Making TV Legal
Squint and you might think you’re in the U.S. Supreme Court. But then a man in a T-shirt and blue jeans, spraying the heavy red curtains with fire retardant, brings you back to reality, which in this case is a set for Boston Legal, a David E. Kelley television series that dramatizes life at a fictional law firm.
The set appeared in an episode that featured the rakish yet charming character Alan Shore, played by James Spader, arguing on behalf of a capital defendant who is mentally retarded and convicted of raping a child. Also appearing before the court was Denny Crane, an eccentric name partner at the fictional Crane, Poole & Schmidt.
The episode was likely inspired by Patrick Kennedy, a Louisiana death row inmate convicted of raping his 8-year-old stepdaughter. The U.S. Supreme Court granted his cert petition and oral arguments took place April 16, a week before the Boston Legal episode aired.
Like the fictional character, Kennedy has an IQ of 70, but that was not properly presented during trial, so Kennedy’s lawyers couldn’t argue it in the Supreme Court. But Shore could, sort of, by ignoring the bench’s warnings to stick to the record. Indeed, a large part of his five minutes had nothing to do with his client’s appeal. Instead, Shore tangled with fictional justices who strongly resembled Justices John G. Roberts Jr., Antonin Scalia and Samuel A. Alito Jr., after they admonished him multiple times for not respecting the court’s authority.
“You folks aren’t as hot as all get-out,” Shore said, shortly before launching into an impassioned speech about the justices’ actions that some say demean the court. He mentioned Scalia’s 2003 duck hunting trip with Dick Cheney, taken after the court accepted an appeal involving the vice president.
In reality, it’s hard to imagine how the justices would respond to such behavior. But this isn’t reality, and maybe that’s why the ABC series has more than a few lawyers among its fans.
“The lawyers on Boston Legal say things to judges that in the real world would get you put in jail,” says Charles B. Rosenberg, a Santa Monica, Calif., lawyer and law professor who is a technical adviser for the show. “But there are a lot of lawyers who would like to say those things.”
FORMULA FOR SUCCESS
Pairing fantasy and entertainment—with a drizzle of reality from newspaper headlines—often equates with success in television legal dramas. And sometimes lawyers, drawing on real-life experience, are the ones who write the stories, or who make sure even the most improbable stories can, at least, be believed.
“You have to be a pretty good writer and be able to write fast. Most people don’t have that ability, so if you do, you can make a good living,” says Michael Asimow, who teaches pop culture at the UCLA School of Law. He also co-wrote the book Reel Justice: The Courtroom Goes to the Movies.
What distinguishes a good legal drama from a bad one, Asimow says, are plausible story lines that are reasonably truthful.
Other lawyers in the business agree, for the most part. Viewers might not know if what they’re seeing and hearing is accurate, but it’s OK if it looks and sounds good, says William N. Fordes, a writer and co-executive producer with television’s most durable legal franchise, Law & Order. A former Manhattan prosecutor, Fordes started with the investigation and court drama in 1990, as a technical adviser. The show is filmed in New York City, but he works in Los Angeles with the other writers and producers.
Photo by Max Dolberg
Law & Order is the longest-running prime-time drama in television history. Practicing lawyers, Fordes says, have expressed some complaints, usually about unrealistic expectations that they believe the show gives juries.
“I tell them, ‘Pick a better jury,’ ” says Fordes, who grew up in the Park Slope neighborhood of Brooklyn. Fordes—who says he’s “107,” though public records put him at about half that age—talks and acts like a New Yorker. But he appears to have taken on some Los Angeles trappings as well.
Sitting in his office wearing a production company hoodie and a baseball cap, he leans back and props his feet on the desk, revealing Keen suede sneakers—comfortable footwear for the environmentally correct. It’s not his job, Fordes says, to make the profession look good.
“In almost 20 years,” says Fordes, “we’ve insulted every group.”
An early riser, Fordes usually surfs near Santa Monica before appearing at his office in Hollywood on Universal Studios’ Stage One lot.
He says story lines sometimes come to him while he’s waiting for waves, but the thoughts can be fleeting because he can’t write them down.
Sleep can also bring Fordes ideas for episodes, and he usually keeps paper and pens near slumber spots. His office includes an overstuffed couch, and his assistant knows that “in conference” is Fordes’ code for naps.
But Fordes finds much of his inspiration in the pages of the New York Post and the New York Times, two of the many publications he reads regularly.
