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The first episode of The Practice was striking for the features that were missing.

There were no clients with odd sexual proclivities, no references to Bobby Donnell's nuptials, no death row deadlines, no freakish plot twists, no rapes, no cross-dressing nuns, no deaths by liposuction, and no grape jelly. The two legal cases in the episode were relatively straightforward, if a little boring. Welcome to Joe Lieberman's world.

In the first story, yet another close friend of Bobby Donnell's is accused of murder. At least some things don't change. Scott Wallace, a prominent investment banker, claims he found his unconscious wife in their garage with the car engine running, apparently trying to kill herself. He claims that he pulled her out of the car and tried to resuscitate her, unsuccessfully. He was also a little careless, since in pulling her out of the car he let her head smack against the concrete floor. But to his credit, he's passed five separate polygraph tests.

Helen Gamble and the District Attorney's office doubt the apparent suicide story. They allege that Wallace and his wife had a heated argument. She was going to seek a divorce. He hit her on the head, tossed her in the garage, and turned on the car's engine. His fingerprints are on the hose. More damaging still, when they interrogated him and suggested this scenario, he did not deny it but started weeping.

We are led to believe that the entire case turns on whether or not the victim was suicidal or not. The only evidence that she was not suicidal comes from her brother. His testimony is enhanced after being coached by the prosecution on what to say and how to say it. After the brother testifies, Bobby decides - over his client's objection - not to let Wallace testify.

The two legal dilemmas raised in the Wallace trial are simple in theory yet complicated in practice: (1) preventing the client from testifying disappear if Wallace is found not guilty and (2) coaching the brother on how to testify. Both issues would of course disappear if Wallace were not found guilty, so it is no surprise then that the jury returns a guilty verdict.

First, a competent client is entitled to testify in his own behalf, regardless of what his or her attorney wants. Wallace wanted to testify in his own defense. Bobby seems to have prevented him from doing so, yet in thinking back over the scene, one might argue that Bobby "convinced" Wallace that testifying was not in his best interests.

Second, Helen Gamble and her sidekick, Richard Bay, seem to have coached the victim's brother, Kyle Barrett, in his testimony. As a result, he "miraculously" remembers critical facts that he had not previously shared with the police.

This is not witness preparation. It is witness coaching. It is a violation of the ABA Model Rule 3.4(b), which states that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." I am sure that some lawyers practice it openly. But, lawyers also do coach their witnesses unintentionally when they seek to educate them as to the legal grounds of a claim or a defense. Moreover, providing a witness or a client with this information is beneficial and allows them to see how their testimony fits into the case as a whole. A semi-intelligent witness or client, hearing what evidence will assist them in their case, often tailors his or her testimony appropriately. Unfortunately, it is virtually impossible to detect this type of ethical violation and the courts rarely punish it.

The bigger surprise is what Bobby and crew missed in preparing Wallace's defense. If this case were actually tried, a competent attorney would have attacked more vigorously the prosecution's version of what happened. The prosecution's case depends on their allegation that Wallace hit his wife with a blunt instrument, rendering her unconscious so he could drag her into the garage. If you believe the prosecution's story, you would expect that this blunt instrument would be covered with blood and hair. You would expect that there would be blood in other parts of the house leading to the garage. Where then is the blunt instrument? Where is the blood? Where are the signs of a struggle? But Bobby lets this pass.

In addition, Bobby's decision not to let his client testify is set forth in a dramatic scene after the prosecution rests. He stands and rests for the defense. No, no, no! Even if the client does not testify, there would have been other witnesses - witnesses who would have testified that the wife was happy, not seeking a divorce, and not suicidal. There also certainly would have been expert witnesses who would have testified that the evidence found was consistent with Wallace's version of the facts. Then again, this would have made Sunday's episode longer than an hour.

The second case in Sunday's episode has Ellenor and Lindsay representing the Jamisons, who claim their children developed neurological defects from playing on a swing set treated with a toxic chemical. As both the manufacturer of the swing set and the manufacturer of the toxic chemical are no longer in business, Ellenor has decided to sue the Environmental Protection Agency, claiming that the EPA knew of the risk caused by the chemical and did nothing to warn her clients or the public.

The title of this episode - "Summary Judgment" - refers to the motion for summary judgment that the EPA's lawyers file to dismiss the Jamisons' case. A jury is necessary only to decide disputed facts. If the parties agree on the material facts, a jury is not necessary and the court can enter judgment - summary judgment - depending on who is entitled to judgment under the law. In this case, the judge determines that there was a fact in dispute, that fact being whether the EPA had a duty to warn the public about the dangers associated with the toxic chemical. He allows the case to go to trial next week.

Under current Massachusetts law, this case would have been dismissed many episodes ago. As the judge noted, the implications of making a public agency liable for the torts of another are illogical. The police could be found liable for crimes that it failed to prevent. The Food and Drug Administration could be liable for all of the harm caused by tobacco, and hundreds of other substances. While this may seem appealing initially - after all couldn't these agencies have prevented this harm - it makes little sense. The judgments would not be paid by these agencies but would come out of the public's pockets.

The law in Massachusetts, and elsewhere, is that unless there is a special duty owed to an individual (such as where the police take a person into custody), a person cannot sue a public agency for damages where the agency's duty is to the public generally. The only recourse, in that event, is political.

One little nit. The Practice continues to show pictures of the Suffolk County Courthouse in connection with the trials on the show. It has now been two years since trials have been held in that courthouse. The entire Superior Court for Suffolk County was moved to the old federal courthouse.

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