Oct
11

The Defenders: A High-Flying Near Miss

My wife and I are not television watchers. We're not elitists. We're just busy. Although our three kids have all fled the nest, we each have busy and demanding professional lives. Such spare time as we can muster, we devote to our border collies, gardening and reading. Our television viewing is limited to college football on Saturday afternoons in the fall. (Don't ask me about our team, the University of Michigan Wolverines, at least not this week.)

This lack of television viewing makes us culturally deprived. There is a whole world of allusions I just don't get. This becomes especially apparent during jury selection in criminal cases. I listen to prosecutors question potential jurors about such shows as Law and Order and I realize that I am playing with only a partial deck. This fall, I have resolved to cure this defect in my education. I've plopped the new exercise bike in front of the television and I intend to spend several hours a week watching the tube; at the very least, I can shed a few pounds and give my heart a workout.

So I started with a new show reflecting my bias as a criminal defense lawyer, "The Defenders," which debuted on CBS several weeks ago. I watched a couple of episodes over the weekend. I'm not hooked, but I am curious.

Morelli and Kaczmarak is a Las Vegas law firm, a partnership of sorts between a senior Nick Morelli, played by Jim Belushi, and a junior Pat Kaczmarak, played by Jerry O'Connell. The two men rumble and bluster their way through a docket filled with the ordinary sorts of chaos that are a staple of small firms everywhere: a shooting in the course of a neighbor dispute leaves a man dead, is it murder or self-defense?; a jogger is run down by a motorist who did not see the jogger until it was too late, a mere accident or a crime?; an employee steals from an employer in a desperate attempt to save his home from foreclosure. These are the quotidian sorts of woe that typify the work of small firms in every municipalty and state.

But few cities are like Las Vegas, a location to which I have yet to travel. When the partners put up a billboard on which they swagger with fists clenched, clients start pouring in: Many of them are scantily clad. This is a tell-tale sign that the line between fantasy and reality just got blurred. I've never returned to my office after a day in court to see a waitingroom full of women who looked like they were just evicted from a hookers' convention for being too provocatively dressed.  But this is prime-time television, and I suspect that sex sells: How else to explain the mating habits of the firm's younger partner, who beds stewardesses, a prosecutor and, seemingly, anyone else who catches his eye? Kaczmarak complains at one point about the soiling of one of his $200 shirts. It must be expensive to practice law amid all that glitter and glitz.

As is so often the case with televised shows about the law, the scriptwriters come close to the mark without really hitting it. When a young man rejects a plea offer to resolve a homicide case, Morelli urges him to reconsider. This moment of truth rang almost true: Every trial lawyer has sat with a client on the cusp of disaster and tried to find a way to minimize risk. Morelli counsels caution, but the young man asserts his innocence. He cannot face trial. Morelli knows that innocent men are convicted; the client has been offered a great deal. "Sleep on it," he counsels.

It is the trial scenes and the confrontations with the judges that ring hollow in this show. I do not know whether The Defenders has any folks with substantial trial experience editing the scripts, but watching the trial scenes hurt. The prosecutor's cute remarks during questioning are of a sort I have never seen in a courtroom. The manner in which Morelli mauls and brawls with the trial judge is, frankly, contemptuous. The judges are venal caricatures. And there are plenty of ethically prohibited ex parte communications between lawyers and judges. I doubt that law is practiced in such a manner even in as wild a jurisdiction as Las Vegas.

What's missing in The Defenders is the human reality of trial. My sense is that everyone involved in trial, the judge, the prosecutor, the defendant and the jury all try to do the right thing with the limited tools at hand. What makes trial a struggle is not the stark confrontation of good, sitting on one side of aisle, versus evil, sitting on the other side. What makes for drama at trial is the struggle to find truth amid the reality that within each of the participants is a very real struggle: trial forces each player to follow the rules of law and ethics through a dark forest of temptation. Good versus evil is a universal theme at trial: but the struggle takes place within the  judge, prosecutor, defense lawyer and juror alike. Fiction that seeks to make one side good and the other side evil is mere caricature.

The Defenders thus far fails to convince. Morelli is supposed to be the aging anchor of the firm, the wily warrior of many battles and sorrows. Kaczmarak is the young buck snorting for a fight and legacy all his own. Yet Morelli, played by Belushi, lacks the gravitas of a man who has seen too much. Sure, he struggled with a failing marriage and the bottle, but these are mere tropes. His trial skills don't really ascend beyond those of a precocious student in a law clinic trial practice class. I want to see more humanity in the man mounting the cross time and again to be crucified for his client.

The series succeeds, however, in portraying the frenetic character of small-firm life. There never is enough time in a day to do all that needs doing. The stories that stumble into the office are heart-breaking: parents stand on the cusp of losing children, and folks need validation for feelings of fear, terror and the longing for redemption. A law office is a cauldron of human emotion; it is a place as complex as Dante's Inferno, with all the circles intersecting in the person of the lawyer, who must be all things to all of the people while still, somehow, making payroll.

The Defenders is thus far a dissonant and discordant effort. There is glamor, glitz and sex. That is to be expected. What's thus far lacking is a healthy does of reality. Someone has to pay for the expensive billboard, the fancy shirts, and the well-decorated office. We still don't know who pays or how. And that is the show's primary fault. It delivers plenty of eye-candy and spots some issues familiar to every lawyer: But few of us fly quite so high as Morelli and Kaczmarak. The scriptwriters need a better handle on the reality of practicing law if they hope to do more than titillate and entertain. I rate The Defenders a near miss, but I will keep watching. I suspect potential jurors form their ideas about the law from shows such as these.

Related topics: Legal Television
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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