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.

YouTube

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.

When People Think For Themselves

We’ve talked about how a large part of David E. Kelly’s humor forces the viewers to think, whether they want to or not. Now we’re going to talk about how his drama forces the viewers to think, whether they want to or not.

The Courtroom

One of the things that sets Kelley apart as a writer of TV court dramas is his ability to present both sides equally, without prejudice. This is how he usually does it in like L.A. Law, Picket Fences, Boston Legal, The Practice, and even, occasionally, Chicago Hope: When it’s time for the jury to decide, one side stands up, and gives his case. The case is so convincing and clear and simple that we, the viewers, think that that’s it, it’s a done deal, he’s going to win, the jury’s going to go this way, and there is nothing the other side can say that can save the day.

Then the lawyer for the other side stands up and presents his case. And by the time he’s done, the viewer thinks: That’s it, he’s right, it’s a done deal, he’s going to win, the jury’s going to vote his way.

Very few writers can pull that off. And, of course, the viewers remember that they said they same thing a couple of minutes ago about the other side. This forces them to think for themselves, to weigh both sides, to make up their own minds which way the jury will go and which way they would go. When both sides are given the best representation, it’s up to us to do the thinking. Usually, writers chew the conclusion for us and give us conclusions they hope we'll share. Less thinking is involved.

The ability to think for yourself to Kelley, perhaps, is more important than the fact that you reach the conclusion he agrees with.

Kelley doesn’t always do this, but more often than not, he does. Here are two examples from the third episode of this season’s Boston Legal:

Cockfighting

The firm’s client, Miguel Obisbo, has been charged with cockfighting, and he admits to it. The time has come to put it to the jury.

The prosecution gets up and says: “It’s not just that it’s against the law. It’s indecent, barbaric, inhumane. Two chickens – roosters, I should say – are thrown in a pit and forced to do battle until one loses consciousness due to blood loss, at which point the other pecks its head off. It’s sick. And this man openly, notoriously, broke the law to commit a sick, sick crime, one he admits committing. Just having a nun translate for you,” he refers to one of the defense lawyers’ tricks, “doesn’t put you on the side of the angels.”

And with that, he sits down.

Now it’s the defense’s turn: “Ever realize chickens are smarter than dogs? Much, much smarter than horses. And we call them ‘fowl’. How sad that the chicken by far is the most abused animal on the planet, raised in crates less than a square foot, the ends of their beaks snapped off after hatching, pumped up with antibiotics to keep them alive in conditions that would otherwise kill them, genetically altered so that they grow twice as fast, sent off to the slaughterhouse after only 6 weeks of living – typically in open crates where millions of them either freeze to death or get baked alive. The ones who do arrive undead are scalded to defeather them. Then they’re hung upside down and electrocuted just enough so that they don’t flap around when they’re getting their throats slit. It’s not good to be a chicken.

“Now, the cockfighters, they get real food. They get real room to move. They’re often loved as pets. They get at least two good years before they’re even asked to do combat. And if he’s a really good fighter, he gets to retire, to stud service, where he can live the life of... Denny Crane,” he points to Denny. Then he returns to the jury, “The simple truth is that if the chickens in this country hope to be afforded a modicum of dignity, he has to fight. Studies show they might actually enjoy it.

“Now, I suppose you could find my client guilty, because technically he broke the law, which screams out with hypocrisy. Or you could say, ‘Wait a second; Miguel Obisbo offers chickens a better life.’ Miguel Obisbo now trusts you to be... humane. Not just for his sake, but for the chickens’.”

So... Who do you think won?

Abstinence Only

Notice, by the way, that in the last example and the next, Kelley never talks down to us. The sentences and the arguments are intelligent and thoughtful and... long. The reason we follow them, the reason they’re not boring, as conventional TV wisdom would have us believe, is that each statement advances our heroes’ success or causes one step closer to their plight. So as long as he sticks to the merits of the case and as long as the points are convincing, he keeps our attention.

Moving on: 15-year-old Abby Holt has had unprotected sex and gotten the HIV virus. She is now suing her school, for having taught ‘abstinence only’ rather than teaching her to use condoms.

