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         This week's episode of The Practice, "Bay of Pigs," involves cases from both ends of life's spectrum.

         In the first story, Jimmy represents his old girlfriend, Susan, who seeks to enforce a contract for the sale of her eggs. We're not talking about Grade A Large here. The attorney representing the defendant argues that since the law doesn't permit the sale of human organs, the contract to sell eggs is illegal and can't be enforced. Jimmy counters that selling eggs is like selling sperm, and that's permitted under the law. Jimmy has to grit his teeth as he makes his argument. It runs against his very Catholic beliefs.

         Jimmy wins. As Senator Orrin Hatch likes to say (over and over and over), judges are supposed to interpret the law, not make it. Law is "made" by the Legislature. And the Legislature has not decreed that the sale of eggs is illegal (in contrast to the sale of, say, hearts or kidneys). So the judge, who also finds the contract repugnant, holds his nose and rules for Susan.

         Whoops. The judge's ruling should simply be that Susan can go forward with her suit -- not that she wins the case. The defendant had attacked Susan's case by filing a so-called "motion to dismiss," arguing that even if everything in Susan's legal complaint were true, the law would not permit Susan to win (again, this is because in the defendant's view, the contract was illegal). By rejecting the defendant's argument, all the judge really did was give Susan a chance to make her case -- to try to prove by a preponderance of the evidence that there was a contract and that the defendant breached it. We're in t.v. time, though, so everything is telescoped into one hearing, and Susan gets the win.

         One or two or three other points about accuracy for those of you scoring at home. First, when Jimmy is in court, Susan appears with him at the counsel table. That's a no-no. The only people allowed inside the bar are lawyers (that's why they're admitted to the "bar") and witnesses. Clients in civil cases (remember, no one's facing jail time here; this is one private citizen against another) must be seated outside the bar. Second, Jimmy says he'll be notified by his beeper when the judge reaches a decision. Not so. This case is simply about money. It's not time-sensitive, so the court's decision will be mailed to the parties. A beeper is reserved for matters such as a preliminary injunction. Finally, when the attorneys argue the case, they engage in a very lively back-and-forth. This is the way most people argue in everyday life, but it's not the way we do things in court. In fact, it's not nearly as interesting as the show makes it out to be. The lawyer for the party who has filed the motion -- in this case, the husband -- argues first, for a set period of time. Once he's done, the opposing party gets his crack. This procedure is extremely frustrating to some lawyers (who'd give anything to jump in during the other lawyer's argument), but judges insist on it to ensure an orderly presentation of arguments -- and to prevent mayhem in their courtrooms.

         The first plot line is about the seeds of life. The second one is about the bitter end. Ellenor represents Louise Morgan, who is accused of trying to kill her husband by running him over in their driveway. (One good use for that mammoth new Ford Excursion SUV that's coming out.) The husband, hospitalized with a bad heart (unconnected to the collision), awaits a donor. The assistant district attorney, Richard Bay, is fearful of losing the husband's testimony to the grave, so Bay deposes him in his hospital bed. Ellenor objects that any attempt she makes to question the husband will make both her and her client look like first class jerks in the jury's eyes. Um, yep. In fact, things turn out a little worse than that. The husband dies of a heart attack as Ellen cross-examines him.

         Interesting concept: the killer cross-examination. But it would never happen outside of a television show. The evidence that Louise tried to murder her husband is flimsy. When the police arrived at the couple's home, the husband himself said it was an accident. All he later has to go on is a malevolent look he thinks he saw in his wife's eyes. That's not much. Moreover, while the collision might have put him in the hospital, his bad heart is the real reason he's in there. And with his heart condition, there's no way a court would have let the depo proceed.

         Finally, even if the deposition had gone forward, I think most courts would not have permitted the parties to rely on the deposition after the husband died. But Judge Kittleson rules that "some" portions of the deposition -- those substantive areas where the judge thinks that Ellenor had completed her cross -- can be shown to the jury. This likely violates Louise's constitutional right to confront her accuser and would probably be sufficient grounds to overturn any conviction.

         A closing note: I continue to like the character of Richard Bay, the assistant district attorney, very much. He's plenty capable of going toe-to-toe with Bobby Donnell's crew of no-holds-barred defense lawyers. Plus, he's very believable as a prosecutor, despite the strange plot lines. Let me assure the reader: you just don't see many Lara Flynn Boyles roaming the halls of Suffolk Superior Court.

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