Legal Fictions: Stereotypes

legal padI started this series with the idea that it would be easy. I know a lot about law and lawyers and I figured the hardest part would be translating what I know from legalese to English.

But the process of doing the posts and responding to comments has made me think more deeply about both the law and writing. As I was writing my last post, it occurred to me that a lot of what I’m ranting about is the use of stereotypes.

This is most obvious in lawyer characters, but it can also include a stereotypical view of law and how it works. That is, the author hasn’t really thought about the legal issues; they’re just using superficial ideas that most people will recognize and accept without thinking.

This isn’t just a problem with writing about law and lawyers. You can see the same kind of problem with science and scientists, with preachers, with cops, and certainly with a lot of women characters in general.

Now it’s hard work to develop every character in a story – and even harder in novels with a large cast. And in other kinds of writing – say television – time pressures probably limit character development.

But this shortcut writing creates a problem in society: We start believing the lawyers or cops or preachers we read about in stories or see on television are the whole truth.

For example, there are a lot of stories – on TV, in movies, and in books – in which a criminal defense lawyer discovers that their client is actually a heinous murderer and figures out a way to nail that person for their crimes. The film Criminal Law, starring Gary Oldman and Kevin Bacon, is a particularly good example of this.

I enjoyed the movie – I love stories about moral dilemmas – but I think this is one of those plot ideas that is more fictional than real. Most criminal defense lawyers take their role of making the government prove their client guilty very seriously. The ones who don’t take the job seriously tend to just “phone in” their defense; they don’t go out to try to get their clients convicted.

And the high-powered criminal defense lawyers who put on spectacular defenses and get acquittals for defendants deemed very guilty in the court of public opinion don’t seem to me to be the kind of people who second-guess their actions.

Given that the Innocence Project is discovering that there are more innocent people in prison – and even on Death Row – than one might think, it could be argued that the bigger problem in the criminal justice system is defense attorneys who don’t make an effort to give their clients thorough representation. Though I have my doubts about whether one of those “phone-it-in” lawyers is any more likely to second guess their poor job than the flashy defense lawyer is likely to re-think the acquittal.

Of course, Perry Mason got innocent people off every week, but that’s not exactly realistic either.

One of the things that makes Joseph Wambaugh’s cop stories so good is that the cops – and often the bad guys as well – are complicated people. I’m thinking of The Black Marble in particular, with a Russian émigré cop and a dog handler who kidnaps a fancy show dog for ransom. Yes, some of his characters are over the top, but you don’t come away from his books with a stereotypical idea of either cops or robbers.

Part of the way you do this is to think about what your lawyer does when they’re not working. Do they have other interests – martial arts, marathon running, knitting? Do they go out to hear music in bars? (I guarantee you that lawyers in Austin do.) Do they cook dinner for their kids every night? Does their job wake them up at three in the morning? (Practicing law did that to me – I’m really good at second-guessing myself in the middle of the night – but I don’t think I’m typical.)

Rarely is a criminal defense lawyer going to help the cops, so those scenes in which the lawyer tells the client to stop talking are realistic. (It’s the ones in which the client keeps talking that aren’t so accurate.) But it might be a welcome addition to a story if after the interrogation scene, the defense lawyer and the prosecutor talk about their kids at soccer practice. That way people will understand that most lawyers compartmentalize their professional work – where they are at odds with other lawyers – and their personal lives, where they’re not.

Though there are some radical lawyers who are always fighting the system. William Kunstler has the big reputation for this, but there have been others. Lynne Stewart’s story is even more compelling, because she ended up in prison due to her fierce advocacy for someone accused of terrorism. I don’t know if she crossed a legal line or not, but I am sure she believes in representing people who are despised by the rest of society.

There are even right-wing radical lawyers like Larry Klayman of Freedom Watch (warning: this site plays loud music – cut off is in the upper right hand corner) who drive everyone crazy with their antics. They don’t get respect from their legal colleagues either. I’ve always thought Klayman was kind of a crank, but he did recently get a good ruling on the NSA phone intercepts.

Conventional lawyers don’t do those things, but they get along better in the world. The radical lawyers who push the limits often bring about change, sometimes at great personal cost.

Be interesting to see more well-rounded conventional lawyers as well as more radical ones in fiction.



Legal Fictions: Stereotypes — 7 Comments

    • I remember when that movie came out, but I don’t think I saw it. Alas, it isn’t available to stream on Netflix, but I’ll look farther.

      Tony Serra sounds interesting. Radical lawyers — those into it for social change reasons — are a breed apart. They do not fit into the legal establishment at all. I suspect you have to be something of a true believer to sustain that lifestyle.

  1. It’s mock trial season again here, and I went to watch the competition the other night. I was struck (again) by how complex courtroom law is, and how much information a prosecutor or defense attorney has to keep in their head–not just the facts of the case, but the relevant rulings. Even an ill-spoken lawyer (the one jury I have been on, I wanted to kill both the lawyers because every time they opened their mouths it was embarrassing) has to know stuff and lots of it.

    • Imagine being a lawyer on a jury. I usually get really annoyed because the lawyers ask the wrong questions or stumble over their words. I recall being on a criminal case jury in which the jury hung. In criminal cases, this is widely seen as a victory for the defense. But I really wanted to tell the defense lawyer that it was in spite of his performance, not because of it. (I think the jury hung because three people on it would not have believed a cop who said the sun was shining without going outside to look and one person on it refused to acquit. The rest of us would have gone either way.)

      And yes, trial lawyers have to have a lot of information on tap. Not only do they have to know their case and the law, but they have to be able to respond quickly. You can write out the questions you want to cover and you can write out opening and closing arguments, but a lot of a trial is reacting on your feet. If you don’t know your case or all the law, you’re not going to react properly. This is why big, complex cases involve lots of lawyers with different areas of expertise, and why big law firms employ lots of junior lawyers and paralegals. The lead litigator can’t keep up with all this stuff on their own.