Hey Good Wife Writers: Mediation Is A Settlement Conference, Not A Hearing

I just finished watching Episode 11 of this season's Good Wife, called, "Boom De Yah Da." Where do I begin? The writers must be watching that idiotic show about "mediation," Fairly Legal for their research. They couldn't have been more off base if they tried.

First of all, our heroes get a "Notice of Mediation" ordering them to attend a mediation on short notice regarding their bankruptcy. Sure, mediators do sometimes issue notices. But that's about all they got right. While a court may order mediation between parties, nobody can unilaterally set a mediation. The parties agree to both the mediator and mediation date. If they agree on neither, the judge sets it. There's no such thing as a surprise mediation. Usually, a party issues the notice after both parties agree on a date, location, time and mediator.

But it gets worse.

The mediator arrives and calls herself an "empress." It is clear that she intends to conduct a hearing and make a ruling. That's not what a mediator does. A mediator is a facilitator. She is not a judge, an arbitrator, a hearing offer, or an empress. She is there to help parties to a legal dispute reach a voluntary settlement. She can't take testimony. She can't make an order.

I'm so sick of writers getting this wrong. Mediation is a great thing to write into a legal show or a story involving the law. The Wedding Singers was a comedy that started with the main characters conducting a mediation, and they did it right. It was a great introduction to the characters, funny but true to the law.

Why has Hollywood gone off the deep end about mediation? It's simple. If you want someone who isn't a judge make a ruling in your story, they can be several things, just not a mediator. Here are a few:

Court-appointed special master: A special master is someone the judge appoints to make rulings on a specific matter. It might be discovery or a complex legal issue. That would have been perfect here.

Arbitrator: If the parties agree, the whole case can be ruled on by an arbitrator instead of a judge. It's a great process that saves time and money, and is not public. I doubt it would have worked here since the parties didn't agree and I've never heard of a bankruptcy arbitration. Arbitration can be forced on people like consumers and employees who signed an agreement in fine print they didn't read, and you can't appeal an arbitrator's ruling, so it's an excellent vehicle for a writer to use. It creates tension, drama, and gives finality to your story's outcome, unlike a judge's ruling, which can be appealed.

Hearing officer: Some cases, usually minor ones like traffic matters, use hearing officers instead of judges. They can make rulings just like judges. It wouldn't have worked here.

Magistrate judges: Federal courts also have Magistrate Judges, appointed but not for life, who hear federal matters. They take some of the burden off the judges and can hear cases by agreement or by court order. That would definitely have worked here.

Why oh why can't writers be bothered to get this right? It really ticks me off since I'm a mediator. Any lawyer, party to a lawsuit, mediator, or judge who is familiar at all with mediation knows this wasn't even close to realistic.

C'mon, Good Wife writers. I know you can do better.

How I Met Your Mother Court Episode is Unwatchable

Now that the new TV season is up and running, I promise to post more. Summer is tough for writing about TV writing. I just watched the newest episode, Twelve Horny Women, of How I Met Your Mother. I usually enjoy the show. Anything with Neil Patrick Harris is worth watching in my opinion.

Except this episode.

I hope the writers never, ever write another courtroom show. I'll have to stop watching. The show starts with Marshall's traitorous ex-friend weaseling his way into Marshall's firm, sneaking into the conference room they're using as a war room for their new big trial, and photographing their notes on trial strategy.

In real life, the peeking lawyer would be in real trouble. If a lawyer gets an accidental copy or email of something they know is confidential, they're supposed to disclose it to opposing counsel, return it or delete it, and not use it. Period. They can't go around peeking at opposing counsel's notes during a deposition break or look through their garbage for confidential information.

I won't ruin the show for you by doing spoilers. The writers will ruin it anyhow for any lawyer who watches. I'll just say that the parade of gaffes includes:

• Ex-parte communications with a judge
• Lawyers presenting evidence to the jury with long narratives instead of a witness
• Lawyers offering their own opinions on the case
• Lawyers making themselves witnesses in the case
• A finding of guilty/not-guilty in a civil trial
• The judge determining damages with no evidence and no basis stated on the record
• Calling damages a "fine"

I'm sure there were more, but I can't think about this travesty of a show anymore. The ridiculousness of it ruined the show, and they could have made it funny and kept it more real. Instead, it was just silly.

C'mon guys. Two minutes of research would have made the show better. Heck, watching five minutes of Judge Judy would have made it more realistic than this show was.

If you won't even attempt to make the scenes somewhat like what would happen in a courtroom, why use a courtroom at all? Make it something different. Use arbitration, which has looser rules. Use mediation, which is very informal. Make it a settlement conference. Do something, anything, but what the writers did in this show.

I declare this episode officially unwatchable for lawyers.

Suits Gaffe - Lawyer Noncompetes Are A Big No-No

If you're like me, you've been waiting for the Suits season finale where the battle between the contenders for managing partner of Pearson Hardman comes to a head. I won't spoil the result (although you find out in the first five minutes of the show), but I will say that the losers start muttering about taking as many lawyers with them and forming their own firm. But the one who keeps their calm says they can't. They have noncompetes.

At that point, they've lost me. I can't believe it! In Florida, lawyers can't have noncompetes, so I run to the computer and look up New York's code of professional conduct. Sure enough, I run across references to Karas v Katten Muchin Zavis Rosenman, a case saying that New York lawyers aren't allowed to restrict their ability to compete. In that case, a lawyer would be paid beau coup bucks in severance, if only he would refrain from working from a competing firm. The court found that “restrictions on the practice of law that include ‘financial disincentives’ against competition. . .are objectionable primarily because they interfere with the client’s choice of counsel.” When I find the actual rule, it says, “A lawyer shall not participate in offering or making: (a) a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. . . .” In case you're interested, it's Rule 5.6.

Most states follow the same rule. The idea is that, because the attorney-client relationship is so personal and so important, clients must not have any restrictions on their ability to choose which lawyer they use. This reasoning is bizarre to me in light of the fact that my gynecologist, your proctologist, and your psychiatrist can all be forced to sign noncompetes, at least in my home state. You may not be able to use your favorite doctor for a year or two, but god forbid you not be able to choose your lawyer. I can't think of a relationship more personal than the one I have with the person who checks out my hoo-ha every year and who delivered my kids.

Why are lawyers so special? Is it because we write the rules and pass the laws? You betcha.

The better question is, why can employers make most employees sign these agreements and force them into indentured servitude? Maybe it's time to revisit the whole concept of noncompete agreements in this country. In the meantime, when you're writing about lawyers, don't make the mistake of having them sign noncompete agreements.