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Friday, May 25, 2007

The "David E. Kelley Contempt Fallacy": TV versus real-world contempt of court

I am not a junkie, but an unabashed fan, of TV lawyer shows, and I have been for a long, long time, all the way back to Perry Mason days. Producer/writer/creator (and Michelle Pfeiffer-spouse) David E. Kelley has been particularly productive and successful over the last several years, regularly "mining" his courtroom plot topics from today's headlines for his series of successful lawyers shows — "L.A. Law," "The Practice," "Ally McBeal," and "Boston Legal." He combines that topicality with crisp, hyper-condensed courtroom dialog — regularly pumping out profound, tear-jerking, or otherwise dramatic closing arguments that run no longer than two and a half minutes — and, of course, the sine qua non of modern television, oodles and scads of sex: Lawyers, clients, receptionists and secretaries, judges, bailiffs, even jurors — almost all gorgeous, and almost all in a state of perpetual, irresistible arousal. And I'm basically okay with that, for the most part. This is entertainment —  it's ultimately all about selling products made by the shows' sponsors — and as such, it's fantasy escapism. If it happens to educate lay folk about some bits and pieces of the legal system along the way, that's just gravy. If you don't like it, don't watch.

David E. Kelley and wife Michelle Pfeiffer (Lately Kelley's been having a particularly hard time distinguishing between law and politics, however. The latter seems to be completely engulfing the former, such that it's reasonably clear to me that the genuine consensus presidential nominee of the Democratic Party would be Alan Shore. Kelley would probably agree if asked, and would insist that Denny Crane ought to be the GOP nominee.)

What has always bothered me most about Kelley's lawyer shows, though, has been his willingness to script his protagonist lawyers as undertaking flagrantly unethical, illegal, and otherwise outrageous acts. I understand that he's caught between competing concerns: On the one hand he wants his characters to seem gritty and "real," and to show them as multi-dimensional and fallible humans who are frequently confronted by temptations to take short-cuts for the greater good. Many of his lawyers are charming rogues, and their charm comes from just how close they tend to walk to the borderline of impropriety. On the other hand: If Kelley were to portray the real-life consequences to lawyers who commit such actions with even one-fiftieth of the realism he cherishes in picking his plot topics, then all of his regular characters would have been disbarred, and probably imprisoned on multi-year felony sentences, within the first three or four episodes of each series.

Rarely, one of Kelley's lawyer-characters will get his hand slapped — meaning we're treated to another two minutes of the character behind bars for a supposed hour, a day, or maybe (worst case) a long weekend. Sometimes there are mutterings about "bar committees" who might consider license suspensions or revocations, but those always seem to remain comfortably offscreen and toothless. Sometimes the characters are "conflicted" over their own misconduct — anything from "Should I perhaps not have had wild sex with opposing counsel during the lunch hour before our closing arguments?" to "Maybe I ought not have compelled my client to plead guilty to manslaughter by threatening to break attorney-client privilege to reveal his true guilt for murder." Virtually never, however, do the consequences or even the self-doubts throw a ripple into the next week's episode.

Apart from the obvious ethical shenanigans and lapses, though — the ones where no doubt some story-board is entitled "Alan's Kinky Sex With Opposing Client" or "Arnie Ponders Whether to Help Murdering Divorcée Conceal Evidence" — I'm also troubled by the near-ubiquitous ridicule of the judiciary. Oh, occasionally you'll see the bright, hard-working, truth-seeking jurist — often as not, his or her delivery of the "just result" at the end is itself a plot twist, a surprise, since he/she seemed so close-minded and biased up until the last commercial break. But mostly the judges in these shows exist as comedic straight men whose principle function is to demonstrate through their own obtuseness the relative brilliance of Kelley's lawyer characters.


Whatever confusion and invalid stereotyping Kelley's shows may cause the general public on the subjects of lawyer sexuality and ethics, I've always presumed that most real-life practicing lawyers would, like me, just laugh off Kelley's portrayal of all his lawyer characters as having bulletproof law licenses. Lately, however, I've been hearing and reading anecdotal evidence to suggest that increasing numbers of real-life lawyers (and not just young pups!) seem to think that they might as well be characters in a David Kelley TV show, because they're behaving in real life, in real courts, as if they have the same immunity from bad consequences that Kelley and his screenwriters provide on TV.

