Lawyers on Television
By Ronald Goldfarb
When we lawyers come home from a long day at the officewriting letters and memoranda and briefs, talking endlessly on the phone, attending cordial meetings with prospective clients and hostile ones with opposing counsel, sitting through boring sessions with vendors of insurance and office equipment, placating miffed colleagues and complaining staffwe look forward to a pleasant dinner and a relaxing evening watching . . . lawyers on television.
We might not recognize the life of those television lawyers, who are invariably spellbinding juries, saving the innocent and condemning the guiltyit is so different from what most lawyers have done that daybut it is hard to avoid them. The dramatizations like Law & Order, the reality broadcasts on Court TV, the exposés on Dateline and 60 Minutes and other magazine-format programs, and the endless shouting matches and barrister bloviating about current cases on the cable talk shows are ubiquitous. If they turn off many practitioners in the audience, they obviously appeal to great numbers of nonlawyers, or the marketplace would not be so persistently in pursuit of more lawyer programs.
What is it about lawyers on television that has had such a historic and continuous public appeal? Are the images of lawyers on television valid? What have these programs to do with the poor public perception of lawyers, and all those nasty lawyer jokes?
The Art of Seduction
When I was thinking ahead about my future career, as a high school student in the late 1940s, being a doctor or a lawyer was the top of the wish list in my social circle, especially for second-generation American Jewish boys. The joke was that a lawyer was a Jewish boy (there were few girls who were doctors or lawyers in those days, but thats another article) who couldnt stand the sight of blood. We couldnt get into elite law and medical schools readily in those days (that, too, is another story).
The point is that in the midtwentieth century, lawyers were revered as wise counselors, champions of justice, pillars of the community. There were no how-many-lawyers-at-the-bottom-of-the-sea? jokes in those days. Being a lawyer was a career to aspire to.
When television came into everyones home around midcentury, the prevailing public perception of doctors and lawyers was reflected in televisions positive portrayals of these professions. Then, as now, the airwaves were filled with doctor and lawyer stories, reality and dramatic versions of what lawyers did or were supposed to be doing. Shows about policea career goal for those with different academic, cultural, and economic skills and goalswere another staple.
The popularity of these media genres is attributable to the inherent drama of those professions. People enjoy the vicarious and voyeuristic thrills of emergency rooms and courtrooms (and precinct station houses), though they dont ever want to be in them. It was a time for heroesThe Lone Ranger, The F.B.I., Perry Mason, and Dr. Kildare. We listened to and watched role models.
Since 99 percent of the population has access to television, and watch it for many hours daily, its impact on public perceptions is profound. Do media reflect, reinforce, or create public perceptions about the legal profession? Is the reel life the same as the real life of the law? One newspaper, citing foreign and American studies, reported recently that the majority of the public has never consulted a lawyer, nor experienced the legal system firsthand.
The publics information, then, is secondhand, depending predominantly on television, which is far more pervasive and profound than movies. More people watch movies on television than feature films in movie theaters, and dramatic series, by their nature, repeat the images weekly, and into syndication.
That said, how accurate are the portrayals of television lawyers? Have they changed, and why?
Lawyers on television are invariably in court trying cases. That is because trials are dramatic. Issues are intensely focused and their conflicts examined. There is a beginning, middle, and conclusion, usually all in an hourthe boring delays and paper-shuffling parts of real trials having been excluded. Like sports events, a world passes in a dramatic, partisan way; sides are taken; and an unknown conclusion is reached.
However, the trial part of lawyering is an infinitesimal part of what most lawyers do. Only a tiny percentage of lawyers ever try a case, and the overwhelming number of lawyers are rarely in a courtroom. Add to this fact of life the reality that few cases (under 10 percent by most accounts) ever get to court. The greater number of criminal cases are pleaded out or plea bargained, and most civil cases are settled.
The lawyer at work as portrayed in most television dramas represents the tip of the professions iceberg. Thus the public image of lawyers and the public perception of what lawyers do in their daily professional lives is distorted. Lawyers arent performing gladiators; most are office bound, reading, writing, talking (often shouting) about technical features of everyday business and disputes.
Even the cases shown in the news, discussed ad nauseam on the daily talk shows, and covered by Court TVthe real thing, as opposed to the dramatizations of the supposed real thingare hardly typical of the cases lawyers handle on a regular basis. They are the sensational cases, trials involving celebrities (e.g., sports and movie stars, fallen politicians and business executives), which we see and hear about in overdoses. When it comes to lawyers, the public visualizesnot surprisingly, because these are the attorneys they see and hear about endlesslyJohnnie Cochran and F. Lee Bailey, the real-life versions of Ben Matlock and Perry Mason.
