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A Thought-Provoking Practice

Posted by Rick · October 19th, 2003 · 2 Comments

My wife is a paralegal student — a good one. Her grades are top-notch and she’s the Student Bar Association rep for the paralegals at her school. I’m a law student at the same school; I do okay. We both work, as well. I’m a full-time Director of Information Systems for a good-sized (statewide) company in California and she works about 20-30 hours a week. (Hopefully soon to be more — but in a law firm.) We therefore don’t often get the opportunity to watch television.

When we do watch television, we tend to like shows like “Law & Order” (although we despise virtually every spin-off of this show and especially the one apparently written by and for seriously-sick sexual perverts). Another show we like is “The Practice.” And although we were upset to hear about the cast changes this year, they may have been for the best after all, because we were certainly tired of listening to Bobby and his wife — who we dislike so much we can’t even recall her name in spite of the fact that we watch the show religiously (except as noted immediately below) — whine and fight.

Many nights I’ve sat there in disgust as they gave yet another reason for the general public to (for the most part unjustly) hate attorneys. For several weeks, I either walked out of the room after a few minutes, or flat-out refused to even start watching it. The show does take liberties with the law; I believe they think of it as “dramatic license.” My thoughts on that matter are that someone should revoke their license.

The show is often thought-provoking, however, and well-acted. I’m always drawn back to watching it. And the reward is shows like the one which aired tonight….

Tonight’s show had a simple plot. Perhaps that’s why it was so thought-provoking. The premise was easy to understand, but involved a very hard choice. I was distinctly reminded of a maxim we’ve heard in law school: “Hard cases make bad law.” This is because the rules developed out of hard cases readily succumb to the potentiality of a slippery slope. But I digress.

The simple plot of tonight’s show is this: A young boy was apparently run over by an SUV driven by a driver who failed to see him in a crosswalk because the driver was looking down at a cell phone. To maximize the emotional impact, the driver was a white man in a business suit who was obviously very rich, very important and very well insured. The young boy was black and disadvantaged relative to the driver; not quite at the bottom of the food chain, yet very cute and appealing to us, the (actual) jury. Bobby’s firm was hired to assist in the defense of the insurance company in the civil trial initiated by the boy’s parents. This was done for a variety of reasons, none of which really matter. To anyone familiar with “The Practice,” however, Bobby’s firm is — not just in its own way, but nevertheless in a way that requires a thinking person to apprehend — highly ethical. And, again, in an incredibly odd way, Jimmy, one of the lawyers in Bobby’s firm, represents the rock-solid appreciation of right-and-wrong that is the province of Everyman. The lawyers all learn that their client — the insurance company — has discovered that the boy has a time-bomb ticking in his head; an aneurysm near the base of his brain could burst at any moment, unless emergency surgery is immediately performed. The implication is that it’s the result of the accident. In any case, the client invokes attorney-client privilege and refuses to allow the lawyers to tell the boy, even after a settlement which they had been resisting but are now inclined to jump on. The lawyers are all stunned. But only Jimmy, the Everyman, goes in the middle of that very night to the boy’s parent’s house, wakes them, tells them the story and informs them they must immediately awaken the boy, because Jimmy has already called an ambulance. The emergency surgery confirms the situation and — thanks entirely to Jimmy — the boy’s condition is handled and he will live.

Eugene is also a lawyer in Bobby’s firm. He’s so ethical that I’m nearly convinced that I will end up as a criminal defense attorney. This is not because I want to be, but because I buy into Eugene’s character almost totally. (And I’m appalled at some of the things I hear these days. William Blackstone, the English jurist who gave us Blackstone’s Commentaries on the law and influenced so much of Western Civilization’s legal system, said, “Better that ten guilty persons escape than that one innocent suffer.” Not a few people today waver on this point. More and more people today seem to be convinced that it is better than ten innocent men go to jail — to theirs deaths, even — than that one guilty man go free. I cannot and I will not agree with this. Don’t even bother trying to convince me. There is no “greater good” to the violation of this law. If we are, in fact, willing to sacrifice one innocent person to ensure the capture of the guilty then, in my estimation, none of us — not a single one who would accept that view — deserves to live.) Eugene believes strongly in our legal system, as do I. Eugene believes that we must support the rule of law because it is right and just and strictly followed protects us all; I also believe this. He believes that even if the result of his work is that sometimes guilty men go free, this is the way things must be, because it is better that ten guilty persons escape than that one innocent suffer.

I always thought Eugene was one of the most completely ethical characters in the show — until tonight. (Now, “in reality,” I have to say that I’m hard-pressed to believe that the system would in any way punish a lawyer who did what Jimmy did. Consequently, I’m hard-pressed to believe Eugene would actually do what he did. But I am just a law student and have not yet taken the courses on professional responsibility, so I could be wrong.)

Because of his beliefs about the system and the proper behavior of lawyers within it, Eugene reports Jimmy to the Bar. This is in spite of the fact that the client would not have done so — the negative publicity would literally put them out of business. This is in spite of the fact that the boy was, according to the defense team’s own doctors, certain to die if the condition was not surgically handled; the only question was when. And this is in spite of the fact that, given the defendant’s refusal to allow their attorneys to reveal this condition, attorney-client privilege meant a virtual death sentence for the plaintiff.

The arguments are quite strong on both sides. Putting both arguments in a nutshell and therefore possibly oversimplifying them: If attorney-client privilege is broken, trust in the system is broken. Clients will simply not trust their attorneys and the system as it currently exists equally-as-simply cannot work under that burden. Our legal system, overall, is the best this planet has ever seen and until/unless someone can come up with a better system, it is an understatement to say that a violation of trust in this system sufficient to bring it down is quite a serious thing. On the other hand, in this case, if attorney-client privilege is treated as sacrosanct, this boy will die.

It doesn’t get more compelling — more thought-provoking — than that.

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2 responses so far ↓

  • 1 Bob // Oct 20, 2003 at 2:35 pm


  • 2 Erik // Oct 22, 2003 at 2:21 pm

    I agree with all your comments and also watch the show…when I can (I don’t have the free wheeling good life of a 2nd year student, I have my nose buried scraping for my life as a 1L)…but, none the less, I watch it when I can.

    To make a point: It strikes me that all legal specialties (Crim Defense more than any, I suppose) poses the possibility of representing the “bad guy”. How you deal with that issue is the culmination of your personal ethics. If you represent the kid in the story against the Insurance Company, there is no challenge on your ethics, and those cases, may be the norm.

    However, eventually you represent the butcher, the evil corporation, or the cheating wife…and you are tested. Tested on your belief in the legal system. I share your belief.

    I appreciated your thoughts Rick.


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