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?
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.
But alas, Kelley's interest in the law is mostly as an opportunity for speeches of a kind that would never find their way into any real courtroom. In Harry's first case, a college honor student is accused of cocaine possession; she bloviates so cogently on drug legalization that the judge refuses to send the (guilty) young man to jail. When a Chinese-American couple hires the fledgling firm to defend against a suit by a former employee they fired for getting pregnant, Harry's associate Nate Corddry (Adam Branch) dazzles the courtroom with a discussion of China's "one-child" policy and its promise for reducing overpopulation. The idea seems to be that a lawyer's to job is talk cases to death, and that judges will listen patiently to whatever blather they choose to share.
They won't; and besides, Harry's Law is boring.
The Defenders tells the story of Nick Morelli (Jim Belushi) and Pete Kaczmarek (Jerry O'Connell), hard-drinking, high-rolling criminal defense lawyers who practice in Clark County, Nevada, home of Las Vegas and some of the most entertaining crime in America. Most fictional defense lawyers agonize over the dread possibility their clients are guilty; most real defense lawyers I know don't. Criminal lawyers don't have to believe in their clients' goodness, or even like them; they have to make sure they get treated fairly by the criminal-justice system. Often the best they can do is make a deal for a reduced charge, shave a year or two off a sentence, and help the client put his or her affairs in order.
The original Defenders, starring E.G. Marshall, ran from 1961 to 1964 and usually portrayed cases where the client had committed no crime. Not so with Morelli & Kaczmarek, whose clients range from the clueless offenders to the downright horrifying. (Particularly memorable is Dan Aykroyd as an overbearing judge caught in a hotel room with oxycontin, a pistol, and a comatose stripper, but insists that he has done nothing wrong.) On The Defenders, judges aren't wise, cops aren't villains, and prosecutors aren't (always) sinister. The show is far from a true portrayal of life in the defense trenches, but it's not silly, and (most important) it's not boring.
Finally, in The Good Wife (now in its second season on CBS), Julianna Margulies plays Alicia Florrick, who is, in essence, Silda Spitzer, returned to law practice after a spate as fulltime mom to her children and adoring political wife to disgraced, hooker-visiting ex-DA Peter Florrick (Chris Noth). As an "overage" associate at Gardner Lockhart in Chicago, Alicia is thrown into an improbable mix of cases--criminal defense, products liability, and intellectual property--but Magulies effectively portrays the tense world of a junior lawyer, forever torn between resenting opposing counsel, despising her client, and wanting to murder the egomaniacal partners who rule her workplace.
But what makes the show memorable is the character of Kalinda (Archie Panjabi), the firm's implacable, omnisexual investigator. Kalinda is a little over the top, but there's a lot of truth in her portrayal. In a recent episode, Alicia won her case not because her client was lovable or because the other side was despicable but because Kalinda watched a key piece of video evidence over and over until she realized that computer compression technology had clipped out a crucial frame.
Kalinda's the one who would have found the offending document in Overstreet--and everything else the company was trying to hide. She doesn't make it look easy, because it's not. She simply will not back down in the face of indifference, hostility, or outright violence. That's an investigator I'd like to work with. Any lawyer would.
I suspect Harry's Law is not long for the world. I worry about The Defenders; The Good Wife is an established hit. The latter two shows shine bright for me in the post-Law & Order world of mediocre, derivative lawyer series. They are overdramatic and sometimes silly. But their writers understand what my judge taught me twenty years ago: Don't even think about the law until you understand the facts.