When it comes to attorneys on TV, it’s all fake news

Commentary:

Television shows about lawyers are entertaining. “Law and Order,” in all its iterations, was a staple in my house forever. More recently, “Suits” has become an obsession. People of a certain generation will remember “L.A. Law,” and even before that, “Perry Mason.” All of these shows have memorable characters, smart dialogue, dramatic moments and ultimately, a resolution of the case before the end of the hour.

Although they provide great entertainment, television lawyers do not accurately depict real-life business litigation. On television, the client shows up at the attorney’s office in the morning with a problem, everyone is in court in the afternoon and by the end of the day (or at least the end of the show), there is a resolution, leaving plenty of time for drinks and dinner for all involved.

Oh, if it were only so in real life. Real-life commercial litigation does not lend itself to one-hour television. But clients are influenced by the television version of litigation, and that can have consequences in the real world. Clients who believe they can get justice in the courtroom – just like on television – may miss an opportunity to settle a dispute. The fact is that most business disputes ultimately settle because settlement brings closure and certainty.

In the real world, drafting the necessary documents to start a lawsuit, or answer a lawsuit, can’t happen quickly. It takes time to be accurate and persuasive. Exchanging the volumes of relevant documents in this age of electronic discovery is extremely expensive. The days are long gone when the client hands you the “file,” and after you review it to protect privileged materials, you send it to the adversary, who does the same with his client’s “file.” Now, computer experts need to copy your hard drive, process the various email boxes and perform an algorithm-assisted search based on keywords to locate potentially relevant documents and emails.

Once the document exchange is done, depositions – where each party and key witnesses are questioned under oath by the attorneys – can begin. While on television this can seem dramatic and exciting, it’s very different in the real world. First, television does not show the hours of necessary preparation to identify the topics to be discussed and the documents to be shown to the witness. Nor does television recognize that the deposition is the one chance before trial to ask the opposing side or key witnesses about everything relevant to the case. Failing to get a witness to commit to a recollection of the event leaves you unprepared to deal with the topic at trial. So, seven-hour depositions are the norm and do not make for compelling television.

If experts are involved, there may be further discovery and depositions. Then, invariably, there will be motions filed by both sides claiming that the other side has no case, and that one side or the other should be declared the victor. And then, if neither side wins at that time, a trial can be scheduled, which may be many months (or even years) later.

Unlike on television, where opening and closing statements are minutes long, and witness examinations are but a few questions (dramatic as they may be), the real world of trials is more of a marathon than a sprint, and the dramatic moments are few and far between. The one aspect of a television trial that is similar to the real world is the rendering of the verdict, which is as tense and anxious in the real world as in television world.

And then there is the inevitable appeal.

The reality is that most cases settle somewhere along this process. It may not be good television, but it is smart business.

The lesson: Do not be seduced by the drama and excitement of television litigation. Real-life litigation will eat up your valuable time and money. Explore all opportunities to make a deal, before litigation and throughout the case.

This article appeared in the May 3-9, 2019 issue of Long Island Business News. ©2019 Long Island Business News.