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Monday, April 06, 2009

Media depictions of lawyers and the civil justice system: Not good

For those of you looking for television breaks, may I recommend the new season of In Treatment on HBO (initial airing Sunday from 9-10 and Mondays from 9-11, with lots of reairings throughout the week). A running plot line this season will be a malpractice lawsuit brought against the central character (a therapist) by the estate of one of his client's from last season, a Navy aviator who killed himself upon return to duty, the therapist having signed off that the patient was fit and ready to return. The lawsuit was the main focus of the first half-hour episode (titled "Mia: Week One").

And how were law, lawyers, and the legal process depicted? Not well. Let us count the ways:

1) The lawsuit was served by the deceased patient's father (presumably the executor of the estate) by knocking on his door in the middle of the night, berating him, then stuffing an envelope in his chest and announcing "I told them I wanted to serve the summons personally." Um, no.

2) At his first meeting with his lawyer (presumably not more than a few days or a week after being served with the lawsuit), we learn:

a) There is a "hearing" in 8 weeks, at which the Judge will decide whether the case will go to trial; of course, there is no mention of how or why this hearing will take place, who requested it, or what the hearing will be about. Can the defendant at least Answer the complaint first?

b) The attorney thinks the case is meritless and wrong as a matter of law. But it all depends less on the law and more on the judge. A hometown judge might feel sympathy for the patient's young children and give the plaintiffs their "day in court." Oh, and the defense will "find" an expert to testify that he met the standard of care, while the plaintiffs will "pay" someone to say he didn't. Judges and the courts are far more plaintiff-friendly on TV (at least when the show's star is the defendant) than case statistics suggest. Except, of course, for the "completely incompetent" brain surgeon who operated on the wrong side of a patient's brain, but prevailed when represented by this lawyer. In any event, Legal Realism is never so alive as on television.

c) The lawyer says the plaintiff's lawyers are right now "deposing" everyone the patient ever knew. No mention of why she (as the defense lawyer) was not at those depositions so she could, you know, ask those witnesses some questions.

d) The therapist seems genuinely surprised to learn that he should have been taking notes and keeping records about his treatment of this patient. My wife (a mental-health professional) says that a competent therapist unquestionably would take notes and keep records of treatment--if for no other reason than to be able to bill the insurance company. From a legal standpoint, representing a client who has not taken notes does not provide an easy case to litigate. On one hand, there is nothing damaging to turn over in discovery; on the other, it is not going to be easy to show that your client met the standard of care when you have no proof of what, exactly, that care entailed (statements for purpose of medical diagnosis are admissible as a hearsay exception).

e) The lawyer, we quickly find out, is a former patient of the therapist/client, having seen him twenty years before when she was a struggling law student. She "grabbed" the case when it came into the office. Her therapy had ended suddenly when the therapist relocated without telling her and she remains unhappy about that fact. As a matter of medical ethics (Jennifer tells me), a therapist should under no circumstances have a former client represent him. As a matter of legal ethics, a lawyer should not represent her former therapist--especially if she is still angry at the therapist for abandoning her treatment (and her).

f) The lawyer interrupts their conference twice to talk to her father on the telephone, once about the color of an outfit she bought for him.

g) The lawyer confesses that although she seems to have a successful career because she works in a tall building, in fact she hates the windows that don't open and the jackhammers that never stop. And when she wins a case (and she specializes in hopeless med mal cases, such as the brain surgeon), she gets drunk with her gay secretary, then stumbles home to her one-bedroom condo and prays that she can fall asleep. Needless to say: a) That is not something one should be sharing with a client, especially in a first conference and b) She is not doing any of her clients any good if she is that miserable with her personal life and not doing something about it.

3) The therapist seems lost and angry about the lawsuit and the legal process, such as the suggestion that he should have been keeping treatment notes and records. It is true, of course, that we know more of the law than your non-lawyer client and we are expected to explain the process and shepherd them through. But most professionals (such as therapists) who become involved in lawsuits are quite attuned and knowledgeable about the law and what they ought to do to help themselves within the legal process. That does not mean we are not obligated to provide counsel and guidance; it means only that our clients are probably sharp and can be more helpful to us (and to themselves) than this show suggests.

4) Perhaps more troubling is the utter contempt the therapist repeatedly expresses for the legal system. Obviously, he is angry about being sued and believes he is being wrongly accused. But the disrespect for the process is troubling; after all (we tell out students), the reason to have procedural rules is that everyone accepts the outcome as just, even if adverse. And hey, our guy has been a practicing therapist for 25+ years--he never once had to sue (or even threaten to sue) a client for non-payment? I bet he liked the legal system just fine then.

Jennifer and I watched the show last year, even though (or perhaps because) the show mostly did a poor job of showing how therapy should work or how a therapist should act. Of course, media depiction of lawyers and the legal system long has been a pet peeve of mine. The writers of In Treatment have decided to kill two birds with one stone this season--they are going to drive us both up a wall simultaneously.

