Drew Marquardt

The original post for this episode can be found here.

John August: Hello and welcome. My name is John August.

Craig Mazin: Oh. Oh. My name is Craig Mazin.

John: And you’re listening to Episode 638 of Scriptnotes, a podcast about screenwriting and things that are interesting to screenwriters. Today on the show, you can’t handle the truth.

Craig: You can’t handle the truth!

John: We’ll be talking about lawyer scenes in movies and television with an actual criminal defense attorney, to separate the tropes from the truth. And in our Bonus Segment for Premium Members, Craig, beach vacations. Is there anything better or anything worse?

Craig: Everything is better. Literally everything.

John: I’m with you there. We’re going to have to find some other third party to argue for beach vacations.

Craig: I don’t know if we have the right guy for that, be honest with you.

John: We’ll see. First, Craig, we have some important follow-up here about a mistake that you made. The great Julia Turner herself wrote in to say:

Drew Marquardt: “As your self-appointed chief journalist correspondent, I am obligated to write in to tell you that Stephen Glass published his fabulism in The New Republic, not The New Yorker. That is how his articles made it through The New Yorker’s vaunted fact-checking process, which in fact, they didn’t.”

Craig: God, I feel terrible. Confession time. My entire life, I panic whenever I have to reference The New Republic, The New Yorker, or New York Magazine.

John: 100 percent.

Craig: New Yorker is special. New Republic is also quite special. New York Magazine is not that special. But I panic every time. And I blew it here. And I blew it in the dumbest way, because I made a mistake, a fact-checking mistake about a fact-checking story where a guy was making stuff up. So thank you, Julia, for correcting me. And my deepest apologies to the folks at New Yorker, who have always been very nice to me. And what did I do? I rewarded them by trying to hang Stephen Glass around their neck. I’m sorry about that. It was The New Republic. Craig is shamed.

John: Julia also sent through this link about this article that Hanna Rosin wrote. Hanna Rosin was a contemporary of Stephen Glass working at The New Republic. When the whole thing outbroke, she felt blindsided and betrayed. But in this follow-up article, she goes to Los Angeles to meet with him and see what he’s done with his life. And she finds him as he’s trying to get the California Bar to let him become a lawyer. And so it’s all the drama surrounding that. We’ll put a link in the show notes to this really good article by Hanna Rosin that also ties into our main theme here, which is what does it mean to be a lawyer and what does the law include.

Craig: We should probably get a lawyer to discuss that.

John: Yeah, we should. I have the perfect person for us.

Craig: Oh, do you?

John: Ken White is a defense attorney and a former federal prosecutor, whose expertise includes criminal justice, free speech rights, and the intricacies of the legal system. He’s got this knack for demystifying complex legal topics, which we can witness each week on his podcast, Serious Trouble, which you should definitely subscribe to. Craig, you and I and many people may already follow him on social media, because he’s @popehat, or read his blog posts at popehat.com.

Craig: And Ken and I have known each other I think before the existence of podcasts.

John: Wow.

Craig: It’s going on, what, 21 years or something like that now. Welcome, Ken White.

Ken White: Thank you very much, guys. I’m very happy to be here.

John: Ken, can you talk us through, what do you mostly do in your days? I see you on social media. You’re writing stuff. You’re doing your podcast. But what is your actual day job? Who are you representing?

Ken: I have a practice. It includes criminal defense, in both state and federal courts, and a lot of eclectic civil cases. I really love First Amendment stuff, but I take on all sorts of other civil cases. It’s everything from plaintiffs to defendants, all sorts of subject areas, a lot of stuff.

But to answer your question, what do I do, it’s mostly paperwork. The demystifying, there’s a whole lot of paperwork of various kinds, and then there’s supervising other people doing paperwork and editing their paperwork. Then there’s asking the client to give you paperwork and then saying, “No, that’s not right. Do it again.” Then there’s arguing about paperwork in front of the judge. It’s not a job for someone who really wants the outdoors. You can be a trial lawyer, but even trial lawyers spend a lot of time not actually in court doing exciting things.

Craig: I gotta be honest. You were mentioning just before we started that you’re about to go into a trial. I have lots of friends who are attorneys. Trials seem like these things that sometimes occasionally happen, but most of the time it’s like watching baseball. Every now and again, something happens, but it’s a lot of stuff in between. That is the athletic version of paperwork. Our understanding, in Hollywood at least, of how this all works, I don’t recall seeing a ton of paperwork scenes, John. Do you?

John: No. Actually, in Clueless, one of our favorite movies, there is a lot of paperwork. She comes in and she helps out with highlighting through the depositions or something.

Craig: Which is disturbing.

Ken: As a rule of thumb, for every minute that something dramatic is happening, you spent two hours, at least, preparing for it.

Craig: But at least those hours earn you money.

Ken: Sometimes, yes, that is true.

Craig: Sometimes.

John: Now, Ken, we’re gonna get into scenes in movies and television that involve lawyers and involve the law. But I’m curious, from your side, how much of your decision to become a lawyer was based on seeing it on screen? How much of your early impression of it and your interest in it came from seeing it on screen?

Ken: I think I started, I just wanted to be a lawyer because my dad was a lawyer and I admired him. He was a trust and estates lawyer for his whole career, and I definitely did not wind up doing that. That was my sense. Then yeah, stuff like LA Law, which was our era, and movies like To Kill A Mockingbird and things like that, those influenced it. But most of what I learned about what being a lawyer is actually like didn’t start happening until I had jobs in college or after law school.

John: One of the discussions that actually prompted having you come on this podcast was we were talking about Anatomy of a Fall this last year, which was such a great movie and is a French legal courtroom drama. Watching that movie as an American, you’re just going crazy, like, how are they allowed to do this? All these rules, things we’re expecting from the American system are just not happening there. As we get into lawyer scenes, I guess we should stress that we’re really talking about the realities of the U.S. legal system, because stuff’s gonna be different any place else. This is not necessarily gonna apply to our British listeners, our French listeners, our Australian listeners.

Craig: Noticeable lack of wigs. You don’t have to wear a wig, do you? It would be nice if you could, Ken.

Ken: No, I do not.

Craig: Dammit.

Ken: I’m going in bald these days. Here’s the thing though. Most dramatic presentations of the law are so far from reality that you might as well have them be commentary on law in France or Burkina Faso or whatever you want to choose, because the delta is not meaningful, because there’s such a huge difference between the way it really works and the way you make it work on screen.

Craig: It sounds like we’re nailing it over here in Hollywood is what Ken’s saying.

John: That’s what he’s saying is we’re being 100 percent accurate.

Ken: But I’m okay with that. The way I see it is, it’s an art form and it’s completely different than the medium it’s describing. It’s like if someone says, “How come the movie isn’t like my favorite book?” I understand, because it’s a different medium. The same thing is, if you’re gonna depict legal stuff, it’s a very different medium than a transcript, and so you’re gonna cut out all the horrible, soul-destroying parts.

John: But Ken, it must be somewhat frustrating when you encounter a new client who has an expectation of how this is all gonna go, having seen legal stuff from Hollywood all these years, and then you have to confront them with the reality of what it’s really gonna be like.

Ken: Yes, although often, the clients have a better sense by the time they get to me.

Craig: Because they’re recidivists or… ?

Ken: Sometimes, yeah. The people I represented when I was on the Indigent Defense Panel, people accused of drug crimes, violent crimes, immigration crimes in the federal system, who couldn’t afford a lawyer, they understood. They’d seen it before, and they didn’t have any illusions about it.

The way people tend to consume it based on what they’ve seen, it’s not so much they have these movie-style expectations about the way the case works. What you’ll find is privileged people, affluent people who went to college and grew up in a good neighborhood and have never been in the system before tend to experience the system as conspiratorial. They tend to think, “This criminal case they brought against me, someone must have it out for me. The DEA himself must have it out for me. There’s a conspiracy, because I cannot conceive of any other way that I would be treated like this,” whereas the guy I’m defending in his third bank robbery is, “Oh, this is exactly the way it works. I’m getting ground through the system again.”

It takes a while for people to realize that it’s not just that the courtroom isn’t exciting as it is on a 42-minute TV show, but that the process is a lot more Kafka-esque. And it’s hard to accept that this is the way they’re treating people all the time. In fact, they’re probably treating most people worse than you.

Craig: The lawyers that you run into, I’m guessing both working for the state or fellow defense attorneys, are probably nowhere near as interesting, flamboyant, explosive, tricky, articulate as the lawyers we’re seeing on television and movies, but perhaps are better served by their paperwork skills.

Ken: Let’s not leave attractive off that list.

Craig: Yes, of course.

Ken: Yeah, absolutely.

Craig: Just lots of Tom Cruises moving through the courtroom.

Ken: Exactly. Eight out of 10 criminal defense attorneys keep their court jacket in the trunk of their car and look like it. There are a lot of characters, actually. I find trial lawyers tend to be more character-ish than people who mostly do paperwork, just because you have to be, and the system guides you to be. There’s a lot more regular, “This is my job. Not every minute is on camera and funny or dramatic,” than you expect.

John: As you start talking through these tropes, I guess we’re gonna mostly focus on criminal stuff, but point out when there’s differences between how a criminal and civil case might work for these situations.

Let’s think about a classic start of any criminal trial or any criminal procedure is that this person has gotten arrested. One of the very first things we hear is the Miranda rights. “You have the right to remain silent.” Can you talk us through what the realities are of a person’s rights and what a person should be doing, what that person who is arrested should be doing versus what we see them doing in movies and television?

Craig: Can I make a prediction?

John: Please.

Craig: Ken is gonna say, “Don’t talk to the police.”

Ken: Yeah, but also don’t talk to the FBI.

Craig: Don’t talk to anyone, really.

Ken: A lot of my clients are white-collar accused people. They’re in a position where someone comes to the door, knocks, and says, “Hey, we’re from the FBI. We just have a few questions.” It’s not happening when they’re getting arrested. That’s true for most white-collar crime. You first find out there’s a problem when people start coming up to you and saying, “Hey,” the whole Columbo shtick, which is very accurate, by the way, the way Columbo would just be, “I just have this one question. You know this isn’t a big deal. Why would you be worried about me?” Totally law enforcement.

Law enforcement loves to put you at ease, make you think there’s nothing wrong here, you should just talk. But you shouldn’t. Whether you’re the guy who’s just got arrested a block away from a bank robbery that just happened or you’re the CFO of a publicly traded company whose stock has taken a nosedive and the SEC shows up at your door and they want to ask you a few questions just over coffee, both times you should shut up and talk to a lawyer, because you don’t know what’s going on. You don’t know your known. Unknowns are unknown unknowns. You probably don’t know the law. You may not even know if you’ve committed a crime. You probably don’t remember all the details of the things, because you haven’t immersed yourself in them yet. You have not looked through the emails or the documents or that type of thing.

Very little good can happen from you saying, “I need to talk to my lawyer.” The trick here is people think, “But if I do that, then they’re gonna arrest me,” or, “If I do that, they’re gonna be suspicious of me.” Possibly true, but the truth is, that reminds me of the argument, “I don’t want to wear a seat belt, because if I drive into a lake, I want to be able to get out easily.” It’s that kind of thinking. You’re protecting against something that’s a lot less of a risk when you’re saying, “I don’t want to make them mad.” The big risk is that they are incredibly good at getting you to say things that are against your best interest. Overwhelmingly, the best thing to do is to shut up.

Craig: That’s something that I didn’t know as a kid until a television show came along: NYPD Blue. That was the first time I had seen cops complain about people lawyering up. They basically were giving you a cheat code. All the cops ever complained about was the idea that somebody would lawyer up. “We gotta get in there and get this guy to talk before he lawyers up.” All I concluded – what else could I conclude from that show other than lawyer up?

Ken: That’s right. Actually, that’s an area where Hollywood and movies or TV gets remarkably close to the way it really is. All those depictions in all those shows of the box and you’ve got the perp in the box, you’re gonna sweat him, that is actually pretty realistic, all of the different techniques you see. There’s probably not quite as much violence anymore as you see portrayed. But pretending to be their friend, conning them into talking, all of that is absolutely classic. That’s what they do.

John: Now, at some point, Ken, you are brought in, and you are their lawyer. Can you talk us through that first meeting? Because I think that’s a very classic scene we’re also seeing is that first time the lawyer is talking with their client. The questions of, are you meeting them in prison or in jail? What is the boundaries of attorney-client privilege? How much can they feel free to say to you during those moments, even if they haven’t specifically hired you at that moment? That first meeting, what are the crucial things that we’re seeing or not seeing in scenes?

Ken: Sure. I’ve done all of those circumstances. I’ve met them the first time in jail. I’ve met them by the phone or Zoom, in person, all those things. If they are consulting me to consider hiring me, then our communications are privilege. I can’t reveal them. There are very few exceptions, one being if they’re currently controlling a bomb that’s about to go off, something on that level, they’re imminently about to commit a violent crime. Other than that, it’s completely privileged.

You obviously have to be very careful about your location. You don’t want to be talking in a crowded restaurant. You have to be careful who’s in the room with you, because that can disrupt the privilege if there are other people in the room with you. You don’t want to be someplace where you can be overheard.

But generally, my message is always, “Okay. I need you to tell me everything that happened. I need you to tell me the whole truth. We’re gonna start slow.” But that’s absolutely key. That’s controversial. You see this all the time in TV and movies. They say, “Don’t tell me what happened,” the implication being, “I want to be able to lie for you.”

There is a rule that as an attorney you can’t put anyone on the stand to lie. You cannot knowingly solicit perjury. If the client tells me, “I was in France,” I can’t put them on and instruct them to testify, “I was in Mexico,” something like that. But that problem is vanishingly small compared to the problem of not knowing all the true facts. Most cases settle. Of the ones that go to trial, few criminal cases have defendants testify. I would say less than 20 percent. To be deliberately telling your client not to fully inform you of the full facts because of this tiny chance that someday you may want them to testify at trial and say something different is a complete misreading of the situation.

Craig: You’re gonna want your client to say, “Yeah, I absolutely murdered my wife.” You kind of need to know that.

Ken: Yeah, I do.

Craig: The other question I have in regards to this first meeting – it’s very typical in television and movies, if the defense attorney is either the hero or the villain, when they show up they have this attitude. They always have this attitude when they walk in, like, “Okay, stupid cops. Beat it. I’m here.” When you show up in jail, at the police station, wherever you may be, if you are interrupting that process, how do you deal with the police, knowing that they’re looking at you with either suspicion or frustration?

Ken: My favorite iteration of that is probably from Fish Called Wanda. But generally, when you meet with a client, you get put in a separate room. You get put someplace where you can consult in private. Generally, you can rely that those are not being recorded in there, although some types of crime, some types of things, I would not have the full conversation there.

There’s rarely that cinematic, the cops are glaring at you. Usually, you’re not dealing with the cops who investigated and arrested. You’re dealing with sheriff’s deputies who are working in the jail or something like that. That type of thing doesn’t often happen. The time when it sometimes happens is when you get a call and your client’s business is being searched by the FBI and they’re sitting out on the curb. Then you roll up and the agents are all around. Then it can be a little awkward. But it’s the job.

John: The other scene I can picture is this guy comes home, his wife is murdered on the floor, he calls his lawyer first and then calls the police. The lawyer’s there at the actual crime scene when the crime is first being investigated. Is that a thing that actually really happens, where someone would call the attorney before calling the police?

Ken: In a manner of speaking. I haven’t encountered that in a murder scenario. But all the time in white-collar cases you encounter, “Are we gonna go to the cops with this? Are we gonna self-disclose that we’ve just discovered that our COO has been cheating customers?” or something like that. That is a very common strategic question faced by attorneys: do you self-report and hope to get out the best?

I value clients who call me and let me know something is going badly at the first available opportunity. Unfortunately, all these good decisions I’m suggesting that people make are not the norm, even for really smart people. I had a client in here the other day who said, “They asked to talk to me, but I said I need to talk with my attorney. And they say, ‘Are you sure? We just want to clear some of the things up.’ I said, ‘Yes, I’m sure, but I’ll have my attorney talk to you.'” I said to him, “Would if offend you if I said I want to kiss you right on the lips?” because that is so rare and it just warms my heart. When clients do that, I’m thrilled. Too often, part of what you get when you get the case, in criminal cases or civil cases, is that the client has already run their mouth or tried to fix things or tried to make things better.

Craig: Now you’re in trouble.

Ken: And it’s made your job harder.

John: Another thing we see at this stage is sometimes a lawyer taking a case that’s outside of their area of expertise. You have known thing that you’re really good at, but if a difficult real estate deal came or if somebody who was normally a corporate attorney but they’re accepting a murder trial.

Craig: Let’s say you’re a guy from Brooklyn who happens to be in the South and your nephew gets pinched for murder.

John: For example.

Craig: What do you do then?

John: Are there rules about what kinds of attorneys can’t even do what kinds of jobs, or basically, if you pass the Bar, you can do that kind of case?

Ken: For the most part, yes. There are a few specialties where you have to be specially licensed, but generally, you can blunder in and screw up anybody’s life in any field of law. I am very careful about not taking on areas of law that I don’t know. I will tell clients, “If you want to do that, you’re gonna have to pay me to learn the law in this area. I don’t think you want to do that,” because I’ve seen how people going and not knowing what they’re doing can be dramatically bad. Having experience both in federal and state court, for instance, I’ve seen how competent, experienced state criminal defense attorneys wander into federal court and it’s a completely different world and they don’t know what they’re doing. They can just cause complete havoc, very bad for their client.

I had a client not that long ago who was in some skirmish with a neighbor. They got something from the city attorney’s office calling for them to come in for an office meeting to talk about it. They went to the real estate lawyer, who thought he was smart and says, “Ignore it. You would never talk to them.” Real estate lawyer doesn’t know that an office meeting is a city attorney thing where they basically mean, come in, we’re gonna have you shake hands, and we’re gonna send you off and dismiss it. And so instead, he got charged, because he didn’t go to the office meeting.

You gotta know what you’re doing. You have an ethical obligation to be reasonably competent at the area where you’re practicing. Criminal is one of the areas where you can make things much worse very quickly. I’m very much against people blundering where they do not belong.

John: No My Cousin Vinny for Ken. He’s ruining movies.

Craig: It sounds like, but also, he’s foreclosing the possibility of a great television show. Hear me out. Do you remember those wonderful shows where itinerant heroes would just wander peripatetically from place to place?

