6 Ways TV Gets It Wrong
Perhaps I’m a big nerd, but even though I practice law during the day, I still enjoy watching the occasional legal fiction. A Law and Order episode is always a guilty pleasure, and I’ve seen Legally Blonde more than once.
But while this stuff is fun, these shows often portray common misconceptions about what is actually permissible in legal settings. Below are six common scenes that should never happen in real life.
1. The “walking ruling”
Scene: Critical evidence was collected inappropriately. One of the attorneys wants the evidence out, the other wants it in. The judge is dramatically walking down the halls of the courthouse while the two attorneys argue about the evidence. Just as the judge puts on their robes to start court, the judge make their ruling. An attorney is devastated.
Reality: There are these things called “appeals” that permit a losing a party to petition a higher court to review the record for errors. “Record” is the key word in “appeal;” appellate courts can’t review anything without looking over a record of what transpired. Evidentiary rulings are immensely important in trial settings, and evidence-based issues are the most likely reason to get a case reversed. As such, anything involving the admission or production or exclusion of evidence will happen in the courtroom with the tape recorder or stenographer at the ready. Anything that happens in a hallway or judge’s chambers is off the record, which means it’s unreviewable. That’s a bad thing.
Attorneys can certainly talk to each other in hallways or wherever they want. But when judges and rulings are involved, every word needs to be preserved.
2. The “key case” moment
Scene: Most legal dramas don’t show the research and writing of practicing law, because it’s boring. But if they show the scene at all, it’s a lawyer hunched over a book until they find a key page. They slam the book closed, wipe the sweat off their brow, reveal the case law the next day in court, win their case, and get elected president.
Reality: Where to begin? Depending on the stakes, you can multiply any research/writing scene shown on TV by 25 hours to get a sense of what actually occurs. And of course, who uses books anymore? Lawyers use computers to research, which is much more efficient, even if you can’t dramatically slam them shut.
There’s almost never a situation where you’re researching cases the day before you have to present in court. It’s just not the way our system works. You do some research and write something, then you give a copy to the other side and to the judge. They get the time to review the work you’ve done and maybe there’s a reply. You have time to review that, etc. The process is about reasoned discourse, not ambush.
Also, and this is a big one, there’s never one crucial case. Legal writing sometimes requires everysentence to have a case behind it (did I mention there’s a lot of research in practicing law?). The handful of cases that exist that are that are that potent are so well known as to make research superfluous. “I need a case that says my client shouldn’t have to use a separate drinking fountain because of his race…wow, Brown v. Board of Education is directly on point! They’ll never see this one coming!”
3. The “testifying attorney”
Scene: The prosecutor has the defendant in his sights, but the obviously guilty person keeps wiggling free. Then this exchange:
Prosecutor: “After you killed your wife with a hatchet you slept with your mistress then burned down your house to collect the insurance, right?”
Defense attorney: “Objection!”
Prosecutor: “Withdrawn. No further questions.”
Reality: Besides the fact this is a very compound question, it also makes no sense. If the evidence supports all these crazy allegations, you certainly don’t need the defendant to confess on the stand. But on TV, evidence of this stuff was excluded, so the prosecutor needs to plant the seed in the jury’s mind. Who cares if there was an objection? The jury gets wondering…
Well that prosecutor should wonder what he’ll do for his next job, because any attorney who tries stunts like that will get suspended and/or fired. In reality the defense attorney would move for an immediate mistrial and because it was based on hideous prosecutorial misconduct, the court has the authority to bar a new trial completely.
Back-door attempts to get in excluded evidence are exactly what the rules of evidence are trying to prevent. If a witness lets something slip the judge may or may not declare a mistrial, but if the witness wasn’t goaded into the forbidden statement, no harm to the attorneys. However, if a lawyer tries to game the system like that, they’re in for a world of discipline.
