For The Defense, Part 2

David E. Kelley and the Rise — And Fall — of The Defense Attorney on TV

Impossible to imagine the legal drama without them. today.com

Hard as may be to fathom for the modern viewer, throughout the 1960s and stretching well into the 1980s, the courtroom drama was practically non-existent. TV series like The Defenders a once highly regarded, now almost forgotten drama with E.G. Marshall and future TV dad Robert Reed playing a father and son in charge of a law firm were outliers. The few times you saw defense attorneys were on police procedurals and they were rarely portrayed as sympathetic.

The ground-breaking Hill Street Blues is one of the first series I’m aware to feature a sympathetic yet hard nosed PD Joyce Draper, memorably portrayed by Veronica Hamel. Draper was unlike almost any female character on TV to that point — she was as cynical as all of the cops on the series and more willing to go toe-to-toe with any of them if she even thought they had violated her client’s rights. The fact that she was sleeping with and eventually married to Captain Frank Furillo didn’t soften her one iota towards anyone on the Hill; if anything, it made her less inclined to treat them sympathetically.

But of course the series that truly did revolutionize how television viewed the courtroom was another Steven Bochco production L.A. Law. There had never been a series quite like it before, and there have been few since. This was a series that was willing to look at the legal process from every conceivable angle, prosecution and defense, corporate and divorce, even the working of tax litigation. And it had a cast unlike any that had been seen on television featuring actors that dominate the media to this day. The series would win four Emmys for Best Drama the first six years it was on the air and dominate the acting and supporting categories for nearly as long.

The series may been created by Bochco, but it’s beating heart was a former Boston attorney named David E. Kelley who has basically been shaping the media ever since this show. His quirky sense of humor, his ability to take on the issues of the day, and his utter fealty to the judicial process would be a vital part of network television for nearly thirty years.

Perhaps his most vital contribution was the closing argument. My memory doesn’t go back that far, so I honestly can’t say if their had been a series before L.A. Law that dared to have so much of its drama center on the closings. And it was an example of how Kelley worked that he would almost never let his lead characters have the last words — the DA, the plaintiff, the defendant whatever sides Michael Kuzak and Victor Sifuentes were arguing against would always get to have their say. And just as often it would be as convincing, if not more so, then our heroes’. It’s impossible to imagine Law and Order lasting as long as it did without Kelley and the L.A. Law writing staff having laid the groundwork in this series.

Equally important: the heroes didn’t always win — in fact during the third season Mike Kuzak (the incredible Harry Hamlin) would spend much of the season unable to win a case and they didn’t always agree with or even like the clients they were representing. Jimmy Smits’ Victor in particular would often represent clients the more white-collar firm didn’t want him to represent. At the same time, the series was more than willing to go through complicated and often very relevant story arcs. Perhaps the longest arc of all involved Mike’s representation of Earl Williams, an African American professor accused of raping and killing a student. The DA would withhold DNA evidence from the defense, which would lead to Williams being convicted, and then ignore potentially exculpatory evidence which eventually lead to Williams being placed on death row. It would take most of the season for Mike to eventually have the verdict overturned. (In a sign of things to come, the district attorney was not penalized for her actions and went on to appear in other cases in later seasons.)

Halfway through season six Kelley would leave L.A. Law and form his own production company. His first project would premiere on CBS in the fall of 1992. It would be called Picket Fences.

Modesty be damned: before I watched X-Files or Homicide, Picket Fences was the first real quality drama that I ever saw that gave me an idea of the true potential of the medium. Watching at the age of 13 to its cancellation far too soon in the spring of 1996 I though then and still do now that it was one of broadcast television’s greatest achievements. It was certainly one of the most recognized by the Emmys winning Best Drama in 1993 and 1994 and winning multiple acting awards for practically everyone in the cast. I was overjoyed to find Hulu is now rebroadcasting it. Watch it.

