Persuasion Matters

CBS' Bull, S4E1

Benny Returns and Gives “Bull” a Dose of Much-Needed Courtroom Realism

Characters in the Season 4 premiere of the CBS drama "Bull"Welcome back to “Bull,” everyone. Season 4 jumped off to a fast start, and so will I.

(Need a quick recap of the Season 3 finale? Click here.)

If you’ve read previous columns, I’ve repeatedly dissed the writers and producers for never handing Bull a loss. They must have been reading my articles, because the first few minutes of Season 4 start with a loser for Bull. One could say it’s because he chose the wrong jurors, but the reality is this: The attorney on the team just couldn’t make the sale. Even 1Ys know better than to give a seven-word closing argument. “I mean, what is there to say?” is probably not the best closing for a jury trial.

“What?!” you exclaim, “Benny gave a crummy closing?” Have no fear. Benny still has solid lawyering skills, but after he quit the team in last year’s season finale, Bull seems to have spent his entire summer unsuccessfully scrambling to find a replacement.

This week’s storyline involves a cocktail waitress charged with involuntary manslaughter for overserving a patron who then went home, killed his ex-wife and four friends, and then died in a suicide by cop. But this wasn’t any cocktail waitress. This was a cocktail waitress with a rich dad who could hire Bull.

Lucky her.

Sadly, Bull’s new litigator is no Benny. He actually takes pride in the fact he “hasn’t set foot in a courtroom in seven years.” He wants to cut a deal with the DA, but Bull’s conscience gets the better of him and he jettisons the deal-cutting lawyer. Unfortunately, this leaves his client without an actual lawyer. But just in the nick of time, right before Bull has to inform the court the defendant has no counsel of record, Benny strolls into the courtroom and saves the day.

Cut to trial prep: All the key players are sitting around the conference table – Benny, Bull, Marissa, Chunk and Taylor. Bull pitches his strategy, which to nobody’s surprise, is centered on emotion. Bull wants to create a narrative based on fairness and hopes it will make it hard for the jury to convict. Makes sense, but is it the most effective strategy?

For perhaps the first time ever, Benny pushes back. This was a condition to his decision to rejoin the team and Bull is clearly not comfortable with the change in dynamic. Benny’s trial strategy is different; it’s based on an actual legal defense: causation. Bull doesn’t like being one-upped by Benny, but the other team members back the causation strategy because they believe it has better legs than an argument based on “point of view.”

Let’s talk about trial strategy and the whole emotion versus law conundrum.

First, let me be crystal clear: jury consultants – or at least the ones worth their salt – always keep the legal elements in mind; and trial lawyers – the ones who find themselves in front of juries – know the importance of human emotion. But this is not a binary choice.

A successful trial strategy weaves together the evidence, the legal elements, and human emotion. John Quincy Adams is quoted as saying, “Whoever tells the best story, wins.” I’m a big believer in this strategy, but a strong word of caution is necessary: You can be the best storyteller in the world, but simply telling a good narrative is probably not going to get you past the real finish line. Sure, you might win the jury’s vote, but will it stand up on appeal?

The problem with the typical Bull script is more often than not their trial strategy focuses primarily on capitalizing on juror emotion and feeling, and less on the actual law. There’s always evidence presented, but in the real world, half of it would never see the light of day. So, Bull may win the battle, but he’d likely lose the war for legal reasons.

Putting all of your eggs in the emotion basket will not singlehandedly get you where you want to go. Is it a necessary basket? That’s a hard “yes” in my book, but it’s secondary to the facts and the law.

In this week’s episode, for the first time in well, maybe ever, Bull’s trial team wove together a strategy that included relevant witness testimony (which wasn’t a result of sneaky shenanigans or ridiculous sleuthing), an appropriate amount of realism (tapping into jurors’ common experiences and universal feelings), and perhaps the most shocking of all, an actual legal defense based on the law! I may have to give the writers a gold star this week.

‘One thing did not cause the other.’

Benny reminded the jury the prosecution was claiming she was the reason the shooter committed the crime. But for their brief encounter, the state asserted, he would never have pulled the trigger.

Then he casually walked jurors through other encounters the shooter had that day and applied the prosecution’s logic to these encounters, too. The shooter ate breakfast at a local diner that morning. Did the diner cause the crime because it served him bacon? The shooter filled his car up with gas. Did the gas station cause the crime because it provided the fuel for the vehicle he drove that night? “One thing did not cause the other,” he tells the jury.

He also had evidence of actions taken by the shooter months/weeks/days before the crime, which suggested this wasn’t a crime of circumstance, but rather one that had been in the works for a long time.

Unfortunately, there were no winners in this particular “emotion versus law” battle. The jury hung after 13 days, a fact the viewer learns by way of a ridiculous flashback 27 years in the future as his now-pregnant daughter is reminiscing about her dad. I don’t know what they were smoking in the “Bull” writer’s room when that idea was floated, but whoever pitched it should have been fired.

Ludicrous time jump notwithstanding, it was nice to see Bull’s emotion-based approach to trial strategy will now get some pushback from a newly emboldened Benny. I’m sure “Bull” will still have lots of bull in the script (see ludicrous time jump), but perhaps this season we’ll see a little less Hollywood and a little more realism.

Who am I kidding? It’s Hollywood!

 

This article was originally published by Texas Lawyer on September 26, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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