Denver Bar Association
November 2004
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When Your Expert Witness is a Screenwriter

by Ron Sandgrund

An Interview with Richard Walter

Professor Richard Walter

Editor’s Note: Professor Richard Walter is chairman of the graduate screenwriting program at the UCLA film school. Widely known as a sought-after script doctor, he is also the author of the earliest drafts of American Graffiti. He has seen his students’ screenplays made into such blockbuster movies as Jurassic Park, Terminator 3: Rise of the Machines, Spider-Man, Road to Perdition, Men in Black, Armageddon, The Mask, Mission Impossible, The Doors, Backdraft, RoboCop, and Stand and Deliver, to name just a few. His former students also write for television, including Sex and the City and The Simpsons. He often appears on Hardball with Chris Matthews and on Bill O’Reilly’s show to discuss contemporary First Amendment issues against the backdrop of our popular culture.

Professor Walter has testified as an expert witness in disputes involving, among other films, Signs, La Femme Nikita, Coming to America, Moulin Rouge, Shakespeare in Love, and the entire James Bond series. In this interview, Professor Walter discusses his perspective from the expert witness chair.

Q: What caused you become involved as an expert witness, knowing it would mean spending a lot of time with lawyers?

Walter: A world-class institution of higher learning such as UCLA could be called ‘Experts R Us.’ That is to say, my colleagues and I are frequently solicited by attorneys seeking experts in various disciplines. While, in my experience, lawyers generally live down to their reputation as workaholics by working too hard, they are otherwise intelligent, creative souls worth spending time with.

Q: What do you enjoy about the work?

Walter: Intellectual property issues go right to the heart of the nature of creative expression; these cases are inevitably fascinating. Sometimes the exhibits are a chore to examine but more often than that they are worthy. I also enjoy earning the generous fees that I require.

Q: Have you noticed any traits common among the best lawyers you have worked with, regardless of whether they hired you or are working for the other side?

Walter: The best lawyers see their role not so precisely as ‘winning’ but as achieving constructive, intelligent solutions to legitimate controversies.

Q: What sort of cross-examination strategies do you find to be the least successful in undermining your opinions?

Walter: Browbeating and intimidation always lose.

Q: Has the other side ever hired one of your colleagues as its expert witness and, if so, did that present any special issues for you?

Walter: I am frequently opposed by beloved friends and esteemed colleagues who are retained by the other side. Most of us handle the experience well; a few do not.

Q: Do the cases you are involved with often concern whether someone "stole" someone else’s idea?

Walter: Yes.

Q: Do you agree that all art is derived from the work of others? If not, why not?

Walter: No. Art is by nature a mysterious enterprise. To be sure, all art is based to some extent on an artist’s experience, and that experience inevitably includes the artist’s exposure to art created by other artists. This does not mean, however, that all art is derived from the work of others, and that there is no such thing as originality, nor artistic expression that is properly protected by copyright.

Q: Can you envision two movies made from an identical screenplay, yet the director’s and actors’ realization of the story in each differs so greatly that you could fairly conclude that there were material differences between the two that rendered them separate and unique expressions? If so, how could that be? If not, why not?

Walter: Movies based upon the same script cannot have what I would consider to be ‘material differences’ from the standpoint of copyright. Differing qualities and characteristics such as camera angles, lighting, and nuances of the actors’ reading of the dialogue are not themselves protectable. The question assigns too much weight to other artists and craftspeople such as the actors and director. These participants play important roles, to be sure, but from the perspective of intellectual property it’s always about the writing.

Q: Lawyers and judges are interested in the "truth." Rashomon, Memento and Capturing the Friedmans come to my mind as examples of the movie industry’s attempt to explore the elusive nature of the "truth." Do you agree with my short list of such movies, and what is your view on how well Hollywood captures "the truth."

Walter: That’s a good list. You could also add Shattered Glass. ‘Art’ is the first part of ‘artificial.’ Movies are reel, not real. As I do not go to a hardware store for a tuna fish sandwich; I do not go to the movie theater for ‘truth.’ If I do, I’ll get lousy ‘truth’ and a lousy movie. The ‘truth’ in film is not about the facts, not about the data, but about the emotions. The latter are completely real. All the rest is fake, fake, fake.

Q: Thank you for your time. I know this wasn’t the first interview you’ve ever given, but it is the first I’ve conducted of someone who wasn’t a potential witness in one of my cases. How did I do?

Walter: Excellent, counselor!

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