My Cousin Vinny

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0:00:04.5 Landry Ayres: Hear ye, hear ye. The court of Pop & Locke is now in session. I’m Landry Ayres. All who have cause to discuss the cult classic comedy of courtroom escapades. My Cousin Vinny, draw near and you shall be heard. All rise for our honorable guest, senior vice president for legal studies at the Cato Institute, Clark Neily.

0:00:27.9 Clark Neily: Hello.

0:00:28.9 Landry Ayres: And Director of Military and Veteran Law at Stone Rose Law. Derek Debus.

0:00:32.7 Derek Debus: Hello.

0:00:35.1 Landry Ayres: Thank you both for sitting down to talk. A really, really great movie that I have been wanting to revisit for quite some time now, My Cousin Vinny. This movie is 30 years old as of this year, which is kind of shocking to me when I think about it. I have loved this movie for many years, so to think that it’s now 30 years old is kind of shocking. I was also pleasantly surprised in preparing for this recording that this movie generally seems to be pretty well-​received or beloved by people in the legal profession, which is not always the case with things that take on the legal arena, because especially comedies in particular sort of lampoon a lot of things and don’t get things right. But this movie has a reputation for getting a lot of things right in an interesting way, so for two people who have first-​hand experience with this, what makes this movie resonate with the both of you?

0:01:34.7 Clark Neily: I think the main thing that makes My Cousin Vinny work is that they made good decisions about how to essentially somewhat fictionalize the trial process, lots of people who’ve never done one think trials are just… Must be incredibly dramatic. And a surprise cross-​examination is happening all the time. And that does happen, but that’s really not what trials feel like. They can be really boring. There’s a lot of procedure that occurs that’s not particularly interesting. And My Cousin Vinny just did a really good job of deciding how to stylize the process without, I think, caricaturing it. Without just giving up and saying, “Well, this is not really what a trial looks like, but they’re too boring to try to portray.” So I think they made really good judgments about how to distill the essence of a trial and pull the drama out of it and leave the really boring stuff behind, but while still remaining fundamentally true to the adversarial process itself, and that’s not easy to do.

0:02:42.6 Derek Debus: I agree, I think another thing too is the areas where it sort of stylizes the trial process almost in a way, sort of highlight the absurdity of how some trials are conducted. I think my favorite part was when during the trial the prosecution, at the very last minute, right in the middle of the trial, disclosed this crazy well-​prepared expert witness, they didn’t disclose them before, just out of nowhere, and Vinny LaGuardia Gambini the first goes up and says, “Judge I object to this late disclosure. I’m supposed to be able to review the witness reports, the basis for his testimony, be able to interview him, check the veracity, have my own expert reviews and conclusions.” And the judge looks at him and goes, “That was a coherent, cogent, well argued and well-​articulated objection, overruled.” And that is something I think every single trial lawyer has experienced, and that to me, that scene is just chef’s kiss, perfect.

0:03:42.1 Landry Ayres: You bring up the sort of formalities and the procedures, which are a huge part of the story, because Joe Pesci’s character, Vincent LaGuardia Gambini, a great name, just has no clue about the actual goings on of what goes into the step-​by-​step process of taking a case to trial. And you could understand that as a person who has failed the bar six times and has never actually brought a case to trial. But he also makes a statement that is interesting that I think sort of emphasizes one of the other reasons. A lot of, not just lawyers, but people in legal education really use this movie a lot, where he talks about… The judge is telling him about all the procedures that he’s not understanding.

0:04:30.5 Landry Ayres: And he gives him the book and Marisa Tomei’s character is reading it, but he’s not. And she’s asking why he didn’t know how to do all of these things? Why didn’t he know about disclosure of evidence, and he says, “Well, in law school, they don’t teach you any of that stuff, they teach you about precedent and the law itself.” And I believe the head of the John Marshall Law School wrote in, I think 2013, he said, “Vinny is terrible at the things we actually do teach in law school, but very good at the things that we don’t.” So is this kind of accurate in its depiction of what lawyers learn and in how to do law? Is he right about what you would learn in law school about procedures versus precedent and…

0:05:17.2 Derek Debus: Absolutely.

0:05:18.7 Landry Ayres: Things like that?

0:05:20.3 Derek Debus: A 100%, so…

0:05:20.3 Landry Ayres: ‘Cause… Yeah, please.

