00;00;00;22 - 00;00;34;29

Jonathan Hafetz

Hi, I'm Jonathan Hafetz and welcome to Law and Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

00;00;35;01 - 00;01;01;13

Jonathan Hafetz

And what does the film teach us about the law and the larger social and cultural context in which it operates? Our film today is The Verdict from 1982. This film tells the story of down on his luck alcoholic Boston lawyer Frank Galvin, played by Paul Newman. Galvin had been a rising star until he was framed for jury tampering by a partner at the elite Boston law firm, where he worked because he planned to expose the firm's illegal activities.

00;01;01;16 - 00;01;28;21

Jonathan Hafetz

As a result, Galvin left the firm and his marriage and career fell apart as Galvin hit rock bottom. His former partner and friend Mickey Morrissey, played by Jack warden, does him a favor by sending him a medical malpractice case that occurred during a botched delivery, and that's expected to settle out of court for a significant sum. However, Galvin is moved after visiting the woman in the hospital, where he sees her in a comatose state, and he learns how the Catholic hospital was responsible for this due to its gross negligence.

00;01;28;22 - 00;01;49;10

Jonathan Hafetz

To the dismay of the representative of the Catholic diocese played by Edward Binns, and without informing the woman's family, we're expecting a settlement to help pay for her care. Galvin turns down the settlement, takes the case to trial. There, he must confront the hospital's high powered and corrupt attorney, Ed Concannon, played by James Mason, and a judge played by Milo Shea, who appears biased against him.

00;01;49;11 - 00;02;13;03

Jonathan Hafetz

In the meantime, Galvin has a romantic relationship with another attorney, Laura Fisher, played by Charlotte Rampling, who Galvin meets in a bar, but unbeknownst to him is a spy planted by opposing counsel Ed Concannon, whose firm she's returning to after a bad divorce. Ultimately, Galvin discovers the hospital's covering up its negligence, although the judge tries to exclude the evidence, Galvin wins a huge damage award as the jury is able to see the truth.

00;02;13;06 - 00;02;36;23

Jonathan Hafetz

The verdict was directed by Sidney Lumet and written by David Mamet, adapted from Barry Reed's 1980 novel of the same name. It's both a gripping courtroom drama and a moving story of redemption. Our guest to discuss this modern American classic is John Rusty Wang, a nationally recognized criminal defense attorney. Rusty is senior counsel at LaFleur, Suffolk, and Wall, a powerhouse white collar litigation boutique in New York.

00;02;36;25 - 00;03;00;03

Jonathan Hafetz

For more than 30 years, rusty has defended individuals and entities against what chambers USA calls an impressive range of the company. Allegations. Its clients ranged from fortune 500 corporations to law firms, banks, business executives and lawyers, as well as political figures, media figures, accountants, doctors, bankers, small business owners and individual for many walks of life. An active contributor to the legal community.

00;03;00;04 - 00;03;20;05

Jonathan Hafetz

Rusty has published and lectured extensively on trial work and criminal law topics. Before entering private practice, rusty worked as an assistant U.S. attorney in the U.S. Attorney's Office for the Southern District of New York, and served there as the chief of the Securities and Business Fraud Unit. So it's a pleasure to have rusty join us on law and film to talk about the verdict.

00;03;20;06 - 00;03;21;09

Jonathan Hafetz

Welcome, rusty.

00;03;21;11 - 00;03;22;23

John "Rusty" Wing

It's a pleasure to be here.

00;03;22;25 - 00;03;43;22

Jonathan Hafetz

So the film opens with scenes of Frank Galvin, played by Paul Newman. I think it's really brilliant performance going to funerals that he reads about in the newspaper and handing out his business cards to the bereaved, in an effort to try to drum up business. Then we see Galvin get thrown out of a funeral parlor when one family sees what he's up to.

00;03;43;28 - 00;03;56;13

Jonathan Hafetz

Galvin's also drinking heavily in his practices, in shambles. So Galvin got there through some sort of jury tampering incident that happened as distant past. So can you tell us just a little bit more about that and how that sets up the film?

00;03;56;15 - 00;04;21;04

John "Rusty" Wing

What we learn from Mick's description of his background to Laura, the woman who was actually a spy for the Defense Council, apparently, after finishing second in his class in law school and being on the law review, which is a great honor. He wound up in a very good firm and was doing quite well as a lawyer at that firm.

00;04;21;06 - 00;04;52;02

John "Rusty" Wing

One of the name partners, a guy named Stearns, apparently either bribed a juror or attempted to bribe a juror in a case that Stearns and Frank were working on together. And when Frank learns of this, he thinks that there's no alternative, but he needs to essentially report the illegal activity to the court. And before he knows it, and in the wink of an eye, he is arrested and or indicted.

00;04;52;07 - 00;05;12;26

John "Rusty" Wing

But either way, he's thrown in jail and apparently he figures eventually the only way to get out is to go back to the partners in the law firm and say, I made a mistake. I'm not going to rat you out. And the next thing he knows, the charges are dropped. He's let out of jail, and he's promptly fired by the law firm.

00;05;12;28 - 00;05;46;29

John "Rusty" Wing

But his reputation is absolutely down the tubes, and I'm sure it contributes to what ultimately turns him into a fairly serious alcoholic and a guy who has basically very, very tiny law practice. Because the reputation, even though he wasn't found guilty of anything, and he wasn't guilty of anything, but it's enough to destroy your soul to be falsely charged and and have to live with that and have it ruin your professional life, which it appeared to be doing.

00;05;47;02 - 00;06;01;13

John "Rusty" Wing

And that's sort of where we start with Newman, who actually got an Academy Award for his performance. And clearly he didn't get the award. He got the nomination. He deserved to win the award. This was perhaps his best performance as an actor.

00;06;01;16 - 00;06;20;09

Jonathan Hafetz

I certainly agree. Newman was brilliant, and it's either the best or it's up there with the hustle, but it's really hard to do a better performance. I mean, that year he was up against some stiff competition on the Best Actor award. I mean, pretty amazing actually. It was Ben Kingsley as Gandhi, Dustin Hoffman as Tootsie, Jack Lemmon in Missing, and Peter O'Toole in My Favorite Year.

00;06;20;10 - 00;06;35;29

Jonathan Hafetz

I mean, that's a pretty amazing competition, but it's hard to give a better performance. And Paul Newman does. Jury tampering is pretty much about as serious an ethical violation as a lawyer can do, right? If you come across anything like that in your many years of experience.

00;06;36;05 - 00;07;02;25

John "Rusty" Wing

I have as a prosecutor, I've had several cases. They were mob mafia cases. And on one of them were I think 10 or 11 defendants. Two of them were top Mafia bosses, and the next 4 or 5 guys were medium level mafia guys. And then there were four stockbrokers who happened to be of Jewish persuasion. So it's a very lengthy trial on the prosecutor the night before.

00;07;02;25 - 00;07;26;28

John "Rusty" Wing

I'm to sum up that case and going on for a long time, we learned that one of the jurors had a friend who was an FBI agent, and she told the FBI agent that she thought one of her fellow jurors was corrupt and was going to help the defendants. So the next morning, going before Judge Lasker, one of the great judges, actually in the Southern District of New York, this all gets reported.

00;07;26;28 - 00;07;55;26

John "Rusty" Wing

And to my surprise and dismay, what the judge does is he throws off the juror who has reported this. He keeps on the juror who was suspected of being tampered with and favoring the defense improperly. And he tells me, I'll tell you what, rusty, I'm going to watch very closely during your summation. And if I see this juror sort of nodding or going to sleep or something, I may take some action.

00;07;55;28 - 00;08;17;22

John "Rusty" Wing

So it's a long case. So the summation is lengthy. I'm sure it was probably a minimum of two hours, probably longer, but it didn't take that long. This juror was asleep or appearing to be asleep within about five minutes. All the defense lawyers, they're dropping books, they're coughing. They're trying to wake her up, but she doesn't wake. And we go through that.

00;08;17;26 - 00;08;38;22

John "Rusty" Wing

Finish my summation. I regret to say the judge decides not to do anything. He doesn't do anything. It leaves her on the jury and so the jury goes out. And apparently, as soon as they go out, she goes into the bathroom and refuses to come out. This is a period right before Christmas. So of course, all the jurors are very anxious to be done and get out of there.

00;08;38;22 - 00;09;09;03

John "Rusty" Wing

It's been a very lengthy trial. We wind up at the end of the time when finally things are resolved, the two top mob guys are acquitted. The medium level mob guys hung jury a like 11 to 1, with the one being this juror holding out and the four Jewish stockbrokers. They get convict. And later we learn that what this woman was offered as a bribe was they were going to buy her a bar.