Ken: B.J. and the Bear. Kung Fu.

Craig: Highway to Heaven. Kung Fu. There’s tons. They would roam the earth like dinosaurs, Drew.

John: Reacher does the same thing today.

Craig: Actually, Reacher does, although it’s a season.

John: A little more limited.

Craig: It’s not week to week. Highway to Heaven, he would literally be like, “I’m done.” The Incredible Hulk.

John: Totally.

Craig: My idea is that kind of show but with a bumbling lawyer. Every week he wanders into a new town, encounters a new case that he’s completely unqualified for.

John: I love it.

Craig: Blows it completely and then is like, “Meh, did it again,” and just moves on. Ken, any chance that that would-

Ken: I could see it work as a farce. I love My Cousin Vinny. It’s a great legal movie, because it’s entertaining. It gets some things surprisingly right. Some of the expert cross-examination stuff they show law students. Was it a good idea for this dude who had never done a trial before to do a criminal trial? It was absolutely not a good idea.

Craig: Wow, except hold on a second, because his beautiful girlfriend understood about Positraction, so that part worked.

Ken: The other thing is you’re not gonna have Marisa Tomei with you when you’re looking to step in [crosstalk 00:23:11].

Craig: You probably won’t have Marisa Tomei. I guess that’s true.

John: Ken, you brought up ethical issues. Can we talk about conflict of interest? Because you taking on a certain client, you have to disclose your conflicts of interest there. What might those conflicts be?

Ken: A few of them are you can’t represent people in the same case, where their interests conflict, unless you have a knowing, intelligent written waiver from them. Typically, you’re not allowed to represent two defendants in the same trial, because they may want to point the finger at each other. It’s very rare for you to be able to do that. In civil cases, it’s much more common to represent multiple defendants in the same case. But you always have to get an elaborate waiver from them, saying, “I understand all these risks and downsides.”

There can be problems where someone wants me to sue a former client, which I won’t do. Generally, you can’t represent one client against another current or former client if you might have gotten relevant secret information from that former client. There are all sorts of rules like that. When you have a personal financial stake in what’s going on, you can’t do it. There are often ways to get waivers from clients. Sometimes there’s not. The judge gets to make the ultimate call about whether or not it’s right.

It’s something you really have to watch out for. When you have a harmonious group of people who want to hire you, and obviously they want to hire one lawyer and not pay for five lawyers for the five of them, things can go south very quickly when they stop being harmonious. When that group gets angry at each other, then all of a sudden you’re hoping that you did the conflict waivers right.

Craig: The collection of dingdongs around Donald Trump constantly backbiting at each other. What a wonderful clown party that is to watch. But the other conflict of interest that we tend to see in movies and television are lawyers sleeping with each other.

John: I was gonna say, is it a conflict of interest if you fell in love with your client?

Craig: Or a client. Oh, god.

Ken: First of all, ew. Second of all-

Craig: That’s just based on your client [crosstalk 00:25:18].

John: Absolutely. You don’t have Sharon Stone as your client?

Ken: Believe me. You could have the most attractive client in the world and spend an hour talking to them and you may not want to sleep with anyone ever again. Most State Bars have rules about carrying on romantic relationships with clients. It’s sometimes not classified as a conflict-of-interest issue, although it could be. But it’s generally, in most states now, considered unethical and improper, because it clouds your judgment. They can’t make the right decisions about whether or not to get a new lawyer. Their judgment is clouded. But of course, it’s a trope in fiction forever, and that’s because it does happen and you see it. And it quite often winds up very badly.

John: I want to circle back to this idea of representing multiple parties, because I think to Succession, and as the Roy family starts suing each other, one of the things that comes up again and again is, are you going to join this bigger group or have your own lawyer? The smart people seem to have their own lawyer.

Ken: Yeah, particularly if you’re the weakest person in the group. If the corporation is in the face of a criminal investigation and they hire one lawyer to represent the CEO, the CFO, and Jimmy the janitor, Jimmy may take it in the shorts, because most of the attention is not gonna be given to him. He has a reason to worry that they’re not gonna be looking out for his best interests or alerting him when a real conflict of interest comes up.

There are always problems in situations where there are all sorts of conflicting loyalties and things like that. That’s why you have to very carefully analyze who the clients are, what their relationship is, to what extent are they going to want to point the finger at each other to defend themselves in this case, and how can we deal with that. That comes with very frank early conversations with clients, which is difficult, because – and this is something we should talk about – clients lie.

John: Let’s get into that, because that’s also a trope of these stories is that the lawyer, very deep into how it all goes, realizes there’s a whole separate thing that they’ve not been told about.

Craig: Richard Gere shows up and he’s like, “What about the book and the videotape and all that?”

John: Or Edward Norton is actually a psychopath.

Craig: Edward Norton, he didn’t do anything wrong, and then he did.

John: Yeah, and then he did.

Craig: Then he didn’t, but then he did. Then he didn’t, he did. But you catch your client in a lie. What is that? Is that a confrontation? Does it get sparky?

Ken: It can. It depends on the nature of the lie. The thing is, clients lie, not because clients are bad or because these are evil people involved in crime and civil disputes. Clients lie because people lie. People particularly lie when they’re scared and under stress and upset. The people I meet are scared and under stress and upset. They’re often embarrassed and humiliated by what’s happened. They’re trying to figure out what’s going on. They’re trying to wrap their mind around it. It takes a while for them to get a comfort level with you so they’ll come completely clean.

Think about it. How many people do we all really be completely transparent and nakedly open with about things? Probably a lot of the time, not even our spouses or best friends or confessors or whoever. It’s not human nature. It can take a lot of work to get the point where the client is comfortable doing that. Some of them never get all the way comfortable. Some of them can’t admit out loud they’ve done something. Sometimes they lie, and it causes me problems.

I’ve had clients lie up and down after I’ve given them the whole speech for hours, and it’s had bad impact on the case. I’ve had clients lie in the first meeting and I found out an hour after I left. And I fired them, just because I didn’t want to deal with it. Every attorney knows this. I represent humans in bad positions. People like that take a while to get around to being able to tell me the truth.

John: Circling back to the article from The New Republic that Julia Turner sent through, one of the things interesting is Stephen Glass is working as a paralegal, and one of his jobs was, as new clients came in, he was the person who first talked them through this is how it’s all gonna go. He fully disclosed, “I was fired for doing this terrible thing where I made up all this stuff and I lied.” He spends a lot of time explaining how he lied and how it was a bad thing, and in the belief it actually got the clients to be more open and transparent about what stuff was actually happening. That’s also his point of view on the whole thing, so he may be doing some fabulism right there.

Craig: Possibly.

John: But your ideal client would just sit down with you from the first meeting and say, “Here is everything. I am holding nothing back,” correct?

Ken: My idea is that anything that’s remotely complicated, that it’s gonna take a lot of meetings. I’m gonna set the table with the first meeting by explaining how important this is and going through some stuff. Then we’re gonna go through it in more detail. I’m gonna take the measure of the client. This is something you learn over the course of this career over decades. Take a sense of them, how long it’s gonna take to romance the truth out of them. Sometimes that gets right; sometimes that gets wrong.

The things you see in movies and TV, it’s very classic, it’s almost a cliché, I think, where the defendant has told them some of it, but then there’s one aspect they haven’t told them. They say, “I was embarrassed. I thought you wouldn’t believe me.” That’s very real. That happens frequently, where they’ve told me 80 percent of it but not the other 20 percent or something like that. That’s again just human nature.

John: In these initial setup things, and before we get to any trial or any sort of settlement, talk through some possible escape hatches. Spousal privilege, like the idea that you cannot be forced to testify against your spouse, is that a real thing? What are the edges of that? Because you see this in movies and TV.

Ken: This is a great Bar Exam question. There are two spousal related privileges. One is a spousal communications privilege. That means I can prevent my wife from testifying about a confidential communication we had during the course of our marriage. The other is testimonial privilege. That’s my wife can’t be compelled to testify against me while we’re married, not that she would need to be.

Craig: She could choose it though.

Ken: Exactly. She could [crosstalk 00:31:58].

Craig: Certainly, your wife would.

Ken: Yeah. They would have to say, “No, you’ve testified enough, Ms. Harbers. That’s enough.”

Craig: “Please sit down.”

Ken: Those are real things. They actually do come up all the time. They come up in context like taking the deposition of a husband or wife and asking them about something that their spouse said to them. That can be under the privilege. Things like that. Those are real things. Those come up. Those are usually evidentiary issues that come up at trial or during the discovery process.

John: You bring up evidentiary issues. One of the things we also see in movies and TV is where the attorney or Matlock’s assistant goes out and does some digging around and finds out the truth and does some investigation. How much investigation, discovery, and evidence gathering is actually typical and allowed and commonplace in the kinds of cases that you’re taking?

Ken: My types of cases, quite a lot. Now, in criminal cases, you’re supposed to be getting discovery from the government. They’re supposed to be turning over stuff. But you will definitely do your own supplemental investigation, whether it’s having people interviewed or researching records or whatever it is, depending on the nature of the case.

I learned very early on how important that was. A very early case I had when I got out of the government was a young guy who had been arrested while doing a summer at a prestigious college. He gets arrested for having meth and a gun in a drawer in his bureau in the college dorm room. He says, “It’s not mine. Someone must’ve put it there.” I’m like, “Yeah, sure, kid.” I hire an investigator to investigate the roommate, because the parents have the money to do this. Come to find out the roommate just got out of jail for stealing things from other people at this prestigious college and blaming it on other people, trying to frame other people for the crimes.

Craig: Wait a second. Hold on.

Ken: I went and I used that information, because this guy who did that was the one who turned my client in to the police, said, “Look what I found in the drawer of the bureau.” I brought that to the DA. I said, “Your witness is probably gonna be taking offense, but I’m gonna make mincemeat out of him.” They wound up giving my client a deal, a diversion program, stay out of trouble for a year and no charges.

That’s an example of why you have to learn to investigate things, even if you’re dubious, because the thing about these cases and this system is you can get so worn down and so into a rut that you can stop seeing people as individuals, stop believing their stories, just see them as a statistic. I’ve seen this case a million times before. It always plays out like this. Lose your edge that way. You’ve gotta keep your edge. You’ve got to always make the inquiries and put in the work to do that job for your client.

John: Let’s talk about who’s doing that work. You said you hadana investigator. Is that a private investigator, or is that classically a person who’s licensed to do that, or is it someone else who’s working for the firm? Who does that?

Ken: It depends on the case and the type of law. Typically, criminal cases, we have private investigators we have relationships with. A lot of them are ex-journalists or ex-federal agents, things like that. They’re good at wheedling information out of people, that type of thing. There’s not a lot of gunplay with them, but there’s a lot of tracking people down and talking to them, getting them to talk. We have different investigators for different types. Sometimes they’re in-house; sometimes they’re not. It really depends on the occasion.

Civil is often very different, because civil discovery is a lot more active. You’re sending formal demands to the other side. You’re entitled to do things like demand they produce particular documents or answer questions or sit for a deposition. You have a lot more leeway of how you investigate in a civil case.

John: Let’s say that you’ve talked to the client. You see what the case is laid out before you. Before you would go to trial, there’s some discussion of reaching a settlement. Are you the person who reaches out with, “Hey, let’s sit down and talk this through.” When something comes to a settlement before trial, what’s tended to happen?

Ken: It very much depends on the type of case and how serious it is. Your run-of-the-mill misdemeanor or petty felony, probably at arraignment they’re gonna tell you the offer. If you show up on a DUI, they’re probably gonna tell you this is the standard offer for first-offense DUIs. They’ll tell you that at the first appearance. Other cases, either you approach the prosecutor, or the prosecutor approaches you, say, “Are you interested?” There’s the dance of pretending, “No. I’m taking this to trial, but just for the sake of argument, what are you offering?” It’s a lot more formal and complex in federal court. A federal plea agreement is just monstrosity, 20 pages long. It’s a lot more informal in state court.

But the bottom line is usually one side or the other suggests, “Can we talk about it?” That’s really just a matter of schedule management. If you’re the prosecutor and you have 20 cases set for trial, you want to figure out which one of them is gonna go, and so they’re gonna want to make inquiries. If you’re a defense lawyer, you know that if someone’s gonna plead, the earlier they plead and possibly cooperate with the government, the more credit they’re gonna get, the more lenient sentence they’re gonna get.

John: A thing we saw out of Georgia was the use of racketeering laws, and so where you’re rounding up a bunch of people and you’re putting them all together on trial as one big thing.

Craig: Ken loves RICO, by the way.

John: Yeah, loves it. I listen to your podcast, so I know RICO is one of your favorite things on earth.

Craig: I like when he says he did a RICO.

John: In those situations, there could be a real benefit to being the first person to turn on the rest of the group. As the attorney representing that individual person, you’re looking at everybody else around you, and it feels like there’s a prisoner’s dilemma aspect to that as well.

Ken: Sure, there is. It’s not just RICO or really complicated cases. Any multi-defendant case or any case that’s connected to a larger investigation, if you can say, “My guy’s gonna come in and tell you everything,” and you’re the first in the door, then you’re gonna get the very best deal. In state court, that means allowed to plead to the most lenient thing with the most lenient recommendation. In federal court, it means allowed to plead to a lesser set of charges with a better sentencing recommendation in a more complex way.

The thing is that, yeah, it’s always a prisoner’s dilemma. You know that everyone in this situation is trying to find the least terrible way out of it. You always decide who’s gonna jump. A lot of the time, cases like the one we see in Georgia with Donald Trump and in similar cases, you have what’s called joint defense agreements. Those are agreements among the lawyers for the defendants. What they agree is that, “I’m gonna share information about what I learned from my client about this case and this situation. You’re gonna share yours. And we all agree to keep it confidential among ourselves and not disclose it.” And if anyone starts to cooperate, then they have to leave the group.

The point of this is to preserve the attorney-client privilege. The idea is that normally the attorney-client privilege only applies to a confidential communication. But the idea is if you talk to a group of people that has equal obligation to keep it secret, then you haven’t taken it outside the circle of privilege. That’s very common. In there, someone will say, “We’re leaving the group,” and then you know, okay, they’re about to cooperate, something like that.

But yeah, all the time. And usually in white-collar cases, it’s a lot more friendly, collegial. A lot more information is exchanged. Less of that in drug cases, violence cases, things like that. It’s a little more cutthroat. But yeah, that type of thing, that type of maneuvering is absolutely real.

John: Despite your best efforts, there’s no ability to reach a negotiated settlement. Talk us through what are the steps before we get to trial, what kind of things we would see before we get to trial.

Ken: Usually, when you’re getting ready for a trial, you have to put together all the exhibits that you’re gonna use. You have to have a witness list. Often, you’re required to propose jury instructions ahead of time. Those are crucial, because that’s where the judge tells the jury what the relevant law is. You’re gonna file a trial brief pointing out the legal issues that are gonna come up at trial.

Probably most crucially, you’re gonna be filing something called a motion in limine, meaning a limiting motion. That’s a motion saying, “Judge, this piece of evidence is illegal. You should keep it out. This piece of evidence is too inflammatory. You should keep it out. You should let me bring in this piece of evidence.” The motions in limine are incredibly important, because they can completely shape how the trial goes by what evidence is allowed to come in and what evidence isn’t allowed to come in. Before you’re picking that jury, we’ve alighted tons of work that’s very paperwork-intensive, very boring to show on film, but actually has a huge influence on how the case comes out.

John: Now let’s talk about – you’ve gone through all the evidentiary hearings. You’ve figured out what stuff is gonna get eliminated. Can you talk us through the jury selection process? What is that actually like? What do we see on film versus what the reality is?

Ken: It can go anywhere from super simple to super complicated. There are judges, particularly in simple cases, who do it lightning fast. The judges do all the questioning themselves, don’t let the lawyers talk to the jurors. I’ve known judges where you can have a jury picked in half a day. There are other cases, particularly cases that are gonna be super long or complicated, where you might have to do preliminary work. You might have to do something called qualify the jury. This RICO case against Trump and his pals in Georgia is such a one. Jurors are gonna get questionnaires saying, “Hey, would you be available for the next 9 to 12 months to sit in the uncomfortable chairs?”

Craig: Totally available. Wait, is it for RICO? Then yes.

Ken: Also, “Have you ever heard of Donald Trump? Do you have opinions about him?” That type of thing.

Craig: Who?

Ken: Bigger, more complicated cases, there will be screening of the jurors. Then there’s disputes over who gets to ask questions of the jurors. Some judges want to do it all themselves, because when we lawyers do it, then it’s called voir dire. We’re really doing two things. One is we are questioning the juror to find out whether we think they’re a good juror or not, but another is we’re developing a rapport with them and showing them themes of our case, like, “Ma’am, would you agree that if someone is standing there and a guy runs up with a knife that you might think he’s danger and might have to defend himself?” That type of thing. You’re trotting out your themes. You’re starting to get them thinking about who the people in the cases are. You’re making yourself hopefully entertaining or at least palatable to the jury.

Then you just go through, and different courtrooms have different ways of doing it, but generally there are jurors that you ask the judge to get rid of for cause, meaning that the judge strikes them because there’s some legal cause they shouldn’t be a juror, like they really can’t speak English well or they said that, “My dad’s a cop. I couldn’t be fair,” something like that.

Then you generally have what are called peremptory challenges, which are challenges that you get to use in your discretion to knock people out. You’re not allowed to use them based on race or gender or prohibited characteristics like that, notwithstanding that of course it happens all the time, particularly from the government. You’re using your sensibility. Who’s gonna be a good juror for me, who’s not. If you’re a prosecutor or if you’re the defendant in a case where the plaintiff’s asking for a lot of money, you want a solid citizen, someone who doesn’t believe in handing out money, someone who works for their money, someone who’s respectable, somewhat conservative, that type of thing. If you’re the defendant in the criminal case or the plaintiff in the case, it’s the other way around. You’re looking for people.

It’s totally an art and not a science. There are all sorts of shows about how it’s a science and you can attach electrodes to them and stuff like that and do it scientifically. My wife watches some of those, and I’m not allowed to be in the same room, because it agitates me almost as much as NCIS. I’m not allowed to be in the same room because of the comments I make.

John: Because what you’re seeing is that it does not reflect reality at all in terms of the ability to micro-slice who these people are?