0:05:22.1 Derek Debus: One of the big kind of protagonists was the Alabama rules of criminal procedure. In law school, everybody takes a class called criminal procedure, but it’s not the rules of how a trial gets conducted. It doesn’t tell you about arraignments, preliminary hearings, Grand Jury presentations, it doesn’t teach you about any of that. It just teaches you about what is or isn’t a search or what is or isn’t a seizure under the Fourth Amendment and different Constitutional rules. That’s 100% correct, there’s absolutely nothing in law school that you learn. I graduated from The Sandra Day O’Connor College of Law as a trial and advocacy fellow. I have a big fancy certificate that says I’m really good at doing trials, I got that after law school. I did two trials in law school. I didn’t know jack, his a 100% correct. You don’t learn how to lawyer in Law School. You learn how to think, and if you don’t have those resources or a firm to land in or the right type of place to land after Law School, you’re gonna be having a really hard time.

0:06:16.2 Landry Ayres: One of the other big divides that is going on, and there’s some sort of mixed sort of interpretation of where this device actually is between, but it comes in from the very, very beginning of the movie, from the opening shots before we even hear characters speak. We see, Ralph Macchio and his friend driving down the road entering into Alabama, and suddenly the world is very different, it’s like hub caps covering the walls of barns, and there’s a Confederate flag dangling and sort of blowing in the wind, and free horse manure is being touted on a roadside sign. And it’s very much depicting the South as this kind of backwards, slow to adapt behind-​the-​times place, they even say that they’re medieval, the laws are medieval down here.

0:07:15.9 Landry Ayres: But then there’s also the argument that the judge makes to Joe Pesci where he says, “You might have assumed that we practice law informally down here.” But it’s not like that, it’s actually very strict and by the book. So there’s this weird sort of… Everyone is assuming certain things of one another, whether it’s about class or just where you’re from geographically. Are those types of differences occurring between different jurisdictions like that, like would a lawyer from New York, or New Jersey, like Joe Pesci, going to Alabama? Not just from a procedural standpoint like he has, but from a sort of cultural and interacting with people standpoint. Would they struggle adapting to that type of courtroom or that… And what would that process be like? How much of that is based in reality and how much of that is playing with the sort of archetypes of the setting?

0:08:30.1 Clark Neily: So the answer is yes, it would be a challenge. And there is this concept of getting home town, which is where you’re very obviously from another jurisdiction. It could be that you’re from the big city and you’re in a country court house, it could be that you’re from a different region. I think most learners experience is that in most courts, there’s both the formal rules that you can read in the book, and then there are the informal rules of how they actually do things in that courthouse. And it is difficult when you’ve never practiced in a given court house. Unless you have, for example, it’s not uncommon to hire what we call local counsel, and this will be somebody who’s familiar to the judge, who practices in that court and can help you kind of know what these informal rules are.

0:09:10.0 Clark Neily: The other thing that a lot of people wouldn’t know unless you practice law is that the court where you are practicing for the first time that you are not familiar with. They can make it really easy or really hard, they can help you out and kind of recognize that it’s your first time, you don’t necessarily know all of the informal rules, and they can kind of say, “Okay, well, we do it a little differently here. Here’s how we do it.” Or they can just essentially let you step on rakes every day, get slapped in the face every time you just didn’t know something about how they do things. And so there is actually quite a bit of discretion. So both things can be true. Right, the judge can be correct that they are not… This kind of totally informal courtroom, and they do follow the written rules or procedure. But it can also be the case, and it usually is the case that there are all kinds of unwritten rules that you would not know if you’re practicing in that court for the first time, particularly without a local council.

0:10:06.7 Derek Debus: I agree 100% what Clark said, and it’s not even necessarily the discrepancy between practicing in New York and then being a fish out of water in Alabama, even here in Arizona. That’s something that we experience. My office is in Scottsdale, when I go to Jerome, which is a very small, very wonderful town with fantastic magistrates way out in the boonies. It’s a completely different vibe. Even if I go down to Tucson an hour and a half away, the way that the rules or those kind of informal sort of norms are enforced or not enforced really can have an effect. One thing I thought was really interesting too, is the judge made a big point of how just they have a sophisticated system of justice in Alabama and they follow the rules, and for the most part, it seems like he’s following those black letter law rules in that big fake rules of criminal procedure book he gave Gambini. But if he was following the rules, then that last minute expert witness never should have come in, ever. It should have been a mistrial. Should have been set for another date. So the idea… And I don’t know the fact that he even let a guy prog DJ and from New York without verifying his credentials to take on a murder trial, without even like a Local Advisory Council. It was a little suspect.

