The Night Of,” HBO’s moody, intermittently cerebral look at the criminal justice system and the domino-like effect a single arrest can have on individuals, families and communities, gets much right about the police arm of the criminal justice process.  In its opening episode, it handles the Sergeant’s Desk – the nerve center of most New York City precincts – with an attention to detail lacking in almost every criminal justice film or show that has preceded it.  This kind of precision made it an early candidate for television’s most realistic look at the criminal justice process: from arrest to arraignment to trial.  The campaign is over.

While it still fancies itself precise and detail oriented, the show has morphed from an accurate representation of the process to a political show, concerned with telling the tale of jail’s corrosive effect on all those who find themselves inside it’s blood riddled walls.  Which is fine – that’s a story worth telling.  But, at the same time it has undermined its promise of procedural accuracy and continued a troubling pop culture trend: underselling the importance of top notch litigation skill.

The fictional murder story at the heart of the miniseries is a tale that would no doubt transfix New York.  Young Muslim college student, and temporary NYC cabbie, brutally murders beautiful young woman during a night of drugs, alcohol and sex.  The show embraces this position: using well-crafted New York Post headlines to show, for instance, backlash against Pakistani cab drivers in the wake of the crime.   It would stand to reason that a crime of this notoriety requires the best homicide prosecutor in the city.  In other words, one of the best prosecutors in the country.  And the show represents Helen Weiss, the seasoned homicide prosecutor who single-handedly takes the reigns of the case, as exactly that.  One problem: if you know anything about litigation technique, she doesn’t know what she is doing.

On this past Sunday’s episode, Weiss undertakes one of the most important cross-examinations of the trial, going toe to toe with the defense’s forensic crime scene expert.  The expert, a smug caricature of “celebrity experts” makes a number of outrageous conclusions, the most offensive of which is his (correct) assumption that the victim sustained a stab wound to her hand from a game she and the defendant were playing.  Instead of testing the expert’s assumptions with carefully crafted questions establishing that he had no physical proof supporting his unscientific conclusion (the viewer can only assume the expert learned this through the defendant’s story, which has not made its way in front of the jury), the “seasoned” prosecutor stands inches from the expert’s face (a TV litigation strategy that has no place in a real courtroom) and poorly assails his credibility based on a speech he made about the rival expert.  The expert adeptly handles her questions, chewing them up and haughtily spitting them out.  That’s it.  The prosecutor sits down, defeated.

On the one hand, I get it.  A television show does not have the luxury of spending a single episode on a single cross-examination, which is the minimum time required to get a full appreciation of the preparation, skill and performance necessary to administer an effective cross-examination.  On the other hand, if a show can exert so much effort in getting the police work details just right, can’t it at least put forth a modicum of effort in showing lawyers administering their craft?

This isn’t just about making the prosecution look bad.  The show perpetually sets forth a litigation landscape where witnesses are master of what should be the attorney’s domain. The defendant’s attorney (a litigation novice who is given far too much responsibility by her more experienced counterpart) is consistently woefully underprepared and underwhelming in her performance.  During a particularly critical cross-examination of a character witness (whose direct testimony was largely inadmissible), the attorney asks a question she doesn’t know the full answer to (and neither did the prosecutor).  The witness hits her over the head with a knockout blow of an answer, leaving the attorney stammering like a 1960’s sitcom regular before heading back to her seat.  While a new, inexperienced or unprepared attorney may experience such an unpleasant litigation moment, it does not happen during homicide trials.

Litigation is a craft – one that takes decades to learn and hone.  Its craftsman are talented, seasoned and prepared.  Would a doctor on “ER” forget how to make a basic incision?  Would a politician on “The West Wing” forget to review his stump speech before a political convention? Of course not.  But “The Night Of,” like countless courtroom dramas before it, render its advocates impotent cogs in a wheel that spins at the pleasure of dramatic convenience.

Why is this important?  For one, it devalues experienced, competent courtroom advocates in the minds of viewers and casual students of the law.  It also helps drive forward a common misconception that courtroom attorneys are second class citizens to their corporate counterparts.  But most importantly, it undersells litigation as an art form.  One to be appreciated by non-lawyers.  Valued by clients.  And pursued with great vigor by tomorrow’s attorneys.  Here’s to hoping that the next courtroom drama takes its courtroom scenes as seriously as its drama.

Bergstein Flynn Knowlton & Pollina PLLC
At Bergstein Flynn Knowlton & Pollina PLLC, we pride ourselves on being a different kind of law firm. We are not just your attorneys, we are your partners.
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