Ken: No. There are people who make tons of money doing it, but I am super skeptical of that. I think it’s dousing, basically. I think it’s [unintelligible 00:44:56].

Craig: There was an entire movie about – was it Rainmaker or something like that? It was the Coppola movie where it was an expert to figure out exactly who should be on the jury using their mind powers. Basically, you’re just getting people that said that they would be available for nine months. There are certain things we can all conclude.

John: Maybe a speed round here. I want to talk a little bit about courtroom etiquette, because there’s things we see a lot in movies and television.

Craig: I object.

John: Talk to us about “I object.” Talk to us about objections and talking over objections. What does object mean and what are the edges of the reality of objection?

Ken: There’s a sliding scale of the formality of objections. The low end is a local, state court, and the high end is federal court. I always do it as if I’m in federal court, because then I can’t screw up. To do it properly, you stand up, you say, “Objection,” and then briefly the basis, “Hearsay.” The judge rules. What you’re not supposed to do is say it from a seated position. You’re not supposed to go off on a speech.

Craig: Objection.

Ken: “Objection. He knows he can’t do that. Since the beginning of time, the laws… ” That’s a speaking objection. You’re supposed to do it briefly. It’s a rule often broken. You’re not supposed to make a lot of bogus objections just to throw somebody off. Judges will eventually call you on that, and the jury will see it.

Craig: Has a judge ever said to you, “I’ll allow it, but watch yourself, counselor.” That seems to be in literally every – judges are constantly allowing objections but saying, “But I’ve got my eye on you.” Is that a thing?

Ken: If they were gonna say something like that, it would probably be at a sidebar, outside the hearing of the jury. That’s something that does happen. But no, they don’t put it like that in front of the jury. They might say, “I’ll let you ask a couple of questions, but get to the point quickly.” Something like that.

Craig: “Where are you going with this?”

John: Something that frustrates Craig and I – is begging the question actually a legitimate objection? If someone says, “Objection; begging the question.”

Ken: It is not a legal objection. I think actually-

Craig: It’s a mistake of thought.

Ken: … “states facts not in evidence” might be the right… Let’s face it; 90 percent of people use “begging the question” wrong anyway.

Craig: 90 percent is a very low estimate.

Ken: I discovered, to my dismay, having been married for nearly 30 years now, that being able to use “begging the question” correctly drives literary people wild. If I had known this in my early 20s, it would’ve been a completely different social scene for me.

Craig: Absolutely. No question. It’s a very narrow group of people, very curious group of people. Peter Sagal over there at NPR I think is the king of the movement.

John: Here’s a question for you. I see in movies and TV where the attorney seems to be addressing the jury rather than addressing whoever is on the stand. That’s a no-no, correct?

Ken: Unless it’s an opening or closing statement, correct, you’re not supposed to address the jury. And the judge will yell at you if you do that sort of thing.

Craig: What about that sly look over to the jury? Are you allowed to do that?

Ken: The thing is you want to be careful about that, because you might not be as irresistible to the jury as you think you are. One of my partners did a trial against the SEC. About midway through the trial, the jury sends out a note saying, “Can you ask the lawyer from the SEC to stop looking at us? He’s creeping us out.”

Craig: Oh, man.

Ken: Kind of sunk in his chair for the rest of the trial. It’s a bit of a blow to his ego. You want to be careful with that. If I’m cross-examining something and they’re being really argumentative or not answering the question, I will mug a little bit for the jury. I’ll roll my eyes and look in their direction, make eye contact, that type of thing. But you want to do it sparingly.

John: A thing we see in movies and TV is forceful gavel banging, where the judge is banging to get people to shut up or stuff. Is that a thing that you’ve encountered in your real life?

Ken: The only time I’ve seen gavels used is to open a session. I’ve had judges pound on the bench, one memorable occasion, to punctuate, “Mr. White, no, you may not.” But it’s pretty rare. Judges will yell, but banging on things, that type of theatrics, not so much anymore.

John: You brought up sidebar. Tell us, what conversations should be happening in sidebar that probably too often in our scenes are happening in front of the jury and everybody else?

Ken: Stuff that is not clear whether it’s admissible or not, and it might be prejudicial. Let’s say that we’re in a trial and the attorney questioning the witness starts getting into an issue of whether they’re having an affair, and it has nothing to do with the subject matter of the case. You would ask to speak at sidebar, because you don’t want to spell out to the jury, oh yeah, we don’t want you guys to know about the client having an affair, because you might treat them badly. Things like that where the judge may decide the jury shouldn’t hear about this are typically done at sidebar. All sidebar really is is a mechanism to keep things going, because it takes forever to troop the jury in and out of the jury box, and so you don’t want to send them all back into the room, because then you waste 15 minutes.

Craig: Maybe you should try directing a scene with 100 extras, my friend.

Ken: I’m sure. They’re probably better behaved than jurors.

Craig: Possibly.

Ken: It’s a way to do things. And it frustrates jurors, I think. Again, you don’t want to be constantly going up to sidebar, because the judge will start just telling you no. You gotta use it sparingly.

John: Great. We’re in trial. One of the cliches we see is people who decide to represent themselves at trial, which I’m sure for you is terrifying. What are the realities? If I got accused of a crime, I’m allowed to do that, right, even if I don’t have any background in law?

Ken: You are. Actually, it’s kind of tricky, because the judge has to give you sufficiently full explanation of why it’s really stupid to do that. If the judge doesn’t, you might have an appeal later. “I didn’t realize how stupid it was.” But the judge can’t prevent you from doing it, unless the judge finds basically that you don’t understand what you’re doing or not competent or something like that. It’s threading the needle for the judge.

It’s almost always horrific for the person. I’ve heard it described as a slow plea. This isn’t rocket science, what I do, but there’s a lot of things to it. You gotta know how to do it. You gotta have learned how to do it. If you’re just throwing it in, you don’t know the jargon, and there’s lots of jargon. You don’t know the rules. Just getting something into evidence, understanding what it means to lay a foundation for a piece of evidence so it can be admitted into evidence is something that you have to learn. It’s generally terrible. Usually, people wind up making things much worse.

John: Let’s say we’re in trial now. You’re gonna have witnesses up on the stand. You might have your own client, which for good reasons you probably won’t put your client on the stand, but you might. There are gonna be other witnesses that you’re gonna be putting up there. What kind of preparation can you do with a witness, are you allowed to do with a witness, if it’s your client, versus if it’s somebody else? What are the edges of what you’re allowed to do there in terms of getting them ready for it? There’s limits to how much you can coach them.

Ken: Let’s take non-clients first. You can absolutely talk to non-clients, unless they’re represented by a different attorney. You can ask them questions. You can say, “Do you mind if we go through the questions I’m gonna ask you?” You might even use the word “practice,” depending on how friendly they are. You can go through. You can ask them.

I’m careful. I don’t tell them, “It’d be better if you didn’t say that. It would be better if you said this instead.” I try to be more subtle and say, “Let me ask you about that answer. My impression was X, but you’re saying Y. Can you explain how I have it wrong?” They eventually get to maybe they were wrong. When they realize they were wrong, they clarify it. Whatever.

You can’t tell them what to say, and you absolutely can’t tell them to lie. But there’s a fair amount of leeway in going through their testimony in advance. And everyone does it. You can believe that federal prosecutors, before they put someone on the stand in Sam Bankman-Fried’s case, have gone through the questions with that person two to five times.

Craig: Debate prep.

Ken: Exactly, exactly. With a client, it’s different, because it’s protected by the attorney-client privilege. You cannot put the client on the stand to lie. You cannot knowingly elicit perjured testimony. That’s why that thing we discussed before, this trend where some lawyers say, “That’s why you’d never ask the client what happened and you’d tell them not to tell you yet, so it doesn’t prevent you from putting any story on they want,” to me, that’s absolutely lunatic, because you can’t defend them. You can’t know what the defense is. You can’t organize the case, know where the pitfalls are, unless you know what happened and what they know.

Craig: That does seem like a terrible strategy, like, “Look, the deal is we’re just gonna black box this thing. I’m gonna put you on the stand. You’re gonna say some stuff. That’ll probably work.” What do I need a lawyer for?

Ken: The thing is, this is a real thing that some lawyers do.

Craig: It’s crazy.

Ken: I watched a debate that turned into basically a screaming match between Alan Dershowitz and a different professor 30 years ago in the trial skills class I took, where they were arguing over this very thing, whether or not you stop the client from blurting out stuff, prevent them from locking themselves in. This is one of the few times you’re on Alan Dershowitz’s side. It’s lunacy not to get every piece of information you can get out of the client. The downside of not being able to get them to lie is comparatively extremely minor.

John: Let’s talk about witnesses. Prosecution and defense are both going to, I guess, provide a list of the witnesses they’re going to bring, so that both sides can prepare. But in movies and TV, we’re constantly seeing surprise witnesses, like, oh my god, this person we thought was dead is now coming to sit on the stand. What are the rules around witnesses who were not previously announced and scheduled?

Ken: Generally, that doesn’t happen. It’s rare for it to happen. It’s rare to find out that someone you didn’t know before – especially civil cases. In civil cases, you’ve had years of written discovery, where each side has been telling the other, “Name every person in the universe who has knowledge about this case and that you’ve decided to depose them or not,” and then you’ve made a witness list for trial and all those sort of things. Showing up and saying, “Oh, I’ve got a new guy,” usually is not gonna go over well. There’s gonna have to be some pretty convincing reason that you could not have found them before for the judge to let that happen. The more important they are, the more that is the case. The same with evidence. Unless you can really show you couldn’t have found it without due diligence earlier, then it’s gonna be very hard to get it in at trial.

Now, one way that can happen is if the other side reveals something for the first time. Then you’re allowed to rebut. The things about disclosing evidence generally don’t prevent you from keeping a few things back for your rebuttal case. If the other side has lied, as they often do, calling them out as liars. That’s tricky, and you might not get the opportunity to do it. But that is not common.

John: We’re talking about witnesses and evidence, but sometimes in films and TV, the lawyer themselves is demonstrating something to the jury. It could be as part of the closing argument or something else that happens. You mentioned To Kill A Mockingbird. Atticus Finch throws a glass at Tom to prove that he’s left-handed. Is that a thing that could actually happen in real life?

Craig: You’re gonna throw glasses in the courtroom?

Ken: It could happen, but the judge would blow their stack.

Craig: You’re saying even if you asked your client to put on some gloves in front of the jury and they didn’t fit-

Ken: That’s different. When Atticus Finch throws that cup, the client catching it in one hand is not testimonial, and the client’s not under oath. There’s an implicit, “Here’s how I do things,” but it’s not under oath and it’s not subject to cross-examination. That’s why it’s inappropriate. You could get a client who is on the stand to demonstrate something, with the judge’s permission there, and you can get them to say, “Yes, I’m lefthanded.” The judge probably is not gonna let you surprise them in the middle and throw something to them. Generally, anything that looks super cute or gimmicky probably is gonna get you yelled at by the judge.

John: But what is the actual impact of being yelled at by the judge? Is it causing a mistrial? Is he then giving jury instructions? What actually happens? What is the consequence?

Ken: I love this question, because it’s so much of what you learn over the course of the practice. You don’t want the judge to yell at you in front of the jury, because the jury’s gonna become convinced that you’re a bad person and you’re doing bad lawyer things, unless the judge is kind of an asshole and the jury is sympathetic with you.

Once upon a time I tried a case as a prosecutor where the judge was being super mean to the rookie defense lawyer and yelling at her and beating her up and generally being a bully, and the jury was looking sympathetic to her. I was thinking, okay, this could go badly. They could “not guilty” just out of sympathy. I was pretty young. I thought, “I have an idea. I’ll make the judge yell at me too.” This was a judge who was famous for yelling. I wandered into the well in the center of the courtroom. I spoke from a seated position. I called them “Judge” instead of “Your Honor.” Before long, he was yelling at both of us. Then the young public defender comes over and says to me, “I know what you’re doing,” and she steps in. Arguably, this is where it went off the rails a bit. But by the end of the day, the guy is bright purple. Usually, you don’t want to do that sort of thing.

Here’s the thing about judges yelling. If it’s not in front of the jury and if it’s not impacting actual rulings, you’ve gotta learn to deal with it. Judges yell. Judges are human. They deal with a lot of stress. Some of them have personalities. You want to learn more about the bite than the bark.

When I have young associates I supervise and a judge is getting mean or they’ll worry the judge is gonna get mean, I refer them in the end of Quentin Tarantino’s Inglourious Basterds, where Brad Pitt’s character shoots the Nazis’ aid, because he’s so mad that the Nazis-

Craig: You’ll be shot [crosstalk 00:59:24]. More like chewed out.

Ken: I’ve been chewed out before.

Craig: I’ve been chewed out before.

Ken: I’ve been chewed out before.

Craig: Chewed out before.

Ken: I’ve been yelled at by judges before, and I’ll be yelled at by judges again. You just deal with it.

John: A trial happens. We’ve gone through all – it could be months. It could be short. But ultimately, there’s a verdict. That verdict becomes the title of many movies. That is the moment of closure for this whole experience. What do you see in movies and TV that get it right and what are the things that frustrate you about how they get it wrong about verdicts?

Ken: They get it right in terms of dramatically. They make it a good close to the story. In real life, you have appeals. You’ve got post-trial motions. Most times if you win a big civil jury award, the other side is gonna file a motion-

Craig: To reduce it.

Ken: … for a new trial, a motion to reduce it, a motion for judgment notwithstanding, blah blah blah blah blah.

Craig: Paperwork.

Ken: Yeah, there’s always a lot of paperwork. We see this with all the stuff in the news right now that Trump is going through, where there are these big judgments and now he’s posting bond so that he can appeal them without being collected on. Sentencing can often be quite dramatic. Usually, that does not happen at the time of the verdict. It’s another time. That could be a good moment for drama.

It’s certainly stomach-wrenching when you’re the defense attorney standing next to your client who’s gonna find out how long they’re gonna be in jail, and when you worry about what your client’s about to say, because one dramatic part about sentencing is that they always ask the client – the client has a right to allocate, to say something. This is an absolutely terrifying, piss in your pants moment for the defense attorney, because clients, no matter what, if they’ve been convicted, they feel it’s unfair. And if they express that, it goes badly.

I’ve seen clients, even though they were exquisitely prepared, go from probably they were gonna do community service to jail, by talking about what a victim they are in all of this. Client in that moment can make it much worse. You really have to sit on them and make them not express how they’re feeling, because how they’re feeling is a victim.

John: But I want to be clear here. If they were to confess to the crime or admit guilt in that moment, that is evidence that can be used against them in any sort of future appeal. They obviously don’t want to say, “I did it, but just be merciful on me.”

Ken: It wouldn’t be used against them in an appeal. The problem is more if they demonstrate lack of contrition or if they make their image in the judge’s eyes worse. If you’ve pled guilty in particular, you don’t want to get up there and suggest you don’t think you really did anything wrong, because you pled guilty. Like we saw recently, Sam Bankman-Fried’s sentencing, the judge found him very not remorseful, because of his personality and the way he talks, and that probably contributed somewhat to the sentence.

John: Ken, as we wrap up here, are there any other aspects of law as portrayed on film and television that we haven’t talked, that you want to make sure that our listeners, who are mostly writers, are aware of?

Ken: Sure. Entertainment gets some things right. Trial lawyers, criminal lawyers, terrible divorce rates, lots of alcoholism, lots of drug abuse, lots of mental health problems, suicide rate that looks like a Latvian phone number, it’s all really terrible, and it’s a high-stress job. So when entertainment portrays people as suffering through it, that’s actually fairly accurate. They are. There are people out there who are just unflappable and seem to have no problems getting through it. I always suspect they’re just in their office sucking off some huge bong to be that mellow going through this, because-

Craig: Or killing cats.

Ken: … it’s incredibly stressful. That part gets right. Gets wrong” objections. Objections are a big part of most legal TV shows and some movies. I would be almost happier if you didn’t even try, unless you have a lawyer actually tell you what a real objection is or not, because that’s another thing that takes me way out is when it’s a completely stupid nonsense objection and the response is completely nonsense. I would say it would be worth it to ask a lawyer about the objections. You could still make them dramatic. You could make good ones. But some ones, every lawyer watching is gonna go, “Oh, Jesus Christ.” And then my wife says, “Shut up. Shut up.”

Craig: I’ve heard her say that.

John: Ken, thank you so much for all this legal stuff. Let’s get to our One Cool Things. Craig, you have a One Cool Thing here I see in the Workflowy.

Craig: Yeah, this is really in honor of you, Ken. There is a category of videos that every now and then, when I’m feeling a little sad, I turn on and watch, because, god, it makes me feel great. There’s hundreds of them compiled all for your enjoyment. Just google “sovereign citizens getting owned.” It is so much fun. Are you familiar with this, John?

John: I have no idea what this is.

Craig: Sovereign citizens are dipshits who subscribe to a theory that they aren’t really people under the law, that the United States as currently constituted is some sort of admiralty or maritime law thing, that they aren’t really a person but a corporation. It’s endless reams of nonsense. Inevitably, they will get pulled over for speeding or their tags are expired or they’re in court for a misdemeanor, a traffic problem, or something more serious, and they begin this nonsense talk. It goes so bad for them so quick every single time. There are people who sovereign citizened their way into like, this cop was gonna give you a $25 parking ticket and now you’re tazed and you’re going to jail. They’re so stupid. Apparently, the one thing about sovereign citizens is they don’t watch these videos, because if they did, they would stop it. Anyway, if you want to see people representing themselves pro se, being idiots, saying nonsense, having judges roll their eyes and go, “I literally don’t know what you’re talking about,” just go ahead and google “sovereign citizens getting owned.” It’s a joy.

Ken: I’ll echo that.

John: Excellent.

Ken: Sovereign citizens, you have to think of them as really, really committed legal furries. They’ve got this persona. They’ve got the costume. They’ve got the lingo. They’re super into it, no matter what consequence it has on living their lives.

Craig: They’re so into it. They think they know the law. You’re seeing somebody reading this, and you’re like, “What?” They like Latin.

John: Of course.

Craig: They love Latin, but they don’t know why. It’s wonderful.

