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Play it again, Sam: The
depiction of law practice in I AM SAM
by Lev Ginsburg
When I decided to watch I
Am Sam, I had no idea that the film included an attorney
character. Michelle Pfeiffer plays the film's pivotal attorney,
Rita, who represents Sam, played by Sean Penn, in a proceeding
to retain custody of Sam's seven- year-old daughter, Lucy. Within
the film's first minutes, I quickly realized that seeing the
film through to its end would require me to endure over two hours
of Pfeiffer's caricatured portrayal of the clichéd "bad
attorney." (1) Had I known in advance,
I'd have probably skipped the movie entirely.
 To
remark that Rita is yet another boringly predictable, frenetic,
educated professional would be one thing; both the Hollywood
renderings of such folks and the folks themselves are often amusing
to observe. In addition to rehashing those hackneyed banalities,
however, Rita presents audiences with yet another rendition of
the unethical, unprofessional, and downright rude litigator who'll
stop at nothing to win her case. We've seen all of this before.
There's nothing new in I
Am Sam. The script itself --which rather pithily combines
the structure of Kramer vs. Kramer with only the most
embarrassing histrionics of Rain Man, minus the charms
and wit of both -- is as familiar as the ubiquitous blond-haired,
blue-eyed über-child who's full of hyper-articulate insights
beyond her years.
Sam approaches Rita when he
learns that the Department of Child & Family Services ("DCFS")
is going to move to have Lucy taken from Sam and placed into
foster care. (Lucy is approaching Sam's "mental age,"
and the DCFS is concerned that Sam will soon be unable to properly
care for her.) Among Rita's ethical and professional lapses within
the first few moments of her screen time are the taking of several
phone calls during her initial consultation with Sam, and then
her declining Sam's representation request on the grounds that
Sam wouldn't be able to afford her rates before quoting those
rates to him.(2) In a fit of rage, Rita brings
the scene to a close by kicking a metal bowl full of candy directly
at her assistant, showering Sam and the assistant with jellybeans.
Additionally, Rita lies to
both her children and to her clients.(3) In
a desperate attempt to get Sam out of her office, Rita explicitly
claims that she is unfamiliar with the practice area involved
in Sam's case.(4)
Rita arrives late for her various
appointments event though she drives erratically and breaks several
traffic and parking laws.(5) One appointment
she never shows up for, however, is the one between Sam (now
officially her client) and the DCFS-selected expert therapist.
At this meeting -- during which the therapist intends to interview
Sam in order to provide an opinion to the court on the DCFS's
behalf with respect to Sam's fitness as a primary caregiver --
the therapist informs Sam, in rather traditional lawyerly terms,
that the usual doctor-patient privileges do not apply to this
session, and that talking to her will "waive" those
privileges. Sam is clearly depicted as having no idea what this
means. As he ponders the therapist's statement for a moment,
he decides that the therapist is asking him to wave at her so
their session can begin. He waves to her, and the session begins.
Sam proceeds to give up all sorts of damaging information about
his condition that the therapist eventually uses against him
in court.(6)
It is said that when dealing
with a developmentally disabled client, an attorney is to try
to maintain a normal attorney-client relationship as much as
possible.(7) Sam is clearly beyond the point
at which this relationship should have been established or maintained
without the assistance of someone who has been professionally
trained to deal with folks in his situation.(8)
Folks like Sam often require specific training and expertise
in order to properly and ethically determine and then present
their interests and abilities to a tribunal. To this end, attorneys
are expected to associate competent co-counsel to effectively
represent such a client when they're not used to representing
such clients.(9) Rita does nothing of the sort.(10)
Rita's own in-court conduct
evidences her unfamiliarity with the rules of evidence, and/or
her desire to influence the tribunal using improper objections
and irrelevant assertions. For example, Rita issues an objection
to the government's line of cross-examination based on the fact
that the government counsel lives with his mother-in-law. Whether
or not this is true is of little consequence. Rita is simply
trying to attack the credibility of her opposing counsel, which
is certainly not at issue in the case, by making a wholly unethical
and unseemly objection based on rather crudely-researched tidbits
relating to his personal life. This is followed shortly thereafter
by Rita's objection that Sam's condition has no bearing on "his
capacity to love." Unfortunately for Sam and Rita, whose
objection is quickly overruled, Sam's capacity to love is not
disputed; the issue before the court is Sam's physical and mental
fitness for parenting.
Finally, Rita's advocacy of
Sam becomes inappropriate advocacy of Lucy. For reasons that
should be clear, Sam's interests are potentially adverse to Lucy's.
In some scenes, Rita's advocating for what's in Sam's best interests
against the DCFS that's seeking to place Lucy in foster care.
In other scenes, Rita presents argument and evidence as to what's
in Lucy's best interests vis-à-vis Sam's interests, even
though Lucy is not Rita's client. To the extent that Rita's arguments
on Lucy's putative behalf are ineffective, Rita is unethically
damaging both Lucy and Sam's interests before the tribunal.(11) In one particularly memorable scene, Rita
sits quietly as Lucy unabashedly lies during sworn testimony
to the government counsel because Lucy's testimony is in Sam's
interests.
