JUDITH ANDRE
The Good Wife is filled with ethical tension. Should Alicia stay with Peter? Help him win parole? Should she sleep with Will? Is using Peter’s contacts to help her firm ethical (“Unplugged”)? Should she use Peter’s insider knowledge to win a case (“Conjugal”)?
Ethical issues basic to the practice of law emerge throughout the series. These issues are faced by every lawyer, not just the firm of Lockhart Gardner. Sometimes the issues are obvious. Judges, for instance, have convictions and biases of the liberal-or-conservative kind, and personal ones as well: Peter was well known in the courts where Alicia practices, and some judges, well, prejudge her (pun intended). It’s hard to know whether their decisions are in fact biased, but it’s obvious that bias is wrong, especially in the legal realm where “justice is blind” and judges are supposed to remain objective and neutral.
Other legal ethical issues are more complicated. In Season One’s “Conjugal” Alicia spends a (sexless) night with Peter in prison to get information she needs to win a case. The script suggests this is a professional gray area—uncomfortably like insider trading. In another episode, Will asks Alicia to snatch evidence from their client’s apartment before the police can get there. “You’re well within the law,” he says. He backs down a bit after she gives him a skeptical look: “Well, you’re within the law.” She does what he asks, however—she gets the goods (“Hi”), another move that is both legally and ethically questionable.
Kalinda, an enigmatic and often dark character, uses tactics that can be downright illegal—in addition to being unethical—yet the firm uses what she finds. “This evidence isn’t admissible in court, but it’s useful outside of court,” she claims in the Season Two episode “Heart.” The evidence can be used to pressure the opposition with a threat of exposing their client’s “heartless” insurance practices. In that episode, because we feel so strongly for the pregnant woman whose insurance company refuses to pay for what she needs, we’re glad for the underhanded tactic despite the fact that we know that what Kalinda is doing is ethically questionable. Still, Will’s date in the Season Two episode “Cleaning House” speaks for many of us: “I don’t get lawyers. They always seem to be out to trick people.”
The Good Wife is a Hollywood show that mostly doesn’t represent reality—it’s escapism, and when we stop to think about its fictional situations, we have to “willingly suspend our disbelief.” In Season Three’s “Long Way Home,” for instance, Alicia discovers her client has perjured himself. Will tells her she can use the testimony, since she hadn’t known he was going to lie, let alone encouraged him to do it. But Will is wrong: knowingly using perjured testimony is a clear violation of professional lawyerly standards. Disciplinary Rule 7-102(A)(1)—which was adopted by the American Bar Association in 1970—states: “a lawyer shall not knowingly use perjured testimony or false evidence.”
However, the show does point out something that is part of reality: legal victories are often won outside of courtroom litigation. What are American courts really for? Can legal tactics that have become standard bring about “liberty and justice for all”? Do the ethically questionable moves that lawyers make on The Good Wife and in reality serve the cause of justice, or subvert it? Is lawyerly work underhanded trickery?
It seems so, at times. Consider this example. In the Season One episode “Unorthodox,” Alicia discovers that the firm has supported a client by simply exhausting the other side’s funds. Delaying tactics keep the case from getting to court and run up the tab until the plaintiff can’t afford to continue. Alicia is shocked, but Will is unruffled; this is standard procedure when the opponent has “shallow pockets.”
Will’s right; this strategy is standard, and in full accord with codes of legal ethics. Here the interesting questions begin. If the point of our legal system is to serve justice, and such tactics don’t do that, why are they accepted? In fact, bankrupting your opponent quite explicitly interferes with the pursuit of justice: If a case never goes before a judge, no weighing of evidence will happen, no verdict will be rendered. The party with the most money will win—a rather familiar idea, but not an attractive one.
Lawyers call such maneuvers zealous advocacy on behalf of the client, and endorse them as part of a two-level commitment. Ultimately, lawyers are devoted to the rule of law. It’s what makes the country work, what makes it possible for strangers with competing interests to work together. The law provides an orderly way of resolving disputes that, in contrast to private vengeance, doesn’t usually escalate into vigilante mobs or deteriorate into endless feuds. The legal system does this by providing a set of impersonal procedures whose results will be enforced by the power of the state. Alicia, Diane, and Will obviously value the law and are proud to be part of it.
So, once again, why do they interfere with its working? Delaying tactics can prevent a case from ever being adjudicated. Removing evidence makes the police less likely to find the truth. Lockhart Gardner does these things because lawyers serve the law by serving their clients. Lawyers view zealous advocacy as their most sacred commitment; but can it be taken too far? In the Season One episode “Running,” reacting to the fact that she knows her client is a murderer, Alicia asks Will, “At what point is doing our job . . . wrong?” And he responds, “When it fails our client.” In an earlier episode titled “Boom” from the same season, Will uses racial profiling to defend a client who has been the victim of the same strategy. Will’s defense: “We’re going to step nicely past the ironies here and defend our client.” The obligation of zealous advocacy is omnipresent in the series, usually implicit but sometimes explicit.