0:11:26.8 Landry Ayres: His character is really interesting to me, especially in hindsight, because the director Jonathan Lynn stated about 10 years ago that as he thinks of the film, he says he doesn’t think there are any bad guys in the film. He says, for many of these films, you might have a corrupt judge or a corrupt prosecutor or somebody who is a bad guy, there would be a protagonist and an antagonist, which in an adversarial courtroom drama seems perfectly understandable, but he doesn’t think that there isn’t anyone who is corrupt, everyone is very straight-​laced and correct and just and fair. Even the prosecutor, he believes is more than fair, nobody is doing anything wrong, they’re just pursuing justice. Do you agree with that statement? In the way that these people are portrayed because they’re very much seems to be an adversarial antagonistic nature, but you can see how they do not make a caricature of a villain of any one in particular, it just seems like they kind of do sloppy work, but that doesn’t necessarily paint them as a bad guy, whereas in the real world, if you do sloppy work and you send someone to jail, that makes me think a little bit less of you as someone who wields that type of power, what do you make of that statement?

0:12:56.6 Clark Neily: I think that’s right. And one of the things I love the most on this point is the sheriff in this case, he originally starts out absolutely stereotypically, laser-​focused on these two, he’s not interested in sort of listening to their alibi or developing any other evidence. He’s just convinced that they did it and there’s a wonderful scene, He recites the transcript of the interview with them and he fails to inflect properly, so that when he asked a question, “Did you do this?” And the answer is, “I did it?” He doesn’t inflect it that way, he just reads it as, “I did it.” And Derek, I’m sure will support me on this, that is absolutely true to life.

0:13:43.8 Clark Neily: Now, here’s where it gets really interesting because by the end, as Joe Pesci has developed all this doubt through his wonderful cross-​examinations, there’s this great scene where he asked the Sheriff to run a license plate for him, and the sheriffs initial reaction is, “You do your own investigation.” And that too is true to life, but he has kind of this change of heart where Joe Pesci looks at him, says, “Come on, I’ve got five minutes.” Or whatever, and he ultimately goes and runs a plate, I don’t know if that would ever happen in real life, but I think there’s a sort of wonderful arc where the sheriff starts off very stereotypically, convinced of guilt and actually actively sort of helping the prosecution perhaps with a little extra helping hand that was inappropriate. But by the end of the movie, he’s invested in the quest for the search for truth and behaves in a very honorable and admirable way. Perhaps not every police officer would do that, but it’s a heart-​warming moment at the end of the film.

0:14:45.9 Derek Debus: The two things I think were most… Well, three things, I guess the timeline generally, but obviously movie, but the two things I think were most unrealistic were the fact that the Sheriff actually was willing to do some investigation to try and help it out. I’ve never had that happen before. I don’t think I ever will in my career, I don’t think it ever will happen, but that was unique, and then the fact that the DA stood up and dismissed the case before not even letting it get to the jury when he saw it fall apart. I wish things like that happened more often, I think that our system would work a lot better if everybody really was as focused on figuring out the truth as opposed to just getting a win, but I thought that those were two really good examples of what the director was saying about, they’re not necessarily being a antagonist in the traditional sense.

0:15:39.7 Landry Ayres: The search for justice or rather truth, which becomes actually a plot point in the film, he cites the roots of the word verdict and in truth. But there is in the real world, we talk about wanting to search for the truth, but unfortunately, we have high rates and most things that take part in our criminal justice system don’t actually go to a trial. As many of our listeners have heard us talk about on the show before that plea deals and things like that are much, much more common and having an outsized experience, but I believe… I don’t remember whose character says it, but he says, “There’s no way that this isn’t going to trial.” Is that specifically because of the level of charge that it is and the fact that it’s set in the South where there is the assumption that the death… They really have a sense of blood lust and they want to violently punish people in a stereotypical sense, Why wouldn’t there be a plea deal, is it just for the film sake, do you think?

0:16:48.1 Derek Debus: So I think that kinda also goes into the bit we had earlier about home town and how things are perceived. So that scene was after the preliminary examination where the state has to prove to the judge that there is probable cause to believe a crime was committed by the people accused of committing it. It’s a very low burden, hearsay is admissible, pretty much anything is admissible in order to for the government to be able to prove probable cause. But Billy’s on the bus back to jail ’cause Vinny was held in contempt again, and his clients were like, “Hey, why didn’t you ask any questions? You were allowed to ask questions. We may have been able to get this case thrown out.” And he was like, “No, you’re two kids from New York, we’re in the South, you’re accused to killing a good old boy, there’s no way in hell the judges isn’t finding probable cause, this is going to trial.” So they didn’t really talk about whether or not a plea was offered in the case or in the movie, but from his perspective, in terms of the preliminary hearing was a foregone conclusion that, it almost always is.

