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«“To Sue and Make Noise”: Legal Theatricality and Civic Didac- ticism in Boston Legal [A client asks to be represented in suing the U.S. ...»

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“To Sue and Make Noise”: Legal Theatricality and Civic Didac-

ticism in Boston Legal

[A client asks to be represented in suing the U.S.

government for inactivity in the face of genocide in


Lawyer Lori Colson: “I have a crazy idea. [...] In tort

law, you see a guy lying on the side of the street, you

have no obligation to pull over and help. But if you

do pull over, you incur a duty to complete that

rescue, the theory being other would-be rescuers pass by thinking help is already on the scene. [...] The United States has declared a war on terrorism. We’ve talked the talk when it comes to Sudan. We’ve even given financial aid. Our theory of law would be analogous – other countries have stayed out, thinking America is stepping in when we’re not.” Lawyer Paul Lewiston: “It’s not a winner.” Colson: “But perhaps colorable enough to sue and make noise.” (Boston Legal, “Schmidt Happens”) The legal drama episode from which this dialogue is taken depicts an impossible case: a Sudanese immigrant, who lost most of his family to the violence in Darfur, wants to sue the U.S. government for failing to intervene in the face of obvious genocide. The case is unwinnable. Lori Colson’s construction of a legal basis for the case is more than shaky. But neither the client nor his lawyers expect to win the case. Their proclaimed objective – to “make noise” – pinpoints a significant cultural potential of litigation, of its “real” practice in the courtroom and, even more importantly, in its various forms of mass-medialization and fictionalization: to raise public awareness about instances of injustice, to educate the public and encourage civic debate.

Legal drama,1 the genre most immediately concerned with narratives 1 In this essay, I will use the term “legal drama” in the sense of “courtroom drama,” as referring to dramatic fictions that show a substantial interest in the themes, characters, and settings of courtroom 154 Katja Kanzler of the law and litigation, figures as one of the most conspicuously didactic genres in contemporary popular culture. While it could be argued that the genre’s very design is didactic – centeringon questions of “right” and “wrong,” on the vicissitudes of justice and how it ought to be achieved – recent legal drama bears witness to a shifting didactic focus, from primarily moral questions to questions of social justice.2 Current TV legal drama, as cultural scholar Mary Beth Haralovich notes, often employs “the courtroom [as] a venue to present civic lessons [,] [...] suspend[ing] verisimilitude to explore issues”. She further observes that “‘[r]ipped from today’s headlines,’ TV legal drama is more like docudrama than fiction, as the contending forces of constitutional rights and public safety are worked through TV legal drama for the civic audience”. In a similar vein, legal scholar Matthias Kuzina uses the term “social issue courtroom drama” to characterize the recent wave of films and TV productions that employ courtroom-settings to engage social and political issues in ways meant to educate the audience and encourage debate.

The television series Boston Legal (2004-2008) provides for an interesting case study in this context. On the one hand, the series accentuates the legal drama’s didactic potential and adopts some of the classic conventions by which the genre has performed its didactic work.

On the other, the series significantly adapts and amends these conventions and their didactic operations, seeking to update them for a postmodern mass culture (which is, in many ways, hostile to didactic orientations of culture). In the following, I want to use Boston Legal in general, and one of its episodes in particular, to explore the distinct didacticism of legal fictions. I will argue that this didacticism specifically exploits the performativity of the legal process that courtroom dramas represent. Performativity figures as a central yet ambiguous aspect of the law, an aspect that has played an instrumental role in the formation of media genres organized around (more or less) fictional representations of the law. While classical legal drama tames this performativity by way of a realist aesthetic, Boston Legal unleashes the law’s theatricality by amending legal drama with legal comedy. This affects the series’s selfconsciously didactic work, outlining a (post-) modernized version of the litigation. Scholars with a more specific interest in the genre's contours and internal subdivisions often work with a more nuanced terminology, distinguishing, e.g., courtroom dramas, courtroom 'whodunits,' and legal thrillers as subgenres of legal drama. See Kuzina 79-80; Robinson 32.

