Artistic License: Law

Strong Bad: This is a sub-poe-eena! I summons Exhibit 4-B to my chambers!
Homestar Runner: Sustained! (hits self in face with gavel)

—Homestar Runner

This is a listing of liberties taken with how law is presented.

Frequently an Acceptable Break From Reality in that real litigation takes months, not minutes, and almost none of it happens in court. But watching lawyers read mountains of documents and write briefs isn't something anyone really wants to do. Lawyers don't, because if you're going to watch someone do legal work you may as well do it yourself (and get paid), and laymen audiences don't because it's boring as hell. So while most depictions of legal procedures outside of literature have very little to do with the way law is actually practiced, most people are okay with this, because real legal procedures tend to be No Fun At All.

Note that laws vary across different countries and jurisdictions. What may be therefore seen as an example of this by people from one region may actually be valid legal procedure in another, and vice versa. Also note that as with all Acceptable Breaks From Reality, this can get out of hand, particularly when it's the substance of the law, not the procedure, that the the creators are screwing up.

NOTE: This should not be listed on a work's page as a trope.

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Examples of Artistic License: Law include:

• Chalk Outline: They do not do that in real life. It actually does contaminate the area and makes it more difficult for the investigators.
• Conviction by Contradiction: While a legal case has to hold together logically to some extent, "logic dictates that this must be what happened" is not sufficient for a conviction. Not to mention, most crimes aren't simple logic puzzles anyways - Most "Solve it yourself" Mysteries are actually presented this way because the average person does not have the skills of a trained detective or inspector.
  • Conviction by Counterfactual Clue: Even worse, because you can even point out that you're convicted for a wrong reason.
  • In civil cases, which have a lower burden of proof, this can be legitimate. It's known as "res ipsa loquitur" (The thing speaks for itself) and it basically amounts to "We can't prove the specific sequence of events that led to the defendant wronging us, but there is no possible innocent explanation." The common example is a guy who is hit by a bag of flour that is thrown out a factory window. Or an X-Ray after an operation showing a scalpel left behind in the patient's stomach. There's no legitimate reason for doing that, so whatever the explanation was, they're still liable.
• Courtroom Antic: Many of these would result in the lawyer being warned, and possibly removed from the case or punished (with fines or brief jail stays) for contempt of court. Major antics could cause the judge to declare a mistrial, and a consistently ill-behaved lawyer would risk disbarment (though most bars will put up with a lot of antics rather than go that far). In summary, it's usually up to the judge to keep the courtroom under control, and each judge has different levels of tolerance. Smart lawyers know exactly how far they can go with a particular judge.
• Disregard That Statement: Trials, and judges, are complicated. There's no question that there are certain things lawyers aren't supposed to say or lawyers aren't supposed to ask (and a witness not answer), and, if a lawyer does so, the proper response is for the judge to invoke the trope. Actual practice is complex. On one hand, questions like these are part of the tactical arsenal of any lawyer; on the other, courts do have the power to sanction a lawyer who does this excessively or blatantly, not to mention the risk of creating something appeal-worthy. As a rule, however, the sort of things that gets said in fiction would get most lawyers in a world of hurt.
• Eagleland Osmosis: not purely a law trope, but it's one of the worst-affected professions. People in every country have seen a lot of American Law Procedurals, and often Did Not Do the Research when making one set in their own country.
  • In the US, protections against self-incrimination render prosecutors unable to use a defendant's silence as evidence under any circumstances, and between that and hearsay rules, it's standard legal advice that nothing said to the police can ever help your case. Not so in the UK, where the prosecution can and will question why an alibi first presented at trial couldn't have been given at the time of arrest, with obvious implications. Hence "You Do Not Have to Say Anything, but it may harm your defence if you do not mention when questioned something which you may later rely on in court."
  • If you speak French, watch the court scene in Gentlemen Prefer Blondes and have a good laugh.
  • The Fifth Amendment, to an Australian, is the Amendment to the Constitution giving increased rights to aboriginal people, an important constitutional change but not the one everything in Australia who isn't a lawyer thinks it is. And of course in the UK the response would be "What constitution?". The constitution consisting of 900 years of common and statutory law, precedent, and international treaties.
    • Canadians don't have a "Fifth Amendment" at all; instead we have the Canada Evidence Act. You cannot refuse to testify in a court of law and under oath; however, if you testify under the protection of the above-named act, the police and the courts cannot use your testimony as evidence against you(although this doesn't mean that the police can't use your testimony as a starting point for an investigation). There's also a similar provision in the Charter.
