There are countless TV shows and movies that center on the law — Law & Order, Suits, My Cousin Vinny, and A Few Good Men, to name a few. The law is full of compelling stories and built-in conflict, which makes it relatively easy to turn into film. For a lot of us, TV and movies are windows into the world of lawyers and courtrooms. Some of it is real. Most of it is plain wrong — not “slightly exaggerated for drama” wrong, but structurally, procedurally, this-would-get-a-mistrial wrong. So this week, I want to break down three tropes from popular legal dramas that are just plain wrong.
1. The Witness Stand Meltdown — A Few Good Men
I’m a huge Aaron Sorkin fan. Few writers in Hollywood do it like he does, and his films often center on the courtroom or, at the very least, legal procedure. His best-known legal drama, without question, is A Few Good Men.
If you haven’t seen the film — it came out in 1992, spoilers ahead — it centers on an inexperienced Navy JAG lawyer, played by Tom Cruise, tasked with defending two Marines accused of killing a third in a punishment known as a “code red.”
The climax is the trial. Cruise’s character mounts a defense against Kevin Bacon’s prosecution. The critical moment comes when Jack Nicholson’s character takes the stand, and we already know his testimony will make or break the case for Cruise’s clients. It’s at the end of that cross-examination where we get to the trope at issue.
The trope: After some serious badgering, Cruise finally shouts, “I want the truth!” Nicholson launches into a lengthy soliloquy, admitting he ordered the code red — and, in doing so, clears Cruise’s clients of criminal culpability for murder.
The reality: This never happens. For starters, before Nicholson’s soliloquy, Cruise’s character is warned by the judge and ultimately held in contempt. In a real trial, if a judge holds an attorney in contempt (disobeying a judge’s order or showing disrespect in court), the examination pauses — at the very least — to deal with the contempt issue. That’s a whole post in itself.
Beyond that, Cruise asks, “Colonel Jessup, did you order the code red?” The judge interjects: “You don’t have to answer that.” Nicholson’s Jessup responds anyway: “I’ll answer the question.” In the simplest terms, if a judge instructs a witness not to answer, the question doesn’t get answered. Period.
More broadly, real cross-examinations are slower and far more focused on locking a witness into small, specific facts. Rarely, if ever, can you badger a witness into agreeing with your entire case.
Witnesses are entitled to their own lawyers, who protect their legal rights. If a witness is unrepresented, the judge and opposing counsel are also there to protect the witness’s rights and privileges. In practice, that makes it extremely unlikely a witness unravels on the stand in front of a jury. Someone objects, requests a recess, or moves to sidebar long before you get a cinematic moment like the one in A Few Good Men.
Unrealistic or not, it’s still a great scene in a great film. Haven’t seen it, or haven’t seen it in a while? Watch it here:
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One more thing that doesn’t get mentioned enough: even if someone did confess like that on the stand, it doesn’t just end the trial. A confession, like any other testimony, is just another piece of evidence for the jury to weigh. Real trials don’t have a “mic drop” moment the way the movies want you to believe.
2. Cops Hate This One Trick: No Miranda Rights, No Case.
I’m a sucker for a good police procedural. Network TV has been saturated with the next big cop show for decades — from Law & Order to Criminal Minds — and they always do numbers in the ratings. Watch enough of them and you’ll notice there’s a clear formula.
If you’ve seen one of these shows, you know the scene where the cop reads a suspect their “Miranda rights.” Miranda rights are real, and they come from the landmark Supreme Court case Miranda v. Arizona, 384 U.S. 436 (1966).
I won’t bore you with a law-school-style case summary, but this is the case where the Supreme Court told every law enforcement officer in the country that before questioning a criminal defendant, they must advise that person of their Fifth and Sixth Amendment rights.
Because of the inherently coercive nature of police interrogations, the Court held that a suspect must be told, clearly and before questioning begins: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as I’ve explained them to you?” From there, the suspect can waive or invoke those rights. (Not legal advice, but generally: don’t talk to the cops before they’ve read you your rights — or after, really.)
The trope: Every cop show ever. The hero cop chases the suspect into an alley, tackles him, and while slapping on the cuffs, angrily starts reciting, “You have the right to remain silent...”
The reality: Here’s what makes this trope so silly — Miranda warnings only have to be given before a custodial interrogation. That means the person is in custody (not free to leave) and being questioned. A cop can arrest you, cuff you, and put you in the back of the car — so long as there’s a warrant or probable cause — without ever mentioning your rights, as long as they’re not planning to ask you questions. Miranda isn’t a magic spell that has to be cast the moment cuffs go on. It’s a prerequisite for using anything you say afterward against you.