“We’re looking for good stories, and the editors of the major newspapers ferret them out,” Fordes says. “They do the work for you.”
To dramatize their stories, writers look for unusual yet somewhat believable embellishments.
“Sometimes the writers will tell me they need a plot twist and ask what a cool legal motion would be for the story,” says Matt McGough, Law & Order technical adviser.
“The story is always paramount, but I see my job as figuring out a way to make it legally realistic,” says McGough, 32, who graduated from New York’s Fordham University School of Law in 2001.
Photo by Max Dolberg
McGough spent a year clerking in the U.S. District Court for the Southern District of New York and wrote a memoir about his childhood experience as a New York Yankees batboy. The book, Bat Boy: Coming of Age with the New York Yankees, was published in 2005 and later made into a CBS television series, Clubhouse. McGough was a writer and producer for the show, which was canceled after one season. He got the Law & Order job in 2006.
“It’s not particularly lucrative, but I took the job in large part because it promises to be a stepping-stone to other TV writing jobs,” McGough says. He wrote one Law & Order episode for the 2006-07 season and was writing another episode for the 2007-08 season.
To answer writers’ questions about a plot’s accuracy, McGough researches case law or discusses questions with other lawyers.
“It’s not like I’m writing a legal memo. They would prefer I get right down to the nuts and bolts and keep it interesting,” McGough says. “Any legal questions they’re asking me are going to be boiled down to at most a few lines of dialogue.”
SPIN ON REALITY
Boston Legal writers often weave news stories into plots, and a single episode may have plotlines influenced by multiple real-life stories.
“We’ll take one or two cases, pull them apart and flip them around,” says Craig Turk, a 36-year-old writer and producer with the show.
Because Boston Legal tends to take legal questions a bit further than other shows, the procedural twists can be more pronounced. Turk mentions a 2007 episode, “Attack of the Xenophobes.” The plot involved a Boston police officer on trial for shooting and killing an unarmed black teenager. The victim held a submarine sandwich that the officer, accused of being a racist, thought was a gun.
Turk keeps files of interesting news articles and he had one for functional MRIs—brain scans that can record how one’s mind responds to certain stimuli, like fear. In the episode, which Turk co-wrote with Kelley, prosecutors sought an order for a “racial brain scan” to be performed on the police officer while he viewed images of blacks and whites. The defense argued that such a test would violate the officer’s right to be free of self-incrimination, but the story line had the judge allow it, finding the process similar to blood work.
“One of the interesting ways to dramatize law is to take it to the nth degree,” says Turk, a 1998 Harvard Law School graduate. “It’s not the easiest question, but the hardest one, that makes good television.”
Additional inspiration comes to Turk from talk radio and taped lectures, which he listens to during his 25-mile commute between the Hollywood Hills and Manhattan Beach, where Boston Legal is filmed.
Wearing a nondescript blue sweater, which probably resembles sweaters he wore almost 20 years ago as an undergrad at Harvard University, Turk mentions a show idea he got after reading The House of Gucci, a book about the family behind the luxury goods line. Asked whether he follows fashion, Turk points to his sweater. “What do you think?”
Still, he says his interests are eclectic. “If you read, watch and listen, and try to figure out what sparks you,” he says, “there’s an endless supply of things out there to explore.”
A former associate with Wiley Rein in Washington, D.C., and later O’Melveny & Myers in Los Angeles, Turk is the only lawyer on the Boston Legal writing staff.
He served as chief counsel for John McCain’s 2000 presidential campaign and briefly went back to work for the Arizona senator in 2007, when the Writers Guild of America went on strike. McCain, Turk says, in no way inspires the 70-something Denny Crane character, a conservative with a huge ego and libido.
A SCRIPT IS BORN
At Boston Legal the writing process starts with writers pitching story ideas to each other. After a plot is determined they discuss potential scenes, how existing characters will figure in and what new characters should be developed. The process, called “breaking the story,” also determines what part of the episode will be dramatic, where the twists should figure in and what the legal theories will be. A writers’ assistant takes notes, so creative flow is not interrupted.
Finally, the person who submitted the idea writes the script, which goes to Kelley for approval, and he often does a pass of his own. A writer and lawyer, Kelley also created and wrote Chicago Hope, Boston Public, Ally McBeal and The Practice, the last of which spun off Boston Legal.
