# 043
ALL LAW’S A STAGE:
ANALYZING THE IMPACTS OF SYNDI-COURT NARRATIVE ON VIEWERS
Despite the prevalence of stories of law on television, legal scholars have been
slow to acknowledge pop-culture as worthy of academic study.1 Yet, as society has
shifted to visual literacy2 and cinematic representations of law have proliferated,3 the
1
Richard K. Sherwin, Symposium: Law/Media/Culture, Legal Meaning in the Age
of Images: Foreword, 43 N.Y.L. SCH. REV. 653, 655 (2001) (Although law has not been and
cannot be isolated from pop culture, “the interpenetration of law, culture, and mass
media has not been adequately studied”); cf. Paul Gewirtz, Victims and Voyeurs: Two
Narrative Problems At the Criminal Trial, in LAW’S STORIES 135, 136-37 (Peter Brooks & Paul
Gewirtz eds. 1996) (neglect of legal scholars about how law’s narratives are
constructed and influence audiences).
2
Richard K. Sherwin, Symposium: Law and Popular Culture: Nomos and Cinema
[Nomos], 48 U.C.L.A. L. REV. 1519, 1521 (2001); Richard Strickland, Symposium on Film and
the Law: The Cinematic Lawyer, 22 OKLA. CITY U. L. REV. 13, 14 (1997) (visual culture).
The work in law and literature movement helped usher in the study of cinematic
representations of law. Paul Gewirtz, Narrative and Rhetoric in the Law, 3 in LAW’S
STORIES, supra note 1, at 2-3; Strickland, supra note 2, at 13-16.
3
TIMOTHY O. LENZ, CHANGING IMAGES OF LAW IN FILM AND TELEVISION CRIME STORIES 9-10
(2003) (law in literature and law in film movements to lesser extent acknowledge the
importance of visual mass media).
study of law’s representation in pop culture has obtained cachet.4
Indeed, legal
scholars have finally begun to understand what media scholars long have known: that
television imagery can influence the assumptions, attitudes, and behaviors of the
public.5
Nonetheless, although the study of law’s interpenetration of popular culture has
emerged as a valid area of inquiry, this field is “only beginning to generate the kind of
scholarly work needed to construct an interdisciplinary research tradition.”6
We
understand little about how viewers use specific story types to make sense of the world7
or any causal link between media representations of law and the public’s attitudes and
behaviors.8
Consequently, this paper explores the relationship between pop culture’s stories
of law and public opinions about law, legal claiming, and catharsis. Specifically, it
4
Norman Rosenberg, Symposium, Looking for law in all the old traces, 48 U.C.L.A.
L. REV. 1443, 1444 (2001); Steve Greenfield, Hero or Villain? Cinematic Lawyers and the
Delivery of Justice, 28 J. L. & SOCIETY 25 (2001); Gayle Mertez, Law and Pop Culture:
Teaching and Learning About Law Using Images From Popular Culture, 64 SOCIAL
EDUCATION 206 (2000).
5
JONATHAN BIGNELL, AN INTRODUCTION TO TELEVISION STUDIES 23 (2004); LENZ, supra note 3,
at 12-13 (importance of visual mass media in impacting public attitudes and behaviors).
6
Rosenberg, supra note 4, at 1444.
7
JAMES SHANAHAN & MICHAEL MORGAN, TELEVISION AND ITS VIEWERS, CULTIVATION THEORY
AND RESEARCH
8
194 (1999).
Cf. Greenfield, supra note 4, at 26 (addressing outstanding issue in study of
cinematic portrayals of law and lawyers).
examines the narratives of syndi-court – syndicated television courtrooms such as Judge
Judy and The People’s Court – as lexi-cultural texts. In doing so, this paper goes beyond
theoretical explication of narrative in pop culture law to establishing an empirical base:
It reports a study of 546 prospective jurors and jury eligible adults regarding syndi-court
viewing, opinions about legal claiming and process. The data collected supports a link
between syndi-court’s text and: (1) beliefs about and decision-making regarding the
law; (2) norms favoring litigation; (3) its function as a cathartic venue. Hence, viewers
join the on-screen litigants in obtaining justice or experiencing catharsis.
Pop Culture
Although debate about the definition of pop culture could fill volumes,9 this
paper employs the most typical definition of pop culture. Hence, pop culture is that
which is commercially produced for the consumption of ordinary people,10 as
distinguished from high culture, the weightier or aesthetically profound works of the
9
MICHAEL ASIMOV & SHANNON MADER, LAW AND POPULAR CULTURE 3-4 (2004); JOHN
STOREY, CULTURAL THEORY AND POPULAR CULTURE 1-2, 6 (2001); DENNIS MCQUAIL, MASS
COMMUNICATION THEORY 1-6 (1994).
The purpose of this article is not to tease out a definition of pop culture or to
enter that debate. For an exposition of the myriad definitions of pop culture and their
semantic impact, see STOREY, supra note 9, at 1-10.
10
BIGNELL, supra note 5, at 16; STOREY, supra note 9, at 6-9; ASIMOV & MADER, supra
note 9, at 4; MCQUAIL, supra note 9, at 39-41 (mass culture).
intellectual elite.11 In other words, whereas art is created for the sake of art, pop culture
is produced for the sake of entertainment.
Pop culture – which includes television, movies, and popular music – pervades
modern society:12 It is something to which we are all exposed and by which we are all
influenced.13
Pop culture includes the stories that “we live in and live out”14 thus
supplying the materials from which we construct our realities. Importantly, pop culture
not only reflects what its producers think that people do and believe but also impacts
what its consumers do and believe.15
A subset of pop culture is legal pop culture. 16 Whereas legal culture comprises
the public’s attitudes and expectation regarding the law,17 popular legal culture
encompasses the commercially produced and disseminated stories of law as well as
lay understandings of law. It refers to the images of law appearing in the pop cultural
11
STOREY, supra note 9, at 39-41; BIGNELL, supra note 5, at 19; ASIMOV & MADER, supra
note 9, at 4.
12
ASIMOV & MADER, supra note 9, at 3-5; SHANAHAN & MORGAN, supra note 7, at 196.
13
Richard K. Sherwin, Symposium: Introduction: Picturing Justice: Images of Law
and Lawyers in the Visual Media [Introduction], 30 U.S.F.L. REV. 891, 898 (1996); MCQUAIL,
supra note 9, at 103-04 (media’s production of and power of pop culture).
14
Sherwin, Introduction, supra note 13, at 898-99.
15
ASIMOV & MADER, supra note 9, at 6-7.
16
Popular legal culture raises issues about the relationship between law and justice.
ASIMOV & MADER, supra note 9, at 25.
17
Lawrence M. Friedman, American Legal Culture: The Last 25 Years, 35 ST. LOUIS L.
J. 529 (1991).
texts such as television shows, movies, and songs, along with the attitudes held by lay
people toward law, courts, and justice.18
Pop culture has much to tell us about law and justice in America society.19 Legal
depictions in pop culture disseminate beliefs about the uses of litigation, invite viewers
to experience vicariously the practice of law, and to judge the actions of litigants and
the bench.
As these stories take root in our psyches, they help construct our
perceptions of law and American justice.20
Accordingly, legal pop culture can
influence respect for, knowledge of, and propensity to turn to the law for the resolution
of disputes.21
18
LENZ, supra note 3, at 4.
Popular legal culture can then be contrasted
with traditional or high legal
culture, where individuals learn about the law from appellate opinions and law journal
articles.
19
Sherwin, Nomos, supra note 2, at 1521.
20
Sherwin, Introduction, supra note 13, 898-99. Sherwin has explained that “Law is
in people’s heads in the form of scripted expectations, popular story forms, and
recurrent images.” Sherwin, Nomos, supra note 2, at 1539. Therefore, the law that the
average person knows and references in their actions is an amalgam of their
understandings of law regardless of their origin.
21
ASIMOV & MADER, supra note 9, at xxii.