Exhibit A is this exchange (h/t Althouse) from a real-life bankruptcy court hearing, involving a fifty-something partner who's the head of his highly respected multinational mega-firm's bankruptcy law department:

MR SMITH: How can you possibly assume, based on the evidentiary record before you, this transaction is likely to close?

THE COURT: Because I've previously ruled on a contract that has one condition and one condition only, and that's the approval of the CHOW application.

MR: SMITH: And is the Court — as part of that ruling have you established all the financial bona fides for all the documents sitting in escrow someplace so that all that has to happen is the State of Florida has to issue a decision and magically the documents are automatically disbursed and nothing else happens?

THE COURT: I believe that has all been done, but perhaps it has not. But the only condition to close and forfeiture of the deposit is the transfer of the — the approval of the CROW application.

MR. SMITH: I suggest to you with respect, Your Honor, that you're a few French fries short of a Happy Meal in terms of what's likely to take place.

THE COURT: Proceed, counsel.

I have no idea what this hearing was about. I don't know the lawyer, nor the judge, nor the issues. I don't know if the judge was right or wrong in her expectations about the likelihood of closing of whatever transaction was under contemplation. There may be extenuating circumstances; I hope, for Mr. Smith's sake, that there are. But it's transparently, undeniably clear to me from Mr. Smith's last line that he committed an act of contempt of court.

"I suggest" and "with respect" are, in this context, meaningless pieces of fluff, because what immediately followed was a juvenile, personal insult.

One wonders just what sounds there were in the courtroom between the delivery of the one-liner and the judge's direction for Mr. Smith to "proceed." I'm hoping there was shocked silence; I'm hoping that on the following page of the transcript, were it readily available, we'd see that Mr. Smith's very next words were a heartfelt apology. It appears that this real-life judge did not do what a David Kelley judge would have done, though, which would have been to have the bailiff cuff Mr. Smith and trundle him down to a dingy holding cell until after the commercial break. Instead, she apparently issued a notification for Mr. Smith to appear for a separate hearing — one that's likely to be tense, icy-calm, and very polite — to show cause why he ought not be suspended from further practice before that particular court.

Mr. Smith is from Chicago, and this hearing was in Florida; although not admitted to the Florida bar, he was apparently appearing there pursuant to a common arrangement through which he was given special permission for purposes of that particular case. But even the revocation of such a "pro hac vice" appearance before a distant state's courts can — and should — have consequences in the lawyer's home state: The results of this hearing, if they're negative, will undoubtedly be transmitted back to the Illinois bar, and that could potentially put Mr. Smith's home-state license to practice, in both the state and federal court systems, at risk too.

Trial lawyers quite literally have to tell trial judges from time to time that they're wrong, and trial judges generally understand that necessity. We typically do that through respectful objections and other arguments, both oral and written. And if we don't point out a trial judge's errors to him during the trial — while he can still correct them — we run a severe risk of waiving our right to ever complain about those errors on appeal. Making your client's best pitch, and preserving his appellate rights, are all part and parcel of what we have to do on an every-day basis, but we're expected to do so without delivering explicit insults to the judge's intelligence, sanity, or reasoning powers.

Very, very rarely — and hopefully with great solemnity, forethought, and examination of alternatives — a lawyer's legitimate performance of his sworn duty may require him to engage in conduct that some  particular judge, perhaps in error, believes to be contemptuous. (And yes, if you infer from that wording that I have a personal war story to tell, in some other post, on that subject, you'd be correct.) But I cannot conceive of circumstances that would justify this particularly flippant sort of insult. Indeed, if the judge was in error, and if it was a particularly grave and important error, that's all the more reason not to start into a Don Rickles impersonation.


Let me be very clear: despite the title of this post, I don't blame David Kelley for Mr. Smith's stunt, nor even for whatever gradual erosion his various TV series may have caused to the public perception of lawyers' ethics. He's peddling fiction, clearly labeled as such; and arguably his shows have been a net plus for the profession and for the public understanding of law and the legal system overall. Even though shows like "Boston Legal" consistently portray fictional lawyers misbehaving without consequence in fictional courts, that is no excuse whatsoever for real-world lawyers to misbehave in real-world courts. We must know better; and those among us who've become judges owe it to themselves, to the profession, and to the public to sharply rebuke those few who think themselves entitled to behave in real courtrooms like Alan Shore behaves in TV courtrooms.