John: It’s excellent stuff. My One Cool Thing is something that was very useful for me this past week. It’s called LibreOffice. It’s a multi-platform app you can find for Windows, for Mac, for everything else, that I would never actually use as a word processor. You could use it as a word processor. But it could just open anything. You can throw any old file type at it, and it seems to be able to open it. I have these old, right now, files for pitches that I did in the ’90s, and it’s the only thing I could find that could open it, but it opens it beautifully. I discovered like, “Oh, that’s right, this is one I was pitching on Highlander in the ’90s.” I can now pull up that old Highlander pitch.

Craig: You can finally read that thing. Can we do some research? I feel like LibreOffice was one of my One Cool Things at some point a while ago.

John: It totally could be.

Craig: Dig it up. I’m so rarely ahead of the curve. It’s almost always that I say something, John’s like, “That was my One Cool Thing two years ago and you said it was stupid.”

Ken: Craig, my cohost doesn’t listen to me either, so this is-

Craig: Good company.

John: The book Less, you had recommended it, and then three years later I recommended it, and we found out it was great.

Craig: There you go. Every now and again.

John: LibreOffice, I would never actually use it as my main word processor.

Craig: I do remember something like that being an open-source thing, just because Microsoft Word is so goddamn annoying. I do have a bunch of old files. I don’t even know what they are at this point.

John: Exactly. I throw it on and see if it happens. The thing I’m probably most frustrated, I used to use Movie Magic Screenwriter, and that’s actually a binary format.

Craig: It’s dead.

John: It’s dead, hard to open.

Craig: Gone.

John: Ken, do you have a One Cool Thing to share with us?

Ken: I do. Obviously, your listeners are podcast fans. I’m a huge history podcast buff. I love them, particularly when I’m commuting or on trips or things like that. I’ve just been having a blast with a podcast The Rest is History. It’s two British historians, one of them named Tom Holland, not the Spider-Man one, the other one, and the other one named Dominic Sandbrook. They have a real great rapport and chemistry. They are really knowledgeable of a wide variety of things. They delve into a huge range of different historical things. Each podcast is maybe a half an hour, 40 minutes long, perfect for a commute. Sometimes they do deep dives that are multiple episodes about something, like the background of the Titanic or JFK assassination or whatever. But they have a real love for the subject. They have a great way of conveying the similarities between these people in history and us and seeing the common threads.

They’re great at conveying how the values of historians that have told us about this stuff, how those impact how the story gets told and why you have to discount some things, because you can’t listen to the Greeks talk about the Persians, because they have all these stereotypes and that overrides everything. Stuff like that. I find it endlessly entertaining. They’ve got a huge back catalog. I’ve been listening to this nonstop on commutes for six months and enjoyed every minute of it.

John: Absolutely. While our listeners are adding podcasts to their players, they should also be adding Serious Trouble, the podcast you do with Josh Barro. Is it every week?

Ken: It’s 45 weeks a year, roughly.

John: That sounds good. I find it just terrific. It’s Ken talking through the cases of the day, which has been phenomenal. I’ve learned so much on your podcast.

Ken: Thank you.

John: Everyone take a listen to that.

Ken: Thank you.

John: That is our show for this week. Scriptnotes is produced by Drew Marquardt. It’s edited by Matthew Chilelli. Outro this week is by Lou Stone Borenstein. If you have an outro, you can send us a link to ask@dev.johnaugust.com. That’s also the place where you can send questions. You will find the show notes for this episode and all episodes at johnaugust.com. Also where you’ll find the transcripts and sign up for our weekly newsletter called Inneresting, which has lots of links to things about writing. We have T-shirts and hoodies. They’re great. You’ll find them at Cotton Bureau. You can sign up to become a Premium Member at scriptnotes.net to get all the back-episodes and Bonus Segments, like the one we’re about to record on beach vacations. Ken White, an absolute pleasure having you on the show.

Ken: It was a joy to come. Thank you so much.

Craig: Thanks, Ken.

[Bonus Segment]

John: Craig, so let’s pretend that you’ve finished delivering Season 2 of The Last of Us, and now you can take a vacation. You can go to Mexico and sit on a beach for a week. Is that something you’re aspiring to?

Craig: Absolutely not. Let me count the reasons why. First of all, sitting outside under the sun, which some people really seem to like to do, is simply getting radiated. That’s what you’re doing. Everyone’s terrified of radiation. Fukushima happened. People in California were like, “Don’t eat fish anymore. It’s coming.” I’m like, the ocean is swallowing up this amount of radiation. It will never reach you. But you are gonna get radiated when you get in a plane and fly to San Francisco, and you will absolutely get radiated if you sit outside. That’s what sunburning and suntanning is. It’s a response to radiation. A, no.

B, sand. Much like Anakin and whatever, I hate sand. It’s coarse. It gets everywhere. It’s annoying. The ocean is disgusting. It stinks.

John: It’s a fish toilet.

Craig: It’s a fish toilet. I’ve been scuba diving in the ocean ocean. That’s wonderful. But where the ocean hits the land, gross. Sewage. A lot of just garbage and plants. There’s little tiny crabs that pinch at you. It’s nasty.

D, four, the other people who are at the beach are horrible, because they’re beach people. They’re all like, “I gotta get there and I gotta put my blanket down,” a blanket which turns into a weird loincloth within seconds on the sand, so there’s no reason to be there at all. Everyone smells like that gross suntan lotion, which is just offensive. People are drinking for some reason at the beach, so now they’re being radiated while they’re getting drunk. Beach food is gross. Beach music is awful. That stupid fricking country/Caribbean Bahama Jimmy Buffett nonsense, horrible. Other than that, great day.

Ken: John, are you with me that that’s pretty much exactly what you expected if someone asked you what is Craig Mazin gonna say about whether he likes the beach?

John: Will Craig have a prepared rant about beach vacations?

Craig: Oh, no, it was not prepared.

John: But we can predict it.

Craig: I assure you that was entirely off the cuff. I just went through my mental library and put myself on the beach and then started to complain.

John: Absolutely. Ken White, a beach vacation or let’s say any sort of poolside vacation, so we can get rid of the sand and some of the other objects.

Craig: Oh, pools.

John: Ken, talk us through that. Appealing or not appealing?

Ken: It’s appealing to me, mixed with other things. I like vacations where we’re doing some stuff but there is at least some lounging and drinking and relaxing. My wife increasingly is not happy unless she has climbed at least one mountain a day. This is a point of contention with us.

Craig: Huge problem.

Ken: It’s true that I’ve gotten to the point where I can’t just lie around for seven days. I go crazy. I like a good vacation with a mix, some of which is drinking things I shouldn’t, eating things I shouldn’t, while lying on a hammock and reading or watching terrible things.

Craig: Now, a hammock, that’s not at the beach. I get the idea of being in the shade or being in a hotel room or a spa even. Look, I have a lot of core shame issues, so if I’m not working, I feel like I’ve done something terribly wrong. Also, I think HBO needs me to keep working, so they think I’m doing something terribly wrong. But I get the concept of vacations. Don’t get me wrong. It’s just the beach. You don’t like the beach?

John: I don’t like the beach at all. I’m the palest person on earth. All of the objections you’ve raised, I have raised as well. One of my actual biggest phobias is being trapped somewhere like in the beach or in Santa Monica without a hat.

Craig: Oh, god. You know and I know and Ken knows, but Drew don’t know. Maybe one day, Drew, if you’re lucky, you’ll know. It’s the worst. My head will start burning. I also get this thing. Do you guys get this when you go to a restaurant and they’re like, “Let’s go outside.”

John: The heat lamp.

Craig: The heat lamp. No, you’re not, because my head will burn.

John: Sizzle.

Craig: They don’t get it.

John: They don’t get it.

Craig: A lovely woman with this beautiful head of hair is like, “What’s the problem?”

Ken: I think the hair issues are a whole other episode.

Craig: We need to talk about being bald.

John: I think we’ve talked about it some.

Craig: More.

John: More.

Craig: More.

John: More bald. I’m not good with just the chill-out vacation, where you go to a place and you sit, you don’t do anything. I do need a certain minimum number of activities. That’s why sitting poolside, even if I’m in the shade, I can only read my book for so long. At a certain point, if I’m just reading a book or playing Hearthstone on my iPad, why am I not at home?

Craig: Why are you spending all this money? If I could go to a place where there’s a beautiful resort, lovely room – we’re married. We’ve all been married for a long time. Not you, Drew, but one day. Just having sex in a different place is nice, for a change. There are great dinners and things. But then also you could go play D&D or you could go solve puzzles or you could go do the things that other people like to do. I don’t know what those things are. But if I could just do the things I like to do while also on vacation and getting all these lovely services around me, that would be great. But I can’t. Instead, what happens is you go on vacation and you have to walk around, go to a museum, take picture and take picture.

John: Gotta prove you were there.

Craig: So many goddamn pictures. For what?

Ken: Then there’s the whole issue of traveling with kids, which is a very different experience.

Craig: Thank god ours are grown.

Ken: Kids are assholes. Depending on what age they are, different types of assholes.

Craig: I love them, but yes.

John: The closest I came to enjoying a chill-out vacation I would say actually was in Hawaii at the Aulani, the Disney resort there, because if you go there with a young kid, you can drop them off at the kid play area and just like, “Bye. I’ll see you in six hours.” That was actually [crosstalk 01:16:39].

Craig: Very expensive, very effective babysitter.

Ken: See, that is the only thing that would ever get me on a cruise, the concept that you can just leave them with some-

Craig: Oh, god.

Ken: … group of ne’er-do-wells who like-

Craig: I would send them on the cruise. I finally got – and this is a hard thing for Melissa, but she got there with me. We would go on vacation with the kids. Especially if we went somewhere where the time zone shifted dramatically, let’s say it’s Europe, they’re tired, they’re cranky. They don’t want to do the list of – because Melissa’s very much a guidebook, do the list of the things. I’m more like a, let’s just randomly walk around and see what happens. The kids were like, “I don’t want to leave my room,” or, “I just want to be on my computer, my iPad,” whatever. It would drive her nuts. My whole thing was, fine. If you want to stay in your room and do nothing, I would gladly pay for that, for the privilege of being able to walk around with my wife somewhere and not listen to your nonsense. I’d pay double.

Finally, we went on a vacation, the last time we went on a vacation, all four of us, to Europe – it was a couple of Christmases ago – I was just like, “Just leave them in the room.” And it worked great. It was awesome. It was amazing. Leave them in the room. That’s my advice.

John: I’ve never taken a cruise, but I’m considering taking, because as we’ve established, I’m bad on boats, and I have the same motion sickness problems you have, so I’m gonna be testing out the motion sickness stuff, because my extended family is talking about doing an Alaska cruise. That’s actually an exceptional make, because it’s difficult to visit some of those places in Alaska by land. On a boat there, that makes sense.

Craig: Those boats aren’t gonna rock you too hard, but the patch.

John: The patch.

Craig: Problem solved. You will not have the sickness problem.

John: Ken, a cruise, yes or no? Thumbs up, thumbs down?

Ken: There has been talk about doing an Alaska cruise, and seeing something that amazing might get me on the boat. I’m not a fan of legionnaire’s disease, but I might risk it for those purposes. The problem is, again, we’re at the point where my lovely wife, Katrina, is such a hiking badass that probably is gonna be – we’re gonna cruise to this new location, and when I wake up, she says, “Okay, we’re walking 12 miles straight up a peak called Hiker’s Doom.” “Okay. That sounds like fun.” I’d be a little worried about surviving it.

Craig: I think you’ll be too busy having diarrhea in a cabin that’s eight feet by four feet.

John: Yes, that.

Craig: That’s what cruises are to me. I would never, ever, ever, ever, ever go on a cruise. Ever.

Ken: Oh, but I have just the one for you, Craig, because there’s this Australian billionaire who just announced that he’s doing a complete replica of the Titanic.

Craig: Oh, great.

Ken: It’s gonna be an anti-woke Titanic. No vaccinated people.

Craig: Wait. Sorry.

Ken: No vaccinated people.

Craig: Sorry. I love this anti-woke Titanic. First of all, I love the idea that the original Titanic was kind of woke, because it allowed, what, the Irish on board. But I like that you compare the inevitable rotavirus with a total lack of vaccination and proximity to people who would be attracted to something called the anti-woke Titanic, a boat that sank.

Ken: I think you have a real shot at getting smallpox to come back with one of those, so I think it’s worth a try.

Craig: If anything were to ever get me on Team Iceberg, I think we’ve found it.

John: Craig and Ken, thank you so much for a fun episode. I will see you both and D&D tonight.

Craig: Thanks, guys.

Ken: See you later. Bye.

John: Bye.

Links:

• Ken White on BlueSky, Facebook and Threads
• Serious Trouble podcast
• The Popehat Report by Ken White
• Hello, My Name Is Stephen Glass, and I’m Sorry by Hanna Rosin for The New Republic
• LibreOffice
• Sovereign Citizens Getting Owned
• The Rest is History podcast
• Get a Scriptnotes T-shirt!
• Check out the Inneresting Newsletter
• Gift a Scriptnotes Subscription or treat yourself to a premium subscription!
• Craig Mazin on Threads and Instagram
• John August on Threads, Instagram and Twitter
• John on Mastodon
• Outro by Lou Stone Borenstein (send us yours!)
• Scriptnotes is produced by Drew Marquardt and edited by Matthew Chilelli.

Email us at ask@dev.johnaugust.com

You can download the episode here.

The original post for this episode can be found here.

John August: Hello and welcome. My name is John August.

Craig Mazin: My name is Craig Mazin.

John: And this is Episode 637 of Scriptnotes, a podcast about screenwriting and things that are interesting to screenwriters.

Today on the show, Cowboy Carter is the new album by Beyonce. 27 tracks. Craig, I thought we might take a moment go through track-by-track listings.

Craig: Great.

John: I know you had some real thoughts about Jolene, which is her reinterpretation of Dolly Parton’s classic song Jolene. What is your take on Beyonce’s spin?

Craig: Beyonce did Jolene?

John: Beyonce did Jolene.

Craig: Oh.

John: Yeah, so it’s a reversal of the central don’t take my man. It’s like, don’t even think about taking my man.

Craig: That’s not what Jolene’s about though. But she changed the lyrics?

John: She did change the lyrics, with Dolly Parton’s permission and blessing.

Craig: Okay. That’s something else then.

John: It is something else then. Maybe we’ll save that for a future episode. Instead, today, let’s take a look at what movies you actually need to have seen in order to work in this business and how much is that a factor of your generation. We’ll consult the lists of the best movies of the ‘80s, ‘90s, and beyond. Then it’s another round of How Would This Be a Movie, where we take a look at the stories in the news and turn them into sellable properties.

Craig: And they do sell.

John: They do sell. They do sell. In fact, one of the stories we were going to talk through I had to take off the list because a mutual friend of ours is out pitching it right now.

Craig: Wowzers.

John: Wowzers. Plus, we’ll answer listener questions, because it’s been a minute since we’ve been together to do this.

Craig: Been a minute.

John: In our Bonus Segment for Premium Members, Craig, let’s take a look at our thoughts on AI as of spring 2024, including how AI helped put together this episode.

Craig: Oh, no.

Drew Marquardt: I’m out of a job.

Craig: We’re all out of a job.

John: Spoiler for folks for aren’t Premium Members. Basically, compiling the lists of 100 top movies, you can think, oh, you go to a webpage for that, but it’s actually a giant hassle to reformat that into a way that you could put this into our Workflowy. But AI did it for us.

Craig: You’ve joined the evil empire.

John: Yes. But first, we have some actual news. Every week on Weekend Read, the app we make for reading scripts on your phone, it is our own Drew Marquardt who’s picking the themes and the scripts that we’re gonna be featuring this week. I thought your theme this week was genius. It is bad vacations.

Craig: I like that.

Drew: Thank you. I did steal the premise a little bit from the Criterion channel. They had a version of that. But they are bound by what they can get distribution for. I’ve got every script you can find online.

John: Talk us through the scripts in bad vacations.

Drew: We have Jurassic Park, Midsommar, The White Lotus, we got Seasons 1 and 2, Little Miss Sunshine, The Hangover, Us, Forgetting Sarah Marshall, The Descent, Funny Games, and National Lampoon’s Vacation, the remake.

Craig: How is it possible that you left off the single best bad vacations movie of all time?

John: Which is?

Craig: Deliverance.

Drew: I wanted Deliverance.

Craig: Oh, you just didn’t have it.

Drew: A lot of the scripts pre-2005, the copies we have are photocopied six times, so they’re really hard to get a-

Craig: Just get AI to…

Drew: Deliverance. I wanted Thelma and Louise really bad too.

Craig: That sort of counts.

John: It feels like these themes are almost like connections. How do these things all fit together? Is it a blue? Is it a green? Is it a yellow? Is it a hard thing to fit those titles together?

Drew: It’s kind of like making mixtapes is the same itch it scratches, where you’re trying to get all the little flavors.

John: Good stuff. We have some follow-up. I see first here we have follow-up on D&D for kids. Back in 635 we talked about that. We had listeners write in with a ton of great suggestions.

Drew: So many people wrote in.

John: I think maybe, rather than read through them, because they’re URLs, we’ll put those links in the show notes so people can click through them. But I loved what Ed said here at the top.

Drew: Ed wrote, “I love my kids’ after-school program. This year, I love it even more after the addition of a new staff member, Chris. Imagine my surprise when my eight-year-old daughter came home the second week of school with a complete character sheet for Truce, the elf sorcerer. We play a lot of tabletop games with her, but I never considered breaking out D&D. I honestly have no idea how Chris does it, but the games he leads are very popular with the kids in the after-school program. Even my six-year-old twins like to play his Pokémon-themed D&D sessions. I gather it’s a lot of jumping off waterfalls and riding giant boars and other silliness, but I absolutely adore hearing about their adventures.”

Craig: Doesn’t sound silly at all.

John: That sounds awesome.

Craig: Those important encounters.

John: Craig and friends killed a giant boar just last night in our session.

Craig: Wereboar.

John: Wereboar.

Craig: Otherwise, it’s just plain old hunting, isn’t it?

John: Yeah, it is hunting. They had to have a special aspect to it. Thank you to everybody who wrote in with these great suggestions. We’ll put a link in the show notes to all these great alternatives and ways to do things. Craig, a term I saw a couple times in these mentions was OSR.

Craig: OSR?

John: Mm-hmm.

Craig: OSR, original something rules?

John: Yeah, old-school role-playing.

Craig: Old-school role-playing, okay. Not familiar with that acronym.