    • The fifth time that Canada's constitution was amended was to allow Parliament to sit for longer than usual in the middle of World War I. It, uh, doesn't help you in court much.
    • The Fifth Amendment to the Irish Constitution doesn't say anything. It deleted text from the previous version and renumbered some articles to account for that. Legally important, but would never come up in a trial.
  • In France, you didn't have the right to be legally represented while questioned before 2011! It changed in 2011 in order to respect the European legislation.
  • In Mexico, this is a royal pain in the head for both lawyers and lawmakers there, due of the heavy influence of American culture in Mexican society. American-style Court processes were recently included in the legal code of many Mexican states, and many judges and lawyers had to explain to their clients that Mexico use the Napoleonic and Roman Law and NOT the American Common Law.
  • In any other part of the world: "What's discovery and how is it a court process?"
  • An interesting reversal of this trope occurs when people assume that certain legal facts are true only in the United States. Freedom of speech, for example, is a quintessential American value, but one that is shared by most other developed countries. The specifics vary from country to country, as noted above, but similar protections may be shared among different countries.
  • German judges commonly have to remind people not call them "Euer Ehren" (Your Honor). The correct form of address is "Herr Vorsitzender" (roughly Mr. Chairman). In the same manner, many French call judges "Your Honor" instead of "Mr President".
    • Similarly, a judge is called "My lord" in Canada, but many people without a law degree call them "Your honour" instead.
  • Somewhere, a Finnish teacher of social studies is crying, since the kids remember that Finnish courts have them guys, whaddya call them... A jury! Except that it's not a jury, and it has another name.
  • Due to our television viewing being largely American in origin, many Canadians believe that invoking the right to remain silent means the interrogation is over. Under Canadian constitutional law, the suspect does have the right to refuse to answer questions...but the police have the right to keep asking them. The exception to this is if the suspect asks for a lawyer; the police have to give them the opportunity to consult with one before any further questioning, but once they do, the lawyer doesn't have to be present for any subsequent questioning. This also means the common "Only contact me through my lawyer" demand suspects give in fiction doesn't apply.
    • That's the same as in America- the right to remain silent is EXACTLY that, the right to remain silent. Not the right to stop the questioning (although if you aren't under arrest or being charged with something you can stop it), but the right not to answer questions. Cops can then try to use difficult or incriminating questions which will get a response out of you.
      • Actually the right to remain silent is the right to end the interview, there was a supreme court case a year or two ago where someone after much questioning where he had been silent admitted to something, the defense tried to get it thrown out claiming that he had been exercising his right to remain silent, but the court ruled that simply being quiet isn't enough as you may want to hear what the police have to say, to actually exercise your right you have to explicitly tell them that the interview is over at which point they are NOT allowed to keep questioning you.
  • Judges in the UK do not have gavels. Judges in British TV shows frequently do.
  • Many a German gnashes his teeth every time "Objection!" is used in works produced in Germany. German trials do not work that way; the judge is the one asking the questions, and the attorneys have the right to ask additional questions or add in statements. Most of the proceedings are a discussion of facts, which makes sense, since it's the judge or a panel of judges making the decision in the end. But of course, a thrown-out "Objection!" is much more flashy...
• Empty Cop Threat: Sometimes Truth in Television, in that the threat may be used by the cops or the prosecutor, but they know that it's empty.
• Enhanced Interrogation Techniques: Sometimes Truth in Television, but if you even suggest it in Real Life, be prepared to have your name live on in infamy.
• Frivolous Lawsuit: Sometimes an aversion, although in Real Life most frivolous suits are simply thrown out of court. A lawyer who brings many frivolous suits will quickly run out of money, and a lawyer who places his own interests ahead of his client's wishes could lose his license.
  • Lawyers are also required by law to make a reasonable inquiry into the facts of every case before filing, in order to reasonably ensure that it is legitimate; if they fail to do so, they can face sanctions such as fines, countersuits for abuse of process, misusing the court system, disbarment, and being forced to pay the other side's expenses. Courts and judges absolutely hate it when you waste their time. Do so at your extreme peril.
    • Just how much do judges hate lawyers who waste the court's time? This much.
  • Plaintiffs who bring frivolous suits repeatedly can find themselves barred from filing in court entirely, too.
  • A good portion of companies find it cheaper to just settle before they spend the money to get them thrown out of court. This is a major argument for the United States adopting a "loser pays" system in civil suits, or "the English rule", since it's the law in the UK. On the other hand, a loser pays system makes it very hard to bring a tort suit. While some people may fake slip and falls, plenty of people really were injured.
