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Thursday, September 29, 2011

Suits Should Know Better - Working Against A Client Is A No-No

This is my second post in my I'm-Getting-Really-Frustrated-With-Suits-So-Make-It-Stop rant. In the episode called Shelf Life, the writers commit what I consider to be one of the biggest faux pas of bad legal writing: working against a client. You can't do it. Ever.

In this episode, Mike and Harvey have to fire Stan Jacobson, the senior vice president of their client and accounting firm, Dreibach Accounting due to phony credentials. Jacobson claims he's getting railroaded  because he recently discovered some illicit book-cooking and refuses to sign. So far, so good. Then they decide to investigate his allegations. That's fine. They're doing their due diligence in case he sues, and they represent the corporation, not Jacobson's boss, so they have to figure out if the corporation has exposure. Here's where it goes bonkers.

They decide he's right. So instead of doing what they were told, they decide not to push Jacobson to sign. Instead, they start acting on behalf of Jacobson and against their client. Whoa doggy. After that, I lost my ability to concentrate on the plot. I was too busy screaming at the TV screen. I still like the show because I enjoy the characters and love the main plotline since it really happens (a nonlawyer faking his way in a big firm, pretending to be a lawyer). But if they're close to losing me, then imagine how many lawyers and people involved in the legal system they lost who tuned into the show for the first time.

I have one more episode to rant about. They need to get their act together next season or they'll lose me as a fan, along with everyone else who knows they're not bothering to get the legal stuff right.

Thursday, September 22, 2011

Suits Goes Haywire on Switching Firms, Talking To Clients

In the "Undefeated" episode of USA's summer show Suits, the writers went way off track on some key points. I found it hard to enjoy the show even though it had the delicious Eric Close on as a guest star, playing a lawyer whose shady tactics keep our heroes busy. The show centered around a case involving a toxic chemical that exposed people who worked at and attended a school. They have cancer, and they're suing. In comes Close, playing a lawyer who brags he's never lost. That raises Harvey's hackles, because he is also undefeated. (I'll even let slide that all lawyers lose cases unless they settle them instead of taking them to trial).

There were key problems with this show. Here are the main ones:

Paralegal switching firms: A subplot involved a paralegal who had worked on the case being offered a job at Close's firm. She was angry and said she'd tell them all about the case. That's an instant disqualification for Close's firm. In fact, I was hoping that it was Harvey's sneaky tactic to do just that. Instead, there was much hand-wringing and they finally convinced her to come back. Paralegals and secretaries can't switch firms and give out client confidential information any more than lawyers can. It's a major amateur-hour mistake. The writers have been pretty good up to now, so I was surprised by this.

Talking to clients: The writers had Close sending representatives to talk to Harvey's clients. Hello? In what universe? Harvey would have run to the judge and the Bar so fast that Close wouldn't have had time to collect his toothbrush before he was thrown in jail for contempt or disbarred. Lawyers can't talk to someone they know is represented without their lawyer's permission. And they can't get a third party to do it either.

Calling a meeting with clients: Then the writers had Close use a third party to call all of Harvey's clients to a meeting in a hotel to hear a settlement offer. Harvey and our hero, Mike, talked about how, if Close spoke to their clients, they would be able to go to the judge. They rushed to the meeting. Then Close relayed the settlement offer - not to the clients, but to Harvey, loudly enough so the clients could hear. Oh no! The lawyers commence hand-wringing again. They've been outsmarted. Huh? They had Close dead to rights. Their clients should have been called to testify or provide affidavits about who contacted them about the meeting, and Harvey could have gone to the judge. Again, the third parties contacting the clients is as bad as the lawyer doing it himself.

This episode was a disappointment to me. So far, the writers had been pretty good. I had nits to pick, but nothing too awful. I have two more episodes to complain about in other posts. I'm worried about the show. If they can't be bothered to get the legal stuff right, they'll lose me as a fan, along with 1.1 million other lawyers who notice when they get it wrong.

Thursday, September 15, 2011

Eyewitness Testimony Is Crap - Now I Have Proof

Some people gave me a hard time when I wrote this post about how circumstantial evidence was way better than eyewitness testimony. Well, now I have proof that eyewitness testimony isn't worth much, despite the fact that juries absolutely love it. In this article (requires a login) and this case I get vindication. A New Jersey court has found that:
In 2006, this Court observed that eyewitness
“[m]isidentification is widely recognized as the single greatest
cause of wrongful convictions in this country.” State v.
Delgado, 188 N.J. 48, 60 (2006) (citations omitted); see also
Romero, supra, 191 N.J. at 73-74 (“Some have pronounced that
mistaken identifications ‘present what is conceivably the
greatest single threat to the achievement of our ideal that no
innocent man shall be punished.’” (citation omitted)). That
same year, the International Association of Chiefs of Police
published training guidelines in which it concluded that “[o]f
all investigative procedures employed by police in criminal
cases, probably none is less reliable than the eyewitness
identification. Erroneous identifications create more injustice
and cause more suffering to innocent persons than perhaps any
other aspect of police work.” Int’l Ass’n of Chiefs of Police,
Training Key No. 600, Eyewitness Identification 5 (2006).
Substantial evidence in the record supports those
statements. Nationwide, “more than seventy-five percent of
convictions overturned due to DNA evidence involved eyewitness
misidentification.” Romero, supra, 191 N.J. at 74 (citing
Innocence Project report); Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011)5
(finding same in 190 of first 250 DNA exoneration cases). In
half of the cases, eyewitness testimony was not corroborated by
confessions, forensic science, or informants. See The Innocence
Project, Understand the Causes: Eyewitness Misidentification,
Misidentification.php (last visited August 16, 2011). Thirtysix
percent of the defendants convicted were misidentified by
more than one eyewitness. Garrett, supra, at 50. As we
recognized four years ago, “[i]t has been estimated that
approximately 7,500 of every 1.5 million annual convictions for
serious offenses may be based on misidentifications.” Romero,
supra, 191 N.J. at 74 (citing Brian L. Cutler & Steven D.
Penrod, Mistaken Identification: The Eyewitness, Psychology, and
the Law 7 (1995)).
Wow. Stunning commentary on eyewitness testimony. It's mostly wrong. Put a group of people in a room. Have someone they don't know run in and grab the speaker's purse, then run out. Then bring three people with similar looks in the room and ask them which one did it. The group will always pick one of them. When they find out it was none of them, they're shocked. How could this be? They saw it with their own eyes! You know what the song said about lying eyes . . .

One of the great themes of injustice today is the fact that many people behind bars are innocent. Some of them are on death row. It's a wonderful story line for writers. Does your innocent character fight to prove he should be released? Do they get out and take revenge? Or have they given up? Does someone need to inspire them to fight to clear their name? Or is your character the eyewitness who realizes they might have been wrong? There's so much inspiration you can get thinking about the unreliable eyewitness.

If you're writing about a crime, just remember: your eyewitnesses are crap. Your evidence may be "just" circumstantial - and that's the best kind.