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No gavels, no hearsay and lots of drinking: a law expert ranks legal dramas by their accuracy

<p><em><a href="https://theconversation.com/profiles/dale-mitchell-1468293">Dale Mitchell</a>, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a></em></p> <p>From Elle Woods in Legally Blonde to <a href="https://www.tandfonline.com/doi/abs/10.1080/10383441.2015.1087367">Jennifer Walters in She-Hulk</a>, Atticus Finch in To Kill a Mockingbird to Denny Crane in Boston Legal, our popular culture is often where we first see and witness legal practice.</p> <p>Sometimes this comes via the silver screen, other times television. But it would be wrong to think that all we see on legal television shows is accurate – even when it claims to capture reality.</p> <p>Most legal dramas are terrible at capturing the realities of law.</p> <h2>Not accurate: Law(less) and (dis)Order</h2> <p>Law and Order (1990-) innovated television drama by showcasing both the investigation of a crime by police, and then its prosecution in court. With its multiple spin-offs, including Law and Order: Special Victims Unit (1999-) and the shortlived Law and Order: Trial by Jury (2005-2006) (which had the <a href="https://www.youtube.com/watch?v=aolG65V1Dx8">best theme song of all the series</a>), the Law and Order franchise is a televisual legal juggernaut.</p> <figure><iframe src="https://www.youtube.com/embed/aolG65V1Dx8?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <p>As with most serials, Law and Order presents the criminal justice system as moving quicker than you can say <em>dun dun</em>. This couldn’t be further from the truth. The mean duration of criminal law matters in Australian higher courts was <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">almost one year</a> (50 weeks) across 2021-22.</p> <p>While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s5.html">procedural rules in civil matters</a> require courts to facilitate the “just and efficient resolution of disputes at minimum expense”, in criminal law, speed and efficiency must not be prioritised over accuracy: a person’s liberty is at stake.</p> <p>Most criminal matters do not proceed to a full trial as an accused will often plead guilty to the charges. As a result, the matter proceeds to sentencing without prosecutors needing to prove the offence. The rates of this occurring are quite alarming. <a href="https://www.abs.gov.au/statistics/people/crime-and-justice/criminal-courts-australia/latest-release">Data across 2021-22</a> reveals over 75% of defendants in Australian courts entered a guilty plea, and almost four in five criminal convictions (79%) resulted from a guilty plea.</p> <p><a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0009/1705761/32_1_8.pdf">Research suggests</a> defendants plead guilty for a variety of reasons, including to avoid the cost of a trial and to receive a lesser sentence. <a href="https://theconversation.com/pandemic-pushed-defendants-to-plead-guilty-more-often-including-innocent-people-pleading-to-crimes-they-didnt-commit-165056">Data from the United States</a> suggests the pressures of the pandemic led to innocent people pleading guilty to crimes they didn’t commit.</p> <p>If Law and Order was a more accurate reflection of criminal law, matters would proceed immediately to sentencing due to guilty pleas. And should an accused be found guilty, a chunk of their sentence would be reduced by time served awaiting trial.</p> <figure><iframe src="https://www.youtube.com/embed/60GV5lv8h3o?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: Suits</h2> <p>Suits (2011-19) centres around law firm partner Harvey Specter (Gabriel Macht) and his mentorship of Mike Ross (Patrick Adams) – the “lawyer” who never graduated law school and provides legal advice thanks to his photographic memory.