Indeed, such pop culturally-induced understandings of law can ultimately drive
legal policy issues such as tort reform and jury reform. For instance, any American who
has picked up a newspaper in the last decade has heard that punitive damages and
litigation against business has run amok. THOMAS F. BURKE, LAWYERS, LAWSUITS, AND LEGAL
RIGHTS 2 (2002) (stories of juries run amok); CASS R. SUNSTEIN, ET AL., PUNITIVE DAMAGES, HOW
JURIES DECIDE 6 (2002) (most Americans have herd something from the media about
punitive damages in recent years); Nancy S. Marder, Symposium: Introduction the Jury
at a Crossroad: The American Experience, 78 CHI.-KENT L. REV. 909, 917 (2003) (popular
portrayal of jury is as institution run amok). Although empirical evidence demonstrates
these claims lack basis, see generally VALERIE P. HANS, BUSINESS ON TRIAL 9, 56-58 (2000);
THOMAS KOENIG & MICHAEL RUSTAD, IN DEFENSE OF TORT LAW 3-5, 6 (2001); Michael J. Saks, Do
We Really Know Anything About The Behavior Of The Tort Litigation System – And Why
Not? 140 U. PENN. L. REV. 1147, 1147-1292 (1998); Marc S. Galanter, Reading The
Landscape Of Disputes: What We Know And Don’t Know (And Think We Know) About
Our Allegedly Contentious And Litigious Society, 31 UCLA L. REV. 4 (1983), these myths
underpin the tort reform movement. HANS, supra note 21, at 15 (tort reforms focus on
civil jury); Theodore Eisenberg, et al., Juries, Judges, and Punitive Damages: An
Empirical Study, 87 CORNELL L. REV. 743, 744 (2002) (concerns about juries dominate
punitive damages reform debates) and at 746 (punitive damages reform is main
battleground in tort reform struggle); see also Douglas G. Harkin, BMW of North America
v. Gore: A Trial Judge’s Guide To Jury Instructions and Judicial Review of Punitive
Damages Awards, 60 MONT. L. REV. 367, 370 (1999) (state legislatures implemented
punitive damage reforms).
Impact of Television Law
The relevance of pop culture on the legal system is growing.22 Most individuals
do not read appellate opinions and law journal articles23 or have one-on-one
experiences with the law.24 Instead, they acquire their understandings of law from the
stories that circulate in pop culture and are broadcast by the media.25 Legal storytelling
has changed,26 however, adapting to contemporary mass (visual) media.27 We live in a
22
RICHARD K. SHERWIN, WHEN LAW GOES POP [POP] 18 (2000); Kimberlianne Podlas, As
Seen on TV. . . , 11 VILLANOVA SPORTS & ENT. L. J. 1, 1-2 (2004).
23
David A. Harris, The Appearance of Justice: Court TV, Conventional Television,
And Public Understanding Of The Criminal Justice System, 35 ARIZ. L. REV. 785, 795-96
(1993) (urging scholars to eschew “their mandarin materials” in favor of common
popular culture understandings of law); Lawrence M. Freidman, Law, Lawyers, and
Popular Culture, 98 YALE L.J. 1579, 1587 (1989) (danger of legal theory is “to ignore the
‘real’ events, and to focus attention on the internal world of legal thought”).
24
LENZ, supra note 3, at 13; Bruce M.
Selya, The Confidence Games: Public
Perceptions of the Judiciary, 30 NEW ENG. L. REV. 909, 913 (1996).
25
Kimberlianne Podlas, Please Adjust Your Signal: How Television’s Syndi-
Courtrooms Bias Our Juror Citizenry, 39 AM. BUS. L. J. 1, 2 (2001); Mertez, supra note 4, at
206; LENZ, supra note 3, at 13-14; Elliot E. Slotnik, Television News And The Supreme Court:
A Case Study, 77 JUDICATURE 21, 22 (1993).
26
Sherwin, Introduction, supra note 13, 898.
27
Sherwin, Foreword, supra note 1, at 653; Richard K. Sherwin, Symposium: Picturing
Justice: Images of Law and Lawyers in Visual Media: Cape Fear: Law’s Inversion and
media-saturated culture where 98% of Americans have at least one television set.28
Television is no longer merely an industry, but a cultural institution.29
Consequently, television is our principal source of stories about law.30 Millions see
TV’s images of law and justice daily.31
Long before one becomes a litigant or is
empanelled as a juror, Perry Mason has shown her that the true culprit always confesses
at trial, C.S.I. has proven that science will ascertain with certainty the identity of the
killer, and Law & Order has demonstrated that prosecutors never act with less than
certainty of guilt. Indeed, some legal scholars have argued that the line between law
and pop culture has vanished.32
Cathartic Justice [Cape Fear], 30 U.S.F.L. REV. 1023, 1049 (1996) (“law’s adept
internalization of the images of storytelling practices of pop-culture continues at a
steadily increasing pace”).
28
John L. Sherry, Media Saturation and Entertainment-Education, 12 COMM. THEORY
206, 207 (2002). We spend more hours watching television than anything but sleeping
and working. SHANAHAN & MORGAN, supra note 7, at 20.
29
MCQUAIL, supra note 9, at 154; Yan Bing Zhang & Jake Howard, Television
Viewing and Perceptions of Traditional Chines Values Among Chinese College
Students, 46 J. BROADCASTING & MEDIA 245, 245 (June 2002) (television is not simply
entertainment but communicates norms, rules, and values); TOBY MILLER (ed), TELEVISION
STUDIES 4 (2001) (cultural primacy of television as form of mass communication).
30
Sherwin, Nomos, supra note 2, at 1519-20; SHERWIN, [POP], supra note 22, at 18
(media primary if not exclusive source of stories about law).
31
Sherwin, Introduction, supra note 13, at 896
32
SHERWIN [POP], supra note 22, at 8-11.
Even the bench and Bar have acknowledged the impact of televised depictions
of law. For example, Justice Harlan stated that “television is capable of performing an
educational function by acquainting the public with the judicial process in action,”33
and the American Bar Association concluded “that the media can and does impact
some people’s knowledge” about law.34
This influence is enhanced where individuals
have little personal experience on which to draw35 and operates regardless of whether
the law on TV is fictitious or out of sync with reality.36
Syndi-court: Our Legal Storyteller
Today, law on the television screen is dominated by syndi-court. Syndicated
television courtrooms like Judge Judy and The People’s Court rule the dial hosting up to
7.2 million viewers daily. As a result, syndi-courts reach more Americans than any other
type of legal information.37 Though individuals within the legal profession may disregard
33
Estes v. Texas, 381 U.S. at 589 (Harlan, J., concurring). Even the majority opinion
accepted petitioner’s argument that televising trials might enlighten the public thereby
promoting respect for the courts. Id., 381 U.S. at 541.
34
Reprinted in, Symposium: American Bar Association Report on Perceptions of the
US Justice System, 62 ALB. L. REV. 1307, 1315 (1999).
35
Sherry, supra note 28, at 212.
36
SHERWIN [POP], supra note 22, at 3-4; ASIMOV & MADER, supra note 9, at 7.
37
Ratings May 24-30, 134 BROADCASTING & CABLE 19, (6/14/2004). Judge Judy had 7.2
million viewers. Id.; see also Paige Albiniak, Changes Boost Court Shows, 133
BROADCASTING & CABLE 33 (6/9/03).
these as aberrational or embarrassing, for many citizens they are a key source of
information about judges and the law.
Moreover, syndi-court possesses several factors that make it unique among
television representations of law, and may enhance its potential impact. First, unlike
periodic reporting of noteworthy trial and appellate decisions, syndi-court is
omnipresent. We see not one show, but an entire genre, and each one is broadcast 5
days per week. Second, syndi-courts reflect a homogenous format with a unified body
of information, and, hence, a cumulative effect. Third, as evidenced Nielsen ratings,
syndi-court has a regular, substantial audience. Fourth, syndi-courts are neither dramas
nor re-enactments, but “real cases” with “real people.” They are congruent with reality.
Finally, as addressed below, syndi-court’s narrative and theatrical staging enhance
their communicative ability.
Narrative Analysis
A popular framework for analyzing television programs conceptualizes a
program as a text, and then analyzes its narrative.38 Text is an object considered as a
set of signs that can be analyzed and interpreted.39 Thus, television is a cultural text
38
BIGNELL, supra note 5, at 86.
