I try. I really do.
I really try to watch legal shows without shouting at the TV. It's like watching the presidential debates without doing that -- impossible.
That's because these shows get so very many important things about what criminal defense attorneys really do totally wrong. What is especially disturbing is that the shows that purport to be true to life, such as The People vs O.J. Simpson, are the worst. It's possible that those shows actually are accurate, and that really disturbs me.
The seminal work in this area, as we lawyers like to say, is Law and Order. The criminal defense attorneys in that show are all either stupid or unethical, or more likely than not -- both. Simply put, either way, the "lawyers" on these shows make us all look bad. Horrible in fact. They do some of the stupidest, dirtiest things imaginable.
Here's a list of some of the biggest mistakes TV makes about criminal defense attorneys:
1. None of Us Really Care Whether Our Clients Are Guilty
That's right. If you read this blog you should know why that's true: it's because the only thing that matters, EVER, is what the evidence shows, whether that evidence is admissible or inadmissible, and whether it is enough to prove our clients guilty beyond a reasonable doubt. This is the law and our job is to follow the law (at least it is if we are ethical.)
Let's put it another way: attorneys are people. They make unfair assumptions about people based on their appearance, their backgrounds, and their mannerisms. But that does not mean we can magically know whether or not someone is guilty. If your son has a strange hair cut, and is falsely accused of committing a crime, how would you like it if the lawyer just decided he was guilty because of his hair and therefore didn't really try to help show his innocence? What kind of a world would that be? This is precisely why we have things like the presumption of innocence and unanimous jury verdicts. This is how we decide guilt. Not hair do's or lawyers' personal biases.
In The People vs O.J. Simpson, Robert Shapiro starts off the first defense attorney meeting by calling for a vote amongst the thousand or so lawyers in the room as to whether they believe "O.J. did it". Wrong. Just wouldn't happen.
I suppose it's possible they got it right, and Shapiro really did do that. My brain just won't let me process that thought. First, who does that? NO one. It's just too incompetent. Second, how on earth does Shapiro manage to live in a giant mansion in L.A. with such a lack of legal ability? It makes zero sense to me. Maybe I'm just jealous, but how can I be jealous of a complete idiot?
2. We Do NOT Lie All Over The Place
Lawyers on TV routinely lie. Big time. They lie to judges. They lie to prosecutors. They lie to their clients. Heck, they probably lie to themselves half the time. Like when they are talking to themselves in the mirror saying what great lawyers they are.
We just don't do that. This is perhaps the most fundamental misunderstanding about what we do. When I see all the unethical "legal" lying and cheating on these TV shows, I finally understand why the public finds us so despicable. When I see this stuff I find us despicable too. Until I remember that it is all made up nonsense.
The true skill, the real talent in arguing your side of the case, is knowing how to say things in a certain way to make people "think things" the way you want them to, WITHOUT ever resorting to lying. That's where the skill comes in for crying out loud. You have to open up their minds, not shove false information down their throats.
Anyone can say Johnny didn't steal the cookies when they know full well he did. It takes skill to take the actual real facts and twist them around until the person listening begins to doubt whether he did.
Did you see Johnny take the cookies?
No? So you can't say for sure he did? You weren't there? You did not take photos? You do not have any cookies in evidence for us to see?
Yes, you did see him? Were you wearing your glasses? Did you see him put the cookies back? Is it that you weren't looking or that you left the room? Were you watching TV at the time? Law and Order? Do you remember the plot? Pretty detailed huh? I bet you paid close attention to that plot, right? Too close to be watching Johnny non-stop I'll bet?
Stuff like that. They probably saw Johnny take the cookies and shove them down his greedy little throat, but depending on the answers, you might be able to make people begin to wonder.
And you know what? Maybe Johnny didn't steal any cookies. Maybe he just looked at them and put them back while they were watching that bad TV show. So, we must do our best to run the facts under the microscope called "the criminal justice system" and let the juries decide. It's the law, the one we all swore an oath to uphold.
3. It Is Not Easy To Make People Think Things
It amazes me how often people tell me that what we do is to simply walk into court, more or less totally unprepared, and just begin winging it. Another lawyer, one who does not do trials, said that to me yesterday. That's how deep the misconceptions go; even other lawyers don't get it.
We look at every fact, every issue, every claim made against our clients from every perspective imaginable. That's because that is how life actually works. When I first ate oysters I hated them. Gooey, slimy blobs. But over time my perspective changed; I began to understand and appreciate them because I kept my mind open and looked at them less as slimy and more as fresh little tastes of the sea. Same oysters, different way to see them. And now I love them. You can look at any "fact" in different ways and suddenly see them from an entirely new perspective.
