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November 24, 2003

Dirty Harry for the Defense

The Practice has always been 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 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 last night's episode, he topped past shows in a double-header. 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 last night.

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 nicities. 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 Liberal Heroes are 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-- a world of his kind of actions would likely create chaos in our legal system. Even the larger social impact of his actions are problematic-- the settlement for his client is admirable and making sure that no one else will be advised to take the drug without a warning is good, but it's understood that the large settlement is done to avoid even larger possible payouts if an actual judgement 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.

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 new idea that justice winning is more satisfying than a noble loss that obeyed the rules.

Update: Hey folks, don't mistake cultural observation for advocacy-- I specifically noted the broader social limits to even the admirable aspects of Slone's actions, much less the problem of those who would act similarly without the same ethical code.

But the reality is that liberalism has invested a lot of its energy on procedural rules rather than substantive results. Look at criminal justice-- far more liberal focus exists on excluding tainted evidence than seeking full compensation for the innocently convicted.

The very response-- let's worry about the situations that could go wrong if the rules get broken-- rather than praising the substantive justice possible when rules aren't followed is an interesting obsession in a world where demonstrably RULES ARE NOT FOLLOWED by many forces effecting the poor and oppressed.

The Ends May not Justify the Means, but obsession on Means does not lead to just Ends either. If liberals ignore the frustration of those who find procedural liberalism wanting, they will continue to isolate themselves. Dirty Harry or Alan Slone may not be the answer, but they are a signal of cultural discontent with that rule-obsessed liberalism

Posted by Nathan at November 24, 2003 11:19 PM