Courtroom and legal television is nearly as old as television itself, dating back to classic shows like Perry Mason–but how real are they? Not very real at all. The range of courtroom comedies, drama and “reality” shows over seventy years of television cover the entire range from editorializing real events to completely ridiculous fictionalized worlds. Some legal entertainment, like documentaries and “reality” TV, may address real situations with varying degrees of editorializing to make the situations more dramatic and entertaining. Moving into outright fictional entertainment there are some shows that touch on the realities of practicing law and life as an attorney while others use legal practice and courtrooms merely as props for even more cliché entertainment troupes like buddy comedies (e.g. Franklin & Bash) or intense drama (e.g. Suits) with tremendous liberties with laws, legal practice and judicial procedure. Even semi-serious legal dramas like 1990s The Practice can’t help but stew in legal entertainment tropes like “I’ll allow it” and a constant flow of incorrectly decided objections.
Hey, this is entertainment not a remote learning legal seminar, right? Sure. Television almost always takes great liberty with reality to pop punchlines or stir emotions. It would be extremely boring and agonizing to watch the reality of legal practice which, like most jobs, primarily involves sitting at a desk working on drama-free work. Having cases develop over the course of a season (or several) would be far less interesting than a case going from start to finish in an episode or two.
Nevertheless, the real practice of law is something of a black box, mysterious process in which Latin intermixes with long texts written in precise formats to produce legal results and people on the outside looking in do not realize how different reality is from fiction–even supposedly true documentaries or even news shows. These fictionalizations shape how people think about trials, attorneys, the practice of law and the attorney-client relationship. People form expectations because it’s all they really know. Generally there is more untruth to entertainment depictions than truth. Let’s talk about some of them.
Seven ways courtroom antics are not like legal dramas
1. Cases do not go to trial as quickly in real life.
In an increasing number of legal dramas cases go to trial within weeks of the client’s first interaction with the attorney. For television it is hard to maintain momentum and a relationship with the characters if viewers have to assume a year or two has gone between the initial consultation and trial. So to keep the show interesting these trials happen much faster. This is almost never true in practice. In some circumstances it may be the case that an emergency hearing is scheduled very early such as in a hearing for a protective order or an urgent criminal bond hearing.
Even in these cases the trial is probably months to even years from the first interaction. This can be for many reasons. Often a case needs to be worked up before it is ready to be filed and enter a court’s docket. There may be experts to hire and consult, an investigation into the facts to complete, in a personal injury case treatment to complete, etc. Once a case is filed, due to the volume of cases and individual parts of a lawsuit, the initial trial setting may be placed a year or more out on the court’s docket. Once a case is filed with a court it begins an entire judicial process which is full of internal deadlines. Most civil practice rules intentionally give parties ample time to respond to ensure due process and avoid situations where one party can fast track a case and use speed as a weapon against the opposing party.
But my speedy trial?
But what about the right to a speedy trial? In criminal cases the U.S. Constitution guarantees the right to a speedy trial; however, that generally does not mean the judge sets a trial for a week after the arrest. For complex murder trials, like those often featured on legal dramas, a speedy trial might be more than a year after the arrest.
Often clients approach a law firm with the idea that what they see in courtroom dramas is true. It can be a rude awakening for a client that most cases are lengthy processes and the entire process is often designed to reach a settlement prior to trial. As few as 1-2% of cases ever filed make it to a trial and most civil claims (divorce aside) settle before a lawsuit is even filed.
So much more time is involved in everything.
The molasses slow movement of a client’s case is more than just the slow burn to getting a case in front of a jury. Everything takes time. A lot of time. In a TV show everything moves quickly because the story needs to keep momentum or you’ll flip channels. Real life works the other way around. The American legal system might be adversarial but that means one party acts and then the other party has to react. The back and forth of the process bakes a lot of time into litigation which is not compelling television. Lawyers do a lot of work that would make for the worst TV possible.
2. Most time spent in a trial is about proving technical details and elements of the claim rather than telling a compelling story to the judge or jury.
On TV or in movies there is limited time to show trial so the story needs to convey the most important and emotionally satisfying parts of trial. A three day trial might be reduced to ten or fifteen minutes of screen time. That means all the things that really happen in trial that do not make for good TV have to go. On television the trial time is almost certainly openings, closings, a sidebar conference, an argument with the judge and a juicy examination or two.
In reality these are usually the shortest events in a trial. The purpose of a trial is for the party seeking relief (plaintiff, petitioner, prosecution) to present the legal and factual basis for its claims and for the opposing party to tear down the claims and present its own defenses. That even sounds boring just reading it. A lot of time attributes to testimony building up the legal details that are not juicy or captivating. An entire day of trial might be testimony identifying the location of a crime scene and validating that photographs of the scene are in fact photographs of the scene. This seems completely obvious but attorneys must meet evidentiary requirements for every scrap of evidence or testimony presented. There is a reason why jurors and attorneys sometimes fall asleep in trials. The exciting parts of trials are usually short-lived.