2 Elayne Rapping’s history of television legal drama would date the beginnings of this shift to the 1960s, when an increasing number of legal series featured lawyers who “sought to serve the indigent in the interest of social justice and the righting of broader social injustices” (22). Rapping refers to series like The Defenders (1961-65), The Law and Mr. Jones (1960-62), Judd for the Defense (1967-69), and Owen Marshall (1971-74). On a side note, Boston Legal specifically invokes this genealogy of its genre when one of its episodes, “Son of the Defender,” integrates footage from an episode of The Defenders.

Legal Theatricality and Civic Didacticism in Boston Legal 155 legal drama’s civic didacticism.

Legal Performativity, Courtroom Drama, and Pop Didacticism I want to approach the legal drama’s distinct didacticism by focusing on how the genre exploits the law’s performativity. 3 This performativity or theatricality4 of courtroom litigation is a much belabored point in legal as well as law-and-the-media scholarship, which is often argued in terms of an analogy between trials and theater. Law-and-literature scholar Julie Stone Peters identifies such use of analogies as “a trope central to the history of law and legal commentary” (180). And, she further observes, it

is particularly the nature of courtroom litigation that sustains this trope5:

If law generally has a secondary textual half-life, the central events of law – trials – (it is observed) are normally performed before live audiences by those specially trained to shed their own identities and ‘represent’ others. Trials are the re-enactment of a conflict [...] whose essential narrative form is dialogue.

They exploit iconic props as crucial clues to the unfolding of the narrative, and often rely on space, staging, costume, and spectacle in an attempt to bring back to life the dramatic event they are attempting to recount (180-81).

Legal scholar Richard Harbinger’s pioneering essay “Trial by Drama” exemplifies the kind of legal commentary on which Peters bases her diagnosis of a pervasive law-as-theater trope. Noting that “[a]n adversarial trial is a dramatic thing put to legal use” (122), Harbinger argues that (criminal) trials are characterized by two layers of drama, “a play within a play” (ibid.). The “play without,” or “courtroom drama,” is enacted by the trial’s opposing lawyers and consists of their performances (as storytellers) in court: “The starring attorneys get most of the dialogue and the action and they do most of the emoting and agonizing. It is only in a legal sense that the defendants or the people win or lose; in a dramatic sense the attorneys win or lose” (124). The “play within,” or “crime drama,” concerns the events of the crime which are reconstructed – by way of two performed, oppositional narratives – in the courtroom. On these two levels, trials work like theatrical plays in which 3 This is not to imply that the structures and conventions of the media in which the law is fictionalized have no impact on the genre of legal drama, and I will address some of these in the course of my discussion. The point I want to make with my choice of focus is that there are also factors inherent in the subject and setting of legal drama that inform its conventions.

4 Julie Stone Peters eloquently discusses the terms “theatricality,” “performativity,” and “performance” as different ways of talking about one and the same aspect of the law (182-86). The differences among them rest in the assumptions and interests they bring to the discussion of the law: While “performativity” especially resonates with the various paradigms of performance studies, “theatricality” bears a more diffusely negative connotation, “carr[ying] with it the burden of [...] the ‘antitheatrical prejudice’” (Peters 182). Seeking to distance my discussion from such assumptions and connotations (which will partly figure as object of my remarks), I will use these terms more or less interchangeably.

5 Thanks to its jury system, the American legal system seems more conducive to theatricality that other legal systems. See Olson & Kayman for a plea for comparative studies of law and culture.

156 Katja Kanzler actors – chiefly the lawyers, but also witnesses, defendants, etc. – perform in front of an audience – chiefly, but not only, the jury.

This audience-orientation figures as a significant element of the lawas-theater trope, an aspect of courtroom litigation (especially of jury trials) specifically singled out to argue the law’s theatricality. 6 And while its theatricality seems to generally predispose the law for medialization and fictionalization, this audience-orientation, in particular, plays an instrumental role for the law’s popular appeal, in ways that ultimately sustain the myriad forms in which trials are represented in the media.