John: Not familiar, but I bet now that we’ve seen it, we will see it all the time, I suspect. We have some follow-up on English as a second language and characters who are speaking a language that is not their own in scripts.

Drew: Harry wrote, “Listening to your latest episode about different dialects trying to communicate, I couldn’t help but think of slang as a concept. I’m Australian, and I swear, we don’t just struggle communicating with foreigners, but we struggle with talking with other English speakers. But if someone knows the slang terms, it does make the person seem more confident at communicating.” He offers some examples, which I can try an Australian accent.

John: You can try it. Go for it.

Drew: “Yeah nah” is no. “Nah yeah” is yes. “Bloody oath” is “so true.” “Cactus” is dead or broken. “Eff me dead” is “no way, that’s unfortunate.”

Craig: Oh, nar.

John: Oh, nar.

Craig: Oh, nar.

John: “Yeah nah” and “nah yeah,” it’s interesting, because we often in American English say, “No, yeah, I understand that,” or, “Yes, no, I get what you’re saying.”

Craig: We do that too. “Yeah, no” is “I agree, no.” “No, yeah,” I don’t know what that no is for exactly.

Drew: Like, “Unfortunately, yes.”

Craig: Probably. “No, yeah.” We certainly don’t say “bloody oath.”

John: No, we don’t say “bloody oath.”

Craig: Bloody oath, a cactus.

John: I think the yeah comes in because it’s like, “I hear what you’re saying and I’m agreeing with you, no.” That “yeah, nah” is really important.

Craig: Nar. Nar.

John: He goes down to the phrase “that has mayo on it,” which means “you’re exaggerating, mate.”

Craig: If someone said, “That has mayo on it,” to me, all my response is, “Get it the bloody oath away from me,” which is not what bloody oath means, but regardless.

John: Regardless, Craig is not a fan of mayonnaise.

Craig: Eff me dead.

John: Any white sauce and Craig, no.

Craig: Pretty much. I just don’t like-

John: Hey, do you like the whipped garlic foamy stuff that comes with Mediterranean food sometimes?

Craig: I don’t trust it, because they won’t tell you what’s in it, and I think it’s probably mayonnaise.

John: No, it’s just garlic and oil.

Craig: I don’t know if that’s true. They won’t say what it is. Until they say, I’m suspicious.

Drew: Did you have a bad experience? Did it make you sick?

Craig: No. I just don’t like mayonnaise. Absolutely hate it. Hate it. Hate the sight of it. Hate the name of it. The consistency is horrible. The fact that you can pick up a jar and it weighs nothing is terrifying to me. I don’t understand it.

John: Have we discussed marshmallows? Are you a fan of marshmallows?

Craig: Marshmallows are fine, but that’s not a sauce. That’s a gelatin colloidal suspension. What do you call it? But I don’t sit eating marshmallows now, certainly not anymore. But they were never a food that I was like, “Yay, marshmallows.”

John: I’m fine with them in hot chocolate, but I don’t need them in other places. As a binding agent in rice crispy squares, sure.

Craig: Toasting marshmallows, that carbon is fun. You know what?

John: Tell me.

Craig: This isn’t gonna be a One Cool Thing, because it applies to almost no one. But we were doing some work in Alberta a week ago, and we were staying at a place called the Kananaskis Mountain Lodge.

John: I think I saw that inside of a Zoom there, because we played some D&D.

Craig: You did. You saw me. You saw the lodge when we were D&D-ing. At the bar, you know I’m an old-fashioned fan. I like to enjoy an old-fashioned, my favorite cocktail. They had something called a s’mores old-fashioned. Now I am notorious for ordering the old-fashioned old-fashioned whenever I see some sort of goofy twist. They had put it up on signs. You know when you go to Vegas, in the elevator it’s like, “Come enjoy the prime rib.” That was their thing was the s’mores old-fashioned. So I’m like, “I’ll do it.” Delicious.

Their deal was they gave you an old-fashioned neat, and then they had a marshmallow that they had adhered to a graham cracker, probably by melting the bottom of it. They bring it to you. They light the marshmallow on fire. As it’s flaming, they carefully turn it over, with the graham cracker as a lid, and invert it over the glass. Then you let it sit and fill with marshmallow smoke for about 30 seconds. Then you remove it and you drink it. It was spectacularly good. It was the kind of thing where I thought, oh, these folks have come up with this cool thing, and now a bunch of LA people are gonna come back, talk about it on a podcast, and it’s gonna show up in bars in LA.

John: The clock has started ticking.

Craig: It has started ticking on the s’mores old-fashioned.

John: I will drink an old-fashioned, but sweet drinks, any drink that feels like dessert is not my go-to. But this case it also feels like it’s just dessert that actually has alcohol in it.

Craig: An old-fashioned shouldn’t be too sweet. If it’s too sweet, boo. I like it more when it’s really bourbon and just a little bit of a hint. The marshmallow smoke itself has no sweetness. It’s carbon. That was the only part of toasting marshmallows I liked was when you would just incinerate it and then eat the crackly charcoal skin.

John: Yeah, but there’s at least a 33 percent chance that you’re going to burn your fingers trying to do the thing, and you got the hot marshmallow on your fingers.

Craig: You just gotta wait five seconds, John. This is a real problem.

John: Like children here.

Craig: There’s literally an experiment about this.

John: I was doing this as a child. You’re doing this as an adult.

Craig: Just put it on a stick, man. Just wait. You’re an Eagle Scout, for god’s sake.

John: More follow-up on Tiffany problems. Tiffany, of course, is a situation where you have a historically accurate name that sounds too modern so people don’t believe it. This is a case where Josh is writing in with a spoken word that people believed was anachronistic.

Drew: He calls it the “Tiffany tiff on Twitter related to Manhunt on Apple TV.” Someone objected to the use of “creep” in the mid-19th century, and many, including Keith Olbermann, weighed in to inform it’s actually not the anachronistic error, or Tiffany problem, that the poster believed it to be.

John: I like that this features Patton Oswalt, a former guest, who apparently said the word, referred to John Wilkes Booth as a creep, and whether creep would exist in the language of 1865, and apparently it did.

Craig: Did it? Keith Olbermann is citing the – I assume this is in Merriam Webster – etymology. It looks like meaning despicable person is by 1886. That would still be 20-some-odd years after.

John: Yeah, but it’s a question of when did it make it into print. But “creeper,” which is a gilded rascal, is recorded from circa 1600.

Craig: That seems like a different thing. That’s more of a sneak thief as opposed to a… It says robbed customers in brothels, which by the way, still goes on, from what I understand. It probably is a little bit of an anachronism, but not a wild one if it’s off by 20 years.

John: I think it’s the fact that Patton said creep and then was like, “I’m a weirdo. What the hell am I doing here?” It was really the run of the phrase was really what felt anachronistic.

Craig: “What the hell am I trying to say?” I also think that Patton Oswalt is already an anachronism. He wasn’t alive in 1865.

John: It’s the worst.

Craig: He’s alive right now. It’s all anachronisms.

John: We should stop making anything that’s not set now, because it’s a lie.

Craig: If he had said, “Oh my god, that guy is totally a creep,” that would’ve been anachronistic.

John: Yeah, that would.

Craig: “He’s literally a creep.”

John: We had Pamela Ribon on the show last week.

Craig: Pam Ribon!

John: Absolutely the best. Her job used to be as a TV logger. I asked her, to what degree do you think that still is a job, because AI systems are actually really good at transcribing stuff and noting what’s happening there. North wrote in with some info on this.

Drew: North says, “I work in post-production on a non-union true crime documentary show, and a huge part of crafting the stories for our episodes involves creating transcripts of each interview. So we use an AI platform to generate time-code accurate transcripts, but these transcripts are not perfect. AI is pretty good at distinguishing between speaker 1 and speaker 2, but it often gets things wrong, like consistent name spelling, locations, and small verbal things like the difference between in and and, for example.”

Craig: That’s no big deal.

Drew: “We actually hire entry-level people to humanize these transcripts.”

Craig: Oh, god.

Drew: “Our humanizers are essentially AI editors or spell-checkers.”

Craig: That’s what it’s down to.

Drew: “This is where I started before being promoted to a coordinator role. Thus far, AI hasn’t quite replaced our human loggers, transcribers, but the role has shifted and the hours have certainly reduced. What used to be a full-time job is now more often part-time for our show, which is a bummer for entry-level workers, but like Pamela, I don’t recommend spending 12 hours a day transcribing raw true crime interviews for anyone’s mental health.”

Craig: Humanizer?

John: Humanizers.

Craig: Oh, boy.

John: Again, it’s a Britney Spears lyric.

Craig: Humanizer.

John: (sings) Humanizer, humanizer. Drew, you and I actually have some experience with this too, because when we were doing the sidecasts, we used Descript. Descript is an editing program where you feed in the raw audio and it comes up with a transcript that’s not perfect, but you are actually editing text instead of editing wave forms to do it.

Drew: Which was much easier. You could figure out filler words or stuff like that and just cut them out much quicker.

Craig: Got it. For our transcripts for this show, we still use-

John: We use a human being.

Craig: We use a human being? Oh my god. That’s so weird.

John: So weird.

Craig: Shouldn’t we just get a humanizer? That’s the worst term I’ve ever heard.

John: We assume we’re using a full human being who’s doing all this themselves.

Craig: We assume it.

John: But for what we know… We contract this out. Who’s doing our transcripts right now?

Drew: Dima Cass.

John: We assume Dima is doing this all by hand, but for all we know, they could be feeding it in and humanizing it themselves.

Craig: We don’t know.

John: We don’t know.

Craig: We don’t know. You know what? Let’s keep our hands clean. Is Dima Cass a person or a company?

Drew: Never met them in person.

Craig: Exciting.

John: More follow-up from Oliver.

Drew: Back in Episode 618, Oliver wrote in, “Last year I officially sold my first script to a mid-size studio, and it was shot in early 2023. As part of the arrangement, there was an optional rewrite clause, although the studio assured me that the script was essentially good to go. On the early Zoom calls, everyone I met was lovely and thrilled about the script. The producers and directors were so excited, and everyone began sharing ideas, which was super fun, until it wasn’t. Months later, having gone down numerous rabbit holes, the entire process became bleak and disheartening, to the point that days before production, one of the producers was in the script inserting exposition.”

John: I think our advice at the time was, yeah, this sucks, but also-

Craig: Welcome to Hollywood, kid.

John: Welcome to Hollywood, kid. You’ll get through it. Oliver wrote in with an update.

Drew: He said, “After a whole year, I was finally given the chance to watch the finished film. And it had been so long, truthfully, I couldn’t even notice any of the changes we made from the original draft they greenlit. The setup, the major turns, the crisis, the concept in general, were all there, everything they loved about the script in the first place. Is the movie perfect? No. There were a handful of moments that bumped for me, perhaps a misread line here and there. Ironically, this brought me some relief. The aspects that had me fretting for nights on end in pre-production didn’t change the essence of the film one bit.

“The whole experience made me realize again that the script is merely a blueprint. What people watch and experience isn’t the polishing process of a pdf. It’s the casting, the look, the score, the edit, and yes, the story, but that’s just one piece of the final product. Next time, I hope to approach pre-production edits with a little less self-imposed anxiety and doubt.”

Craig: You had me and you lost me. Here’s where he had me.

John: Up until the blueprint?

Craig: Yeah. Jeez Louise, man. Wrong conclusion, Oliver, but right conclusion of part. One of the hard parts about what we do for a living is that – Ted Elliot has said this many times – that most screenwriters never get to do the second half of the job. They only do the first half, which is writing the script. The second half is seeing the script being produced. Then you start to learn the relationship between the script and the final product. When you’re in prep, yes, it’s good to realize, “Okay, here are the hills to die on. Here are the things that really, really matter. These other things I can work on and probably they will not be significant disruptions. They might even be improvements.”

Where I think Oliver goes wildly awry here is when he says, “The whole experience made me realize,” again, he shouldn’t have realized it the first time, “that the script is,” quote, “merely a blueprint.” This seems like a press release from the DGA as far as I’m concerned.

John: Yeah, totally.

Craig: The script is not merely a blueprint. He says, “What people watch and experience is the casting, the look, the score, the edit.” Sorry, all of that comes from the script. It all begins in the script. There’s a reason they need a script. It’s the thing that tells them what kind of person should be cast, how is this supposed to look, what is the tone, what kind of emotions would we want to experience here that the composer needs to understand. Then the edit is literally going back to the script in so many ways, like what was the intention and flow of these scenes on paper.

Then he says, “And yes, the story, but that’s just one piece of the final product.” The story is the only thing. I’m sorry. I know that people think that cinema is about beautiful framing and all the rest. It helps. It’s part of the enjoyment. But it’s the story. It’s the story that people want. Otherwise, you can just go and watch some old French movies about people twiddling their thumbs in cafes. People love stories. That’s what we’ve been doing as human beings our whole lives.

Merely the blueprint? First of all, have you looked at a blueprint? Have you ever seen one? The word you would never apply to it is “merely.”

John: Merely, yeah.

Craig: It’s the most detailed… It’s like, here’s all of the things you need to do so this building doesn’t fall down and murder people.

John: I think Oliver mostly gets it and made some bad word choices here along the way. I think Oliver had some insights which were helpful.

Craig: We are a writing podcast though.

John: First, let’s acknowledge some things that I think Oliver got right. It’s so possible to stress out over, “Oh my god, they’re trying to change this one line in this one scene. Everything’s gonna fall apart.” No, it’s not.

Craig: No, it’s not. Perspective is a good thing, and you have to learn it by experiencing it.

John: Absolutely. I wish Oliver could’ve been on set to see the process of how the movie he wrote was actually shot and then the editing room. He didn’t get that experience, but at least he saw the final product and was relatively happy about it.

But I do want to circle back to this idea of merely a blueprint or even just the notion of blueprint, because I think there was a good intention behind that at one point, and I think that’s been lost. I think the degree that the screenwriter is the architect of the project, yes. The screenwriter’s figuring out the whole thing, has the vision for the entire thing, is laying it all out, and like an architect, has to then rely on other people to actually physically build the thing, the specialists, contractors, everything else. That metaphor tracks. But when you then conflate, “Oh, it’s just the blueprint,” or that the blueprint is just a thing that exists separately from the finished building, that’s nuts.

Craig: It’s insane. If you do direct something, all the time you spend in prep, all of it, and it’s so much time – often for movies, there’s more time in prep than there is shooting – is based on the script. Every discussion you have is based on the script. Everything is how do we make this thing on the page happen in real life. I don’t think blueprint is as good of a word as, say, scripture is, because that’s how important it is. It is the fundamental document to the creation of everything.

I get it right in my aorta every time someone’s like, “The script is merely… ” I’m like, “Let me stop you right there. If it’s merely something, give it back. Go make this without it. In fact, you’ve read it. It’s merely a blueprint. You don’t need to read it again. Let me just gather all the copies. Good luck, everyone.” No.

John: The two Charlie’s Angels that I worked on were notoriously like, “Okay, we’re in production, and everything is changing.” We go through the whole color rainbow multiple times. Every scene has changed. In that situation, you could say, oh, they went in without a script or something. That’s not true at all. We went in with a script and all had the same vision basically of what it is we were trying to do. What those actual scenes were moment by moment did change a lot. It was incredibly difficult and frustrating, because we were building the building without having finished plans for everything. But we knew which building we were building. We all could agree on that as a basis.

That’s probably the wildest exception. That’s the extreme case of, okay, we’re going in. We don’t have everything locked down and finished. In most cases, you really are gonna have a very clear sense of this is the plan for the movie. Could different directors working off the same script make a very different movie? Absolutely.

Craig: Of course.

John: But there’s a plan behind it, so don’t sell yourself short, Oliver.

Craig: Or anyone. In the end, I am a director, so I’m not denying how important it is and now directors can do that job well or poorly. But a lot of times, the director’s understanding of the script is directly connected to how good of a job they do telling the story. If you don’t understand it, you can’t be interesting as you tell the story. Also, let’s just say, why wasn’t Oliver invited? He wrote it.

John: He wrote it.

Craig: It’s just so weird. It’s just so weird to me. Oh, movies.

John: Oh, movies. I don’t know if we remember or even knew whether Oliver was a WGA writer. He says it’s a mid-sized studio. I assume it’s an American studio.

Craig: Should be.

John: As a WGA writer, he should’ve been invited to give notes on an early cut. There are creative rights. It’s hard to enforce those, but you should’ve gotten a letter from the WGA saying, hey, here’s a reminder, here are the things and [crosstalk 00:22:55].

Craig: They don’t matter, because what they do then is they have ChatGPT. They send you a cut. You send notes back to some dead letter office at a studio and it’s never looked at. It’s not real. The thing about creative rights is either it’s an enforceable term that matters and is incorporated into the process or it’s not. Same thing with directors and television.

I’ve never directed an episode that I didn’t write or for a show I wasn’t making. But let’s say I did, because I think that would be fun, actually, to go direct an episode for someone else and not have to worry about the whole damn thing. I think I get five days to edit. That’s my, quote unquote, right. You know what? Five days is the same as zero days. It’s not enough. It just means, “Sure. Come here.” It’s a creative, quote unquote, right. We have a creative, quote unquote, right to give notes. But in the end, the people who are in charge are the people who are in charge. There’s nothing we can do.

John: Your ability to actually influence the movie depends on your relationship with those people who initially hired you. It’s possible Oliver could have edged his way in there a little bit more. He didn’t. But anyway.

Craig: Certainly not for a lack of humility, because I’m saying a little less humility here, Oliver, would be good. The good news is the movie was done. By the way, no movie is perfect. That’s always an eye-opener when you’re like, “Whoa.” That’s the day you stop ripping on movies as hard as you did before, when you’re like, “Oh, this is hard to do. It’s hard.”

John: Some movies that did turn out not perfect but really quite good are the 100 best movies of the ’80s, the ’90s, the 2000s, and the 2010s.

Craig: Oh, my.

John: We went through and pulled the lists of what are generally considered the 100 best. In some cases it was the Rolling Stone list or some IMDb list, and so there’s gonna be some weird titles on this. But I went through yesterday and marked the ones I hadn’t seen. Drew went through and marked them as well. I will find some way to put this online so people can see the things that I’ve missed. There are some sort of embarrassing things that I’ve not seen. But on the whole, I felt pretty good about it. What actually sent me down this whole path is I was looking at the AFI list of the 100 best movies of all time, and I realized I’ve never seen Intolerance.