Narrative analysis studies the way in which we construct, deconstruct, and make
sense of these narratives and apply them. It blossomed in the 1980’s across a variety of
disciplines. Jennifer K. Wood, Justice As Therapy, 51 COMM. Q. 296 (2003); SHANAHAN &
MORGAN, supra note 7, at 192, 195.
39
BIGNELL, supra note 5, at 86.
whose signs are the pictures and stories broadcast on its screen.40 Investigating the
narratives within TV elucidates the relationship between its stories and our behaviors
and cultural values.41
A narrative is an ordered set of images (and sounds) that make up a story, or the
process of telling a story.42 Most narratives follow a linear chain of events43 with a
beginning, middle, and end.44 This is typically reflected as a disturbance, then a crisis,
and resolution.45
Narrative, however, is not just the method of storytelling. It also reflects the way
that we make sense of the story and imbue it with moral values.46 For instance, where
40
SHANAHAN & MORGAN, supra note 7, at 1.
41
Michael J. Porter, et al., Re(de)fining Narrative Events: Examining Television
Narrative Structure, 30 J. POPULAR FILM & TELEVISION 23, 28-29 (2002); SHANAHAN & MORGAN,
supra note 7, at 1; MCQUAIL supra note 9, at 360; GEORGE COMSTOCK & ERICA SCHARRER,
TELEVISION, WHAT’S ON, WHO’S WATCHING, AND WHAT IT MEANS, 8 (1978).
42
Brooks, supra note 1, at 16; MCQUAIL supra note 9, at 240; RICHARD A. POSNER, LAW
& LITERATURE 345, 348 (1999); DAVID A. BLACK, LAW IN FILM 100 (1999).
We have an innate psychological disposition toward narrative organization.
JEROME BRUNER, ACTS OF MEANING 80 (1990).
43
Porter, supra note 41, at 30; BLACK, supra note 42, at 13.
44
POSNER, supra note 42, at 346.
45
Porter, supra note 41, at 30; DAVID BORDWELL, NARRATION IN FILM 35 (1985).
46
Peter Brooks, Law and Narrative as Rhetoric, supra note 1, at 14, 19 (explains or
reflects way we organize world and make sense of meanings that unfold over time).
narrative involves ordinary life configured into plot, hence, a story, that story is a
metaphor to represent our existence.47 Viewers then receive the story, ruminate on it,
and interpret it.48 Ultimately, the cumulative effect of the underlying narratives can
impact beliefs and attitudes,49 and structure our reality.50
Of course, this requires not only determining how the narratives are constructed
and what they say, but also discerning how they are received.51 Pop culture texts can
be read or understood in many different ways,52 and syndi-court is no different.
Therefore, it is also critical to narrative theory to ascertain how viewers actively produce
these meanings53 or at least what those resulting meanings.
By acknowledging certain works within pop culture, i.e., TV, as legal texts,54 we
can investigate their narratives to elucidate their impact on the way that we
47
Kathryn Smoot Egan, Applying Paul Ricoeur’s Spiral of Mimesis, 31 J. POPULAR FILM
& TELEVISION 158, 158-59 (2004).
48
Id. at 159; BORDWELL, supra note 45, at 33 (viewers make it into an intelligible
story).
49
SHANAHAN & MORGAN, supra note 7, at 195-97.
50
Id. at 193.
51
Gewirtz [Victims], supra note 1, at 144.
52
MCQUAIL supra note 9, at 103-04 (integrating Fishe’s polysemy of pop culture);
ASIMOV & MADER, supra note 9, at 11 (visual meanings are polysemic).
53
ASIMOV & MADER, supra note 9, at 9, 11-12.
54
Id. at 7.
understand law and its role in society.55 Within this text, it is, therefore, important to
analyze the narrative of syndi-court.56
Law’s Narrative
Law has long been a prolific narrative regime.57 It is a theater of conflict,58 and
its courtroom is a theater of narrative construction.59 Rosenberg aptly described “the
theater of the courtroom [a]s a theater within a theater.”60 Moreover, the adversarial
55
Sherwin, Nomos, supra note 2, at 1521.
56
That narrative structure includes the progression of events and the resolution of
conflicts as well as its binary structure.
57
BLACK, supra note 42, at 1; Gewirtz, supra note, 1 at 136 (“storytelling and
narrative pervades law”).
58
Avi J. Stachenfeld and Christopher M. Nicholson, Symposium: Picturing Justice:
Images of Law and Lawyers in the Visual Media: Blurred Boundaries: An Analysis of the
Close Relationship Between Popular Culture and the Practice of Law, 30 U.S.F.L. REV.
903, 904 (1996) (“theatre of battle”); BLACK, supra note 42, at 2.
59
BLACK, supra note 42, at 2.
A number of scholars have noted the similarities between the stage and the
courtroom. See Robert A. Clifford, The Impact Of Popular Culture… Litigation, Fall 2002
At 1; Theatre Of The Law, 79 YALE L. J. 988 (1970); POSNER, supra note 42, at 22.
60
Rosenberg, supra note 4, at 1452.
process of American law that guides litigant and witness exposition is, itself, a readymade narrative.61
Law’s text articulates an understanding of conflict.62 Its structure follows that of
drama, i.e., one of cause, effect, belief, and resolution. 63 Additionally, as in a fable, law
follows a protagonist vs. antagonist structure that drives not only the storytelling but also
the jurisprudence.64 Each litigant narrates his or her account of the event intending to
resolve the problem set in motion at the start. These stories as well as the act of telling
and hearing them dramatize law and morality: Through these stories, we blame or
exonerate,65 condemn or shame,66 and learn whether litigious action is appropriate.67
61
Sherwin, supra note, at 563-64; POSNER, supra note 42, at 22
62
Suzanne Shale, Symposium: The Conflicts of Law and the Character of Men:
Writing Reversal of Fortune and Judgment at Nuremberg, 30 U.S.F.L. REV. 991, 991-92
(1996); Gewirtz, supra note 1, at 136 (law of evidence and procedure rife wit narrative)
(criminal trial as narrative) and at 136-37 (trial’s search for truth is competing attempts to
shape and present narratives); LENZ, supra note 3, at 18 (criminal law as narrative).
63
Shale, supra note 62, at 991-92.
64
Stachenfeld & Nicholson, supra note 58, at 904; ASIMOV & MADER, supra note 9, at
26.
65
Sherwin, Introduction, supra note 13, at 891.
66
Shale, supra note 62, at 993 (one sociological function of trial is public
condemnation). Shale has also asserted that reconstructing notorious trials as radio
broadcasts implicates a similar public shaming event. Id. at 993.
This is also true of legal fiction. Often, legal fiction tells a story not so much about
guilt, but about responsibility and morality. Christine Alice Corcos, Symposium: Legal
Mise-en-Scene of Syndi-court
What makes a legal storyteller effective is what makes any storyteller effective.
Fundamentally, it must be perceived to be authentic.68 Its narrative must convey a
sense of truth and reality69 so that we have a real emotional response to it and can
either better apply it to our own lives or test it against our own experiences. 70
Fictions: Irony, Storytelling, Truth, And Justice In E Modern Courtroom Drama, 25 U. ARK.
LITTLE ROCK L. REV. 503, 510 (2003).
67
Kimberlianne Podlas, The Monster in the Television: The Media’s Contribution to
Consumer Litigation Boogeyman, 44 GOLDEN GATE UNIV. L. REV. 239, 251 (2004); Stephen
Daniels & Joanne Martin, The Impact That It Has Had Between People’s Ears: Tort
Reform, Mass Culture, And Plaintiffs’ Lawyers, 50 DEPAUL L. REV. 453 (2000) (cultural
environment of litigation defines injury, whom to blame, and response); Amitai Etzioni,
Social Norms: Internalization, Persuasion, and History, 34 L. & SOC’Y REV. 157, 161-62
(2000) (norms constitute legal environment); Cass R. Sunstein, Social Norms and Social
Roles, 96 COLUM. L. REv. 903, 914 (1996); Gunter Bierbrauer, Toward an Understanding of
Legal Culture, 28 LAW & SOCIETY REV. 243, 244 (1994).
68
Smoot Egan, supra note 47, at 158.
