Guest post: Aaron Schwabach on movies and TV getting the law right (or not)

Inspired by this episode of the Writing Excuses podcast, in which a legal expert discussed what writers get wrong about the law, I recently asked on my e-newsletter: "Those of you with legal know-how: what bugs you that fiction (books, TV, etc.) keeps getting wrong when it comes to law? Or do you let it all slide in the name of entertainment?"

My longtime online friend Aaron Schwabach, who is not only an exuberant fanboy of many of the same things I love, but also a law professor, gave such a wonderfully detailed and entertaining answer that I asked him if I could run it as a guest post. He agreed, so here it is, for the edification of all us writers, or just for anyone who's curious. Thank you, Aaron!

Law in fiction: I tend to overlook most of it for the sake of storytelling, especially in a movie where time is limited.  The same is true for police work, medicine, espionage, or most other “exciting” professions.  Most cops never shoot anyone or get shot by anyone; doctors don’t discover cures for previously unknown diseases and halt epidemics within 48 hours; real life work at the CIA involves hours, days, and months of sitting in a cubicle looking at documents and photographs.  All of those make for a boring story, as would watching a real life lawyer practice law most of the time.  

One of the truest depictions in literature is the chapter of A Tale of Two Cities in which the two attorneys (Stryver and Sidney Carton) defending Charles Darnay pull an all-nighter, working on the case, bickering with each other, getting a bit too personal at times, and drinking way too much (sadly realistic for many attorneys) - as accurate today as in 1859.

In cinema, an oddly and unexpectedly accurate portrayal of the practice of law - one which gets almost everything right and for which the writers clearly did their homework - is My Cousin Vinny.  Everything - including arcana like the pro hac vice appearance and Vinny’s questioning of the guy in the neck brace - has been meticulously researched.

Some courtroom scenes are clearly played solely for laughs (as in Aladdin & The King of Thieves ["I object to a tertiary character having any lines in my big courtroom scene!”] or Liar, Liar! [“I hold myself in contempt”]) and it would be silly to worry about their accuracy.  (Throw in a police officer and you have the manic scene in which Woody Allen represents himself in court in Bananas.)

The worst I can think of offhand, in that it tries to take itself seriously, is Suspect, with Cher, Dennis Quaid, and Liam Neeson.  I tell the students in my Professional Responsibility class: “Watch this movie.  Study everything Cher's character does in the movie. And then don’t do it.  Ever.” The same applies to pretty much everything every other attorney in the movie does as well.

A curious case is Arrow.  The other superhero series with a lot of lawyering that comes to mind is Gotham, but that’s so comic-bookish that the inaccuracies aren’t distracting.  Through the first few episodes of Arrow every time Laurel Lance did some lawyering I’d be grumbling at the screen “that would trigger an investigation by the state bar.  She’d probably get fired and maybe disbarred.”  And then… the state bar investigates her.  And she gets fired.  And maybe disbarred.

Top triggers:

Lawyers cannot engage in ex parte (that is, one on one, without the other party’s lawyer present) communications with judges, jurors, or court officials.  Same goes for judges talking to one party’s lawyer.

Lawyers should not talk to jurors outside the courtroom at all. Ever.

Lawyers cannot talk directly to the opposing party if that party is represented by counsel.  All communication has to go through the other party’s lawyer.  (The parties can still talk to each other, though, and it usually goes badly.)

Real life cases take a lot longer… that’s just movie time, though.

Surprise witnesses are almost unheard of.  Each side has had months to examine the other side’s list of witnesses and depose the witnesses if they wish.

Similarly, evidence that changes everything almost never suddenly turns up at the last minute.

The lawyer is never called as a witness.  (Again, theoretically possible in extreme cases but vanishingly rare.)

Lawyers can’t reveal client confidences except in certain narrowly defined circumstances, and they’re never required to except in even more narrowly defined circumstances.

New, exonerating evidence does not automatically result in the wrongfully convicted defendant being set free.  This can take years, or may not happen at all.  (Another show that deals with this quite well is Limitless, tragically cancelled after just one season.)

Lawyers are admitted to practice in a single state and can not automatically practice in the courts of another state. (See My Cousin Vinny above for how to handle this correctly.  Also, they can practice in federal court.) And they definitely cannot practice in the courts of another country.  

Another example of getting things right: In the courtroom scene in Cheech & Chong’s stoner classic Up in Smoke, a mistrial is declared when it turns out the judge’s glass of water is actually vodka.  Stuff like that does happen and does result in mistrials.  (Google “penis pump judge” for an extreme example.)


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