Anatomy of a Scandal is a six-episode limited fiction series now streaming on Netflix. The story involves the trial of an MP, accused of raping his research assistant, Olivia Litton, played by Naomi Scott. Rupert Friend plays James Whitehouse MP, the privileged Cambridge graduate and the Prime Minister’s best friend, who stands accused. His wife, Sophie, is played by Sienna Miller. The prosecuting attorney, Kate Woodcraft Queen’s Counsel is played by Michelle Dockery (Downton Abby’s Lady Mary). The defense attorney, Angela Regan QC, is played by Josette Simon.
The Law Stuff: Fact or Fiction?
Some of the legal aspects are dead-on accurate and some wouldn’t fly in an American court. The first thing I noticed was QC Kate stalking to court with an attitude of “I’ll walk right over you if you get in my way.” That is exactly how lawyers walk to court. Not sure why but hang around the courthouse and you’ll see it. I’m thinking it’s in part because of adrenaline dumping into their systems, plus worrying they won’t remember everything they need to say, plus fear of surprises, plus worrying they will show up late.
Friend or Foe? – Fictiony
One aspect that would be atypical in America is the friendship between prosecuting and defense QCs. That is highly unlikely in America, where prosecutors and defense attorneys are suspicious of each other and tend to have conflicting world views. Generally, prosecutors think defense attorneys are scum and defense attorneys think prosecutors are unfeeling totalitarian automatons.
Bail – Fact
When James is arraigned, the only condition of bail that is sought is the surrender of his passport and no contact with prosecution witnesses. This is common in the United States, but there may be other restrictions depending on the charges: a bail bond or a third-party custodian.
Opening Statement – Not Opening Argument!
The opening statements are briefer than in real life. One reason is that there is only one factual issue: whether the assistant consented to sex in an elevator. Another reason is that in real life, attorneys try to say everything three times figuring that most people miss two out of the three mentions. Also in this series, the openings tended towards argument. In American law, the opening is only for laying out the evidence—as persuasively as one can—but without hyperbole.
Courtroom Theatre – Fact
The first witness, the alleged victim, Olivia Lytton, appears in modest make-up, dressed like a schoolmarm. In her flashbacks, her clothes are more sophisticated business attire, her hair is styled, and her make-up is dramatic. In real life, it is typical for attorneys on both sides to advise their witnesses and clients to dress conservatively—if not to prevail upon the jury a certain character, then at least to prevent the jury from drawing unfavorable conclusions based on the witness’s appearance.
Looping – Fact
During questioning, the prosecuting QC sometimes repeats the victim’s statements in a question form to which an American attorney would object. It’s objectionable because it’s cumulative and a waste of the court’s time. However, there is a strategy for repeated testimony correctly called “looping.” That is when the questioning attorney takes the witness’s answer and uses it to ask for more information, such as:
Q. Did you see something unusual on the night of May 23?
A. I saw a car drive onto the sidewalk and run over a pedestrian.
Q. What color was the car that ran over the pedestrian?
A. It was a blue car.
Q. What did the blue car do after it ran over the pedestrian?
A. It drove away.
The strategy behind looping is, again, the belief that most jurors only catch about one-third of what they hear.
Badgering the Witness – Fiction
During QC Kate’s examination of Olivia Lytton, she gets a little snarky. The prosecutor does not object, but the judge gives Kate a look. “Badgering the witness” is not a proper objection. “Argumentative” is. Traditionally, an American attorney would enter into the fray to protect her witness, by standing, objecting, thus drawing attention and giving the witness a chance to recover. That can be overdone. Once I was in a trial where one of the defense attorneys argued every question for at least twenty minutes. On the third day during a break, the jury caught me near the elevator and begged me to make her stop. I had to report the extrajudicial contact to the judge in court with the jury absent. No one got into trouble but Ms. Defense Attorney’s calmed down a little bit.
Fierce engagement is only a strategy dependent upon the lawyer and circumstances. In some cases, the attorney doesn’t want the jury to think she’s hiding something by interrupting the testimony. Or she may not intervene because she wants the jury to see how strong and committed the witness is.
However, QC Angela’s cross-examination of the victim on the issue of consent was effective and quite realistic. It felt like a lawyer wrote it.
Closing Argument – Fact
The closing arguments were simpler than they would have been in court, but well written. Both attorneys got their points across. Both attorneys focused on when prior to the rape in an elevator, the victim said, “not here.” The prosecutor argued that “not here” means “no” and the defense attorney argued that “not here” meant “yes, but somewhere else.”
While still in high school, she was one of the illustrators of the original Dungeons and Dragons. Art seemed an impractical pursuit – not an heiress, wouldn’t marry well, hated teaching – so she went to law school instead. When not writing or practicing law, Keenan can be found oil painting, studying the Irish language, or hanging out with her friends at mystery conventions.
6. Sales: Is the Publisher Selling Books?