Picket Fences was set in the fictional town of Rome, Wisconsin and center on the Brock family: Sheriff Jimmy (Tom Skeritt, who won an Emmy for Best Actor) Doctor Jill (Kathy Baker, who won three for Best Actress) and their three children. Rome was quirkier than Twin Peaks ever was though far less supernatural. Most of the show’s action involved bizarre crimes, weird criminals (Marlee Matlin would have a memorable stint as the ‘Dancing Bandit’, a bank robber who was somehow end up as Mayor) and wonderful courtroom scenes.

At the center of the trials would involved two of the greatest character actors in history playing two of the greatest roles ever written. Fyvush Finkel, who played Defense Attorney Douglas Wambaugh (his 1994 Emmy for Supporting Actor was one of the greatest joys in awards show history) and Ray Walston’s incredibly work as Harry Bone, the town judge (Walston more than earned two Emmys in 1995 and 1996). The series would also feature as the District Attorney a then relatively unknown actor named Don Cheadle.

It’s easy to see the character of Wambaugh as some kind of Jewish cliché but in the hands of Finkel and with Kelley’s brilliant writing he was the epitome of charm. He could raise the most absurd level of defense to sounding legitimate. In a story you can’t imagine any other series doing then or now, during a papal visit to Rome a gay man would shoot his lover. The Pope would witness this event, and Wambaugh insisted on bringing him in to testify. (Its safe to say it wasn’t John Paul II actually in the courtroom.) In his defense Wambaugh would accuse the Pope of being infallible (!) because of the position the Catholic Church had towards gays. Throughout the series Wambaugh would continuously undercut the prosecution by agreeing to the basis of the case and then coming up with a defense that excused it. It didn’t always work, but it was a tribute to Kelley that it never seemed implausible.

Just as important to the show was Walston’s work as Judge Bone. If Wambaugh was the impish voice of reasonable doubt, Bone was the voice of a hard truth and conscience. Frequently after verdicts that he found inexcusable it was not uncommon for Bone to lecture the jury on their flaws. Judges are supposed to be impartial and Bone was, but there were more than a few miscarriages of it over the series length and it would often be the job of Bone to be the voice of reason. I never thought it ridiculous; in fact I would look forward to Walston’s raspy deliberations week after week. (Walston would be the first of many extraordinary judges that would appear throughout Kelley’s work.)

In 1994 Kelley began work on the hospital drama Chicago Hope the series that unfortunately now has the fate of being recognized as the other Chicago medical drama that premiered the same year as ER. In the fall of 1995, pleading exhaustion Kelley would leave both series. Picket Fences would not survive Kelley’s departure and would be canceled with the year. Chicago Hope would make major changes and run a respectable six seasons.

Kelley wouldn’t be exhausted for long. In 1997 he would return with two very different Boston set legal series: ABC’s The Practice which premiered that March and the controversial and iconic Ally McBeal. It is the former series that I wish to focus on for this article because I believe it may be the most pertinent one to how we view the defense attorney today.

They suffered for…tvtropes.com

The Practice mostly dealt with an apparently on the border of bankruptcy Boston law-firm (despite the multi-million dollar lawsuits they won every year, they never got better offices) run by defense attorney Bobby Donnell (Dylan McDermott, who by the way I never mistook for Dermot Mulroney) and his colleagues. From the beginning Donnell and Associates would represent the bottom of the legal food chain when it came to criminals — drug addicts, prostitutes, low-level felons — and those were the clients who paid. On a couple of occasions, they would represent clients so horrible that the judges would insist they be chained to their seat and gagged.

Bobby and his group were always willing to give anybody a defense, even mostly those who didn’t deserve it. But what the series would represent over time is that even though they represented these clients, the methods they used were often contemptible. An early episode featured Eugene Young (Steve Harris) representing an accused rapist by tearing down the victim at cross. He would have severe doubts during the episode, and seem outraged by his behavior — but the episode ended with him doing the exact same thing to another victim.

