'13 Reasons Why': Everything legally unsound in the Netflix series

'13 Reasons Why': Everything legally unsound in the Netflix series
Source: Netflix
Source: Netflix
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Netflix's 13 Reasons Why is a great many things — addictive, compelling, frustrating, emotionally draining — but one thing it isn't is The Good Wife, to say the least.

Showrunners Brian Yorkey and Diana Son adapted the young-adult novel, which originally took place in one night, by having protagonist Clay Jensen listen to deceased classmate Hannah Baker's suicide tapes over several days. This created a void that 13 Reasons Why filled by the ongoing drama between Hannah and Clay's classmates, watching Hannah's parents and friends process their grief and a lawsuit filed by Hannah's parents against the school. 

It's the lawsuit that causes 13 Reasons Why the most grief. The series opens up so many tears in legal logic and reason that it's hard to take the storyline seriously. Some of the issues are easier to wave away, like teenagers not understanding hearsay or recording consent laws. Others, however, require far more suspension of disbelief. For a show that often goes for the brutally realistic, it's sometimes jarringly inaccurate.

Here's a summary of the legal loopholes and problems 13 Reasons Why creates for itself in season one.

(Editor's note: Spoilers ahead for the first season of 13 Reasons Why.)

Olivia's meeting with Principal Bolan

Kate Walsh as Olivia Baker in '13 Reasons Why'
Source: Beth Dubber/Netflix

This is a small point, but a frustrating one for how the show itself acknowledges the problem before brushing it aside. In episode three, Hannah's mom, Olivia, goes to see the school's principal, Gary Bolan, to ask him about her daughter. He tells her they shouldn't be speaking, as she and her husband are bringing a lawsuit against the school.

Principal Bolan is absolutely correct: While he and Olivia are free to speak to each other, no lawyer on either side of the case would advise it, especially if neither party is trying to resolve the conflict. Anything said between them could be brought up in depositions or in court. He says they're talking because the Bakers are still part of the school family, but that feels more like an excuse for this story than anything.

The student court

Miles Heizer as Alex Standall and Dylan Minnette as Clay Jensen in '13 Reasons Why'
Source: Beth Dubber/Netflix

Episode six brings an all-out brawl between Alex Standall — the subject of tape No. 3 — and another student, Montgomery de la Cruz, after Montgomery nearly runs Alex over with his car, provoking Alex to start a fight. The vice principal initially wants to ignore this, as it technically happened off campus, but without much explanation it becomes an issue for the student honor board — led by Marcus Cole, tape No. 6 — to handle. The students seemingly treat the fight as a traffic matter versus a physical one.

Frankly, there are a lot of problems with this. First off, 13 Reasons Why once again acknowledges the legal truth before choosing to ignore it. Schools have gotten into massive trouble for overreaching and penalizing students for what happens off campus. There's some gray area here, because schools can still get involved if it poses a danger to other students, but that's not articulated on 13 Reasons Why. That the school doesn't contact police — and instead characterizes the event as a traffic issue under the purview of the student honor board — feels very Rule of Drama, not rule of law.

Hannah's tapes

Dylan Minnette as Clay Jensen in '13 Reasons Why'
Source: Beth Dubber/Netflix

In Jay Asher's original book, the story ends with Clay reaching out to a depressed friend, Sadie, who's presenting some signs of being suicidal. The series, however, takes a longer look at the repercussions of Hannah's actions, as the tapes eventually become evidence in the lawsuit against the school.

This is one of the show's more realistic legal aspects, as there is indeed a hearsay exception in cases where the declarant — the person making the statement — is deceased. However, there are major problems with Hannah's tapes that would likely classify them as "bad evidence" in the real world. At a couple of points, Hannah misunderstands or misjudges the facts, like when she assumes Zach Dempsey threw away a letter she gave him in episode seven. A defense attorney would point to such inconsistencies and try to discredit Hannah's testimony via the tapes.

Clay's mom representing the school

Amy Hargreaves as Lainie Jensen in '13 Reasons Why'
Source: Beth Dubber/Netflix

Speaking of attorneys: Perhaps the single most absurd thing 13 Reasons Why expects viewers to believe is that Clay's mom, Lainie, would be able to serve as the school's attorney in the Bakers' lawsuit. As explained by the American Bar Association, if an attorney feels compelled in a case by anyone besides their client — like, say, their son, who was a friend of the plaintiff's deceased daughter — it would be considered a conflict of interest.

13 Reasons Why completely ignores this. Instead, during the fifth episode, it's explained that Lainie's firm chose her because of her connection to the school. You could try to argue Clay first undersold his relationship with Hannah to his mother, but even their status as classmates would disqualify her. If any evidence against Clay were to come out, she'd be automatically conflicted. It becomes all the more egregious when Clay does admit how close he and Hannah were, but Lainie still doesn't step away from the case.

Bryce's confession

Derek Luke as Kevin Porter and Dylan Minnette as Clay Jensen in '13 Reasons Why'
Source: Clay Jensen/Netflix

13 Reasons Why doesn't make its own setting clear — in the book, it's just a town called Crestmont without an established state — so we can't know this next bit for sure. But if Crestmont is in California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania or Washington, Clay's recording of his episode 12 conversation with Bryce — in which the jock admits he raped Hannah — without Bryce's consent is illegal.

Those states have two-party consent laws, which requires that both parties know a conversation or phone call is being recorded. If Clay resides in any of the other 39 states, he's fine. Otherwise, the recording would be inadmissible and Clay would be guilty of a crime. He hands over the taped confession to the school counselor, Kevin Porter, but nothing else is said of it after.

Ultimately, we can't know because 13 Reasons Why doesn't specify its location. But that's kind of par for the course on how Netflix's show handles legal issues: Even if it's not totally wrong, it certainly isn't right.

13 Reasons Why is now streaming on Netflix.

Mic has ongoing 13 Reasons Why coverage. Follow our main 13 Reasons Why hub here.