Legalities and Practicalities: Recognizing the Difference in TV Dramas and Real Life
My lovely wife, despite being several years younger than I, has television viewing habits that one might normally associate with, shall we say, a slightly older demographic. Or, to put it another way, she likes Murder, She Wrote and Matlock.
I find this hilarious for a couple of reasons. First, my wife watches these shows all the time and I’m not even kidding. I think she’s seen every episode of Murder, She Wrote at least twice. She could probably close her eyes, listen to 30 seconds of dialogue, and tell you what color scarf Jessica is wearing in that scene.
Even funnier than my wife’s appreciation of these shows, however, is the content of the shows themselves. Have you ever watched an episode of Murder, She Wrote? It’s fantastic. In a typical episode, mystery writer Jessica Fletcher finds herself, coincidentally enough, in the same town, hotel, or cruise ship where a murder occurs. Ignoring the idiotic, bumbling local police detectives and district attorneys, she launches her own investigation and solves the murder herself, often by personally confronting the killer, who hangs his head and confesses dramatically. (If this were a true-to-life show, it would be one 40-minute episode called Murdered, She Got – crime novelist shot/stabbed/bludgeoned to death after foolishly confronting suspected murderer by herself.)
Matlock is another joy to watch, particularly for me as a lawyer. Criminal defense attorney Ben Matlock, like crime novelist Jessica Fletcher, often visits crime scenes by himself and discovers crucial murder clues previously overlooked by incompetent law enforcement officers. Then, he cross-examines witnesses so effectively that not only does he secure an acquittal for his client, he often convinces the real murderer to confess on the witness stand! As a criminal defense lawyer, Matlock is worth every penny of his $100,000 retainer.
During the courtroom scenes, I like to play a little game called How Many Objections Can You Make During This Scene? Matlock, while cross-examining witnesses, frequently (a) testifies instead of asking questions, often by stating facts that are not actually, you know, in evidence, (b) directly accuses witnesses of committing murder, which, you know, violates the Fifth Amendment, and (c) asks a witness a question, waits for an answer, and then, you know, acts as if the witness said something else! This may be my favorite thing he does; it goes something like this:
MATLOCK: Mr. Jones, on the night of the murder, you broke into the victim’s apartment, didn’t you?
WITNESS: No, I didn’t.
MATLOCK: And then, after you broke into the victim’s apartment, you hid in the victim’s bedroom closet, didn’t you?
STOP. The witness just said he did not break into the victim’s apartment! You acted like he said “yes” when he said “no!” Am I the only one who notices this?!? This is just amazing television. Whenever I watch Matlock, I find myself constantly muttering under my breath… “Objection. Objection; assumes facts not in evidence. Objection; come on, Ben, really?”
(By the way, you might be thinking that it would not be a barrel of laughs to watch these shows with me. My lovely wife has mentioned something similar on occasion. And I get that, I really do. But, I mean, come on.)
But here’s the thing about Murder, She Wrote and Matlock: they clearly illustrate the difference between legalities and practicalities. (How do you like that, I buried the lead.)
From a legal standpoint, sure, Jessica Fletcher may be impersonating a law enforcement officer, tampering with evidence, and generally obstructing justice, but from a practical standpoint, no one really objects! As best I can tell, there are two sheriffs in the quaint, sleepy little murder capital of the world where Ms. Fletcher lives, and both seem resigned to the fact that she’s going to commandeer their crime investigations. I think occasionally a detective might tell her to stay away from the crime scene or something, but she eventually wins him over by ignoring him and showing him that he’s an imbecile. The point is that while legally she may be a criminal, from a practical standpoint she’s just a concerned citizen making Cabot Cove safe until the next murder in a day or two.
It is the same story with Ben Matlock. Sure, he may be a brilliant criminal defense attorney who apparently never took Evidence in law school, and sure, sometimes he will literally tell everyone in the courtroom that he is about to violate the rules of evidence:
MATLOCK: Your Honor, may I speculate?
THE COURT: Counsel?
PROSECUTOR: I hate it when he does that.
THE COURT: Proceed.
(That is, to the best of my memory, a verbatim, word-for-word transcript of actual dialogue from an actual Matlock episode.)
From a legal standpoint, Matlock may be a human evidence objection in a light gray suit, but from a practical standpoint, no one objects properly! The prosecutors also never took evidence in law school, or perhaps they are heavily medicated, but generally they don’t even object to Matlock’s shenanigans, or when they do, Matlock just plows ahead as if there had been no objection or ruling. You can speculate all you want if the prosecutor doesn’t object or says “relevancy” or something equally nonsensical.
The real world is exactly like Murder, She Wrote and Matlock, except totally different. Every legal issue will always include practical considerations.
Let’s say you’re a landlord and your tenant paints a giant Hello Kitty on her bedroom wall, then moves out without repainting it. Legally, you are entitled to paint over the Hello Kitty and deduct the cost of the painting from your tenant’s security deposit. But now your tenant sues you for three times the entire amount of the deposit, plus $100.00, plus attorney’s fees, plus court costs. Legally, you’re in the right, and legally, you will win if you go to trial. But from a practical standpoint, do you really want to spend $5,000 or more to save $200? In this case, my legal advice might be practical: pay your tenant and move on.
Or let’s say you’re making an offer to buy a house. In the standard form TREC contract, there’s a provision that allows the seller to sue you for specific performance – that is, to force you to buy the house – if you default on the contract. Your attorney advises you to strike that provision because really, the seller’s remedy on default should be to keep the earnest money and sell the house to someone else. But then the seller’s realtor rejects your offer, and in an email dripping with indignation and condescension, says that “in my 426 years as a realtor, I have never, ever seen that provision struck out,” and then she demands you “submit a clean offer if you want to buy this house.”
Legally, you’re entitled to strike that provision, and legally, it’s a terrible provision for a buyer and shifts a significant burden of risk to you. But practically speaking, how badly do you want the house? How flexible is the seller, and how eager to sell? Is that specific performance clause the only item standing between you and the closing of the purchase? In this case, practical considerations may win out, and instead of telling the realtor lady to go jump in the lake, you may have to consider leaving the specific performance clause in the contract to get the deal done.
(By the way, this last example is completely made up and is in no way something that just happened to me in real life a couple of weeks ago.)
Even though the law is my profession, I recognize that sometimes practical considerations outweigh the legal issues, and you should too. Thinking practically instead of legalistically may help you buy your dream house, or avoid a lawsuit over a Hello Kitty painting, or get your client acquitted of his murder charge, or even solve a murder mystery once a week.
Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.