In the season finale on The Good Wife, The Dream Team, the writers went completely off their rockers. They had the firm file a multi-million dollar class action lawsuit with multiple plaintiffs. The firm wins a $25 million judgment. Huzzah! But then it all goes terribly awry.
Two regular nemeses of the firm (played by Michael J. Fox and Martha Plimpton) team up and sue the firm. They say the firm must have bribed the judge or done something wrong. They ask the firm to drop the class action suit and they say they’ll then drop the suit against the firm. The firm says no. Later, the firm changes its mind and agrees to drop the class action if the lawyers will drop the suit against the firm. Fortunately, they say the deal is off the table.
Hello? Anybody home? If the writers wanted to end the show and have the firm shut down in disgrace, they could let the firm make this offer. Otherwise, it’s a non-starter.
The firm has a duty to act in the best interests of its clients. It can’t dismiss a suit without client permission. It can’t dismiss a suit because the dismissal benefits the firm. It can never, ever, act against the interests of the client.
This plot device was so colossally stupid I almost didn’t make it through the episode. Fortunately, they didn’t have the double-dealing dismissal actually go through.
How could they have made the plot as interesting without sacrificing any sense of real world attorney ethics? How about having the clients offer to dismiss their suit to save their beloved lawyers? Okay, I’ll try to stop laughing. What about having the firm notify their malpractice carrier about yet another suit, and have the insurance lawyers try to double-deal the firm? If their carrier hasn’t dropped them by now, it should. Maybe next season.
While we’re at it, can we all promise to stop having depositions and hearings happen the day after the suit is filed? No? Puh-leeze. I can’t get a hearing on even the smallest issue for at least 2- 3 weeks. I’d love to see shows that actually use the delays to help create tension in the show. But that’s a blog post for another day.
C’mon, Good Wife writers. I’m a lawyer and a fan. Try not to make me throw things at the TV. I’ll be watching in the fall. You have plenty of time over the break to catch up on your research.
Showing posts with label The Good Wife. Show all posts
Showing posts with label The Good Wife. Show all posts
Wednesday, May 23, 2012
Saturday, February 25, 2012
Lawyer’s Suspension Is Not A Vacation, Good Wife Writers Should Know
I was disappointed in the last episode of The Good Wife because one of the main characters, Will Gardner (who is also the heroine’s off and on love interest) faced a disbarment hearing. He was offered a 6 months’ suspension instead and he took it. I can’t blame him. He was very likely to lose his license.
But the way it was written, he was so blasé. The other lawyers in his firm were blasé. They acted like he was going to get a vacation. The writers on this terrific show usually do their research, so I was surprised at this gaffe.
A lawyer’s suspension is not a vacation. It’s deadly serious. I looked up the Illinois disciplinary rules, and they’re almost as harsh as Florida’s. Here’s what a suspension comes with:
Notification to all clients: He will have to notify all his clients of his suspension and the reason for it (and it was stealing trust account money, so he could expect a bunch of clients to flee the firm).
Notification to all courts: He will have to notify all judges before whom he has pending matters of the suspension. He has to move to withdraw in all pending cases. His credibility with those judges is now shot.
Notification to all opposing counsel: Can you imagine? This is the worst of all. Can you imagine the humiliation he will face? He’ll be taunted and put down for the rest of his professional career. Opposing counsel are frequently vicious. Worse than any playground bullies you ever encountered.
Removal of any indication he is a lawyer: The writers got this one right. His name had to come off the firm. That means changing the front door, letterhead, brochures, website, advertising and business cards. For a big firm, it’s wildly expensive.
Court approval for payment: If he is to be paid for any work he did before the suspension, he needs court approval.
Supreme Court approval for law firm purchase or transfer: He just handed the firm to his partners with a wink and a “see ‘ya in 6 months.” Ha! The Illinois Supreme Court had to approve any transfer of his ownership interest in the firm first. If he’s still an owner but off the letterhead, will there be problems? After all, non-lawyers can’t own a law firm, and he certainly can’t do anything resembling the practice of law.
At least he’s lucky he’s not in Florida. Here, even though the suspension is for a set period, he’d have to petition for reinstatement. In Illinois he’s automatically reinstated at the end of the suspension period.
So, will we see the writers use this suspension to the fullest? Will we see the firm’s associates having to deal with taunts from opposing counsel about their dishonest former boss? Will we see judges ask why they should trust him ever again once he comes back? Will we see clients fleeing in droves? Will there be articles in the papers about the fallen powerful attorney?
Or will they continue to act like a suspension is a vacation? I hope they’ll get it right. I’ll be watching to see if they do.
But the way it was written, he was so blasé. The other lawyers in his firm were blasé. They acted like he was going to get a vacation. The writers on this terrific show usually do their research, so I was surprised at this gaffe.
A lawyer’s suspension is not a vacation. It’s deadly serious. I looked up the Illinois disciplinary rules, and they’re almost as harsh as Florida’s. Here’s what a suspension comes with:
Notification to all clients: He will have to notify all his clients of his suspension and the reason for it (and it was stealing trust account money, so he could expect a bunch of clients to flee the firm).
Notification to all courts: He will have to notify all judges before whom he has pending matters of the suspension. He has to move to withdraw in all pending cases. His credibility with those judges is now shot.
Notification to all opposing counsel: Can you imagine? This is the worst of all. Can you imagine the humiliation he will face? He’ll be taunted and put down for the rest of his professional career. Opposing counsel are frequently vicious. Worse than any playground bullies you ever encountered.
