I have a love for film, and the law. The purpose of this series (the length of which I cannot predict) will be to give my reaction as a lawyer to a number of films in which the law plays a central role. I will not attempt any lengthy review of the films themselves. Others, more competent than me, will already have done so.
One of the problems with writing about law in films is that so many come from Hollywood. The United States is unlike all other legal systems in many different ways. From an English perspective, this is problematic as so many lay-people will acquire what smattering of legal knowledge they have from American movies and tv shows. In America, they still talk of “plaintiffs” and “writs”, and so those are the terms the English general public often use, even though they were pointlessly, and inelegantly, changed in England to “claimants” and “claim forms” 25-years ago.
Two ways in which the United States differs from elsewhere is in its use of juries in civil actions, and in the availability of punitive damages. In England, juries have almost completely disappeared outside of the criminal law. After the First World War, German machine guns had so comprehensively destroyed a generation of men that there were insufficient jurors, hastening the abandonment of their use. In relation to defamation, jury trials persisted in England for longer than in relation to other forms of action, but even there have over the last ten years effectively been abolished. In the United States, juries are still often used in civil actions not only to determine issues of fact (as in the criminal law, that of guilt or innocence) but also the quantum of award.
The availability of punitive damages (usually in England unfortunately now called exemplary damages) is also much more restrictive in all jurisdictions other than the United States. This combined with the ability of juries to quantify such awards (similar to allowing them to determine the sentence of a criminal) can lead to great drama. The claim I will make is that they also reveal something that US law gets right, and the rest of us wrong.
Punitive damages awarded by a jury feature prominently in three excellent films, which in their substance share the same plot structure. A wrong is committed. A plucky lawyer against the odds gets a verdict in favour of the deserving plaintiff, after obstruction by the more well financed defence. Punitive damages are awarded. The films are The Verdict (1982), The Rainmaker (1997) and Dark Waters (2019). For reasons of space, I shall ignore the similar Erin Brokovich (2000) because so well known.
The first, and best, stars Paul Newman, directed by Sidney Lumet and written by David Mamet. Newman is a washed-up alcoholic ambulance chaser. He takes on a claim for medical negligence, initially hoping to settle and claim a third on a contingency basis (again a difference from the English position). Presented with the victim in a vegetative state, he refuses the settlement and decides to go to trial. His legal opponent, the classic English villain, albeit one nominally playing an American, is James Mason, the senior partner of the opposing major law firm with more than a dozen unspeaking smirking assistants.
The film is not flawless. Charlotte Rampling, twenty years Newman’s junior is an implausible love interest, despite his autumnal good looks, and her brilliant performance. But that was the era in film. It is however also the one of the three films that is greater than the genre, providing a study of a man saving himself, and containing what is even now a shocking act of violence.
The important feature it shares with the other films is that the defendants resist what they know is a good claim using every nefarious means possible. An offer is made far below what is due, but pitched at a level to buy off Newman’s drunk lawyer. Expert witnesses are pressured to disappear. Newman’s new partner is suborned to inform against him. The (inevitable) jury verdict is the best one of the movies here considered.
The second, The Rainmaker, was an undeserved box office failure. Written and directed by Francis Ford Coppola, it was his last good film (unless the in-production Megalopolis proves a return to form). Based on a John Grisham novel, it follows the same formula but with a different underlying action. A predatory insurance company refuses to pay out on an obviously good claim under a medical insurance policy. Plucky newly qualified lawyer, Matt Damon, ably assisted by the unqualified but legally more knowledgeable and able Danny DeVito, seek justice.
Again, the more well-moneyed defence (led by John Voight) resort to unscrupulous tactics in order to defend the indefensible. The first judge appointed to the case is corrupt, but fortunately dies of a heart attack and is replaced by the obviously honest and sympathetic Danny Glover (uncredited). As in The Verdict, key testimony is ruled out on an apparent legal technicality, only here to be brought back in through Damon’s skill and determination. Although a punitive award is made, the defendant company goes into bankruptcy. The working-class family who have brought the action are shown however to be uninterested in mere money.
The film although very watchable is not perfect. A sub-plot involving Claire Danes as a battered wife, presumably included in order to give Damon a love interest, is clunky, uninteresting and disconnected from the main story. However, Micky Rourke, in one of his best roles, gives a wonderful turn as a corrupt lawyer.
The weakest of the three, but still worth your time, is the Mark Ruffalo vehicle Dark Waters. Visually, it is the most beautiful and memorable, as might be expect from the director Todd Haynes and cinematographer Edward Lachman. Based on a New York Times Magazine article, it tells the true story of the claim brought by the lawyer Robert Bilott against the chemical manufacturer DuPont, for contaminating a town with chemicals used in the production of Teflon (an action that led to the bankruptcy of the company). Unlike the other films, it does not focus on the drama of the court proceedings, with the traditional build up to the final decision by the jury. Instead, once the truth has been established as to what DuPont had done, the movie draws to a close, with the punitive awards through litigation stated in credits.