I don't know how this particular episode will turn out, but Mr. Smith ought to be glad I'm not on an Illinois bar committee reviewing his license. I'm a traditionalist and a curmudgeon, but just based upon this transcript excerpt, I'd likely start off thinking along the lines of a ninety-day license suspension, then maybe dialing that up or down depending on the remaining circumstances (and in particular, the degree of contrition expressed). I'd also be inclined to specify some onerous and creative public service requirements for Mr. Smith's path back to practice, along these lines:

"Go buy the last season's DVDs from 'Boston Legal,' Mr. Smith, and review every episode to find every instance of even arguable lack of respect for the courts fictionally portrayed therein. For each such instance, write a complete analysis, including what punishment you think ought to have been administered, if any, to the offending lawyer(s). After submitting your collected results to this committee for our review and approval, you'll then spend 200 hours as a volunteer, speaking at any public or private high school that will permit you to do so, about careers in the law in general, about your own circumstances and the results of your TV research, and then in particular about how current popular media may be misleading the public as to what standards for ethical behavior are (and should be) still enforced in the real world."


UPDATE (Thu May 31 @ wee-small-hours): I just finished watching, via TiVo, the last episode of "Boston Legal" for this season, which ends with this exchange over cigars on the balcony:

ALAN: Does it bother you that we suborned perjury?

DENNY: Not a bit. You?

ALAN: Not really. I believe they're [i.e., the clients we've just gotten off are] innocent....

DENNY: To next season, my friend.

ALAN: I can't wait to see what we do next!

Kelley's scripts increasingly include these self-aware moments in which his actors "break down the fourth wall," and I suppose that's a good thing — especially when, as here, the characters they're playing have just done something totally beyond the pale. I suppose it's sort of like a broad wink from Kelley to the audience.

The problem, though, is that some significant portion of the audience won't catch the wink, and will blithely conclude that yes, indeed, criminal defense lawyers deliberately, knowingly, and unambiguously suborn perjury whenever it suits them, and then suffer no worse consequences than the cigar ashes that soil Denny Crane's trousers (if he's remembered them) while he and Alan Shore celebrate their latest victory. Next season may bring Denny deliberately murdering inconvenient witnesses, and Alan defending him on grounds that his Mad Cow disease was really the fault of the Bush Administration's mishandling of the pet food recall.

And some people will believe that, too.

Yes, I'll probably still watch next season too. But I'll feel increasingly guilty about it, I suspect, and — with apologies for the cliché — I'll remember this episode as the series' quadruple sumersault jumping of the shark.

P.S. (Thu May 31 @ 11:30am): Much more context about the "Happy Meal" insult in this Law.com report, which also reveals that attorney Smith's corporate client has now — unsurprisingly and quite appropriately — fired him, and that his law firm is making appropriately subdued noises. And there's another blog post about the incident, this one from Prof. Jonathan Adler, along with some impassioned and widely varying comments, over at The Volokh Conspiracy.

Posted by Beldar at 06:24 AM in Law (2007) | Permalink


Other weblog posts, if any, whose authors have linked to The "David E. Kelley Contempt Fallacy": TV versus real-world contempt of court and sent a trackback ping are listed here:

» Nifong disbarred; contrite Smith gets off (appropriately) easily from BeldarBlog

Tracked on Jun 22, 2007 5:26:03 AM

» Beldar responds to a reader's comments about contempt of court and the "few French fries short of a Happy Meal" incident from BeldarBlog

Tracked on Jun 23, 2007 1:20:19 PM


(1) nk made the following comment | May 25, 2007 8:10:14 AM | Permalink

Heh! Mr. Smith is the kind of lawyers I loved going up against. Flippant, arrogant anatomical parts who thought that they could win cases the way they won debates in college. Somehow they did not grasp that all the judge wanted to do was render a fair ruling, according to the facts and the law, and it was their job to help him with a good record.
(I won one case on summary proceedings, where the judge became angry at me, because he understood that if I had had a competent opponent I would have lost. He practically threw the order in my face after he signed it. As poor as the record I made may have been, however, my opponent's was non-existent and the judge had no choice but to rule in my favor.)

