Hints of Truth, but a Lot of Bull

It’s not every day that I’m asked to review a television show co-created, produced and written by my former boss, Dr. Phil McGraw. Bull, the not-so-new CBS drama features Dr. Jason Bull, a trial scientist and jury consultant who has all sorts of tricks up his sleeve. He dances around the rules of procedure and doesn’t seem to care about ethical guidelines. But hey, the show would be ridiculously dull if it weren’t a gross exaggeration of the world of jury consulting. So instead of “dull,” we have Bull.

Despite the blatantly unrealistic accoutrements – e.g. the swanky, tricked-out office technology, a diverse staff (prosecutors, FBI investigators, NSA hackers, neurolinguistics expert / sex therapist, and even an ex-NFL-player-turned-Vogue-fashion-stylist), and having wireless ops-like communications with his team while sitting at counsel table during trial – the show does have nuggets of realism.

This week’s episode, “A Girl Without Feelings,” centered around a young woman named Tally, a former patient of Dr. Bull’s who had been diagnosed as a child with antisocial personality disorder (in layman’s terms, a sociopath). She was on trial for violently murdering her brother with a pair of scissors, an event she has no memory of, perhaps due to her history of dissociative fugue states (a/k/a blackouts with amnesia). The challenge? Convincing a jury to accept Tally’s insanity defense and to create sympathy for someone who simply does not and cannot “feel” like regular people.

First nugget of truth:
A defense of “I didn’t do it” is (rarely) enough. Jurors want more.

Although Tally had a 5^thAmendment right not to testify, Bull knew that jurors would want to hear from her. And he’s right. This is by far the most challenging aspect of criminal law: the law says one thing, but jurors expect another. And finding jurors who have the self-discipline to not judge a defendant who chooses not to testify is a whole ‘nother challenge (and another article).

Jurors in any type of case need to hear evidence that gels with their views of the world and how things work, or how they think it should work. This is true in criminal matters, but also in breach of contract, negligence, and, yes, even patent disputes. Jurors need an alternative theory that they can wrap their arms around and hold on to during deliberations. Facts are more persuasive when they’re part of a powerful story, and Bull got that one right.

Second nugget of truth:
The need to create sympathy for the defendant.

Bull and his team go to great lengths to present testimony aimed at helping jurors identify with the defendant, Tally. This is smart strategy no matter who’s on trial, sociopath or not; however, it’s not nearly as easy as the trial team made it look (duh). Granted, the rules of procedure were generally tossed out the window, but Tally was able to accomplish something that would be almost insurmountable in the real world: through her own testimony, she turned her utter lack of sadness over her brother’s gruesome death into an opportunity to educate jurors about her world and create empathy for what she experiences. In a matter of mere seconds, Tally shifted the victimology from the deceased to herself. This is what every defendant should aspire to do. How one gets there depends on the case, but humanizing the defendant is an absolute must. And if the defendant is a corporate behemoth, it’s all the more important.

Third nugget of truth:
Sometimes, objections don’t matter.

There was a pivotal scene during the trial where Benny (ex-prosecutor-turned-in-house-trial-attorney for Bull) was questioning a key witness. Without giving away the details, suffice it to say that Benny takes the witness through a series of fairly mundane questions to set the stage. Then he goes in for the kill: “Isn’t it reasonable to suspect that any one of a number of people could have killed your friend Torin?”

The prosecutor has a fit, passionately objects and of course, the judge sustains. But guess what? It doesn’t matter. The jury heard the question, and whether instructed to disregard or not, they are already thinking about the reasonableness of that scenario. Sometimes, the answer simply doesn’t matter. The question does.

Biggest Bull Moment

Being television, there are lots of exaggerations and inaccuracies in Bull, but one of them made me laugh out loud.

But first: SPOILER ALERT. 

The trial team initially decides the only plausible defense is not guilty by reason of insanity, after all, the physical evidence seemed overwhelming, the defendant had zero recall, and she had a convenient history of blackouts. It was all they had – until the state’s expert handed them a gift by testifying that the blood stains all over Tally were most likely from “a moment of remorse” in trying to save the victim.

A-ha!!! Remorse! A feeling that, according to Bull, Tally is incapable of feeling. In typical TV-drama form, Bull convinces Benny (during a break) to change the plea mid-trial to not-guilty. Wait. What? In the real world, the jury would have been told as early as voir direthat Tally did, in fact, commit the murder but should not be held criminally responsible because of her mental illness, yet now – however many witnesses into the trial – they’re now being told she didn’t do it at all. Talk about inconsistent strategies. When on earth would this be feasible in real life?

But wait, it gets better.

Because this is sheer entertainment and Bull has a team of people who seem to find answers for anything and everything within hours, they just so happen to find the actual killer and put himon the stand.  More procedural shenanigans. More objections. A two-second closing argument and the jury renders a not-guilty verdict.

Too bad endings aren’t so neat (or quick) in real life.

This article was originally published by Texas Lawyer on November 6, 2018. Reprinted with permission. © 2018 ALM Media Properties, LLC. All rights reserved.