"No Accident," the new HBO documentary featuring Robbie Kaplan and Karen Dunn
It’s a moment seared in the American consciousness: A group of white nationalists staged a violent rally in Charlottesville, Va., including ramming a car into a crowd of counter-protestors, in a stated attempt to start a race war in the country. The tension over the open bigotry was intensified by President Trump’s subsequent remarks that there were “very fine people on both sides.”
Robbie Kaplan was transfixed by the news as it unfolded, along with everyone else in the country. After hearing Trump’s remarks, she knew she had to do what she could to find justice for the victims.
She called up Karen Dunn, former prosecutor and partner at Paul Weiss and said, “Want to sue the Nazis with me?” Dunn was all in.
Dyllan McGee, documentary filmmaker and producer of “MAKERS: Women Who Make America,” caught wind of the case earlier on, and asked if she could film the process. The result is “No Accident,” a documentary premiering tonight on HBO. The film follows Kaplan and Dunn through the process of gathering evidence, prepping witnesses, and presenting their findings of civil conspiracy and race-based violence at trial.
The nine plaintiffs in Sines v. Kessler were all residents of Charlottesville who had sustained physical and psychological harm from the rally. The lead plaintiff was Elizabeth Sines, who was a University of Virginia law student at the time. They brought the case against lead defendant Jason Kessler, a neo-Nazi and one of the main organizers of the Unite the Right rally, as well as several other individuals and organizations accused of planning and promoting the rally, notably through the online chat platform, Discord.
After four years of discovery, three weeks of trial and three days of deliberation, the jury in federal court in Virginia returned a verdict of $25M for the plaintiffs.
We caught up with Kaplan and Dunn about the experience of being filmed throughout the trial process, and the impact they’re hoping this might have on the continued discussion of this flashpoint moment in American history.
Lawdragon: From our perspective, this is such an exciting project. But, did either of you have any reservations about going on camera for this?
Karen Dunn: We grew to accommodate it. As lawyers and advocates, it's not always your first choice to have your work filmed, particularly in high stress situations when you're trying to just put the case together. But I do think that the people who made the film were exceptional at earning our trust, and earning the trust of the plaintiffs. They tolerated our reluctance very well. Ultimately it was clear that they cared so much about the fight we were waging and about finding justice for the plaintiffs and others in Charlottesville, that over time we viewed them as part of the effort.
Robbie Kaplan: Karen and I both like to think of each of ourselves as lawyers’ lawyers. So for someone who practices law the way we do, it's not easy to open up what you do in building a case. But, like everyone involved in the film, Karen and I were both so driven by the mission, by how important it was. To expose the danger of the defendants in the case and the movement they represent to the wider American public – we believed it was a risk worth taking. We were trying to expose what we both see as a terrible problem in our country today. It was important for us to do that by bringing the case, but also by allowing these filmmakers to do what they did so well.
To expose the danger of the defendants in the case and the movement they represent to the wider American public – we believed it was a risk worth taking.
Although at the premiere in New York last week, the director made a joke onstage about how we were always pushing her away, telling her to get back when we were busy doing things. But that just comes with the territory.
KD: Robbie makes a great point about exposing the defendants. In state court, you can have cameras in the courtroom, but in federal court you cannot. So one of our frustrations during the trial was that because there are no cameras in the courtroom, nobody could see the evidence. And the evidence in this case was so powerful and so important for people to see and understand. So in a way, this movie really addresses that frustration. They did a truly extraordinary job, even unable to bring the camera into the courtroom, reproducing what happened there, and being able to give people who watch the movie an understanding of the evidence and arguments in the case. In fact, I don't think I've ever seen a movie do it as well as this one does.
LD: Robbie, what was your entry point for the litigation? Did you see this injustice and know that something needed to happen, and you built a legal strategy out of that?
RB: That's pretty much exactly what happened. I had just opened my law firm in July of 2017, and this happened the first week of August, almost right after we moved into our office space at the Empire State Building. We had about four or five people working for us at the time. We were not a big operation to say the least. I wanted our firm to be dedicated to doing public interest work, and Charlottesville happened, and it was such an important issue right away.
We watched the press during lunch, and that's when President Trump gave the now infamous press conference where he said, there are “fine people on both sides.” I thought something needed to happen, something needed to be done about it. And I was very concerned, rightly so, that then-Attorney General Jeff Sessions, who didn't have the world's greatest record on civil rights, probably wouldn't do anything. So I said, if no one else is going to do it, I will. I also knew there was no way I could do it on my own, so that’s when I called Karen. “Do you want to sue the Nazis with me?”
LD: Karen, did you have any hesitation in taking on this case?
KD: None. It was an offer I couldn’t refuse. I had obviously known of Robbie, but I think in retrospect, it's almost unbelievable that we had not worked together or even met prior to this time. So I said yes right away. At the same time, I don't even think either one of us fully appreciated the twists and turns the litigation would take and what a large part of our lives and our team's lives that this case would become over the next four years. It took a long time to bring the case to trial. The movie does an incredibly good job of showing how hard it was to collect all the evidence, including because the defendants obstructed the collection of evidence to the best of their abilities. And it's amazing to me that we went from not knowing each other to being a really excellent partnership for this case.
