We take a lot of ribbing for our television-watching. We get criticized for watching it too passionately, too much, or for watching it at all. Maybe the first two criticisms are valid. Sometimes we talk about Don Draper (Mad Men) or Larry David (Curb Your Enthusiasm) as if they were real. (Yeah, yeah – some of you are sputtering that Larry David is real. But is he? Really?) Ideally, we like having two ‘appointment’ shows per week (currently Breaking Bad and Louie), randomly watching two or three other scripted shows, and then taking in a couple of sports and news programs. That adds up to about ten hours per week which, come to think of it, is a lot. It is a trifle embarrassing that we are more familiar with the dynamics of Modern Family than the reasoning of the majority and dissenting opinions in the Supreme Court’s Affordable Care Act case. But really, when a judicial opinion is so voluminous that it takes two and a half men just to lift it, when it contains more complexity than the big bang theory, and when it offers all the wit of Dog the bounty hunter, don’t blame us if we get lost.
And now we offer a disposable little digression, ala Family Guy: Doesn’t it seem as if the law in the areas nearest and dearest to our hearts is the least sensible? Constitutional law and mass torts are a mess. Maybe logical and fair orders are most likely to emerge when the opposing parties push toward logic and fairness. That will happen if the opposing sides engage in repeat transactions and could be on either side of the controversy. It is sort of like the Kantian categorical imperative, or why it works to tell the kids that one cuts the pie and the other gets to choose. In contract/commercial cases, the rule you ask for today could be applied against you tomorrow. You have little incentive to ask for one-sided rules. Consequently, commercial law mostly makes sense. But in constitutional or personal injury law, a disputant is likely to occupy only side of the “v.” That one-sidedness inspires the taking of extreme positions. Plaintiff lawyers will never acknowledge that preemption is called-for, or that there should be a limit to e-discovery. Then again, we think TwIqbal should operate to dismiss complaints almost before they exit the printer. Is it any wonder that courts are often forced to choose between competing idiocies? Study the parallel claims case law and see if it is any more coherent than an episode of Person of Interest.
But back to the really important issue at hand, TV viewing. Television is a big business and one would think that the discipline of the marketplace would force networks to produce something valuable. But people value different things, and mindless entertainment seems to be one of them. It is not as if we are immune. Anyway, do people get what they like or do they like what they get? The entire television landscape is different now from when we first planted ourselves in front of the television. We remember when there were three networks, two local stations, and one UHS channel that was barely viewable. Shows had to reach broad audiences. That wasn’t always so bad — Ed Sullivan, Andy Griffith, and Mary Tyler Moore thrived in that environment and we were the better for it. But broadcasting seems to have morphed into narrowcasting. Last night we watched channel 864. It’s hard for any show to capture the same number of eyeballs that M*A*S*H or Gunsmoke or The Cosby Show captured. That is good and bad. A masterpiece like Breaking Bad is possible now and certainly would not have been in the 1980s. Then again, it can be a bizarre and frustrating exercise now to scan through the Guide screen past Hillbilly Handfishin’ and Ice Loves Coco. Are we the only ones who have found ourselves in a trance, pushing the down button on the remote for twenty minutes? It reminds us of that paper we had to write in high school English class about Hamlet – did Hamlet have difficulty deciding what to do because life is so full of wonderful possibilities, or because (as Nietzsche argued) all the possibilities are rotten? Is tv like a cafeteria where the entrees are varieties of tuna helper and salisbury steak, and the desserts are covered in tapioca and vegemite? Maybe we should be ashamed of our concave couch and our incessant tv watching.
So imagine our relief when we learned that a senior in-house lawyer, who is one of the two or three smartest people we have ever met, thinks that litigators should watch television. We won’t name him, because (1) we don’t have permission, and (2) even we have limits to our sycophancy. But he’s authored a paper on the subject and it is easy to find. That paper, in fact, is so good that you should immediately stop reading this and go find it.
Still with us? Your mistake. Why should litigators watch television? Well, it isn’t to learn about the law. There are plenty of legal-themed shows on television and they teach precious little about the rules of procedure or evidence. Judge Mathis usually gets it right. Most television shows get it wrong. We could swear that we once saw a TV lawyer look up a point of law by retrieving a volume of Martindale-Hubbell from a shelf.
Whenever we talk to non-lawyers and they mention a legal TV show, odds are it’s Law & Order. The episodes are “ripped from the headlines.” Yawn. Once a federal agent gave us a stern talking-to about the allocation of responsibility between investigators and prosecutors, and quoted the Law & Order preamble about the separate and equally important components of the criminal justice system: investigators and prosecutors. But honestly, we already knew that we were no better or more important than the agents. Those agents are plenty smart and are usually more experienced than the AUSAs. Plus, the agents carry guns. We carried legal pads. Aside from that, we cannot think of a single time when we thought about Law & Order in our bidness. By the way, we don’t blame the show one bit for that. It is not as if what we do is especially entertaining. A former colleague of ours has been a legal consultant, writer, and producer on shows such as The Practice and Boston Legal. If those shows get some legal point wrong, or if it seems weird that the client came in with a case on a Tuesday and jury selection is on Thursday, it is not because the folks running the show don’t know better. Reality must yield to entertainment.