4. The “dramatic confrontation”
Scene: The lying witness is on the stand, lying their lies all over the place. The attorney knows they’re lying but they can’t prove it. So they rush the witness stand, hold their finger an inch from the witness’s face, and proceeds with the most brutal cross-examination in the history of inquisition. The witness breaks down and admits fabricating everything.
Reality: Ask someone who’s testified before. They will tell you it’s a stressful experience. You’re under penalty of perjury, it’s high stakes, you have complete strangers evaluating every word you say, and an attorney itching to catch you in some mistake or error and make you look terrible in front of the world.
To give the witness some protection, attorneys are forbidden from getting too close to the witness stand or aggressively demeaning the witness. These rules have a little wiggle room, but the stuff one sees on TV are tantamount to assault. The correct procedure is to ask the court’s permission to approach the witness, which you would usually only to hand them a document or exhibit.
The fact is, witnesses don’t break down and beg absolution on the witness stand. Perry Mason made it look easy but the fact is, if the witness is going to lie once, they’re not going to stop five minutes later. Either the lawyer has the goods to poke holes in their story or they don’t. Attempting to verbally bludgeon a confession out of the witness just makes you look mean in front of the jury, and desperate besides.
5. The “surprise evidence”
Scene: Another tough cross examination, another lying witness. But the lawyer has a plan: a secret document/recording/witness that will reveal the witness as the true murderer! The attorney whips out a tape and plays it to the rapt courtroom. The witness sinks in his seat while the witness’s attorney wonders what the hell is going to be revealed.
Reality: No secret witnesses! No secret tapes! We no longer have trial by ambush. If a party wants to use a witness in trial, they tell the other side ahead of time. If they want to use a tape in trial, the other side gets a copy. As I said above, trial is about dispute resolution, not how many secret arrows you have in your quiver. Both sides get to prepare their case. If a side does have a secret tape, if they don’t turn it over it will not go in front of a jury. More likely that side gets sanctioned or their case dismissed. Our state is big on reciprocal discovery, so we have duties to turn things over even if you have no plan to use it at trial. But across the country, everything you do plan to use has to be shared first.
6. The “prosecutor/defendant” conversation
Scene: The defense lawyer and defendant are meeting the prosecutor in his office. The prosecutor makes an offer and the lawyer tells the prosecutor to pound sand. The prosecutor turns to the defendant and says something like, “ignore your lawyer and take this deal.” The defendant does.
Reality: There is a very important Rule of Professional Conduct, the lawyer ethics rules, called RPC 4.2. RPC 4.2 is a really fundamental rule that says that a lawyer cannot communicate with a person when that lawyer knows the person is represented by an attorney. In other words, lawyers talk to lawyers. Lawyers don’t directly talk to other lawyers’ clients.
This rule is so important because the whole point of getting an attorney is for them to navigate the process and advocate for your interests. The law is complicated and not everyone involved has your best interests. Your attorney is there to ensure your interests are represented.
The idea with RPC 4.2 is that in legal matters, attorney vs. non-attorney is not a fair fight. If a person goes through the effort of obtaining counsel, the other lawyer must respect that and only go through that counsel. That’s the whole point of advocacy. Someone represents you instead of you having to endure it by yourself.
You hardly ever see an RPC 4.2 violation because, again, it so fundamental to our system. You can bet that if an attorney actually did some of the end-run stuff portrayed in legal fiction, they’d be summarily disbarred. Our system is built on lawyers dealing with lawyers.
Besides that, a lot of negotiating happens over phone or by email. Email exchanges do not make compelling television, hence why those legal dramas don’t show them. But the idea of negotiating happening face-to-face in a prosecutor’s office is rare. The idea of the prosecutor directly dealing with a defendant is pure fiction.
It may not be a surprise that legal dramas don’t always accurately portray what’s legal and what’s not when it comes to the courtroom. A lot of what they do does make for a compelling story. Just make sure that you listen to your lawyer, rather than TV, when you head to court.