</p> <p>This is, obviously, a brutal ethical breach for all involved, and clearly fraud. In Australia, law students who present themselves to be lawyers are <a href="https://www.abc.net.au/news/2016-09-07/law-graduate-jacob-reichman-fined-posing-solicitor-gold-coast/7824324">subject to sanctions</a> by the Legal Services Commission. They can <a href="https://www.lawyersweekly.com.au/biglaw/35821-fake-lawyer-cops-suspended-jail-sentence">cause harm to clients</a> who have hired their services. And the Legal Admissions Board may <a href="https://www.qlsproctor.com.au/2020/11/chief-justice-wants-answers-before-considering-lawyer-impersonators-bid-to-become-legal-practitioner/">deny their entry</a> into the profession.</p> <p>(Spoilers) Ross is eventually sentenced to two years in prison for this fraud, a similar sentence to <a href="https://www.law.com/thelegalintelligencer/almID/1202786675709/">a recent case in the United States</a>, but he only serves three months before solving a crime and earning early release. More unrealistic than this early release is that Ross does fairly quickly thereafter gain admission to the profession, which seems unlikely to occur so soon after such an act of fraud.</p> <p>While Suits has left its mark(le) on the popular imagination of law, it fails to address one of the primary duties of civil litigation: the duty of disclosure.</p> <p>The MacGuffin-ing of law is common in TV serials. It’s the “smoking gun” found on the day of the trial, or for the lawyers in Suits, the random document which shows up <em>during</em> the trial to turn the case - dramatically presented by our protagonists as they flail into court armed with this data sans ethics.</p> <p>This is not quite accurate.</p> <p>In adversarial legal systems like Australia, New Zealand, the UK and the US, civil litigation rules <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s211.html">require parties</a> to disclose to one another all documents in their possession or control which are directly relevant to a matter in dispute.</p> <p>This is a continuing duty, so if you discover such a document at any time during the case, it must be disclosed. While <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s212.html">exceptions</a> based on various privileges may apply, this essentially means civil litigation must be run in an “all cards on the table” manner. Randomly producing undisclosed material at trial requires the leave of the court and may result in orders of contempt and <a href="http://classic.austlii.edu.au/au/legis/qld/consol_reg/ucpr1999305/s225.html">cost penalties</a>.</p> <p>It’s not like the lawyers of Suits have ever really been concerned about ethics, though.</p> <figure><iframe src="https://www.youtube.com/embed/wUh9jomHZp4?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Not accurate: How to Get Away with Murder(ing rules of evidence)</h2> <p>While most lawyers would support making it a criminal offence to critique Viola Davis, How to Get Away with Murder (2014-20) presents one of the most common offences within legal dramas: the haphazard approach to rules of evidence.</p> <p>Annalise Keating (Davis) and her ragtag team of morally illiterate law students (although I never see them studying?!?!) manipulate people to obtain evidence and then dramatically prompt witnesses on the stand to read this information into the record, or otherwise “sneak” it into the trial.</p> <p>This is not accurate. And it ignores the basic reality that so much of legal practice is about not just obtaining evidence, but ensuring that evidence is admissible in court.</p> <p>One of the most important rules of evidence deals with <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/ea199580/s59.html"><em>hearsay evidence</em></a>. A court cannot allow evidence to be considered if its reliability is unable to be interrogated. Witnesses can only present evidence that they saw, heard or perceived themselves. Unless an exception to the hearsay rule applies, such evidence would be inadmissible.</p> <p>Like in Suits, these approaches to presenting evidence may have serious implications. This poor trial management results in <a href="https://www.aic.gov.au/sites/default/files/2020-05/rpp074.pdf">delays to criminal trials.</a>.</p> <figure><iframe src="https://www.youtube.com/embed/rMB_Gw5-T-I?