69
Sherwin [Law & Lawyers], supra note 67, at 892; ASIMOV & MADER, supra note 9, at
12-13 (audiences look for a sense of reality).
70
ASIMOV & MADER, supra note 9, at 12-13.
Additionally, visual and aural cues can enhance the effectiveness of a story.71
For instance, seeing the reactions, facial expressions and gestures,72 and hearing the
tone of the characters clarifies and underscores the narrative experience. These cues
serve elaborate the message and can even influence attitudinal response. 73
Where stories are broadcast on television, textual or narrative analysis requires
considering editing techniques, visual components, camera angles,74 and dialogue
patterns.75 Editing and camera angles are not neutral to the narrative.76 Rather, they
help tell the story. Indeed, editing decisions affect not only the aesthetics of television,
but how the audience interprets the events.77
71
Sherwin [Law & Lawyers], supra note 67, at 892.
72
John Stone, Evil in the Cinema of Oliver Stone: Platoon and Wall Street’s Modern
Morality Plays, 28 J. POPULAR FILM & TELEVISION 80 (2000).
73
Robin L. Nabi & Alexandra Hendriks, The Persuasive Effect of Host and Audience
Reaction Shots in Television Talk Shows, 53 J. COMM. 527, 528 (Sep. 2003).
74
ASIMOV & MADER, supra note 9, at 13.
75
MILLER (ed), supra note 29, at 31-33.
76
See e.g., Annie Lang, et al., The Effects of Edit on Arousal, Attention, and Memory
For Television Images: When an Edit is an Edit Can an Edit Be Too Much? 44 J. BROAD. &
ELEC. MEDIA 94, 105 (2000).
In fact, studies have demonstrated that increasing the
number of edits in a television “message” increases viewers’s attention as well as their
ability to remember the message. Id.
77
Stacy Davis, The Effects of Audience Reaction Shots on Attitudes Towards
Controversial Issues, 43 J. BROAD. & ELEC. MEDIA 476, 477 (1999).
Syndi-court exhibits a number of conventions that impact its function as a
narrative and the impact of that narrative. First, the syndi-court is bathed in realism.
Although the syndi-courts vary somewhat in their look, they are more similar than
different. A particularly strong, unifying feature is the mise-en-scene of the courtroom
setting. Each syndi-court set resembles our vision of a courtroom.78 There are flags near
or behind the judges, bailiffs standing to the left of the judge,79 benches, lecterns, and
pillars. The judges are costumed in robes and wield gavels, and bailiffs don court officer
attire. Litigants must stand with a neutral space between them and the judge, and,
should a litigants move from their appointed mark, the bailiff will approach. Most syndicourts also begin with montages of the respective judges and a depiction of a
courthouse or government building.
Unlike fictional legal narrative, which has been criticized as unrealistic, we are
constantly
reminded
that
syndi-court
hosts
“real
people,
real
cases.”
This
Unlike theatre, the ability to move the camera allows control over the viewer’s
perspective. Cf. JAMES MONACO, HOW TO READ A FILM: MOVIES, MEDIA, MULTIMEDIA 198 (3d
ed. 2000).
78
This author, an attorney, however, seldom has litigated in such an attractive
space.
79
Interestingly, the bailiff-judge duo on each of these shows is a testament to
gender and ethnic diversity. The pairs are always “differents,” i.e., white judge with
African-American bailiff, female judge with male bailiff, male judge with female bailiff,
African American judge with white bailiff.
correspondence to actual events heightens the potential for influence.80 Furthermore,
litigants are not well-lit with airbrushed skin and perfect grammar, but speak like, look
like, and dress like anyone you could see in a mall. This enhances the ability of the
audience to identify with these individuals and their stories.81
Second, syndi-court’s camera shots are also narratively suggestive. Generally,
the judges are shot at a low angle, upwardly-tilted.82 Not only is this flattering to the
judge’s appearance,83 but it also raises the judge – both literally and figuratively –
above the litigants. This both replicates and certifies the authority of judge.84 Litigants,
80
SHANAHAN & MORGAN, supra note 7, at x.
81
In order for an audience to make sense of what they see on television, they must
identify with the program or characters. BIGNELL, supra note 5, at 97.
82
An analysis of the shots used in Judge Judy, The People’s Court, Judge Joe
Brown, and Texas Justice, suggest that up to four studio cameras may be used in
shooting these shows.
For a technical description and depiction of this and other basic camera
positions, see WILLIAM H. PHILLIPS, FILM, AN INTRODUCTION 91-94 (3d ed. 2005).
83
In fact, judges Judy, Millian (People’s Court), and Hatchett are all beautiful
woman.
84
Cf. ASIMOV & MADER, supra note 9, at 13 (films typically introduce judge in
upwardly-titled shot, helping to certify authority of court); see also Gary A. Copeland,
Face-ism and Primetime Television, 33 J. BROADCAST & ELEC. MEDIA 209, 210 (1989) (way
people are framed impacts credibility).
by contrast, are generally shot in medium close-ups, bordering on portrait shot, and at
either high angle or a normal eye level angle.
There are also master shots of the audience, who sits behind the litigants. On
Judge Judy, this is done with normal eye level angles and the focus is limited so that the
audience members can be seen but are out of focus slightly to diminish individual
recognizability. On the remaining syndi-court’s, the camera uses the same eye level
shot, but uses deep-focus photography to keep the audience in focus. Deep-focus is
somewhat unexpected. Normally, scenes are shot in shallow-focus, designating either
the foreground or background as relevant.85 This technique in syndi-court suggests that
the audience reaction is clearly part of the story being told.86
Third, syndi-courts exhibit reaction shots. Reaction shots are one of the most
commonly used devices to capture and manipulate non-verbal cues on television.87
Moreover, when nonverbal behavior such as gestures and facial expressions are
communicated through television, they can take on added significance due to the
editing.88 It is the editing that connects the reaction to the thing to be reacted against.
On syndi-court, the least common reaction shots are of the litigants, though the
commonality of the shot differs by show. For instance, litigant reaction shots are rare on
Judge Judy, but more common on Judge Joe Brown, and Judge Mathis.
85
Id. at 19
86
MONACO, supra note 77, at 198. Deep-focus photography is also thought to add
to realism. Id.
87
Davis, supra note 77, at 477.
Reaction shots are brief shots showing an
individual’s reaction to an event. WILLIAMS, supra note 114, at 138-39.
88
Id. at 476.
More common are reaction shots of the audience: Periodically we see a master
shot camera truck left or right to include more of the audience, and, hence, their
reaction. Sometimes, we hear the audience’s laughter or applause. These reactions to
the stories told, the litigant behavior, and, untimely the judgments rendered can shape
viewer perceptions of the litigant and the legal or moral outcome of the litigation.
89
Additionally, as noted above, the deep-focus photography of the audience helps
viewers to better see these reactions.
The most common reaction shot, however, is from the judge. Indeed, we very
regularly see a reaction shot of the judge.90
The litigant narratives are constantly
interspersed with the judge’s expressions, gestures, and stance.
These add to the
drama of the situation as well as signaling to us the appropriate reaction to the story or
litigant. It, too, can shape viewer perceptions,
91
as it cues us regarding how to assess
the litigants and their actions.92 Furthermore, judge reactions are enhanced by the
camera shots and editing of them.
A few syndi-courts also employ the convention of a voice over (either an
omniscient narrator seen outside or inside the courtroom or as an announcer
89
Nabi & Hendriks, supra note 73, at 529.
90
Reaction shots are among the “most commonly used editing devices used to
capture and manipulate” viewer perceptions. Davis, supra note 77 at 477; see also
Podlas, supra note 22, at 18-20 (empirical analysis demonstrating that jurors interpret
judge reactions and use them to guide evidentiary determinations).
91
Nabi & Hendriks, supra note 73, at 529.
92
Cf. ASIMOV & MADER, supra note 9, at 20.
summarizing the dispute). This is a typical mechanism to connect the viewer with the
narrative,93 and synopsize the relevant lessons.
The Empirical Studies: The Stories That Syndi-Court Tells
These theories of syndi-court impact notwithstanding, any causal link between
this cultural representation of law and its influence on attitudes and norms remains
largely unresolved.94 Consequently, embracing a legal realist perspective, i.e., that in
ascertaining the power and function of law in society, we must look beyond the “law
on the books” to the law in reality and image,95 the set of studies that follow investigates
viewing habits of syndi-court and particularly propensities regarding law and legal
process.