Removal of any indication he is a lawyer: The writers got this one right. His name had to come off the firm. That means changing the front door, letterhead, brochures, website, advertising and business cards. For a big firm, it’s wildly expensive.
Court approval for payment: If he is to be paid for any work he did before the suspension, he needs court approval.
Supreme Court approval for law firm purchase or transfer: He just handed the firm to his partners with a wink and a “see ‘ya in 6 months.” Ha! The Illinois Supreme Court had to approve any transfer of his ownership interest in the firm first. If he’s still an owner but off the letterhead, will there be problems? After all, non-lawyers can’t own a law firm, and he certainly can’t do anything resembling the practice of law.
At least he’s lucky he’s not in Florida. Here, even though the suspension is for a set period, he’d have to petition for reinstatement. In Illinois he’s automatically reinstated at the end of the suspension period.
So, will we see the writers use this suspension to the fullest? Will we see the firm’s associates having to deal with taunts from opposing counsel about their dishonest former boss? Will we see judges ask why they should trust him ever again once he comes back? Will we see clients fleeing in droves? Will there be articles in the papers about the fallen powerful attorney?
Or will they continue to act like a suspension is a vacation? I hope they’ll get it right. I’ll be watching to see if they do.
Thursday, January 12, 2012
The Good Wife Tackles Political Discrimination
In the episode “Parenting Made Easy,” The Good Wife represents a professor who claims she was fired due to discrimination based upon her political beliefs. Whether or not such a claim would exist in the real world depends on whether the school is public or private.
There’s a real-life case going on right now about this very issue, so the show was timely. In this real case, a professor claims the University of Iowa College of Law (a state-run institution) refused to hire her because she’s a Republican, and cites the ratio of only 1 out of 50 professors at the school is Republican. She’s suing under 42 USC Section 1983, claiming her constitutional right of free speech was violated.
Going back to The Good Wife, the first theory the lawyers raised was that the professor was discriminated against due to sexual harassment. That claim kind of fell by the wayside (it was just shoulder-rubbing, so they were probably right to drop that one quickly).
Then they changed their theory to say it was because of her political and religious views on homosexuality. They said it was a civil rights violation. The person who fired her said he believed what she said was hate speech. Let’s forget a moment that they would have to amend their pleadings and give the other side a chance to switch gears as well. They actually did a good job handling this sticky issue by having it be an arbitration, where the rules are much more loose and informal.
The writers didn’t say whether the college was a private one. If it was private, then she has no civil rights and she can absolutely be fired for her political beliefs. They would have had to allege religious discrimination – that she was fired because of her religious beliefs, not for her conservatism or specific political views. So the plotline bothered me because political discrimination is mostly not illegal. I had to make the leap and assume it was a public institution. Personally, I think the religious discrimination angle would have been more interesting plot-wise.
The case result turned on opposing counsel stealing attorney-client communications out of Alicia’s purse, which was just dumb in my opinion. The lawyer would have been disbarred had Alicia complained, so it was a silly way to have him come up with the evidence. They had to show that he is unethical for plot purposes, and this was certainly unethical, but I don’t see Alicia letting him get away with it. It would have been much better had they shown him hiring a hacker to get the client’s personal emails.
Overall, I thought they handled the political discrimination issue pretty well. I would have liked them to say it was because the school was state-run that they could claim this, but I can see why the writers didn’t bother. As usual, The Good Wife’s writers handled a legal issue in a way that even a lawyer can enjoy watching.
There’s a real-life case going on right now about this very issue, so the show was timely. In this real case, a professor claims the University of Iowa College of Law (a state-run institution) refused to hire her because she’s a Republican, and cites the ratio of only 1 out of 50 professors at the school is Republican. She’s suing under 42 USC Section 1983, claiming her constitutional right of free speech was violated.
Going back to The Good Wife, the first theory the lawyers raised was that the professor was discriminated against due to sexual harassment. That claim kind of fell by the wayside (it was just shoulder-rubbing, so they were probably right to drop that one quickly).
Then they changed their theory to say it was because of her political and religious views on homosexuality. They said it was a civil rights violation. The person who fired her said he believed what she said was hate speech. Let’s forget a moment that they would have to amend their pleadings and give the other side a chance to switch gears as well. They actually did a good job handling this sticky issue by having it be an arbitration, where the rules are much more loose and informal.
The writers didn’t say whether the college was a private one. If it was private, then she has no civil rights and she can absolutely be fired for her political beliefs. They would have had to allege religious discrimination – that she was fired because of her religious beliefs, not for her conservatism or specific political views. So the plotline bothered me because political discrimination is mostly not illegal. I had to make the leap and assume it was a public institution. Personally, I think the religious discrimination angle would have been more interesting plot-wise.
The case result turned on opposing counsel stealing attorney-client communications out of Alicia’s purse, which was just dumb in my opinion. The lawyer would have been disbarred had Alicia complained, so it was a silly way to have him come up with the evidence. They had to show that he is unethical for plot purposes, and this was certainly unethical, but I don’t see Alicia letting him get away with it. It would have been much better had they shown him hiring a hacker to get the client’s personal emails.
Overall, I thought they handled the political discrimination issue pretty well. I would have liked them to say it was because the school was state-run that they could claim this, but I can see why the writers didn’t bother. As usual, The Good Wife’s writers handled a legal issue in a way that even a lawyer can enjoy watching.
Saturday, November 26, 2011
The Good Wife, British Libel Law, And the Power of Twitter
Okay, okay. I’m behind in my TV viewing. Still, Episode 2 of this season’s The Good Wife (The Death Zone) hit a topic near and dear to my heart: UK libel laws. I’ve railed against the draconian British libel laws since Litopia After Dark started. Finally, reforms are in the works. But reforms are slow and the awful effects of these laws are still being felt by writers around the world.