00;09;09;06 - 00;09;28;11

John "Rusty" Wing

And one of the guys who was working with the office, sort of undercover and had connections with the mob, ran into the group that was involved in this, showing this woman a particular bar he was in that night to see whether that was a bar she might want to get. We tried to investigate, and we were unable to come up with enough evidence.

00;09;28;11 - 00;09;46;11

John "Rusty" Wing

So that wound up. And I had another case, too, where it was clear there was a juror. Juror was bribed for a lawyer to provide the jury, I would say, is if not totally unique and unprecedented, highly unusual. Usually it's the defendant and defendants who have no scruples about breaking rules.

00;09;46;17 - 00;10;00;18

Jonathan Hafetz

For a lawyer to do it. And like in the verdict, especially, you know, a law firm, a very good law firm to be involved in that. Well, it leads to Paul Newman's character having his career kind of go down the drain and just his soul, as you said, like his belief in the law really affects his whole life.

00;10;00;18 - 00;10;17;07

Jonathan Hafetz

So. So that's where we see him at the beginning. And then he gets a break, right? As he's sort of at rock bottom. His friend Mickey Morrissey, played by Jack warden, says, I'm going to give you this malpractice case. It's this woman who had gone into the Catholic hospital to deliver a baby. Something went terribly wrong. She's comatose.

00;10;17;10 - 00;10;34;06

Jonathan Hafetz

It's going to settle. It's going to settle for a significant sum. You'll be working on contingencies, so you'll get a third and so this is something that looks like it's going to at least allow Paul Newman to, you know, for his practice to keep going. So Frank Galvin meets with a representative of the Catholic diocese. This is Bishop Brody.

00;10;34;11 - 00;10;52;28

Jonathan Hafetz

It's an excellent supporting performance by Edward Binns. At that time, though, Paul Newman has consulted with a doctor, a respected doctor at the hospital, who tells him the doctors who operated basically murdered the woman by giving her the wrong anesthetic, and he's agreed to testify as an expert. And he's just come from the hospital where he's seen the woman in a comatose state.

00;10;52;28 - 00;11;01;18

Jonathan Hafetz

So Galvin is moved, and he decides he's going to reject the settlement offer made by the diocese representative.

00;11;01;20 - 00;11;29;00

The Verdict Movie Dialogue

So generous offers to go, and nothing can be done to make that woman well. We could at least try to currency make a gesture. How would you settle on the amount? We thought it was just. He thought it was just his because it struck me on how neatly three went into this figure. 210,000. It means I would keep 70.

00;11;29;03 - 00;11;52;24

The Verdict Movie Dialogue

That was on the insurance company's recommendation. Yes, that would be nothing we can do can make that woman well and no one will know the truth. What is the truth? That poor girl put her trust into the hands of two men who took her life. She's in a coma. Her life is gone. She has no home, no family.

00;11;52;27 - 00;12;15;16

The Verdict Movie Dialogue

She's tied to a machine. She has no friend. And the people who care for her are doctors and may have been bought off to look the other way, or even to look the other way. I came here to take your money. I brought snapshots to show you so I could get your money. I can't do it. I can't take it.

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The Verdict Movie Dialogue

Because if I take the money, I'm lost. I'll just be a rich ambulance chaser. I can't do it. I can't take it. You may discuss money, Mr. Brown. How's your law practice? Not too good. I only got the one client.

00;12;31;09 - 00;12;55;05

Jonathan Hafetz

After refusing the settlement. Galvin's then confronted by the victim's family members, her sister and brother in law, who are furious at Galvin for rejecting the settlement without consulting them and against their wishes. Galvin not only thinks he's going to win more money at trial, but he feels compelled to do the right thing. Otherwise, as he says, they'll just be another rich ambulance chaser.

00;12;55;06 - 00;13;07;03

Jonathan Hafetz

So how problematic was Galvin's decision to go to trial, and what does it say about the duties of an attorney and the moral judgments that should inform decision making on things like settlement?

00;13;07;05 - 00;13;38;00

John "Rusty" Wing

There's no question about the fact that he committed an ethical violation by failing to tell his clients, the sister of the woman who had been basically murdered, injured so that she was a vegetable, by refusing to tell him about the settlement. And it was probably given the time in the 80s when I think this is supposedly taking place, was probably a reasonable amount of money, and the average case at that time would have yielded the 210,000 they were offering.

00;13;38;03 - 00;14;15;12

John "Rusty" Wing

Although he made a nice point in his conversation with the bishop that it struck him as, how did you come by this number, which seems very clearly designed to be easily divided by three, because the lawyer winds up with a third of the of the settlement. In any event, that was a clear ethical violation, and you can't quarrel with his basically coming to Jesus moral moment as he's sitting there looking at this poor woman who is just connected to tubes and her life is essentially clearly over, and the two nurses walk by and say, you should get out of here.

00;14;15;12 - 00;14;44;29

John "Rusty" Wing

What are you doing here? You're not supposed to be here. And he says almost profoundly, I'm her lawyer. And I think then and he's sitting there and he looks at the pictures, he's taken the photographs. He's taken of her, which he was going to use in negotiating a high settlement. And it gets it. So there's nothing wrong with actually deciding the right thing to do is to do much better than what the average negligence lawyer would do, because negligence lawyers in many, many cases, they rarely go to trial.

00;14;45;03 - 00;15;07;29

John "Rusty" Wing

They collect settlements from people who are scared to death. What a jury will do if you actually go to a courtroom. But what he could have done and should have done was go to the sister and her husband and say, look, they've made an offer. It's not a pittance, it's a decent amount of money. And it's the kind of thing you were probably looking for because they were looking to leave Boston and go different part of the country.

00;15;08;01 - 00;15;35;02

John "Rusty" Wing

But I have to tell you this, I think what these doctors did to your sister was really criminal. It was outrageous. And this hospital, okay, it's a very reputable Catholic hospital, and the Catholic Church is involved, and the doctors are reputable doctors, but they did something that you should get far more money. They should pay as much bigger fee for what actually did, because this was clearly I mean, you can call it negligence or you could call it murder.

00;15;35;06 - 00;15;57;28

John "Rusty" Wing

And in fact, at the end of the movie, the doctor admits it would be criminal to do what was being claimed, although not at that point quite proved. So that's the way he could have resolved it and should have resolved it. But you're dealing with a man. First of all, he's somewhat hampered by the frequent use of the alcohol, and then he hasn't been practicing law at any kind of level for a long time.

00;15;57;28 - 00;16;25;05

John "Rusty" Wing

He's been down and out and living a life hard for the average lawyer to think would be anything of consequence. And that's probably why he's acting a lot on instinct. But he does have the right idea and he baffles both the church, the church is following this very closely, and he baffles the judge and the defense lawyer because everyone expected this guy given his situation, he's going to take the money, no question about it.

00;16;25;08 - 00;16;33;29

Jonathan Hafetz

Yeah. They expect him to fold and he's moved. And I think he sees this as you're saying. It's sort of a chance for redemption and what had happened to him and he doesn't consult.

00;16;33;29 - 00;16;53;11

John "Rusty" Wing

That's a good point, Jonathan, because it's more than just it's the right thing to do for the client. He's looking for a way to sort of change his life, redeem his life, and go back to being an effective, principled, decent attorney, a thinking about that a lot. Unfortunately, it doesn't stop.

00;16;53;13 - 00;16;55;10

The Verdict Movie Dialogue

But it does.

00;16;55;12 - 00;17;01;15

John "Rusty" Wing

Everything else. I mean, he's got his personal history and future wrapped up in this as well.

00;17;01;18 - 00;17;28;01

Jonathan Hafetz

Yeah, exactly. And, you know, it's interesting and I've seen of civil action in the film involving the mass tort litigation arising outside of Boston, the best tort litigation in Woburn, Massachusetts, for the environmental pollution. The author of the book I read of the verdict, which the movie was based on, was a lawyer in Boston and interesting his protege was James Lichtman, who's the plaintiffs lawyer in a civil action.

00;17;28;02 - 00;17;44;08

Jonathan Hafetz

You know, so was in connection with another Boston Legal culture tort suit. It's kind of interesting. John Lichtman sort of at the top of his career, and he's moved by the plight of the Woburn plaintiffs. And so he takes this on, but he kind of becomes absorbed with their struggle. And to do the right thing, no matter the cost.