Some Good Competition
Much less explicit in the show—and in the minds of lawyers—is a crucial assumption: that justice is best served by having two lawyers (or teams of lawyers) fighting one another. Each acts as an advocate for one side of the case, and an adversary to the other. Hence, the American legal system is called an adversary system.
Most would argue this is a good thing. There’s a close analogy with sports. The underlying purpose of any sport is to benefit the participants, to give them pleasure and push them toward physical excellence. Both goals are better served when the athlete has competition. So too, in the legal realm, arguments and evidence are made stronger and better by responding to counterarguments and counterevidence. Justice and truth are best served when each side is forced to present its best case.
Of course sports serve other purposes as well: excitement for those watching, and lots of money for lots of people. But let’s stay with athletics’ intrinsic purposes—physical excellence and the pleasures of playing. These goals aren’t sought directly. During the game the quarterback is not trying to improve his fitness, or to enjoy himself; he’s trying to win. The ultimate goals of sports, pleasure and fitness, are best served by having each side pursue the intermediate goal of victory. Similarly, the ultimate goal of law—to see truth and justice triumph—is best served by having each side seek the intermediate goal of victory, with lawyers acting as zealous advocates and zealous adversaries. Or so we think.
What The Good Wife shows so well—by the clarity and subtlety of its script, and by fine acting—is that the intermediate goal can conflict with the ultimate goal. This can happen in sports, too. Set aside the corruption that big money brings with it. Even in a pickup basketball game players can get so caught up that they hurt themselves and each other. As the stakes get higher, injury becomes more likely.
The rules of sports are meant to prevent these problems, and to some extent they do. The rules of our legal system have a similar purpose, and similar mixed success. Rules in both arenas are regularly re-thought. Concern about concussions is changing rules about football helmets. In the law, scandals like Enron led to tougher rules about the use of perjured testimony. The instrumental lawyerly goal of winning the case with zealous advocacy is always in danger of conflicting with the ultimate goal of bringing about truth and justice. It’s the nature of the beast.
How deep is the danger? How well does competition in the courts serve justice? Actually that’s not quite the question. Justice, paradoxically, is not the ultimate end of the justice system; its truly ultimate purpose is maintaining order. Civil courts resolve disputes, and doing that manages anger between citizens. Criminal courts enforce the law by meting out punishments; these in turn discourage law breaking. The connection between these ultimate results and what Alicia does is pretty indirect. Theoretically one could even say that her work is optional; other societies, after all, have reconciled neighbors and punished scofflaws quite differently: by royal fiat, sometimes, or by physical trials (letting the aggrieved parties duel one another, for instance, or trying to drown a suspected witch). But obviously none of that will do for us. We expect our courts not only to decide, but to decide fairly. Otherwise they lose our allegiance and we take matters into our own hands, with brutal results.
So now we’ve placed Alicia, Will, Diane, and other lawyers at the beginning of a long causal chain. They defend their clients (vigorously and inventively), and doing so, in theory, brings about justice in the courtroom. Justice in the courtroom channels anger and preserves public peace. Both links need attention.
The Advocacy-Justice Link
Start with the link between what lawyers do and what courts decide. Certainly questionable tactics abound. The Season Two episode “Cleaning House” involves a case in which several people had been crushed in a rave; the victims had probably been high on PCP. Alicia is asked how she would feel about “blaming the victim” and she replies, “How would I feel as a person? Or as a lawyer?” As a person she would hate it, obviously; but as a lawyer she is quite willing to use this strategy. If she were pressed on this, she might have given the response lawyers often do: “The other side has a lawyer, too.” The assumption is that with each side energetically looking for arguments and evidence, everything relevant should come to light; the truth will out, and justice will be served.
In reality, as we all know, the resources (read money) available to each side can be vastly different. Forget O.J.—worse than the likelihood that someone guilty went free is the certainty that the innocent have been imprisoned, and sometimes executed. Money talks, far more than it should. In capital punishment, the saying goes, “Those without the capital get the punishment.” This is the practical weakness in the adversary system.
The role of money could, in theory, be vastly lessened. We could, for instance, allow each side only one lawyer, salaried by the state. Personal wealth would no longer matter. Even such a radical change—politically impossible anyway—would not completely level the playing field. No two lawyers are equally skilled. Verdicts would sometimes be a result of a lawyer’s ability rather than the facts. But in such a system adversarial justice, with someone working energetically on each side, would at least help balance the scales.
That sort of solution might not be possible for the American legal system. Even if it were possible, a deeper problem would persist. No one in the adversarial courtroom is directly responsible for bringing the truth to light. Each lawyer defends his or her own case, the judge makes sure the rules are followed, and the jury (when there is one) sorts out what has been presented. It is quite possible for each side to want to keep something relevant out of court, for different reasons. In the ongoing struggle between Peter and his nemesis, Glenn Childs, for example (“Hybristophilia”), some tapes are never used as evidence. Each side, in different ways, is afraid of what they would show.
Another Weak Link?
