United States: Keeping It Real: Litigation Insights From ‘Making A Murderer'

It's mid-January, and I'm sitting in my office writing this post while snow falls outside. (Yes, we get snow in South Carolina and, yes, it terrifies us.) The snow, however, reminds me of the frozen northern Wisconsin landscapes featured in my latest binge-watching favorite, Netflix's Making a Murderer.

If you've not seen it yet, Making a Murderer is a fascinating serial documentary about the murder trial of Steve Avery. Mr. Avery swears by his innocence and defends the murder charge by claiming that the local sheriff's office framed him. DNA evidence had exonerated Avery of a prior rape conviction (or at least raised sufficient doubt to require his release from prison). He sued the county for his earlier conviction, and soon after key depositions were taken in his lawsuit, a young woman went missing. Key evidence was found near Avery's home (including charred remains of the missing woman), and he was arrested. He claimed someone set him up and that the police overlooked evidence of his innocence.

This post is not about his innocence or guilt. Instead, I want to bring readers' attention to the show because I appreciate the honest way it depicts how trials really play out. If you've never been through a trial, Making a Murderer is a good place to start to get a feel for how it actually happens. You won't see a flashy Corbin Bernsen or an upright Gregory Peck delivering smooth, flawless questions and orations. Instead, you'll see well-prepared, determined, and competent lawyers in the real work of a real world trial.

Here's a few takeaways for fans of the show:

First, Making a Murderer has the advantage of being a 10-episode serial documentary, which allows plenty of time for the investigation, pretrial process, and trial to play out for viewers. Instead of very short snippets, the format gives you a chance to see longer excerpts from many neglected yet important parts of the litigation process.

Second, you get to see what witness examination really looks like. The prosecutor prefers to examine witnesses while seated at counsel table. The defense attorneys prefer to stand at counsel table while examining witnesses. Witness examination is hard work, and even a well-prepared examiner will have to pause, think, go back to clarify testimony, and (most of the time) stay in place. High drama is very rare and, at times, the testimony seems pretty boring. Nevertheless, the show demonstrates how difficult it is to piece together a case or defense.

Finally, the show captured the gut-wrenching wait for a jury verdict. In the show, both sides' lawyers, family members, and other interested parties wait for word that the jury has reached a verdict. They are tethered to their phones and sit (almost in agony) waiting for the word. From the time the jury is out until the verdict is read, no one is doing much of anything, but at the same time they (and you) are on the edge of your seat. The same is true of any jury trial: Waiting for a group of complete strangers to come back and render judgment on a dispute that you've been living for several years is draining and extremely tense.

Even though Making a Murderer features a criminal trial, it offers a welcome and realistic portrayal of the judicial process that we rarely get from popular culture. We've all heard from parties in criminal and civil cases that they "want their day in court" or that they're ready to take their case to a jury–and most of the time it's for good reason. Still, anyone involved in any kind of litigation should know what they're signing up for, and Making a Murderer does us all the favor of giving one of the most extended, realistic portrayals of the process I've encountered.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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