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Fisk</h2> <p>Fisk (2021-) follows Helen Tudor-Fisk (Kitty Flanagan), an established contract lawyer whose personal dramas lead her to move to the boutique Melbourne probate law firm of Gruber and Gruber (played by Marty Sheargold and Julia Zamero).</p> <p>Fisk excels in showing the importance of lawyer-client relations and the word-of-mouth that sustains much of small legal practice. It’s the anti-Suits, and Fisk is more powerful for it.</p> <p>The discussions of wills and estates and most basic legal principles in Fisk are mostly sound – and the show doesn’t need to get into “legalese” as matters are resolved out-of-court.</p> <p>This is a distinct reality of law: litigation is a last resort. Forms of <a href="https://www.qls.com.au/Practising-law-in-Qld/ADR/Alternative-Dispute-Resolution/Types-of-Alternative-Dispute-Resolution-(ADR)">alternative dispute resolution</a>, including mediation, negotiation and conciliation, have become the primary way of resolving legal disputes.</p> <p>Fuelled by <a href="https://www.ag.gov.au/legal-system/alternative-dispute-resolution/civil-dispute-resolution-act-2011">legislative changes</a> which require the exhaustion of alternative dispute resolution measures before proceeding to litigation, and a pursuit of reduced costs, the drama of trial is not something anyone should yearn for.</p> <figure><iframe src="https://www.youtube.com/embed/N1Qt0Wo1gGo?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <h2>Accurate: Rake</h2> <p>Cleaver Greene, a character said to be loosely based on the career of a Sydney barrister, shows us the absolute madness of work as a “<a href="https://nswbar.asn.au/the-bar-association/senior-counsel#:%7E:text=Senior%20counsel%20are%20barristers%20who,a%20QC%20or%20queen's%20counsel.">silk</a>”. Rake excels at showing the reality of law. The show raises interesting and accurate questions of law (yes, it is true there is no <a href="https://opus.lib.uts.edu.au/bitstream/10453/18992/1/2011006119.pdf">explicit offence</a> of cannibalism in New South Wales) and presents Australian court process accurately.</p> <p>Thankfully, there’s not a gavel in sight. <a href="https://www.survivelaw.com/post/941-working-hardly-random-facts-about-the-gavel">Australian courts <em>do not</em> use gavels</a>, and their presence in legal dramas in Australian and UK courts shows a lack of attention to detail. The presence of the gavel as a symbol of justice is <a href="http://www5.austlii.edu.au/au/journals/NSWBarAssocNews/1994/17.pdf">an entirely American invention</a>.</p> <figure><iframe src="https://www.youtube.com/embed/qWWI2EdOssk?wmode=transparent&amp;start=0" width="440" height="260" frameborder="0" allowfullscreen="allowfullscreen"></iframe></figure> <p>Rake is accurate, in part, because the site of drama is rarely the courtroom, but rather Greene’s personal life. The accuracy of that element for law I will leave up to the jury. But with a <a href="https://www.tandfonline.com/doi/abs/10.1080/13218719.2013.822783">2014 study</a> finding 35% of lawyers engaged in hazardous or harmful drinking and another showing <a href="https://www.abc.net.au/news/2019-08-15/study-finds-high-rates-anxiety-depression-in-legal-profession/11412832">high rates of anxiety and depression</a> in the legal profession, the evidence is compelling.<!-- Below is The Conversation's page counter tag. Please DO NOT REMOVE. --><img style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important;" src="https://counter.theconversation.com/content/212880/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" /><!-- End of code. If you don't see any code above, please get new code from the Advanced tab after you click the republish button. The page counter does not collect any personal data. More info: https://theconversation.com/republishing-guidelines --></p> <p><a href="https://theconversation.com/profiles/dale-mitchell-1468293"><em>Dale Mitchell</em></a><em>, Lecturer in Law, <a href="https://theconversation.com/institutions/university-of-the-sunshine-coast-1068">University of the Sunshine Coast</a></em></p> <p><em>Image credits: Getty Images</em></p> <p><em>This article is republished from <a href="https://theconversation.com">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/no-gavels-no-hearsay-and-lots-of-drinking-a-law-expert-ranks-legal-dramas-by-their-accuracy-212880">original article</a>.</em></p>

