The news is the first rough draft of history.
The Post (Spielberg, 2017)
Deep learning is a committed approach to learning where learners learn for life and can apply what they leam to new situations and contexts. Deep learning involves discovering and constructing knowledge by negotiating meanings with peers and by making connections between existing and new knowledge. According to many scholarly studies reported in the literature, most higher education students approach learning in a surface way, soon forget what they leam, and cannot use it meaningfully outside the classroom. Popular culture enhances the deep learning process by helping students develop cognitive skills, competences, and practices that are essential for the professional practice of law and criminal justice and that are often neglected in traditional law school and criminal justice curricula. These include rapid cognition and other similar thought processes, metacognition, the interpretation and production of popular culture texts, the narration of stories, and effective communication with the press, among others.
I grew up watching films and TV shows and, yes, I continue binging on series and movies streaming online. I had a well-rounded childhood, but films and TV shows occupied a very special room in my heart. As a teenager, I was part of a film group. We made shorts and documentaries. I wrote scripts, edited, and even directed. I also acted as executive producer.
And I was involved in promoting and marketing our films. I wrote dozens, if not hundreds, of press releases. I talked to the press on many occasions. I participated in film festivals around the world and also organized a handfill of film festivals myself. Whereas I loved the film industry, I always knew I wanted to be a lawyer. I dreamed of litigating in a criminal court much like the lawyers I loved to watch on TV and the big screen. I wanted to go the extra mile to find out the real perpetrator of the crime to help my client. I knew it would be exciting to pull off a last minute trick to save an innocent defendant. I dreamed of building a reputation as a bold criminal lawyer.
My first experience in a law firm after I had finished law school was nothing like my dreams. The very first assignment, and my first disappointment with the legal education I had received, had to do with a contract. It was a large, general practice law firm with hundreds of lawyers, serving mainly corporate clients in virtually all branches of law; including criminal law; One of the senior partners asked me to come to his office. I had thought he would take me to the courtroom to shadow' him w'hile he cross-examined a police officer or he would ask me to help him prepare the opening statement of a multimillion dollar fraud case. He told me I had to read a draft of a contract written by the other party’s counsel and suggest changes to improve our client’s position. He gave me a file with a few' documents that did not explain much. That was it. Although I w'ould have preferred to be involved in a criminal case, since it w'as my first assignment I w'orked hard and enthusiastically. I looked for examples in other files. I checked some books. I looked at some model contracts. I suggested changes to the language of a few' clauses. I even proposed some new' provisions. I spotted some mistakes, such as references to inexistent appendices, grammar errors, and page numbers. Given the lack of support and the limited directions, I thought I had done a good job. At the end of the day, I gave my comments to the draft to the senior partner. He was busy and did not have time to look at it then. The following morning, he told me that he had forwarded the contract to the client and the other party’s law' firm for its execution. Later that same day, the senior partner summoned me to his office. The tone of his voice predicted trouble. He told me that I had forgotten to include a clause in the contract stating that the other party would have to assume all taxes. He added that this mistake had cost om client a lot of money. He admitted that it was partially his fault too, because he did not carefully check what I had done, as he had been very busy with other issues. I was very upset with myself. Apart from contracts—a required course—I had taken advanced courses in contracts, tax law, and business law at law school. I must admit that in all these courses I had seen that this was an expected clause. I had even taken an ethics course where I had read a case about a lawyer who had neglected to negotiate this clause. An essay involving this issue appeared in a final exam. I had aced all these courses. I blamed my education for making me leant in a way that I soon forgot and for not teaching me how to apply what I learned to a real context.
After that episode, the senior partner kept me in the sidelines and assigned me low-level work such as looking for precedents, proofreading memos, making photocopies, filing documents, and even typing things up. I knew my dreams of litigating a criminal case would have to wait.
One Friday evening a few weeks after this incident, everyone at the law firm seemed to be swamped with work. There were several initial public offerings going on at the same time, together with the negotiation of some major contracts, the merger of some giant international corporations, and the defense of a CEO charged with insider trading. It must have been around 8 p.m. when the same senior partner called me to his office. I feared he would give some bad news connected to the contract incident. But, to my surprise, he assigned me substantial work again. A major client had asked our firm to file an injunction against its competition for a comparative advertising campaign, which, according to the senior partner, seemed 100% legal. He asked me to see what I could come up with, but he insisted that the law was clear about the legality of an advertising campaign that surveyed consumers about preferences between two products. He said it would be OK if I concluded that we could not do anything. In that case, he would call the client on Monday and advise against filing the injunction.