It wasn’t just they represented the guilty; it was that so many of their clients would be revealed to be repeat offenders after they got them acquitted. In one storyline John Laroquette would play a gay man who would manipulate the police to getting an immunity agreement for testifying — and then cheerfully admit to murdering his lover. That same season, he would kill another lover and get acquitted — when he represented himself. Another storyline involved Lindsey Dole (Kelli Williams) representing an accused serial killer (Michael Emerson) who his psychiatrist believed he was innocent. Turned out he had had faked his insanity and his performance of not being the killer and after his acquittal would kill his psychiatrist. (Both actors would win Emmys, by the way.)

And the cost it was to the firm was immense. In the longest storyline, Dentist George Vogelman (who had briefly dated Eleanor another lawyer at the firm) came to the firm after a one-night stand with a woman’s head in his bag. He proclaimed his innocence Eleanor (Camryn Manheim) would defend him and they would acquit him in part by ‘Plan B’ — accusing the victim’s brother. Afterward, the victim’s family would sue the firm for defamation and it took four more episodes for that to be resolved. Episodes involving George would periodically play out for the remainder of the season until the third season finale when Lindsay would nearly be stabbed to death — and at the final scene, the attacker would be revealed to be George Vogelman who had been guilty of everything he’d been accused of from the start.

The characters on The Practice would live through what could only be considered a constant case of PTSD. Marriages would fall apart, the friendships binding the firm would become increasingly frayed and in the later seasons, the clients would become more obviously guilty and it would become increasingly hard for the attorneys to even go through the motions of a real defense. Increasingly the firm’s reputation would suffer and more and more often the DA’s office and judges would take increased pleasure in attacking the firm.

I don’t know if this was Kelley’s intention when he started the series, but by the end of The Practice’s run you began to get the feeling that the characters were being punished for representing the worst criminals imaginable. There have been sleazy attorneys on other Kelley series — Richard Fish on Ally McBeal didn’t even hide the fact he only cared about money and Alan Shore (James Spader, who would begin his work on The Practice’s final season) was a brilliant legal mind who was fired from two firms for his methods and at his final firm (on Boston Legal) was regard by the partners with not even veiled contempt. But the longer The Practice stayed on the air, you got the feeling that Kelley was sending the message that if you represent the guilty, you’re not worthy of being among the company of other lawyers.

And considering that The Practice was of the biggest critical and audience hits of the late 1990s/ early 2000s (it won Best Drama in 1998 and 1999, the latter time beating the first seasons of The Sopranos, and won more a dozen awards for its acting particularly in the Guest Actor and Actress category) you kind of wonder if this message permeated the consciousness of the psyche the same way that Law and Order’s did. That attorneys like Bobby Donnell and Alan Shore were contemptible for doing what they did and that to an extent, deserved to suffer for their sins. The prosecution was represented just as much during the series run (mostly by Lara Flynn Boyle) and there would be quite a few prosecutors who would be willing to cut corners in order to get convictions but whatever their abuses were paled in comparison to the agony that the lawyers at Donnell and Associates had to go through with their clientele.

Kelley’s creative ability peaked after The Practice ended. He would write other critical and popular hits — Boston Legal for ABC and the Kathy Bates vehicle Harry’s Law for NBC — but these series would be far more focused on political elements (I have written extensively about this in a previous article, so I won’t repeat myself here) and as a result were far less subtle. He has returned to greater recognition mostly for series like Big Little Lies and Big Sky and limited series like The Undoing. But he hasn’t entirely left his legal roots — one of his less noticed series was the Amazon series Goliath featuring Billy Bob Thornton as an attorney who takes on corporate giants.

I’ll wrap up this series later in the week as I deal with what the defense attorney looks like today and if there are any examples that can give us hope for the future.

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David B Morris

After years of laboring for love in my blog on TV, I have decided to expand my horizons by blogging about my great love to a new and hopefully wider field.