0:17:49.1 Clark Neily: So, I would add, just in terms of what almost certainly would have happened is the prosecutor, the prosecutor would have threatened them with the death penalty, which they have in Alabama. They would have pled guilty to save their skins, to avoid the death penalty and to a pretty high degree of certainty, would never have been exonerated, that’s the way this works in real life. The prosecution is certain of its case, they claim to be certain, oftentimes they’re not, the way you know they’re not is they’ll never put any real skin in the game, but they can yet be certain of their case. They threaten the defendant in a murder case with the death penalty where that’s available as it is in Alabama, and they get a guilty plea whether the person is guilty or not, in order to take capital punishment off the table. That’s actually how this case would almost certainly have played out in real life, and if it didn’t, probably the only reason is because they were two white defendants and not to Black defendants.

0:18:43.1 Landry Ayres: And I think that’s a really, really crucial part of looking at this movie that would make it a very, very different film if the race of the two defendants were changed, because it would be a completely different misunderstanding. It’s sort of played as a comedy of errors very, very early on from the beginning.

0:19:04.0 Landry Ayres: People misunderstanding one another, Ralph Macchio’s character basically admits or… He admits that he shoplifted a can of tuna, which even then I would say, don’t talk to anybody until you have a lawyer, I would assume, and then the sheriff is not clarifying what he’s asking him, so there’s this misunderstanding and dancing around what the actual thing is. It’s kind of lawyerly in the way that they misunderstand one another in failing to clarify, in that way. But if it were two Black young men in Alabama, the film would not be funny. It would just be sad and scary, which is indicative, I think, of both the time that it was made, and the fact that you wouldn’t wanna make a comedy such as that. But would a miscommunication like this or the failure to clarify, maybe it wasn’t this simple and sort of facile as I said I stole a can of tuna but they meant I… I meant capital murder, but is any type of miscommunication like that? Would that be enough for a case to get this far, whether it be maybe a drug possession case or assault or something like that? Like how realistic is something like that as grounds for something going to trial?

0:20:29.4 Derek Debus: I have a story for you, and I have permission to tell the story from my client. Client was… Cops came up to her house, knocked on the door, and she stepped out, and they arrested her immediately for DUI. And you’re thinking, “What the hell? She’s in her house.” Well, somebody had called and said that they saw her vehicle swerving all over the road. All they asked her was, “Have you had anything to drink tonight?” She says, “Yeah, I had two big glasses of wine.” Boom, arrested for DUI. And we’re going to trial on that. Now, if they had clarified and said, “When did you have those two big glasses of wine?” She would have said, “Well, I poured the two big glasses of wine from the bottle that I bought at the grocery store, here’s the receipt from 10 minutes from when I got home. I drank after I was driving,” but they didn’t clarify that. And as much as I’m trying to get the little baby prosecutor to understand, I’m gonna beat him six ways to Sunday in this, and it’s just gonna be embarrassing, he still wants to push forward. So, yes, stupid, stupid, stupid misunderstandings and shoddy police work absolutely send cases to trial.

0:21:37.6 Clark Neily: I think the most important thing, this is a practical pointer, by the way, for people to understand is, police interrogations are almost never about trying to figure out what happened, they are almost always about trying to figure out how the police can support the case they are already building against you, and that’s one of the reasons why people say, “You don’t want to talk to police and you should not talk to police.” Now, if you’re pulled over while you’re driving, there’s a sort of a bare minimum amount of things that you need to do, you have to show them your driver’s license, and that’s about all you should really say, you have to identify yourself and provide your driver’s license. But you need to understand that police are not really trying to figure out what happened most of the time. What they’re trying to figure out, is whether they can cite or arrest you for something and what they can get you to say to incriminate yourself. That’s really mostly what’s going on during most police interactions.

0:22:33.1 Landry Ayres: Are these courtroom kind of stunts that Joe Pesci is pulling with walking to the back of the room and pulling out a huge tape measure and holding up his fingers, are these kind of stunts actually happening in the courtroom? I think most people, when they report to jury duty or something like that, are not gonna get a big case like that, where you’re gonna have people theatrically presenting cases and arguing before a jury and doing very, very sort of over the top displays and using visual aids to prove things. Does that kind of stuff happen? I mean, the only example that I think of in real life that most people have any sort of frame of reference or would be like the OJ Simpson murder case where you talk about the glove and things like that, but how often is that type of thing happening?