In this episode, our heroine, Alicia, defends a book author against a libel suit in the U.S. When she wins, a bit of libel tourism occurs and the suit is refilled in the UK. Uh oh. For anyone who has followed what’s going on with UK libel, you know that this is a very bad development for the poor author.
One of my favorite actors, Eddie Izzard, plays the evil British lawyer: “God, I do love you Yanks. You are so easy to distract. With our accents and our periwigs and our tea and crumpets. But I am not the England of Big Ben and bobbies. I'm not the England of doilies and cucumber sandwiches. I’m the England of football hooligans and Jack the Ripper. And this England don’t play nice, and they don’t play fair, and they don’t. Ever. Stop.”
The lawyer going after our hapless writer says, “Do you know the key distinction between the libel laws in your country and mine? The burden of proof is reversed.” Yep, they got that exactly right. In the UK, the writer has to prove that what they wrote was true. That’s a big problem if they’re the only witness, or if they relied on interviews on the scene rather than something written.
The lawyer going after our hapless writer says, “Do you know the key distinction between the libel laws in your country and mine? The burden of proof is reversed.” Yep, they got that exactly right. In the UK, the writer has to prove that what they wrote was true. That’s a big problem if they’re the only witness, or if they relied on interviews on the scene rather than something written.
The plot is about mountain climbing and a death that occurred in “The Death Zone” where hypoxia takes its toll. The author claimed a wealthy climber failed to help a downed climber and even stole his oxygen.
The story touches on the “super-injunction” where a book, its contents, and even the existence of the injunction is taboo. The court excludes evidence from another book because a super-injunction was issued.
And they overcome the super-injunction through the power of Twitter. This is exactly how the super-secretive proceedings are being circumvented in Britain.
One of the arguments made is the book is a warning to future climbers. They say that a book that is a warning to readers has a qualified privilege applied to it, meaning the law allows it. I’m not sure that’s correct. There’s been a whole brouhaha over scientists who are charged with libel for writing about health hazards. Even an objection to a government application based on health reasons isn’t safe from the British libel laws.
Overall, though, The Good Wife did a fantastic job of exposing the travesty that is UK libel law and the need for reform.
Did you see the episode? I’d love to hear what you thought of it. And I’d love to hear from any experts on British libel laws on the issue of the qualified privilege for a warning. Does this exist? If so, why the heck are scientists getting hit with libel injunctions?
Wednesday, April 6, 2011
The Good Wife, Emotional Distress, and Employees
Last night’s episode of The Good Wife was called “Wrongful Termination.” (Yes, I'm writing about The Good Wife again. Sorry, but it's a great show). I cringed at the title because Illinois, like every state in the nation but one, is an at-will state, meaning employers can fire or discipline employees for any reason or no reason at all. So my expectations were low.
I got a pleasant surprise.
It’s still not clear to me what the lawyers’ theory of the case was, but the best I can decipher from the arguments is that they were claiming the tort called “intentional infliction of emotional distress.” Illinois, unlike my home state of Florida, does allow this type of case to be brought against employers.
The facts were that a company needed to do a 20% workforce reduction. Instead of laying people off, where they’d have to pay severance under their severance policy, they decided to make life so miserable that people would quit. They turned off the a/c, required ridiculous work hours, publicly berated and humiliated employees who were targeted for termination. Three employees committed suicide, one actually at work.
In order to prove a claim for intentional infliction of emotional distress, the employee has to prove: (1) the defendant’s conduct was extreme and outrageous, (2) defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress, and (3) the defendant’s conduct did cause severe emotional distress. That sounds like half the employment cases I handle, but Florida’s standard for what is “extreme and outrageous” is virtually impossible to prove.
In Illinois, however, they’ve allowed this kind of case against employers. For instance, in Naeem v. McKesson Drug Company a former employee was deliberately given high-stress and physical work duties during her pregnancy, to the point she needed to take short term disability leave. When she came back, she was repeatedly disciplined, humiliated and berated in meetings, and put on impossible deadlines, to the point where she began to suffer physical symptoms, considered suicide, and had to go into counseling. She was terminated. The court found that this behavior was extreme and outrageous enough to support a claim for intentional infliction of emotional distress and the jury awarded $495,000.
In general (in all states), insults, indignities, threats, annoyances, oppressions, trivialities, vulgarities or other abusive expressions aren’t enough to bring a claim against an employer. The conduct has to be so extreme and outrageous that it goes outside all bounds of decency. That’s tough to prove. In Florida, racial epithets, nooses, unwanted touching, obscene comments, and other pretty extreme behavior is not extreme enough. (In one case, the Florida courts did allow a case where there were death threats, and threats to rape the plaintiff’s children and other relatives, but it wasn’t the employer doing it. I wonder what would have happened had the perpetrator been a coworker).
Interestingly, the writers didn’t tell us how the case came out. Instead, it settled quickly when they uncovered the fact that the officers had looted the pension fund. Pretty realistic in today’s world. Still, I thought the writers did a good job of laying out what just might have succeeded as a claim for intentional infliction of emotional distress in Illinois.
One minor caveat – it was a class action in the show, and I think a class action for an intentional tort is pretty unlikely to succeed. They could have just brought the case in the names of the individuals who were driven out and had the same arguments. But the class action aspect was such a minor plot point that it didn’t bother me much.