At this point, you might be
asking yourself, What's the point of demonstrating all the unethical
and unprofessional conduct of Pfeiffer's Rita character? So was
I. What was the point of creating this horribly unethical lawyer
character? There was no point. Rita never grows as a character,
she never reconsiders her approach to the practice of law, and
she's never reprimanded or censured in any way for her professional
lapses. Furthermore, the ending of I AM SAM is so ambiguous
that the audience has no idea as to who ultimately ends up with
custody of Lucy. As a result, audiences don't even get to make
an informed appraisal as to whether Rita's questionable means
at least achieved worthwhile ends.(12)
Moreover, the film could have
examined in detail what it's like for such a client to engage
our legal system and its various strengths and weaknesses. Instead,
Sam was depicted as facing a caricature of a legal system, a
sham system of almost farcical practitioners and conflicts appropriated
from earlier, and more attentively-crafted, law-themed movies
and television shows. Unfortunately, I fear that real-life Sams
aren't often able to obtain representation that's either as good
as or any better than that provided to Sam by Rita; perhaps this
is I Am Sam' s only enduring comment about our legal system.
(1) For
an exploration of what is takes to be a bad attorney, take a
look at Michael Asimow's Bad Lawyers in the Movies, 24 NOVA L.
REV. 2 (2000).
(2) Rita,
experienced as she seems to be, should probably have been able
to divine that Sam was seeking pro bono representation. At the
very least, she should have asked.
(3) The
subject matter of these misrepresentations, however, is often
the same: Rita invents excuses as to why she's running behind
schedule. Rita also instructs her assistant to lie on her behalf
to her therapist about why Rita's late for a therapy appointment.
Later in the film, Rita counsels Sam to "manipulate the
truth" during his under-oath, in-court testimony.
(4) However,
Rita is quite clearly engaged a lucrative and vibrant family
law practice that likely makes her very familiar with custody
disputes. In one scene in her ultra-hip office, for example,
Rita's consulting with a couple going through a divorce. Additionally,
Rita lies to Sam about losing the phone number of the attorney
to whom Rita had promised to refer Sam for help with his case
during an attempt to cover up any harm she may have caused to
Sam's case by her delay. Rita's eventual acceptance of the representation
is also conducted through a lie: in order to make herself look
good in front of skeptical colleagues, Rita laughably "reminds"
Sam that she had long ago accepted the pro bono representation
when in fact she was clearly shown as doing almost anything to
avoid working for Sam for free.
(5) Rita
so flagrantly disregards parking restrictions that her car is
shown being towed from a Westwood parking space visited by the
author. The space is reserved for handicapped parking.
(6) While
we're on the subject of privilege, perhaps Sam's unfamiliarity
with the various privileges stem from his counsel's unfamiliarity
with them. In one scene, Rita and Sam discuss the heart of Sam's
case while seated in a restaurant booth with a handful of Sam's
friends, all of whom exhibit varying degrees of mental disability.
Rita has thereby created a likely waiver of the privilege with
respect to that information.
(7) With
serious developmental disability such as that demonstrated by
Sam, Rita is probably ethically obligated to do more explaining
and assisting with respect to her representation of Sam in order
to comply with her ethical duty to keep her client informed.
MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 6-101(A)(3); MODEL
CODE OF PROFESSIONAL RESPONSIBILITY EC 7-8, 7-11, 7-12, 9-2;
MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14, 1.4; MODEL RULES
OF PROFESSIONAL CONDUCT Rule 1.4 cmt.
(8) For
those who haven't seen the film, the average moviegoer would
immediately realize that Sam needs more help than Rita can provide.
For example, he's virtually unable to pay a check in a cafeteria
line, and he cannot make a cup of coffee. Query Sam's ability
to understand and preserve the attorney-client privilege.
(9) MODEL
CODE OF PROFESSIONAL RESPONSIBILITY DR 6-101(A)(1); MODEL RULES
OF PROFESSIONAL CONDUCT Rule 1.1 cmt.
(10) Nor
does Rita put in the necessary time to become competent in her
representation of a mentally disabled client. MODEL CODE OF PROFESSIONAL
RESPONSIBILITY EC 6-3. In fact, Rita spends the entire film so
oblivious to that which might damage Sam's case that she permits
Sam's friends to attend court sessions and to comment on the
proceedings from the public seating area. Because Sam responds
to his friends with reply commentary, these exchanges are all
entered into the court transcript. (For purposes of providing
clarity to those who haven't seen the film, these comments and
their particular manner of delivery do not create the impression
that Sam is as fit for parenting as he and Rita might contend.)
In another moment indicating Rita's inability to tailor her advocacy
to reflect Sam's condition, Rita permits Sam to get up from behind
the counsel desk and run into the witness box, where he congratulates,
embraces, and caresses a witness who has just provided the court
with testimony helpful to Sam's case. In light of all of these
outbursts, it would probably be in Sam's best interests not be
present during any of the hearings because of what these sorts
of outbursts might communicate to the court about Sam's ability
to parent. Had Rita associated competent co-counsel or a court-approved
professional consultant trained in dealing with the mentally
disabled, she might have avoided these mistakes.
(11) Moreover,
to the extent that Rita has Lucy's best interests in mind during
her representation of Sam, is it ethical for Rita to disregard
the extensive evidence that Sam can very easily be duped by Lucy,
who's somehow able at all of seven years of age, to convince
Sam to do all sorts of things in violation of restrictive orders
placed on Sam's contact with Lucy by the tribunal?
(12) Your
guess is as good as any. Different friends of mine have suggested
that custody has been awarded to Sam, the foster mother (played
by Laura Dern), Rita herself, or a consortium consisting of some
or all of the above!
Posted April 5, 2002
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