0:23:25.1 Derek Debus: I guess I’ll just tell one story about trial theatrics, and it’s not my story, it’s my boss’s story. So when I swore into federal court, when I first moved into private practice, I go down to the federal district court, I have a judge that’s gonna swear me in, and my boss comes with me ’cause he needed somebody to witness you and basically vouch for you. And as soon as my boss walks in, the judge looks up and he goes, “Mr. Kanouse, you’re not gonna damage my courtroom again, are you?” And I’m like, “What the hell is going on?” So, come to find out, my boss did a big products liability case in the judge’s federal courtroom, about whether or not a ladder was safe when it wasn’t locked into place or some boring products liability thing. So what he did is he assembled the ladder defectively, and he put it up, on the courtroom, and he climbed all the way up to the top, and the ladder worked, it didn’t break, but it punched a hole in the courtroom wall, it’s actually still there to this day. So from time to time, crazy funny courtroom shenanigans do, do actually happen.

0:24:26.2 Clark Neily: It does happen once in a while, there’s two reasons why it doesn’t happen very much. First, in civil cases, you’ve got a lot of pre-​trial discoveries. You’ve taken depositions, you’ve sent document requests, both sides, if they’ve done their job properly, have a pretty good idea of who knows what and who did what, and there really shouldn’t be much room for that kind of spontaneous sort of courtroom display. Derek can probably speak more to criminal trials, but the… What’s going on in some of those fun cross-​examination techniques that Joe Pesci uses is, there is a lot of room for those witnesses to push back, to pretend that they really were wearing their glasses, or they don’t really need them, and you can’t take the kinds of risks, generally speaking, that he is taking. And you have to control the witness, cross-​examinations are much, much tighter, and more focused than what you see in that movie, and as a defense counsel, you’re rarely taking those kinds of risks because witnesses know where you’re trying to take them and they will absolutely find ways to weasel out of those kinds of traps more often than not. So you don’t see very much of it, and for good reason, because it opens up… I believe, it opens up a sort of an amount of latitude for that witness that is just too great of a risk in most situations.

0:25:47.5 Derek Debus: I agree, you don’t see those types of antics very often, but for exactly the same reason as Clark said, and I think something that happened in the movie actually highlights why taking those sort of risks is a bad idea. So you had Vinnie and you had the public defender. Public defender when he is cross-​examining, I believe it was the guy who made the grits. He saw that he had glasses, and you could tell that the PD had… And this is not talking bad about PDs, they’re fantastic attorneys that do wonderful jobs. Anyway, you saw that the PD didn’t do any preparation. Whereas earlier in the movie, you saw kind of a montage of Vinnie going around and interviewing all of the witnesses, and then the lawyer with the bad stutter, you can see he gets some confidence ’cause he’s not stuttering, he says, “So you saw this and you were not wearing your prescription, your necessary prescription eye glasses, and the witness looks at him and he goes, “but they’re readers,” and the guy just sits down in shame, so I give Vinnie the credit of at least interviewing the witnesses and hopefully he did that stunt with her during a pre-​trial interview to know how it’s gonna work out, ’cause you never wanna ask a question on cross, you don’t know the answer to, you never wanna…

0:26:58.1 Derek Debus: Honestly, you’re not even really asking questions on cross, you’re saying things and getting a yes or no from the puppet on the stand, and I think in terms of how the cross went. Yes, the cross-​examination was less than less than fantastic, but in terms of the theatrics of it, where you want the jury to be focused on you as the cross-​examiner, focused on you as the person that’s giving them the truth, the facts, the stuff that the other guy is not telling them. I think Vinnie Gambini did a fantastic job of that making himself the center of the show on cross examination, so each one of his points hit like a bomb, so I think from that regard, it was pretty good.

0:27:38.8 Landry Ayres: The public defender is an interesting character both because the actor who portrayed him actually had a stammer when he was younger in life and apparently really, really regretted portraying it and using it for laughs in the way and sort of considered that role to be almost partially the death nail of his acting career. He didn’t do much after that, just because it didn’t go over too well, it was sort of one of the least captivating parts of the movie, I think you could cut it out completely and I wouldn’t even miss it, I honestly forget that it’s there most of the time. But I was curious about your opinion, before we know that the public defender is… This one in particular is not very skilled at what he’s doing or has not prepared adequately enough for it, but we know the sort of state that Vinnie is in when the defendant decides that he’s like, I wanna go with the public defender, knowing what we know about Vinnie, at that point in the movie and what we don’t know about the public defender. Do you think that was a good call? Would you have been like, I’m gonna take a chance on this person that has no experience in a court room, or I’m gonna go with a public defender, was that a wise decision, knowing what he knew at that time?

0:29:01.6 Derek Debus: Absolutely. If I’m literally getting accused of murder and my attorney does not ask a single question during my preliminary exam, I’m getting a new lawyer… That’s just how it is. You couldn’t ask any questions.