Were cinéma vérité documentary maker Frederick Wiseman to put a camera in a typical lawyers office and record a typical day, what viewers would see would bore an audience to distraction. Monday, parsing an arcane section of the pension statutes. Tuesday, analyzing a tax code provision dealing with an oil depletion deduction. Wednesday, preparing a will codicil to exclude a prior beneficiarys interest in a trust. Thursday, arguing with a divorce lawyer about whose obligation it is to pay for a minors orthodontic treatment. Friday, drawing a complaint (or answering one) about why some corporations business practice is unfair to some disgruntled consumer. Saturday, catching up on a pro bono case assumed by the firm. Reading, writing, talking, reviewing documentsthese activities are not the stuff of good theater. They are the life of the ordinary lawyer.
Similarly, with the same focus on talk show commentaries, the news, and actual television coverage of some trials, the publics perception of the legal system, and perforce its conclusions about it, are limited and distorted.
Where are the needed discussions and treatment of such everyday issues as the complexities and inequities of the tax system, which affects everyone; the suitability of divorce law, which affects half of all marriages; the appropriate responsibilities for corporate and government misconduct, which we all have a stake in; the disparities in access to and quality of legal treatment between the rich and the poor; the need to control special (i.e., wealthy) interests on lawmaking by rich lobbies, which diverts laws from the moment of their conception? Mention of these matters, and others equally as important, rarely makes the airwaves, though their resolution defines the quality of the justice system that we lawyers manage.
This difference between image and reality may be the reason so many lawyers are unhappy in their work. They were seduced into becoming lawyers by To Kill a Mockingbird and L.A. Law, and then found themselves in quiet offices preparing cartons of documents for depositions at night on weekends.
The public image of lawyers has changed as well, as a result of televisions portrayal of what lawyers do and how they do it. Comparing the two longest running television lawyer showsPerry Mason and Law & Orderreveals a changed view of criminal trial lawyers.
Perry Mason, based on the Erle Stanley Gardner novels, was a series of movies first (193437), then a radio series on CBS (194455), then a series on television (195766), then a series of made-for-television movies (198594). Its formula was old-fashioned: the cagey defense lawyer solves the riddle of each case and in a surprise ending elicits a confession, often in open court, that frees his unjustly accused client. The hapless DA is left with a shocked and incompetent look on his face.
Those were the days when the presumption of innocence was the American way. Lawyers were there to assure the system did not convict the innocent.
The home team favorite has switched in recent years from the defense to the prosecutor. Law & Order, a series that continues and proliferates like paramecia, divides its programs into detective work first and trials later. In these cases the police are always effective, the DAs work night and day and usually win their cases through skill and stratagem, and the defense lawyers often are sleazy and offensive.
High crime rates, along with conservative politicians and courts, have changed the public images of defense lawyers from the Clarence Darrows and Perry Masons of bygone days to the gang that gave us O.J. and the widely held public perception that defense lawyers are rich defendants mouthpieces who keep the guilty (at least some of the wealthy ones) out of prison. The cops on popular programs like NYPD Blue are aided by consulting DAs (usually attractive women) in their gaming of dumb, poor suspects into confessions without the benefit of any lawyers advice. Folks root for them because we know the crime was committed, so why watch the guilty get off? Lawyers today are supposed to assure the guilty are convicted. As for the brute force, What shift in American thought has made police brutality, however understandable, all right? asks Christian Science Monitor television critic M. S. Mason.
Between these extremes is the issue-dominated program. The Defenders ran for four years and 130 episodes during the 1960s. An idealistic father-and-son team in New York City (Matlock worked in Atlanta with his daughter) took on social issues like blacklisting, abortion, capital punishment, and pornography. These programs developed insights into the moral ambiguities and complexities of the law. They provided good drama and, as I recall, good law and lawyering. It was justice the lawyers were after, and in the depiction of their work toward that end, the audience was provided insight into the working of the legal system.
L.A. Law in the 1980s and 90s dealt with engaging issues, too, and portrayed a small law firm accurately, if my experiences in one were typical. The firm meetings added a noncourtroom dimension that included an ensemble cast of new-age lawyerswomen and minority races appeared, as they did in real life in the wake of the civil rights revolution. The personal lives of the attorneys were part of the shows, too, as the one-dimensional character of lawyers in earlier eras was shed for more human, many-dimensioned treatments of their love lives, families, and general dilemmas and idiosyncrasies. Of course, with the exception of the occasional pro bono case, the work of these lawyers was the work for wealthy clients who were able to afford the justice these lawyers sought for them. As it is in the real world. It was trial oriented, but realistic.