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5 of the most historically inaccurate movies ever

<p><span>Facts, schmacts! You won’t want to look to Hollywood for history trivia – here’s why.</span><span></span></p> <p><strong>Shakespeare in Love</strong></p> <p><span>Academics in Shakespeare and Renaissance history found so many glaring errors in the much-beloved romance <em>Shakespeare in Love</em>. Nothing was accurate, from the props to the ways the characters talked. It was basically like the 1990s dating scene, except set in Elizabethan England. Shakespeare is also seen writing a play called Romeo and Ethel, the Pirate’s Daughter. If only that play were real – sounds like a masterpiece!</span></p> <p><strong>The Patriot</strong></p> <p><span>Mel Gibson’s revolutionary war drama is filled with a bunch of events that never took place. The most glaring addition is a scene in which civilians are locked in a church that is then set on fire by British troops. Gibson’s character constantly accuses the monstrous British troops of breaking the “rules of war,” even though there weren’t any at the time. Also, the film showed few slaves, and those it did represent were upbeat. And the “bundling bag” Heath Ledger’s character is sewn into – so he can spend the night with his girlfriend without having sex – is an inaccurate depiction of this traditional practice: Bundling did occur, but it was typically the woman who wore the bag.</span></p> <p><strong>Argo</strong></p> <p><span>Ben Affleck’s </span><em>Argo</em><span> won the Best Picture Oscar, but it wouldn’t win any history awards. The movie’s premise, that a fake movie production was created to rescue six Americans from Iran, is true. But the film completely downplays Canada’s involvement and help – even though that nation took all the credit at the time to avoid any repercussions about CIA involvement. Plus, the real-life airport scene actually went as smoothly as hoped, and most of the tense airport hijinks in the film’s climax never took place.</span></p> <p><strong>The Last Samurai</strong></p> <p><span>This action film starring Tom Cruise takes place in Japan during the 1877 Satsuma Rebellion over the nation’s westernisation. His character is fictional – there was no American Civil War veteran present to help out. The movie also includes ninjas, a group that was no longer active during this time period. And the fight scenes feature swords, ignoring the guns and rifles that were also in use at the time.</span></p> <p><strong>Braveheart</strong></p> <p><span>Braveheart depicts late 13th- and early 14th-century Scottish rebellions against English rule. These battles occurred, but not in the way director Mel Gibson depicts them. In the movie, the warrior William Wallace (played by Gibson) is shown being raised as a farmer, but it seems that he was born into Scottish aristocracy. The movie’s Wallace is inspired to fight the English because they killed his wife, but historical records don’t mention her. In fact, very little is known about the real William Wallace.</span></p> <p><em><span>Written by Molly Penington. This article first appeared in </span><a rel="noopener" href="https://www.readersdigest.com.au/culture/16-of-the-most-historically-inaccurate-movies-ever" target="_blank"><span>Reader’s Digest</span></a><span>. For more of what you love from the world’s best-loved magazine, </span><a rel="noopener" href="http://readersdigest.innovations.com.au/c/readersdigestemailsubscribe?utm_source=over60&amp;utm_medium=articles&amp;utm_campaign=RDSUB&amp;keycode=WRA87V" target="_blank"><span>here’s our best subscription offer</span></a>.</em></p> <p><em>Image: Shutterstock</em></p> <p><img style="width: 100px !important; height: 100px !important;" src="https://oversixtydev.blob.core.windows.net/media/7820640/1.png" alt="" data-udi="umb://media/f30947086c8e47b89cb076eb5bb9b3e2" /></p>

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Are fitness trackers as accurate as you think?

