TP-512 "Payback" 

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

Archives of The Practice reviews, along with reviews for other legal shows, can be found at FindLaw's Insider Reviews.

January 14, 2001

Question of Intent

Before he lost his head last week, Hinks was able, surreptitiously, to videotape and tape record his murderer, Alan Neel. In the audiotape, Neel is heard telling Hinks that he has been sent by Bobby Donnell. Caught on tape, Neel agrees to testify against Donnell. (I thought the audiotape included the most bizarre and unexpected line of the show. Realizing that Neel intends to murder him, Hinks has the presence of mind to suggest that Neel leave immediately because Hinks has "cooties").

Donnell claims he never intended Hinks to be murdered and asked Neel only to "put the fear of God" into Hinks. Neel claims otherwise. The prosecution seeks to avoid this entire question of intent by charging felony murder, which does not require proof that the defendant intended that the victim be killed. Usually, to be convicted of murder, you must have committed some act with the intent of killing a person, or have exhibited such extreme recklessness with regard to human life that you clearly intended that a person be killed (such as driving a car into a crowd).

The felony murder doctrine is an exception to these rules. Under that doctrine, any death that occurs during the commission of a felony is first-degree murder, and all participants in that felony can be charged with and found guilty of murder. A typical example is a robbery involving more than one criminal, in which one of the robbers kills the store clerk. Even if the death were accidental, all of the participants can be found guilty of felony murder, including those who did no harm, did not intend to hurt anyone, or were around the corner waiting in the getaway car.

The prosecution contends that the felony that Donnell participated in was in the breaking and entering of Hinks's apartment. Consequently, a jury can convict Donnell of felony murder without finding that he intended for Neel kill Hinks, as long as the jury is convinced that Donnell participated in some fashion in the breaking and entering.

While the felony murder charge may be a significant problem, Donnell has a number of other difficulties. A jury could well decide that Donnell intended for Hinks to be killed. And Neel seems to actually believe that Donnell solicited him to murder Hinks. A jury will be forced to decide whether Donnell (assuming he testifies) or Neel is telling the truth. I would expect that Neel would win such a contest, simply because his story is more believable. Unfortunately, we'll have to wait at least three weeks to see what happens.

Rebecca in the Saddle

It seems that every week, one of the lawyer's at Donnell, Young, Dole & Frutt mounts his or her high horse to preach to the other lawyers. This week was Rebecca's turn.

Keith, a friend of Rebecca's, was an attorney at a large Boston firm right up to the time of his suicide. Keith's widow, Karen, believes that the law firm essentially caused her husband's death. Rebecca recognizes that any claim against the law firm is flimsy but, out of friendship, agrees to file a bare bones complaint and to meet with the law firm's managing partner. The managing partner's immediate settlement offer of $500,000 shocks Rebecca since Karen's claim is not worth nearly that much. After confronting Karen, Rebecca learns that Keith and the managing partner were defrauding a client. Following her husband's suicide, Karen tried to extort hush money from the managing partner. The managing partner urged Karen to file a wrongful death lawsuit so he would have a legitimate reason to pay her.

Rebecca vehemently objects to participating in this blackmail scheme. Her objections are dismissed by Eugene, who is now running the show at Donnell, Young, Dole & Frutt. Eugene rationalizes that Rebecca does not really know why the law firm is settling with Karen. After all, the other partners at the law firm, having no knowledge of the embezzlement, apparently have approved of the settlement. Moreover, any attempt to queer the settlement would simply cause Karen to sue Rebecca.

There are a number of obvious problems with this storyline. As Rebecca notes, the claim against the law firm is paper-thin. There was no medical, psychiatric or other evidence tying Keith's suicide to the law firm. However, even if the firm was some way responsible for Keith's death, Karen could not file a tort claim. Any claim against an employer for job-related injuries, even the employee's death, is a worker's compensation claim and the damages are severely restricted. More importantly, any worker's compensation claim would be covered by insurance and an insurance carrier would have to approve any settlement. All of these hurdles are overcome by the law firm's apparent (but unconvincing) interest in avoiding any adverse publicity.

The storyline was also implausible because the settlement agreement that Karen signs ultimately does not protect the managing partner. For obvious reasons, any confidentiality provision in the settlement agreement cannot prevent Karen or Rebecca from reporting the commission of a crime. In fact, on its face, the settlement agreement has nothing to do with the managing partner's fraudulent scheme, so he would be hard pressed to argue that the confidentiality provision protected his fraud from discovery. Although Karen has no legal obligation to report the fraud, she can do so with virtually no risk of losing the settlement. While she is unlikely to bring the managing partner's fraud to light, and has no obligation to do so, Rebecca is probably required to report it the Board of Bar Overseers. The Supreme Judicial Court of Massachusetts recently promulgated a change to the rules governing attorneys, fondly referred to as the "snitch" rule, which now requires them to report such matters.

Bottom line? The law firm would never have paid the settlement.

The Real Horror Story

For real-lawyers, the truly shocking news in this week's episode of The Practice was Eugene's pronouncement that the lawyers at Donnell, Young, Dole & Frutt would henceforth have to keep timesheets. Timesheets are the bane of most lawyers' existences. It's not simply punching a time clock but rather requires an accounting -- in excruciating detail -- for every minute of every day, in six-minute increments. The lawyers at Donnell, Young, Dole & Frutt apparently haven't heard that most Boston firms have gone "casual." Now, if they have to turn in timesheets I suspect a few will rethink their career choices.

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