If litigators should watch television, it is to become familiar with frames of reference that jurors will bring with them into the courtroom. Most of you have probably heard of the ‘CSI-effect,’ where jurors are dissatisfied with prosecution cases that lack scientific evidence (the vast majority of criminal prosecutions have zero scientific evidence – not even fingerprints) and overvalue it when it is presented. Now prosecutors typically take time to have witnesses explain why there isn’t any DNA evidence in the case. (The biggest reason: we don’t need it.) It is amazing how pop culture can influence juries. The first case we ever prosecuted was for criminal trespass. The defendant was a squatter, pure and simple. It seemed like such a stupid, petty crime. Would the jury take it seriously? Luckily, there was a motion picture out at the time called Pacific Heights, where criminal trespass set in motion a series of terrible events. We found out later that a couple of the jurors had seen it. Did it make a difference? Who knows? That some jurors went out of their way in post-trial interviews to mention it is at least interesting. The frame of reference does not need to be anything central to the case. In the course of voir dire, openings, closings, or examinations, we might have occasion to reference popular culture. The jury might get it if you mention American Idol or The Price is Right. They will stare back at you blankly if you allude to Antigone or The Merchant of Venice.
When the in-house lawyer we cited earlier talked about what shows he watched, he mostly mentioned quality shows on premium cable (such as Weeds on Showtime) or PBS. Those are good shows, but they are highbrow. As far as popular culture goes, they are not nearly as popular as NCIS (whose real-life investigators are spending more and more time investigating whether doctors are writing bogus prescriptions or coding so as to get reimbursements from government programs) or any of the star-making vehicles such as the X-Factor or Dancing with the Stars. We hope this does not smack of elitism, but we have to admit that we hate those talent shows. Overly-emotive ballads and rhinestones swirling in a tango do nothing for us. Frankly, the only parts of American Idol we watch are the early episodes where the truly terrible acts get airtime.
We agree with our in-house lawyer friend that it is almost impossible to stomach reality shows such as Big Brother. (By the way, episode 4 of this season’s Louie has a marvelous parody of Big Brother, with its warped characters and wildly inappropriate interactions.) A few years ago we wondered whether we might learn something about interpersonal dynamics by observing how the contestants on Survivor maneuver foes off the island, or how teamwork works, or does not work, on Hell’s Kitchen. But there is not much reality in reality-tv. Adam Carolla was on Celebrity Apprentice and later revealed, after he was unjustly ‘fired,’ how the show is edited in a way to present events in ways that have only an accidental correlation to what actually happened. Further, those shows suffer from the Heisenberg Principle — people (understandably) act differently when they know they are exposing their foibles to millions of viewers. Sometimes it seems as if the only thing we learn from television shows is that people are becoming increasingly coarse and egotistical.
Some lawyers think it is smart to ask jurors what television shows they watch. Maybe a fan of House will be more apt to accept more complicated explanations of medical causation. Medical students are taught that when they hear hoofbeats they should think of horses not zebras. In House, think okapis. Or maybe MSNBC viewers are prone to presume corporate malfeasance when things go wrong. But the best jury consultant we know thinks that television preferences are an awfully indirect, unreliable way to gauge attitudes that matter, and she thinks those questions are largely a waste of time. If the issue is whether prospective jurors think pharmaceutical companies put dollars over lives, there are more direct and useful ways of profiling jurors.
So we are back to the frame of reference point. It is simply better to be in on the national conversation. A couple of years ago we read The DaVinci Code just so that we had something to say when, invariably, beach conversation focused on that (rather dumb) book. Litigators need to inhabit their culture. Plus, it is a stressful job. Trials are hard. Television is easy. Whether via DVD sets or Netflix streaming, people today are practicing binge-viewership. They learn of a TV show they missed, plop down some evening or weekend, and watch multiple episodes. For some of us, for some shows, binging makes for a better viewing experience. We missed Arrested Development the first time around, but caught up with it in two weeks of sustained Netflix viewing. Bill Simmons, the Sports Guy on ESPN, binged on Game of Thrones and wrote a column about it. We envy anyone who has not yet seen The Wire, because they have an opportunity that no longer exists for us: seeing that magnificent work of art for the first time. We cannot say that any of this will make someone a better or more effective lawyer. But we’re pretty sure it will make them happier.