How To Get Away With Playing a Defense Attorney: an Insider's look at How To Get Away With Murder

By Seema Iyer, Esq.

October 9, 2014

How To Get Away With Murder, the latest venture in Shonda Rhimes’ quest for network television domination, stars Viola Davis as Criminal Defense Attorney/Professor Annalise Keating.  As a real-life defense attorney and former prosecutor I am always curious to see how accurately the criminal justice system is portrayed in entertainment.  They usually get it wrong – and this show is no exception.

Now before everyone jumps all over me, let me begin by declaring I am a fan of all things Shonda.  I still adore Greys Anatomy (that’s right, where are the rest of you, huh???) I continue to mourn the end of Private Practice (why, oh why, God did You take Dr. Taye Diggs away, God – WHY??!) And I never miss a solitary second of Scandal.  So despite my inclination to reject another lawyer show….I live Law & Order folks, I don’t need it in my free time…I decided to take a gander for no other reason than Viola teaming up with Shonda is an epic meeting of mighty females. 

Five minutes into the pilot I was renaming the show, How To Get Away With Playing A Defense Attorney.  Definitely less OMG than WTF?! And by the second episode I compiled a list of why I reasonably doubt the premise of Shonda’s new gig.  Ladies and Gentleman – here are your Top 10:

1.  The Field Trip

In the first episode Annalise takes her entire law school class to interview her client accused of attempted murder……uhhhh…..WHAT?????  People – this would NEVER happen.  First off, the client would never agree to it; but putting that aside each student becomes a potential witness.  The attorney-client privilege does not attach because at that point none of the students were working there.  Each student could be called by the prosecution to testify (don’t say they would never find out because they always do) and those little notebooks they were eager beaver scribbling in would also have to be turned over to the prosecution.

2.  Where is Magnum PI? 

Criminal defense attorneys do not have 1st year law students collecting evidence.  They’re barely equipped to make coffee (or maybe that was just me?).  If any of those knuckleheads were to get injured/threatened/in trouble it’s the attorney who faces a malpractice suit, disciplinary action or worse, suspension from the Bar.  Further, if you don’t have an investigator and lose at trial, the attorney could face an ineffective counsel claim on appeal.  Luckily Connor bed the IT geek to get an email, Michaela impersonates an insurance rep breaking health privacy laws and Annalise wins the case. 

3.  Reality Check

Professor Keating uses her own, open, ACTIVE, PENDING cases to teach her criminal law class.  Through a power point the case photos, evidence and crime scene are displayed.  So. Much. Wrong.  It’s a violation of professional conduct, the code of ethics, undoubtedly attorney-client privilege and just plain dumb.  Equally perplexing is that Annalise asks the students for help on these cases; a seasoned, skilled 40-something-year-old trial attorney is asking for Romper Room’s assistance.  Really.  That would happen.

4.  Fashion Police

Who doesn’t love a tight, sleeveless dress on the body of Viola Davis?  Any Judge in America that’s who!  Relax feministas.  The unwritten rules are for both male and female lawyers in the courtroom – sleeves are just one of them.  There is no way any Judge would let a lawyer strut around inside the courtroom like that, especially on trial.  Point of fact, I almost had a Judge refuse to allow me to do an arraignment because I had a sweater on instead of a suit jacket (arraignments is a smelly, dirty, lively circus where I don’t bring my best duds).  A male attorney friend once went into night court (yes, that’s a real thing) with a jacket sans tie; the Judge then ordered him to put on a tie if he wanted his case called.  Luckily Canal Street, with an impressive $10 selection of menswear, is around the corner.

5.  “You’re only as good as the people you hire” – Ray Kroc

By now you’ve become weary of my repetitive ‘this would never happen.’  So I will pause it.  Let’s just examine the facts: after about a month of being in law school Annalise hires 5 students from her introductory criminal law class.  Five children who at that point in their studies don’t know the difference between a brief and a bong hit.  She’s known them for what twenty minutes?  Yet she entrusts them with her home, her office and her career.  Jeez, I went through a more rigorous application process to work at Dairy Queen.

6.  Sleeping with the Enemy

Annalise has a husband and a boyfriend – remember that no so subtle introduction to Detective Nate?  The defense attorney sleeping with the cop isn’t the most likely scenario because after being a defense attorney for a while you start drinking the Kool Aid.  You start believing the cops really did frame your client, beat a confession out of him and hid evidence.  Defense attorneys don’t often mingle with the fuzz.  On the other hand, as a prosecutor it’s practically a rite of passage to sleep with a cop (so I’ve heard).  And although the prosecutor-defense attorney affair is cliché it is completely accurate (hey, stop pointing fingers!) and rampant in the courthouse.  Well, maybe not in the courthouse.  Actually……

7.  CSI

Apparently they were on vacation during the second episode.  The crime scene is a bedroom where the defendant, played by Steven Weber, allegedly killed his wife.  The bedroom is left ‘as is’ replete with bloody linens, walls and carpets.  This is not just reality ridiculous – anyone who watches anything knows that evidence WITH BLOOD ON IT is collected!  And remember when one of her legal genius law students suggests retesting for DNA.  After you’ve rolled around in the bed?  Great idea, kiddo.

8.  The Bail Out

Why are all the murderers out???  In the first episode the crime was attempted murder, the defendant appeared wealthy and it was probably her first arrest so perhaps she was able to pay the high bail.  But Steven Weber’s character in the second episode?  Very little chance bail would have been set; he would have been remanded to stay in jail while awaiting trial as is often the case with murder.  The Court would have looked at his ability to flee the country, that the murder occurred in his home and that he was accused of murdering his first wife.  At least make the guy where an ankle bracelet! 

9.  Rap It Up

I am almost done with the #HTGAWM bashing, but this is a big one.  In the second episode Annalise finds out, in the middle of trial, that Weber’s character was accused (and actually did it) of killing his first wife in Switzerland.  In the middle of trial.  Why didn’t she know this before?  Either her client didn’t tell her or she didn’t find out - because she doesn’t have an investigator!  Result is that Annalise Keating looks like a bad defense attorney.  And the prosecutor is obligated to have turned  the rap sheet over wayyyyy before trial.  Pulling that kind of stunt mid-trial has mistrial written all over it.

10.  Innocent until proven Guilty

Professor Keating opened last week’s show with: "The question I’m asked most often as a defense attorney is whether I can tell if my clients are innocent or guilty? And my answer is always the same: I don’t care."  Now that is real!  Truly we don’t care.  It has nothing to do with the job and as the Prof. correctly explains it is because our clients, like everyone, “lie”.

So there you have it.  My real-life criminal defense attorney perspective of How To Get Away With Murder.  Will I continue to watch?  Of course.  Even though it may be off base it’s Shonda.  And Viola.  I just wish someone would create an accurate portrayal of the criminal justice system and realize, - the truth is way more fun than fiction.

[Sidebar – for an authentic depiction of a criminal defense attorney’s life see The Lincoln Lawyer with Matthew McConaughey]

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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