The writers of The Good Wife bring up a great point. In today’s economy, shouldn’t more states recognize that deliberately making someone miserable to get them to quit is extreme and outrageous? With the average time to find a new job running at about 9 months, and many people finding it’s taking much longer than that, doesn’t the economic situation change the way we should look at employment?
Why bother to torment someone out of a job when you can fire at will? It’s to deliberately keep them from getting unemployment and to deliberately circumvent any entitlement to severance under severance policies and contracts. Now I call that extreme and outrageous.
I got a pleasant surprise.
It’s still not clear to me what the lawyers’ theory of the case was, but the best I can decipher from the arguments is that they were claiming the tort called “intentional infliction of emotional distress.” Illinois, unlike my home state of Florida, does allow this type of case to be brought against employers.
The facts were that a company needed to do a 20% workforce reduction. Instead of laying people off, where they’d have to pay severance under their severance policy, they decided to make life so miserable that people would quit. They turned off the a/c, required ridiculous work hours, publicly berated and humiliated employees who were targeted for termination. Three employees committed suicide, one actually at work.
In order to prove a claim for intentional infliction of emotional distress, the employee has to prove: (1) the defendant’s conduct was extreme and outrageous, (2) defendant intended to inflict severe emotional distress or knew that there was a high probability that his conduct would inflict severe emotional distress, and (3) the defendant’s conduct did cause severe emotional distress. That sounds like half the employment cases I handle, but Florida’s standard for what is “extreme and outrageous” is virtually impossible to prove.
In Illinois, however, they’ve allowed this kind of case against employers. For instance, in Naeem v. McKesson Drug Company a former employee was deliberately given high-stress and physical work duties during her pregnancy, to the point she needed to take short term disability leave. When she came back, she was repeatedly disciplined, humiliated and berated in meetings, and put on impossible deadlines, to the point where she began to suffer physical symptoms, considered suicide, and had to go into counseling. She was terminated. The court found that this behavior was extreme and outrageous enough to support a claim for intentional infliction of emotional distress and the jury awarded $495,000.
In general (in all states), insults, indignities, threats, annoyances, oppressions, trivialities, vulgarities or other abusive expressions aren’t enough to bring a claim against an employer. The conduct has to be so extreme and outrageous that it goes outside all bounds of decency. That’s tough to prove. In Florida, racial epithets, nooses, unwanted touching, obscene comments, and other pretty extreme behavior is not extreme enough. (In one case, the Florida courts did allow a case where there were death threats, and threats to rape the plaintiff’s children and other relatives, but it wasn’t the employer doing it. I wonder what would have happened had the perpetrator been a coworker).
Interestingly, the writers didn’t tell us how the case came out. Instead, it settled quickly when they uncovered the fact that the officers had looted the pension fund. Pretty realistic in today’s world. Still, I thought the writers did a good job of laying out what just might have succeeded as a claim for intentional infliction of emotional distress in Illinois.
One minor caveat – it was a class action in the show, and I think a class action for an intentional tort is pretty unlikely to succeed. They could have just brought the case in the names of the individuals who were driven out and had the same arguments. But the class action aspect was such a minor plot point that it didn’t bother me much.
The writers of The Good Wife bring up a great point. In today’s economy, shouldn’t more states recognize that deliberately making someone miserable to get them to quit is extreme and outrageous? With the average time to find a new job running at about 9 months, and many people finding it’s taking much longer than that, doesn’t the economic situation change the way we should look at employment?
Why bother to torment someone out of a job when you can fire at will? It’s to deliberately keep them from getting unemployment and to deliberately circumvent any entitlement to severance under severance policies and contracts. Now I call that extreme and outrageous.
Wednesday, March 23, 2011
The Good Wife Doesn’t Know Much About Mediation
Why the heck can’t TV shows get mediation right? I mean, if a comedy like The Wedding Crashers can do it, why not courtroom dramas? Fairly Legal has made a mockery of what mediation is about, but I expect USA shows to be silly. Now comes The Good Wife, and I usually expect better from them. I’m a mediator, and this kind of error hurts my feelings because the writers clearly don’t give a hoot about getting mediation right. Mediation is suddenly popular with writers, so why won’t they find out what really happens in a mediation session?
Getting it wrong
Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.
The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.
The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.
The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.
The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.
Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.
Getting it wrong
Here’s just some of the stuff I keep hearing on TV about mediation that’s glaringly stupid.
The mediator doesn’t get to decide what is a fair settlement. I keep hearing mediators in these shows saying things like, “I need to hear this evidence so I can decide what a fair settlement will be.” Huh? The mediator doesn’t decide diddly. The mediator helps the parties reach a settlement. The mediator can’t make any legal decisions, can’t decide what the damages are, can’t hear testimony, can’t tell the parties what to do. The mediator in The Good Wife said this and I almost threw a shoe at the screen. It’s cringe-worthy. The easiest fix in the world is to stop having your characters say such ridiculous things.
The mediator can’t demand they hear testimony or see any particular evidence. The mediator may sometimes be shown evidence or excerpts from deposition transcripts to help them understand the case and the issues. But they don’t get to order the parties around, don’t get to do their own investigation, and can’t demand that someone be present without the parties’ permission. In this episode of The Good Wife, one side didn’t want his son to testify. Since nobody can be present at mediation other than the parties, their lawyers, the mediator, and anyone the parties agree can attend, this was laughable. Stupid, stupid plot device. The lawyer could have just said that if it didn’t settle the son would be called. Such an easy fix.