0:29:17.3 Landry Ayres: Fair enough. [chuckle]

0:29:20.3 Derek Debus: I’m a private defense attorney, but I have great respect for public defenders, and I think that most people do really well with their public defenders. I think that kind of an interesting interplay was sort of how you had the public defender, a barred attorney in that state who ostensibly knows all the rules of procedure is, got a proper suit buttoned up to the nines, all that good stuff. And he was terrible, and he had Vinnie fail the bar six times, license for a whopping six weeks, never been in a courtroom before, and he killed it, and I think that that kind of interplay between spit shined and polished versus a little rough around the edges was a really interesting dynamic in the tone of the whole movie.

0:30:05.4 Clark Neily: So I’ll say one thing I think is really interesting here, and I agree, you would absolutely want to go with the the local public defender over some unknown quantity, especially from New York, if you’re in Alabama. That being said, there is something I think that we… It’s worth noting here, which is that the lawyer Vinnie has a luxury that most criminal defense lawyers rarely have, which is that he has absolute conviction in the innocence of his clients and a personal connection to them. So he is going to give literally everything he has to defend them, and he is going to defend them with a sense of conviction and sincerity that a lawyer who doesn’t know them personally might not muster. As we’re kind of discussing the sort of fictionalized scenario that’s very unlikely to come up, how often you’re gonna have an actual relative represent you in court? But I think there is something here, and the idea that you might choose between a more experienced local lawyer for whom you’re just one of several hundred cases that he or she might be carrying on their docket at any given time, or a less experienced lawyer from another jurisdiction who is going to devote literally every waking hour and every scrap of effort that they can bring to bear in your defense.

0:31:44.5 Clark Neily: That’s not nothing. And that would, I think if somehow I were put in that position, I think it would give me pause.

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0:31:51.8 Landry Ayres: A big part of the movie that we haven’t really discussed yet, but that is crucial to the way things unfold is the character played by Marisa Tomei, Academy award-​winning performance for a comedic role, no less. Truly I think the highlight of the movie, just the chemistry between her and Joe Pesci is impeccable, she brings an energy to the film that is unmatched. And from the beginning, she is portrayed as the sort of… As much as they stand out, they stick out like a sore thumb as soon as they get out of the car, when they arrive in the town, she is portrayed as the level-​headed one, Joe Pesci is getting out and he’s trying to figure out what’s going on with the car, and she’s like, “This is what’s going wrong, it’s something wrong with the axle” or the suspension or something like that, and he’s like, “No, you don’t know what you’re talking about.” She is the informed one who knows what’s going on but is not taken seriously, and she is played like that throughout the film. What about the way that she approached the situation, do you think makes her the person that is trustworthy? Is there a quality in her that you would want in a lawyer because you…

0:33:14.3 Landry Ayres: She sort of forms the second half of the legal team with Joe Pesci, and while she’s not technically sitting counsel with him, she’s certainly doing a lot of the heavy lifting behind the scenes. So what is the quality that she possesses that you would want in someone who is defending you in a courtroom?

0:33:37.9 Derek Debus: I think the fact that she’s absolutely tenacious. She’s like a dog with a bone. She knows she’s right, she’s gonna prove it and she’s gonna beat you over the head with it until you’re either dead or you see her point of view, and I think that that’s something that any defense attorney absolutely needs to have in their personality. And I think the fact too that she just won’t be intimidated, she’s not gonna be intimidated by the guys that right in the beginning of the movie who were talking down to her about the mud and the tires is not gonna be talked down to by a fancy vehicle expert from the FBI or the judge or the District Attorney. She’s just gonna hold her ground, say what he’s gotta say and make sure that everybody believes her, and I think that was just incredible to watch.

0:34:22.6 Clark Neily: Yeah, the other thing I would say too is, what’s very interesting is Vinnie, the character of Vinnie… You can tell he’s a kind of person that tries to wing it on the basis of what he’s good at it, so he’s good at talking to people, he’s got a sense of skepticism about the world, but he’s not interested in reading the rule book even after the judge tells him, that’s how we practice law here, she’s the one that stays up while he’s out going hunting with a prosecutor and doing whatever he’s doing. She’s the one that stays up reading the rules of procedure, and he actually criticizes her at one point for doing that. So that I think is something that non-​lawyers might not pick up on so much, which is that a substantial amount of being effective in court is knowledge of the relevant rules and your ability to present your case within the framework that those rules require. And just knowing, for example, the fact that she knows a lot about cars, and is going to be able to provide testimony that the vehicle that the defendants were driving could not have left those skids marks that are depicted in the picture.