00;17;44;14 - 00;18;10;22

Jonathan Hafetz

Kind of. Paul Newman has the same response. He's sort of at the bottom end, but both of them sort of take on this larger cause and aren't necessarily kind of keyed in to what their clients want and don't really have a conversation you describe with their client. That's not the end of the of the settlement negotiations, because then there's a conference, a pretrial conference in chambers between the judge, Judge Royal Mile, OSHA, and Concannon, the opposing counsel played by James Mason.

00;18;10;22 - 00;18;18;07

Jonathan Hafetz

Another amazing performance, and Frank Galvin, where the judge tries to pressure Galvin into settling.

00;18;18;10 - 00;18;37;27

The Verdict Movie Dialogue

I will try to resolve your little difficulties because that certainly would save the Commonwealth a lot of time. A bother on a very complicated case, Your Honor, I am sure is fine. But then let me tell you something funny. Funny, so complex. How do you think you're going to make a jury understand my point? Now, let's talk a minute, Frank.

00;18;38;03 - 00;18;55;11

The Verdict Movie Dialogue

Usually, if I take right now this very minute to walk out of here, let this damn thing drop, okay? I can't walk, Your Honor. I know full well as you can, Frank. You see the Padre any way out? He put your ticket in front of me. Just trying to help you. You run him? Bishop Brophy in the archdiocese thereafter.

00;18;55;14 - 00;19;21;06

The Verdict Movie Dialogue

Plaintiff 210,000 does what my doctors didn't want a settlement of any price. They wanted this kid up in court. They want their vindicate. And I quite agree with them. But for today, the offer stands before the publicity of a trial begins for their own label. When I walk out that door, the offer is withdrawn. Just so long as you understand that Mr. Galvin got to be that way.

00;19;21;08 - 00;19;42;24

The Verdict Movie Dialogue

We're going to try the case. Frank, I don't think I'm talking out of school, but I just heard someone offer you 200 grand, and that's a lot of money. And if I may say, you haven't got the best records, things change. Oh, that's true. Sometimes they change it, sometimes they don't. I don't know them. The back to when you were disbarred, I wasn't disbarred.

00;19;42;26 - 00;19;58;09

The Verdict Movie Dialogue

It seems to be. I was trying to come back. You take the settlement, and I record for himself. I myself was taken one negative. I'm sure you were. Well, we have the date set next Thursday. See you boys in court.

00;19;58;12 - 00;20;12;01

Jonathan Hafetz

How true to life did this settlement conference appear to you? I mean, judges place pressure to varying degrees on the parties to settle and civil as well as criminal cases. But do you think this was sort of right up to the line over the line?

00;20;12;04 - 00;20;42;14

John "Rusty" Wing

This was a little more enthusiastic on the judge's part to get rid of the case. I mean, judges often want to encourage settlement to save themselves from going to a case that they don't think necessarily warrants a trial. Let the little lady know of it. I think it's a good idea that one side or the other has got the better of the case, and the two reasonable lawyers would figure out a way to settle the case and save everybody a lot of time and money.

00;20;42;16 - 00;21;03;28

John "Rusty" Wing

And that does happen. This judge, where he's surprised by Frank Galvin, indicating that he wasn't interested in settling. He says, I can't believe it. I mean, $210,000, that's a ton of money. Why? If it were me, I'd take it and run like a thief. And of course, Galvin has the lovely line. I'm sure you would. And it's probably true.

00;21;03;28 - 00;21;28;17

John "Rusty" Wing

But this judge, you think you don't know for sure? He's not saying anything that makes it apparent. But who are the real parties here? The Catholic Church, this is Boston and a Catholic hospital that is run by owned by the church. And two very reputable doctors. So I would think the judge had no interest in making life hard for the institutions or the individuals.

00;21;28;19 - 00;21;48;23

John "Rusty" Wing

And if you get a settlement, everything is very quiet. There's not going to be any press. There's not going to be a lot of talk about how this poor woman that effectively murdered by two doctors at the Catholic hospital, and it was clearly in their interest. And of course, they've got a very fine, reputable law firm representing them.

00;21;48;23 - 00;22;01;06

John "Rusty" Wing

And so it's clear to the judge, this is the best way for this case to proceed. And it's the way everyone thought it would proceed until all of a sudden, Frank Galvin decided to go back to being a really good lawyer.

00;22;01;08 - 00;22;17;01

Jonathan Hafetz

You can see at the end of the scene it doesn't come on, the Clippers doesn't say anything. But James Mason was playing, at Can-Can and the partner at the law firm, the large prominent law firm that's opposing him, just shaking his head, as in closing the door and being like, you know, what are you doing, you idiot?

00;22;17;01 - 00;22;43;14

Jonathan Hafetz

Basically. And, you know, it's interesting to too, about the press because one of the things that, the James Mason character does is launch an effective press strategy, which is in service of his client, the churches interest, the hospitals interest. Right. Because the hospital, as you said, is very concerned about how this plays out in Catholic, Irish, Boston, especially when you have a woman, Catholic woman going in to deliver a baby and ends up, you know, basically coming out of vegetables.

00;22;43;14 - 00;22;54;19

Jonathan Hafetz

So they're very keyed into that. One of the things that James Mason, James Mason character does is to sort of practice all these various stories, to try to prop up the hospital's case.

00;22;54;22 - 00;23;26;21

John "Rusty" Wing

It crossed my mind that the idea of, I think it was telling one of his many associates to get articles planted in both the globe, the Boston Globe and the Boston Herald, the two major Boston papers about the hospital and all the good works the hospital has done. And also, let's get some TV. I mean, someone else who had a TV connection get one of the doctors on a TV program talking about the great work that he did in the hospital did.

00;23;26;23 - 00;23;59;00

John "Rusty" Wing

Is there something a little smelly about this effort to. And this was going to be the articles and the and the interview on TV was going to be right a little literally a few days before this trial was going to start. Is there something clearly not kosher about it? But because of that, I chatted with Frank wall, who you may know, who's quite a fine lawyer on ethics, and he concluded that maybe it came a little close, but it doesn't really violate an ethical rule.

00;23;59;00 - 00;24;24;05

John "Rusty" Wing

And people defendants are entitled to try and put their best foot forward. When you think about it, in criminal cases. And now this wasn't a criminal case, although it did involve criminal conduct. When you think about it, prosecutors have a huge edge. They bring a case, there's an indictment that everybody can read and may get at least part of it referred to in not just newspapers but on TV.

00;24;24;08 - 00;24;50;17

John "Rusty" Wing

And then you have, a press conference that the prosecutor, particularly prosecutors like Preet Bharara, were very happy to meet the press any time they could and say all sorts of things to promote themselves as well as talk about the case. They have a big edge. And the defendant, he can say, I'm not guilty. But that doesn't compare in terms of who's influencing prospective jurors more.

00;24;50;19 - 00;24;54;13

John "Rusty" Wing

I don't know if the thought crosses my mind that I didn't care for that.

00;24;54;15 - 00;25;09;19

Jonathan Hafetz

Yeah, that's a great point. And I mean, I suppose in theory, in a real trial they would have some kind of voir dire or some questioning of the jurors to see if they were exposed to this publicity. Obviously, films not a comprehensive account of the trial, but even so, it's often hard, I think, to limit that kind of damage.

00;25;09;24 - 00;25;15;19

Jonathan Hafetz

The body is limited in its ability to kind of uncover the type of media saturation that would have happened in this case.

00;25;15;22 - 00;25;49;26

John "Rusty" Wing

There's one case in particular, the Shelly Silver case in New York federal case that was an indictment under Preet Bharara, and the arrest was time to take place on a particular day when already scheduled three days later, was Preet was giving a speech at some law school or some public place. And in that speech, he went way beyond the bounds of what you can talk about, about corruption in Albany and the three guys involved and Shelly Silver being one of them.

00;25;49;26 - 00;26;16;09

John "Rusty" Wing

And it was, my view, outrageous. It was the subject of a pretrial motion, even though there was a very pro-government judge. The judge wrote an opinion, a scathing criticism of what the U.S. Attorney's office had done. But she wasn't going to dismiss the indictment and didn't. And that publicity which came out then like three days after the guy was arrested before he's indicted.

00;26;16;09 - 00;26;38;08

John "Rusty" Wing

So all of the prospective grand jurors who are going to vote, the indictment, they see it. And then the case goes on for almost a year before there's a trial. But that same publicity was getting published in and out all the time up to the trial. During the trial, while the jury is out, there's something basically improper about that.

00;26;38;08 - 00;26;51;23

John "Rusty" Wing

And silver got convicted as part of it, was reversed on appeal, but without commenting on, you know, who's right or wrong or what was the right result in the case, it's just it's not the way you should do business.