What about the link between having courts decide and the channeling of public anger? The answer’s ambiguous. Most people’s exposure to the American legal system is through high-profile trials like those of Casey Anthony, O.J. Simpson, and the cops who beat Rodney King. The public response to acquittal has ranged from anger to riots. Yet riots are rare, and so are violent feuds between families. (Rare, but not nonexistent). The Hatfields and the McCoys made peace, notably, after courts passed sentences of imprisonment and death. Our courts, despite all their flaws, work pretty well at keeping the peace.
The courts succeed in part because we all understand, at some level, that private vengeance is uncontrollable. Public court processes, frustrating and often unfair, are still preferable. (Another deterrent to private vengeance is simpler: the police punish it pretty effectively.) There’s also the (maybe only half-conscious) understanding that everyone needs and deserves someone fighting on their side. For all the outrage when someone who’s probably guilty is acquitted, we want a lawyer for ourselves should we be accused. And we want a good one.
Having no one on our side would terrify us. It would terrify us most if we were accused of a crime, and had to defend ourselves against the full power of the state. In civil cases we might not feel quite so vulnerable, especially if the other party were also on their own. Small claims courts operate that way: the disagreeing parties face one another and present their case; the judge decides. Traffic courts are often similar: no lawyers, no jury, just the accuser (police), the accused, and a judge.
In some countries many or all trials—civil or criminal, misdemeanor or felony—are handled this way. Such systems are called inquisitorial, and in spite of the unpleasant name, have a lot going for them. Judges in our system are supposed to be impartial referees; judges in other countries are also impartial, but unlike ours can play an active role in getting the facts, from questioning witnesses to ordering investigations. Most legal systems are hybrid, partly adversarial, partly inquisitorial. (A better name might be investigational.)
Resisting the State
Why then are American courts almost entirely adversarial? That they are provides The Good Wife with week after week of riveting drama, but that’s hardly an answer. History supplies the beginning of an answer. Our country was founded in order to throw off the oppressive British government. Protecting individual liberty against the power of the state is our most basic commitment. The words liberty and freedom are thrown around constantly, in political battles and even in meaningless commercials. (7-Eleven once proclaimed “Freedom! We offer BOTH Coke and Pepsi!” Politicians’ use of the word is usually worse.)
What really counts as liberty (since a choice between sodas does not)? How important is liberty? Why? Answers are deep and varied, but we all agree on this: The essence of being human includes the ability to live your own life, to make your own choices. In other words, liberty.
Some government policies support that ability, some get in the way. Political philosophy tackles those issues, and there are two important things we can learn from what it says: First, individual liberty is profoundly important; second, the state is a uniquely powerful institution and, when unchecked, a threat to liberty. Here, finally, is a clear defense of lawyerly activity: When the accused is face to face with the state, the scales should be weighted on behalf of the accused. The goal of legal advocacy is protection of the individual against the state.
This defense is very limited, though. It justifies zeal in criminal defense attorneys, but not for prosecuting attorneys, nor for either side of a lawsuit. So where do we go from here? Political philosopher David Luban reaches an almost cynical conclusion. First he makes a simple, fundamental point: The adversary system is imperfect, but so is every other system. Then he gets practical: Changing our legal system would make a true mess for a long time. Unintended consequences would have a field day. So, Luban concludes, the adversary system is justified.
But legal advocacy as part of an adversary system still raises deep ethical issues. It is objectively justified only in criminal cases. In other situations, lawyers are not so justified in doing what would be wrong for non-lawyers. Or, as Luban puts it, “professionalism can tell lawyers not to cut corners. . . . it cannot mandate them to cut throats.”
At this point his cynicism kicks in. Lawyers are not going to change. Alicia, Will, and others will use cutthroat tactics whenever they will work. Like the rest of us, lawyers are paid to do effective work, not to fine tune their consciences. “Criticizing an ideology,” Luban writes, “won’t change the world.” But we’re better off with one less excuse for what we do.
Cynicism Aside . . . Possibly
The Good Wife does get many things right about lawyerly professional obligations as well as legal ethics, and it’s refreshing when the firm does the difficult but ethical thing. Take an example from the Season One episode “Hi.” The wife of a client suspected of murder is suddenly herself a suspect. The firm immediately separates her defense from his—each will have a different team, and the two teams will not communicate. This is what professional ethics requires. Also, in the episode “Lifeguard” from Season One, Will discovers that an old lawyer friend of his has become corrupt. Despite the history they have together and the fact that the friend’s career will be over, Will ends up exposing him for who he really is.
But in the world of The Good Wife—as in the real world—‘legal ethics’ may seem to non-lawyers to be an oxymoron. In the Season One episode “Unplugged” Eli Gold says to Alicia, “In my experience, everyone is ‘that kind’ of person”: someone who will do what it takes to get what he or she wants. Alicia wavers and ponders: Is she herself like that? By the middle of Season Two, she tells her brother that everyone is double faced. “Even you?” he asks? “Yes,” she replies. “I’ve grown up.”
Alicia will remain conflicted, the voice of uneasy conscience in the show. It is to her credit—and that of the writers of The Good Wife—that she has not simply reconciled herself to the ambiguous world in which she must practice.