Persuasion Matters

Dr. Jason Bull and former Homeland Security agent Taylor Rentzel in the CBS drama

Ethics, Secrets and Social Media! Oh My!

Dr. Jason Bull and former Homeland Security agent Taylor Rentzel in the CBS drama "Bull"This episode, we find Dr. Bull consulting in the good ol’ Lone Star State on a custody matter. He and his team – lead attorney Benny Colón and former Homeland Security agent Taylor Rentzel – are representing grandparents who are suing for full custody of their grandchildren after the death of their daughter.

SPOILER ALERT. If you’re a fan of the show and want to watch “Don’t Say a Word” (S3E18) before learning about all the twists and turns, close your web browser and get back to work.

A Case Study in Ethical Conundrums

Diana Lindsay – Dr. Bull’s romantic crush/love interest/FWB – lures him to Texas and begs him to represent the grandparents in the custody case. Although she’s arranged for Bull to meet the grandparents, Diana – for highly problematic reasons – says she needs to lurk in the shadows and remain out of the picture.

Derek Reed, the children’s father, was just acquitted in the murder of his wife, due in part to the web of lies he spewed on the witness stand (viewers see him commit the murder in the episode’s opening scenes). His defense attorney? None other than Diana Lindsay.  Her law firm continues to represent Mr. Reed in the custody dispute, albeit with a different attorney. Clearly, conflicts abound.

Derek Reed figures out that his former attorney has divided loyalties and files a complaint with the judge, claiming a breach of attorney-client privilege. The judge is outraged, grants a mistrial, and informs Ms. Lindsay that she’s facing sanctions and disbarment.

But in typical Hollywood fashion, Dr. Bull pulls off a miraculous quid pro quo: the judge’s son gets an internship at Bull’s company; the judge doesn’t report Diana to the state bar.

To be clear, I am not an attorney or an expert in legal ethics, but I feel pretty confident in characterizing the following actions as “Ethical Don’ts”:

  1. Hooking up the opposing party in a pending lawsuit with your current jury consultant;
  2. When you’ve just wrapped up a matter with a client, and your firm continues to represent that client in a new matter, taking action that would be against the best interests of that client;
  3. Putting your client (or any witness for that matter) on the stand if you suspect he/she will commit perjury;
  4. Promising a judge’s son a job in exchange for looking the other way. Yikes.

REALITY: Diana felt what many attorneys likely experience at least once in their career: a conflict between doing what you feel is morally “right” (in this case, protecting the children from their murderous father) versus fulfilling your obligations and duties as an officer of the court. If you ever feel so conflicted that you’re tempted to throw ethics out the window, phone a friend. Talk to a peer. Make an appointment with your therapist. Call the ethics hotline. Do something. When it comes to ethics, you can’t have your cake and eat it too. And I can promise you this: Your jury consultant will not cut a private deal with the courts to save your career from going down the toilet.

Keeping Secrets from Your Attorney

During the custody trial, the grandfather, Victor Harper, tries to make the case that his grandchildren are in danger and that his son-in-law has a serious anger problem. But defense counsel has a gotcha-moment up his sleeve: Apparently, Victor had a teenage fling and fathered a child he never helped support.

He’s asked why the court should grant him custody of his grandchildren when he “saw fit to abandon [his] own child.”

Bull and company are unhappy campers with their client for not telling them about the child. “If you had just filled us in,” Benny counsels, “we could have gotten ahead of it.”

He’s right.

REALITY: Always dig deep when preparing witnesses, especially in situations where your witness is taking a hard stance on an issue, such as fitness to be a parent. If there’s a skeleton or two, so be it. Knowing about it before the jury does is crucial because, as Benny said, you can get ahead of it. Strategize ways to minimize the impact. Create context. Perhaps file a limine motion. But surprises like the one we saw in “Bull” can be the nail in your coffin.

Why risk damaging your own witness’s credibility, likeability, and overall integrity with an unearthed secret? Dig deep, find it, and prepare for the worst.

The Missing Social Media

Bull’s team has a gotcha of its own: Mr. and Mrs. Reed had recently taken a trip to Italy, but the consulting team found the lack of social media posts odd, especially considering that Mrs. Reed was otherwise a zealous poster. Sensing a mystery that must be solved, Taylor applied her Homeland Security sleuthing skills to find ER records from the Italy trip that proved Mr. Reed beat his wife.

REALITY:  The trial team knew those medical records were critical to killing Mr. Reed’s credibility, so they wisely went through the process of properly authenticating them before attempting to use them in the courtroom. Smart move (and a rare moment where the producers included an actual procedural issue). It’s not a good use of time or energy to design a strategy around documentation that would not be permissible.

Always do your homework and make sure your hot documents are proven up, authenticated, and have a witness who can actually introduce them.

Witness Tampering

Bull delivers the final blow when he interviews one of the grandchildren, who reveals that “Daddy shot Mommy and told me I’d never see my sister again if I told anyone.”

Bull and Benny meet with the judge and Mr. Reed in chambers (sans defense counsel, which is just plain weird) and share their newfound info. Shortly thereafter, the Texas Rangers (the law enforcement, not the baseball team) enter chambers and arrest Mr. Reed for witness tampering, which carries the same punishment as the murder charge: life in prison.

REALITY:  First, it’s doubtful Bull would have been allowed to interview the kids without permission from the court, or without the guardian ad litem present. It’s also highly doubtful that Mr. Reed would be meeting with the trial judge and opposing counsel without his own attorney. But props to the writers for the witness tampering penalty! According to my quick review of the penal code (§36.05(d)), they were spot-on with the punishment for the alleged witness tampering. It’s nice when things aren’t 100% bull.

We got a two-fer this week: Bull not only saved Diana’s legal career (albeit using highly questionable tactics), but his team also saved the children from having to live with their abusive father. Once again, all is right in the world, thanks to Dr. Jason Bull.

 

This article was originally published by Texas Lawyer on April 4, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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