A legal scholar on the virtues and vices of Harry's Law, The Good Wife, and The Defenders
If you were producing a TV show, would you rather do an episode about equitable estoppel, or about a murder where the killer reached into a gaping wound to try to still the victim's beating heart?
Lawyer TV shows continually face the dilemma of how to dramatize the law, which often focuses on the most boring aspects of fascinating facts. I watch these shows obsessively, muttering from time to time at the liberties they take with procedure. But in my heart, I am like any other viewer: I can forgive TV any sin but being boring.
I put myself in a producer's place by considering the most interesting case I ever worked on. (The case is Overstreet v. Kentucky Central Life Insurance Co--reported at 950 F.2d 931.)
When I reported for work twenty years ago as a federal law clerk, my judge gave me the Overstreet file to research and said, "Don't even think about the law until you understand the facts." I groped through legalese to discover this modern American noir. As I did, I thought, "I have the greatest job in the world."
How would recent TV shows do Overstreet?
In my heart, I am like any other viewer: I can forgive TV any sin but being boring.
On Harry's Law, the new David E. Kelley drama on NBC, it would turn into an argument about whether insurance companies or plaintiffs' lawyers are ickier; The Defenders, the CBS revival of a classic 1960s series, would focus on the killer's bloodstained hands; The Good Wife, the CBS drama starring Julianna Margulies, would pivot on an investigator stumbling upon the key evidence.
First, the facts: In 1983, young Johnny Overstreet moved from his mountain home to Charlotte, N.C., where David Fisher hired him to transport corpses to funeral homes. Soon Fisher invited his protégé to join him on a hunting expedition in Bedford County, VA. There, Fisher's accomplice shot Overstreet in the back (it was Fisher who then reached into the open wound), and the two men reported his death as a tragic hunting accident.
Unbeknownst to Overstreet's family, Fisher had persuaded an easygoing insurance agent to sell him a $100,000 accidental death policy on Overstreet's life. This was a big no-no for two reasons; first, not being a relative, a trust beneficiary, or an executive of a corporation in which Overstreet was a key employee, Fisher didn't have what lawyers call an "insurable interest" in Overstreet's life. The reason for this rule is easy to understand: if I could take out an insurance policy on a random acquaintance's life, it would give me an incentive to assist that person into the afterlife.
Second, agents are not supposed to write policies on the lives of people they haven't met, and Kentucky Central's agent had never laid eyes on Johnny Overstreet. But there was a commission at stake, and so the paperwork was fiddled and the policy issued barely a month before the hunting trip to Bedford.
Once the company higher-ups realized they were probably dealing with a murder, they made a lowball payment to Fisher and stonewalled the family and the Virginia prosecutor, who were trying to find out what really happened.
Years later, Fisher made the inevitable barroom boast to an FBI informant and was arrested. (He was executed in 1999.) The family sued the company for causing Johnny's wrongful death. But Kentucky Central pleaded the statute of limitations--the family had waited too long to bring their claim, they argued.
Two of Overstreet's lawyers, digging through discovery documents, found a record of a phone call in which the company had refused to turn over its files to the country prosecutor because of non-existent "privacy laws." One lawyer asked the other whether there wasn't something odd about the paper--a strange pattern of ridges and indentations. Like intrepid Junior G-Men, the two then carefully rubbed a pencil over the grooves until they saw the impression of a note that said, in essence, for God's sake don't tell him what really happened or we could get sued!
With these facts, it was not difficult for the court to conclude that the delay in bringing suit was due to the company's intentional deception and that under "equitable estoppel," the company couldn't plead the statute of limitations. The family got its money.
This brings us to the TV shows. David E. Kelley, a former lawyer who entered TV in 1986 as a writer for L.A. Law, went on to create shows like Allie McBeal, The Practice, and Boston Legal. Kelley views TV as an opportunity to blend stunning babes in high heels (on one of his shows, Girls Club, a junior law "associate," supposedly a J.D., was played by a lush starlet not of legal drinking age) with high-minded argument about legal issues. I had hoped that Harry's Law would break the mold: instead of eye candy, it stars the ever-delightful Kathy Bates as Harriet Korn, a mid-career, middle-aged, middle-weight lawyer who leaves corporate practice for a storefront legal clinic. By turns truculent, irascible, and downright nasty, she punches with an equally unglamorous cast of opposing lawyers. (For viewers nostalgic for the old Kelley world, Harriet's new law office is a defunct shoe store, whose owners left behind scads of Blahniks, Choos, and Louboutins; Harry's legal assistant, played by Brittany Snow, fetchingly models them for prospective buyers.