Sample
93
BLACK, supra note 42, at 100.
94
See Greenfield, supra note 4, at 26 (addressing outstanding issue I study of
cinematic portrayals of law and lawyers).
95
ASIMOV & MADER, supra note 9, at xxii; ANTHONY CHASE, MOVIES ON TRIAL (2002) 11;
Austin Sarat, Symposium: Law/ Media/ Culture: Legal Meaning in the Age of Images:
Living in a Copernican Universe, Law and Fatherhood in a Perfect World, 43 N.Y.L. SCH.
843, 843 (2000) (“today we have law on the books, law in action, and now perhaps law
in the image”).
In many ways, this distinction between traditionalist legal culture and legal pop
culture parallels the distinction between high culture and pop-culture.
241 prospective jurors from Manhattan, the District of Columbia, and
Hackensack, New Jersey completed a survey instrument [the base survey].96 After
incomplete surveys and those demonstrating obvious English language barriers were
discarded, the remaining 225 (93.3%) were analyzed.
Next, 326 jury eligible adults enrolled in their 1st or 2nd year of college completed
an enhanced survey.97 After incomplete or internally inconsistent surveys were
discarded (n=5), the remaining 321 (= 97%) were analyzed.
Finally, after ANOVA disclosed no statistically significant difference between the
two sample groups, results of the 546 completed responses were analyzed via metaanalysis.
Instruments
Two survey instruments were used: a base survey and enhanced version of that
survey (the basic survey plus one additional page of queries). Hence, all respondents
completed the base survey instrument.
The
base
instrument
measured,
inter
alia,
syndi-court
viewing
habits,
expectations of judicial behavior, whether the respondent would consider bringing a
legal claim, the likelihood of doing so, whether the subject would consider pro se
representation, and the likelihood of partaking in pro se representation.
96
While waiting to enter courthouses (and, in some instances, during breaks),
individuals were approached, identified as appearing for jury duty, and asked to
complete a questionnaire. (No individual believed to be a juror was excluded). In
exchange for their participation, jurors received the pens used to complete the
questionnaires and candy bars.
97
The surveys were administered over four academic semesters (2001-2003).
After administering the base instrument to the prospective juror sample –
sequentially the first group surveyed – the base instrument was refined to clarify whether
the potential risk/ jeopardy that a litigant faced impacted one’s propensity toward selfrepresentation. In order to maintain the empirical protocol and quantification of both
data sets, this refinement was accomplished by merely attaching an additional page
of questions to the base survey instrument.
This page investigated the propensity
toward self-representation in various civil and criminal contexts. The (base R) revised
instrument98 was then administered to the second group, juror eligible adults.
Results
As noted above, this netted for statistical analysis 225 responses from the
prospective juror group and 321 from the jury eligible group, or a total of 546 responses.
The data pertaining to litigiousness and pro se representation were analyzed both
independently and via meta-analysis.
Television Exposure Measures
To isolate any connection between syndi-court viewing and certain factors
contemplated by the questionnaire, respondents were identified as either frequent
viewers [FV] or non-frequent viewers [NV], consistent with the Gerbner typology.99 Syndicourt viewing was measured via two axes of self-report data. First, respondents were
asked to quantify how many hours per week/ month they watched syndi-court.
98
The phraseology of these questions was confirmed by first administering a draft
survey to 81 students and conducting a post-mortem structured interview with a focus
group of 28 of those students.
99
That is, consistent with cultivation theory’s division of society into heavy viewers
and non-heavy viewers.
Second, respondents were asked to describe their viewing habits using a Likert-type
scale. Of the 546 respondents, 349 were frequent viewers and 196 were not. Of the 225
prospective juror responses analyzed, 149 (66.2%) were FV and 76 (33.78%) NV. Of the
321 jury eligible responses analyzed, 200 (62%) were Frequent Viewers (FV), and 121
(38%) were Non-frequent Viewers (NV).100
As summarized below, several statistically significant differences (P< .05)
emerged between frequent viewer and non-viewer responses to questions measuring
legal claiming, pro se representation, and learning from syndi-court. Additionally, within
the jury eligible sample, statistically significant differences (P< .05) emerged between FV
and NV responses to questions measuring propensities toward pro se litigation in low risk
situations. No difference was found in high-risk situations. Rather, it appeared that,
where respondents were faced with high levels of risk, they rejected the potential of pro
se representation, notwithstanding viewing profile.
100
Here, a “frequent viewer” watched syndi-court between two to three times and
more than five times per week (and checked the corresponding response on the
descriptive scale of viewing); a non-frequent viewer NV) watched syndi-court no more
than once per week (and checked the appropriate response on the corresponding
Likert-style scale).
FREQUENT
VIEWERS (n=349)
Prospective Jury
Jurors
Eligible
NON-FREQUENT
VIEWERS (n=196)
Prospective Jury
Jurors
Adults
learn about law and legal system
Judge should make opinion clear
or obvious to jury
Judge should frequently ask
questions
Judge should be aggressive with
litigants; express displeasure with
n= 115
n= 160
77%
80%
n= 114
n= 152
77%
76%
n= 124
n= 161
83%
n= 95
80%
n= 142
64%
71%
Eligible
Adults
n= 19
n= 22
25%
n= 24
29%
n= 36
32%
n= 29
30%
n= 44
38%
n= 20
36%
n= 34
26%
28%
testimony
Would consider bringing claim
n= 128
86%
Would bring claim
n= 112
75%
Would consider pro se
representation
Would represent self
pro se
n= 88
59%
n= 82
n= 156
78%
54%
n= 105
55%
53%
n= 58
n= 58
76%
n= 38
--
5%
50%
n= 14
56%
101
This is the mean of the high risk civil and high risk criminal.
102
This is the mean of the low risk civil and low risk criminal.
58%
n= 29
18%
n= 12
24%
n= 23
16%
19%
n= 2
--
n= 112
--
77%
n= 44
n= 10
Would represent self
pro se: LOW RISK102
82%
n= 108
Would represent self
pro se: HIGH RISK101
n= 164
3%
n= 10
--
13%
Finally, meta-analysis of the Prospective Juror and Jury Eligible data (total
responses = 546; FV=349 [64%]; NV=197 [36%]) yielded the following:
Proportions
FV
NV
Learn about law and legal
system
.79
.21
.84
.59
.77
.42
.56
.22
.54
.18
Would consider bringing claim
Would bring claim
Would consider pro se
representation
Would represent self pro se
Discussion
Overall, the empirical data suggests that syndi-court narratives contribute
to the audience’s construction and understanding of law, or, at the very least, mirror
and cultivate attitudes consistent with syndi-court imagery.103 Although it is tempting to
declare this the missing causative link, the analysis herein does not permit causal
interpretation of data. Nevertheless, even without definitive directional and causative
proof, syndi-court’s narratives have implications regarding the development of schema,
transforming the normative/ cultural environment of litigation, and effecting catharsis.
Each is outlined below.
Schematic Impact
103
LENZ, supra note 3, at 12 (pop culture law mirrors and molds attitudes); PAUL
JOSEPH AND ROBERT JARVIS, PRIME TIME LAW (1998) (law on TV reflecting belief of public’s
vision of law)
A key factor explaining the force of television is the role of story telling in
human society.104 Much of what we know comes from the stories told in our culture,
and television is one of the institutions that tells us those stories.105
Syndi-court’s
collection of stories that daily enter our homes may evolve into schema or heuristics for
decision-making. A heuristic is a mental short cut or rule of thumb that people use when
making judgments.106 These schema then impact the way we expect the legal process
to progress,107 the way evidence at trial will unfold,108 the way we make judgments
104
Gerbner, et al., supra note 120, at 44. One difference between humans and
other animals is that we live in a world created by our stories. Id.
105
Moreover, as television transforms story-telling into a centralized system, TV also
becomes the primary common source of cultural information. See generally Jonathan
Cohen & Gabriel Weimann, Cultivation Revisited: Some Genres Have Some Effects On
Some Viewers, 13 COMM. REP. 99, 101-02, 107-08 (2000). Its images tell us how things work
and what to do. SHANAHAN & MORGAN (Gerbner introduction), supra note 7, at ix-xiii.