  • In other common law jurisdictions which aren't America, the general rule is that if you lose the case, you pay the other side's expenses. There are exceptions for certain "charity cases" and messy cases where both sides win on certain points.
• Hero Insurance: There is the Good Samaritan Rule in the US which immunizes people who try to help others from suits for accidentally injuring them (for instance by performing CPR) but it doesn't extend nearly so far as portrayed in TV or movies.
• High Altitude Interrogation: The one interrogation method that is worse than Jack Bauer Interrogation Technique. Rather than torture someone, this takes awful interrogation to new heights by threatening to kill the potential informer. Unlike in fiction, threatening to kill the mook who has inside knowledge of the Big Bad's activities means that you're willing to follow through with that should he be non-compliant, but unless you have other people in custody that would likely know the same information who you can interrogate, too, you would unsurprisingly be ending any chance of attaining that knowledge as well as any chance of uncovering new leads to follow if he's killed. Dead men can't tell tales, after all. Even if it's meant as an empty threat, the informer might think that his interrogator would kill him, anyway, which would also make him much less willing to cooperate.
  • Perp will tell the Copper whatever the Copper wants to hear. Some states apply the Common Law and confession from this is NOT evidence. Some states though apply the Civil Law and the confession IS evidence.
    • The awesome German word for it is "Beweisverwertungsverbot" (disallowment of evidence in court)
• Hollywood Law
• Inhumanable Alien Rights: Most courts wouldn't be that nice to someone trying to capture and exploit a sentient being, even if there's no specific law against it. On the other hand, the issue hasn't come up yet. That we know of.
  • University of the Man in the Pub: the Common Law definition of "Murder most Foul" is "If a man wound a Rational Creature under the Queen's Peace so that he die within a year and a day". Under that definition, if an Alien comes to Britain and commits no crimes and gets murdered, the murderer will be convicted. Other jurisdictions may vary.
• Insanity Defense: In real life, if an Insanity Defense works, the defendant doesn't walk out of court a free man. He walks out of court in the company of a couple of burly orderlies from a mental institution. Whether he ever walks out of there a free man depends on the psychiatrists and psychologists.
  • The insanity defense is also only used in less than 1% of US criminal trials, and successful 25% of the time more or less.
  • In the UK, since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, the judge now has extended options upon giving the verdict, including an absolute discharge. But living with the social stigma of being legally classed "insane" is another matter.
  • 20 states allow juries to find a defendant "guilty but mentally ill," which means that even if the defendant is "cured" of his mental illness he still has to serve prison time.
  • The U.S. Federal Court system works similarly; sentencing and determination of mental health are independent. If a standard sentence for bank robbery is, say, five years, a bank robber who is found mentally unstable would be placed in a mental hospital until fit to serve his sentence, at which point he would serve the entire five years.
  • For that matter, the time spent in the mental institution is often longer than the normal sentence would be. John Hinckley (who attempted the assassination of President Reagan), for example, would probably be free by now had he been found guilty.
    • Nor is a mental institution necessarily more comfortable or safer than prison. Peter Sutcliffe (see below) has been the target of three savage attacks from fellow inmates at Broadmoor, one of which left him blinded in one eye.
  • Cracked.com brings us 7 Bullshit Police Myths Everyone Believes (Thanks to Movies), detailing this trope, among others.
    • And the criminally insane are kept separate from people there of their own volition.
    • And you cannot just legally say "I'm insane" - Typically, most insane people don't know they're legally insane; so if you say "I did this because I was insane", you'll probably not be believed or put in therapy, instead.
  • When this trope is invoked by non-insane defendants on police procedurals it's often to avoid a potentially worse sentence (like the death penalty). This is generally Truth in Television - the majority of insanity defense are used in murder cases.
  • If you're British then doubtless you will have heard of the prison Broadmoor, specifically for these criminals. Some of its notorious inmates include the 'Yorkshire Ripper' Peter Sutcliffe, and the surviving member of the Moors Murderers Ian Brady. Its warning siren is extremely loud, tested at 10am every Monday morning, and children from Berkshire are told to stay inside if they hear it at any other time.
    • The old jury verdict was "Not Guilty by reason of Insanity", Then, a nutter tried to assassinate Queen Victoria, so the verdict was changed to "Guilty but Insane" and changed back in the 1960s. At Sutcliffe's trial, the defence attorney stood up on his hind legs, fixed the Jury with his Beady Eye and offered the Chewbacca Defense, "My client's crimes are so horrific that he must be mad, therefore you have to let him off." They declined.
