Sunday, January 6, 2008

Forcing Us to Think (Again)

Every so often we’re going to come back to a theme we’ve talked about before. Some ideas are worth it.

Now we’re on David E. Kelley fairness watch. Here is our first. Now it’s time for the second.

David E. Kelley Fairness Watch

David E. Kelley is the only writer today who is able to write one side of an argument (say, in a court drama like Boston Legal) in such a convincing way that the viewers agree with that side, know they’re going to win, and certain that there are no strong counter-arguments. Then Kelley lets the other side speak, and when that lawyer’s done, the viewers are equally certain that his/her side’s case is completely right.

This forces the viewers to think. With equally-strong and powerful arguments on both sides, the outcome is uncertain. And our brain works more than we think it does when watching TV, imagining what could happen, what would happen, and why.

Here are two examples from a recent Boston Legal episode.


Clarence, who works for the firm and sometimes dresses as a woman was caught on tape, dressed as a woman, screaming at some guy and going absolutely nuts. That footage is then put on YouTube, to Clarence’s chagrin. Clarence sues YouTube for defamation.

And so, they go to court. There the judge appears with a helmet on his head, to everyone’s amazement. A red helmet with a white stripe.

“Before we begin,” the judge says, “some of you may or may not have noticed that I’m wearing protective head gear. I sustained a small wound while gardening. My doctor advised to take conservative precautions until the stitches are removed. Please pay no attention.” With that out of the way, the case begins.

The first thing YouTube’s lawyer does is make sure whether the footage fairly and accurately depict what happened? And it does. There is no doubt about that. Clarence takes the stand, and, as a lawyer, is forced to admit that the law expressly protects internet sites “from online defamation liability arising from material posting on their sites by individuals.”

The issue is clear. The law is clear. Clarence admits the footage was not doctored. What you see is what really happened. And the law protects sites like YouTube. Clear-cut and simple, isn’t it?

Now it’s Clarence’s lawyer’s turn to speak. “Your honor, this was an extremely embarrassing event, aired world-wide on a website, absent the context that occasioned it.”

The helmeted judge does not understand. “The footage depicts what happened. So where’s the damage?’

“Your honor, think of it. We’ve all had a meltdown or two. A mortifying episode or two. Typically, we’re allowed to live those moments down. But now thanks to the internet, we can’t. Suppose,” he produces a handheld video camera, and points it at the judge, “I taped you as ‘Justice Bauble Head’.”

“Put that thing down!” the Judge is beside himself.

“How would you like to be defined—” he continues to tape.

“Put it down this instant!”

He puts the camera down and turns it off. He then takes a breath and starts calmly, “My point is: Life’s little embarrassing moments are now having far-reaching and more devastating consequences. If the day has come that we are going to be publicly and globally shamed by our foolish missteps, then the laws of defamation should keep pace. Certainly when these tort laws were drafted, the legislators never contemplated YouTube.”

And he sits down.

Do you know who’s going to win now? Even if you think you know who’s right, Kelley phrased the positions in such a way as to make them equal: Will the judge go with the law and decide against Clarence, or will the judge decide to go against the law because the law is wrong? You don’t know. But you’ll think about it.

The Racist Cop

In the same episode, the firm has another case. A policeman shot an unarmed black man, who fit the description of a suspect. The policeman says he was reaching for what appeared to be a weapon. But in truth, he reached for something else. In addition, the policeman has a history of erroneously shooting black men, and to top it off, when the D.A. tests the policeman under an MRI, it turns out that his brain responds with more violent emotions when he sees a black than when he sees a white man.

With the case drawing to a close, the prosecution speaks first: “Policemen do tough work, dangerous work. The cities across this country seem to grow more and more dangerous. That is a reality. But here’s another reality. African-Americans have been targeted disproportionately in both arrests and excessive force. Blacks comprise 13% percent of our population, yet 44% of our prison population. And how many times do you have to turn on the news and see that yet another innocent, unarmed black man has been shot dead by the police before we say ‘enough’? Eight times he shot him! Even his partner, who is also his friend, called the shooting reckless. Was it an honest mistake? Yeah, sure, like the last time he mistakenly shot an unarmed black man. How many mistakes can we allow him? Do we keep tolerating these executions or not?”

And the prosecution sits down. So, does the defense even have a case? And even if it does have a case, it can’t be equally as good, can it? All the facts are in.

The defense speaks: “The victim matched the description of the armed suspect. He raised his hand with something metallic in it. It looked like a gun. My client reacted. The District Attorney did not offer even one witness to dispute that. Instead, he gave you a brain scan. The police can now take our blood, our hair, our DNA. They can make us give handwriting samples, voice patterns. They can check our computers to see what interests us, our GPS’s to see where we’ve been. And today they’re introducing scans to show our feelings. Where does this stop? And let’s assume these MRI’s really can show that my client feared black people more than whites. So what? The law has to distinguish between thought and deed. The Supreme Court is doing away with warrants. Our administration eavesdrops on all of us. Are we really going to allow this government to unleash the thought police? Are we that scared? We must be. Because today the prosecution is trying to convict a man of murder with nothing more than an MRI. God help us.”

So... Who do you think won this one? What would you vote if you were sitting in the jury?

One thing is certain: Your brain thought about it whether you wanted it to or not.

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