Unlike law-related feature films, law-related documentary or nonfiction films have rarely been the subject of legal scholarship, nor have they been extensively used as teaching tools throughout the law school curriculum. The lack of interest in such films is explained by a number of popular misconceptions about documentaries, such as their “genre-lessness” or the lack of common threads running through the films that facilitate critical reception; the elusive nature of documentary truth; the films’ fixation on victimization and by necessity the exploitation of the films’ subjects; and the lack of practical payoff for law students and lawyers from critically studying documentaries and the process by which they are produced. This Article addresses those misconceptions. First, it identifies a body of nonfiction film work that might be characterized as “law-genre” documentaries in that they tell “real” or “true” stories as to which the law is the point of departure, a central organizing theme, or most importantly such an important consideration affecting the advancement of the chronicle or story that the subject matter might reasonably be characterized as “law as a lived experience.” Second, the Article argues that critical analysis of this body of work should not entail an elusive search for truth. Rather “reflexivity” is the key to assessing a documentary’s value or quality. A good documentary will present its subjects as deeply contextualized, socially connected, and individually complex beings who are reflexive or introspective about their own situation and the filming of it. The filmmaker will be reflexive or self-critical about the people and the circumstances she or he is filming, as well as reflexive about the process by which she or he has interpreted reality for the benefit of the audience. Finally, the audience should be provoked to be reflexive about its possible involvement in the lives of the subjects or the circumstances portrayed in the film. Third, with regard to many documentary films, the quality of the finished product and the reception they receive will depend on what happened during their making, particularly with regard to access to venues, permission to use copyrighted material, and the treatment of subjects. Because of these concerns, law and lawyers are also playing an increasingly important role in the creative process of documentary film production. Lawyers, then, are not just the subjects and the viewers of documentary films; they are inextricably engaged in their making. Finally, lawyers are now producing visual legal advocacy on behalf of clients. For example, lawyers are using the narrative styles of documentaries to generate arguments on film on behalf of death-row inmates seeking clemency and personal injury claimants seeking damages in arbitration and mediation proceedings. An enhanced ability to engage in visual legal advocacy is likely to provide the biggest payoff for scholars and students who seriously pursue the study of law-genre documentaries.
Austin, Regina, "The Next "New Wave": Law Genre Documentaries, Lawyering in Support of the Creative Process, and Visual Legal Advocacy" (2006). Faculty Scholarship at Penn Law. 93.