The school’s lawyer stands up to give his closing argument:

“Your honor, I think we all agree that fifteen is too young to be having sex. Is there anyone here who takes issue with that? Sometimes, when the right answer is ‘no’, you say ‘no’. You don’t start tinkering with morality to coincide with logistics. Kids need to hear ‘no’, not ‘here’s how, just in case’, but ‘no’.

“Abstinence was the right answer here. If she hadn’t had sex, she wouldn’t be HIV positive. And even if you are so determined to opt for pragmatism, abstinence is still the right answer. Since the implementation of this policy, the teen pregnancy rate has gone down 30%. More and more kids are choosing not to have sex, and that’s good. Whether they get sick or pregnant or not.

“And if parents disagree, by the way, they can choose to teach their kids about condoms and birth-control pills and diaphragms. But once the schools start doing so... Come on, you’re explicitly telling the kids it’s expected of them to be sexually active. And many start doing so because they feel all their friends are. Sure, you can pass out condoms. But it is simply more responsible, more moral, and, yes, more safe to practice abstinence. That’s what we should be telling them. And this school is.”

The school is not responsible for the girl getting HIV, is it?

Alan Shore gets up to give his closing:

“This case isn’t about teenage pregnancy. She didn’t get pregnant, she got HIV. I can see why you’d want to make it about teenage pregnancy, since... Well, actually, I can’t. The United States has the worst teenage pregnancy rate of any industrialized nation. And contrary to what Mr. Jovanka would like us to believe, there’s no evidence whatsoever that suggests using condoms or teaching students about condoms makes them any more inclined to have sex. None. They’re already inclined to have sex, since early puberty. They’re simply going to do it. We all do it. Birds do it, bees do it, educated fleas do it. One day, your honor, even you...” At which point the judge angrily uses his gavel.

Shore recovers, “Yes.” Then he continues: “The fact is, this case has nothing to do with the efficacy of abstinence-only programs. This case is about religion, politics, and federal funding. Our present administration, in blind service to the religious right, has transcended the separation of church and state, and consistently implemented a faith-based political and moral mandate. And now that same policy has been passed on to our educational system. If schools teach ‘abstinence only’, they get federal funding. If they teach any other type of sex education, they don’t. And as a result, the students in these ‘abstinence only’ programs aren’t being taught the truth about that magnificent technological marvel, the condom.

“It’s not a dirty word, your honor: condoms. They first came on the scene some 3,000 years ago in Egypt. For centuries they went merrily along, in modified forms, warding off syphilis, gonorrhea, preventing unplanned pregnancies, until science and medicine eventually caught on, and the pill became a much more effective, less intrusive contraceptive. Penicillin and other antibiotics were miracle cures for gonorrhea and syphilis. The poor, humble condom languished.

“And then came AIDS. This terrifying new disease that panicked the world. For many years it has been fatal, gruesomely so in every case. There was no vaccine, no cure, no treatment. But there were condoms, and they worked. They were safe, time-tested, easy to use, and they protected both partners. The condom is arguably the single, most important invention of the past 2,000 years. In fact, it has been said, without exaggeration, that the health of the world depends on them.

“Now, one would think that the obvious choice would be for schools to tell their students as much. But Abby’s school, indeed all schools that have chosen ‘abstinence only’ have chosen to lie. They teach that condoms are ineffective at preventing pregnancies, which is a lie; they teach that condoms are ineffective at preventing diseases, which is a lie; some of the literature actually compares using a condom to playing Russian roulette, which is frightening, despicable, unforgivable lie.”

“Abby Holt has HIV which, in all likelihood, will develop into AIDS. We’ve sort of forgotten about AIDS in this country. Treatments have improved dramatically. Drugs are keeping people alive for many years after they’ve become infected. But the grim butcher’s bill for this pandemic still keeps growing and growing. Sixty-five million people worldwide have become infected. One time, unprotected sex can kill you. A condom can save you. It is inconceivable that every child in the world isn’t taught that. We should be in criminal court this very moment trying this obscenely duplicitous school for conspiracy to commit murder!

