Guest Post: What We Talk About When We Talk About Legal Fiction by Ted Blumberg

Today, I'm lucky enough to have a wonderful guest post from Ted Blumberg, author of The Seven Deadly Sins of Legal Writing.

What We Talk About When We Talk About Legal Fiction

Litigation (from the Latin “litigare” meaning “to quarrel or argue”) is by definition a fight, the courtroom the arena where people who hate each other right down to the DNA win and lose. No conflict, no lawsuit. Since conflict is the lifeblood of drama it’s natural that the “courtroom drama” is a Hollywood favorite.

It’s grand if laypeople want to think lawyers lead action-packed lives full of adventure, money, and sex. But they need to know, in case they ever have to engage with the real world legal system, that what they see in the movies and on TV and read in the latest Grisham is make believe, a fable, a tall tale. But many of my colleagues at the bar get upset about the poetic license Hollywood takes with the profession. Years ago I suffered through The Verdict because of a lawyer in the seat next to me who kept muttering, “That could never happen in real life!” Of course it couldn’t. David Mamet, who wrote the screenplay, and who is himself the son of a lawyer, knows you have to jazz it up. The torpor, the crawly pace that marks most lawsuits, the arcane rules under which they are conducted, and the odd language through which they are expressed would, if accurately depicted on the screen, drive a picture’s grosses into the low three figures.

While I am sanguine about overlooking most of the liberties Hollywood takes, several of the more prevalent tropes warrant exposure or at least, in one of the five dollar words the law favors, explication.

1. Motions Are Not Served By Pulling Them Out of One’s Breast Pocket Like A Magician Producing A Dove: Every episode of (the now sadly defunct) Law and Order included a savvy mouthpiece slipping a motion to suppress evidence from the breast pocket of his or her Armani coat and sliding it under the prosecutor’s nose with a “Take That!” look of smarmy joy. In real life—and certainly in New York, where L&O was set—a motion to suppress is delivered to the District Attorney on the back of a truck. From there it is loaded on to a forklift and served on the prosecutor in charge with the assistance of burly men wearing weight lifter’s belts. The approximate weight and thickness of a tombstone, the typical motion has more exhibits than the ’64 World’s Fair. Just once, maybe on the remaining Special Victims’ Unit leg of the franchise, I’d like to see defense counsel heave a tome riddled with exhibit tabs across the table at the assistant district attorney, who would riffle the pages with his or her thumb and scowl, like in real life.

2. The Right to An Unspeedy Trial: When litigation clients ask me how long their case will take I give them a short, pretentious talk about Shakespeare. Arguably the greatest writer who ever lived, Shakespeare was not one to waste words. In the mouth of perhaps his most famous protagonist, in one of the most famous soliloquies ever—“To be or not to be”—Shakespeare puts this short list of reasons favoring suicide:

…the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of th’ unworthy takes….

If justice was slow four centuries ago, imagine what it’s like today, when litigation is neck and neck with baseball as our national pastime. Indeed, even going to court in New York City, at least in the state court system, is a tedium-laden affair much like making a movie: you spend most of the day sitting around idly, waiting for your case to be called so you can get your five minutes in front of the judge. Except you don’t have a trailer, there is no free food, and no one is pretty.

Despite the creeping pace at which cases slouch through the justice system, the Good Wife seems to try a case a week. So do her peers on almost every legal show I’ve seen. If this were real life, Alicia would still be drafting interrogatories for cases that cropped up in Season One. Of course, no producer or writer could possibly replicate the stultifying slowness of actual litigation. If they tried, the result would be a Warholian anti-film like Sleep, where he filmed a pal snoozing for five hours and twenty minutes.

I don’t blame Hollywood for cutting to the chase (or, rather, the summations) but I do wish clients would understand that the most accurate depiction of a lawsuit’s pace ever presented in fiction is the Jarndyce case from Bleak House, a “scarecrow of a suit” that has dragged on for so long and “become so complicated, that no man alive knows what it means. The parties to it understand it least...but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.” What Dickens sacrifices to hyperbole he makes up for by capturing the way litigation feels to the parties (and, sometimes, to the lawyers).

In short, this let’s-get-it-wrapped-up-by-the-end-of-the-movie schedule is the biggest fiction in legal fiction. I don’t mind, there’s no other way to do it, but laypeople, please understand it’s as realistic as one of those time-lapse films of a flower blossoming from seed to glorious rose in five seconds.

3. Sexual Tension and Hi jinks? Not here: Lawyers on TV and in the movies are played by great looking actors who stay so thin you can see the jaw hinge through the fatless skin of their faces. The talk to each other with a charged flirtiness that suggests (a) they used to sleep together; (b) they want to sleep together; (c) they soon will sleep together.

In real life, while there are reasonably attractive people in the profession, what you usually see when you look across the courtroom aisle at opposing counsel is someone (a) way overweight; (b) reasonably fit but the victim of at least one tragic fashion error; (c) someone morally or intellectually repellent. I say this with no sense of superiority, knowing that it applies to whomever is looking back at me.

Flings between lawyers do happen, but they’re usually not something anyone would want to witness.

Attitude Adjustment Time: We should think of legal fiction the same way we think of science fiction, as a product of the writer’s fancy, inspired by dashes of reality here and there but existing chiefly in another planet and dimension where absolutely anything can and will happen, the laws of gravity and all else we’ve come to know and take for granted are entirely malleable, and the good guys always win in the end.




About the author:

Ted Blumberg practices entertainment law in Manhattan and wrote The Seven Deadly Sins of Legal Writing.