The parties don’t storm out of a court-ordered mediation. In Fairly Legal, the mediator character has one side or both storm out within seconds of every mediation. Then she has to chase them down and talk to them at home or work or wherever. It’s laughable. If the parties are ordered into mediation, they can’t storm out. They’ll be held in contempt. Even if it’s not court-ordered, they usually have a minimum fee they’re paying the mediator – usually 2 – 4 hours. Clients like to get their money’s worth and will stick around for their minimum prepaid amount of time. Yeah, yeah, it’s probably visually boring to have the parties sit around a table. But a decent writer can liven it up. The two sides can break into caucuses, take smoke or lunch breaks and run into each other, whatever the camera needs to improve the visual without going stupid.
The mediator won’t refer to one side as their client. The mediator is neutral. They can’t represent one side or the other. Their firm can’t represent either side. They have to disclose any relationships with the parties or their attorneys to both sides and anyone can object if they believe the mediator won’t be neutral. The Good Wife didn’t do this, but they do it in Fairly Legal all the time. It makes me want to scream. Okay, sometimes it does make me scream.
Every trial lawyer in America knows when you get mediation wrong. So do all the mediators, all the judges, and every person who has participated in mediation. We’re talking millions of people who know when you get it wrong. Mediation can be interesting and it hasn’t been overdone like trials. Do use it in your stories, but do your research.
Sunday, February 27, 2011
The Good Wife, The Right of Publicity, And Why Writers Should Be Scared
A recent episode of The Good Wife, a consistently good legal drama, focused on what I think is one of the most important issues affecting the writing and publishing industry today: the right of publicity. In the show, a character similar to Mark Zuckerberg didn’t like the way he was portrayed in a movie similar to The Social Network. He sued for defamation. Enter our hero law firm.
The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.
Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.
Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.
This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.
There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.
• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.
• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.
• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).
• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.
That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.
I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.
But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.
Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.
To recap the risk if all these cases are won, the following will be pretty much off limits:
• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)
What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.
The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.
Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.
Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.
This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.
There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.
• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.
• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.
• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).
• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.
That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.
I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.
But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.
Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.
To recap the risk if all these cases are won, the following will be pretty much off limits:
• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)
What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.
Thursday, May 6, 2010
Lawyers with Alzheimer’s, Conflicts of Interest and Ethical Conundrums in The Good Wife
A recent plotline in The Good Wife bugged me so much that I did some research on the ethical conundrums it raised. When I got no satisfactory answer on my own, I did what every good writer should do – I called someone who knew what they were talking about. In this case, I used (or possibly misused) the Florida Bar’s Ethics Hotline. Most states have something similar, where lawyers can call up and get some advice when ethical issues arise. I confessed right away that I was calling about an ethical issue from a TV show, and was lucky enough to run into a lawyer on the hotline who happens to be a fan of The Good Wife. She knew exactly which two episodes I was talking about.
Confidentiality Within the Lawyer’s Firm
In the first episode that was bothering me, our heroine, a newbie lawyer, got drafted to represent a firm partner in a legal matter. In the midst of her representation, it came out that her client had Alzheimer’s. She now knows that a hotshot lawyer, a firm partner, is impaired, unable to represent clients competently, at least some of the time. Her supervisor is a different partner. The client/partner tells her that the existence of his disease is confidential, and she can’t tell anyone, even her boss. Any normal new associate would have been incompetent to handle the representation at that point. My ethics guru agreed that she probably should have insisted that she be allowed to get advice from her boss on how to proceed with the case. That would have solved most of the other issues. Plus, it’s extremely unlikely that such a high profile partner wouldn’t have had someone else figure out his condition by this point.
But, let’s give the writers the benefit of the doubt. Our heroine is a super-attorney who can handle tough cases with little supervision. She handled the case like a champ. Even though her firm represented the partner/client, the client is within his rights to instruct her to keep this information from the other lawyers in her firm. She would have to refrain from even writing it in the file, because the file is firm property, not hers. In this situation, the writers probably got it right.
However, any normal newbie lawyer would have had to either get the okay to go to the boss, or withdraw. The lawyer has a duty to withdraw if they can’t give competent representation. She couldn’t have told her boss why, only that she had a conflict.
The partner/client then announces that he’s leaving the firm and taking most of the clients, and reminds her she has to keep his condition confidential. She’s stuck. She can’t tell. That’s probably right, if she didn’t tell the supervisor while she was handling the case.
So I’ll give this first one to the writers.
Conflict of Interest With Former Client and Duty of Zealous Advocacy
Then comes the second episode with the same issue. Our heroine is handling a case. The former partner/client makes a surprise announcement that he’s the opposing counsel. Let’s assume for the sake of argument that the case came to our heroine’s firm after the partner/client left, because otherwise he can’t do it.
So our heroine now knows that she has a lawyer on the other side who has Alzheimer’s. He’s incompetent. Normally, she could probably get him tossed off the case. She has information advantageous to her current client. But she can’t use it because she got it from a former client and it’s confidential.
The writers found a clever way for her to get out of her dilemma. I won’t give it away. But the whole scenario really bugged me at that point, and the expert agrees. Because she had information she should have used as a zealous advocate but couldn’t, she had a non-waivable conflict. She had to withdraw from the case.
Could she tell her firm why she had to withdraw now that the client/partner is gone? I don’t know. Possibly, but maybe not. If she did, whoever she told couldn’t use the information. Could another member of the firm have taken the case after she had to get out? No. The whole firm is disqualified.
Ethics and Alzheimer’s
That puts the guy with Alzheimer’s in the catbird seat, storywise. He could stalk all their cases and tell the folks on the other side he knows how to get the other firm off the case. Would he be unethical to solicit those clients? Yes, most likely. But then he’s already unethical. He knows he’s impaired and he hasn’t done anything to protect his clients. He hasn’t even disclosed it to them. His staff doesn’t know, so they aren’t even watching his back. Just because he’s impaired doesn’t mean his ethical duties go away.