106
Russel Korobkin, Bounded Rationality, Standard Form Contracts, and Unconscionability, 70 U.
CHI. L. REV. 1203, 1223 (2003); Russell B. Korobkin & Thomas S. Ullen, Law And Behavioral Science:
Removing The Rationality Assumption From Law And Economics, 88 CAL L. REV. 1051, 1055, 1085 (2000);
J. RICHARD EISER, SOCIAL JUDGMENT 103-04 (1991) (referencing contribution of Tversky and
Kahneman); NEAL FEIGENSON, LEGAL BLAME, HOW JURORS THINK AND TALK ABOUT ACCIDENTS 11
(2000).
107
Indeed, almost 40 years ago in their groundbreaking study, Kalven and Zeisel
concluded that “The collective text of the American cultural courtroom trial caries with
it a concomitant message regarding the process and form of state-supervised justice.”
KALVEN & HOWARD ZEISEL, THE AMERICAN JURY (1966).
about truth and blameworthiness,109 and the way we perceive self-representation.
Simply, syndi-court is pop culture edition of Emmanuel’s.110
This would not be problematic, if syndi-court schema better resembled reality,
but they do not.
As a result, this schematic impact may leave the audience with
mistaken impressions about the process, and potentially reduce respect for or
understanding of the justice system.111
For example, syndi-court justice is seldom controversial and always swift.
Moreover, the court makes its opinion known, pushes the dispute forward, and often
scolds litigants. This sets up the audience to expect similar alacrity and efficiency in a
real trial or to believe this the ideal of functioning justice. Unfortunately, the syndi-court
representation of judge and justice departs from reality. Therefore, when audience
members become litigants or jurors, they may be disillusioned as a real legal dispute
takes more than 12 minutes and a commercial break. They may be angered when a
judge does not aggressively respond to litigants or make morality the centerpiece of a
dispute.112 This may cause them to criticize the system or the judges.113 In fact, data
108
Kimberlianne Podlas, The Effects of Syndicated Courtrooms on Jurors [Jurors], 25
AM. J. TRIAL ADVOCACY 557 (2002); Sherwin [Foreword], supra note 1, at 654.
109
Sherwin [Foreword], supra note 1, at 654.
110
Emmnuel’s is the seminal legal topic outline and synopsis favored by law
students.
111
Podlas [Jurors], supra note 108, at 558.
112
Id. at 572-75.
113
Id. at 575.
from the empirical study herein showed that a statistically significant portion of FV
expected the real bench to follow the script of the syndi-court bench.
Relatedly, the prevalence of pro se representation on syndi-court may provide a
schemata promoting this legal stratagem.
A putative litigant has two options with
regard to representation: obtain counsel or proceed pro se. Although we have long
seen lawyers on TV, we now see thousands of pro se litigants per year. Seeing that the
hoards of average people inhabiting syndi-court – individuals to whom viewers can
relate – can represent themselves without counsel, it is reasonable to presume that
anyone can. One pro se litigant confessed to an assistant court executive that he
obtained all of his legal information from watching Judge Judy.114
Some have posited that syndi-court contributes to the growing trend of pro se
litigation.115 Indeed, the study data showed that situations most resembling those of
syndi-court prompted a higher pro se propensity than did scenarios unlike those
114
Marie Higgins Williams, Comment: The Pro Se Criminal Defendant, Standby
Counsel, And The Judge: A Proposal For Better-Defined Roles, 71 U. COLO. L. REV. 789, 816
(2000). In fact, one court administrator remarked that on television, “You go to court.
You make your case . . . [a]fter a few moments – and a commercial break – the judge
renders a decision.” Dante Chinni, More Americans Want to Be Their Own Perry Mason,
CHRISTIAN SCIENCE MONITOR (August 20, 2001).
115
Terry Carter, Self-Help Speeds Up, 87 ABA J. 34 (July 2001); John Gibeaut, Turning
Pro Se, 85 ABA JOURNAL 28 (Jan. 1999) (referencing Goldschmidt study); JONA
GOLDSCHMIDT, MEETING THE CHALLENGE OF PRO SE LITIGATION: A REPORT AND GUIDEBOOK FOR
JUDGES AND COURT MANAGERS 49 (1998).
broadcast on syndi-court, such as criminal trials.116 This was true regardless of syndicourt court viewing pattern.
Syndi-court’s narratives may also establish a rubric to guide legally-implicated
action. Before one files a suit, she must identify a harm and reconstruct it as the type
qualifying for legal redress. This is usually accomplished by comparing one’s problems
to those of which we are aware. Syndi-court supplies an easily accessible catalog of
litigation-worthy events and judgment-worthy litigants.
Accordingly, it amounts to
matrix of legal wrongs against which a potential litigant can measure herself and her
problem to determine whether their issue also deserves judicial redress.
Normative Impact
In addition to any heuristic influence, syndi-court’s fables reconstruct legal
culture,117 altering the normative firmament regarding litigious action.118 The key to
understanding whether an individual will formally dispute119 is discerning that individual’s
116
This could be due to the exclusive existence of the low-risk pro se exemplar.
Alternatively, it might be that when risk is to high, it precludes any potential for pro se, or
that when risk is low, pro se tendencies go unchecked.
117
Bierbrauer, supra note at 243 (describing legal culture).
118
These set the stage for how a potential disputant constructs a litigious moment.
See William L.F. Felstiner, et al., The Emergence and Transformation of Disputes: Naming,
Blaming, Claiming, 15 LAW & SOC’Y REV. 631, 631-632 (1980-81) (describing disputes as
social constructs).
119
Daniels & Martin, supra note 4, at 453 (environment of civil litigation includes
what is an injury, whom to blame, and how to respond to others).
social construction of litigious reality – to this person, what is a legal wrong, what is law
for, and how or when is it appropriate to use? This legal culture then guides individuals in
a conflict situation, by signaling how to behave when wronged120 and what society’s
reaction to or perceptions about disputes and disputants will be.121
This structures
opinions and expectations toward disputing including one’s willingness to dispute or
turn to legal institutions for the management of private conflicts.122
120
Etzioni, supra note 67, at 157; see also JOEL CHARON, THE MEANINGS OF SOCIOLOGY 61-62, 107
(4th ed., 1993) (norms signal society’s rules or expectations) and at 167 (noting importance of
socialization in following society’s rules of law).
121
Daniels & Martin, supra note 5, at 543-45, 560; Sunstein, supra note 67, at 914
(norms define what actions to be taken).
122
Hisotrically, the media has played a role in the acculturation toward litigation. In
the 19th century, Americans were accustomed to living with adversity. They accepted
whatever fate visited upon them, and did not look for another party to whom to shift
losses. This belief system discouraged suit.. LAWRENCE M. FREIDMAN, A HISTORY OF AMERICAN
LAW 185-87 (2d., 1985).
Later, once the insdustrial revopution had taken root, and
severe industrial accidents continued unabated, the media began publicizing these
injurieis and ills. Id. at 468-70. Newspapers stories portrayed business as culpable, evil,
and exploitative of the common person. They spoke of worthy victims, increasingly
frequent protests by average workers of against unsafe working conditions, HANS, supra
note 21, at 8, and devastating injuries, id. at 9; see also Matthew T. Miklave, Why “Jury” Is A
Four Letter Word, 77 WORKFORCE, March 1998, at 56, 57 (the publicity generated by media
coverage of trials and monetary awards encourages individuals to sue). The tone and
content of these stories indicated that litigation – particularly against big business – and
For example, before one files suit, she must identify what she believes to be a
litigable claim. This does not mean that the individual knows the legal rules or that, if
she does, she will follow them, but that she perceives that this type of thing is a legal
wrong qualifying for redress.123 In making this judgment, the individual may reference
urban myths124 or the ways she has seen others act under similar circumstances.