I have done this many times in trial. A burnt door frame meant nothing to me in an arson case once. But after analyzing it for months, I saw it in a way that none of the experts did. It proved the fire burned so long because those burn marks showed the door was open and created a draft, fanning the flames and providing an alternative explanation for the intensity of the fire other than accelerant being used. By making myself think things I opened my mind to the truth, which is precisely why we try to make people think things based on actual facts, rather than just make stuff up.
It takes forever and a day to scrutinize every little detail of every case, no matter how simple or complex it is. You have to scour every shred of evidence, and look for every possible alternative explanation you can possibly find for it. Consider every plausible theory under the sun to create a version of events that leads to doubt. Memorize it all, and think up endless questions (or none, depending) that help show that things may not be as they seem in any given case.
When your client is caught red handed, on tape, with multiple eye witnesses, and has confessed in detail, this can be a bit... uh... hard. But you have to do it. It's all about proof beyond a reasonable doubt and the presumption of innocence. And, guess what? Once you think this way you begin to see things differently, in a way that might create real doubt. Like that burnt door frame.
In that same arson case, my client had confessed. In great detail. Case closed, right? Wrong. When I really opened my mind and compared my client's statement to the science and listened to her voice carefully I realized - she had falsely confessed to protect someone else. Not guilty, thank you very much. After a month long jury trial.
Thank goodness it was not up to me and my first impression. It was up to a jury listening with open minds to alternative explanations about what seemed to be cut and dried guilt at first.
Along the same lines we have the habitual use of illegal or fraudulent evidence by these TV lawyers:
4. Lawyers Do Not Hide Evidence or Use Illegal Evidence
Another show that I find especially offensive is "How To Get Away With Murder". I could write for days about just the title of that show to begin with. No self-respecting Crim Law Professor would say that.
This show is about a criminal law professor who supposedly teaches real life defense attorney stuff to her students. Wrong. The first day of class I was delighted when she announced that they were going to set aside the law books and zero in on what defense attorneys really do. I have always wanted to do that. It would be a great way to help dispel some of these myths about the practice of criminal law.
Instead she immediately begins teaching utter nonsense, culminating in a scene where she straight up lies to the Court about where some illegally obtained evidence came from, so that she can get away with using it in trial. Again, who really does that? Nobody I know.
You see, once again, this begs the question. The fact is that it takes skill to find ways to get evidence in, legally. Just like everything else, it's not easy. For a show that pretends to be both accurate and educational it is especially troubling. No wonder people hate us. I hate us when I see this stuff unfolding on the screen.
5. Lawyers Don't Make Up Theories Out of Thin Air
This is perhaps the worst misrepresentation about what we do. Once again, it assumes that we just make stuff up, with no hard work and no regard for ethics. Simple, right? Wrong.
Law is like science in this regard. Evidence in cases is no different than data in scientific research. In science you do the experiment and gather data to confirm or refute your hypothesis. True, some scientists fake this data so that they can get famous, and I'm sure that some lawyers might make up baseless theories or fabricate evidence for the same reason.
But on "How To Get Away With Murder" in one episode the professor has the class come up with random defense theories that are completely fabricated out of thin air. That just does not work in real life. Why? Because the minute you do that you get handed your lunch in the courtroom by any self respecting prosecutor, who will simply turn to the jury and point out that nothing you are saying has anything whatsoever to do with actual evidence, and that even the jury instructions say that the lawyer's words are not evidence and should not be considered as such.
Which, once again, is where skill comes in. Like science, the only valid approach is to look carefully, very carefully, at all of the evidence and come up with viable alternative explanations for it. You derive your defense theories from the evidence you have, not the other way around. You don't make up theories first then worry about the actual evidence later. That does not work in real life.
I could go on. And on. And on. But, I won't. Unlike the lawyers in those TV shows who like to blather on about nothing. There are many other mistakes and misconceptions on these shows.
Like taking your client in to talk to the cops without first having detailed immunity agreements in place and without first mastering every single piece of evidence. Or the fact that a Murder happens on Saturday, Monday you are in court screaming about something, Wednesday you are picking a jury, and Friday you are making closing argument. Uh, not even close on that stuff.
It can take months, years even, depending on the case. I have never personally tried a major felony (and I have tried many) less than several months after I first got the case. Again, it just does not happen and it hides the fact that hard work, and lots of it, must come first.
I am sure some people may have trouble believing that lawyers are not unethical, lying, cheating, lazy swine who will do or say anything to win, with no regard for The Law. To those people I have only one thing to say:
You're Watching Too Much TV!