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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 for some great drama, you will find neither in Suffolk Superior Court.

In the civil case, Lindsay Dole represents a friend of hers who's suing a cigar manufacturer for having broken up her marriage. Her claim is that the marriage began to disintegrate after her husband took to smoking cigars.

[Feel free to insert your own post-Monica cigar joke here. I would, but I have editors . . .].

According to the wife, her husband's cigar habit caused him to stop spending that all-important cuddly time with her, to generally drift away from her, and to begin to spend all his free time at the cigar shop. To say nothing of the effect on the marriage of the stench of cigar smoke and all the money he was lavishing upon his new-found fixation.

Oh, and did I mention he also has a girlfriend?

The high point of the show comes with Lindsay's, "I'll tell you why you're going to settle this case by paying me a whole lot of money" speech to the evil cigar company executive. She contends that the issue in this case is whether or not the cigar company could have reasonably foreseen that its cigars and its actions in promoting its cigars would have driven otherwise loving couples apart. She moreover contends that this is a factual issue that must be decided by a trier of facts, i.e., the jury. Thus, she believes the claim will survive a motion for summary judgment and be tried to a jury.

Huh?

To her credit, Lindsay acknowledges that her chances at trial are not spectacular, but she nevertheless convinces the evil cigar company executive that he doesn't want that kind of publicity, even if he wins the trial. So he settles by paying Lindsay's client $270,000.

I have to doubt this claim would ever get to trial. I don't believe it would survive a Rule 12(b)(6) motion to dismiss. (Flashback here to first year civil procedure class: a motion to dismiss is a procedural mechanism by which a defendant can test the legal sufficiency of a plaintiff's claim. In a motion to dismiss the defendant essentially argues that the case should be dismissed because -- even if everything in the complaint is proven to be true -- the plaintiff still could not recover against the defendant.)

Although Lindsay believes the weakness in her case to be that the harm that occurred - the breakup of the marriage - was not reasonably foreseeable, I think the better argument for the cigar company would be that it cannot be held responsible for the failure of a marriage even if it was reasonably foreseeable that its actions could cause couples to bicker, fight, and abandon one another for the neighborhood smoke shop. In Massachusetts, the Legislature has disallowed the claim of "alienation of affections" -- the cause of action one spouse used to have against the homewrecker who caused his or her spouse to abandon them. G.L. c. 207, § 47B.

Now. If you cannot sue the person who has an affair with your honey and causes the breakup of your marriage, (which I'd contend is a reasonably foreseeable result of an affair . . .) can you possibly be able to 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 plays the evil cigar executive, Leonard Stewart, has posted some fascinating insider observations about the show as well as informal photographs of his visit at: (http://people.we.mediaone.net/thetoms/images/practice1.htm and: http://people.we.mediaone.net/thetoms/images/practice2.html).

Check it out.

Meanwhile, in the criminal trial, Helen Gamble is prosecuting Rebecca's former lover -- a Boston police officer who shot a black kid he believed to be robbing a convenience store.

From the very beginning of the show, I thought there was a serious problem with the prosecution's case since they never showed any motive for the shooting, which simply appeared to be an honest mistake. Only as part of the Commonwealth's rebuttal case does the suggestion arise that there was a darker motive: that the police officer -- 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 and abiding resentment toward poor blacks, to whom he referred as "niggers." She adds that she would not be surprised if he had shot the kid out of racial bigotry.

Still the motive is 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 certainly 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 trial, as it apparently did, the defense would typically not have presented a case at all and the case would go directly to the jury.

Ah, but this is television. And so halfway through the episode, Rebecca decides to look through the kid's criminal record. And surprise! The kid had some time previously shot and killed one of the police officer's good friends. Rebecca also discovers that after the case against the kid was thrown out as a result of some 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 beyond unbelievable that the prosecution didn't research the kid's criminal history, discover the earlier shooting and thus deduce the cop's real motive -- revenge. Rebecca, who hadn't kept up with her old flame for years, figures it out within seconds of seeing the kid's criminal record. Helen Gamble - who is One Smart Cookie -- certainly would have figured it out herself, as would most assistant district attorneys in Boston. And the Universe. Helen would have presented this information to the jury as the police officer's true motive, and secured a much needed conviction.

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

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