Sometimes Turk gets story development advice from other lawyers, like University of California Los Angeles School of Law professor and well-known blogger Eugene Volokh. The two met when they both worked for 9th U.S. Circuit Court of Appeals Justice Alex Kozinski.
Turk also gets advice from lawyers he doesn’t know. For an episode where an associate admits that she previously ran a London brothel—with royal family members as clients—Turk called the Massachusetts Office of Bar Counsel. He asked for examples of some of the seemingly worst things Massachusetts lawyers had done, without losing their law licenses. The behaviors included heroin possession and Ecstasy trafficking.
“I did all this research and thought, ‘Wow, that’s crazy,’ ” Turk says. The list of offenses was put in the show as dialogue.
Screenwriting is Turk’s third career. After a stint at Oxford University, where he researched the life of New York Sen. Daniel Patrick Moynihan, Turk served as managing editor of The Public Interest, a quarterly magazine that focused on conservative politics and culture.
A career in academics and politics, like that of the late Democrat, interested Turk. “So I thought I’d go to law school and figure it out,” he says.
Turk never thought about a screenwriting career until he’d been in practice a few years. In 2002 he wrote a feature script, The Fixer, which was about a young Washington, D.C., lawyer who routinely gets in over his head. The script got Turk an agent, who told him it could be sold as a television pilot. It was eventually sold to Paramount Studios and later to the FX Networks.
Turk also sold a spec script for Law & Order, about a reporter who returns from assignment in Iraq and is shot in the back with a military handgun.
After that, Turk did writing stints with The Guardian, a CBS drama that featured a successful lawyer who is busted for drugs and subsequently fulfills his community service sentence as a part-time legal aid lawyer, and Cold Case, a CBS police drama.
The Fixer was still floating around, when 20th Century Fox Television offered Turk what is known as an “overall deal,” which describes an agreement where writers work exclusively for a studio, and the studio pays the writer for exclusive rights to his or her services. He’s been with Boston Legal since 2006.
Turk’s script hasn’t made it to the screen yet, but that’s not a sign of failure. Marc Guggenheim, a lawyer and co-creator of CBS’s Eli Stone, says he still gets meetings from a yet-to-be-made romantic comedy, Musical Chairs, which he wrote in 1998, after passing the Massachusetts bar exam.
“A big chunk of my passion for writing screenplays came from post-partum depression that developed when I passed the bar,” says Guggenheim, 37, who was a litigation associate with Boston’s Hutchins, Wheeler & Dittmar. “I was looking for the next mountain to climb.”
While in practice, he woke up at 5 a.m. during the week to write before work. Vacations were spent meeting with Los Angeles agents. And in his performance reviews, partners often remarked that his legal briefs were fancier than necessary.
Guggenheim describes his career switch as a “slow revelation.” He quit his job and moved to Los Angeles in March 2000, when television shows generally hire writing staff. He had saved enough money to live off of for one year and signed up to take the July California bar exam.
“Then I got a job on The Practice,” he says. He decided to skip the bar exam, which took place the first week the show’s writers started working.
The next year Guggenheim joined Law & Order as an executive story editor. He also wrote for Jack & Bobby, a 2004 WB Network series about the Kennedy brothers’ childhood, as well as CSI Miami and In Justice—a show inspired by the Innocence Project, a nonprofit group dedicated to reversing convictions through DNA testing.
When In Justice was canceled in 2006, Guggenheim decided he wanted to create his own show, rather than write for someone else’s. So he and Greg Berlanti, a writer and producer, created a comedy drama about a young lawyer, Eli Stone. ABC bought the show, named after its protagonist, and it began airing in January.
Guggenheim also writes for comic books, and he has done stories for the Superman, Batman and Spider-Man series. The superhero influence shows in Eli Stone, which unlike other legal dramas does not focus on stories that might seem remotely possible.
The show’s protagonist—an ambitious San Francisco lawyer who usually represents large corporations— has an inoperable brain aneurysm, which causes hallucinations, usually involving rock music, particularly that of George Michael singing the 1987 hit Faith.
But the visions, though they at first seem random, gradually guide Stone toward clients who need his legal services—sometimes against the interests of his corporate clients.
“We talk about Eli in superheroic terms, and his journey has many elements of myth, in terms of the sacrifices he has to make in the name of this higher calling,” Guggenheim explains.
“Whenever we would get stuck working on the pilot, we’d always say, ‘What would Clark Kent do?’ ”