The Law Plays Itself on Television:
By JULIE HILDEN
Tuesday, Nov. 09, 2004
The way the law is depicted on television is far from realistic - and rightly so. Television writers and producers are wise to edit out those aspects of criminal and civil cases that are tedious, or simply undramatic. They are also smart to impose the "Aristotelian unities" of time and space upon their shows: A trial that takes play in a day, in a single courtroom, is much more riveting than one that takes place in fits and starts, over years.
However, there is always the risk of viewers thinking that the law in real life is similar to the way the law is depicted on television. In this column, I will discuss a number of different dramatic choices that have been recently made on legal television shows, and what impact -- if any -- they may be having on real life.
The First Convention: Physical Evidence Is the Ultimate Source of Truth
"CSI: Crime Scene Investigation" and its spin-offs - "CSI: Miami," and "CSI: New York" - remain extremely popular. The main premise of all these shows is that the physical evidence -- if interpreted by adept crime scene investigators -- will ultimately finger the correct perpetrator of a given crime.
These shows seem to have had the positive effect of rehabilitating the value of DNA evidence in the public mind. After the O.J. Simpson trial, DNA evidence seemed controversial, and subject to attack. But those who watch the trio of "CSI" shows are taught to believe DNA evidence is incontrovertible.
To some extent, that's a good thing. According to USA Today, the "CSI effect" has real-life juries expecting that prosecutors will prove their case by reliance on physical and forensic evidence alone - not witness testimony. And as Michael Dorf discussed in an earlier column for this site, eyewitness testimony is surprisingly inaccurate. Witnesses can be adamant, but simply wrong. They also inevitably filter what they do see through the vulnerabilities and biases of their own observation and perception.
Yet the "CSI effect" may also have a somewhat negative side - for there are some cases where testimony must be the linchpin. Particularly when the victim knows, or even lives with, his or her attacker, the physical evidence may tend to be ambiguous. On "CSI," the evidence alone will tend to provide "beyond a reasonable doubt" proof. But in real life, testimony may be necessary to fill in the gaps - and demanding that the evidence alone must tell the whole story may be unrealistic.
Scoffing at Those Who "Lawyer Up," and Suggesting Confessions Are the Norm
Perhaps the most exciting moment of a crime show is the one in which the true perpetrator finally confesses. Crime novels traditionally have featured a long speech in which the detective solves the crime. But legal televisions shows, instead, tend to include a speech in which the accused confesses to the detectives - or at least confesses his guilt when faced with detectives' inexorable logic.
"Law & Order: Criminal Intent" is a good example of such a show. Unlike "Law and Order," which is split in half - divided between police and prosecutors - "Law & Order: Criminal Intent" is all police work. For that reason, its natural climax is always a confession made to the authorities.
Thus - quite unrealistically -- even when defendants have easy access to attorneys, and are not easily intimidated, they rarely "lawyer up." A lawyer, of course, would likely advise them not to speak to the police - and thus would stop the investigation in its tracks.
On the "CSI" trio of shows, as well, lawyers are rarely seen (or, if present, are usually ineffectual and easily cowed): Though lawyers are a real-life staple, their absence is often a dramatic necessity. Lawyers are an impediment to an exciting plot - which leads to another television convention: The convention is that "lawyering up" is a craven act, to which only the guilty would resort.
Another convention follows from this: The convention that detectives are justified in doing virtually anything, short of using physical force, to preempt the suspect from getting an attorney. Detective Goren, on "Law & Order: Criminal Intent," baits and intimidates suspects in order to solve the crime. Similarly, the FBI investigators on "Without a Trace" use the exigency of needing to find a missing person to justify intense pressure tactics, and to keep lawyers at bay.
Real life, of course, is very different. Lawyers do often show up when suspects are in custody. And it's not only the guilty who "lawyer up" - it's also the cautious, the nervous, and those who figure they might as well, because the boss (or the government) is paying for it, or because they have a friend who's a lawyer.
For example, in every Washington scandal, virtually everyone who testifies before the grand jury is accompanied by a lawyer. This was true in the Monica Lewinsky scandal, and it's true now in the Valerie Plame leak investigation.
Portraying Lawyers as Either Paragons, Or Scoundrels
In looking at how lawyers are portrayed on television, one of the most interesting new shows is "Boston Legal," in which the lawyer hero has given way to the anti-hero.
Up until now, television shows about attorneys have often portrayed them as upstanding and diligent. However, "Boston Legal" - it seems -- was spun off from "The Practice" precisely because viewers preferred these flawed, flamboyant lawyers to their earnest counterparts.
On "Boston Legal," actor James Spader plays attorney Alan Shore - who uses such tactics as arranging for an adversary to meet up with a prostitute friend of his, and then blackmailing the man with photos of his encounter. William Shatner plays Denny Crane - a partner coasting on reputation, who fails to prepare his cases. In a recent episode, Crane examines each of the case files he hasn't read for a massive class action, and has only this to say, over and over: "Thick file."
Yet the show doesn't so much advocate ethical breaches, as it adulates the magic of courtroom oratory and "out of the box" thinking. The show recognizes that trial judges have immense discretion, under the law, to do as they see fit. And it reveals the power of those who can convince and persuade in the courtroom by speaking well, and pushing the right buttons for judges and juries - despite the fact that their preparation, their papers, and even the legal basis for their case may be shoddy. In addition, the show quite realistically indicates that the obligation of "zealousness" on a client's behalf can take a lawyer right up to the ethical brink (or, in the case of Shore, far beyond it).
In the end, though, Shore and Crane are at their most compelling not when they are breaking the law - as with the blackmail scheme - but rather when they are simply thinking "out of the box." For example, in one episode, Crane adeptly uses a deposition to convince his adversary's client that her lawyer isn't representing her best interests - and that she ought to settle. That's as brilliant as it is unconventional. In another episode, Shore takes the case of an ex-girlfriend committed to a mental institution for trying to murder him, because his presence as her lawyer is the ultimate vouch for her sanity. In both cases, an unusual strategy gets the attorney the result his client wants.
The underlying message of the show, then, seems to be this: Lawyers' work goes far beyond reading voluminous case files, or hewing to the letter of the law. Indeed, creativity - the ability to go beyond - can be the difference between winning and losing.
That's a good message to send - for it's a message too many real-life lawyers tend to ignore. Much too often, real-life lawyers follow the beaten path, filing boilerplate pleadings, failing to see the uniqueness of a given case, and failing to address that uniqueness by devising a unique strategy for winning -- all to the detriment of their clients' interests.
So if there does end up being a "Boston Legal" effect on its audience, let's hope that the effect is to prod real-life lawyers to be more creative.