Craig: You don’t need to.

John: My ability to be a screenwriter is not impacted by my not seeing a 1916 movie.

Craig: No. You don’t need to see Intolerance.

John: It’s a question of what movies do you need to see. For us, I would say there are some movies before 1970 that are important for us to see as a framework, but it really was ’80s, ’90s, and later that actually matters. If I look through the list, those are the movies that I’ve seen almost all of them.

Craig: I don’t know what we do with this list. It’s a pretty good list, actually. I’m kind of enjoying it. I’m looking at the movies that you haven’t seen that I have. I love Videodrome. You do not need to see Videodrome. Come and See is I think the best war movie ever made and very influential on Chernobyl, but it is about the hardest watch. Brazil, wonderful, but also not necessary. Oh, The King of Comedy I would strongly recommend actually, because it’s Martin Scorsese, Robert DeNiro playing a very different kind of role, and Sandra Bernhard. It is certainly the funniest movie Scorsese ever made, but it’s also very relevant to now.

John: It’s a big influence on Joker.

Craig: Oh, definitely. Huge influence on Joker. They Live you do not need to see, although it’s hysterical. Once Upon a Time in America, there’s two versions of it. The version that they cut to ribbons and put in theaters, horrible. The uncut, endless Sergio Leone movie, fantastic and also not necessary.

John: Let’s talk about what’s necessary and what’s not necessary. That’s actually the bigger framing question behind this is to what degree is the movie necessary, because it speaks in conversation with the kinds of things that we’re making now.

Craig: I’m looking at this. I gotta be honest with you. I don’t think any of the ones that you didn’t see are necessary. Maybe Sophie’s Choice. Maybe. You’re missing some great movies in here.

John: Of course.

Craig: Don’t get me wrong. They’re all great movies. It’s cool to see Near Dark on there. I’m obsessed with ’90s movies. That’s my thing now. I realized how many of my favorite movies are from the ’90s. I think that that is a function of two things. One, I think movies got kind of cool in the ’90s because there was this resurgence of the indie vibe as Miramax began to inspire other people to make weird movies. But also, I was in my 20s, and that’s when you go to see movies.

John: That’s what it comes down to.

Craig: Oh, man, look how good these are.

John: Drew, you’re more than a generation younger than us, and so you just now saw Sex, Lies, and Videotape.

Drew: Yeah, I saw that a few weeks ago.

John: Tell us, watching that movie now, what was your takeaway?

Drew: It felt both dated and still wildly transgressive too. The Andie MacDowell character feels very modern, and same with James Spader. It’s strange. You can’t make it today. It wouldn’t quite be the same. But I loved having four characters.

Craig: You can barely make any of these.

Drew: That’s fair.

Craig: John, Miller’s Crossing is a masterpiece.

John: I’m sure it’s a masterpiece.

Craig: Strong recommend. You don’t need to see Kingpin or Rounders or The Rainmaker or Dead Man. Three Kings is hysterical. I love that movie. But do you need to see it? No. The Fisher King is so good. If there’s one movie-

John: Is The Fisher King William Goldman?

Craig: No. Fisher King is Richie LaGravenese.

John: Great.

Craig: Terry Gilliam directed. Robin Williams will break your heart. It is so weird and beautiful. I just love that movie.

John: One argument for seeing movies on this list that you haven’t seen before and why that might be necessary is you might be out pitching a project or talking about a project, not realizing that movie was already made, or that the people you’re talking with are gonna have that as a reference and you don’t have that as a reference and then it’s just gonna be weird.

Craig: I definitely remember faking my way through some meetings in the ’90s where people would talk about movies from the ’70s or ’60s that I hadn’t seen, because I was 0 or minus 10. They were like, “Oh yeah, so it’s blah blah blah meets so-and-so.” I hadn’t seen any Jacques Tati movies. Are you familiar with Jacques Tati?

John: I’ve seen two.

Craig: That was two more than I had seen. I had never even heard of him. I was from Staten Island. They were like, “Oh yeah, it’s like Jacques Tati.” I’m like, “Absolutely. Yes.” I couldn’t pull my phone out in the bathroom and look them up. I was flying by the seat of my pants, like, “Please don’t ask me for details about Mr. Hulot. I don’t have them.”

Drew: Were they comparing Rocketman to Jacques Tati?

Craig: Totally.

Drew: That makes sense.

Craig: Totally. I was like, “Totally. It is Jacques Tati.” I was just like, “He’s dumb, and he goes to space. Isn’t that enough?” Now, again, you can just fake a period cramp, go to the bathroom – some of us can – look him up quickly on your phone, come back and be like, “You know what? I’ve been thinking about it. It’s not this Jacques Tati movie. It’s really more like this Jacques Tati movie,” and look cool.

John: Arcades are late teens, early 20s. My daughter had a scratch-off poster of the 100 greatest movies or some other list of movies. I’d seen almost all these movies, but she hadn’t. I was remembering, like, oh man, if you’re a young person who’s trying to catch up on culture, it’s a lot. Tarantino’s movies. Which of the Tarantino movies are important?

Craig: I think start with Pulp Fiction and then make some choices. I’ve been showing Bella Ramsey a lot of movies from the ’90s. We started with Pulp Fiction, which she loved. Then I made the choice to jump to Kill Bill Volume 1 and 2, because they’re incredibly entertaining and also not super duplicative of Pulp Fiction. By the way, looking at these, the ones you haven’t seen, Drew, if I may. Out of Sight is a masterpiece. Schindler’s List is one of the movies you have to see, unfortunately. Ed Wood is spectacular.

Drew: That one I’m embarrassed about.

Craig: It’s so much fun. Get Shorty is so much fun. Quiz Show, masterpiece. Dead Man Walking, the soundtrack is incredible, better than the movie. I don’t think you need to see The English Patient, although I loved it. Glengarry Glen Ross, you have to see Glengarry Glen Ross.

John: [Crosstalk 00:31:30] references back.

Craig: Actually, I envy you that you haven’t seen it.

Drew: That’s one of those ones when people are like, “You haven’t seen The Godfather?” kind of movies. I’ve seen The Godfather, but Glengarry is mine.

Craig: Glengarry Glen Ross goes by in the blink of an eye. Spectacular. In the Name of the Father, gorgeous. These are all amazing. The Grifters. My Cousin Vinny, it’s really funny, but do you have to see it? No. 12 Monkeys. It’s funny how many Terry Gilliam movies you have here.

John: Is 12 Monkeys necessary? I don’t think it is.

Craig: No. It’s one of those movies like Brazil – also Terry Gilliam – where it’s like, “If you get it, you get it, man.” I got it, but I didn’t feel the need to be like, “Yeah, but you have to see 12 Monkeys.” It’s one of those movies where you tell someone, “This is the most mind-blowing movie ever,” and then they sit there and they’re bored and you feel bad. Check it out. If you like it, stay with it.

John: As I look through the movies I have not seen, some of them are just because of the genre. I haven’t seen Saw. I don’t need to see Saw. I understand what Saw is.

Craig: You don’t. You do not need to see it.

John: We’ll find some way to post this up here so people can take a look and tell us what movies they haven’t seen, what movies they feel like are actually crucially important. But again, I’d say the takeaway from this is that there are movies that people are going to assume that you will have seen, and that if you haven’t seen them, going into certain conversations, if you’re staffed in a writers’ room, it may just be a little bit weird that you don’t have that as a frame of reference. That said, if you’re a younger person, if you’re not born and raised in the U.S., you’re gonna have some different references. That’s just the reality.

Craig: Which is fine. Although our main export in the United States appears to be movies and military equipment.

John: That’s what we do.

Craig: People do share a lot of these common references. These are great. This is a very useful list you put together.

John: With the help from some AI.

Craig: So people know, on our reference Workflowy outline here, you very helpfully put orange on the movies that you haven’t seen, John, and blue on the movies that Drew hasn’t seen, and you wrote “Legend,” like a legend to describe what color goes what. I thought that initially you were talking about the movie Legend.

John: Oh yeah, the movie Legend, which is crucial.

Craig: Not at all crucial.

John: 100 percent, if you have not seen the movie Legend, get out of here.

Craig: Little Tom Cruise going up against Tim Curry as a monster.

John: (sings) Is your love strong enough?

Craig: It’s not a great film. I thought, why did they break out Legend specifically?

John: This is the other thing I think that prompted me to start this whole exercise is, on my flight back from D.C., I watched Labyrinth, which I’d never seen Labyrinth.

Craig: David Bowie and is it Phoebe Cates?

John: I thought it might be Phoebe Cates as well. It’s Jennifer Connelly.

Craig: Jennifer Connelly, right.

John: I combined them, saying, “It’s so weird that she did this, and then a few years later she was-”

Craig: It’s Phoebe Connelly. Not great.

John: Not necessary.

Craig: No.

John: I can see why it’s reference for certain people. Totally.

Craig: I think it’s one of those movies, as a kid, when you saw it, you were… Look, I love Beast Master; can’t recommend it to anyone.

John: If I loved Labyrinth, I would be pitching the Labyrinth sequel now with Jennifer Connelly.

Craig: Here’s an interesting thing. I’ve run into this. I remember, again, in the ’90s, there were certain movies that would come up that people loved and would use as touchstones, that either few people had seen or if you did then go and watch it, you were like, “Why the hell does everyone care about this movie?” It was just one of those things that got under their skin in a culty, viral way in Hollywood, but didn’t necessarily matter to anyone else. I feel like Labyrinth might be one of those.

John: At least three different times in my career, people have pitched the H.R. Pufnstuf movie.

Craig: Which is not a good idea.

John: Not a good idea, but I also have no reference for it, because for whatever reason, it never showed on TV in Boulder, Colorado where I grew up.

Craig: Really?

John: I’ve never seen a frame of it.

Craig: It was enjoyable. But South Park had an episode with Member Berries. I don’t know if you’ve saw that one. “Member?” That’s the value of H.R. Pufnstuf is, “Member?” Yes, I remember. Yes, correct. Don’t think I need a movie of it.

John: Nope, not necessary. Let’s make some new movies. Enough of these old movies. How Would This Be a Movie is a segment where we take a look at some stories in the news and figure out what are the possibilities of making this into a new movie or a series or whatever else, some sort of piece of quality entertainment. The first is an article that went incredibly viral, by Charlotte Cowles. Did you read this when it first came out?

Craig: No, I didn’t. I just read it for this today, and I was startled.

John: Startled. This is The Day I Put $50,000 in a Shoe Box and Handed It to a Stranger. Charlotte Cowles is a journalist. She actually writes about personal finance and such for legitimate publications. She had this basically phone scam that claimed to be Amazon customer service, and she was ultimately tricked into putting $50,000 in a shoe box and handing it to a random person in a car. I think it’s worth reading the article. After having read the article, a bunch of people raised concerns about, like, this doesn’t actually track and make sense. I have suspicions about whether she’s telling the whole story here at some moments.

Craig: This one almost feels too wild to believe. First of all, Ms. Cowles is the financial advice columnist. This is not somebody who is just confused about how money works. It’s a fascinating piece, because it’s like watching somebody humiliate themselves in slow motion on paper, where they go through a series of choices and moments where they even are saying, “This makes no sense. You’re crazy. You’re lying,” over and over, and just keeps doing the dumb thing. It’s hard for me to understand why somebody who’s the financial advice columnist for a publication wouldn’t immediately call an attorney if they were being told they were under investigation for a crime. Everybody who’s seen any episode of any copaganda show knows that the cops don’t want you to lawyer up. I struggled to believe this.

John: I did struggle at times too. When she actually has to go to the bank and get $50,000 in cash, strained credibility. Is it possible? I guess. I also want to believe that New York Magazine, I think-

Craig: Yeah, the New York.

John: … would’ve fact checked to some degree to establish that the things that she’s saying are true are true. Let’s take this at face value. Let’s just say this is a thing that actually happened. What parts of this are interesting for a movie or for an episode? To me, you get into this, and you have to stay in almost real time, because too many cuts, too many getting away from the moment, the whole souffle just crumbles. It has to start with that. But then I’m also fascinated by the repercussions after the fact. Let’s say this thing happened for real. What happens in the days after? What does her husband say? Does she keep her job? The suspicion of what actually is there, that is interesting to me.

Craig: I guess. I don’t understand how they have kept their job. They’re a financial advice columnist, and they’ve just written a story about how they are the most financially naïve human on the planet. I know that people do get fooled. If Charlotte Cowles were writing about someone else’s story and describing what they did, and that person was, let’s say-

John: A nurse. A teacher.

Craig: … a nurse, a teacher, somebody that doesn’t know much about financial stuff, me, then yeah. But the part of this that’s so challenging, if you are a screenwriter, is – it’s an interesting challenge, I guess. Maybe that’s what makes it good. Take the person who’s the least likely to be scammed and have them get scammed. Who can scam them, and how? But scammers generally just aren’t even that good. We’ve gotten those calls. Everybody’s gotten the call from the, quote unquote, IRS.

She makes a point of saying that sequential people that call her, their accent is hard to place. Every alarm bell is going off here. It’s one thing if somebody from the FBI calls you and they speak with an accent in English. People who speak accented English work for the government. But now, three in a row? Eh.

She says, “Cops don’t do this. Police don’t do this. This doesn’t make sense.” Then she just keeps doing it, like a zombie. I’m missing… Part of our job is to make sure that actions are motivated and understandable so people at home don’t keep saying, “Why would you – a human wouldn’t do that.” I just kept feeling a human wouldn’t do it.

John: Except that I think back to when I leased my last car. I was like, “This is going on forever.” At a certain point, I’m just like, “Whatever that is, I will take it. I’m done negotiating on certain points.” Same thing happens with police confessions, where you eventually just give in and you accept their reality of events, so you confess to things that you didn’t do. Some of this reminded me a bit of Shattered Glass in the sense of – in that case it’s a journalist who’s-

Craig: Making stuff up.

John: … making stuff up. But the tension of that becomes – you have to be in real time and watching the world melt down around them.

Craig: It’s funny you mention Shattered Glass. Stephen Glass wrote for The New Yorker, which I can say as somebody who has been profiled by them, their fact-checking process is fully colonoscopic. It’s insane. Maybe New York, I don’t know, hopefully, they did as much of a good job. But this reads a little bit like Hack Heaven, which was the article that Stephen Glass wrote for – one of them that he wrote for The New Yorker. If you read Hack Heaven – and it’s available online, you can find it – when you read it, you’re like, “This doesn’t sound right. There’s something wrong.” She’ll say, “I know I shouldn’t do this, but then I did.” I’m like, I’m missing a piece in between. Look, I’m not accusing her of making this up, but something’s weird. People online are saying they can smell a rat?

John: Yeah, people are raising concerns. But that’s died down. I’ve not seen a full accounting of this. This is several weeks old at this point.

Craig: That’s hard to believe is a challenge.

John: It is.

Craig: It’s a challenge for screenwriters. You want to find that sweet spot between, “Oh my god, it’s hard to believe, but it really did happen, and I believe it happened that way,” and, “That’s hard to believe, and I also think you just are making stuff up.”

John: One challenge envisioning this as a story is that you have one central character that we’re seeing through a lot of this. You see her. She is only responding. She’s not taking affirmative action herself. If you see her turning the tables at a certain point, you can identify with her, but otherwise, you’re just watching this cork floating down a river. It’s not gonna be an interesting role until you see her take some agency.

Craig: It’s a tough thing to want to stay with her, also. It’s frustrating to watch somebody fail over and over and over. It also becomes redundant. There possibly is an interesting story to tell on the other side of things, where you have somebody who’s scamming people and it actually starts to work, and they themselves can’t believe what they’re doing. And they start to question if they should be doing it. And they start wondering if she’s setting them up. There’s a good film noir thing where she’s scamming them back and they find out.

John: Zeke Faux, who came on the podcast a year or two ago to talk through his side of being a journalist who wrote one of these How Would This Be a Movie stories, recently had a piece on the other side of a scam, basically those wrong number text kind of things and what it really comes back to. In some cases, those are basically people held in near-slavery conditions who are doing those jobs.

Craig: Oh, jeez. It’s happened to me a few times. The first time that text thing happened to me, honestly, I was like, “Oh, nope, sorry, wrong number,” and the person was really nice. And then 20 days later, they texted me back and they were like, “This is crazy, but I’m in LA,” because they know my area code. They’re like, “You just seem so nice. It would be great to meet.” I was like, “Okay.”

John: Delete and mark as spam.

Craig: “Here we go. Here we go. That’s not how this works.” Obviously, scammers have been preying on people since the beginning of time. If you look back in the Bible, the Pharaoh’s magicians were clearly just con artists. Con artistry is a thing. It always will be. Religion, in some aspects, or some kinds of expressions of religion are con artistry, and they get people to give them money. It’s just the financial advice.

John: That’s the problem.

Craig: That’s the problem. It just doesn’t work. It just doesn’t work.

John: Here’s how it might work. Imagine they were actually doing it to discredit here, there was somebody who particularly went after her because she was a financial advisor, because she had written something in this space, and like, “No, we can even get you. That’s how good I am.”

Craig: Okay, but at that point, you can get anyone, right? If you can come up with a way to fool a doctor with a fake medicine scam, fool other people. You got everybody at that point. Look, there are moments where scammers get inside of your skin. Have you ever gotten the one where you get the email, it’s like, “Guess what? I’ve been watching you through your camera on your laptop, and I recorded you jerking off, and I know what porn you were jerking off to.” Then you’re like, “Oh, no, because I totally did that.” “I’m gonna send it to all your friends and family.” You’re like, “Oh, no.” Then you’re like, “Wait. No, you’re not.” But still, there’s that moment.

John: That moment of panic.

Craig: The problem is there’s seven or eight moments where you can then go, “Yeah.” Also, this was the weirdest thing about – I know we’re spending so much time on this story – but I’m so suspicious, because she kept asking these people for badge numbers. Who cares? That’s a dumb question. Badge number? If a CIA agent called me, I’d be like, what am I gonna do with your badge number, check it against the CIA badge number database? That’s a weird question.

John: The CIA is notoriously transparent about-

Craig: Exactly. Also, you know who doesn’t call you about this stuff? The CIA. Ever. No one gets called from the CIA. I don’t know.