0:35:37.0 Clark Neily: You would be amazed how far away you are from getting that evidence into… Getting that testimony into evidence just because you know it to be true, and so there’s a tremendous amount that sort of goes on beneath the surface. Now, I wanna add one other thing, and this is interesting, I’ve struggled with this because I think her testimony in this movie is like maybe 15 minutes of the best cinema there is… It’s funny it’s thoughtful, it’s just wonderful, but keep in mind, he’s the one who put it together. Vinnie was the one who put it together, he’s sitting in the diner looking through the pictures that she’s taken, which God bless her for taking pictures, not just of him in the shower, but also of the scene at the store where the armed robbery and the homicide happened, he’s the one that’s looking and sees the skid marks and realizes okay, it couldn’t have gone down this way, and I need to get a witness on the stand… I struggle with this because as a litigator, you’re going to be handling cases that involve a tremendous array of knowledge. I had to go back and re-​learn high school trigonometry for a personal injury case.

0:36:47.7 Clark Neily: One time when I was a young lawyer, because it happened on a construction site and involved wind loading on a door that was forming a triangle with the structure, and if you’re doing a medical malpractice case, which I used to do, you have to go back and get up to speed on a bunch of chemistry and physiology, etcetera, etcetera. And it just so happens that Joe Pesci knows a lot about cars, but that’s not gonna be the case in most settings, so you’re gonna actually… I actually have to go… You’re gonna have to somehow figure out Who should I be talking to about some of the facts in this case? The famous Duke lacrosse case where the Duke lacrosse players were falsely accused of rape, that ended up being a DNA case, but that DA did everything that he could to try to hide the results, to misrepresent the results, and I watched a wonderful documentary on it. And one of the lawyers on the defense team got the leading textbook on DNA and stayed up all night pouring over this textbook, so he would know essentially how to take apart the report and cross-​examine the relevant people to show that the report in fact exonerated rather than incriminating their clients. That is really hard, and that’s the kind of thing, it’s one of many things that keeps you up at night as a lawyer. Realizing how little you actually know about all of the different science and facts and various bits of esoteric knowledge that may be the key to a given case.

0:38:14.8 Derek Debus: God, just building on that a little bit too, whenever I’m getting ready to take case to trial, I always have to sit down with my clients and talk about the expert witness fees. And they don’t understand why we need an expert witness, ’cause I can sit there and explain to them the issues with the science or the issues with how the tests were conducted, or different perspectives on how force gets applied and how the human brain reacts into that. And what they need to understand is that I cannot give evidence. I can only bring evidence out so we need to have this rich depth of knowledge to know what questions to ask from our witness, and more importantly to know what questions not to ask from the witness, but yeah. Expert witnesses are a God-​sent, but they’re only as helpful as… They’re only as good as you are in terms of your subject matter knowledge, subject matter expertise in a given subject area.

0:39:09.9 Clark Neily: So I’ll add a quick funny story if I could for further illustrate this. When I was litigating at the Institute for Justice, I had a case believe it or not involving interior designers, and each side had done a survey, a public survey to find out what people think when they hear the word interior designer. Do you think what a person does or do you think about what a person’s credentials probably are? And the two surveys basically came out opposite. And we couldn’t figure out how could this have happened, and so to condense sort of a longer story into a short one, My expert who was actually an economist that worked at IJ, named Dick carpenter, who’s wonderful. We poured over the state’s experts report and discovered or realized… And this was Dick, Dick realizes they had just essentially left out a column of data, there’s a whole column of data that should have gone in and didn’t. And he helped me to understand how that was, and then I stayed up almost all night making sure that I could essentially put these states expert in a position where we had to admit that this had happened and that it had therefore yielded an unreliable result.

0:40:15.1 Clark Neily: And during the deposition, the next day, as I walked him into this and essentially put him in a position where he had to admit that his report was defective because it didn’t include all the relevant data, the guy looks up at me one point, he says, “You must have been up late last night,” and I said,” I was. Now, let’s continue.” And it’s one of the most satisfying feelings you can ever have as a lawyers, just fantastic. And the whole thing just fell apart right there, and so did the state’s case. It was great.

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0:40:47.2 Landry Ayres: Is the fraternisation between Joe Pesci and the prosecutor, the district attorney, is that sort of like how he’s just like we should go hunting some time? And at first when he hands them all his files, you think it’s just him being nice before you know that obviously, that discovery is a part of this process, but he does treat him with a friendliness and a sort of casual degree in their relationship. Is that happening? I obviously understand in small communities, perhaps like this it’s much more common or more likely to happen, but is that type of community a friendly one or is it… It seems like it would be a little bit more adversarial.

