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Thursday, October 11, 2012

Law on TV

It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:

On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy--I don't think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.

This seems really far-fetched to me. Courts don't dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.

And, hey, anytime you can make drama out of discovery, you have to go there, right?

More questions, with SPOILERS, after the jump.

I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim's apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says "it's a good thing I'm not the police." That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn't?

Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are "pretermitted heirs" who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.

This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can't he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?


Posted by Howard Wasserman on October 11, 2012 at 01:12 PM in Culture, Howard Wasserman | Permalink


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The comment on the phrasing of RFAs intrigues me. My copies of the Federal and Texas rules refer to them as requests for admission(s). The term "admit" predominates within the text of the rules, but "admission" appears in the rules' title and in text as well. In several years of practice I've seldom heard them referred to at all (they're not the most popular discovery device out there), but I've not heard "admit" used more often than "admission," for what it is worth.

Posted by: Curmudgeonly Ex-Clerk | Oct 15, 2012 1:16:09 PM

Can't really speak to pretermitted heirs, but one of my favorite TV law gaffes was on the West Wing, when in an early episode (I think it was Season 2 or 3), there was a storyline about the president being "sued for contributory negligence", despite the fact that contributory negligence is a DEFENSE, not a cause of action. But as you said, I think "contributory negligence" sounds fancy, so that's why they went with it.

Posted by: John | Oct 15, 2012 11:57:00 AM

Howard - they have to be deemed admitted if you're going to get a dismissal/lose the case. As others (and you) have pointed out, no court will issue a dismissal sanction in CA state court for a one week late RFA response, especially where the RFA is not deemed admitted. But in federal court, I've seen the SJ motion - though you are right - it's not a week later - usually a month or so.

Posted by: Michael Risch | Oct 14, 2012 8:09:35 PM

Two questions: How can we say your Will was an expression of your intention when five years after you wrote it, you found your sole-mate, married her and fathered five kids? What if the Will was filed and forgotten? You want a system of "justice" that says, "Sorry widow, you and the kids get nothing."

Second question:"The general consensus in the office was that we would breach of duty to our client if we didn't oppose it." This is not the actions of a professional sworn to do justice. You dirtbag lawyers have no right to call your selves, "professionals." "Hired guns," yes. It ain't a profession, if it ever was, it is an occupation. Nothing more.

Posted by: Bubba Bob | Oct 14, 2012 11:18:00 AM

Michael: But they don't have to be deemed admitted. And in Federal Court, there certainly was no way they would jump from being one day late in the responses to jumping to a Motion to Dismiss/Default in the space of a week. I know, I know, it's TV (and network TV, at that). But they went for the lawyerly weeds (I hate the word "technical"), but missed all of the nuance.

Posted by: Howard Wasserman | Oct 14, 2012 10:26:13 AM

Howard: I don't mind the mangling of the law so much (except the one time that Suits just absolutely destroyed patent law, but that's a personal one for me). I agree with DD about CA law - in CA, RFAs are not deemed admitted. Indeed, if you answer before the motion date (or better yet, before you even oppose the motion or better still during the required "meet & confer" before the motion is filed), then all you are really arguing about is the sanctions. But if she were in Federal Court, they would be deemed admitted, and that's the killer.

Posted by: Michael Risch | Oct 14, 2012 8:51:07 AM

Michael: That's why I never watch legal/lawyer shows. We've watched Parenthood since it's been on. This is the first time they've ever tried to give us anything meaningful about law. Before this, we only saw this character at work trying to convince the pregnant coffee-cart girl to let her adopt her baby.

Posted by: Howard Wasserman | Oct 13, 2012 10:37:23 PM

In California a late RFA response is not going to get the case kicked. The judge is going to look at the totality of the case and make a call if the RFA's contain any case-ending elements. Absent that, he's going to consider any possibly valid excuse for the late submission and bend over backwards to allow it. He may apply some modest sanction or judicial time-out, but in 35 years I've never seen a dispositive decision based upon a no-harm error.

Posted by: Discovery Dick | Oct 13, 2012 2:30:53 PM

By the way, if you want to cringe at mangling of law on TV, one need only watch an episode of The Good Wife - love the show, but the suspension of (legal) disbelief is full bore for that show.

Posted by: Michael Risch | Oct 13, 2012 11:21:24 AM

In Illinois, the request to admit scenario is quite likely. The appellate courts here strictly enforce the request to admit deadline and require you to show good cause (something beyond I forgot or I screwed up) before they will excuse a late response.