00;26;51;25 - 00;27;15;03

Jonathan Hafetz

I know it's problematic. There's a great scene in the film. I think, you know, one of the many great scenes. It's such a well-written, well-directed film in the script by David Mamet is just superb. With The Witness, where you have at Concannon, the James Mason character trying to prep the anesthesiology post, who's going to testify? And the one that we learn is primarily responsible for what happened to the patient.

00;27;15;05 - 00;27;41;09

The Verdict Movie Dialogue

What is your name, please, doctor? Robert Toner, you remember in case doctor? No, actually, she was referred to me. She was Doctor Hang. Don't be positive. Just tell the truth. Whatever the truth is, just tell that you were a doctor. Yes. Said I was her doctor. You were her anesthesiologist at the delivery on May the 12th, 1976. Well, I was one of a group of medical.

00;27;41;12 - 00;28;04;16

The Verdict Movie Dialogue

Now answer affirmatively a simple premise and try to keep your answers down to three words. You were not part of a group. You were her anesthesiologist. Isn't that so? Yes. You were there to help Doctor Marx to the child? Yes. Who else was with you in the operating room? Miss Levin's notion is that it's Doctor Marx. Of course, Maureen Rooney.

00;28;04;16 - 00;28;27;02

The Verdict Movie Dialogue

There was a lot of these people do when her heart stopped. We went to Code Blue. Code blue? Do you mind explaining to the jury what that means? It's a common medical expression. It's a crash program to restore the heartbeat. Doctor Marx cut a airway in her trachea so she could get oxygen. She and the baby. Mr. Nevins, why wasn't she getting oxygen?

00;28;27;04 - 00;28;49;17

The Verdict Movie Dialogue

Many reasons. Really. Tell me one she had aspirated, vomits into her mask. She threw up in a mask. Now cut the bullshit. Please, just say it. She threw up in our mask. She threw up in her mask. Therefore she wasn't getting oxygen and her heart stopped. That's right. And what did your team do than a little girl? Three years of medical experience.

00;28;49;19 - 00;29;07;05

The Verdict Movie Dialogue

And it was. You did it again. A patient riddled with complications, with questionable information on their medical charts and everything we put to save her and to save the child. Yes. You reached down to find out. We tried to save her. You can. Oh, you know, good, good.

00;29;07;07 - 00;29;18;08

Jonathan Hafetz

Well, rusty, you've prepared, let's say, countless witnesses, in your day to testify on both sides. Prosecution, defense. What did you think of this witness? That getting the doctor ready to testify.

00;29;18;11 - 00;29;49;28

John "Rusty" Wing

I thought it probably was not uncommon what lawyers try to do. Sometimes they're successful, sometimes they're not, is to get a witness, to relate what they want to bring out during the direct examination in a way that the jury can understand it and will have some effect in terms of making the juror accept the accuracy of the testimony and emotionally like a witness, and think well of the witness.

00;29;50;00 - 00;30;25;20

John "Rusty" Wing

And there are many witnesses who can be very, very bright people, very highly educated, smart professor, businessmen who will be speaking using words that may not be terribly familiar to the average juror, who's usually the average blue collar worker. And so trying to help witnesses appreciate that fact so that instead of using medical terms, let's just say she threw up in her mask and she vomited in her mask instead of the doctor's original description of that activity.

00;30;25;23 - 00;30;48;05

John "Rusty" Wing

So it was perfectly clear jurors can understand what happened. And I think that is standard, standard fare. And at the end of the day, it's tough for jurors to sit through particularly lengthy cases where they're hearing a lot of things and you want them to be able to absorb the essence of the testimony. So hopefully that they can recall it.

00;30;48;05 - 00;31;13;05

John "Rusty" Wing

When a month later, two months later, three months later, they're asked to decide a case and form a judgment based on things that perhaps they don't have much of a recollection of. But certain people have a way of speaking, either dramatically or emotionally, that people do remember, and lawyers do their very best to help witnesses achieve that effect when they're speaking with jurors.

00;31;13;07 - 00;31;34;15

Jonathan Hafetz

And James Mason is like a skilled trial attorney, does what you said, tries to get the doctor to speak in a way that's going to appeal to the jury. He also does it, I think, through questions, right. He's not telling him, you can't tell him what to say. It's able to sort of prod him and get him to the place that James Mason wants him to be, basically through kind of just questions and suggestions.

00;31;34;15 - 00;31;42;05

Jonathan Hafetz

So it's been pretty effective. Or a very good description of what a very good lawyer might do to get a witness ready to testify effectively.

00;31;42;08 - 00;32;05;09

John "Rusty" Wing

And in addition, he must have at least eight or more associates in the room. As all of this is going on, those lawyers are all on specific assignments that make a lot of sense in terms of preparing to try a case, leaving no stone unturned in terms of what the legal issues might be and what the factual issues might be.

00;32;05;12 - 00;32;31;29

John "Rusty" Wing

Maybe it's appropriate time to mention two things about Mr. Kincannon, the lawyer. He kind of gives it away in a later scene where he's paying Laura to spy on Frank Galvin, as unethical as it can be, and he's saying that he is a young lawyer, learned as a result of conversation with a senior lawyer on some case that as a young lawyer, he handled, he was asked, how did you do that?

00;32;32;00 - 00;32;55;04

John "Rusty" Wing

He says, I did my best. And the senior lawyer said, you're not being paid to do your best. You're being paid to win. And because of that, I guess he felt free to do almost anything that you could do to win. But here's one thing he didn't do. And the multiple other lawyers who worked on the case for the defense did not, too.

00;32;55;06 - 00;33;25;00

John "Rusty" Wing

They did not assume that maybe their clients, those two doctors, weren't telling them the truth. And they did not give them the facts of the case, do the investigation that you would have thought any half baked lawyer would do, because this woman, she comes in to deliver a baby, she complains of nausea at the time, even though the admittance form at the time, they don't have that.

00;33;25;01 - 00;33;57;26

John "Rusty" Wing

They have it in this form that's been changed. They should be figuring out what caused her to vomit in her mask. I how did that happen? Why did that happen? And people with medical knowledge could figure it out pretty quickly. And there's no evidence, no indication that those lawyers ever pursued or thought about pursuing the nurse who signed the admitting form that claim the woman had eaten only nine hours before she came in.

00;33;57;28 - 00;34;20;21

John "Rusty" Wing

I can't tell from the film whether they would have known that the sister was saying she ate only an hour before she came in. I don't know whether that came out in some deposition of the sister before this case was tried, but they never pursued the admitting nurse. Whether they knew or not, you would thought they might have learned that nurse got fired.

00;34;20;23 - 00;34;45;24

John "Rusty" Wing

You know, right after the operation took place. They also never pursued the other nurse who figures in the film, Maureen Rooney, who essentially was protecting the admitting nurse, Caitlin Costello. She does not testify for the doctors. Now, we don't know, but they certainly never learn from that nurse why she didn't want to testify and she, of course, didn't want to lose her job.

00;34;45;24 - 00;35;09;22

John "Rusty" Wing

So she wasn't going to say anything one way or the other. She just didn't want to testify. So good lawyers, you have tried many cases yourself. You can't make the big mistake, particularly if you're defending in a criminal case. But here, if you're defending where the claim is, basically you murder the client. You can't just assume that you're going to get the truth from the people who were involved.

00;35;09;25 - 00;35;32;00

John "Rusty" Wing

And I think that was essentially a very fatal flaw. And it was clear from what happens in the courtroom at the end of the trial that they didn't know, that they had no idea, and they were totally bamboozled by whatever the doctors didn't say and whatever misleading things the doctors did say. And that's says something about the lawyers.

00;35;32;03 - 00;35;46;25

Jonathan Hafetz

Yeah. It's so true. And you show I mean, can can. And James Mason character at trial is clearly surprised he recovers and we'll talk about what he does. You know, he has to recover on his feet, but he's clearly taken aback when he learns the truth. And he doesn't know, despite, as you said, all the lawyers they had, like in the witness prep scene.

00;35;46;25 - 00;36;02;11

Jonathan Hafetz

It doesn't come through in the audio clip, but there are about 10 or 12 lawyers. I mean, it's quite a team and they don't, you know, they don't do this investigation. Let me ask if they had done the investigation and they had learned, you know, what, it actually happened in terms of the changing of the form and that she was actually had actually eaten.

00;36;02;11 - 00;36;11;22

Jonathan Hafetz

And they should have known that shortly before the operation. Not done the procedure. What does he do? What does can kind of do it. Did you just say, go to the archdiocese and say, we got to settle this case for more money?