<p>There are few things more satisfying than dropping on the couch after a run and seeing how many calories you've destroyed. But there's a chance your activity tracker is pandering to your desires.</p> <p>"Even the best trackers overestimate calories burned by 30 per cent or more," Otago University PhD candidate Leon Mabire said.</p> <p>So outraged are some fitness bunnies that they've filed law suits in the United States against activity tracker giant Fitbit, claiming the device is "highly inaccurate".</p> <p>As part of the US lawsuit, the plaintiffs' lawyers commissioned a study that tested Fitbits against ECG heart rate monitor the Zephyr.</p> <p>The study found devices can be off by up to 20 beats a minute during intensive workouts, and the margin of error increased with intensity.</p> <p>Fitbit, a company worth US$8 billion, has hit back at the study, saying it was biased, baseless and lacked scientific rigour.</p> <p>The company's website does not list a percentage of accuracy for its products, but does state: "Like all heart-rate monitoring technologies, accuracy is affected by physiology, location of device, and different movements."</p> <p>"There isn't a gold standard device that can be accurately compared to Fitbit," the Daily Mail reported.</p> <p>That is where Mabire comes in. He says he has developed an algorithm that can predict calories burned with an accuracy of 94 per cent.</p> <p>It took into account body weight, height, body mass index, and a couple of secret, commercially sensitive things, he said.</p> <p>When he tested the Fitbit Charge HR ($259.95) and the clip-on Fitbit Zip ($99.95) as part of his research, he found their accuracy was between 60 and 75 per cent.</p> <p>In his sample size of 62, the Charge read 120 per cent of actual calories burned while the Zip served up 135 per cent.</p> <p>Mabire tested subjects in a range of shapes and sizes, ranging from athletes with a BMI of 19 to the morbidly obese.</p> <p>"Everyone is different. You don't have a standard Aspirin dose, you have it according to your body weight," he said.</p> <p>"Why don't we do that for exercise? Exercise is medicine too."</p> <p>A Berkeley science review found "Fitbit is good for counting steps, might need some help when it comes to measuring distance, and is not particularly reliable for counting calories burned".</p> <p>A Fitbit spokesman said the company's research team rigorously researched and developed the technology for the Charge HR three years prior to introducing it to market and conducts ongoing internal studies on its products.</p> <p>"​Consumer Reports independently tested the heart rate accuracy of the Charge HR and Surge after the initial lawsuit was filed in January and gave both products an 'excellent' rating," he said.</p> <p>"We stand behind our heart-rate monitoring technology and all our products, and continue to believe the plaintiffs' allegations do not have any merit."</p> <p>Several posts on Fitbit's Facebook page question its accuracy.</p> <p>In a post from Mangatainoka, a woman complained her Fitbit recorded 16,509 steps and 2332 calories burned in a day when she did only 8000 steps, and that it recorded activity while she was sleeping in another room, with her tracker resting on a table.</p> <p>Fitbit suggested she decrease her tracker's step-counting sensitivity.</p> <p>Mabire said he did not want to compete with Fitbit. He wanted to create a medical-grade device.</p> <p>"We'd like to have a prototype by the end of 2016, then we can start testing it, then possibly look at a product in some form next year."</p> <p>Aside from going for a $5000 AMP Scholarship on June 1, he hopes he can make use of some of the record $2.2b injection into healthcare, announced as part of the Budget on Thursday.</p> <p>"There was talk on increasing funding in the medical technology area, and something like this would be right up their street."</p> <p>Do you use a fitness tracker like a fit bit? Do you think after reading this article you’ll be more cautious when analysing the results?</p> <p>Share your thoughts in the comments below.</p> <p><em>Written by Rachel Thomas. First appeared on <a href="http://Stuff.co.nz" target="_blank"><strong><span style="text-decoration: underline;">Stuff.co.nz</span></strong></a>.</em></p> <p><strong>Related links:</strong></p> <p><a href="/health/caring/2016/07/how-wearable-devices-could-save-your-life/"><em><strong><span style="text-decoration: underline;">How wearable devices could save your life</span></strong></em></a></p> <p><a href="/entertainment/technology/2016/07/apps-to-help-forgetful-people-to-remember-things/"><strong><em><span style="text-decoration: underline;">Apps to help forgetful people to remember things</span></em></strong></a></p> <p><a href="/entertainment/technology/2016/06/how-a-mobile-phone-can-save-your-life/"><span style="text-decoration: underline;"><em><strong>How a mobile phone can save your life</strong></em></span></a></p>

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