  • Or just because defendants think that insane asylums are easier to break out of/be broken out of than prisons.
  • Many of the mistakes may be caused by confusion with a simillar, but distinct, defense called "diminished capacity", which puts the burden of proof on the prosecution and allows the defendant to go free if successful (since it results in a regular "not guilty" verdict). It's typically more popular than the insanity defense for precisely those reasons.
• Interrogation by Vandalism: Damage to property (or threatening to) is illegal anyway, let alone when used to get information.
• Jack Bauer Interrogation Technique: If it's found to have been used in building a case, the prosecution may as well go home. Since the suspect obviously did not waive his/her right against self-incrimination, all the information that resulted from it and everything that it led to will be declared inadmissible. This is called "Fruit of the Poisonous Tree": everything that resulted from a tainted procedure is tainted itself.
  • This is not the case in Germany (and, indeed, a great shame since there had been a public and even political discussion about permitting the police to use just a little bit of torture in some cases - this was not even five years ago), where it has been ruled by the highest Court, the Federal Constitutional Court of Germany, that there is NO need to instill a Fruits of the Poisonous Tree policy. However, this seeming Aversion of the trope is then subverted, as the courts have been very clear that a Beweisverwertungsverbot (disallowment of evidence in court) is still instilled if it is neccessary from stopping police and other state forces from using unlawful procedures.
  • That said, evidence obtained as a result of a Jack Bauer Interrogation Technique can still be introduced at trial if the prosecution can establish that they would have discovered the evidence anyway in the course of a normal police investigation. This principle is known as Inevitable Discovery.
  • Of course, if you don't care about going to trial and you're just trying to prevent a terrorist attack, that would be a justification for this trope. You may not have Hero Insurance, but you'd be hard pressed to find a jury who'd convict somebody for using whatever means necessary to stop an attack in progress, even if it means letting some guilty men go free because the things you found out can't be used as evidence.
  • And even with the fruits of the poisonous tree doctrine (which applies to illegal searches also), you have to have standing to complain about a rights violation for that to get you off. In other words, it has to be your rights that the cops violated, not someone else's, for all of this to help you. If they find your drugs in your friend's car in an illegal search, well, you're out of luck. Same thing if they torture your friend and he fingers you (although it would be harder to find an appropriate hearsay exception to get it in than in a confession).
    • The standing rule is demonstrated quite well by the U.S. Supreme Court decision in United States v. Payner, the so-called "briefcase caper", where an IRS agent used a variety of subterfuges to get information from a Bahamanian bank official that, if they were shown in a movie or TV show, would probably trigger a lot of entries on this website or at least have the audience going "Yeah, right, they'd never get away with using that in court" (Just go read it). But they did ... when some of the documents led to evidence that an Ohio businessman was cheating on his taxes with an offshore slush find. And the Supreme Court allowed this because the businessman didn't have standing since his rights weren't violated.
• Murder Simulators: Often a source of There Should Be a Law moralizing. But there have been many attempts to create such a law, and American Courts have shot them all down. Australians and Germans have not been so lucky.
  • At least the German youth has not been so lucky. When you reach the age of 18 you can buy any game that has been banned due to violence. Not though if it is banned for other reasons that go against the "Grundgesetz" (German constitution).
    • And even then, parents and legal guardians are free to buy such games for their children and allow them to play them. The only limitation is that stores are forbidden to sell or rent games and movies to minors without parental consent. Games and movies that are blacklisted have the added restriction that they may not be advertised or displayed where it can be seen by minors, but since blacklisting almost always occurs after release, the effect is almost irelevant. Except when you are 15 and your mommy won't buy the game for you.
• Not Proven: Truth in Television. It's not enough for the police and prosecutors to be certain, they have to have a sufficiently strong legal case, built on admissible evidence. Quite a few real-life cases fall under this umbrella.
  • Scotland even has Not Proven as a possible outcome in jury trials with the options Guilty, Not Proven and Not Guilty.
    • The "Scots Verdict," "Not Proven," has been translated as "Not Guilty and Don't Do It Again." (It has the same legal effect as an acquittal but perhaps allows the jury to feel better about it.) People have been know to appeal the "not proven" verdict because the stigma attached.