00;36;11;24 - 00;36;47;11

John "Rusty" Wing

I think, absolutely. And the real problem is it's a very practical run. What can we do to somehow avoid this misconduct coming out here? You got the doctors losing their licenses, and maybe they should be thrown off the hospital staff right away. And you should offer an enormous amount of money to settle the case. I suppose you can make it look like you're doing it because you appreciate the terrible consequences that this poor woman suffered because of what happened in the operating room, regardless of whether someone was negligent or not.

00;36;47;11 - 00;37;17;02

John "Rusty" Wing

The reality is this. And we're going to pay you $1 million. I forget about $210,000 or maybe $2 million. That's a would be a good test, all the things they're doing. And of course, the Catholic Church is being advised by someone who is not that interested in conveying to the bishop the actual realities of what's happening, trying through kind of general remarks, which is how he responds to the bishop's questions.

00;37;17;09 - 00;37;25;00

John "Rusty" Wing

And the bishop does have some question, particularly at the end. Did you believe Caitlin Castle? And I don't want to talk about that.

00;37;25;03 - 00;37;37;20

Jonathan Hafetz

Yeah. He's a little bit troubled. The bishop and I think I have, you know, and I think he would have offered more money, but it is it's such a flawed that they don't do that. They don't do the investigation. And the last thing you want to do as a traveler is to be surprised like that when it comes out.

00;37;37;22 - 00;38;07;03

Jonathan Hafetz

Even before that, we get to trial. One of things that happens right on the eve of the trial is that Mick is, Gavin's friend and now co-counsel in the trial. Mickey, the Jack warden character, learns, inadvertently, that Laura Fisher, Charlotte Rampling was in Gavin's become very intimately and romantically involved is being paid by Concannon to spy on Galvin and feed information about the trial strategy, so Mickey suggests to Galvin that he request a mistrial, but surely has to be granted based on what he learns.

00;38;07;03 - 00;38;12;21

Jonathan Hafetz

I assume. But Galvin says no, I want to continue. What did you think of that decision?

00;38;12;23 - 00;38;46;19

John "Rusty" Wing

Let me go back a little bit before we get to that point. After having tarnished Ed Can Cannon's legal ability for not investigating the case and finding out of his clients are wires, you have to look at what Frank Galvin did in this case, because there are a couple of things where he two really fell down. On investigating the basic facts he is told by the doctor or by the doctor, the good doctor that they had lined up, that this woman was murdered.

00;38;46;19 - 00;39;14;06

John "Rusty" Wing

They gave her the wrong anesthetic. It was absolute clear negligence. And he was told by the subject to doctor that absolutely they gave her the wrong anesthetic because she had eaten one hour before she went in for the delivery procedure, and he knew that the sister had said she had eaten just one hour before she went in to have the delivery.

00;39;14;08 - 00;39;43;15

John "Rusty" Wing

And Mick is maybe the culprit here because Nick, when Calvin learns this, says, yeah, but that doesn't count. That won't work because the in many forms is nine hours. Why do you automatically, if you've got contradictory evidence, do you pursue it a little? Why aren't you interview ING the sister as to the basis for her belief? It was one hour and why isn't she a potential witness for you on that basic fact?

00;39;43;15 - 00;39;58;10

John "Rusty" Wing

Because that's a pretty critical fact. And then why don't you start looking at the person who wrote the admitting form? Because you should investigate why. And Richard, they write the nine, and why don't you learn.

00;39;58;12 - 00;39;58;27

The Verdict Movie Dialogue

Long.

00;39;58;27 - 00;40;22;28

John "Rusty" Wing

Before he actually learns it? You learn that she was fired right after this operation and she's left town. And then maybe you can figure out from Rooney some things about that. But Rooney was not disposed to help either side. She wanted to keep her job, and that involved say nothing. But why do they pursue that? Why doesn't Frank think of pursuing that?

00;40;23;04 - 00;40;48;13

John "Rusty" Wing

That's his failure. And even though he is clearly the hero of this film and in every way he deserves to be, you think even though he'd had a long time at the bottom of the barrel, you would have thought he would have considered and pursued things like that. They were pursuing other things, and maybe Mick sent him off with the conclusion idea that, oh, it won't help what the sister says, because the form, it's a document.

00;40;48;13 - 00;41;02;21

John "Rusty" Wing

Who's going to disbelieve a document? So maybe why not pursuing the person who wrote the document? And then, of course, you have Frank engaged in not only the ethical violation of not telling the clients about the settlement, but he also winds up in.

00;41;02;21 - 00;41;04;28

The Verdict Movie Dialogue

Order to pursue.

00;41;05;01 - 00;41;31;08

John "Rusty" Wing

How to find Costello. He breaks into Rooney's mailbox, which is a crime which he could be prosecuted for federally. So, as we like to say, you know, nobody's perfect. Everybody makes mistakes. So that those are some of the relevant facts relating to Frank Alvarez, Frank Gavin, we watching the movie, but your question is a good question. But the answer is that he made the right decision in not going for a mistrial.

00;41;31;08 - 00;41;54;20

John "Rusty" Wing

And I'm sure he knew he could have gotten a mistrial because he only learns about Laura being paid off by the defense counsel after he has gone to New York, met with the admitting nurse, Caitlin Costello. And although we don't see it happen, the inference from the way it's left is meeting her in the playground where she's taking care of kids because she's no longer a nurse.

00;41;54;20 - 00;42;15;26

John "Rusty" Wing

She was a great actress. Expressions on her face, I thought were just remarkable, and he strikes up the conversation where there was some bullshit story about who he is, and she sees on his overcoat that he's got the Eastern Airlines al, and she figures it out that he's come from Boston. And then he says, can you help me?

00;42;15;28 - 00;42;51;11

John "Rusty" Wing

And you see her face, and then the scene goes dark and we don't know what happens, but we learn what happens, that she agreed to help him. And it's only after that that Mick tells him, because Mickey's going down to New York to find him, to tell him what Laura was really up to. To be fair to Laura, and that was a nice piece of acting to that actress father grappling, because it's clear that although she undertakes this very unethical conduct, I think in order to get a job back at the law firm with Concannon, her husband had been with the New York office of that law firm.

00;42;51;16 - 00;43;11;19

John "Rusty" Wing

She and her husband have clearly split up, and she had not been working as a lawyer, but she wanted to try to go back, be a lawyer. And I think halfway through what her interaction with Frank Galvin wasn't really through, she really starts to appreciate who he is and what a good person he is and feels bad about what she's doing.

00;43;11;19 - 00;43;28;26

John "Rusty" Wing

And close to the end of the film, after she's taken the check that we watched that scene, then I think she makes a decision, I'm not going to do this any more, and I've got to tell Frank the facts, what I've been doing. She tries to talk to him several times, but he's just so wrapped up he has no time for her.

00;43;28;26 - 00;43;44;21

John "Rusty" Wing

And I think whoever wrote this script, it was good that they don't make up in the end and have a love fest. I thought the way that it ended with his remaining very unhappy and sad and mad at what she had done, was the right way. That was reality.

00;43;44;27 - 00;44;03;20

Jonathan Hafetz

Yeah, I know it is. I mean, David Mamet, you know, it's amazing script. And it ends, as you said, with the, Charlotte Rampling character calling Paul Newman phone just ringing upon them and deciding whether or not. And she doesn't answer in the film, but it's left somewhat open ended. So he made the right move, in your view, to go to trial, knowing what he knew, to try to take his chances.

00;44;03;23 - 00;44;34;14

John "Rusty" Wing

Well, I do, because he thought he would have his rebuttal witness and crash back a little earlier, because we haven't really talked about the judge in the course of the trial, and what the judge did to his expert witness by taking over the direct examination and basically effectively cross-examining the doctor in a way designed to elicit favorable testimony under this hypothetical relating to how long you could live without having your heartbeat.

00;44;34;19 - 00;44;52;28

John "Rusty" Wing

He listen an answer that it was a negligence for nine minutes, and then it's like he just dismisses the witness. I couldn't tell if that's what you were supposed to believe, but it was as if I couldn't continue his examination of his own witness. And the witness was like, pushed out outrageous behavior for a judge.

00;44;53;01 - 00;45;16;21

The Verdict Movie Dialogue

Doctor Thompson, in your review of the hospital records, May 12th, 1976. In your opinion, what happened to Debra? I'm kidding. Cardiac arrest during delivery, her heart stopped. When the heart stops, the brain is deprived of oxygen. You get brain damage. That's why she's in the state. She's in today. Doctor towers testified that he restored the heartbeat in 3 to 4 minutes.