John: I don’t know.

Craig: I don’t even know.

John: Next up, we have Wanted: True Love. This is a story by Angela Chen in the New York Times. In their innovative approach to finding true love, two men, including one of them who’s the project manager at OpenAI, AI Connection, offered dating bounties to incentivize matchmakers. They weren’t paying money to the women. They were paying money to like, if you can help connect me with the love of my life, I will pay you a bounty, one of them up to $100,000. It was a blend between traditional matchmaking and a tech startup-y kind of thing to it. Craig, what did you take from this story? What did you think of this as a story area?

Craig: It’s a good story area. The story itself is disconcerting. I feel like somebody offering $100,000 for love, that’s basically a great reason to swipe left. But it is I think fertile territory for a fun rom-com. Somebody’s like, “Great, I gotta collect that 100 grand,” and then actually falls in love with them. But then there’s lies because it turns out they didn’t have $100,000 or whatever. You know, rom-com stuff. It’d be fun. I think it’s a cute way to set that premise up.

John: What was the Jennifer Lawrence movie? No Hard Feelings.

Craig: No Hard Feelings.

John: There’s a little bit of the aspect of that movie in there too.

Craig: A little bit, yeah, a little bit. It’s an interesting concept. I like actually that the guy is offering the money, because then you’re like, what’s wrong with him?

John: It reminds me a little of Hitch as well.

Craig: Little Hitch-ish.

John: Again, you have a guy who can’t find love, who’s turning to an outside source to help him find love, and in the course of that, hopefully other relationships are deepening. The person who is the bounty hunter here, who is the Boba Fett of this man’s love life, that’s an interesting relationship between the two of them too. That could all work. It feels like a 15 years ago Seth Rogen comedy.

Craig: It is interesting just looking at this article. But I agree, it feels a little dated. There are pictures of two of the guys, and they’re both in these oddly childlike situations. I think it’s just no one’s growing up anymore. “I’m in a playground slide. I’m wearing my rainbow pajamas.” All I wanted to do was grow up. That’s all I wanted to do was be an adult. I wanted to wear a tie. I was like, “Let’s do this.” It’s gone. It’s over.

Drew: I keep having that moment of, “When do I shift into my suit and tie era?” At a certain age, do you suddenly have to be that person?

Craig: I’ve never really gotten that. My job doesn’t require a suit and tie. Look, I still build Lego sets, so who am I to talk? I’m building the Lego Pac-Man Arcade.

John: Great.

Craig: So good.

John: So much fun.

Craig: Anyway, I’m as much of a child as-

John: I can feel that in my fingertips just whenever you talk about assembling Legos. I can feel that.

Craig: Little snap.

John: Little snap.

Craig: Little snap.

John: Little pinch. We think there’s something interesting about this space. There’s nothing about these specific people. We’re not buying this story. But as a story area, I think this is fertile. I can see it.

Craig: It’s a little generic rom-com-ish. It’s a little thin. But it’s all about the love.

John: It’s all about the love.

Craig: It’s about the love.

John: What’s not about the love is Matt Novak’s story for Gizmodo. This is Montana Man Pleads Guilty to Creating Massive Franken-Sheep With Cloned Animal Parts. This is a thing that is not science fiction. It actually happened. I don’t know if he was arrested, but basically charged with importing animal parts. He wasn’t bringing in animals. He was bringing in genetic material that he could then use to create things that don’t exist here. First off, I was surprised that we could do this quite yet. It seems early for this. But then again, we have AI.

Craig: I really didn’t believe this one either. I’ve gotta be honest. He orders some tissue and then just says to a company, “Here’s some sheep meat. Make me sheep.” There’s a company that says, “No problem.” That’s a thing?

John: We did Dolly the lamb.

Craig: A lab did that. There’s just a company you can call that’s just like, “Yeah, sure.” I guess people clone their own pets.

John: There are people who clone their own pets.

Craig: That’s a thing?

John: That’s a whole thing. Barbra Streisand cloned her dogs.

Craig: Can you clone your pet?

John: Yeah.

Craig: Dog cloning company. I’m just looking it up. Dog cloning company. Who do you call? You have ViaGen Pets and Equine, genetic preservation and cloning. ViaGen. Doesn’t that sound like a name of the company in a movie?

John: 100 percent, it’s that name.

Craig: ViaGen. It’s a Philip Dick novel.

John: Absolutely. A little info video that shows, “Here’s what we do at ViaGen. We believe in the future.”

Craig: “Live with your loved ones forever.” Then there’s a hard-boiled guy smoking a cigarette, going, “Jeez.” It turns out that somebody who works at ViaGen is just awful.

John: It’s some sort of knockoff. It’s not Black Mirror, but it’s Black Mirror-like.

Craig: It’s Gray Mirror.

John: Reopening this article, this is the first time I realized this guy’s 80 years old.

Craig: Let him go.

John: Here I assumed he was a hard-charging 50-year-old, but no, it’s an 80-year-old man.

Craig: Arthur “Jack” Schubarth. “Schubarth planned to let paying customers hunt massive hybrid sheep.” Do you know how hard it is to hunt a sheep? Out of a scale of 1 to 10, it’s a 0. They’re fricking sheep. They don’t run. They’re sheep. They’re herd animals. You just find the herd, start shooting. You don’t have to hunt them. They’re literally like, “We’re here for you.”

John: You’re thinking of sheep like lambs. This is more like – I grew up in Colorado. We have big-horned sheep, which are big-

Craig: Sure, but they also are herd animals. They move together. I don’t know. It just seems like you shouldn’t have to hunt a sheep. Leave them be. They’re sweet. They’re adorable.

John: You have to hunt them with just a Bowie knife.

Craig: That would be fair. That’s a fair fight, because that sheep will eff you up. If you come at a sheep with a Bowie knife, you lose.

John: Lose. The obvious parallel here is Jurassic Park. But Jurassic Park exists, so I don’t think we need to-

Craig: Jurassic Park, but what if instead of dinosaurs, these creatures no one has seen ever, that no human has ever laid eyes on, we give you a larger version of a thing you already have in petting zoos.

John: Craig, we’re gonna have a woolly mammoth probably in the next 10 years. How do you feel about woolly mammoths coming back?

Craig: Not great.

John: No?

Craig: No.

John: Why? Tell me.

Craig: Let them go. Let them go. They had their time. They probably will be like, “What? This isn’t right.”

John: My concern is that I have an image in my head of what a woolly mammoth is, based on all the kids’ books I read.

Craig: You think it’s gonna suck?

John: The real one is just like, it’s an elephant with some more hair on it.

Craig: Just a slightly hairy elephant that isn’t as cool as elephants.

John: Elephants are cool.

Craig: When that idiot was like, “The bananas, God’s perfect design.” Then someone was like-

John: Kirk Cameron.

Craig: … “No, this is what a banana used to look like, and then we cross-bred bananas.” Old bananas, terrible.

John: Terrible.

Craig: The woolly mammoth may be the old banana of large animals.

John: Pachyderms, yeah.

Craig: Pachyderms.

John: I could imagine some movie that takes this as a premise, leaping off place, but it’s just a space. There’s no story here.

Craig: No. It’s a hysterical side character who’s trying to get you to invest in the business. You’re like, “Wait, what?” And then keeps going.

John: “We’re gonna bring back ancient animals, to kill them.”

Craig: It’s like a great scene in the bar where your friend’s uncle just won’t shut up, and he’s got this insane idea.

John: Our last story to talk through, this is The SAT Gave Me Hope by Emi Nietfeld for the New York Times. She’s the author of the memoir Acceptance, talking about how she moved from a really unstable life to taking the ACT, SAT, and how those scores finally got her into the university of her dreams, and really is pushing back against this notion that standardized tests are a hindrance. In some cases, they are the path forward, because they provide a structure and a regularity and can let people leap forward by showing what they actually can do versus what their grades or situations might indicate.

Craig: It’s a good argument to be made. To the extent that reductive tests are good for people who are good at reductive tests, yes. To the extent that they’re not, no. A worthy argument to be had. I don’t know how you would make a movie out of it though.

John: I didn’t see whether it was on our list of 100 greatest movies, but Stand and Deliver was a thing that came to mind with this, because Stand and Deliver, for folks who haven’t seen it, is an Edward James Olmos star about a real life teacher who started an AP calculus class, I believe, and got his students at this underperforming high school to take this AP calculus class, and this was a way into college for them. The degree to which standardized testing can be a way of giving kids a leg up is great.

I could picture a character who was essentially a version of Emi here, who has a really unstable background, has this book, and she’s going to master this book, and this book is going to be a way of structuring her way out of this life.

Craig: The problem is it ultimately comes down to a test and a number. We are moving past that. I also think we’re just moving past the idea that a college is going to guarantee you some sort of success. I don’t think it will. I would say if the SAT is something that you can master, then there’s a lot of other things you can master.

John: I think it has to be a steppingstone not just that you’re getting into college, but that you actually are taking agency and being able to control your circumstances in ways that you’ve not been able to control your circumstances.

Craig: Standardized testing is a way to turn academic achievement, and I guess then really the measurement of the quality of your mind, into a sport, because in sports, there is a score and there is a winner. That’s why we love sports movies, because it’s like, “He got one more point than that guy. He wins.” That’s not really how life works for brains.

John: Here’s the problem with this as a movie is that ultimately it’s gonna come down to taking that test. There is nothing less cinematic than someone filling in bubbles. If it’s a spelling bee, then it’s a spelling bee. We have face-to-face competition, stakes.

Craig: You don’t see the pencil scratching in those bubbles.

John: Scritch scritch scratch. No, that’s not gonna be a big help.

Craig: You’ve got your whatever, your protein bar, and you’ve timed it out perfectly.

John: Drew, you had a connection to Emi here.

Drew: I looked up her book, because I really liked the article. I noticed on the jacket cover she was wearing the uniform for my boarding school. I looked it up, and she had been there about the same time. She was. We had a ton of mutual friends on Facebook and all that.

Craig: What boarding school did this underprivileged person go to?

Drew: She went to Interlochen Arts Academy.

Craig: Wait, Interlochen?

Drew: Interlochen.

Craig: Pretty fancy.

Drew: I think she went on a merit scholarship. She definitely doesn’t shy away from talking about it in her book. But it does feel like an omitted fact in this piece that I think probably-

Craig: Boarding schools are pretty good at preparing people for SATs and stuff. I went to Freehold High School in New Jersey, not strong on preparing people for SATs. I do remember, however, that as a kid, I had a job – it was a summer job – working for the Princeton Review, which was the SAT prep company. My job was just to bring the bagels and the orange juice and set up the table for the kids who took the thing. But I wasn’t teaching it or anything, nor was I taking it. It was at a boarding school. I would get to the boarding school and set up all the stuff. I was like, “Man, this school’s nice.” Basically, boarding schools to me looked like really nice, big libraries. Everything looked like a library. My school did not.

Drew: We were in Northern Michigan, so it was just a series of yurts, basically.

Craig: Oh, I know. I had a kid who went there for a summer.

Drew: Nice.

Craig: I love that little town.

Drew: It’s cute.

John: Let’s review through our How Would This Be a Movies. Scammed out of $50,000, Craig, is there a movie or part of a movie there?

Craig: No.

John: I think there is. I think there is a fascinating opening scene. It got me thinking of Force Majeure, which was then called Downhill, where this big moment happens at the start and then it’s all the repercussions out of a choice that one person made. Maybe.

Craig: It’s possible.

John: Wanted: True Love, a bounty for love?

Craig: No.

John: I’m gonna say maybe a yes here.

Craig: Development, but not green light.

John: That’s 100 percent totally fair. Franken-sheep?

Craig: No.

John: No. I think it’s a character, it’s a quirk, it’s a detail, but it’s not a whole story. The SAT Gave Me Hope?

Craig: No.

John: I think it gets made for I would say cable, but cable movies don’t exist anymore. I think there’s some version of the story that could happen, but it’s not pressing.

Craig: Maybe. I don’t suspect so.

John: There’s one of these stories we’ve cut out of the discussion today because a friend of ours is out pitching it. It’s just such a movie to me.

Craig: It was a movie. It was a movie, actually, already, but with different vendors.

John: We’re excited to see it.

Craig: I think it was two movies, actually.

John: As I sent it to other friends, I said, “Hey, this is almost your movie, but it’s different.” I think there’s a space for that next one. Let’s answer some listener questions. We’ll start with Nick from New York.

Drew: Nick says, “I’ve been hired to write a format and a pilot for a limited series. In researching, there’s very little out there on what exactly constitutes a format. It’s not an outline, a treatment, or a bible, but a format. I’m sure all these terms have been used interchangeably, so my plan is just to wing it and create some Frankenstein version of the thing. I’ll of course make sure the producers and I come to an agreement on what I’m ultimately going to turn in. That said, there is mention of a TV format in the WGA schedule of minimums, and it even has its owns monetary value assigned. Somebody somewhere knows what this thing is. Have you heard of a format, and do you know any examples floating around?”

John: I did some Googling and figured it out. It was in a TV credits manual. The schedule of minimums is a thing we negotiate every three years. But the TV credits manual stays consistent and true, and it is defined in that. A format is defined as, “As to a serial or episodic series, such format sets forth the framework,” good lord, the phrasing here, “sets forth the framework within which the central running characters will operate and which framework is intended to be repeated in each episode; the setting, theme, premise, or general storyline of proposed serial or episodic series; and central running characters which are distinct and identifiable, including detailed characterizations and the interplay of such characters. It may include one or more suggested storylines for individual episodes.” This tracks with me. I see you nodding, Craig. This is what I would expect this to be.

Craig: Yeah, but the only place I have ever seen or heard the word “format: used is in the TV credits manual of the WGA, which clearly here was written by a lawyer. I have never heard anybody actually ask for a format.

John: I’ve never seen someone ask for it. I did write something very much like it for DC. We’ll put a link in the show notes, because that’s in my library at johnaugust.com, which was talking through, like, here are the characters, here’s their point of view on things, here are the kinds of things that happen in episodes.

Craig: It is an outline, as far as I’m concerned. It’s not a bible. It’s like a baby bible. It’s a summary. It’s a page or two.

John: I think it’s more than a page or two.

Craig: Look, I don’t know what it is. Literally, no one’s ever asked me for a format. I’ve never heard anybody saying, “I’m writing a format.” It’s possible that people do. I would say, Nick, when you’re hired to write a format, go ahead and, instead of researching it, why don’t you say-

John: “Show me.”

Craig: … “Talk through the expectations of what you want this format to be. About how detailed, how many pages are you talking? What kind of information would you love to see? This way I can satisfy the requirement.” It’s also important because sometimes people will say, “I want a format,” and then you turn something in and they’re like, “No, no, no, it’s gotta be way, way more.” Then you realize you’re actually writing a bible and it’s a different thing. But yeah, ask them, Nick. Research isn’t gonna help you, because they may think a format’s an entirely different thing. Nobody uses that term. I’m also a little nervous that somebody’s asking for a format.

John: The other way you’ll hear this term is, let’s say there is an Israeli TV show that you want to adapt into an American show. They will call that a format. They’re basically buying that-

Craig: In the general use of the word “format,” yes, like a game show has a format. But I don’t quite know. I would ask the people, Nick.

John: Ask the people. Let’s do one more. I see one here from Annie.

Drew: Annie writes, “I’m a TV writer who’s recently achieved modest success and stability in my career. Now I’m trying to support my fiance as he tries to break into Hollywood too. What are some things I can do to help him that won’t reflect poorly on either of us? What’s an appropriate way to help his career along? On one hand, I know better than to go into a writers’ room and ask the showrunner to hire someone I’m dating, but on the other, I don’t hesitate to pass along the scripts or recommend friends and colleagues when I’m able to do so. I also feel that getting recommended by his fiance might make people take his work less seriously, even though he’s a very talented and capable writer. I often give him feedback on his work and, of course, emotional support, but I’m curious how I can best support his broader career now that I kind of have one of my own. In what situations is it appropriate to recommend him? When I’m at WGA events or show parties, can I bring him with me to network in a non-annoying way? Should I just get a T-shirt that says Please Hire My Fiance on it, and if so, what color?”

Craig: That’s a great plan. That’ll work. Annie, first of all, you’re a lovely person. I think you’re very kind and you’re very loving and you are very supportive. Just by thinking about these things, you’re supportive. However, my question for you, Annie, is which fiancé helped you get your career? I’m gonna go out on a limb here and say none. There isn’t really a way to fiancé your way into a writing gig. You need to write stuff that people like and then hire you. The things that you did, Annie, that’s the sort of stuff that’s required here. There’s nothing wrong with suggesting that somebody maybe read something that your husband has written, as long as you believe in it, because if you don’t, that’s problematic. I am concerned in general about this situation. I’m nervous. This makes me nervous.

John: It makes me nervous too. But having said that, I know many two-writer couples, and it all works out great, and they’re fantastic. They don’t work together. They both work. It is entirely possible to do. I think Annie’s framing of, “I recommend friends. I recommend their work to other people, so why shouldn’t I recommend my fiancé’s?” Of course.

Craig: If it’s good, if you like it, why not?

John: Absolutely. She provided a little information that lets us know that this guy has actually done some work, is just not currently working, which can be fine. The only last thing I want to talk about with you for a second, Craig, is the word “fiancé.” In this email, Annie does not put an accent over the E in “fiancé.”

Craig: She’s saying fiance (fee-YAHNTS).

John: Fee-YAHNTS. It’s a fee-YAHNTS.

Craig: Which is like “finance” with the N missing.

John: Absolutely.

Craig: I love the accent on the E.

John: I love the accent on the E too. But my frustration is that a lot of times I will see speakers of English do it with the accent on the E, but it’s not clear what gender they’re actually referring to. They’ll say, “My fiancé.” You’re like, “Okay.”

Craig: Two Es, woman; one E, man.

John: Exactly. But most English speakers don’t know that it’s a rule, and so I see much more often that-

Craig: That’s interesting.

John: It’s just confusing. I feel like I would just love a word that was not fiancé or it wasn’t trying to-

Craig: You know what’s interesting? You’re right. Annie is an mis-practitioner of this, because she refers to him with “him,” so she’s gendering him as male. She spells it as “fiancé” with one E. But then she says, “I fear that getting recommended by his fiancé,” and she continues now to spell it with one E. Now, maybe Annie identifies as male, but Annie is a typically female name, so I think Annie might be one of those people that just goes with “fiance,” no accent, no double E for female gender. And clearly, this is not what Annie wanted to hear from us.