“But frankly, I have no stomach for that. I think of the horror that has been inflicted on this 15-year-old girl, and I’m just so profoundly sad. I can point out the evils of this corrupt system, I can tell you how effective condoms are, the lives they save, on and on and on and on, but words seem to be these hollow, useless things rattling around in this courtroom, because ultimately the lies this school told Abby Holt may... will probably kill her. They have certainly altered her life forever. And in the face of that, all I can think of is... Why?”

And, with that, he sits down.

So... who do you think won?

Planting an Idea

In the last example, Kelley did one more thing. He used the argument to create an idea in our heads that probably wasn’t there before: that 'abstinence only' is akin to murder. It doesn’t really matter who wins, now, because there’s an idea in our head now that wasn’t there before. And it’s an idea we probably won’t easily forget.

And that’s how writers try to change the world.

Why Listening to Denny Crane Makes Us Smarter

People are inherently biased and there’s nothing you can do about that. But if your name is David E. Kelley, writer/producer of L.A. Law, Picket Fences, Chicago Hope, Ally McBeal, Boston Public, The Practice, and Boston Legal (not to mention a few TV movies and shows that didn’t last as long as the rest), you know how biased people are and you use it to get your point across.

We have to look no further than Denny Crane’s character in Boston Legal. At first sight, he seems ridiculous, out of touch, and senile. The trick is to create a stereotype almost on sight, so that the audience immediately has an opinion on the character. Kelley then reinforces the stereotype, getting a few jokes in, only to reach a certain point in which the audience realizes it's looking at a human being with feelings, emotions, pain, and depths you hadn’t seen yet. Denny Crane, during the first season of Boston Legal, was not only a ridiculous parody of a person. He was a tragic has-been that knew his once-grand stature and abilities were collapsing and that there was nothing he could do to stop it. He was being ridiculous to hide his fears. In the first season, Kelley turned Crane into a three-dimensional human being.

Almost every person in a Kelley series begins as a stereotype, and ends up, if he or she is given enough screen time, as a surprisingly three-dimensional person.

Douglas Wambaugh’s first image on the screen, in Picket Fences, was of a very Jewish-looking shyster (played by Fyvush Finkel). He cracked jokes and was the epitome stereotype of the Jewish lawyer. And he fit that bill perfectly. “Reasonable doubt for a reasonable fee” was his motto, and he would represent anyone for a fee. But the truth was that he would also represent people for no fee. When Frank the Potato Man (yet another stereotype of Frank, Rome, Winsconsin’s homeless man) was about to be lynched by the people of Rome, Wambaugh was the only one who fought for him. He did it for free, he stood up against the entire town, and he never gave up. Because Wambaugh, it turned out, had a big heart and a deep-seated sense of justice.

We saw that heart best when Wambaugh was banned from his synagogue. Wambaugh ‘sued’ the synagogue and got a hearing at a ‘Beit Din’, which is a sort of Jewish court that settles religious issues. He made his case, and the other side made its case. But when Wambaugh saw how many people from the synagogue signed a petition to have him banned, we saw Wambaugh’s world collapse. And he was never more human.

The town of Rome, Wisconsin was full of stereotypes and erroneous first impressions. From the ridiculous Frog Man (who dressed like a frog and sang songs), to Carter Pike (the nervous coroner who sounded like a chipmunk in court and about whom there were always rumors he touched the bodies inappropriately), to Ginny Weedon (who was very short and thought she got intuitions from the other side), and a bagful of others. Ally McBeal’s world was chock-full with just as many stereotypes, which were actually more stereotypical, because Ally McBeal was more of a comedy than Picket Fences. Remember the Biscuit with all his quirks? Richard Fish? Lane? Practically every second client and every second character filled some sort of stereotype. But they all had a justification for the way they were, and when they were outcast, they took it badly.

Kelley uses the fact that we are inherently biased to prove to us again and again not that the bias is wrong and not that everyone is the same, but that there is a person in everyone.

But the truth is that Kelley’s humor does even more than that. Kelley’s humor forces the audience to think. I’ll repeat that: Kelley’s humor forces people to think.

It does that in two ways.

