TP-411 "Blowing Smoke"

Doug Salvesen, a litigator at the Boston firm of Yurko & Perry, will tell you if the The Practice still makes perfect.

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1/9/00

The two cases, one civil, one criminal, tried this week by the lawyers at Donnell, Young, Dole & Frutt are fantastic - as in pure fantasy. While both cases provide some great drama, you would have found either in Suffolk Superior Court.

In the civil case, Lindsay Dole represents a friend who is suing a cigar manufacturer for breaking up her marriage. She claims that her marriage began to disintegrate when her husband took to smoking cigars. [Insert your own post-Monica cigar joke.] According to the wife, her husband's cigar habit caused him not to spend that important cuddily time with her, to drift away from her and to spend his free time at the cigar shop. To say nothing about the stench of his cigar smoke and the money that he spent on his new-found fixation. Oh, and by the way, did I mention that he also had a girlfriend?

The highpoint of the show is Lindsay's "I'll tell you why you're going to settle this case by paying me a lot of money" speech to the evil cigar company executive. Lindsay contends that the issue is whether or not the cigar company could have reasonably forseeen that its cigars and its actions promoting its cigars would have driven otherwise loving couples apart. She contends that this is a factual issue that must be decided by the trier of facts, i.e., the jury. Therefore, she believes that the claim will survive a motion for summary judgment and be tried to a jury. To her credit, Lindsay acknowledges that her chances at trial are not spectacular but she convinces the evil cigar company executive that he doesn't want that kind of publicity, even if he wins the trial He settles by paying Lindsay's client $270,000.

I doubt that this claim would ever get to trial. I don't believe that it would survive a Rule 12(b)(6) motion to dismiss. (Flashback to first year civil procedure class: a motion to dismiss is a procedural mechanism for a defendant to test the legal sufficiency of a plaintiff's claim. In essence, in a motion to dismiss the defendant argues that the case should be dismissed because, even if everything in the complaint is proved to be true, the plaintiff still would not be able to recover against the defendant.) Although Lindsay thinks that the ultimate weakness in her case is that the harm that occurred - the breakup of the marriage - was not reasonably foreseeable. I think that better argument is that the cigar company it cannot be held responsible for the failure of a marriage even if it was reasonably foreseeable that its actions would cause couples to bicker, to fight, and to leave one another for the neighborhood smoke shop. In Massachusetts, the Legislature has disallowed the claim of "alienation of affections," the cause of action that one spouse used to have against the homewrecker who had caused his or her spouse to abandon the spouse. G.L. c. 207, § 47B. Now, if you cannot sue someone who has an affair with your honey and causes the breakup of your marriage (which I contend is a reasonably foreseeable result of the affair), can you sue a cigar company - even a really evil cigar company - for the same offense? You see my point.

As an aside, the actor (Steve Tom) who played the evil cigar executive, Leonard Stewart, has posted some interesting insider observations about the show as well as some informal photographs of his visit (http://people.we.mediaone.net/thetoms/images/practice1.htm  and http://people.we.mediaone.net/thetoms/images/practice2.html). In the criminal trial, Helen Gamble is prosecuting Rebecca's former lover, a Boston police officer, had shot a black kid who he thought was robbing a convenience store.

From the very beginning of the show, I thought that there was a real serious problem with the prosecution's case since they had not shown any motive for the shooting which appeared to be an honest mistake. It is only as part of the Commonwealth's rebuttal case that it suggests that the motive was that the police officer, who is also black, was prejudiced against blacks. In a too-neat plot twist, another former girlfriend testifies that the police officer, a la Mark Furhman, had a deep resentment poor blacks, whom he referred to as "niggers," and that she would not be surprised if he had shot the kid out of racial bigotry.

Still the motive was weak. There was no prior incident of racial bigotry against other black kids, no tape recordings of the police officer using the "n" word, and only some statements to a former girlfriend who might have had her own motive to make things up. Moreover, if the prosecution had actually failed to offer a motive for the shooting until the rebuttal stage of the prosecution, as it apparently did, the defense would typically not have presented a case so that the case could go directly to the jury.

But this is television. Halfway through the episode, Rebecca decides to look through the kid's criminal record. Surprise! The kid had sometime previously shot and killed one of the police officer's good friends. Rebecca immediately sees that after the case against the kid had been thrown out as a result of a pesky legal technicality, the police officer had stalked him, shot him in the convenience store, planted a gun on him and falsely claimed that the kid was about to rob the store.

It is unbelievable that the prosecution didn't know of the earlier shooting and deduce that the real motive had been revenge. Rebecca, who hadn't kept up with her old flame for years, figured it out within seconds after seeing the kid's criminal record. Helen Gamble, who is one smart cookie, certainly would have figured it out herself, as would most of the assistant district attorneys in Boston, presented it to the jury as the police officer's true motive, and secured a much needed conviction.

I worry that if Helen loses one more case her head will be on the chopping block - her averages are way down.

These articles originally appeared on FindLaw (www.findlaw.com)