(Welcome to The Soapbox, the space where we get loud, feisty, political, and opinionated about anything and everything. In this edition: no one involved in Big Little Lies knows a single damn thing about how family law works.)
Now comes Jessica Mason, having served as a family law attorney for many years and being of mostly sound mind, and MOVES that Sunday’s episode of Big Little Lies be stricken from the record due to its flagrant disregard for courtroom procedure in the name of drama. In the interest of clarity and justice, petitioner will present her case going forward in lay terms in the hope of providing context and understanding of these offences for the Audience.
Also: major spoilers for the most recent episode lie ahead.
As preamble, I want to say that I understand that media takes liberties with reality in the name of drama. It’s a little silly to critique battle techniques when dragons are flying around, but on shows that are otherwise realistic, when things go off the veracity rails, it can be distracting at best and completely undercut the drama at worst. Big Little Lies is a soapy show about very rich people living in absurdly nice houses, but it’s also pretty grounded in reality and everyday life, so when they decided to throw out any sort of legal realism in their most recent episodes, it threw me completely out of the story. I have a unique perspective here, because of my law degree and my years of work in family law. But it’s because of this background that I know Big Little Lies could have accomplished the same level of drama without throwing all semblance of accuracy to the wind.
There are two big legal stories going on in this season of Big Little Lies. The first is Renata’s husband’s criminal woes and the couple’s bankruptcy. I’ve never practiced in this area of law, so I can’t speak directly to the weirdness, but it feels off, mainly because the whole point of setting up businesses through which to do shady things is so that people don’t lose all their personal assets. The other big story this year is the one that’s rankled me most: the custody battle between Celeste (Nicole Kidman) and her mother-in-law Mary Louise (Meryl Streep). Mary Louise is suing for custody of her twin grandchildren and everything about how they’ve gone about this story has been legally wrong.
One issue on both cases – and an issue in just about every legal drama on television – is how fast they’ve gone. In real life, legal proceedings take months or even years to resolve. This is especially true for complicated things like bankruptcy and child custody. The first season of Big Little Lies took place over almost an entire school year, so it wouldn’t be hard to use that same structure here and exploit it for drama in terms of mounting dread: the tension and anxiety and frustration that comes from waiting. But I also get that a sense of urgency and immediacy is important.
That, I can forgive. Everything else…not so much.
The case starts out with Mary Louise handing the papers to Celeste. This is a big no-no. For any civil case to happen, you need something called “service.” That means an unbiased person has to swear to the court in a document that the petition was put in the hands of the respondent. That’s what a process server is for because this is all part of a person’s right to due process (that means a fair and unbiased process when dealing with The State). From there, everything gets worse on the show. The parties meet with the judge in chambers a few days after filing. This isn’t a thing that happens! Parties (meaning people who aren’t lawyers) don’t come in chambers and they certainly aren’t allowed to make statements like Mary Louise. The most accurate thing in the show so far has definitely been Celeste criticizing her lawyer, because she absolutely should have shut that down!
The next element of the case is the judge ordering a custody evaluation. Usually, this takes motions where one party asks for it, but this is TV, so…fine. But then it’s all done…off screen? We never meet the evaluator or know what they do, which is baffling considering how much it’s built up. Custody evaluations are long, drawn-out processes, where many people are interviewed. It’s complicated, fertile ground for drama and tension, but we never see it. I guess it happens this way because the show wants us to have a Big Dramatic Trial. But before we talk about the trial, we need to talk about the very premise of Mary Louise’s case and why her play for custody is not as scary as it’s made out to be.
Third-party custody – which is what we call it when a person who isn’t a parent asks for custody of child – is a real thing. It’s most common in cases like this where a grandparent wants or needs custody of a child, and I handled a few of these sorts of cases back in my court days. People who have relationships with children can sue for custody, but they face significant legal hurdles. The biggest is that the party seeking custody has to rebut the presumption that the parent is fit and acting in the child’s best interest. I know that’s legal gobbledygook but, in human terms, it means that it’s on Mary Louise to show that Celeste isn’t acting in her sons’ best interest. This presumption, that parents act in their children’s best interest, is a Big Deal. It actually comes from one of the few family law cases that made it to the US Supreme Court (they only handle federal cases, and family law is generally a state law thing). The case, called Troxel v. Granville, established that parents have a constitutional right to rear their children and that creates a presumption that they act in their children’s best interest.
Nowhere in Big Little Lies does anyone mention the constitution, and they barely touch on the massive legal hurdle Mary Louise needs to jump to get custody. It’s presented in a blur and is never explained by either Celeste’s bad lawyer or Celeste herself (also a lawyer). They go straight to a trial and then the most ridiculous thing happens, something that had me screaming at the television: the judge says that Celeste will put on her case first. Legally speaking, that’s insane. It’s Mary Louise’s petition, she has to go first, make her case and then Celeste gets to defend it. That’s how all cases go. Next, the judge says she will be asking questions along with the attorneys – again, that’s cuckoo bananas. It’s up to the parties to make their case to the judge and if they don’t do it right, that’s on them and their case fails. The judge doesn’t get to ask questions.
Speaking of questions, let’s talk about the questioning.
I know it’s fun to watch Nicole Kidman square off against Dennis O’Hare (whom I adore), but courts and trials have rules. Rules of evidence and procedure. The questioning in this “trial” followed none of those. Every question was a leading question which isn’t allowed on direct examination (the first questioning). The attorney asked questions about things the children said – that’s hearsay; also not allowed. He brought in all sorts of irrelevant and prejudicial things and it was so frustrating to watch. It went on and on as the trial was broken up over several days (why?), as no one made opening or closing statements, as no other evidence or witnesses were presented. Next week, we’re going crazier as Celeste gears up to examine Mary Louise herself. Again, not allowed – though she could do it if she fired her lawyer (which she should do).
Real trials are dramatic. And all the drama that the episode was going for could have been done in a way that was accurate. There are many, many courtroom scenes in the history of television and cinema that prove this – A Few Good Men, The Lincoln Lawyer, To Kill a Mockingbird, and yes, amazingly, Legally Blonde. I know it shouldn’t surprise me that the man behind Ally McBeal is again writing very bad lawyering, but it’s so frustrating to me as a writer and lawyer to see shows get things so wrong when just a fifteen minute phone consultation to a real attorney (I know shows do this because I’ve been consulted by one) could have made things so much better. Perhaps it’s a case of this showrunner sacrificing the quality of the show to match his specific vision. We can’t know. What I do know is that you should never ask the Monterey Five for legal advice.
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