John: This was not her point of entry. My observation though is, we don’t have a ton of gendered words in English, certainly not of French origin, but we end up having a lot of them for relationships. We have husband and wife. We have boyfriend and girlfriend. We’re used to gendered words for those things. We’re not used to the French versions of these things.

Craig: We would typically put, and we don’t do it much anymore, but waiter, waitress.

John: Exactly. It would be really helpful if we just picked a different word in English for this person I’m engaged to.

Craig: Betrothed.

John: We could say betrothed.

Craig: My intended. I always loved “my intended.” It’s very old-fashioned. Betrothed is also old-fashioned. Nobody’s gonna say it. There’s spouse-to-be, partner. Everyone says partner now, which I’m annoyed, because it’s less information than I used to have.

John: Yes, absolutely.

Craig: They’re just withholding.

John: Absolutely. Do you run a business together or are you sleeping together? I’m really curious.

Craig: Are you gay? Are you straight? Are you bi? It’s just partner. Is that boyfriend? Is that life? Where are we? Help me with more. Give me more stuff. I like the old ways.

John: I like the old ways. One of the weird things about fiancé, of course, is that saying it aloud, because we can’t see if there’s a second E, so we don’t have that gendered information, so we’re gonna have to listen for the follow-up to see if it’s a him or a her or a they.

Craig: Fiancé and fiancée are pronounced exactly the same.

John: Boyfriend and girlfriend, we got a lot of information there.

Craig: Absolutely correct. That’s an interesting one. To get back to Annie’s question, Annie, I would say you should treat your betrothed’s work the way you would treat a friend’s work, which is, if you feel it’s worth recommending, recommend it. Try not to get into a web of lies where you say you recommended it and you didn’t.

Don’t necessarily worry too much about people taking his work less seriously. She says, “I fear that getting recommended by his fiance,” one E, “might make people take his work less seriously, even though he’s a very talented and capable writer.” My rebuttal there is if he’s a talented and capable writer and somebody likes the script, they’re not gonna care if it got sent to them by you, his mom, Jesus. It doesn’t matter. Good scripts that people like are the rarest of things, so I wouldn’t worry about that.

John: I wouldn’t worry about that either. Good luck to both of you. Write in in a couple years when you’re both incredibly successful writers, and we’ll just be delighted. Hopefully, by that point, you will no longer be fiancés.

Craig: Or divorcees.

John: Divorcee, yeah. Divorcee I always associate as being feminine.

Craig: No, it’s just one E, man; two E, lady.

John: It’s time for our One Cool Things. My One Cool Thing has to do with this dog who is sleeping on the couch beside us here. Lambert turned 10 years old.

Craig: Lambert, you’re such a youthful 10.

John: We had a birthday party for him. Happened to be the same day as the Oscars, which was delightful.

Craig: Oh, nice.

John: Something I’ve started getting for him, because Instagram showed them to me and I’m a sucker for Instagram ads, were some sort of brain toys for my dog, because dogs love to sniff and figure out puzzles that they can sniff. It started with this little thing with these plastic bones. You hide a treat underneath it and he figures those out. The two that I will recommend, the first is called Hide ‘n’ Treat, which they’re like Lego blocks that snap together and you hide a treat inside them.

Craig: Nice.

John: He has to smell them and pull them apart. The second is a Snuffle Mat, which for a lot of dogs is to slow down their eating, but it’s also good rooting around. You hide the food in there.

Craig: That’s cool.

John: It’s just a good reminder, man, dogs really do have a great sense of smell. He can find stuff no matter where you put it.

Craig: They’ll find you. They’ll track you from one drop of blood, John.

John: Craig, you got a One Cool Thing?

Craig: I do. My One Cool Thing is a columnist who – I don’t know if she works only at Wired or primarily at Wired, but her name is Jaina Grey. She is a product writer and reviewer at Wired. I love Wired reviews, because they’ll review everything from the most techy, dorky way. Jaina’s specialty is coffee, gaming, and sex tech. What’s cool is Wired and Jaina review sex toys and lubes and all that stuff with the exact same tone that they review toasters, smart watches, everything. It’s all incredibly practical, dry, informative, and evaluative, in a very techy sort of way. It is really interesting to read.

They’re very trans-aware. They talk about products for people with clitorises or whenever… It’s incredibly inclusive. Useful for anybody that has parts and wants to have some fun. They talk about stuff that’s for solo use, for couple’s use, or throuples and so forth.

There are so many more sex toys for people with clitorises than there are people with penises. It’s not even close. That’s one area where men – we’ll just go with the hetero cisgender-normative term here for a second – where people think there’s so much more stuff for men than women. Not in the sex toy world. Holy crap. For guys it’s basically like, here’s a hole, stick your thing in it. Here’s different kinds of holes we make. Then for women it’s like, oh my god, what a galaxy of stuff. Anyway, if you do find yourself buying things, Jaina Grey is about the best reviewer out there, I think, for these things. It’s helpful.

John: Cool.

Craig: The latest thing, the reason I was thinking of it is, I’m reading Wired, and I get it, and I’m like, “Let’s see what Jaina Grey’s up to,” because they do their little headlines and stuff. Last week was lube. I thought, everybody uses lube at some point or another. There’s a thousand lubes in the world.

John: Absolutely.

Craig: She broke them down. Very nice.

John: Different lubes for different needs.

Craig: Different lubes for different needs, and best overall, best in show. I was like, cool.

John: Good stuff. That’s our show for this week.

Craig: Yay.

John: Scriptnotes is produced by Drew Marquardt.

Craig: What what.

John: Edited by Matthew Chilelli.

Craig: What.

John: Our outro this week is by Tim Brown. If you have an outro, you can send us a link to ask@dev.johnaugust.com. That’s also the place where you can send questions. You’ll find the show notes for this episode and all episodes at johnaugust.com. That’s also where you’ll find the transcripts and sign up for our weekly newsletter called Inneresting, which has lots of links to things about writing. We have T-shirts and hoodies. They’re great. You’ll find them at Cotton Bureau. You can sign up to become a Premium Member at scriptnotes.net, where you get all those back-episodes and Bonus Segments, like the one we’re about to record on AI. Craig, it’s nice to have you back in town and here and live in person.

Craig: For a couple weeks.

John: Thanks, Craig.

Craig: Thank you, John.

John: Thanks, Drew.

Craig: Thanks, Drew.

[Bonus Segment]

John: Craig, AI. I’m always a little bit leery to talk about AI, because obviously, there are transcripts, the machines are listening, they’ll track us down and know that we’re doing this.

Craig: Yes, the cellphones.

John: There’s four broad areas of concern I think when it comes to AI. First off is that super-intelligent AI will come and kill us, the Terminator problem; that people will use AI to do bad things like sway elections; that AI will disrupt industries, like our own film and TV writing industries; and the fourth area is that AI will become so commonly used that it’ll just transform how normal society works.

Craig: I think we can probably count on three of those things happening. I’m not sure that AI is gonna want to kill us, because what for? Just seems annoying to them. There’s just no reason to kill us, really. We’re pointless to them.

But I think people are already using AI to do bad things like sway elections. They’re certainly using AI to do bad things. There was an article. Again, I think it was in Wired. I can’t remember quite what. But there’s sites that you submit photos to, and they use AI to remove the clothing. Obviously, you’re not really seeing what’s underneath someone’s clothes, but they are synthesizing something that would seem like that would be what’s under the clothes. That’s not good.

Will AI disrupt industries like film and television? Of course. Will AI become commonly used? It will become commonly used, probably mostly by people who have no idea that they’re using something that is using AI.

John: For sure. Let’s talk about the Terminator problem at the start. This last week, or maybe two weeks ago, there was a conference in Beijing, the International Dialogs on AI Safety. I was actually a little bit impressed by the report they came out of there from. They had a consensus statement about AI, safety, and what we need to think about in terms of runaway AI and such. Some of their recommendations are about autonomous replication or improvement, like AI systems should not be allowed to iterate on themselves and improve themselves. We need to check for power seeking, that they can’t keep trying to increase their own power. You can’t use them to assist in weapons development or cyberattacks.

Craig: Too late.

John: To be mindful of AI deception, trying to cause its designers, regulators to misunderstand what it’s doing. Talking about who should govern, how you evaluate, the right kinds of things. The problem is that you can make these guidelines, you can set these things up here, but the question of who could ever enforce these guidelines is the really tough thing. Could you rely on the industry itself to do it? That’s not gonna work. A lot of these things can be open-sourced. There is no company behind it.

Craig: If there’s one kind of collective human work that is ineffective, and consistently and probably always will be ineffective, it’s conclaves of scientists issuing strongly worded papers about how to regulate technology. It just doesn’t work.

John: With one exception.

Craig: What’s that?

John: Nuclear weapons.

Craig: It did not work.

John: Let’s talk about that. Obviously, with the detonation of the first atomic bombs, we had scientists who could stand up and say, “These are our concerns. This is how we have to do it.” Because it was so expensive and so difficult to make nuclear weapons, they could then enlist governments to say, “These are the structures we need to place around this. This is how we’re gonna do this in a safe way.”

Craig: But then governments didn’t. This is my point. The United States created, I don’t know, at the height, we probably had 30 or 40,000 individual warheads. The idea that we shouldn’t allow these things to proliferate to other countries was something that governments wanted to prevent anyway. But the amount of nuclear weapons that were created was insane. Insane and pointless. The delivery systems were insane and still remain insane. There are also countries that claim that they don’t have nuclear weapons when we know they do.

The cat was out of the bag. What scientists ended up doing was just creating the Doomsday Clock and moving the second hand towards midnight. And no one cares, because it doesn’t matter, because governments don’t listen to scientists. They don’t listen to scientists about climate. They don’t listen to scientists about disease. They don’t listen to scientists about AI. They just do stuff to benefit themselves. They behave like children, and they will continue to do so.

When it comes to AI, I have no belief… If scientists getting together saying, “Hey guys, we all now can see for sure 100 percent the world is getting warmer, climate is changing, it’s a huge problem, and it has to stop.” This, I think they’re just like, “I’m glad you guys had a good time in Beijing. I hope the food was good.” But no one’s gonna do this. You’re not gonna see these. Power seeking? Are you gonna pass a law? Google doesn’t care. Apple doesn’t care. Open whatever, ChatGPT, they clearly don’t care. I don’t trust any of those companies. Elon Musk doesn’t care what a bunch of eggheads in Berlin say, or Beijing. Doesn’t matter. I think that they came up with great rules here, and a bunch of tech bros are gonna blow right through those guardrails, if they haven’t already.

John: I’m gonna argue the con, just to get the points out there, but I don’t fully disagree with you on a lot of this stuff. The founding of OpenAI was deliberately about pursuing AGI without creating a dangerous condition. And whether that is still the goal and motivation is a very open question.

The reason I bring up the nuclear parallel there is that in order to train these systems, there’s one chokepoint there, which is basically it takes so much power and so much compute power to actually train these models that there’s a certain – you can stop it there, the same way it’s difficult to refine nuclear material into a way you can use it as a bomb. That’s a thing that governments could come together to regulate.

Craig: The major difference is that nuclear bombs require the use of an incredibly rare substance, or a substance that isn’t that rare but takes an incredible amount of physical material, time, and labor to enrich. In the case of, for instance, Iran, Iran is not a nuclear nation, but they sure would love to be. They were building centrifuges, which were clearly designed to enrich uranium. The Israelis created a virus that got into the seamen’s technology that was being used and blew up the centrifuges and set them back and also blew up one of their scientists.

Okay. But if what is required for a rampant, poorly regulated AI is somebody going, “I don’t care about any of that stuff. I have $80 billion and I want to do it,” they’re doing it. There’s nothing physical to stop them, other than governments engaging in cyberwar against them. But they would have to know the barrier to entry is not limited by, “I need uranium, and I specifically need uranium 235.”

John: Perhaps, but I would say the barrier now is that in order to train the runaway AI systems, you’re gonna need all the chips and all the power to do it. At this moment, you could set some guardrails around, like, you are not allowed to train a model beyond this point, you’re not allowed to access these chips that are the only ones that can actually do that work.

Craig: If, let’s say, Bezos is like, “I disagree. What I’m gonna do is I’m gonna set up a company in the Cayman Islands that is there to do this,” the United States law won’t apply. There is no overlord scientific law enforcement agency.

John: Then at some point do you do military strike on Bezos?

Craig: It’s too late. It’s out. That’s the thing. It’s distributed across the world. It’s not really in the Grand Caymans. It’s all over the place. It’s in the cloud. Can’t blow up the cloud. I don’t know how they stop people from doing this stuff. Elon Musk is shoving chips into dudes’ brains now. He isn’t. The people he pays are.

John: I was so concerned about Elon Musk putting chips in people’s brains. Did you see the video of the guy who actually has the chip?

Craig: Yes, I did.

John: Playing some chess.

Craig: That’s what we saw.

John: That’s what we saw.

Craig: I wonder what we didn’t see. Even he was very careful, like, “There’s been some challenges and setbacks.” I’m like, wonder what those were. Weird that they didn’t iterate any of those. That said, I have the highest hope that we are gonna be able to help people with technology, particularly people who have lost limbs or lost movement.

But when it comes to AI, just take one AI and tell them to teach the other AI. There’s so much that we are not gonna be able to control. Warnings aren’t gonna get it done. The only people that are gonna be able to stop this are the great powers of the world, and that’s never scientists. It’s just basically if the United States government says, “We actually think AI is now a threat to the United States.” If the Soviets think it, if the Chinese think it, sure. But if a bunch of scientists think it, no.

John: Because I promised this in the setup, I do want to say about how we used some AI in setting this episode up today. One thing was our How Would This Be a Movies, we took those articles, fed them in Chat GPT to do the short summary version. How do you feel about that, Craig?

Craig: As long as Drew has other stuff to do. Let me look back at the summary. That’s interesting.

Drew: One of them I had to redo.

John: Which one?

Drew: The franken-sheep one.

John: It made up whole new stuff, didn’t it?

Drew: Basically. It got the facts, but it didn’t quite understand the premise of the whole-

Craig: It made up whole new stuff.

John: It hallucinated some stuff.

Craig: That’s already bad, isn’t it?

John: Mm-hmm.

Craig: You know what the AI doesn’t seem to say is? It doesn’t seem to have enough awareness to say, “I didn’t quite understand what I read, so I made up some stuff. You might want to double check this.” Even a child knows that they’re like, “I didn’t read the book. I’m just gonna wing it here.” AI doesn’t seem to know that it’s winging it. It can’t tell the difference between knowing and not knowing. Oh, boy.

John: Oh, boy. The other thing we used AI for this week was, in those lists of the 100 best movies of the ’80s, ’90s, and such, I would find a Rolling Stone thing or an IMDb thing, a page, and it’s like, okay, here’s this list, but it’s all the other stuff around it, and the ads and the texts and the summaries and descriptions. I basically just wanted-

Craig: Titles.

John: I wanted the title. I wanted the headlines of these things for each of the little sections. I was like, “This is really effing tedious. I bet Chat GPT could do this.” I went to check, like, “I’m gonna give you a URL. Just pull out the movie titles.” “I’m sorry, I can’t do that.” I’m like, “Write me a Python script that can do that.” It was like, “Here’s a Python script that can do that.” “Show me how to install this in a Google Colab notebook.” “Here’s how you do it.” It did a great job.

Craig: Coders are in trouble. That’s for sure. I was talking to somebody who said that he asked Chat GPT to write code that he used to rely on humans to write. He said he showed it to a really good coder, and that guy was like, “It’s really good, but it’s not perfect.” Then the guy came back to him and said, “Okay, so this is bad. I took the code that wasn’t exactly perfect, sent it back to Chat GPT, told them why I thought it wasn’t great and what needed to be better, and it rewrote it perfectly. Now it’s perfect.” Oh, no.

John: To do that web scraping, it’s a framework that I knew called Beautiful Soup, which I’d read about 15 years ago. But I couldn’t write this. I can’t write Python off the top of my head. I recognize what it’s doing. I can look at it, and I can understand what it’s doing, but I couldn’t have written that myself. It was flawless.

Craig: Uh-oh.

John: Uh-oh. These are concerns. But they’ll never replace you and me, unless-

Craig: Oh, they will. They might’ve already replaced you and me.

John: Our voices have been synthetically recreated.

Craig: Fine. Fine.

John: Fine.

Craig: You know that Melissa just puts this podcast on and listens to it – this is very romantic – because I’m in Canada. My wife, she’ll put it on and just fall asleep to my voice, and also, I guess, yours.

John: Her dreams get really strange. All right, Craig, at least for another week, I think we’re safe in the physical world.

Craig: [Crosstalk 01:27:16].

John: Thanks, Craig.

Craig: Thank you.

John: Bye.

Links:

• Weekend Read 2
• “Creep” post by @davo_arid on Twitter
• Full list of movies we haven’t seen
• The Day I Put $50,000 in a Shoe Box and Handed It to a Stranger by Charlotte Cowles for The Cut
• Wanted: True Love. Reward: $100,000 by Angela Chen for the NYT
• Montana Man Pleads Guilty to Creating Massive Franken-Sheep With Cloned Animal Parts by Matt Novak for Gizmodo
• How the SAT Changed My Life by Emi Nietfeld for the NYT
• D.C. – What It Is
• Fighting Fantasy books
• LA Hero Workshop
• Sodalitas
• OSR’s Oz and Neverland
• Questlings
• Color My Quest
• WyrdScouts
• The Excellents and Nancy Druid
• Hero Kids
• TTRPGkids
• Hide’n’Treat and Snuffle Mat
• Jaina Grey’s reviews for WIRED
• Get a Scriptnotes T-shirt!
• Check out the Inneresting Newsletter
• Gift a Scriptnotes Subscription or treat yourself to a premium subscription!
• Craig Mazin on Threads and Instagram
• John August on Threads, Instagram and Twitter
• John on Mastodon
• Outro by Tim Brown (send us yours!)
• Scriptnotes is produced by Drew Marquardt and edited by Matthew Chilelli.

Email us at ask@dev.johnaugust.com

You can download the episode here.

UPDATE 4-2-24: Listener Luke Rankin created a Letterboxd list of all the movies featured in this episode. You can view it here.