3. Forensics isn’t as flashy as it appears on television.
The cornerstone of criminal legal dramas over the past twenty years has been forensics. From Dexter to Bones to the many, many CSI shows advanced but unrealistic forensics helps the police turn fuzzy photos, scraps of DNA and wounds into leads to capture the bad guy and indisputable proof of the crime. In reality, most of the supposed forensics technology and science you see on these shows is not real or it is highly questionable methodology. There is no technology to turn a blurred camera image into razor sharp photos. Even the supposedly real forensics methodologies are highly suspect in reality. Techniques like hair analysis and blood splatter are oversold. The “science” in criminal cases often is closer to voodoo dressed up to impress juries and sold with confidence the results do not support.
It has become a nightmare for everybody.
In practice this has become problematic for both sides in criminal cases. Decades of presenting flawed forensics as indisputable methodologies paired with even more elaborate fictional presentations has set juries up to believe the fictional techniques are real and completely legitimate. Prosecutors now risk presenting a less credible case if they cannot roll out some forensics expert to present over the top forensics evidence. Defendants have a more difficult time discrediting flawed results and procedures. This leads to less predictable juries and encourages trials to become longer and more expensive for everybody.
Certainly some forensics work is legitimate and necessary parts of trials. Trials generally involve presenting evidence of past events which often needs recreations and experts to explain the scientific processes that led to various events. Even solidly credible forensics work is often more of the boring parts of the trial than the juicy story of how the policy CSI unit shot guns into a block of Jell-O and figured out what precise gun was used in a homicide.
4. The end of the trial is usually not the end of the case.
In most legal entertainment the height of drama comes at the reading of the verdict or the judge announcing a ruling. After one party marches out victorious there is a few minutes of resolution and then the episode ends. It fits storytelling. Some shows occasionally show an appeal which then reaches its peak with an oral announcement of a decision. (That almost never happens.) When a plaintiff wins a big trial that is the satisfying payoff. As a viewer you assume the plaintiff gets paid.
In practice the end of the trial is the start of a new phase of the client’s case. Post-trial motions may follow the trial. The judge may grant a motion for a new trial. One or more appeals may follow the trial. The appeals might result in a different result or a new trial. In a civil trial after all the trial and appeal process ends then it is time to collect on the judgment. Collecting a judgment itself can be a long process of trying to collect money from a defendant fighting it. Even when an insurance policy backs a defendant the insurance carrier may resist paying on the judgment. A party might feel satisfied by a verdict or ruling but there is often much work to follow.
In custody cases the trial is almost never the end of the matter. As long of the kids are minors there is an on going co-parenting relationship and parent-child relationships to work through. Inevitably these types of cases continue until the kids become adults. Even then the aftermath of the trial may continue in the family relationships.
5. Courtrooms are usually not full of audiences.
A common concern for clients deciding whether to litigate a case that failed to settle is having to get up in front of a lot of people and talk about sensitive subjects. This is a very reasonable concern except usually courtrooms are mostly empty. Unless a trial or hearing involves a celebrity or a trial has hit prominent media–nobody really cares.
On TV courtrooms almost always have full galleries. This makes sense. Audiences fill out the visual aspect because an empty courtroom looks boring. The audience provides emotional response and queues for viewers. The show needs the audience presence to make the show full and entertaining.
In reality, even in murder trials or big civil trials the courtroom is usually empty. There are not roving bands of trial junkies sitting in courtrooms. The media does not hang around waiting for something to happen. Typically during trials or hearings in Texas “the Rule” is part of the reason for an empty courtroom. “The Rule” is a specific procedural rule that bars witnesses from hearing the testimony of other witnesses. This prevents witnesses from matching their testimony and preparing for cross-examination questions. Witnesses are kept isolated until it is their turn to testify and then they must leave. If you find more than a handful of people in a court’s gallery then they are likely mostly attorneys just waiting for their turn at the bench so they can get back to the office.
6. Attorneys are usually not as compelling as their fictional companions.
On TV attorneys have to give wonderful, moving speeches and lead witnesses through artful lines of questions. These are the dramatic moments in legal dramas. If the attorneys rolled through questions dryly or gave simplistic speeches then the show would be boring.
There are some gifted attorneys who give highly persuasive speeches to juries and judges. There are great examiners who can ask articulate lines of questions. These are not the majority of attorneys.
Most attorneys ask plain questions with a straightforward approach. This is partially on purpose. Typically attorneys do not want to appear too hostile during cross examination. Nor do attorneys want to become the focus during direct examination. That requires some degree of bland personality.
Similarly, most attorneys are not great speechwriters. For every memorable “if it doesn’t fit you must acquit” closing there are 100,000 closings not even the attorney who gave the closing will remember. It takes a lot of work to draft a persuasive, memorable closing and judges often limit the amount of time to ten or fifteen minutes. It is even more difficult to piece together a witty closing in that timeframe.
Much of what build drama during the trial phase of a legal drama cannot happen in real courtrooms. Openings and closings on TV are almost always objectionable because they go so far away from the facts of the case that few judges would allow those speeches. Questions usually run into improper form and topics that would be objected to so much the attorney could never get to any important issues.