First of all, most jokes are put in such a way that forces the audience to immediately develop a contrary opinion. Think back to most of Richard Fish’s speeches. There wasn’t one sentence there that was right, but with every sentence Kelly put in his mouth, he forced you to form an opinion of what is right. That process wasn’t even a conscious effort on your part, because you didn’t take time to think. Fish gave you a line, and you laughed because a contrary thought had immediately appeared in your brain without effort. In fact, think back to most of Denny Crane’s monologues, or even to most of Alan Shore’s personal statements in the office.

Kelley uses his humor to force you to think. It doesn’t matter what you think, so much as that you think for yourself and form an opinion that belongs solely to you.

Here’s the other way he does it. About half his jokes force you to have more than one point of view at a single time.

Here are a few examples:

When Mayor Pugen spontaneously combusts (and let’s not get started on that one), Wambaugh, who was also his political opponent, gets up to speak: “I’ve known Bill Pugen for 18 years. I’ve never liked him. When he burst into flame, part of me wanted to bring marshmallows.” You immediately put yourself in Wambaugh’s mind, thinking about why he said it. But you are also thinking about those gathered around, and what they must be thinking. Kelley forces you to be in more than one head at a time.

When Zach, the sheriff’s little kid, states innocently: “It’s politically correct to hate Christians,” you immediately think about what he must have heard and what kids are exposed to these days to make him understand the world and political correctness in this way. You see the kid’s perspective (it’s what he heard and what he knows), while retaining your own.

Once, in court, Wambaugh faces off with the FBI. As the proceedings begin, the FBI lawyer says, “Your honor, this is blatant interference, which is jeopardizing the investigation.”

Which is Wambaugh’s cue to rise, “Your honor! Thirty-two hands have been hacked off during their investigation. A little interference would be in order!” The audience in the court laughs.

“That is not funny, Mr. Wambaugh,” the judge chides him.

“Of course not, your honor,” says Wambaugh, and adds belligerently: “And I ask you to sanction everyone back there who laughed!”

In this way, Wambaugh took a situation that’s completely black-and-white and turned the tables on it, making us look at it with the opposite perspective.

And here is Kelley’s smartest joke, in my opinion. Not the best, simply the smartest. Jimmy Brock, sheriff of small-town Rome, Winsconsin, finds the body of a dead masseur. Jimmy discovers a little black book which contains a list of all the man’s clients. The book contains a few squiggles next to many names, representing a special ‘thing’ he used to perform to his favorite clients, the nature of which was unclear but receives many, many euphemisms during the episode. But, generally, it was called the Squiggly.

Now here’s the thing: Jill, Jimmy’s wife, was on the list, although there was no squiggle next to her name. Jimmy gets intensely jealous and demands to know what happened and why he didn’t know about it. Jill insists that there was nothing sexual about the massage, and that she was there simply for her sciatic nerve.

Over a tense family dinner, the Brocks discover that one of the Brocks written in the book was not Jill, but Kimberly, Jimmy’s teenage daughter, also seated at the table. They stare at her in shock. “What?” She says innocently. “It was just a massage.” “Yeah, right,” says Jill.

And there you go.

In one instant, with two words, Jill reverses everything she had claimed until then (although, of course, the ambiguity remains). The instant it happens, we immediately understand why she did it, why it’s bad, what the implications are if she’s lying, what the implications are if she’s not, Jimmy’s points of view as both father and husband, and Jill’s points of view as both mother and wife. All in one split-second.

The ability to see more than one point of view at the same time is part of what makes people intelligent. We’re usually stupid – or at least we act stupidly – when we can’t see beyond our own nose. Intelligence is the ability to react to changing circumstances. We are usually resistant and bull-headed when we’re zeroed in on our own point of view and the rest of the world can kiss our asses.

Of course, this has farther-reaching consequences than feuds with the neighbor, the spouse, the siblings, etc. Almost every war that is not based entirely on self-defense, especially long-lasting wars, depend on the people not seeing the others’ point of view as legitimate and/or that the other side is just as human and grieves just as badly.

I’m not saying listening to Richard Fish or Denny Crane makes us pacifists. I’m saying listening to them makes us marginally smarter for short periods of time.