Once that litigious moment is identified, the aggrieved must decide whether to
pursue it and to what remedy.125 Again, this assessment is made with reference to
norms, comparing our own situation with those of others, considering what they have
plaintiffs were more palatable, even positive. HANS, supra note 21, at 7-8; see also
Arthur F. McEvoy, The Triangle Shirtwaist Factory Fire Of 1911: Social Change, Industrial
Accidents, And The Evolution Of Common Sense Causality, 20 L. & SOCIAL INQUIRY 621,
637-38 (1995) (describing how the publicity related to the fire influenced public opinion
regarding business responsibility for accidents).
Soon, society, that had previously
frowned upon litigation, began to express attitudes and behaviors compliant with this
view, FREIDMAN, supra note 122, at 545, and people began to sue in greater numbers, id.
at 548-49.
123
MacFarlane, supra note 4, at 633. Many victims, however, do not realize that
they have viable legal claims, and, therefore, never sue. Saks, supra note 2, at 1188-89.
124
For an account of popular legal legends, see Marc Galanter, The Conniving Claimant:
Changing Images of Misuse of Legal Remedies, 50 DEPAUL L. REV. 647, 664 (2000) (Americans believe there is too
much litigation).
125
MacFarlane, supra note 4, at 635 (transformation of grievance upon voicing it
and requesting remedy).
done and how society has responded, negatively or positively, to those choices.126
Moreover, where the public image of litigation is negative,127 the apparent norm
disfavors litigation; Where it is positive, the apparent norm favors litigation.
Syndi-court, as a prominent legal storyteller, is a powerful agent of legal
socialization.128
126
When its stories celebrating frequent suits over often small sums are
Ted Rohrlich, We Aren’t Seeing You In Court; Americans Aren’t Suing Each Other As Often As
They Did A Decade Ago. California, In Particular, Has Seen A Steep Decline In High-Stakes Personal
Injury Suits, LOS ANGELES TIMES [HOME EDITION], Feb. 1, 2001, at A1 (decisions whether to litigate made
with reference to social norms of suit and plaintiffs).
127
American culture often marks ltigation or litigiants s negative.
Julie Pacquin,
Avengers, Avoiders, and Lumpers: The Incidence of Disputing Style On Litigiousness, 19
WINDSOR Y.B. ACCESS JUST. 3, 17 (2001) (“Many people think of litigation as a disagreeable
experience”); Daniels & Martin, supra note 5, at 454 (significant portion of public
believes plaintiffs bring unjustified lawsuits); Galanter, Conniving Claimant, supra note
124, at 664 (litigants portrayed as “petty, oversensitive, obsessive, exploitative, and
sociopathic”).
128
MCQUAIL, supra note 9, at 360, 362 (media’s role in socialization); See e.g., Podlas
[Please Adjust], supra note 25, at 7-8, 15; Richard Petty, et al., Mass Media Attitude
Change: Implications of the Elaboration Likelihood Model of Persuasion, in JENNINGS
BRYANT & DOLF ZILLMAN ed., MEDIA EFFECTS: ADVANCES IN THEORY & RESEARCH 155, 188 (2nd ed.,
2002).
Socialization is the process by which society’s beliefs, attitudes, and behaviors
are learned. Petty, supra note 128, at 208-09. A variety of social scientists employ this
concept to explain the way that in which various aspects of culture that begin as
contemplated as components of a normative mosaic, they imply that low-end litigation
is common or least not abnormal. This suggests a norm favoring litigation. Indeed, the
data showing that FV of syndi-court had a significantly higher proclivity to litigate is
consistent with such a normative presumption.
This transformative potential on legal culture is considerable, and may reduce
gatekeepers to formal legal action.
Contemporary society generally stigmatizes
litigation as well as those who pursue it.129 Where a putative plaintiff has a claim, but
fears the social rebuke associated with litigation, she may avoid suit in order to avoid
that stigma.130
system.
Hence, stigma is a gatekeeper that keeps people out of the legal
Portraying litigation and pro se representation as common if not banal,
however, reduces the stigma associated with litigation. Consequently, people who
external to individuals become internal. Petty, supra note 128, at 225. For example,
sociologists employ the idea to refer to how we come to participate in group life,
psychologists use it to label our learning of the appropriate behaviors necessary to our
co-existence in a social group, and anthropologists use “enculturation” to describe the
process by which people acquire and internalize aspects of our respective societies.
Petty, supra note 128, at 209-210.
129
Pacquin, supra note 127, at 17 (people think of litigation as disagreeable
experience); Daniels & Martin, supra note __ at 454 (significant portion of public
believes plaintiffs bring unjustified lawsuits); Galanter, (Conniving Claimant), supra note
124, at 664 (litigants portrayed as exploitative).
130
HANS, supra note 21, at 70-73; Saks, supra note 21, at 1189 (potential plaintiffs
avoid suit because of stigma associated with litigation.
would have previously avoided litigation out of embarrassment would no longer be
deterred, the gate is then lowered and more people will likely enter the legal system.131
Syndi-court may also impact the gatekeeper of cost. Some people are priced
out of the legal system, because they do not have the financial resources to pursue a
legal claim or to retain counsel.132 Additionally, a putative plaintiff may be unable to
obtain counsel, because counsel assesses the claim to be weak133 or the likely recovery
131
As fewer people are actively deterred from litigious behavior, more people are
likely to enter the legal system; as more people are encouraged to adopt this
behavioral paradigm as appropriate, more people are likely to enter the legal system.
132
Russell Engler, And Justice For All – Including The Underrepresented Poor:
Revisiting The Roles Of The Judges, Mediators, and Clerks, 67 FORD. L. REV. 1987 (1999);
Janet Reno, Address Delivered at the Celebration of the Seventy-Fifth Anniversary of
Women at Fordham Law School, 63 FORD. L. REV. 5, 8 (1994) (poor and “working poor”
have no access to legal services).
133
A lawyer will often refuse representation where a claim is specious and/ or the
likelihood of success is low.
Herbert M. Kritzer, Contingency Fee Lawyers As
Gatekeepers in the Civil Justice System, 81 JUDICATURE 22 (1997) (attorneys tell litigants to
stop) and at 23 (attorneys reject cases that do not satisfy risk/ return criteria); Daniels &
Martin, supra note 5, at 484 (in light of strength of cases, 57% of average lawyers
retaining fewer clients than 5 years ago). Consequently, individuals with a small, yet
legitimate claims may be unable be able to obtain a competent attorney. Daniels &
Martin, supra note 5, at 485.
to be low.134 This, also, will cause the individual to forgo litigation. Thus, attorney refusal
is another gatekeeper to suit.
Syndi-court’s advertisement of the popularity and normality of pro se
representation promote pro se as a viable model of litigation. Viewers may conclude
“everybody’s doing it – why not me?”
Moreover, the pro se model provides a way
around the noted gatekeepers. By eliminating counsel, pro se eliminates the expense of
counsel as well as the relevance of attorney refusal. A plaintiff no longer needs a
bankroll or legal expert to gain admission to the justice system, but can skip the
middleman and billable hours, and simply represent herself.
The Moral of the Story
In addition to the potential influences described above, syndi-court may also
exhibit a lexi-cultural function akin to the moral function of law. Ultimately, the moral of
syndi-court’s story may be cathartic, not only for the television litigants but also for the
audience.135
Shale has described law as a “spectacle through which we understand essential
aspects of humanity and society.”136 Thus, like the stories of real trials, the stories of
syndi-court make us witness to law in action as well as to the moral standards of our of
134
Kritzer, supra note 133, at 23 (attorneys reject cases that do not satisfy risk/ return
criteria); Saks, supra note 21, at 1190-92; Daniels & Martin, supra note 5, at 484 (court
costs dissuade average lawyers from signing up as many clients as they did previously).
135
Chief Justice Burger spoke of the community’s need for catharsis in the service of
the law’s legitimacy.
136
Shale, supra note 62, at 991.
law, and our culture.137
Therefore, syndi-courts are, perhaps, best understood as
morality plays that offer a singular narrative: That narrative pits good against evil, moral
against immoral, legal against illegal.