(2) CS made the following comment | May 25, 2007 1:21:52 PM | Permalink

Ever since BK got sexy and those guys started thinking of themselves as M&A rock stars, bankruptcy court judges have seemed even less secure in their prerogatives, if that's possible. There's that general perception in the biz bar that BK judges are by necessity at least a step removed from true familiarity and facility of many of the issues they must rule on. Not that I'm saying that myself, of course.

While I love a good curmudgeonly rant, isn't the market going to take care of this lawyer pretty thoroughly? Who's going to bet that all BK judges will listen to the grapevine and abstain from being just a little less yielding to this guy and his firm? A prospective client doesn't have to buy fully into the notion that what goes around comes around with the BK bench to be a little risk averse and go next door. What's the downside? And that leaves aside obvious and inevitable questions about the guy's judgment.

I blame William Shatner for all this. What practitioner, itching from a career of naught but prudence and caution, can resist the fantasy of total incaution? Althouse talks about The Defenders as a lawyer's lawyer show. Too bad Kelly can't give us more inside baseball stuff on how Denny beats the odds.

(3) Jinnmabe made the following comment | May 25, 2007 2:23:37 PM | Permalink

War story! War story! War story!War story!War story!War story!War story!War story!War story!War story!

Hey, I can come back here every day with my Control V until you give in, Beldar.

(4) vnjagvet made the following comment | May 25, 2007 6:37:42 PM | Permalink

Good trial lawyers still do not pull this kind of stuff.

It is especially unwise in equity cases (bankruptcy still is essentially an equity court, in which a judge has a great deal of discretion in deciding whether to impose a given remedy and how to shape that remedy) where the judge is essentially judge, jury and executioner.

Knowledgeable clients do not hire jerks as advocates in these courts.

If I were managing partner in this firm or on its management committee, this guy would be on probation.

That little caper is what was known in my day as a CEM (Career Ending Move).

(5) DRJ made the following comment | May 25, 2007 9:54:42 PM | Permalink

There seems to be a consensus that this type of behavior can harm the lawyer's career. Obviously the Judge and the State Bar Ethics Committee can punish the lawyer but I'm not sure the public will.

Most people are ignorant about lawyers' ethical responsibilities - in fact, they probably think the words "lawyers" and "ethics" never go together. Clients today want lawyers that are modern-day hired guns, willing to do anything and take on anyone in defense of their clients. If this story gets much publicity, my guess is this lawyer will have to turn clients away.

(6) vnjagvet made the following comment | May 26, 2007 12:53:59 AM | Permalink


Maybe dumb clients. Not clients who know how to use lawyers effectively.

(7) DRJ made the following comment | May 26, 2007 1:53:12 PM | Permalink


Other than corporate clients, few people hire lawyers on a regular basis and even corporate clients like a lawyer who will fight hard for them. I agree that eventually, the word gets out that an attorney is bad news but it takes time and several dissatisfied clients for that to happen.

(8) DRJ made the following comment | May 26, 2007 2:04:41 PM | Permalink


Excellent discussion of TV's legal genre. I, too, enjoy those shows and have marveled at how they get away with it. On occasion, however, I can't help but think that legal practice in most Texas courts (and probably other places, too) varies from our sister courts in LA, Chicago, New York, and perhaps Miami.

I've read online stories like the one in this Florida bankruptcy case and commented about them at blogs, only to be told by attorney commenters that my version of courtroom standards is ridiculously outdated. Frankly, I'm glad the judges I deal with won't put up with this type of behavior. Then again, the lawyers I deal with wouldn't do this to start with.

(9) Kent made the following comment | May 29, 2007 10:21:41 AM | Permalink

Jimmabe took the words out of my mouth.

War story! War story! We want the war story!

(10) Kent made the following comment | May 30, 2007 9:17:19 AM | Permalink

Looks like a botfly got past your screen door, Beldar.

(11) steve made the following comment | May 30, 2007 9:36:52 AM | Permalink

"Fallacy" has 2 l's. Perhaps you need an editor.