    • Common Law assumes Innocent unless proven Guilty: you must be proven guilty beyond a reasonable doubt. Civil Law assumes the balance of probabilities; if you probably done it, then, you are liable. Mary Queen of Scots tried to impose the Civil Law on Scotland and the compromise was the Scots Verdict: "Ye probably done it, but there is nae enough evidence tae hang ye."
  • In Germany, you can be found "Not Guilty" and "Not Guilty because of reasonable doubt", meaning it's kind of like second-class acquittal while not in law then at least socially. Sadly, because one won't have an "legal disadvantage" because of it, you are not allowed to appeal.
• Off on a Technicality: Truth in Television again, less often than a lot of people realize, and mostly at the appeal level than in the original trial. At that, most fictional examples of this trope show it happening much more frequently and for reasons that would never stand in a real trial, often involving dismissing evidence through a grand misappropriation of Miranda Rights.

Bob Ingersoll: In my law firm I am considered one of the more successful lawyers when it comes to getting evidence deemed inadmissable, which I have done one time in my twenty-five years at the firm.

• • Of course, without this we wouldn't be able to have The Punisher or Dexter and their ilk hunt down guilty people that the system can't touch.
  • And even if the appeals court finds a technical flaw, usually the remedy is just a new sentencing phase, or a new trial in which the defendant is convicted again anyway. This is exactly what happened in Miranda's case.
  • Appeals courts also don't have to hear an appeal, and will rarely do so unless there is a legal issue. If an appeals court accepts an appeal based on evidence there was almost certainly a gross miscarriage of justice.
    • Either that, or it's a response to political pressure regarding a sentence that the public views as either too short or too long or a highly controversial 'guilty' verdict. Usually, they'll dig up some vague technicality in those cases (pretty much any trial can be declared legally unjust if you twist the law enough) that normally wouldn't be grounds for appeal.
• Omnidisciplinary Lawyer: Many TV lawyers seem to do both civil and criminal work, in the latter case both prosecution and defense, etc. In Real Life try asking a wills and estates lawyer about antitrust law or criminal procedure and see how far that goes.
  • Actually, there are some lawyers who have civil and criminal practices. Johnny Cochrane brought a lot of civil suits for police brutality in addition to defending people, and most small towns have at least one lawyer or small firm who does DWI cases in the criminal courts and divorces in the civil courts. But yes, it's generally true, as the opening of Michael Clayton suggests, that the guy who handled your company's latest merger is rarely the guy you want representing you in a hit-and-run.
  • As a general rule of thumb, in small towns you'll find "country lawyers" who do a little of everything, for typically small stakes. For cases involving large sums of money or very complex, specialized areas of law, you'll want an attorney who specializes in that area. It's just like the difference between a general-practice physician and a specialized surgeon.
• One Phone Call: As long as you have access to legal counsel, you have no legal right to ANY phone calls. If, at the discretion of the custodians, you are permitted access to a phone, it's not necessarily just one call - if you can't reach the person you're trying to reach, you'll be allowed second and subsequent calls.
  • Not to mention there is no guarantee of privacy when using said phone. Police are free to listen in on the conversation (without your knowledge, of course) and use whatever was said by either party as evidence against you.
• Only Bad Guys Call Their Lawyers: You are always entitled to legal counsel, whether you have committed the crime you are accused of or not. Doing so does not make you guilty by default. (That's sort of the point of having legal counsel, when you think about it...)
• Plea Bargain: The big difference between plea bargains in media and plea bargains in real life is that in real life, the prosecutors will generally offer a plea bargain only before the case goes to trial. If the defendant agrees to plead guilty, he waives his right to a trial, saving the state time and money in exchange for a reduced sentence. If he decides to plead not guilty and go for a trial, there is no point in bargaining further. In reality, most criminal cases are plea-bargained and never reach the trial stage. (This is not the same as a civil trial, in which a settlement can be negotiated any time in the trial process.)
  • In some (but not all) jurisdictions, the plea bargain can occur at any point before a verdict is rendered. Of course, unless the prosecutor thinks you're actually winning the case, the deal won't be nearly as good. The prosecutor does, however, still have a vested interest in keeping time in court to a minimum.
  • The Plea Bargain is a form of Eagleland Osmosis. In civil law nations it's simply not possible. Even if you plead guilty they do a full trial to establish how much time you get. In the other Common Law nations, it's officially frowned on and officially doesn't happen. Unofficially it happens all the time, but it's considered very impolite to suggest it. In the United States, though, it's the dominant form of how criminal cases are resolved, so that less than 3% of cases go to trial. It serves a huge purpose in making the justice system not drown in it's own weight and encourages conspirators to break for a lesser sentence. This has been a huge issue at international tribunals. Depending on conditions in the facility a suspect is held in pre-trial, it could also be seen as coercing a confession.
