Giving them the old razzle dazzle

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“Chicago” — nominated for 13 Academy Awards and the odds-on favorite to win the Oscar for best picture this Sunday — provides a striking cinematic portrayal of a fictional attorney, Billy Flynn. Richard Gere plays Billy, the best criminal lawyer in 1920s Chicago, the silver-tongued prince of the courtroom who has never lost a case.

To be sure, the movies and TV have always given us lawyer role models, from Atticus Finch to Perry Mason, from Paul Biegler and Claude Dancer in “Anatomy of a Murder” to Frank Galvin and Ed Concannon in “The Verdict.” Indeed, how lawyers are portrayed in film often reflects wider societal views of the attorney’s role.

But Billy Flynn is no Atticus Finch. Specializing in getting guilty criminal defendants off scot-free, so as long as they can pay his $5,000 fee (this is the 1920s, remember!), Billy has a no-holds-barred approach to litigation. He manufactures evidence, uses false testimony, lies to witnesses and falsely accuses opposing counsel of misconduct; in other words, he does whatever it takes to win. And he doesn’t necessarily care all that much about the merits of the case: “I didn’t ask if she was guilty; I just asked if you had $5,000,” he says at one point.

Billy is all ego and smarm. He lives only for fame and money. In trial, and the pretrial press conferences, he is the master manipulator, the puppeteer par excellence, the slick showman, the consummate mouthpiece. He views the trial as just a circus, and the trial lawyer as the ringmaster. As he explains to his newest client, Roxie Hart:

Roxie, you got nothing to worry about.

It’s all a circus, kid. A three-ring circus.

That is the role of trial counsel to Billy — wowing the jury. As Billy lets slip out while carefully leading Roxie’s testimony, “Would you please tell the audience … er … the jury what happened next?”

Billy knows the real secret of being a trial lawyer — when the going gets tough, when the evidence isn’t going your way, when you really have no chance of getting the client off, just go into your dance, give ‘em the old “razzle dazzle.”

Give ‘em the old razzle dazzle

Razzle dazzle ‘em

Give ‘em an act with lots of flash in it

And the reaction will be passionate

Give ‘em the old hocus pocus

Bead and feather ‘em

How can they see with sequins in their eyes?

What if your hinges all are rusting?

What if, in fact, you’re just disgusting?

Razzle dazzle ‘em

And they’ll never catch wise

Sometimes even the trial judge gets carried away with the show, much to the chagrin of the prosecutor:

Billy Flynn: I object!

Judge: Sustained.

Prosecutor: Your Honor, I haven’t even asked a question yet!

But, as Billy points out, the old razzle dazzle is a time-honored tradition:

Give ‘em the old razzle dazzle

Razzle dazzle ‘em

Back in the days of old Methuselah

Everyone loves the big bamboozala

Give ‘em the old three ring circus

Stun and stagger ‘em

When you’re in trouble

Go into your dance

During his cross-examination of a particularly damaging witness, Billy adroitly tap-dances his way around some impossibly bad testimony. Billy’s “razzle-dazzle” style bamboozles both the jury and the press, and he gets guilty-as-sin murder defendants off the hook:

Though you are stiffer than a girder

They’ll let you get away with murder

Razzle dazzle ‘em

And you got a romance

Yet the cachet of the star trial lawyer, the way that new clients will seek him out and pay the big fees, is hard to resist. It’s all about winning, and winning is about money and attracting new clients:

Give ‘em the old razzle dazzle

Razzle dazzle ‘em

Give ‘em an act that’s unassailable

They’ll wait a year till you’re available

Razzle dazzle ‘em

Razzle dazzle ‘em

And they’ll make you a star

And the star can sometimes even come to believe his own press clippings: “I don’t mean to toot my own horn, but if Jesus Christ lived in Chicago today and he had five thousand dollars, let’s just say things would have turned out differently,” Billy Flynn brags.

Is Billy an overblown caricature? Perhaps. Yet we all know lawyers who are as enamored with themselves and their talents in the courtroom. It may all be a cinematic exaggeration, but there is a painful truth underlying the character of Billy Flynn. And there are other uncomfortable moments in the film, such as when all of Chicago is glued to the radio to hear the verdict in Roxie’s trial — eerily reminiscent of the televised O. J. Simpson verdict. Or how easily the press can be manipulated to portray the lawyer’s client in a good light. Or how Billy loses all interest in his client when a new, more exciting, retainer comes along.

To be sure, there are some problems with Billy’s approach to trial advocacy. He may always get the client off, but not without violating an ethical rule or two. The volumes of Northwestern Reporter are replete with disciplinary proceedings against Minnesota lawyers who have done exactly what Billy does, from engaging in conflicting multiple representation (Rule 1.7), to knowingly offering false and perjurious testimony and forged documents (Rules 3.3 – 3.4), to falsely accusing opposing counsel of misconduct (Rules 3.4 – 3.5), and so on.

But it’s not the obviously unethical conduct that is the most disconcerting part of Billy Flynn. Most lawyers will immediately recognize the folly of violating such ethical norms (or at least the likelihood of getting caught doing it, in a world where other lawyers and judges are under a mandatory duty to report any such lawyer misconduct).

No, the most troubling aspect of Billy’s character is the more subtle risks that all trial lawyers run: Deceiving themselves into thinking they are infallible; forgetting that it is the client’s case, not the lawyer’s; getting caught up in the win-at-all-costs mentality that seems to inflict all too many litigators recently.

It’s called losing focus, forgetting first principles about admirable advocacy. This is the stuff that legal malpractice claims and ethics complaints are made of. Lawyers don’t have to go to the lengths that Billy does to get into trouble.

Then there is the risk that the audience, . . . er . . . the jury, will realize that a lawyer is trying to manipulate them. The best trial lawyers all agree: juries can see through that stuff. To be sure, trial lawyers need a little razzle dazzle to bring the case to life, but they shouldn’t
ever cross that invisible line.

Finally, it is worth pointing out that there is some aspect of the razzle-dazzle approach to trial law that remains a respectable part of the trial lawyer’s skill set. Those of us who have been lucky enough to be trained how to practice by great trial lawyers know that a little tap dancing every now and then, a little flash, a little razzle dazzle, can be done in an effective yet honorable way.

Charles E. Lundberg practices in the area of legal malpractice, legal ethics and appeals with the Minneapolis trial law firm of Bassford, Lockhart, Truesdell, & Briggs, P.A. He is presently completing his final year as chair of the state’s Lawyers Professional Responsibility Board.