(12) Beldar made the following comment | May 30, 2007 9:40:02 AM | Permalink

Everyone needs an editor, thanks ... duly corrected.

And comment spam duly cleaned.

(13) punctilius_maximus made the following comment | May 30, 2007 11:31:03 AM | Permalink

It so happens that I just now got to read this, because I have been having a constant to-do with an adversary who moved out of state and thinks he can still practice in his former state because he paid the registration fee. He didn't know the law mandated that he maintain an office here. Now, he is pretending to have a law office here, but no telephone. And, this guy claims to have been a law review editor and clerk to a federal judge.

His response to my motion to dismiss his appeal was nothing but ad hominem: this writer was desperate, in extremis, overweeningly malicious... all the venom he could muster. Then he kept harping on the fact that my client was a "convicted felon" suing a "dead lawyer" as somehow reflecting the merits of the case for money had and received (i.e., the refund of the unearned portion of $8,500 fronted to the lawyer, who stopped taking the client's calls and opening mail from him, never ordered the trial minutes, lied in writing to the disciplinary committee about why he didn't owe "this man" anything, never moved for permission to withdraw as attorney, and lived long enough to see the Appellate Division appoint the Legal Aid Society to do the work he had gotten paid for).

Some people do think that unbridled aggression and nasty condescension are the hallmarks of great lawyers. This writer once had a colleague who cultivated these traits. He used to close elevator doors on people and yell, "He who hesitates is lost!" Many of these lawyers' clients feel they really got their day in court! "Did you see that lawyer's face when you called him a...?" These lawyers, basking in the admiration of their clients, are surprised at the bad results they achieve. This fellow who has been yanking my chain has taken an appeal, moved for re-argument, and moved to dismiss the complaint. And, for all his cleverness, he will undoubtedly be defeated by his evil adversary, thanks to stupid judges who can't follow his train of thought!!

(14) charclax made the following comment | May 30, 2007 2:51:36 PM | Permalink

Terrific (as usual) post. If I were teaching a legal ethics class (which I wouldn't do with a gun to my head), I would have my students watch Boston Legal, Law and Order or the trial drama of their choice with a copy of the code of professional ethics in hand. They would have to report back all of the violations and potential disciplinary actions. That ought to zap all of the desire to be the next "Denny Crain" or "Alan Shore" right out of them. It is amusement and it is fun but young skulls full of mush have to know where the boundaries of fun are.

My darling (and naive) 12 year old son wants to practice law. I have started the lesson titled "good lawyers don't take no for an answer but do know when to say when" There is nothing fun about being carted out of the courtroom in handcuffs before God and man. I have not been on the receiving end of the "bailiff, remove the prisoner" line but I have had the opportunity (pleasure) of witnessing it. Each time, the lawyers involved didn't know when to quit digging their hole.

As to the left-leaning politics, I find the best remedy to be the fast forward button on my TIVO remote.

(15) Kent made the following comment | May 31, 2007 1:58:09 PM | Permalink


The chickens have come home to roost.

(16) Crank made the following comment | May 31, 2007 7:14:04 PM | Permalink

I never watched "The Practice" the same again after reading a review that said that basically every episode was about the characters asking themselves, "Am I a good lawyer, or a bad lawyer?"

(17) Grasshopper made the following comment | Jun 5, 2007 10:44:32 AM | Permalink

TV is TV and real life is real life.

As far as TV goes - Alan Shore was a self confessed "Criminal Attorney" (pun intended) when he was first introduced in "The Practice", and in fact, would have been fired from Crane Pool and Schmidt on a couple of occasions if Denny had not stepped in to save him - who's own behaviour is explained by his "mad cow".

I would say that both are well aware of the consequences of their ethical leaps, if caught. The reality disconnect is that, this being TV, they are unlikely to be caught.

But escapism is escapism - even for lawyers, who possibly see in these two all the things they know, in reality, they can never do.

If some people blur the line between escapism and reality, however, I wouldn't blame Kelley for that. This is a far more systemic problem, with people mimicing everything from "24" to "Jackass", and the fault for that lies in the audience, not the medium - anyone over the age of thirteen should be capable of realising that TV is not real.

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