I quickly reviewed the law applicable to comparative advertising. There was no doubt that comparing consumer preference in advertising was legal, provided that the company conducting the campaign had supporting evidence of its claims and that it duly acknowledged the ownership of its competition’s trademark. I had a look at the file which the senior partner had given me, which contained copies of the legal disclaimers shown at the end of the advertisement. There was evidence that the competition recognized our client’s trademark. Most important, the file clearly indicated the existence of evidence supporting the survey. Our client’s competition had conducted blind taste tests between the two products. At supermarkets, at shopping malls, and at the intersection of high-traffic streets, consumers were asked to taste both products without knowing which products they were tasking and to choose their preferred one. After that, the preferred product was revealed. In most cases, consumers expressed preference for our client’s competition’s product. These tests were filmed and shown in a series of short commercials on national television.
Later that evening, the senior partner called me and asked me if I agreed with his preliminary observation. I told him that I had just finished reading everything and that I had the same opinion as he did from reading the file, but I needed a few more hours to give him a definitive opinion. He said it was OK. He would come the following morning to prepare for an opening statement in a criminal case, and we could meet in his office to discuss this issue. But he insisted that there would not be much that we could do.
I had a hunch. I did not tell him I did because it would not sound professional. But I had watched some of the commercials on TV at home that week. So, I called our client and asked for a tape of the commercials, which I got almost immediately. I took the tape home, and after a very late dinner, I watched the commercials. My instinct told me that there was something fishy. I did not know what it was, but I felt there was something wrong. I knew that literally millions of viewers had watched the commercials on TV, including our client’s advertising agency, which according to the information on the file, had analyzed the commercials from an advertising perspective and had found no problems at all. I decided to play the tapes frame by frame. Low and behold, I realized that our client’s competition had used its own products for the blind taste tests and had not included our client’s product. So, in most cases, consumers were asked to taste the same product twice without ever tasting our client’s product. It was no wonder they would not choose our client’s product. I was elated. I had found out something that no one had seen before. I knew instantly that this would be a homerun in court. I wrote a short memo with my findings. Although it was very late and I was tired, I tossed and turned in bed without falling asleep. I was anxious to tell my senior partner what I had found out the following morning. I finally fell asleep at around 5 a.m. and woke up at 7 a.m. The first thing I did was to read my memo and watch the commercials again frame by frame. I feared that I had hallucinated this or that the findings were part of a dream. Relieved, I confirmed that what I had discovered about the commercials was real.
When I met the senior partner in his office that morning, he was surprised. He called our client. Their first reaction was that of disbelief. I had to show our client’s general counsel the tape frame by frame. He brought in top executives from the advertising agency, who confirmed my findings. On Monday, the senior partner and I filed an injunction against our client’s competition. We obtained the injunction and stopped the campaign. I was excited. I was the hero of the day. I soon became famous in my law firm, and every senior partner wanted to work with me. Our client was as happy as grateful. The CEO came to our office and gave me a gold watch as a present—a gesture that it is not very common in large law firms serving corporate clients.
However, our client’s competition launched a fierce press campaign. They contacted the most prominent journalists. They held press conferences. They issued press releases. They sent a very clear message to the general public and the judges. They had made a mistake in the editing of the TV commercials, but they assured that they had asked consumers to compare both products and not just theirs. I begged the senior partner to talk to the press and counterattack our client’s competition’s claims. But the senior partner, a very traditional, conservative, and even fearful person, was against dealing with the press. He repeated over and over that lawyers speak in court and not on television. Our client’s competition appealed the injunction. They argued the editors had made a mistake. The court of appeals sided with them and lifted the injunction.
I felt frustrated and hated the senior partner for his cowardliness, dearth of vision, and above all, for his lack of support. This episode, together with the contract incident, would have a profound impact on my professional career. I had decided to quit the practice of law as soon as I could and devote to teaching law. Although I had to continue practicing law for a few years until I had the money to go back to graduate school, I knew my days as a practicing attorney were numbered.
I wanted to learn how legal education needed to change and improve to better prepare graduates for all aspects of an increasingly complex professional practice.