Fictional lawyers never let you know what they’re thinking until it’s too late, and they’ve tricked you.
I first learned this while binge-watching Perry Mason, an unlikely bit of research for a writer who always changed the channel when the scary music cued those 1950s suits during the after-school reruns. (I was busy seeking out new life and new civilizations.) Fortunately, the lawyers are always there waiting for you to dial them up when you need one.
The lawyer has his back to us when we first see him in the opening titles. He is standing at the bench, proffering some document to the judge, an officious old white man in black robes. The judge wears a look of permanent skepticism, even more so as he scrutinizes the paper the defense wants admitted into evidence. But then the judge nods, allowing the defense to proceed, and hands the exhibit back. Raymond Burr turns to face the camera, his blocky head still looking down at the document. When he finally looks up, he flashes an unmistakably demonic grin. We know what he has just done: tricked the judge, and tricked the whole system, to get his client off. Demonstrating in one televisual nugget the secret truth of how lawyer stories work. They are not really about justice for the wrongfully accused. They are about getting away with it.
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I read a lot of lawyer stories in the past two years, including a few of the eighty-six (!) Perry Mason novels Erle Stanley Gardner cranked out from his backyard hut. It was a genre I had never paid much attention to, until the characters in my last novel Tropic of Kansas needed a lawyer, and I got to wondering: who are the defense lawyers in dystopia? That idea became its own book, Rule of Capture. To write that book, in addition to reading memoirs of the lawyers in true dystopias, from the abogados who fought the dictatorships of 1970s South America to the pro bono defenders of the Guantánamo detainees, I took a deep dive into the case files of imaginary American lawyers, from contemporary bestsellers to the twentieth century classics and the earliest nineteenth century exemplars. I learned that the rules of courtroom dramas violate the usual rules of storytelling. And that understanding the secret codes that drive our legal fictions can help repurpose a well-worn genre toward more authentically emancipatory ends—and maybe even remedy the sense that justice and the rule of law are slipping away from us in real life.
Objection! The conventions of courtroom dramas are clichéd, but they encapsulate the narrative tropes that make such stories different. Procedure is plot, providing a rigid narrative structure that follows the case from the initial accusation through investigation of the evidence, hearing of testimony, verdict, and punishment. Role—defense lawyer, prosecutor, judge, defendant, witness—defines character. Interiority, the alienated heart of most modern literature, is avoided—if the lawyer reveals her strategy to you, it will blow the surprise. And almost all the action of the story is conveyed through dialogue, primarily the formalized dialogue of witnesses on the stand—a series of unreliable narrators telling the story of the story at a layer of temporal and sensory remove from the actual events, under interrogation from questioners who have their own spin. So much for “show, don’t tell.”
These formalistic constraints can be formulaic, as we have all experienced in innumerable mass market legal thrillers and televisual courtroom dramas. They can also be liberatingly minimalist, a framing that’s ready-made for the theatrical stage, entirely comprised of structured dialogue in a room where every character has an assigned seat. Some of the greatest lawyer stories exploit these constraints to maximum effect, as with Peter Weiss’s The Investigation, which used transcripts from the Frankfurt Auschwitz trials as material for a stripped-down examination of true horror—using courtroom kabuki to let us look at those horrors from enough distance not to avert our eyes, and at the same time reveal the banality of evil Hannah Arendt witnessed at Nuremberg. Aaron Sorkin’s screenplay for The Social Network used little more than a series of depositions in law office conference rooms to tell the story of how Mark Zuckerberg and Facebook ate the world. The best legal thrillers, like George V. Higgins’s Kennedy for the Defense series, follow the lawyers out of the courtroom, showing us interviews with clients behind the candor-inducing cloak of attorney-client privilege, informal talks with cops and witnesses, after-work recaps with the lawyer’s spouse. But even then, they still tell the story of the case primarily through people talking about it, through the eyes and ears of the lawyer, rather than showing the crime happen. No wonder most legal thrillers rely on the easy device of putting the lawyer at personal risk to introduce a more urgent sense of action and danger.
The real charge that fuels these narratives is of course character: the loaded archetype of the American lawyer.The real charge that fuels these narratives is of course character: the loaded archetype of the American lawyer. An archetype with two ethical dipoles, from the hallowed champion of the underdog who is the only voice willing to speak truth to power, like Atticus Finch in Harper Lee’s To Kill a Mockingbird, to the untrustworthy liar of stories like Vince Gilligan’s Better Call Saul, more interested in what’s in it for them than what’s in the client’s interests. The best examples evidence the moral ambiguity that comes with having both qualities, like the alcoholic personal injury lawyer Frank Galvin in Barry Reed’s novel The Verdict, and David Mamet’s screenplay. “Lawyers become somewhat cynical,” Perry Mason tells a new client in The Case of the Glamorous Ghost, and part of that cynicism comes from learning how malleable “the truth” can be—a mastery that powers the “zealous advocate,” and the source of the truism in fiction and real life that all lawyers are liars.