    • Actually, at least in Switzerland, it is now allowed for crimes and misdemeanors with a maximum punishment of 5 years of prison. Constructed for those cases where a Big Business is interested in getting over with it and the prosecution doesn't have a PHD in economics to easily prove fraud or similar, it nevertheless allows pretty screwed tactics and movements.
    • It's an option in France for cases with a possible sentence under 10 years, but over that they must have a full trial.
• Read the Fine Print: Contracts will include all manner of outrageous stipulations hidden in the clauses. However, including clauses in an Unreadable Disclaimer and/or that are too outrageous are illegal under contract law. For that matter, just because something is written down and signed by two parties does not automatically make it a contract.
  • Usually it's more a question of the unreasonable disclaimers or unreasonable terms being unenforceable rather than illegal (which, depending on the circumstances and the jurisdiction, may render the whole contract null and void or only the offending provision). Generally the court's willingness and ability to strike out terms of a contract will depend on the parties - large businesses who had their own legal departments and/or outside counsel review the document normally will be bound by the small print. The law tends to be more sympathetic in the case of consumer contracts.
    • The additional leniency when it comes to consumer contracts has been formalized in a very simple way in Swedish law: there are two laws, both defining what the applicable kind of contract is, and then stating a number of rights when it comes to contracts. The rights supercedes the contract when it comes to consumer contracts, while the contract supercedes the rights when it comes to other contracts.
  • Typically, if there is any ambiguity on a certain point of the contract and it is contested, the ruling will usually go against the party who drafted the contract to begin with. This is done in an effort to avoid encouraging excessive amounts of fine print. Thus, it is usually in the drafter's best interests to make the language as clear as possible. Now, if the other party doesn't understand what's clearly written, that's their problem.
  • Contract Law is almost a religion among lawyers and judges. The Number One Rule is, "If you signed it, you understood it and agreed with it". Otherwise do not sign it. While technically, the judge does have the power to void an unfair contract, the definition of "unfair" in contract law means extremely unfair. Judges hate to break contracts and will not do it 99.999% of the time. Again, the law says if you signed it, then you understood and agreed with it all. Never sign anything you don't understand and agree with because you will be bound by it.
    • Depends on the country. In most real estate transactions in China, the contract isn't the final word, and people routinely invoke "changed circumstance" to get a judge to rewrite the contract.
    • Unless you can't read the language the contract was written in. Then you might be able to get away with signing it if its contents were not explained to you correctly.
      • Not in Britain. Illiteracy is no defence if the terms have been explained to you.
      • In Australia, even if you can't read the language, and the terms have not been explained, you will still be bounded unless it is clear (or ought to be clear) to the other party that you can't read it. Interestingly, under the same principle (Unconscionable Dealing), you can't avoid a contract if your mind was not sound at the time of the contract (you may have been drunk, your med was not working or your evil side was acting up) but the other party was not aware of it. Of course, whether a party was aware of it is decided objectively, so chances are, if the terms are weird and obviously won't be agreed on by a sane person, then it ought to be clear to the other party that you're not in your right mind.
  • In American courts the official position of most federal courts is that a Terms of Use agreement applies when you are forced to click "okay" to install/use the program it is attached to, and is unenforceable if you can install/use the program without seeing it. This includes 'choice of law' provisions, in which you effectively sign away your right to sue the software publisher in a court of your choosing and instead have to arbitrate/sue in their home district.
    • In Canada, there is legislation mandating the minimum size of the typeface used for a document to be a legal contract. Trying to get too-fine-print past someone will therefore likely fail, or at least not hold up in court.
  • And, of course - in Australia, at least - this only applies where a contract has actually been signed. When it comes to the vast majority of contracts which aren't signed, judges are much more willing to break or alter the contract, and in cases where the other party didn't even see the terms of the contract until after they had entered into it (say, buying a ticket with the terms written on the back) it is not at all uncommon for the contract to be rendered void.
    • It should be duly noted that Australian law generally assumes that a person is aware of the existence of terms and conditions written on a ticket, and he will be legally bound by those terms, unless he can prove to the court that such a term is unusually onerous (very, very unfair and not usually expected on a ticket) or that he was not able to have a reasonable opportunity to learn of the terms and conditions before buying the ticket (which is difficult to prove, as it is generally assumed that it is the duty of the buyer of the ticket to check the terms and conditions of the ticket before buying (by looking them up on the Internet or asking for them from the supplier of the ticket)).