Here’s the more important point: if the officer never Mirandizes you, that doesn’t mean the case gets thrown out. It means your lawyer can file a motion to suppress any statement that was unlawfully obtained, and the court rules on that motion. Win it, and all that means is the prosecutor can’t use your statement in court — not that the case gets dismissed. TV and movies have convinced a huge swath of the population that “they didn’t read me my rights” is a get-out-of-jail-free card. It is not.
3. From Strangers to Billion-Dollar Client in Minutes.
I’ve never worked at a “big” firm as a lawyer, but I did during law school. By big firm, I mean one that spans multiple floors of a high-rise building, with 50+ lawyers and potentially 200+ staff. These firms are obviously good at what they do, but it’s hard to make the day-to-day interesting on screen. My dad did this type of work for nearly 40 years, so I’m by no means being critical — transactional law practice just doesn’t translate well to the screen.
My theory: a lot of that work is business-services related — corporate compliance, risk management, mergers and acquisitions. Important work, but it’s collaborative — advising clients on best practices in risk management, contract negotiation and review, proactively addressing legal issues, and trading marked-up drafts with a lawyer at some other big firm who’s trying to get the same deal done.
There’s only been one show, in my opinion, that’s made “big law life” interesting: USA’s Suits.
You know the show — hotshot New York lawyer Harvey Specter (played by Gabriel Macht) is the best closer in the city. Clients want him, colleagues envy him, opponents fear him. When you’re rich and need to win your case by any means necessary, Harvey is your man.
The trope: Several storylines involve Harvey signing a massively profitable new client after a five-minute meeting. Some rich guy struts into Pearson Hardman (or whatever the firm’s called that season), demands a meeting with Harvey, and hands him a six-figure check for a retainer. Stranger to client in a matter of minutes — full representation, effective immediately.
The reality: In the real world, the attorney-client relationship is a lot more complicated, and depending on the attorney’s area of practice, it takes more than a hefty bank account.
To start, unlike the show makes it seem, most attorneys have a focused area of practice. While a lawyer can technically give a client advice about any issue, most lawyers — me included — are careful about the types of cases they handle. Criminal defense lawyers rarely handle intellectual property cases; the personal injury lawyers I know aren’t handling divorces in their free time.
This is protection for both the lawyer and the client. Any experienced lawyer knows what he or she doesn’t know. It would be a violation of an attorney’s ethical obligations to a client to get involved in a legal matter the attorney doesn’t fully understand. Similarly, a client doesn’t want an attorney who doesn’t know what they’re doing. It would almost certainly cost more for an attorney to learn as they go than to hire one who’s well versed in the practice area.
Moreover, attorneys have ethical obligations to clear before taking on a client — the first being a conflict check, to make sure the attorney doesn’t have an impermissible conflict of interest in representing that person. (Conflicts of interest deserve their own post — stay tuned.) Simply put, a lawyer can’t represent two individuals or entities who have competing interests. Rob Schmittgens, a personal injury lawyer, can’t represent the individual suing for damages while also defending the person being sued. There’s a very real question of whose side you’re actually on.
After clearing a conflict check, a written engagement agreement is essential. Whether it’s an uncontested divorce or a multi-billion-dollar corporate merger, having a clear scope of representation is imperative. An engagement agreement spells out the fee structure, what the lawyer is promising to do (and sometimes what they’re not going to do), and memorializes what a client can expect from the representation.
After the engagement agreement is finalized, payment of legal fees is its own ethical step. I work on contingency, meaning I don’t get paid until the case is resolved. But lawyers who bill by the hour or work on a flat fee still have to earn those fees before paying themselves.
In most instances, lawyers will receive a “retainer” from the client, which gets deposited in the firm’s trust account (a special bank account for client money), and the money must remain there until the fees are earned. Lawyers will then forward billing statements to a client at certain intervals. Handling client money within the ethical rules is essential, because mishandling client funds is the number one disciplinary issue attorneys face.
By design, hiring an attorney should be a careful collaboration between attorney and client. None of that happens over one meaningful stare-down across a sleek desk with a picturesque view. It’s paperwork. It’s research. It’s precise contracting. Necessary, unglamorous, un-cinematic paperwork.
None of this is legal advice — just me pulling back the curtain on what TV gets wrong. Got a real legal situation (not a courtroom drama)? Head to hurtinstl.com and let’s talk about it for real.
Cheers,