0:41:37.0 Derek Debus: You know, that’s what a lot of people think. And that’s something I have to disabuse a lot of my clients of when they come in, ’cause they come in and they think, “Well, I need a bulldog, I need someone who’s gonna go in and punch the prosecutor right in the face every court hearing.” But honestly, you get more flies with honey. And in this business, at least in the criminal defense side, unfortunately, the state has most of the cards. So at least in my experience, we all generally try to have a very collegial relationship with each other. I’m pretty good friends, I was a prosecutor, I’ve still got a lot of friends in the offices, still hang out with them from time to time, it’s a job. And for the most part, we all kind of view ourselves as colleagues. So I don’t think that that part was necessarily inaccurate, particularly over smaller jurisdictions. Now, the civil side, I’ll say civil attorneys tend to be a lot less congeal with each other or cordial with each other but… And from the criminal side, I didn’t see anything too crazy about what was going on.

0:42:37.4 Clark Neily: I think it could run the gamut in my years as a litigator, I’ve had opposing counsels that I really liked a lot, and the feeling was mutual, great respect, and you knew you could trust them to sort of never pull a fast one or break a promise. But I had some lawyers at the other end of the spectrum, and there was sort of open hostility, and I didn’t think much of them, they didn’t think much of me, and we knew that it was gonna be a real clash. But I don’t aspire to that, I don’t think that’s something to… I don’t think that’s a sign of strength, the way unfortunately as Derek alluded to some clients probably do. And almost always, it’s more desirable to have a good working relationship with your opposing counsel. You’re perfectly capable of going in and striking really hard blows against the other side’s witnesses and even against their motions or other aspects of their case.

0:43:40.7 Clark Neily: I think Derek and I both have done martial arts, and what a lot of people don’t realize, unless you’ve been in like a… Played football or done a combative sport like that, it is entirely possible to be in a ring with somebody who’s literally trying to hit you so hard that you lose consciousness, and then when the bell rings and it’s over, you can go out and have a beer together and it doesn’t have to be personal. And so some lawyers really get that and some lawyers really don’t get that, but I don’t find anything unrealistic in the relationship they have. It’s not gonna happen every time by any stretch, but there’s nothing categorically unrealistic about a defense counsel and a prosecutor going out and socializing together, and frankly, you know what both of them will be doing? They would both be working every angle they could think of to try to get some insight into the other one’s case, they really would.

0:44:24.6 Clark Neily: And sometimes you can learn a lot about the other side’s case when they let them let their guard down, so it might even be good trial tactics. I think the one thing I’ll add is as Joe Pesci begins, the character Vinnie begins to really dismantle the prosecution’s case by cross-​examining witnesses and showing that their perceptions are unreliable, you can really see him just sort of he feels this palpable sense of joy. I think there’s even one where he kinda skips as he’s walking past the prosecutor’s table, I know there’s one scene where he says, “I’m done with this guy.”

0:45:13.2 Clark Neily: That is one of the greatest highs that you can imagine, and I’ve tried cases to juries, and when you realize that a case is really beginning to go your way because you have done an effective job and a fair job, a fair but effective job of dismantling your opponent’s case and showing that what they were presenting was not accurate and what you’re presenting is accurate. The rush of endorphins that you get as a lawyer is really difficult to describe, it’s like a… Probably a runner’s high squared. And one of the… I think one of the tragedies of the modern practice of law is that it is increasingly difficult for lawyers and especially young lawyers to get into court and try a case like this, as we discussed before, the vast majority of criminal prosecutions end in a guilty plea. Trials are very rare, both in the federal and the state system these days, comparatively speaking, and on the civil side, it’s even worse, it’s close to unheard of for civil cases to go to trial anymore, and that is one of…

0:46:25.7 Clark Neily: At least in my experience, I’ve been practicing law for more than 20 years, that is really one of the great joys of practicing law, is being a courtroom advocate. And I think it’s a tragedy that so few lawyers will get to experience that and that it is so rare for even so-​called trial lawyers to experience that anymore. And it really is the case that an open and adversarial proceeding is one of the greatest engines of truth discovery that has ever been invented, and I think it’s a real tragedy that we’ve largely discarded it. And so what you’re seeing in My Cousin Vinnie is in some sense the best that the system has to offer, and we’ve practically eliminated that. I think it really is a tragedy.

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0:47:11.7 Landry Ayres: Thanks for listening. As always, the best way to keep in touch with us and get more Pop and Locke content is to follow us on Twitter. You can find us at the handle @PopnLockePod, that’s Pop the letter N lock with an E, like the philosopher pod. Make sure to follow us on Apple Podcasts, Spotify, or wherever you listen. We look forward to unraveling your favourite show or movie next time.