Trial and Error on film

By Robert L. Waring (February 1998)

Now on video, Trial and Error, an entertaining, although not first rate film, stars Michael Richards (Kramer on Seinfeld), Jeff Daniels, Rip Torn (a lawyer in Defending Your Life, which demonstrated that lawyers do have a role in the hereafter), and Charlize Theron (a lawyer's wife in The Devil's Advocate).   Richards, who excels at physical comedy, isn't convincing in more serious scenes.   Daniels, by contrast, never quite succeeds in the comedy scenes.  On a brighter note, the R&B soundtrack is excellent, as is the magnificent eastern Sierra scenery.

The basic premise is that a lawyer (Daniels) assigned to handle a criminal trial involving a con-man (Torn), is unable, due to the excesses of his bachelor party, to make a required court appearance.  His Best Man (Richards), an out-of-work actor, fills in for him, and is eventually forced to carry on the impersonation for the entire trial.

The film serves a number useful purposes for lawyers.  First, it offers inspiration to those frustrated lawyer-screenwriters who believe they can write a better script than some of the fare (such as this) produced in Hollywood.

Second, Trial and Error offers practical advice on why lawyers should not attempt to use their profession skills to defuse bar fights.  (The participants may hate lawyers more than they hate each other.)

Third, the film offers a stop-and-smell-the-roses message to those in law (or any profession) who have become so trapped by their success that they secretly long to escape the rat race.  In this case, a tattooed waitress (Theron) provides the roses.   Another idea along this theme is that if you feel your career or relationship is going down the toilet, visit a junkyard armed with a shotgun and blast old toilets to get some relief.

Fourth, the film is provocative in at least one respect.  An number of years ago, the writer George Plimpton attempted to prove that a novice (himself) could pull off a convincing performance as an NFL quarterback in a real game.  Trial and Error asks whether an actor can conduct a trial more effectively than a real lawyer.  The answer is a qualified yes.  Richards gets so into playing a lawyer that he watches Gerry Spence videos for inspiration  and even buys a fringed leather coat so that he can look like Spence.  In one of many scenes where Daniels is freaking out over Richards' courtroom antics, he screams, "I do not pose and preen, I do not put perjured testimony on the stand and I do not make a mockery of the American Justice System."  Richards' deadpans, "You have your style and I have mine."   This style includes a creative attempt at the "Twinkie" defense.

On a final note, the film is guilty of further encouraging a frequent theme in post-OJ legal films: the "noble" thing for defense counsel to do where he or she believes the client is guilty is to throw the case so that the defendant gets his due punishment.  In Trial and Error, this view is eventually manifested in the non-lawyer sensibilities of an actor pretending to be a lawyer (Richards), although the real lawyer also indicates that this is the correct thing to do numerous times in the story.  As I have stated in another commentary (The Devil's Advocate), asking defense counsel to replace the function of the jury is a very dangerous idea that will further weaken justice in our criminal justice system and encourage public backlash against the otherwise legitimate best efforts of many criminal defense lawyers.

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