Why I’m Giving Them A Pass Even Though The Writers Got it Partly Wrong
In all, I think the writers did a decent job. They used a real ethical dilemma, dealt with it credibly, and it took two lawyers, including an expert, about 15 minutes of hashing out the rules and permutations to figure out that there was a problem and why. Alzheimer’s and other dementia-related issues are featured in this month’s ABA Journal because those of us who are boomer lawyers are getting freaking old and refuse to leave the profession. It’s something the Bars need to get a handle on. The issue is timely and I hope to see more of this interesting character.
If you are writing about the law and get this close to being right, I probably won’t change the channel. Both the expert and I agreed – we’ll keep watching The Good Wife. It’s a wonderful show for lawyers to watch, even if they do take some liberties.
Confidentiality Within the Lawyer’s Firm
In the first episode that was bothering me, our heroine, a newbie lawyer, got drafted to represent a firm partner in a legal matter. In the midst of her representation, it came out that her client had Alzheimer’s. She now knows that a hotshot lawyer, a firm partner, is impaired, unable to represent clients competently, at least some of the time. Her supervisor is a different partner. The client/partner tells her that the existence of his disease is confidential, and she can’t tell anyone, even her boss. Any normal new associate would have been incompetent to handle the representation at that point. My ethics guru agreed that she probably should have insisted that she be allowed to get advice from her boss on how to proceed with the case. That would have solved most of the other issues. Plus, it’s extremely unlikely that such a high profile partner wouldn’t have had someone else figure out his condition by this point.
But, let’s give the writers the benefit of the doubt. Our heroine is a super-attorney who can handle tough cases with little supervision. She handled the case like a champ. Even though her firm represented the partner/client, the client is within his rights to instruct her to keep this information from the other lawyers in her firm. She would have to refrain from even writing it in the file, because the file is firm property, not hers. In this situation, the writers probably got it right.
However, any normal newbie lawyer would have had to either get the okay to go to the boss, or withdraw. The lawyer has a duty to withdraw if they can’t give competent representation. She couldn’t have told her boss why, only that she had a conflict.
The partner/client then announces that he’s leaving the firm and taking most of the clients, and reminds her she has to keep his condition confidential. She’s stuck. She can’t tell. That’s probably right, if she didn’t tell the supervisor while she was handling the case.
So I’ll give this first one to the writers.
Conflict of Interest With Former Client and Duty of Zealous Advocacy
Then comes the second episode with the same issue. Our heroine is handling a case. The former partner/client makes a surprise announcement that he’s the opposing counsel. Let’s assume for the sake of argument that the case came to our heroine’s firm after the partner/client left, because otherwise he can’t do it.
So our heroine now knows that she has a lawyer on the other side who has Alzheimer’s. He’s incompetent. Normally, she could probably get him tossed off the case. She has information advantageous to her current client. But she can’t use it because she got it from a former client and it’s confidential.
The writers found a clever way for her to get out of her dilemma. I won’t give it away. But the whole scenario really bugged me at that point, and the expert agrees. Because she had information she should have used as a zealous advocate but couldn’t, she had a non-waivable conflict. She had to withdraw from the case.
Could she tell her firm why she had to withdraw now that the client/partner is gone? I don’t know. Possibly, but maybe not. If she did, whoever she told couldn’t use the information. Could another member of the firm have taken the case after she had to get out? No. The whole firm is disqualified.
Ethics and Alzheimer’s
That puts the guy with Alzheimer’s in the catbird seat, storywise. He could stalk all their cases and tell the folks on the other side he knows how to get the other firm off the case. Would he be unethical to solicit those clients? Yes, most likely. But then he’s already unethical. He knows he’s impaired and he hasn’t done anything to protect his clients. He hasn’t even disclosed it to them. His staff doesn’t know, so they aren’t even watching his back. Just because he’s impaired doesn’t mean his ethical duties go away.
Why I’m Giving Them A Pass Even Though The Writers Got it Partly Wrong
In all, I think the writers did a decent job. They used a real ethical dilemma, dealt with it credibly, and it took two lawyers, including an expert, about 15 minutes of hashing out the rules and permutations to figure out that there was a problem and why. Alzheimer’s and other dementia-related issues are featured in this month’s ABA Journal because those of us who are boomer lawyers are getting freaking old and refuse to leave the profession. It’s something the Bars need to get a handle on. The issue is timely and I hope to see more of this interesting character.
If you are writing about the law and get this close to being right, I probably won’t change the channel. Both the expert and I agreed – we’ll keep watching The Good Wife. It’s a wonderful show for lawyers to watch, even if they do take some liberties.
Wednesday, March 17, 2010
The Good Wife’s Gaffe on Money Laundering
Anyone who reads this blog knows I enjoy the courtroom drama The Good Wife. I try not to be hypersensitive when they get things wrong because they do so well. But this week’s episode went off the rails a bit. In the story, a known drug dealer being pursued by the FBI for all sorts of criminal activity leaves a bag containing $200,000 in cash in a lawyer’s office. When the firm inquires, he says it’s a retainer. The lawyers then engage in a serious debate as to whether or not to take on this client. As far as I can tell (it wasn’t clear), they ended up keeping the money.
There’s so much wrong with this picture it’s hard to know where to start. So I’ll start with how they’ll all end up in jail. The first reason they’d never take the cash is that they’d have to fill out a Form 8300 with the IRS telling them where you got the cash. A drug dealer wouldn’t want that to happen, so he’d never hire a legitimate firm if he wanted to pay in cash. Don’t file the form, go to jail and pay a fine. Way too risky for most lawyers.