The biggest difference between real lawyers and fictional ones—at least on the surface—is in the clients. Perry Mason’s clients are always innocent, and the story is about the tricks the lawyer has to pull to prove it. That premise drives most fictional courtroom dramas, delivering justice when the jury frees the defendant. Real criminal lawyers know their clients are usually guilty, and the lawyer’s job is to get the best outcome they can under the circumstances, playing their part in a machine that delivers a more muddled justice. Some of the smarter legal thrillers engage with that reality, like Michael Connelly’s The Lincoln Lawyer, who enthusiastically accepts the opportunity to represent a Beverly Hills rich kid accused of assault, only to realize he and his people are more dangerous than any of the low-life felons the lawyer normally represents. In John Grisham’s The Partner, the lawyer himself is presented as the criminal, one who has stolen from his own clients and partners—and in The Firm, the entire law firm is revealed as a criminal enterprise.
The deeper you dig into the roots of the American lawyer story, the more you realize the stories are closer to the real-life truth than some of their modern permutations would have you believe. Before World War Two, many lawyer stories were not about criminal justice, but business—about the lawyer as ultimate capitalist trickster, enabler of the Balzacian revelation that behind every great fortune is a crime. In the 19th century stories of Melville Davisson Post, a West Virginia lawyer who pioneered the genre, the lawyers are the masterminds who help the client commit the sinful deed without breaking the law, or at least getting caught. In Post’s most famous story, “Corpus Delicti,” lawyer Randolph Mason helps his client exploit legal technicalities to commit a murder for which he cannot be convicted—an outcome the story suggests is good, in part because it saves the client from having to give his money to blackmailers.
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Maybe it’s my bias as a cynical lawyer myself, but I think these older stories reveal an unexpected truth: we love lawyer stories not because they validate our dream of justice for the wrongfully accused, but because they codify the all-American dream of doing bad things and getting away with it. That’s what most real lawyers do, whether criminal or civil—help their clients push the boundaries of the self-interested things they can do to obtain money or power without violating the letter of the law. The ethics rules allow lawyers to also persuade clients of the spirit of the law, but the clients, and the economics of lawyer compensation, drive a system where the main role of the lawyer is to just tell the client how they can do whatever they want. No wonder the parade of ethically underwhelming power lawyers we see in our daily news feeds, getting rich off constitutional crisis and clearing the path for greed and misbehavior—lawyers who tape record their own clients, hire ex-spies to silence the victims of their client’s sexual assault, cover up the crimes of the rich and powerful behind confidentiality agreements.
Courtroom dramas focus almost exclusively on whether the crime was committed—not whether the conduct in question should be deemed criminal, or whether the legal system administers the fairness it professes. They take the system for granted.The real source of this failing lies with another paradox of lawyer stories: that they are never really about the law, just about the facts. Courtroom dramas focus almost exclusively on whether the crime was committed—not whether the conduct in question should be deemed criminal, or whether the legal system administers the fairness it professes. They take the system for granted. This failure to interrogate whether the law is just is a lost opportunity to do one of the things lawyer stories can do that other crime stories cannot.
Earlier American stories not typically grouped with courtroom dramas show this potential. Works like Nathaniel Hawthorne’s The Scarlet Letter dig deeper, using fiction to show the laws themselves as unjust, even where the client is technically guilty. Arthur Miller’s play The Crucible used the Salem witch trials to show the irrationality and power politics embedded in the law—not just of Puritan New England, but also the anti-communist witch hunts of the 1950s in which he was writing. Works like Weiss’s Investigation and Abby Mann’s Judgment at Nuremberg use the war crimes courtroom to show one modern extreme—a legal system that sanctions genocide.
In my new novel Rule of Capture I borrowed from the tropes of dystopian fiction to try something similar in a legal thriller, telling the story of a lawyer fighting to extract justice from an American system in which emergency powers are being used to suspend due process and suppress dissent. It wasn’t a stretch—all the Kafkaesque laws I “invented” were researched from real-world precedents at the law library, from domestic invocations of martial law and secret tribunals to land titles founded on theft. Others will judge whether my experiment was a success, but the undertaking convinced me that by hacking the code of lawyer stories, we can help see our way to a more just system in real life—and tell more compelling stories in the process.