00;45;16;21 - 00;45;40;21

The Verdict Movie Dialogue

Now, in your opinion, is that an accurate estimate? In my opinion, it took much longer. Nine, ten minutes. It too much brain damage. Are you saying that a failure to restore the heartbeat within nine minutes in itself constitutes bad medical practice, Your Honor? Yes. Mr. Galvin, if I may be permitted to question my own witness in my own way, I just want to get to the point.

00;45;40;23 - 00;45;57;17

The Verdict Movie Dialogue

I am getting sick, and I believe I have the right to ask the witness. Direct question. Now, let's not waste these people's time. Answer the question, Mr. Witness, please. With a nine minute lapse in restoring the heartbeat in and of itself indicated in that small context.

00;45;57;17 - 00;45;58;06

John "Rusty" Wing

I would have to.

00;45;58;06 - 00;46;13;10

The Verdict Movie Dialogue

Say no. Then you're saying there's no negatives based on my question, given the limits of your question. That's correct. The doctors were not negligent. Your honor, with all due respect, if you're going to try my case for me, I wish you wouldn't lose it.

00;46;13;13 - 00;46;18;24

Jonathan Hafetz

Have you ever seen a judge take over, hijack an examination like that?

00;46;18;24 - 00;46;48;29

John "Rusty" Wing

Not to the extent of my interpretation of the idea that Frank was essentially cut out from continuing his own examination, and that the judge elicits a favorable response, no negligence on one hypothetical set of facts. And then, as if that's it, the witness can be excused. No more. I've never seen anything like that. But there are judges. First of all, in general, there are judges who they are human beings, and they wind up having views.

00;46;49;02 - 00;47;08;23

John "Rusty" Wing

Which side of a case might be the right side of a case? Or before a jury gets the case, they often have it before the trial even starts. And there are certainly judges who are sufficiently opinionated to the extent that they become sufficiently negative on the one side or the other. The lawyers for one side or the other.

00;47;08;25 - 00;47;28;08

John "Rusty" Wing

And that does, I regret to say, happen. And as you know, throughout a trial, there were many, many objections to evidence. And the judges called on to make many rulings. And you can make a lot of rulings on close questions that help or hurt one side or the other. And if you're the judge, you can get away with it.

00;47;28;11 - 00;47;47;00

John "Rusty" Wing

And that I regret to say that does happen. And I also have a view that there are many judges, not just a few who really are not that familiar with the rules of evidence. So it's tough. But this portrayal of what this judge did to that expert witness that went beyond anything I've ever seen in a courtroom after that.

00;47;47;00 - 00;48;05;10

Jonathan Hafetz

It's followed by this heated argument in chambers, where it's Frank Galvin and Concannon and the judge where Galvin and the judge really get into it. And Galvin accuses the judge of being a bad man, being in the pocket of the church. James Mason Concannon, is, as he should be, not saying anything. Things are going his way, so will just keep quiet and watch the show.

00;48;05;12 - 00;48;22;20

The Verdict Movie Dialogue

I'm an attorney on trial before the bar, representing my client. My client. You open your mouth. You're losing my case for me. Listen to me now. You listen to me. How I want to win this trial with a fair shake for suing the court five days early. I was the star witness, and I can't get a continuance. And I don't care.

00;48;22;23 - 00;48;38;11

The Verdict Movie Dialogue

I'm going up there. I'm going to try it on and let the jury decide. You know, they told me about you. So you're a hard ass to defendants, judge, I don't care, I said, to hell with it. I know that many years ago. And you're going to hear that shit about you being a lawyer, too. I know about you.

00;48;38;14 - 00;48;54;02

The Verdict Movie Dialogue

And you couldn't hack it as a lawyer. You were a bagman for the boys downtown. You still. I know about you. Are you done? You're damn right I'm done. I'm going to ask for a mistrial. I request that you disqualify yourself from sitting on this case. I'm going to take a transcript of the trial to the Judicial Conduct Board.

00;48;54;02 - 00;49;06;22

The Verdict Movie Dialogue

And that's the day you get your ass. You aren't going to get a mistrial. Boy, we've gone back there this afternoon. We're going to try this case to the end. Now, you'll get out of here before I call the bailiff, and I get thrown in jail.

00;49;06;25 - 00;49;09;11

Jonathan Hafetz

Really heated argument. There is another great scene.

00;49;09;14 - 00;49;35;14

John "Rusty" Wing

It is a great scene, and I don't think it ever helps a good lawyer who wants to be effective to go after the judge, notwithstanding that there may be some reason to, at a minimum, express some strong, if not heated passion about the issue where the judge's ruling against you. It's the kind of thing that if you really think about it, you think it through, you're better off.

00;49;35;14 - 00;49;44;08

John "Rusty" Wing

I believe, even if you don't think highly of the judge and you don't think you're getting fair rulings. I mean, to throw rocks at the judge isn't going to make things go better.

00;49;44;14 - 00;49;45;15

The Verdict Movie Dialogue

You catch more flies with.

00;49;45;15 - 00;50;19;22

Jonathan Hafetz

Honey, as we can see what happens after. It doesn't help Galvin. And I think what you said before, too, about the way the rulings about a judge, evidentiary rulings, which judges make many in the course of a trial, but how important they can be, right? Because the pivotal moment in the trial is when the nurse, Caitlin Costello, testifies that she wrote on the bidding form that the patient ate the meal an hour before being admitted, even though this contradicts the record that says there was a nine hour interval and that based on what's already been testified to before the trial, that conceivably, if the doctors knew this, this would have been negligent.

00;50;19;22 - 00;50;35;23

Jonathan Hafetz

In fact, it would have been criminal. So she testifies to that, and then she's cross-examined by Concannon James Mason character, as to how she can prove this. And so here's James Mason's cross-examination. He's recovering from this news. And here's what he says.

00;50;35;26 - 00;50;58;00

The Verdict Movie Dialogue

You sworn today that the patient in one hour for admittance from this group is for the nine hours performance, which is the lie. This world is firm that the patient eight nine hours is not what I wrote. You just told me that you signed it. I signed it, yes, but I didn't write a nine. I wrote a one.

00;50;58;02 - 00;51;20;05

The Verdict Movie Dialogue

And the reason to to remember so clearly after four years, because I kept a copy. I have it right here. Objection. I can't be expected to accept a photocopy when the court already has the original, ruling that presently. Please proceed. What in the world induced you to make a photocopy of an obscure record and hold it for four years?

00;51;20;08 - 00;51;46;01

The Verdict Movie Dialogue

I thought I might need it. And why would you think that? After the operation, when that poor girl, she went into a coma, Doctor Tolar called him. He told me that he'd had five difficult deliveries in a row, and he was tired. And he never looked at the admittance form, and he told me to change the form. He told me to change the one to a nine hours, he said.

00;51;46;04 - 00;51;54;09

The Verdict Movie Dialogue

He said he'd fired me. He said I'd never wanted to get in. Who were these men over? These men? I wanted to be a nurse.

00;51;54;12 - 00;52;04;03

Jonathan Hafetz

The judge, though, then rules that this is inadmissible, that her testimony is inadmissible, and that the form is inadmissible.

00;52;04;05 - 00;52;32;28

The Verdict Movie Dialogue

We object to the copy of the admitting form. And we said McGee. Versus the state of Indiana, United States, 131.2. The admission of a duplicate document in preference to an existing original must presuppose the possibility of alteration, and so must be disallowed under your name. Having given the plaintiff the leeway, we would like your ruling on this issue, not we objected to the admission of a Xerox photocopy.

00;52;33;01 - 00;52;56;07

The Verdict Movie Dialogue

Yes, the document is disallowed. Objection overruled. Section noted. Thank you. The jury will be advised not to consider the testimony of Miss Costello regarding the Xerox form. It is unsubstantiated. We cannot accept a copy of reference to the original of the manuscript. There was a rebuttal. Witness was in incorrect. No, there was no prior notice was given up.

00;52;56;07 - 00;53;25;05

The Verdict Movie Dialogue

Miss Costello's appearance. And as a surprise witness, you may serve only to rebut direct testimony, as her only evidentiary rebuttal is the admitting form which is being disallowed. I request that her entire testimony be disallowed and that the jury be advised that they must totally disregard her entire appearance here. Yes, I'm going to appeal that. Objection overruled. The jury will be advised not to consider the testimony of Miss Costello.

00;53;25;07 - 00;53;38;16

The Verdict Movie Dialogue

Miss Costello was a rebuttal witness. The sole rebuttal was the document which must be disallowed. Our entire testimony must be stricken from the record. You must strike it from your minds. Give it. No, wait.

