyd wrote, “not all that is lawful is beneficial.” Id. at 136.

Instead, Texas Health cited Scalia & Garner’s Reading Law: The Interpretation of Legal Texts (available to Amazon Prime members for $47.45), a book that is big on textualism and kind of down on legislative history, to put it mildly.  Finding the statute unambiguous, the court refused to consider any extrinsic aids to interpreting it.

That’s not how I would have done it. I might have reached the same result in Texas Health, but more on common sense grounds than textualist grounds.

And I have to say, I’m bothered that the Texas Supreme Court gave more weight to a privately-authored treatise—which only expresses the opinion of its authors—than it did to the legislature. That’s a strange sort of deference, and I don’t like it.

But maybe I’m just too tense.


Zach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation. Thomson Reuters named him a 2020 Texas “Super Lawyer” for Business Litigation.

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.

Courtroom Lessons from the Marshall Movie

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 (later 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.


IMG_4571Zach Wolfe ( is a Texas trial lawyer who handles non-compete and trade secret litigation at his firm Fleckman & McGlynn, PLLC. Thomson Reuters named him a 2020 Texas “Super Lawyer”® for Business Litigation.

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.

Essential MLK Day Reading for Lawyers and Other Humans

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.

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.

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.

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.



Zach Wolfe ( 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.