The important feature it shares with the other films is the behaviour of the defendant after it had committed the initial wrong. Obstacles were put in the plaintiffs’ way. A ludicrous “discovery” of documents is made, where truckloads of dusty boxes are dumped at the lawyers’ offices, for our hero Ruffalo to search through. Pressure is applied on the law firm not to proceed against a corporate defendant who would, ordinarily, be one of its repeat clients. An attempt is made to trigger the running of a limitation period through a misleading letter informing the community affected of what has happened in confusing terms.
For many lawyers, the true hero of the film will be Tom Terp, played by Tim Robbins, who as senior partner of the firm backs the pursuit of the action at potentially great financial cost (his defence of doing so is probably the film’s best scene). Another feature in common with the other two films is the thankless part given to the leading woman, here Anne Hathaway as Ruffalo’s stoic wife.
Dark Waters is too worthy, slow-paced and predictable to be a great film. Although the critical response at the time was good, it was not a big box office success.
The Problem With Punishment
In England, punitive damages are today more often referred to as “exemplary” damages. Awards solely made in order to make an example of the defendant, and thereby deter others from behaving in similar ways, are hard to justify. First, without more they are straightforwardly immoral. They seek to use the defendant as a means to an end, as with the execution of Admiral Byng. Second it does not justify giving any award to the plaintiff, who acquires an undeserved windfall. Third if such a punitive award is made in a civil action, the protections given in criminal proceedings are absent.
Much easier to justify is an award given because of the wrong done to the plaintiff itself, regardless of whether, counterfactually, the plaintiff has been left in any way worse off. If you are untruthfully called a paedophile on the frontpage of a national newspaper, that should entitle you to a substantial award without more ado. If you are detained against your will, but plied with beefsteaks and ale so that you are left better not worse off than you otherwise would have been, significant damages should still be available to you.
The Gist of the Wrong
In all three films, the gist of the wrong that the plaintiff suffered from the defendant’s obstructionism was the same, although the underlying causes of action differed (in the first medical negligence, the second non-payment of a contractual debt, the third either public nuisance or negligently inflicted personal injury or property damage). In each case the plaintiff was owed a legal obligation, called for payment, but the defendant knowingly took steps to frustrate its performance.
In one sense the wrong done was a public one, a disrespect for the legal system and the law. In another however it was done to the individual plaintiff. The initial wrong was compounded: the defendant knowingly sought to evade or frustrate their legal obligations. In both The Verdict and Dark Waters the initial tort was not highly culpable, in the first because of a momentary lapse in giving anaesthetic, in the latter because of the lack of knowledge of the risks posed by the chemical concerned. However, these initial wrongs were made far worse, injury added to the initial injury, by the refusal to perform the secondary legal obligation that the defendant knew that they were under, and the steps taken to resist being compelled to perform it. As in politics, the cover up is always worse.
In legal terms, what is most interesting about The Rainmaker is that the claim for punitive damages involved a tort, bad faith failure to pay, that has been recognised in the United States since the 1980s, but that has no analogue elsewhere in the common law world. The English courts for example have refused to recognise any such tort. The Supreme Court of Canada (in a case far more dramatic and extreme than those in the film based on Grisham’s novel) has recognised a claim for punitive damage for breach of contract on similar facts, but this would be thought of as heterodox by English lawyers.
It seems however that the Americans, and not the Canadians, have the correct categorisation here. A punitive award should not be available for a breach of contract per se, and the gist of the wrong is no different in any case of a bad faith attempt to frustrate being compelled to perform any legal obligation, whether contractual, tortious or otherwise.
Lessons for Elsewhere
US law is exceptional in two further ways that are also reflected in the three movies.
First, in England and elsewhere “costs follow the event”. This means that the loser (whether claimant or defendant) will generally be ordered to pay not only their own but the other sides legal costs as well. This does not however usually involve the winner recovering all their costs. Where the counterparty has behaved particularly egregiously, as the defendant did in the three films, a more generous indemnity costs order may be made. In the US each side must generally pay their own costs, regardless of victory, and this might be argued to in part to justify the different approach to punitive damages. An indemnity costs order will however merely ensure that the victor is left no worse off. It would not reflect the compounding wrong the plaintiff in all three movies suffered.
Second, contingency fees (ie fees quantified as a percentage of any award) were at one time prohibited in England but this has been relaxed with “success fees” now permitted, although the quantum of these is capped. In the United States by contrast, the position is much less restricted. This is reflected in the plot of all three films. In The Verdict the unreformed Newman has the initial option of taking $70,000 for doing essentially nothing, as a percentage of the settlement. Coupled with the availability of punitive damages, this liberality has the capacity to make successful American lawyers very rich, as reflected in the huge payment received at the end of Erin Brokovich.
The American tort of “bad faith failure to pay” was initially rejected in England in 1990, in a world where civil legal aid still existed. State funding for those unable to pay for litigation has now almost disappeared. In policy terms, we now live in a different world, where impoverished claimants may be forced to give up as unable to pay when faced with obstructive bad faith defendants.
This does not mean that in England we should embrace the American enthusiasm for the jury. It does however mean that we should reconsider our opposition to the form of tortious wrongdoing found in all three stories. That is the (legal) lesson from all of these movies.