7. Objections don’t work in real life like they do on TV.
Objections similarly serve to build drama by creating tension between judge, lawyers and witnesses. Legal dramas commonly include objections to juicy questions and the terrible response, “I’ll allow it” from the judge. Fact and fiction differ deeply here.
In general objections are far less common than on legal dramas. An important reason why is that juries often see objections as an attorney trying to keep important information away from the jury. So to object it needs to serve a real purpose in a trial. Objections to juicy but topical questions are rare because there is not always a good legal basis for the objection. Making the objection at that moment is more likely to be overruled and cause the jurors to lean in and remember that interaction.
The law is not well applied to objections. Often the basis for the objection is wrong. Often the ruling is wrong. Valid objections that should be made are usually not made. “I’ll allow it” from the judge is usually the worst offender. It’s a notorious response that shows the judge commands the room. In reality, judges generally cannot allow testimony in their discretion. If the evidentiary rules prohibit a question or testimony then judges do not have discretion to allow the testimony if objected. There is a single evidentiary rule in most jurisdictions that allows judges to invoke discretion but such issues are usually ruled on through pretrial motions to avoid having to make the arguments in front of the jury or forcing the jury to leave excessively during the trial so the debate can occur out of their presence.
But three ways fact and faction are similar…
1. Openings and closings are important parts of connecting with the audience (jurors).
On TV the openings and closings are how the attorneys tell the story and frame the case. In reality, these speeches do the same thing. Most trials do not have lengthy openings and closings so the attorneys lack the opportunity to go off on long tangents setting up metaphors or telling longwinded analogies. Although real life openings and closings are usually not as compelling or dramatic as their TV counterparts they serve important purposes for attorneys.
The opening is an opportunity for the attorneys to give an overview of their case so the jury knows why they are listening to days of testimony. It may frame questions the attorney intends for the jury to have answered through the trial or at the closing. Openings are also opportunities for the attorneys to introduce their clients to the jury which helps humanize them.
Similarly, closings are even more important. Now that the jury heard all the evidence it is time to explain why they heard all the evidence and what the attorney wants them to do with it. Long closings might pick apart details but with less time the closing has to make a high level summary and zero in on just a few important facts.
Cases can be won or lost by how these speeches frame the trial but they may not be the exciting speeches made on TV.
2. Clients often reach a point of frustration with their attorneys.
One storytelling tool often employed to build suspense is to have the attorney-client relationship break down. It’s an opportunity for an emotional outburst by one or both sides. It is also an opportunity for exposition. The client might explain facts the audience does not yet know. The attorney might explain to the client (and really the viewer) the strategy or answer questions why something a viewer would reasonable think would happen did or did not happen. It can also be an opportunity to misdirect the story by setting up one path and then have the big surprise whipsaw the episode in a different direction.
In reality, this happens a lot for many reasons. Clients sometimes do not understand procedural issues or technical evidentiary rules and it can be frustrating to not know why something happened and the attorney cannot stop and explain it in the middle of the courtroom. Clients get frustrated because they feel like an attorney should have objected or done something to cause a different result during a trial. They also often believe their claims or defenses are more valuable than they are and get frustrated when their attorney tries to reset their expectations. Sometimes attorneys need to explain and persuade clients towards their legal interests when clients have an emotional attachment to making a less than ideal decision. That can drive frustration.
3. Juries don’t get to hear all potential evidence.
In fictional courtrooms prohibiting juries from hearing evidence drives tension and suspense in the outcome. Media coverage of high profile cases usually goes to great length to discuss the evidence the jury doesn’t hear and why that colors the outcome of the case. While legal decisions in the real world often limit the evidence presented to the jury, this is not to drive tension or suspense in the outcome. The rules of evidence focus on what the jury needs to know to decide the outcome of a specific situation.
Media coverage of high profile cases often cover juicy details about the parties and witnesses because it adds drama to the coverage. They often focus on bad prior acts or characteristics that paint the target as bad or deviant. This implies somebody is bad or weird so they probably did something bad or weird in the circumstances of the trial. People often think if the jury knew those details they might reach a different outcome. Well this is all true.
The purpose of the rules of evidence is to eliminate these kinds of preconceptions from the jury’s decision-making. Whether a person has done bad acts in the past or has interests that are less socially acceptable does not in any way prove that person did a particular bad act or is untrustworthy. Robbing one bank is not proof you robbed a second bank. A defendant deserves to be proven guilty of a specific bad act; the prosecution must show facts that prove you robbed the second bank, too. There are evidentiary rules that might allow admitting evidence of the first robbery under specific circumstances but generally a prosecution or plaintiff cannot rely upon proving prior bad acts or general characteristics as proof of any other conduct. This is a difficult rule to understand because in normal life we often make decisions on the basis of a person’s prior conduct or personality. The media knows this–that is why this evidence is discussed at length outside of the courtroom. Juries, however, make decisions on limited questions involving specific events.