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Dirty Harry for the Defense
Progressive Populist
by Nathan Newman
January 01, 2004

The Practice on ABC has always been a television show as much about legal ethics as about courtroom drama. When I was sworn in as a lawyer in New York, the presiding judge cited the show as a weekly textbook on the dilemmas facing lawyers as "officers of the court." The lawyers portrayed on the show were known for pushing right to the edge of their ethical responsibilities on behalf of their clients, agonizing as they used every trick on their behalf.

But they recognized that there was an ethical line and only tried to dance on its edge.

Introducing Alan Shore: With the new season -- and the departure of some of the old cast -- the show introduced a compelling new character, Alan Shore, played by actor James Spader, who recognizes no line to dance on. He deliberately violates every ethical rule possible -- breaking attorney-client privilege, blackmailing opposing counsel, paying off clients to cover up malpractice, and so on.

In one show in November, he topped previous episodes in a double-header of ethical violations. In one murder case, he personally hid a murder weapon to help a client escape indictment. In the other, he hacked opposing counsel's computer and used the contents to blackmail the client.

But here's the thing -- in every decision made, the result has been substantively just, far more ethical and right than many stories in past seasons where guilty clients have gotten off on a technicality, or evil corporate defendants have tragically been able to win their case.

Doing the Right Thing: Take the two cases from November's show. First, the murdering client. He was obviously and deeply mentally ill, but had managed never to get treatment his whole life. Our criminal justice system has all but eliminated the insanity defense and our prisons have become holding cells for hundreds of thousands of mentally ill people. So Alan Shore gets his client off with the promise that the client have himself committed to a mental hospital -- exactly the result that would ensue if a reasonable plea for insanity still operated in our court system.

Or take the blackmail case -- here you had a product liability case against a drug manufacturer, where plenty of anecdotal evidence existed that their drug had a significant number of cases where users became violent and suicidal, yet all the official studies (funded by the drug manufacturer itself) said their were no such risks. The illegally obtained document reveals that there is a study that the manufacturer has suppressed showing the exact alleged link. The desperately poor client whose husband committed suicide is given an $8 million settlement with the condition that the drug manufacturer thereafter warn all doctors of the possible side effects of the drug.

This is lawyer as rogue cop -- dealing justice without compunction of the legal niceties. We've seen this type so often on the side of law and order that it's almost shocking to realize how rare it's been to see roughhewn justice on the side of the defense and of the plaintiff's bar.

Why Are Liberal Heroes Wusses? I'm not sure why this is, but I have a suspicion. Liberals in recent decades have worshipped at the altar of procedural justice -- the Miranda Rule, evidence excluded where legal rules are ignored, etc. -- of the idea that if the rules are followed, even if some incidental injustice is dealt, the overall average of results will be the greater good. So liberal heroes of recent years have been those who worked within the rules, pushing them to their outer boundaries, granted, but agonizing every step.

It's been conservative law-and-order types, the Dirty Harrys, who have said: Screw the law, let's get justice for the immediate victim and let the larger social consequences take care of themselves. And this gunfighter model of justice has resonated with a heck of a lot of people, and not because they are mean or vindictive (but that may play a role at times), but because they trust justice done in front of them and often doubt that the system is delivering better results overall just because proceduralism has been upheld.

Rough Liberal Justice: So enter Alan Shore. No doubt, a world of his kind of actions would create chaos in our legal system. Even the larger social impact of his actions are problematic -- the settlement for his product liability client is admirable, and making sure that no one else will be advised to take the drug without a warning is good, but it was understood that the large settlement was paid to avoid even larger possible payouts to others if an actual judgment was won in court. So immediate justice is done for the sympathetic client we see, but if you step back, the results for all victims of the drug company may not be as rosy -- although even that tradeoff exists only given the initial illegal discovery of the defendant's scientific coverup.

But I return to his uniqueness as a character in our popular culture -- a liberal Dirty Harry, dealing justice without respect for the law on behalf of the criminally prosecuted and for the plaintiff opponents of corporate greed.

Liberalism has invested a lot of its energy on procedural rules rather than substantive results. Look at criminal justice -- there is far more liberal focus on excluding tainted evidence than seeking full compensation for the innocently convicted. This has often led to frustration in those who find procedural justice wanting. Dirty Harry or Alan Shore may not be the answer, but they are a signal of cultural discontent.

I hate to see zeitgeist where interesting writing may be all that is at work, but in the year of the "mad as hell liberal," we may be seeing a turn against procedural liberalism and a newer emphasis that justice winning is more satisfying than a noble loss that obeyed the rules.

Nathan Newman is a longtime union and community activist and author of Net Loss [Penn State Press] on inequality in the Internet economy. Email or see

Posted by Nathan at January 01, 2004 09:15 PM