00;53;38;18 - 00;53;50;17

Jonathan Hafetz

What did you think of that critical ruling? Should that evidence have come in? And I should add that the case that James Mason cites, there is a case by that name, but it has nothing to do with rebuttal witnesses that would pertain to the form.

00;53;50;20 - 00;54;15;13

John "Rusty" Wing

I think the judge knew that, too. But before that happened, one really significant piece of testimony was the cross by Frank Galvin of the Doctor Tower, in which he asked, hypothetically, if she had only eaten one hour before she came in for the procedure and was given that anesthetic. You wrote the book on anesthesiology. Would that have been negligent?

00;54;15;13 - 00;54;35;13

John "Rusty" Wing

And tower, talk about liars, she says. That would have been not just negligence, it would have been criminal grade. No further questions. I mean, gets the admission from the defendant that if he did what people thought he did and what the evidence indicated, he did, he committed a crime. Forget the negligence and then you go to what the cross-examination was.

00;54;35;13 - 00;55;01;23

John "Rusty" Wing

And that was there again, that witness who played Caitlin Casella was, I thought, just remarkable in the expressions on her face throughout that cross-examination. The first thing that Concannon seizes on to object to is, how is it that you, four years later, you can remember what you put on the form? They've got the form in evidence that says nine, and you're saying was kind of so that you put a wonder, how can you say that?

00;55;01;23 - 00;55;20;26

John "Rusty" Wing

I said, well, I kept the copy and she starts to pull a copy out. I've seen that happen in courtrooms where lawyers going after someone and the guy's got something in his pocket and he pulls it out, just blows the lawyer away. And I don't think she even got it out. And I don't think it was in any way even marked in evidence.

00;55;20;26 - 00;55;48;15

John "Rusty" Wing

But he immediate objection. Objection. It's a copy. The his argument on that is not a crazy argument. It's a fair argument. Depending on circumstances, he could be totally right. And I didn't do any research to see whether in this particular circumstance, he would have won the day. There, but it was not an improper or unfair objection to have a copy come when you have, quote, the original, and then you also have to wonder, you look into all these details.

00;55;48;22 - 00;56;19;22

John "Rusty" Wing

I never understood when she described what happened after the surgery, the catastrophe, and the woman being turned into a vegetable and she gets called into the office by Doctor Tower. I'm not sure that the form that she had signed and had the one on it was presumably in the operating room. She didn't have it, and I'm not sure what happened in terms of when the nine got put on, but if she didn't have it, I don't know how she made a copy of I'm sure was probably perfectly legitimate.

00;56;19;22 - 00;56;42;12

John "Rusty" Wing

Maybe when she heard what happened, she yanked it back and made a copy. Who knows, I don't know, that didn't come out, but what the judge did that was wrong was and actually, he didn't really accept the second argument, that all the rest of the testimony which other than the form which theoretically was totally admissible, he didn't accept the argument that we're going to strike at all because it's a surprise witness in rebuttal.

00;56;42;12 - 00;57;02;19

John "Rusty" Wing

What he said was something to the effect that her testimony was all based on, tied to the copy that was being excluded, and therefore that testimony should be excluded. And that was a total bullshit ruling without any question. And that case would have been reversed, I believe, on that ruling alone, without any question.

00;57;02;26 - 00;57;11;23

Jonathan Hafetz

So it might have been a closer call format of the close to call. And even if he had excluded her testimony as a surprise witness, it wasn't on the list. Maybe right, but that's still tying it to the form.

00;57;11;28 - 00;57;14;05

John "Rusty" Wing

That wasn't going to support his ruling. No.

00;57;14;07 - 00;57;30;28

Jonathan Hafetz

I mean, the problem for the defense lawyers is that Caitlin Costello, played by Lindsay Crouse, back married to David Mamet. It's so good. It's such a good performance, and it's so clear the jury that she's telling the truth, like everyone in the courtroom knows she's telling the truth. So it's excluded. And then the judge gives this instruction to the jury in vehement terms.

00;57;30;28 - 00;57;40;27

Jonathan Hafetz

They have to disregard everything they've heard. So if that's true, Paul Newman has no case. So it's time for a summation. And Paul Newman gives this summation.

00;57;40;29 - 00;58;06;16

The Verdict Movie Dialogue

You know, so much of the time were just lost. I mean, there is no justice. The rich, when the poor are powerless, we become tired of hearing people lie. And after a time we become good. We think of ourselves as victims and we become victims. We become weak. We doubt ourselves. We don't our beliefs without our institutions and without the law.

00;58;06;18 - 00;58;34;01

The Verdict Movie Dialogue

But today you are the law. You are the law, not some book of the lawyers, not the marble statue or the trappings of the court. So those are just a symbol of our desire to be just. If we are to have faith in justice, we need only to believe in ourselves and act with justice. I believe there is justice in our hearts.

00;58;34;03 - 00;58;52;08

Jonathan Hafetz

And so he's clearly appealing to the jury's sense of justice and telling them, you are the law. And then the jury goes out and comes back and rules for the plaintiff and then says, is it limited at all in the amount can award? Can it award even more money than was asked for? How did that seem to you?

00;58;52;08 - 00;59;02;07

Jonathan Hafetz

Galvin's summation, which was just, you know, not at all in a discussion of the facts at trial and then the jury's verdict, which just seemed to be based on evidence that they weren't supposed to consider.

00;59;02;10 - 00;59;26;05

John "Rusty" Wing

When I first saw this movie many years ago, this summation I love this summation because it was unlike any summation anyone I knew would ever given, including myself, because there's no reference to any of the evidence during the trial at all. And it is a direct appeal to the jury. It's the essence of jury nullification, the essence. And I love what he said.

00;59;26;07 - 00;59;55;28

John "Rusty" Wing

If we are to have faith in justice, we only have to believe in ourselves and act with justice. That grabbed me as such a great appeal to a jury to do the right thing. And what's interesting, in addition to the incredible, powerful emotional impact that is going to have on individual jurors, no question about it. What's interesting is jury nullification has had a very interesting history in this country.

00;59;56;05 - 01;00;22;08

John "Rusty" Wing

It started in the year 1735, in the trial of Peter Zenger, who was a printer in New York City and New York State, was then just the colony, the colony of New York. And it had a governor who many thought was a very corrupt, dishonest governor. And those people wound up writing articles that appeared in the press that Peter Zingers was printing.

01;00;22;09 - 01;00;46;07

John "Rusty" Wing

He was printing the press, and eventually the governor did not care for all this, rather hostile adverse criticism he was getting. So they got charges filed, and he had the judge particularly appointed to deal with the case, and a prosecutor to deal with the case, who were all basically going to support him and the law. The English law at that time, was that seditious?

01;00;46;07 - 01;01;17;00

John "Rusty" Wing

The charge was seditious libel. And seditious libel was an offense where you publicize something that was critical of someone holding public office. And under the law in England at that time, the fact that what you said might be true was irrelevant, was not relevant as a defense. And Peter Zinger was charged because I guess they didn't have the identity or they couldn't figure out how to charge the people who were fairly significant political figures who were authoring some of these articles.

01;01;17;00 - 01;01;39;11

John "Rusty" Wing

So the paw printer, who just was printing them, he was the defendant, and they thought this would stop. I think there was another publication then in the city of New York that was sort of on the governor's payroll, and they wrote nothing but nice things about the governor. They thought they'd prevail in that way. Then even I think the lawyers that were originally planning to help defend the case, which included, I think, one of the guys who authored some of these articles.

01;01;39;15 - 01;02;06;03

John "Rusty" Wing

For some reason, the government was able to prevent them from representing the defendant, and they also tried to rig the jury, but that was stopped and prevented, and they got at the end of the day, they got a jury the way normally jurors were picked. It wasn't unfairly slanted to support the governor's use. And Zenger wound up with a defense lawyer named Andrew Hamilton from Philadelphia, who at the time was one of the best lawyers trial lawyers in the country.

01;02;06;03 - 01;02;28;22

John "Rusty" Wing

And this was a trial that took place literally in an afternoon. And the case was presented to the jury by the prosecutor and the judge as if the only issue was, was anger responsible for printing the libelous articles. And at the very beginning of the trial, Andrew Hamilton stepped forward and said, we're going to save the prosecution a lot of time here.

01;02;28;22 - 01;03;02;18

John "Rusty" Wing

We're going to acknowledge that Mr. Sanger did, in fact print those articles, and so that then the prosecution and the judge thought, well, this is open and shut. There isn't anything else to consider in Andrew Hamilton. Over the course of several hours in colloquy with both the prosecutor and the judge, wove a web of talking about the essence of what was going on here should not be bound or restricted by the law in England, because in England, seditious libel really was focused on labeling the king.

