No gavels, no hearsay and plenty of drinking: a law expert grades judicial plays by their veracity
From Elle Woods in Legally Blonde to Jennifer Walters in She-Hulk, Atticus Finch in To Kill a Mockingbird to Denny Crane in Boston Legal, our popular culture is typically where we first encounter and see legal practice.
Sometimes this comes through the silver screen, other times television. But it would be foolish to suppose that anything we see on legal television programs is factual - even when it professes to depict reality.
Most legal dramas are awful at conveying the reality of law.
Not accurate: Law(less) and (dis)Order
Law and Order (1990-) pioneered television drama by displaying both the investigation of a crime by police, and subsequently its trial in court. With its various spin-offs, notably Law and Order: Special Victims Unit (1999-) and the shortlived Law and Order: Trial by Jury (2005-2006) (which featured the finest theme music of all the shows), the Law and Order brand is a televisual legal powerhouse.
As with most serials, Law and Order shows the criminal judicial system as moving faster than you can say dun dun. This couldn’t be farther from the truth. The typical length of criminal law proceedings in Australian higher courts was over one year (50 weeks) during 2021-22.
While procedural norms in civil proceedings compel courts to assist the “just and efficient resolution of disputes at minimum expense”, in criminal law, speed and efficiency must not be valued above accuracy: a person’s liberty is at issue.
Most criminal proceedings do not progress to a full trial since an accused would commonly plead guilty to the allegations. As a consequence, the issue advances to punishment without prosecutors having to establish the crime. The numbers of this occuring are pretty disturbing. Data spanning 2021-22 showed over 75% of defendants in Australian courts submitted a guilty plea, and over four in five criminal convictions (79%) originated from a guilty plea.
Research reveals criminals plead guilty for a number of reasons, including to avoid the expense of a trial and to earn a shorter punishment. Data from the United States reveals the demands of the epidemic led to innocent individuals pleading guilty to crimes they didn’t commit.
If Law and Order was a more realistic portrayal of criminal law, cases would progress promptly to sentence owing to guilty pleas. And should an accused be found guilty, a portion of their sentence would be reduced by time spent awaiting trial.
Not accurate: Suits
Suits (2011-19) revolves on law firm partner Harvey Specter (Gabriel Macht) and his tutelage of Mike Ross (Patrick Adams) — the “lawyer” who never completed law school and delivers legal advice owing to his photographic recall.
This is, obviously, a horrible ethical violation for everybody concerned, and plainly fraud. In Australia, law students who present themselves to be attorneys are subject to punishment by the Legal Services Commission. They may do damage to people who have engaged their services. And the Legal Admissions Board may reject them admittance into the profession.
(Spoilers) Ross is later sentenced to two years in jail for this deception, a comparable punishment to a recent case in the United States, but he only spends three months before solving a crime and winning early release. More improbable than this early release is that Ross does pretty rapidly afterwards acquire admittance to the profession, which seems unlikely to occur so soon after such an act of deceit.
While Suits has left its mark(le) on the public imagination of law, it fails to address one of the basic tasks of civil litigation: the responsibility of disclosure.
The MacGuffin-ing of law is widespread in TV serials. It’s the “smoking gun” uncovered on the day of the trial, or for the attorneys in Suits, the random document which pops up during the trial to flip the case - vividly displayed by our heroes as they flail into court armed with this material without ethics.
This is not exactly correct.
In adversarial legal systems like Australia, New Zealand, the UK and the US, civil litigation laws oblige parties to reveal to one another any documents in their possession or control which are directly relevant to an issue in dispute.
This is an ongoing responsibility, so if you uncover such a document at any moment throughout the case, it must be revealed. While exclusions depending on certain rights may apply, this effectively implies civil litigation must be handled in a “all cards on the table” fashion. Randomly disclosing secret evidence at trial needs the permission of the court and may result in orders of contempt and financial penalties.
It’s not like the attorneys of Suits have ever really been worried about ethics, either.