Law on TV
posted by Howard Wasserman
It is not breaking new ground to say that television is fascinated by law and lawyers, even if the portrayal is never quite right. It does give us some exam or discussion ideas or at least something to blog about. To wit:
On Parenthood, the lawyer character got into trouble at work because she missed the deadline for submitting her responses to Request for Admissions (that phrase was repeated multiple times, probably because it sounds fancy–I don’t think I mention Requests to Admit that many times in my entire semester-long class). As a result, the case was going to be dismissed, her client was going to be out millions of dollars, and the firm was going to be sued for malpractice. Opposing counsel declined to accept the late responses because doing so would hurt her client.
This seems really far-fetched to me. Courts don’t dismiss cases for a single inadvertent discovery mistake; it would have taken a whole lot of prior discovery problems for the court to get to that point; would the court really have not forgiven a one-day delay (to the extent the court is even involved in discovery at that point).? I also would expect opposing counsel to agree to the after-the-fact extension, since there probably was no prejudice. The show obviously was trying to set-up work problems so the character can face a work-family balance crisis. And maybe discovery sounded fancier and more lawyerly than a problem (like failing to file a lawsuit on time) that might actually get a case dismissed.
And, hey, anytime you can make drama out of discovery, you have to go there, right?
More questions, with SPOILERS, after the jump.
I also am right in the middle of the most-recent episode of Elementary (Sherlock Holmes in modern-day New York), which does not feel that much different than any other CBS police procedural. Holmes suspects the neighbor of the murder victim of having stolen something from the victim’s apartment, so he kicks in the door to reveal the stolen item; as he is doing this and the neighbor is screaming about him having to get a warrant, Holmes says “it’s a good thing I’m not the police.” That is just flat-out wrong; Holmes acts under color of state law under at least two (maybe three) tests. Can anyone come up with a conceivable argument that he doesn’t?
Finally, here is the one I genuinely need help on, because I know nothing about wills. In that same episode, Sherlock discovers that the two murder victims both had been fathered by the philandering father of a prime suspect. The wealthy man had recently died, with a will leaving the estate to his marital daughters (the suspect and her twin sister). But, Sherlock says, the two victims are “pretermitted heirs” who would be able to come back and make a claim on the estate, thus giving the suspect motive to kill them.
This seems really, really wrong. If the father made out a will, assuming it is valid, he can disinherit or devise to anyone he wants, can’t he? That there might be heirs entitled to a claim in the absence of a will does not mean they can make any sort of claim on an estate that has been probated pursuant to a valid will. In other words, they only would be entitled to millions of dollars (the basis for the motive) if they could show the willis invalid; they could not show entitlement to recover simply because they are descendants. Am I wrong about this? Am I missing something?
October 11, 2012 at 1:15 pm
Posted in: Uncategorized
Print This Post
Responses (4)
Michael Yuri - October 11, 2012 at 2:01 pm
Was the will written before or after the murder victims were born? If before, then (assuming NY law applies) Sherlock may be right:
http://codes.lp.findlaw.com/nycode/EPT/5/3/5-3.2
Also, according to Wikipedia, “Some jurisidictions provide the same rights for a child who was pretermitted because, although born before the will was executed, he was not known of at the time the will was made.” (http://en.wikipedia.org/wiki/Pretermitted_heir)
This doesn’t appear to be the law in NY, but I have no idea what the case law says.
Kent - October 11, 2012 at 2:37 pm
In Indiana, if the children were born after the will was executed they may be entitled to their intestate share.
“When a testator fails to provide in his will for any of his children born or adopted after the making of his last will, such child, whether born before or after the testator’s death, shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate, unless it appears from the will that such omission was intentional, or unless when the will was executed the testator had one (1) or more children known to him to be living and devised substantially all his estate to the spouse who survives him.
(b) If, at the time of the making of his will, the testator believes any of his children to be dead, and fails to provide for such child in his will, the child shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate, unless it appears from the will or from other evidence that the testator would not have devised anything to such child had he known that the child was alive.”
I.C. § 29-1-3-8
bill reynolds - October 11, 2012 at 4:33 pm
TV law can be great for teaching. When LA Law was on in the 80s, I’d schedule my 1Ls on Friday so we could talk about the previous night’s show. Great stuff
Bart Torvik - October 11, 2012 at 4:35 pm
In Bright v. Dicke, the Illinois Supreme Court infamously held that lack of prejudice was not grounds for allowing a late response to requests to admit. In that case the responses were filed just a few days late. Three courts (trial, appellate, and supreme) said: tough luck.
And it doesn’t take prior discovery problems for this mistake to destroy a case. If you fail to respond to requests that go straight to the elements, you’ve constructively admitted the other side’s version of the case. In other words: you lose.
Leave a Reply