    • Also, be aware that when you entered a contract, it is generally assumed that you are aware of the existence of terms and conditions and that if it isn't made available to you - you must ask for it. If the other party can prove that you had a reasonable opportunity to learn of exactly what the terms are before entering the contract and you chose to enter the contract without trying to find out the terms and conditions first, you're effectively screwed.
  • From 1/1/11, Australia's introduced the Australian Consumer Law, which prevents standard form contract (generally, contracts that are not open to negotiation) for consumers (typically people who buy goods for personal or household use) to have disclaimers against low quality, unsuitability or liability caused by the products, unless it is reasonably necessary to protect the interest of the supplier. However, care must be taken to ensure that the person you're dealing with is a supplier (so private selling or shady traders won't be affected by the law).
  • In Germany, there's a special law for general terms and conditions of contracts that are predefined by the seller or service provider and not negotiable. The most important part of the law is that anything that would be "unexpected" to find in such a contract is automatically null and void and replaced by the standard terms for business when nothing else is negotiated. These standard terms are usually much more beneficial for the customer than what the business would be legaly allowed to put into a contract. This encourages business owners to very carefully check their general terms and conditions because if any mistake is found, it's them who will get screwed.
• Reading Your Rights: On TV always done when someone is arrested. In Real Life it only needs to be done before interrogating someone or if the police hope to use what they blurt out after arrest against them (which means it is usually done at the time of arrest, if the crime is a serious one, since the police want to be able to use anything the suspect may say during the drive to the station.) The big failure in media, though, is when the police continue talking to the suspect after he's asked for his lawyer, but before the lawyer is present. That's an excellent way to get evidence thrown out. The Police will also read the rights off of a card, never from memory, nor will they stop if the suspect interrupts them.
  • Many jurisdictions actually do "read them their rights" as soon as possible. That way, if the guy says something incriminating in the police car, it's admissible evidence. However, if the police are just hauling you off for drunk and disorderly, or similar crimes, they don't bother.
  • Sometimes, in media, a careless cop "blows the arrest" by not reading the suspect his/her rights at the time of arrest and the suspect has to be released. In real life, the "Miranda Warning" is not necessarily to a lawful arrest, only to making the suspect's post-arrest statements admissible in court. In many if not most cases, a suspect can be convicted on other evidence than statements out of his/her own mouth.
    • This is one of the few law tropes Law & Order gets right every time they invoke it.
  • Another bit that occasionally gets ignored is that people arrested by private citizens (including Security Guards and Officers) do not have to be read their Miranda rights, and statements made before being turned over to police custody are fully incriminating.
    • Most works seem unaware that a Citizen's Arrest is even a thing, leading to several plot lines in various media where a character is labeled a vigilante for actions that are completely legal.
  • Also of note is that the right to silence is limited to that. It doesn't get you out of providing blood, hair, or DNA in compliance with a legitimate court order.
• Spousal Privilege: Fictional uses of this tend to be considerably broader than is justified.
• Stop or I Will Shoot: Cops in fiction routinely threaten and use lethal force against suspects that nobody at the moment would reasonably believe posed any danger to life or limb.
  • And most (if not all nowadays) department specifically prohibit threatening to shoot or firing warning shots.
• Sued for Superheroics: Sometimes an aversion, as they would be sued in Real Life
• There Is No Higher Court: Lots of cases are appealed at least one step up the chain. (See Off on a Technicality.) Very few get to either State or Federal Supreme Court level, though. It has to involve constitutional issues, not just regular errors, for this.
  • This is not actually true. The federal Supreme Court does a lot of work on clarifying federal statutes on which lower courts have disagreed that never touch on constitutional issues, though admittedly it's better to allege a constitutional violation if you want to get to the Supreme Court. It's egregiously wrong in state courts, though. Most state high courts will do more work on statutory, procedural, or other issues than they ever do on constitutional issues.
  • Then why, in Law and Order, are criminal trials routinely held in the Supreme Court? Because the Supreme Court of New York is actually the lowest level of criminal court, with two further layers of appeal courts above it. Presumably, the framers of the state constitution got the org chart upside down....
    • It actually has to do with the fact that the courts in the 19th century were insanely corrupt so to defang the Supreme Court, they just made them the lowest court.
    • Though there was one episode of Law and Order where Jack McCoy argued a case before the U.S. Supreme Court. Oddly, the episode ended just as the clerk was walking up to hand them a copy of the decision.
