SPOILER ALERT- this blog contains spoilers for episodes 1 and 2 of the show, both in the conventional sense and in the sense of spoiling the fun of a soapy prestige series.
War, the glossy TV drama starring Dominic West and Sienna Miller, is a busman’s holiday of a watch for UHNW divorce lawyers like me. But would it happen like this if it were a real case? Probably not.
With the possible exception of the expensive suits, oak panelled offices (there are still one or two firms that have them) and travelling in large groups to hearings, there’s not much that’s realistic about this programme, which makes its TV predecessor The Split – itself an egregious over dramatization – look like a BBC David Attenborough documentary by comparison of accuracy.
Among the more extreme items we can cross off the real list are getting a friend to sleep with your husband to trap him; inspecting your legal team in a line-up “meet and greet” reminiscent of the Royal Variety Performance; and taking two jobs as a lawyer at different firms, which would be a career-ending move for a solicitor. Even the fact that the partners involved appeared determined to use their newest recruit on their biggest ever case seemed odd.
There are, however, also useful learning points, some of which had me yelling at the screen…
- The affair - although there’s been a recent trend towards possibly recognising very serious abuse as a standalone form of ‘conduct’ that might have an impact on the outcome, a one-night stand wouldn’t move the needle at all and influence how the judge distributes the assets. Judges see far worse behaviour and don’t take it into account. If anything, the entrapment might look worse than the act of infidelity.
- Prenups - it would be an Americanisation to have a 'penalty' clause for an affair and this likely wouldn't stand up in an English court. And the prenup would definitely have provided for how the business, which was at an early stage, should be divided in the event of a divorce.
- Jurisdiction and filing - if this was a real case and Carla (Sienna Miller) was living in France, then Morgan (Dominic West) might well look to file in France to secure a more favourable outcome, subject to what the prenup provided for. Certainly, she would be very quick to file in England instead of messing around with photos and her (very bad) strategy about entrapping him. However, filing first wouldn’t necessarily determine where the divorce happens; rather, it would be the country with which they have the closer connection under English law.
- Publicity and NDAs - this was something that War got very wrong! Most super-wealthy individuals don't want the publicity or cost of a huge legal battle. I was not at all clear why either of them appear so keen to fight it out in court with the attendant limelight, distraction from their lives and the limited opportunities to actually 'win', especially when they both seemed actually quite keen on each other up until they found themselves back with their oversized legal teams (all of whom seem to finish each other's sentences all the time). Moreover, NDAs don't protect the whistleblower, but they protect the person with everything to lose (and aren't terribly effective either). Serving her on the red carpet was a nice touch though.
- Mediation - early 'shadow' forensic accountancy advice does happen but that's about all War got right about mediation. Mediation doesn't happen over three days; the parties would definitely have met the mediator first; the mediator doesn't give advice; the lawyers don't all attend and sit on another floor (why?); a good lawyer will prepare their client and not just tell them on the way in what the mediator's name is; and offers are actually discussed with clients, not written down on bits of paper and handed to a potty-mouthed messenger in Louboutins. But the biggest plot hole was that mediation is without prejudice, so Carla's lawyers likely could not use Morgan's comments about the case in subsequent court proceedings. And where is the disclosure? I dread to think what will happen with arbitration in Episode 3. An early 'tell' is that publicity may play a part, but, alas, arbitration is confidential so this is in fact the exact opposite of why you might arbitrate.
- Deal structure - the offer appeared to be for a lump sum (between £17m and £180m) PLUS half the assets plus maintenance until Morgan is over 70. This would be far outside the bracket, as it doubles up by giving far more than Carla needs plus a maintenance order that stretches into retirement and a lump sum when the assets have already been equalised. It would likely be one figure, reflecting the prenup on a clean break basis.
- Motivations - perhaps the biggest myth the show propagates is that lawyers are avaricious, capricious and driven by ego. Most UHNW lawyers are nothing like that. They are hard-working and competitive but usually genuinely invested in getting a positive outcome for their clients. If they weren't, then they wouldn't pick up the next case that came along. It's true that lawyers move firms and all know each other well but those personal relationships are often the bridge that enables cases to settle, not personal axe grinds. But then that wouldn't make good television.
Having said all of the above, I am quite sure I will be back for Episode 3, yelling at the screen once again, but quietly enjoying what is an otherwise absorbing complete work of fiction!