Although lawyers may gear their courtroom performances toward persuading their juries and judges, these may not be the only audiences they attract. Discussing high-profile trials, Richard Schechner speaks of “several audiences surrounding the trial in concentric circles. The courtroom itself is crowded with spectators and press. The proceedings may be televised” (177). Schechner’s image of the concentric circles suggests that these groups of audiences watch the courtroom’s performances in fundamentally similar ways. Audiences on the more peripheral of these circles may not be formally called upon to pass a verdict, but their engagement of the proceedings tends to resemble that of members of the jury: the pleasure of watching trials rests on a clearly defined suspension of disbelief – to pretend that the courtroom’s performances are targeting oneself and to read these as if participating in the casting of the verdict. Media representations of the law specifically exploit the audience-oriented performativity of the courtroom, attracting audiences by offering them an opportunity to vicariously participate in trials from the privileged, authoritative position of judge or jury.

This interest in the courtroom’s “original” audience-oriented performativity shapes the forms and conventions of the law's representations, including those of television legal drama. Most obviously, it sustains a realist aesthetic. Legal drama especially depends on the kind of realism that John Fiske deems characteristic of TV fictions in general: “[Television] presents itself as an unmediated picture of external reality” (21), concealing the technologies of its own mediality and semiotic apparatus. In addition, legal drama incorporates all kinds of references to (lay people's notoriously skewed idea of) the 'real world' of legal practice, from meticulously designed courtroom-sets over ostentatious reproductions of courtroom protocol to references to real courts and cases. Carol Clover – whose observations about courtroom dramas in film pertain to their television versions as well – notes that the genre she calls “trial movies” specifically employs such realist 6 For a most fascinating example, see David Ball’s Theater Tips and Strategies for Jury Trials, which advises lawyers how to improve their persuasiveness by adopting acting and staging strategies from the theater.

Legal Theatricality and Civic Didacticism in Boston Legal 157 techniques to align its viewers with its diegetic juries. “[T]rial movies enact the structure and narrative procedures of real trials” (270), thus offering their audiences reception experiences that present themselves as similar to the reception experiences of juries in “real” trials. In addition, the camera-work and editing of these films encourage an “equation [...] between the diegetic jury and [the films’] spectators” (260)7 – techniques we will see at work in the Boston Legal episode to be discussed below.

The conventions she identifies foreground the courtroom’s “own” theatricality (while downplaying the theatricality of the medium film or television by which this courtroom-theater is represented and fictionalized). They are oriented toward maximizing the illusion that viewers are participating as jurors in a potentially “real” trial.

Clover describes the effect of these conventions as one of intensified viewer engagement: on-screen courtroom dramas hail their audiences “not as passive spectators, but as active ones, viewers with a job to do” (257). It is this distinct mode of audience address, then, that provides for legal drama’s didactic potential. The viewers’ “job” to vicariously rule in a film’s or episode’s case entails learning-work – to learn not only what happened in the case at hand but also what these events mean and why they matter. Participating in the law’s application (“really” or virtually) affords a quintessentially civic experience, an opportunity to immediately practice one’s citizenship and engage the norms and social organization of one's community. In the words of Bernard Hibbitts, “[a] properlyconducted trial gives participants the opportunity and the cathartic satisfaction of approving the law by serving as the instruments of deliberation and decision. A properly-conducted trial democratizes the law by calling the community to witness, and by making it collectively responsible for the law’s effectuation”. As we will see, legal drama’s didactic operations – its capacity to thus offer “civic lessons” – rely on implicating the viewer in the diegetic courtroom’s deliberations.

There is one more aspect of the law’s theatricality that informs legal drama’s realist didacticism, and this concerns the ambiguity that theatricality is accorded in legal discourse. As Julie Stone Peters notes,

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