Posted by Howard Wasserman on April 6, 2009 at 07:08 AM in Howard Wasserman, Television | Permalink

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Comments

On the medical drama front, there was an article in the Sunday NYT Week in Review about how medical organizations have created an informal lobby to get together with writers from ER, etc, specifically to have those shows portray the medical profession more accurately. The concern articulated with poor representations of reality in the media was that it wrongly influenced the public to think the miraculous was the mundane.
See: http://www.nytimes.com/2009/04/05/weekinreview/05belluck.html?scp=5&sq=ER&st=cse

Maybe lawyers should have a similar lobby to ensure that service gets performed appropriately to avoid the same catastrophic intuitions :-)

Posted by: Dan Markel | Apr 7, 2009 8:45:32 AM

Not to mention the "whoosh" when the ship passes by during the intro. Bruce is absolutely right that it is all about having special knowledge about something and the frustration that comes with that. My late father-in-law, an oncologist, could not stand medical dramas.

Posted by: Howard Wasserman | Apr 6, 2009 11:51:25 PM

Chill.out, your name is sort of ironic.

Howard, I think there's a special burden that comes with being knowledgeable about something and watching a film about that thing. The filmmakers not only don't usually take the time to get technical details right, they often *can't* get it right, at the risk of boring everyone else.

So, I'm sure there are physicists out there who can't stand to watch Star Trek (why are the stars streaking? Where's the gravity coming from? For Pete's sake, there's no machinery at the opposite end of the transport!) Thankfully, I'm not one of them.

Posted by: Bruce Boyden | Apr 6, 2009 11:41:11 PM

I did not say that the individual error of misrepresenting the service rule (or any other individual point) was the equivalent of promoting racial stereotypes. My point was that the overall presentation (the sum of these and other mistakes) of both the legal system and therapy/mental health care were very negative and inaccurate and in a way that, I believe, is problematic for the public perception and understanding of both those institutions. And that erroneous public perception is troubling, IMHO; the fact that these (mis)perceptions are common does not make them any less problematic.

Posted by: Howard Wasserman | Apr 6, 2009 5:00:58 PM

Prof. Wasserman:

I just want to highlight that you just stated online, for everyone to see forever, that getting the service of process rule wrong (see item 1), being unclear about when hearings are called for (item 2a), not understanding how depositions work (item 2c), misunderstanding note-taking habits of therapists (item 2d), etc. is equivalent to describing African-Americans to be _____ (insert your favorite racial stereotype here that you think I should "chill out" about).

as to the rest, 2b is a common understanding of how things really work, even if exaggerated. 2f is just silly. 2g is also pretty silly. 3 and 4 also simply reflect common sentiments. 2e is the only one that is arguably problematic/erroneous/harmful- even then it's pretty weak.

Now I just can't wait to see you list various racial stereotypes and pronounce them to be "silly" "merely exaggerated" "not a misrepresentation" just to complete this conversation.

looking forward to it,

chill.out


Posted by: Chill.out | Apr 6, 2009 3:43:40 PM

This is a pretty grim portrayal of the legal profession, but I'm not sure it's solely characteristic of the way the media represents lawyers and the law. My sense is that the media's portrayals of law and lawyers is polar. There are caricatures that make the profession look bad, but then there are those that glamorize it. The Practice (and LA Law and Ally McBeal before it) make law practice seem kinda cool (a misrepresentation of a very different kind). Then there is the hero-lawyer (Atticus Finch, JQA in Amistad, Tom Hanks and Denzel Washington in Philadelphia, ad inf.) who makes the profession and the practice look noble. The media's portrayal reflects the public's love/hate relationship with law and lawyers, and it's far better to be love-hated than ignored.

Speaking of being ignored, why isn't there a show about legal academia? That's the real problem!

Posted by: Dave | Apr 6, 2009 11:33:36 AM

I am not sure why "perpetuating harmful racial stereotypes" is, objectively, worse than "perpetuating harmful stereotypes" about mental health care or the legal system--both of which are too often misunderstood and stigmatized (especially mental health care), to the detriment of society. We can't have it both ways; if "entertainers should be able to entertain with whatever cultural materials are available to them," then anyone complaining about racial stereotypes should similarly "chill out."

Orin: I thought about that Hand quotation. And I agree that I am terrified at the prospect of being in a lawsuit. I guess it was the contempt (as opposed to anxiety) that got me.

Posted by: Howard Wasserman | Apr 6, 2009 10:01:41 AM

Howard writes:

"Perhaps more troubling is the utter contempt the therapist repeatedly expresses for the legal system. Obviously, he is angry about being sued and believes he is being wrongly accused. But the disrespect for the process is troubling; after all (we tell our students), the reason to have procedural rules is that everyone accepts the outcome as just, even if adverse. And hey, our guy has been a practicing therapist for 25+ years--he never once had to sue (or even threaten to sue) a client for non-payment? I bet he liked the legal system just fine then."

But see the famous opinion of Judge Learned Hand: "I must say that, as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death."

Posted by: Orin Kerr | Apr 6, 2009 9:15:26 AM

But in many cases, the truth about lawyers is even worse. The public has no idea how ignorant lawyers and judges (including SCOTUS) are of science, engineering and math, for example, having almost overwhelmingly received their training in the wishy-washy and touchy-feely subjects of English, History, Political Science, Government and International Affairs.

Posted by: jimbino | Apr 6, 2009 8:44:09 AM

Would you please chill out? It's not a law school exam. It is a TV show with its own logic and purpose and point. The world does not revolve around the legal profession, and entertainers should be able to entertain with whatever cultural materials are available to them without worrying about getting such insider details right. Obviously there are exceptions - perpetuating harmful racial stereotypes would be something to be concerned about, etc., but the things you list seem like harmless errors to at least this one law student.

Posted by: Chill.out | Apr 6, 2009 8:11:08 AM

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