It leaves room for lessons to be drawn, but
typically does so in a simplistic fashion.138
These narratives are as much fables of the actual rules of law (such as remedies
for breach of contract, rights of a tenant to withhold rent, tort liability for minors, etc.),
as they are fables portraying our society’s moral codes.139 Indeed, the focus of syndicourt disputes tends to be as much if not more on the unjust or irresponsible person than
on the legal rules or unjust application of them. Syndi-court regularly equates legal guilt
with moral guilt; the bad act is the bad person and vice versa.140 Watching syndi-court
may teach us to pay back our debts, follow through on our contracts, control our
temper, and restrain our pets, but its moral thrust is to teach us the analogous lessons
that welching/ stealing/ cheating/ hitting/ biting is bad and that those who engage in
that behavior are morally wrong.141 The legal issue before the syndi-court is merely the
conduit through which the morality play is told.
Hence, we use syndi-court to
137
Gewirtz, supra note 1, at 2-3.
138
See Stone, supra note 72, at 80-81 (describing good vs. evil in morality narratives).
139
The typical trial focuses on one or both. Clifford, supra note 59, at 526-27.
140
Although syndi-court includes some accidents and morally pure litigants against
whom a judgment is rendered, the judge often clarifies that the litigant is not bad,
though her action or inaction results in liability.
141
Pop culture law (contemporary mass media’s representation of law) alters the
way that people perceive and make judgments about truth and blameworthiness. Cf.
Sherwin [Legal Meaning], supra note 95, at 654.
understand and enforce moral values, and then feel good when we see those values
enforced by the judge.142
In the end, the experience of watching individuals losing in the syndi-court venue
becomes cathartic not only for the prevailing litigant, but also for the viewer.
As
viewers to this legal play,143 We see what occurs, but we also join the judge in passing
judgement. When the story reaches its end, we feel reassured that justice – at least for
the common person – does exist. It is alive and well and proliferate.
Empirical Concerns
Although both common sense and the data obtained support an influence of
syndi-court on the public, the limitations inherent in the experimental design must be
kept in mind.
Typically, social science investigations and cultivation investigations in
particular cannot distinguish causation from correlation. Therefore, it is possible that the
propensities
favoring
litigation
and
pro
se
representation
catalog
individual
predispositions toward the litigiousness “plaguing” society, rather than proving that
syndi-court is a mechanism of normative cultivation. Some third variable might explain
the connection between hours logged watching syndi-court and particular attitudes.
For instance, pre-existing attitudes favoring litigious action or adversarialness may cause
frequent viewers to seek out these programs. Personality type might explain the
apparent correlations. The type of person who opts for self-representation or litigation
142
In some ways, this parallels the media’s tort tales that almost always identify
plaintiffs as morally blameworthy. WILLIAM HALSTROM & MICHAEL MCCANN, DISTORTING THE
LAW, POLITICS, MEDIA, AND THE LITIGATION CRISIS 61-63 (2004).
143
Or, they may be conceived as patrons to this legal procineum.
might also be the type of person who is inherently interested in syndi-court.
These
individuals may also be more contentious by nature, and, therefore, seek out the types
of television programs that are consistent with those tendencies, rather than being
influenced by syndi-court programming.
Nevertheless, no evidence indicates that syndi-court viewers differ from television
viewers generally. Cultivation researchers have noted that most people who watch
more of any particular type of program, such as syndi-court, “watch more types of
programs” overall.144 Hence, frequent viewers of syndi-court are likely frequent viewers
of television as a whole.145
Additionally, though the most powerful predictor of
television viewing overall is education,146 all of the respondents in the juror eligible study
– the group that ranked highest in syndi-court viewing – had completed at least one
year of college. Moreover, because the prospective jurors studied were drawn from
jurisdictions that have largely eliminated absolute exemptions from jury service, each of
those samples presumably reflected a representative cross-section of their respective
communities. These were not the stereotypic people sitting at home during the day,
watching TV. Nonetheless, a significant percentage of this population watched syndicourt.
144
Gerbner, et al., supra note 123, at 45; see also Comstock & Scharrer, supra note
41, at 93-94 (describing demographic similarity of viewers).
145
Moreover, though cultivation scholars debate genre effects, several researchers
agree that a particular type of program can exert a heightened or “focused” effect on
viewers. Comstock & Scharrer, supra note 41, at 93-94.
146
Id.
Relatedly, though samples in social science research are commonly criticized as
not being representative enough, the prospective juror sample here might be too
diverse to accurately reflect the composition of the U.S. Simply, the racial/ ethnic,
religious, and socio-economic diversity of these samples may be greater than that in
the verge U.S. city.
With this in mind, future research should sample additional
audiences, such as juror eligible adults from other regions and/ or defined socioeconomic groups. It would be revealing to see whether the same pattern of results
appears with these populations.
Finally, some may debate the genre-specific focus of the study.
Traditional
cultivation analysis assumes a uniform message across all television genres and a nonselective viewing pattern in the audience.147 Yet, in an age where television channels
have multiplied beyond the 3-5 channels and 18 hours daily that Gerbner studied,
genres may be a more contemporary and adequate measure. Indeed, Potter and
Chang propose a genre-specific measure of viewing rather than total viewing time.148
Empirical evidence shows that cultivation as applied to genres not only is valid but may
be a more precise measure of audience.149
147
Hence, the number of syndi-courts
Patrick Rossler & Hans-Bernard Brosius, Do Talk Shows Cultivate Adolescents’ Views of the
World? A Prolonged-Exposure Experiment, 51 J. COMMUNICATION 143, 146-47 (Mar. 2001).
148
W. James Potter & I.K. Chang, Television Exposure Measures and the Cultivation
Hypotheses, 34 J. BROADCASTING & ELECTRONIC MEDIA 313 (1991);
W. James Potter,
Cultivation Research: A Conceptual Critique, 19 HUMAN COMMUNICATION RESEARCH 564
(1993).
149
Rossler & Brosius, supra note 147, at 146 (relying on Potter, supra note 242, at 575).
broadcast and their hours on screen still permit study can still measure long-term
exposure to a medium, endorsing their genre-specific measure.150
Conclusion
Robert Cover, an early architect of the discursive approach to the study of law,
remarked that:
No set of legal institutions or prescriptions exists apart from the narratives
that locate it and give it meaning. . . . Once understood in the context of
the narratives that give it meaning, law becomes not merely a system of
rules to be observed, but a world in which we live.151
He deemed this the “nomos.”152
In our post-literate culture, the stories of syndi-court constitute our nomos. These
shows may be designed to entertain, but their narrative content and visual aesthetic
also convey messages that are integrated into our understandings of and emotions
about law. This creates our world and helps define our legal consciousness. Ultimately,
audiences live out these stories, and re-enact their scripts and lessons. They reference
them when experiencing what they perceive to be legal wrongs, apply them
schematically to assess guilt or the efficiency of courts, and vicariously experience them
as a legal and moral catharsis. In the end, seeing syndi-court truly is believing.
150
See id. at 145 (noting adequacy of design in genre-specific studies).
151
Robert Cover, Nomos and Narrative, 97 HARV. L. REV. 4 (1983).
152
Id. Nomos is also the Greek word for “law.” Bernard J. Hibbits, Making Sense of
Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse, 16
CARDOZO L. REV. 229, 247-48 (1994).
All The Law’s A Stage: The Impact of Syndi-court Narrative
by
Dr. Kimberlianne Podlas
University of North Carolina – Greensboro
Dept. of Broadcasting & Cinema
211 Brown Building
Greensboro, NC 27402
(336) 334-4196; k_podlas@uncg.edu
UNC -- Greensboro
Dept. Of Broadcasting & Cinema
211 Brown Bldg.
Greensboro, NC 27402
15 December 2004
Jinah Paek
Center for the Study of Law & Culture
Columbia Law School
2005 Law & Humanities Junior Scholar Workshop
I would like to submit the attached paper, “All Law’s A Stage: Analyzing the
Impacts of Syndi-Court Narrative on Viewers,” for inclusion in this June’s Junior Scholar
Workshop. I am untenured, and have just begun a tenure-track appointment as an
Assistant Professor of Media Law at the University of North Carolina. As I am only one of
two law people on the entire campus, the opportunity to have my work reviewed by
your panel as well as to meet other faculty interested in interdisciplinary law scholarship
would be invaluable.
Please contact me at (716) 903-6373 or k_podlds@uncg.edu, if you need further
information.
Very truly yours,
Dr. Kimberlianne Podlas