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.

(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.

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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.

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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."

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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.