In our ‘Oh, Really?’ feature, the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fanciful, fun, and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.
How To Get Away With Murder, the prime-time ratings smash by executive producer Shondra Rhimes, has hit its fourth huge season — all while giving many lawyers plenty of reasons, little and big, to scratch their heads in wonder. Fair warning this post contains spoilers for the current season, so proceed at your own risk! The possible reward? Maybe a little insight into how many ways this popular drama wreaks its own fictional mayhem on the actual practice of the law and the realities of legal education? It also happens to provide a surprising and real cry for social justice.
Viola Davis, an Emmy- and Oscar-winning actress, portrays Annalise Keating, the series’ protagonist. She’s an astute but emotionally injured attorney. Besides running a premier criminal defense practice, Keating also teaches CrimLaw at a high-powered school, with her nickname for the course giving rise to the show’s epoynmous handle.
The first few seasons tracked five of Keating’s students’ law school journey, and their navigation of interships at her firm. The Keating Five, now down to four, also all struggle to get on with the lives after the death of another student: the charming but outcast Wesley “Wes” Jennings, a clear Keating favorite and protege.
2Ls in perpetuity?
So here’s where the plot improbabilities begin to burgeon. Although the show has run for four seasons, why are Keating Four still chugging through their second year of law school? If they’re so all with it, why can’t they get out of their 2L beanies and knickers? This is a common television affliction, in which the characters never age. But it creates troubles for common sense viewers attempting to follow supposed, real-life situations and a purportedly realistic law school experience.
Will the Keating Four take another two seasons or more to dawdle as 3Ls? Hey, they might take a decade to pass the Bar! Before then, some law student group would have to file a habeas corpus action, because it surely would be cruel and unnatural punishment to run around in circles, paralyzed as a 2L, taking the same classes, and forever repeating ConLaw, Evidence, and Business Associations.
Of course, the Keating Four also lead lives filled with excitement and drama. That alone would be an astronomic leap for too many 2Ls or 3Ls, too often lost in worlds of sometimes quiet desperation, grappling with endless hours of study, slammed with work, and buried in the library study or at home cramming, or just hoping for some desperately needed sleep.
It’s true that law school life picks up for many 2Ls with Moot Court, Appellate Advocation and Negotiation competition teams, Honor Journals, and student clubs. Not to mention interships. But when would most students have time for homicide, courtroom exploits, and personal and professional drama in the extreme? Between runs to Starbucks?
In a recent episode, It’s For The Greater Good, Keating Four stalwart Connor Walsh drops out of law school, seemingly questioning the very meaning of life. His existential crisis, of course, is easier for him to cope with: While most law students bang on vending machines in the school basement to get back precious dimes and quarters spent on stale snacks, he gets a refund check for a couple thousand dollars from his institution when he takes his time out. Yeah, right. He promptly spends that lucre on drinks and hoochie dancers. His friends, of course, attempt an intervention—gosh who knows how they could spend the time or think well enough of him to do so? It all ends with his dad arriving and lecturing him like a child. Because that’s just what a disillusioned, 20-something law student needs to get his life together. Oh, really?
Now the idea of dropping out of law school is painful to contemplate, especially to a 2L who is more than half way done. But some students, before they burden themselves with debt and a career they don’t want, may wish to quit for the sake of their mental, emotional, and financial health. Law students are pretty clever. Most figure out pretty fast that: law school isn’t all rainbows and butterflies; not every case ends up with justice for all; and legal careers are full of ups, downs, and challenges. Maybe Connor Bro, though he is working in a strip club, doesn’t need an intervention but some clear, compassionate counseling on what better way he might spend his life, outside the law?
For those inside the legal system, this same episode, It’s For The Greater Good, offers some intriguing insights as it also follows Keating, as she pursues a case turning on public defenders’ inability to execute their jobs.
The truths dished here, of course, don’t come before some hairy confrontations and cross-examinations, a TMI urine test for Keating, and a deux ex machina that would make a Greek tragedian wince. It turns on a brown envelope containing important evidence left on her stoop, and the comeuppance at trial of a competitor of sorts who also happens to be the chief public defender.
Still, the show does dig into the nonfiction of how actual public defenders truly get the short end of the stick, with countless hurdles to jump over, as they seek to provide proper representation for countless clients in grim need. This is an accurate critique one of the American criminal justice system’s not so dirty secrets, and, oh, really, it becomes one of the show’s most riveting and moving aspects.
In the American Bar Association’s Model Rules of Professional Conduct, the Criminal Justice Standards for the Defense Function offer the bracing Standard 4-1.3 Continuing Duties of Defense Counsel, which tells practitioners:
Some duties of defense counsel run throughout the period of representation, and even beyond. Defense counsel should consider the impact of these duties at all stages of a criminal representation and on all decisions and actions that arise in the course of performing the defense function. These duties include: (a) a duty of confidentiality… (b) a duty of loyalty toward the client; (c) a duty of candor toward the court and others…; (d) a duty to communicate and keep the client informed and advised of significant developments and potential options and outcomes; (e) a duty to be well-informed regarding the legal options and developments that can affect a client’s interests during a criminal representation; (f) a duty to continually evaluate the impact that each decision or action may have at later stages, including trial, sentencing, and post-conviction review; (g) a duty to be open to possible negotiated dispositions of the matter, including the possible benefits and disadvantages of cooperating with the prosecution; (h) a duty to consider the collateral consequences of decisions and actions, including but not limited to the collateral consequences of conviction.
That’s not only a lofty credo but also a high bar to clear practically, particularly for so many public defenders, assigned hundreds of legally indigent clients all at once. These defendants often come with daunting circumstance and the penalties they face are severe. Their state-supported lawyers, meantime, must race to represent their sizable client loads in dozens of court appearances and sentencings a week. Can any human keep up, get any sleep, live any kind of life and keep a clear conscience about their professional duties? What lawyer can prepare properly and still avoid for long the simple but costly mistakes that can harm those that need legal help the most? It’s a big woe that’s gaining more attention from the media and the legal establishment (click here and here and here to see more).
Get away with Murder? Sure, the show has its moments when it fails to ring true. But Rhimes and the production’s writers cast also deserve credit, in this instance, in focusing mass audiences on the problems of systematic injustice and inequality for the poor, and in many cases minorities, who struggle to get their constitutionally required due representation. That sadly real legal inequity’s a bigger crime than any fictional TV homicide, and it’s good to see it get a big airing on tens of millions of little screens.