Let’s assume the firm filed the form. They’ve accepted criminal proceeds. The FBI is watching. They’ll be prosecuted for accepting the proceeds. Or at least the FBI will seize it and institute forfeiture proceedings to take it away. And they might just snatch up some firm assets along the way and claim they’re bought with criminal proceeds. The firm would be tied up for years defending themselves. I know a lawyer who faced years of criminal prosecution because he vetted money another lawyer was paid to make sure it didn’t come from criminal proceeds. The government claimed he knew the proceeds were dirty and issued the opinion wrongfully. He didn’t even get the money. He just told another lawyer it was okay to take the money. He was recently acquitted, but it took years of anxiety, hundreds of thousands of dollars in legal fees, and a somewhat damaged reputation. Imagine what happens if the FBI thinks you actually took the money knowing it was dirty.
If the firm tried to get the client to pay in installments of $9000, they’d be guilty of the crime of structuring transactions to avoid the reporting, which is an even bigger criminal offense.
And who’s to say they aren’t being set up in a sting in order to reduce someone’s sentence?
I’m not saying that law firms aren’t faced with this dilemma every day (although nobody’s ever tried to hand me a giant bag of cash, so what gives?), but the lawyers in the show didn’t even blink at the consequences. There should have been some discussion of how the FBI would come down on them if they were caught accepting the money. A mention of the reporting requirements. Something showing the audience that the writers were aware it was a big risk to accept the money. Instead, the lawyers had the money piled in their office for anyone to see.
Legit law firms would simply refuse the bag of cash and decline the representation, or tell the client they had to report it and let the client decide to hire a different firm. Crooked firms would take the cash and the client, but would be aware that they were part of a crime when they did so. The writers needed to choose which kind of firm they were writing about and let us know. They didn’t.
There’s so much wrong with this picture it’s hard to know where to start. So I’ll start with how they’ll all end up in jail. The first reason they’d never take the cash is that they’d have to fill out a Form 8300 with the IRS telling them where you got the cash. A drug dealer wouldn’t want that to happen, so he’d never hire a legitimate firm if he wanted to pay in cash. Don’t file the form, go to jail and pay a fine. Way too risky for most lawyers.
Let’s assume the firm filed the form. They’ve accepted criminal proceeds. The FBI is watching. They’ll be prosecuted for accepting the proceeds. Or at least the FBI will seize it and institute forfeiture proceedings to take it away. And they might just snatch up some firm assets along the way and claim they’re bought with criminal proceeds. The firm would be tied up for years defending themselves. I know a lawyer who faced years of criminal prosecution because he vetted money another lawyer was paid to make sure it didn’t come from criminal proceeds. The government claimed he knew the proceeds were dirty and issued the opinion wrongfully. He didn’t even get the money. He just told another lawyer it was okay to take the money. He was recently acquitted, but it took years of anxiety, hundreds of thousands of dollars in legal fees, and a somewhat damaged reputation. Imagine what happens if the FBI thinks you actually took the money knowing it was dirty.
If the firm tried to get the client to pay in installments of $9000, they’d be guilty of the crime of structuring transactions to avoid the reporting, which is an even bigger criminal offense.
And who’s to say they aren’t being set up in a sting in order to reduce someone’s sentence?
I’m not saying that law firms aren’t faced with this dilemma every day (although nobody’s ever tried to hand me a giant bag of cash, so what gives?), but the lawyers in the show didn’t even blink at the consequences. There should have been some discussion of how the FBI would come down on them if they were caught accepting the money. A mention of the reporting requirements. Something showing the audience that the writers were aware it was a big risk to accept the money. Instead, the lawyers had the money piled in their office for anyone to see.
Legit law firms would simply refuse the bag of cash and decline the representation, or tell the client they had to report it and let the client decide to hire a different firm. Crooked firms would take the cash and the client, but would be aware that they were part of a crime when they did so. The writers needed to choose which kind of firm they were writing about and let us know. They didn’t.
Saturday, February 6, 2010
The Good Wife Does Objections Right, Circumstantial Evidence Wrong
It doesn’t take much to give me a thrill when I’m watching a legal drama. Even the tiniest bit of law done right can make me happy. Yes, I’m probably easily amused. But when a screenwriter gets it right, I jump for joy because it’s so darned rare.
HOSTILE WITNESSES
When I was watching The Good Wife last week, the lawyer was examining a witness using leading questions. In general, leading questions are ones with yes or no answers. Opposing counsel objected to the leading questions. The lawyer conducting the examination responded that the witness was hostile and he was allowed to lead.
When the judge overruled the objection, I was happy beyond words. That tiny bit of correct procedure added to my viewing pleasure. Here’s what was going on that they got right.
A hostile witness is a witness who favors the other side. It’s usually an employee, relative, someone the other side has control over. While leading a witness on direct examination is usually a big no-no, this is an exception to the general rule against leading on direct. I usually like to call them an adverse witness when I’m using this exemption, mainly because sometimes the judge will say, “Well, I haven’t seen them being hostile. I’ll allow it only if they act hostile.” Doi. That’s a misuse of the exemption. Hostile simply means, in this situation, adverse. But still, I like to keep it simple. So when I tell the judge I’m leading because the witness is adverse, they’ll almost always allow me to lead.
Watching a TV lawyer leading a witness on direct drives me batty. Here, they showed some action, a bit of drama, and told all the folks who know about the justice system that we’re in good hands.