RK: There's a moment at the end of the movie where they're interviewing me in Charlottesville. The jury was out, but hadn't yet reached the verdict, which is a couple of days and was not the easiest days of any of our lifetimes. And I look terrible, honestly. I look exhausted, but I'm talking to the filmmakers. I explain that what we've been living at trial for weeks, and really for years of the case, was daily repeated normalization of the most odious, hateful rhetoric that you can possibly imagine. Literally, “Mein Kampf” came up repeatedly, every single day of trial. These guys think it’s the greatest book they've ever read. They spent a lot of the trial trying to justify their own beliefs, which was hard to watch on the one hand. Maybe even harder was that, by the end of the trial, it had become so normalized to us. The filmmakers do an excellent job of capturing that, this hateful rhetoric becoming everyday discourse.
The day-to-day grind of a successful case is portrayed in this documentary better than I think I've ever seen it. You really see what it's like to be in the trenches with people.
They also do an excellent job of conveying that, in order to be a great trial lawyer and litigator, it takes just an enormous amount of work. You have to sweat the details. You have to do the grind of making sure that everything you say and everything you do is correct and accurate and helpful. As Karen said, that kind of day-to-day grind of a successful case is portrayed in this documentary better than I think I've ever seen it. You really see what it's like to be in the trenches with people, and in this case, in some very deep trenches fighting some very vicious adversaries.
LD: This was such an emotionally heavy case. What sort of self-care practices did you have in place for yourselves and your team?
RK: We did what we could to try and ease the constant stress and heartache of it. The most obvious thing was humor, which was helpful in lightening the load. Karen talks in the movie about some of the Discord messages leading up to the events in Charlottesville. Many of them are of course, horrific, talking about what weapons to use and plans to run over protestors. But others are the most banal topics, like where to get gluten-free bread, and how you shouldn’t put mayo on the sandwiches because they’d go bad in the sun. We spent a lot of time laughing about those messages, which I think is mentally healthy to do.
Personally, I’m Jewish, and that has always been important to me, but it became very important to me during the trial. Many lovely people in Charlotteville had us to their homes for Shabbat, and I went to Temple. It provided a kind of salve to what was going on.
KD: It's also helpful to recognize that that's the point. Part of the tactics of the conspiracy that we revealed during the case, is this idea that if you say these things over and over and over again, people will become desensitized. So in closing, we expressly said this to the jury so that they would recognize when they deliberated that when they first heard these horrific things, they were shocked by them. But then they would hear them four, five, six times, because the defendants would play them over and over. They did it purposely to desensitize the jury, to make it seem like it’s not such a big deal anymore. So it helped the group to stay conscious of that part of the goal in the white supremacist movement, to desensitize all of us to what's going on right in front of our faces. That's a lesson that needed to be seen and revealed in the courtroom, but also needs to be seen and revealed in the broader world.
We also should make sure to say that we were two members of an incredible team, and this litigation was truly a team effort. Jessica Phillips, my colleague from Paul Weiss; Mike Bloch from Robbie’s firm; Alan Levine and David Mills from Cooley. There were a lot of people who put their blood, sweat and tears into this case and just did truly exceptional legal work, putting the case together, helping the plaintiffs get prepared to testify. For four years, Jessica and Mike steered the day to day of the case, helping move us forward and achieving critical results along the way. This included multiple court room wins by Jessica that led to contempt of court findings against the defendants and one defendant being sent to jail. We cannot thank this team enough for their unwavering dedication and incredible legal skills.
LD: Can you walk us through the crux of your legal argument?
It helped the group to stay conscious of that part of the goal in the white supremacist movement, to desensitize all of us to what's going on right in front of our faces.
RK: It’s not that complicated. There was a conspiracy. We charged conspiracy both under federal and state law, that for weeks and months leading up to what happened in Charlottesville, a variety of groups – leaders, promotors and foot soldiers, agreed to gather in Charlottesville for the weekend of August 11th and 12th in order to, as they put it, start the race war. To provoke violence against minority groups based on their own racism and antisemitism and sexism and homophobia, consistent with their ideology. They hoped to start a race war in this country that reestablishes white supremacy.
KD: The law of conspiracy is very broad. So if you're in a conspiracy, you're liable for the foreseeable consequences of the actions of your co-conspirators. And you can be found to be in a conspiracy, even if you don't personally know the other co-conspirators. So if you're engaged in common acts or there are other reasons to believe that you're connected and that there's some common agreement, then a jury can find that there's a conspiracy. That's very much what happened here, which is there were people who didn't necessarily know each other personally, although some did, who were connected by a common scheme or plan to commit specific overt acts. That can support a finding of conspiracy.
RK: At the time it was an unprecedented form of conspiracy through social media platforms, with people and groups all over the U.S. communicating over Discord. It wasn’t a local thing. Now, unfortunately there is more precedent, with January 6th.
LD: It’s unfortunate how relevant this film is, seven years after the incident.
RK: Yep. I very much hope that more and more Americans see it, so they can understand the kind of threats our democracy is facing.