    • As you may have gathered, the highest court in New York is the "Court of Appeals," usually the name used for an intermediate court. The intermediate level in New York is called the Appellate Division, for some reason.
      • This nomenclature is not unique to New York (see court systems in Maryland, Virginia, the Canadian province of British Columbia and, as noted below, Australia). It was how common-law courts in British colonies were organized and named until a certain point in the 19th century after said courts were created. In those systems the Supreme Court is "supreme" in that it's the highest level at which a matter of fact can be decided; the Appellate Division and the Court of Appeals above the Supreme Court are limited to having final say on matters of law before them. The Appellate Division is actually that part of the Supreme Court that has appellate jurisdiction, as the Supreme Court also has original jurisdiction over things like divorces and certain major crimes (i.e., cases like those are heard first there).
  • It's lots of fun once you get to Commonwealth jurisdictions. Australia's states have the New York system of ascending tribunals with the Supreme Court not quite at the top, which is why Law and Order makes complete sense to us- Magistrates, District, Supreme, Court of Appeal/Criminal Appeal. We also have the option of appealing to the Federal High Court of Australia, which is the equivalent to the United States Supreme Court. We can skip the Court of Appeal if we want to and don't need a federal question to do so.
    • As well, our highest Court, the High Court, is named after the High Court of Justice of England and Wales (Which ironically consists of about 3 different courts), which is equivalent to the New York State Supreme Court (There's the Court of Appeals on top, and then the House of Lords, now the Supreme Court of the United Kingdom. I like the old name.) The English High Court doesn't deal with Criminal cases; the Crown Court does. The Australian High Court can and does deal with Criminal cases routinely. Has your mind exploded yet?
      • And that doesn't count appeals to the European Court of Human Rights. It was much easier in the 1920s when the highest court was Lords.
  • And don't get me started on Brazil, possibly the biggest aversion to this trope ever. Due to the lack, until very recently, of Erga Omnes^[1] in supreme court decisions in Brazil, any judgment or 'precedent' made by the court was valid only for that specific case only! So virtually anyone who had the money and patience could and would keep making appeals all the way up to the supreme court. And why would they want to do that, you might ask? Simple: if you're not on trial for a violent crime or haven't been convicted of a previous one, you don't have to go jail until your final appeal... which can take over a decade. Sometimes, allowing for enough time to pass and the stature of limitations to kick in. No wonder the court judges over 100.000 cases per annum!
• Wrongful Accusation Insurance: In Real Life, there are two things wrong with this scenario:
  1. If someone has been successfully framed for a serious crime, they most likely aren't free to investigate it. They're in jail.
  2. To the legal system, why you committed a crime is utterly irrelevant. Having a good reason doesn't get you any points unless, say, it gets murder knocked down to involuntary manslaughter.
• The reading of the will. It may make for good drama, but it doesn't happen in real life. What really happens is that the executor, spouse, or other next of kin will contact the decedent's lawyer to see about the will. The lawyer will then meet with the executor, and take the will through probate court. In most cases, unless you are the executor, or are a beneficiary who specifically demands that the lawyer show you the will, you will probably never see it. You will simply receive a check, certificate of title, or whatever your inheritance is, be told that it is your inheritance, and asked to sign a receipt.
  • The will actually also doesn't mean a great deal. It's the Probate that's granted by a Court after a person's death which is important (it's not actually the dead person who gives the property out- the courts do that through the Probate.) Sure, the Court will usually take the will's instructions into account when cutting its probate orders, but if the will is contested, the will may be entirely ignored.
• No motive - in real life, most homicide detectives consider "motive" to be of minimal importance in the investigative process. They tend to be a cynical lot, and are more than willing to believe that people will kill each other for obscure, petty, trivial, and/or nonsensical reasons, or even for no real reason at all. Tell one of them that a suspect is innocent because they have no motive (or every reason not to have killed the victim) or that another suspect looks good for the crime because they have a particularly strong motive, and you'll just get a glorified shrug. Prosecutors tend to care a bit more because they want to tell a "story" of what happened, and want to have a motive to present to the jury and complete that story. The detectives tend to think that a jury's desire for a motive is an example of The CSI Effect at work.
  • Under the statutes of most states, the prosecution doesn't need to prove motive. It only needs to prove the defendant acted with intent, or something similar like "prior calculation and design" (as Ohio puts it). As noted, motive sells the case to a jury better.

1. ↑ basically, the power to make a decision be binding for all similar cases