The feature of delving into the private lives of lawyers, along with their work on behalf of clients, was taken to far-fetched, often bizarre lengths in the 1990s with Ally McBeal. Calista Flockhart and her idiosyncratic colleagues in a Boston law firm indulged in strange, private antics and neurotic courtroom misbehavior that made this lawyer cringe in embarrassment. Being human or progressive isnt defined by using a unisex toilet, as this show suggested.
Its creator, David Kelley, has been very successful in Hollywooding lawyersthe Boston locale is his series milieuas the long-running (and about to end) The Practice attests. But there, too, his depiction of the workings of a small urban firm of hard-charging men and women has lapsed from its original portrayals of interesting moral, ethical, and legal challenges to more gimmicky sideshows that strain credulity, even if, as its long run suggests, it does entertain. It portrays lawyers as folks who quarrel with one another (true), push the limits of legal ethics (sometimes), and work all night (for the young).
Both programs pushed the portrayal of lawyering into the sphere of entertainment (Ally McBeal always, The Practice recently), which working lawyers would not recognize as their workaday lives.
Through the years, lawyering provided an early form of what has recently been labeled as reality TV. Traffic Court, The Peoples Court, Night Court, Morning Court, Divorce Court, and Small Claims Court were cast sometimes with real judges and lawyers, sometimes with actors. Judge Judy (a descendant of Judge Wapner) remains an immensely popular syndicated daytime program that morphs off actual trials.
And of course, Court TV has taken the lawyering phenomenon to the point where a whole network is devoted to trials in real casesmostly, though not exclusively, criminal cases. The U.S. Supreme Court ruled in 1981 that televised trials per se were not unconstitutional. Since then all states have passed laws allowing televised trials, with reasonable limitations, monitored by the presiding judges. The more reluctant federal courts, which have experimented with cameras in courts and studied the subject to near death, continue to wrestle with media demands for access. With the advent of cable television and the evolution of Court TV, about a thousand trials, the majority criminal (about a third civil), have been televised.
Early predictions that Court TV would be a combination of C-SPAN and soap operas have proved correct. It is a mixture, one commentator noted, of shocking back-page blood-and-guts trials and sober opinion-page explorations of liability, rights, and legal principle.
As the network has become more commercial, C-SPAN-like options focusing exclusively on the educational aspect of trials have gained appeal. States like Washington have gavel-to-gavel broadcasts of all its supreme court arguments. Harvard law professor Alan Dershowitz has proposed J-SPAN, a gavel-to-gavel coverage of all trials, to be operated by law schools and bar associations.
The future will see more televised trials, not less. And if the U.S. Supreme Court ever gets around to permitting its arguments to be broadcast, the greatest opportunity for educating the public about its legal system will have been reached. (This, too, is a subject for another article.)
The source of the sarcastic lawyer jokes may be attributed to the pundit talk shows that proliferated around Court TV and were absorbed by most cable networks. Endless hours of pseudo-experts (so young, so blond) analyzing pending cases, often screaming at one another, sometimes interrupted and carped at by the hosts, must turn off all but the most insatiable court watchers. Add the recently permitted advertisements of the come-in-and-discuss-your-divorce-or-automobile-accident ilk, and one can understand the source of the modern anti-lawyer jokes.
There is a paradox here, it should be noted. The public may be chilled by the style of aggressive lawyers, but when they need counselin a divorce, injury claim, or irresolvable disputethey dont want the old-fashioned kindly counselor of another era. They want a feisty, pushy, clever, push-it-to-the-limit lawyer. The kind of lawyer they probably deplore when they see him or her on television. Litigants are the same folks who call for tort reform and curbing litigation and damagesuntil they are in a fight themselves.
There is a First and Sixth Amendment feature to the question of television and lawyers. Since most television drama involves court cases, as do all Court TV cases, the public is informed, as well as entertained, by observing lawyers in courts. Not as close to reality or fact or truth as televised trials, dramatizations nonetheless may reveal insights into the judicial system, much as good novels about justice do about the legal system.
That being the case, there is an important public policy consideration in the depiction of lawyers on television. Whether in dramas or in reality, the quality of the portrayal of lawyers in this most modern, most ubiquitous, most pervasive medium of communication is an important condition of modern lawyering. What we need most is a good lawyer series on television, one where . . .
Ronald Goldfarb is a Washington, D.C., attorney, literary agent, and author. His most recent book is TV or Not TV: Television, Justice, and the Courts.
Taking the Stand appears periodically in Washington Lawyer as a forum for D.C. Bar members to address issues of importance to them. The opinions expressed are the authors own.