Germ Warfare

This week, The Practice demonstrated that it refuses to be confused with any of those reality-based shows, with its continuation of the two cases it introduced in last week's season opener.

If you'll recall, Bobby Donnell's client and good friend, Scott Wallace, was convicted of killing his wife. To "protect" Wallace, Donnell had improperly refused to allow him to testify at the trial. This week, Donnell tells Wallace about what he has done and tries to persuade him to now use this as grounds for an appeal.

Considering he was found guilty for murdering his wife, Wallace takes this revelation exceedingly well. There are no "I told you so" speeches, and he declines to blame Donnell for his conviction. Instead, Wallace says that Donnell's admission will be his "insurance policy" to make sure that Donnell works his tail off on the appeal. Although Wallace's decision does succeed in leading Donnell to passionately declare "I'm NOT giving up" at least four times during the show, Wallace would probably have been better off using Donnell's previous actions for his appeal.

At any rate, if Wallace were a defense attorney, he probably would realize that he has a greater reason to doubt Donnell's competency, when they do meet to discuss strategy for his appeal. Donnell gives Wallace a list of names from his murdered wife's rolodex to see if there are any names on it that he does not recognize… Huh? The time to do this investigative work is before, not after, your client has been convicted of murder.

One of the names that Wallace does not recognize belongs to a psychiatrist who was treating his wife for -depression. When your entire defense revolves around your insistence that your wife committed suicide, the fact that she was being treated for depression is somewhat important. A competent attorney would not have missed this piece evidence while getting ready for the trial.

Over at the District Attorney's Office, Helen Gamble gives the trial judge (who looks suspiciously like guy who used to play the butler on The Nanny) an affidavit alleging that Richard Bay coached a witness to lie. But what Bay did in preparing the witness to testify is similar to what many lawyers do to prep their clients every day. The judge is right to ignore Gamble's affidavit and refuses Donnell's request for a new trial.

Meanwhile, Ellenor Frutt's trial against the Environmental Protection Agency proves to be "pure Hollywood."

This case should never have gone to trial, as each and every witness who testified confirmed that there was no evidence that the Jamison's children had been contaminated by CCA (copper chromium & arsenic). In any tort case, the plaintiff needs to present evidence that the defendant owed the plaintiff a duty, that the defendant violated or breached that duty, and that the violation or breach caused the plaintiff to suffer harm. If the plaintiff cannot present evidence on each of these elements, the jury never even gets to consider the case and the trial is over.

As a lawyer, there were a couple of other small things that I found frustrating with the EPA trial.

First, although Lindsay Dole's skilled cross-examination of the EPA's expert was impressive and entertaining, where was the evidence to support her facts? Dole claimed that a pattern existed where the EPA was being bought by industry lobbyists, but where was the evidence to support this statement? In a real trial, Dole never would have been allowed to make such a speech or ask the questions she did, unless she had introduced facts that supported these questions. Of course, that would have taken a tad longer than an hour-long episode.

Second, there was virtually no evidence to prove the damages. Sure, Mrs. Jamison testified as to the present condition of her three children - who themselves probably would have testified at a real trial - but where were the numbers that could have supported the $72 million judgment that the jury made? Where was the testimony as to how much it would cost to care for the children until their death? How long were they expected to live? The answers to these questions are probably too boring for television, but there could have been some reference made of this testimony.

Third, at the end of the trial, Dole gives a closing argument that is followed by a closing argument from the EPA's attorney. No, no, no! In a civil trial in Massachusetts, the plaintiff is always the last to close, because the plaintiff has the burden of convincing the jury of its claim.

Fourth, the judge used the procedural process known as remittitur to reduce the judgment from $72 million to $400,000. (There is a similar procedural process known as additur to increase a judgment - but, as you would suspect, this is not used often). The judge says he is reducing the monetary figure because there was insufficient evidence to prove that the EPA had caused the harm that the Jamison children had suffered, and that the entire case was based on speculation. As I noted before, lack of causation is a reason to throw the entire case out. However, it is not a reason to reduce the judgment.

Finally, though the trial judge did make a mistake or two, there was really no justification for Frutt's show-ending comment, "I'm gonna get him, that judge, I'm gonna get him."

If you want to learn what the EPA really says about CCA, then go to http://www.epa.gov/opp00001/citizens/1file.htm.

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