Although this would not result in a dismissal of the case. Instead, it would likely result in the other side winning a motion for summary judgment.

Posted by: Bryan | Oct 13, 2012 9:42:16 AM

As to the pretermitted heirs: depending on state law, it's possible that any child not specifically disinherited (or given $1) by the will gets an intestate share of the estate. So the idea is, by trying to dodge responsibility for the out-of-wedlock kids, the testator fails successfully to cut them out of the will and they are considered pretermitted whether or not the will was drafted before they were born.

Posted by: Paul M | Oct 12, 2012 9:41:21 PM

The idea that opposing counsel would (retroactively) excuse a case-dispositive failure to respond to a RFA is crazy. I actually think it would be sanctionable. I mean, even if there is only a 1% chance that the judge doesn't excuse it, that's still a 1% chance that you're just throwing away.

Here's an intellectual exercise: Game out the conversation with the client.

Lawyer: OK, the other side failed to respond to our RFA, so as of now, they're deemed to have admitted that they lose.

Client: Great, so I win?

Lawyer: Well, actually, the other counsel has asked that we excuse his failure because it was a hectic time in his life with the new twins.

Client: You said no, right?

Lawyer: No, that wouldn't be professional or courteous of me. Plus, he'll probably win if he asks the court to excuse the missed deadline.

Client: Probably isn't the same as definitely. What do I lose if I oppose his efforts to undo my apparent victory?

Lawyer: Well, the court might think that I'm being a jerk, and that could have far ranging effects on this case down the road.

Client: You mean the judge might get mad that I've won, and now I'm opposing the efforts to undo that win? I can live with that risk. Oppose.

By the way, something very similar happened to me several years ago. An opposing party failed to timely seek a writ of cert (because the state supreme court rules required everything to be hand filed, and not served by mail) and realized it two days later. There wasn't even any question that we would oppose a motion for leave to file an untimely writ. The general consensus in the office was that we would breach of duty to our client if we didn't oppose it.

Posted by: Joe (not that one) | Oct 12, 2012 1:14:27 PM

In my experience, there's no quicker way to get a judge to hate you than to come before the court bickering about missed discovery deadlines. Unless there were a pattern of missed deadlines that indicated that opposing counsel was either intentionally withholding evidence or incredibly incompetent to the point of failing to litigate the case, I can't imagine many lawyers risking their credibility before a court by asking for a dismissal based solely on one or two deadline issues.

Posted by: Tracy | Oct 12, 2012 12:46:57 PM

My U.S. senator manages with two young kids somehow.

How about Made in New Jersey? Lol.

Posted by: Joe | Oct 12, 2012 10:14:55 AM

Where's my like button for Orly's comment? By the way, they have docketing programs and assistants and a 30 day response time for high priced lawyers to make sure that you don't miss RFA deadlines, even if you have 2 kids.

Posted by: Michael Risch | Oct 11, 2012 5:58:38 PM

In Florida a child who is born after the execution of a will is considered a pretermitted child with a potential claim to an intestate share; same goes for a spouse where the marraige occurs after the will is executed.

Posted by: Jim Green | Oct 11, 2012 4:18:17 PM

I happened to watch the Parenthood episode. I was quite upset that the only working mother in the show is portrayed as not being able to handle it once she has more than one kid [and a stay at home dad!]. A show about families in Berkeley in the 21st centuries could do better.

Posted by: orly lobel | Oct 11, 2012 2:24:55 PM

"Courts don't dismiss cases for a single inadvertent discovery mistake"

Ummm, yes they do - I've seen it happen and defended the malpractice case. It's ugly, though admittedly rare.

Posted by: Michael Risch | Oct 11, 2012 1:47:52 PM

I can only comment on the Parenthood front, since I haven't watched Elementary.

While you're almost certainly right that the mistake would not have singlehandedly lost the case for them (since the judge probably would have adjusted the discovery order to allow late submission), I'm not so sure that opposing counsel would be willing to forgive the mistake. Given the need to zealously represent one's own client, I suspect opposing counsel would have had to consult with their own client before agreeing to the delay, since it did have a potentially important impact on the outcome of the case (depending on how the admissions were framed). Now, depending on what had been going on in the case, in house counsel might have quickly said, "yeah, sure, it will give us leverage if we screw up later", but if the parties really hated each other or if there were something really damning in the admissions, maybe they wouldn't have. All of which is a long-winded way of saying that I wasn't surprised that opposing counsel refused Julia's request.

Posted by: Charles Paul Hoffman | Oct 11, 2012 1:41:34 PM

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