01;03;02;20 - 01;03;28;22

John "Rusty" Wing

And that's a little different than labeling a governor of an American colony, a plantation. And he had English cases that supported what he was saying, and he wove in all the facts that people could know and understand, and they don't need any evidence to know that what was put forth in these articles was actually the truth. The jury was out, I think something like 10 or 20 minutes not guilty.

01;03;28;22 - 01;04;04;00

John "Rusty" Wing

And it was the birth of freedom of the press in the United States and jury nullification in the United States. And jury nullification lasted for quite a while thereafter, including with support from Supreme Court cases, and was accepted to some extent not totally, but to some extent past the Civil War. And then eventually judges became of the view that there was an impropriety in lawyers trying to promote the idea that jurors were the law, regardless of what the law was, as given to them by the judge.

01;04;04;00 - 01;04;38;21

John "Rusty" Wing

And so there were then a number of cases that were preclude and prevent the efforts to have jury nullification. And in more recent times, there are a few exceptions to that. But when you think about it, the title of this case, the verdict verdict, as you know, means say the truth and the idea of a trial to many people, both aspiring law students and people who are retired after practicing law for 50 years, the idea was you go to trial and the trial was it's supposed to be a search for the truth.

01;04;38;21 - 01;05;07;20

John "Rusty" Wing

And up on New York State Courthouse in Foley Square, there's an inscription the true administration of justice is the firmest pillar of good government. And that's something that comes from a letter George Washington wrote to the first attorney general of the United States. The inscription carved in stone, makes one typo, because what was in Washington's letter was the due administration of justice is the firm's pillar, and they put up the true administration.

01;05;07;24 - 01;05;29;22

John "Rusty" Wing

I like it that it's the true administration, because really, what you would like to have happen, what you think should happen in a good world, in a principled society, is that you're going to get the truth when you go to trial. And Frank Galvin at one point where he's wooing is friend Laura telling her, you know, the trial is not designed to give you justice.

01;05;29;22 - 01;05;54;09

John "Rusty" Wing

It's designed only to give you a chance to get some justice. And that turns out to be true, because there are plenty of cases that happen that we're all familiar with, where innocent people do get convicted, false claims of guilt, like the false claim that was made about Galvin's bribing a juror. False claims are made. They're made frequently by people, often people who were engaged in the criminal conduct.

01;05;54;09 - 01;06;14;07

John "Rusty" Wing

And they're looking to help themselves with a prosecutor and get a better sentence. And you're dealing with that. And jurors are not always capable of ferreting out what the truth might be. And the Innocence Project, the many people they've been able to prove were wrongly convicted are proof of that. But it's a great ideal. The doors should aspire to.

01;06;14;12 - 01;06;31;27

Jonathan Hafetz

It's so interesting in the film The Verdict what does it mean? What is the verdict on? Is the verdict on the system, on what happened? The trial didn't produce, wasn't going to produce the truth unless the jurors sort of voted with their conscience on Paul Newman's appeal, I thought really echoed in Catholic Boston in terms of its having this faith in this process.

01;06;31;27 - 01;06;55;10

Jonathan Hafetz

I just want to ask you about another classic courtroom drama that Sidney Lumet directed for The Angry Man from 1957, which I covered another episode with Elkin Abramowitz. Do you see any connections between the two films in terms of their view of the jury system? I mean, that film centered specifically on jury deliberation, the jury. But here the jury kind of looms large in the background in the end.

01;06;55;10 - 01;06;59;23

Jonathan Hafetz

So I just wonder if you had any thoughts on these two classic American films by the same director?

01;06;59;28 - 01;07;31;08

John "Rusty" Wing

Well, that was one of the great films that explored, I thought pretty accurately what often happens in juries. I love juries, and I think most jurors try very hard to do the right thing to figure it out and are conscientious. In fact, I'll share with you another story. I tried a case a while back in New York State Supreme fraud case, client of the top executive, like an executive vice president of one of the biggest construction companies in the city.

01;07;31;11 - 01;07;53;29

John "Rusty" Wing

And there were two people who were executive vice presidents, and there was a real fraud committed. And one of those two executive vice presidents was responsible as the architect of the fraud. But this guy I represented, although he had that position, he was in the dark. He was not part of it. He didn't know about it. We picked the jury and it's going to be a long trial.

01;07;53;29 - 01;08;16;29

John "Rusty" Wing

I can't remember, but it was probably at least three months, maybe a little longer. The judge was Roger Hayes, very good judge, a state Supreme Court judge who was really fair, independent, not someone tied to supporting the prosecutor. And we're picking the jury is a lengthy process. And people knowing the length of trial there were a number of people who wound up getting selected for the jury, and they got selected and they were the jury.

01;08;17;00 - 01;08;32;18

John "Rusty" Wing

They were so unhappy and mad at one woman was almost going to have a heart attack because she couldn't stand the idea of having to sit on the jury for a while. But that was kind of where we started off with the jury. And of course, you never know what you would really like to know about all the jurors.

01;08;32;18 - 01;08;54;14

John "Rusty" Wing

And in the state system, you get a chance of knowing more than in a federal system, federal system, you know, almost nothing. We go through the trial. Trial ends after three months, ends in January, and it ends on a Friday. And it ends with this guy had been indicted on a number of very serious fraud, grand larceny, different money laundering counts, and he gets acquitted on everything.

01;08;54;17 - 01;09;06;00

John "Rusty" Wing

And the jury comes in sometime in the afternoon. They exit the courtroom. We spend some time, we have to spend with the judge 20, 30, 40 minutes, and then we're ready to go. And it's.

01;09;06;00 - 01;09;06;22

The Verdict Movie Dialogue

Cold.

01;09;06;22 - 01;09;29;19

John "Rusty" Wing

Outside and rainy outside. And we walk out the courthouse door and there are almost all the jurors, and they wanted to wait and tell us how glad they were that they got to serve, that they were able to see what happens, and that they were able to feel that they had the opportunity to do justice and a place where justice should be done.

01;09;29;22 - 01;09;51;11

John "Rusty" Wing

I've never had that happen before or since, but that that's what I believe. I think people are very, very conscientious about trying to do the right thing. On the other hand, I've also had cases where despite a close case, I won't say it was for sure a winner, a close case, but a lengthy case where the jurors are dying to get out and jury goes out to deliberate.

01;09;51;11 - 01;10;08;15

John "Rusty" Wing

They send in notes. But then within like an hour, hour and a half, including lunch, they come in with a verdict and their notes aren't answered yet, and they come in with the verdict guilty, and they go home. And then a week later, one of the jurors I run into on the subway and she said, I'm so sorry, Mr. Wing.

01;10;08;22 - 01;10;25;06

John "Rusty" Wing

And I actually it was a dumb jury. It was a very dumb jury because I had co-defendants. They wanted a dumb jury. I never want a dumb jury. I want a smart jury. And she. I'm so sorry, I'm assuming. But everybody was dying to get out of there. We'd been there too long. We just wanted to be done with it.

01;10;25;08 - 01;10;30;29

John "Rusty" Wing

And that happens. Who knows what's inside the people sitting there? The 12 people sitting there.

01;10;31;01 - 01;10;53;07

Jonathan Hafetz

That's even the 12 angry men. I mean, that's what could have happened. But the actual Jack warden character is the co-counsel in the verdict. But he's the juror who just wants to get out and go to the baseball game. And 12 angry Men. I mean, you know, if Henry Fiber hadn't stopped him. So, I mean, I think Sidney Lumet has, like, this faith in the juries to do the right thing, both in 12 Angry Men and then here ultimately at the end, where they see the truth of what's actually happening based on the testimony that was given.

01;10;53;07 - 01;11;02;26

Jonathan Hafetz

And they effectively nullify engage in act of nullification and award damages to the plaintiff, despite the fact that the actual evidence has been excluded as a technical matter.

01;11;03;03 - 01;11;20;22

John "Rusty" Wing

And 12 angry men that really turned on one juror deciding to challenge what was going on. And in a jury, usually it's just a few people. It's not all 12, it's just a few people who are controlling and influencing what the other jurors are going to say and think.

01;11;20;25 - 01;11;39;05

Jonathan Hafetz

Rusty, I want to thank you very much for coming on the podcast. It's been great to talk about the verdict. It's a fantastic film about law and justice, and for you to come on and share your super close reading of the film and your deep knowledge of the trial process. So thanks so much.

01;11;39;08 - 01;11;46;03

John "Rusty" Wing

It was my pleasure. I love this movie, and I'm so glad that you're choosing it for one of your podcasts. It's a great movie.