CIRCUMSTANTIAL EVIDENCE
They did one little thing that bugged me though. I couldn’t get too exercised about it because everyone makes this mistake. I’d like to see it eradicated in my lifetime, so I’ll keep picking at it. That’s the misuse of the term “circumstantial.” I always hear characters say, “But that’s just circumstantial,” or “I need hard evidence, not circumstantial evidence.”
Circumstantial evidence is where the fact is not directly observed but where inferences are drawn by the surrounding circumstances. Your character hears a shot fired, sees a woman standing over her husband with the smoking gun. The forensics show that she has gunpowder residue on her hands. That’s all circumstantial evidence.
Eyewitness testimony is not circumstantial when the eyewitness observed the fact. If the maid saw the wife pull the trigger, that’s eyewitness testimony. It’s not circumstantial. What it is, though, is incredibly unreliable. Eyewitness testimony is the least reliable evidence. Witnesses are crap at recalling details. Witnesses of one race can’t reliably identify faces of people of other races. Eyewitness testimony is why so many people are wrongly convicted.
All that great scientific evidence that TV dramas and juries love is circumstantial evidence. It’s reliable as heck. Give me circumstantial evidence any day over eyewitness testimony.
So please stop dissing circumstantial evidence in your writing. Use it right.
HOSTILE WITNESSES
When I was watching The Good Wife last week, the lawyer was examining a witness using leading questions. In general, leading questions are ones with yes or no answers. Opposing counsel objected to the leading questions. The lawyer conducting the examination responded that the witness was hostile and he was allowed to lead.
When the judge overruled the objection, I was happy beyond words. That tiny bit of correct procedure added to my viewing pleasure. Here’s what was going on that they got right.
A hostile witness is a witness who favors the other side. It’s usually an employee, relative, someone the other side has control over. While leading a witness on direct examination is usually a big no-no, this is an exception to the general rule against leading on direct. I usually like to call them an adverse witness when I’m using this exemption, mainly because sometimes the judge will say, “Well, I haven’t seen them being hostile. I’ll allow it only if they act hostile.” Doi. That’s a misuse of the exemption. Hostile simply means, in this situation, adverse. But still, I like to keep it simple. So when I tell the judge I’m leading because the witness is adverse, they’ll almost always allow me to lead.
Watching a TV lawyer leading a witness on direct drives me batty. Here, they showed some action, a bit of drama, and told all the folks who know about the justice system that we’re in good hands.
CIRCUMSTANTIAL EVIDENCE
They did one little thing that bugged me though. I couldn’t get too exercised about it because everyone makes this mistake. I’d like to see it eradicated in my lifetime, so I’ll keep picking at it. That’s the misuse of the term “circumstantial.” I always hear characters say, “But that’s just circumstantial,” or “I need hard evidence, not circumstantial evidence.”
Circumstantial evidence is where the fact is not directly observed but where inferences are drawn by the surrounding circumstances. Your character hears a shot fired, sees a woman standing over her husband with the smoking gun. The forensics show that she has gunpowder residue on her hands. That’s all circumstantial evidence.
Eyewitness testimony is not circumstantial when the eyewitness observed the fact. If the maid saw the wife pull the trigger, that’s eyewitness testimony. It’s not circumstantial. What it is, though, is incredibly unreliable. Eyewitness testimony is the least reliable evidence. Witnesses are crap at recalling details. Witnesses of one race can’t reliably identify faces of people of other races. Eyewitness testimony is why so many people are wrongly convicted.
All that great scientific evidence that TV dramas and juries love is circumstantial evidence. It’s reliable as heck. Give me circumstantial evidence any day over eyewitness testimony.
So please stop dissing circumstantial evidence in your writing. Use it right.
Tuesday, October 13, 2009
The Good Wife Writers Miss An Opportunity
So far, I enjoy the new show The Good Wife despite the fact that legal shows usually make me want to throw things at the TV. Maybe it’s because Julianna Margulies makes anything watchable. Whatever it is, the show is pretty compelling.
However, last week’s show had a scene that had the main character essentially testifying during her examination of a witness. The scene involved a key piece of evidence exonerating a murder defendant, the time a set of sprinklers went on.
I understand the writers’ urge to speed through what might be pretty boring testimony about plumbing. But a lawyer who did this would be chastised, wouldn’t be allowed to do it, and would probably be committing malpractice. That’s because they need a witness to come on the stand and testify about the sprinkler times. If they didn’t bother to call the witness, the evidence couldn’t come in and their client would be in trouble.
Here’s what the writers could have done to satisfy my legal colleagues out there who would love to find a watchable legal drama.
There was a great character they underused. It was the owner of the house with the sprinklers who was also the father of a witness. The witness was a teen who wanted to testify, but would have had to admit to having drugs in the house. The father came out, screamed at our main character that she should leave his son alone, that his son would never testify, and threw her off the property. I thought he was pretty interesting, but that’s the last we ever saw of him.
The writers could have put the father on the stand. We wait for the fireworks. He’s ready to blast the lawyer, to deny his son’s involvement. She asks him only about the sprinklers. The prosecutor and the witness are scratching their heads. A great dramatic moment where the audience is wondering what's happening. Then she springs on us the importance of the sprinklers. The killer is unveiled.
Doing it the right way would have added about another minute to the show. I’m sure something else could have been cut. Had the writers been more accurate in their legal writing, they could have also had a better show for all of us.
There are over a million lawyers in the U.S. We watch TV and read books. With a little creativity and a bit of research, most writers could put together something we find watchable, and that also entertains the non-lawyer audience.
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