I was about to question the key witness in my first case as a newly minted lawyer. Though nervous, I had a secret role model: Law & Order’s long-time executive assistant district attorney, played by Sam Waterston for 16 seasons.
I asked myself, “What would Jack McCoy do?”
Although I had taken evidence in law school and had participated in various trial advocacy seminars, using the TV series for inspiration was a surprisingly effective model. And this isn’t just my assessment. One of the nation’s top federal judges told me she uses old episodes as a teaching tool. “But just the ones with Jerry Orbach in them,” she advised me. “That’s good law.” I doubled-down on my viewing habits.
As the trial progressed, I was surprised to realize how much the legal system could also learn from the ripped-from-the-headlines series.
The trial was a child custody matter, and it had many similarities to TV melodramas. The mother, who lived out-of-state, refused to return the child to the father in time for the new school year. There was no court-approved parenting plan—at least not yet—and what they agreed upon between themselves was part of the argument.
I was representing the father pro-bono through the American Bar Association’s Military Pro Bono Project. The mother had a court appointed attorney, as did the 8-year-old boy. The real issue, both legal and human, was determining what was in the child’s best interest.
In New York, child custody cases are tried in Family Court—in front of a judge but without a jury. This case had already taken nearly four months: two hours one day, an adjournment for several weeks, an hour another day, and so on. Now I was about to question the child’s mother—my final witness.
“In the seven years that your son lived with you, how many different addresses did you have?” I asked.
“Three,” said the woman.
The witness was lying, and I knew it. But the judge didn’t, and she was overtly sympathetic to the woman. Family Court judges typically favor the mother, and this particular judge was pretty hostile to me. In an earlier pre-trial hearing, the judge made a bizarre ruling. When, like Jack McCoy, I protested, the judge challenged me to appeal her decision. I did, and I got the judge’s ruling reversed. The judge had already snidely commented once about her unhappiness with being overruled.
How would Jack McCoy deal with an evasive witness? I asked the judge for permission to treat the witness as hostile. She reluctantly gave her approval.
I channeled my inner Jack McCoy and asked, “Did you ever live at 160 Smith Street?”
“For how long?”
“For about a year,” the mother said.
“And then where did you live?”
“2512 Northern Avenue,” she answered.
“And for how long?” I repeated.
“About a year.”
We went through this five times. She moved five times and her son hadn’t even turned six. The judge cut off the questioning.
Now the judge was angry at the mother. “So you lived in more than three places?” she asked.
“Yeah, I guess so,” the mother answered.
I thought this was going to be my Perry Mason moment: The wife would break down and confess to being an unfit mother.
It didn’t happen. Instead, she just glared at me from the witness stand.
I moved on to an incident when the child was hospitalized. The mother had a car accident, and the child was ejected from his car seat, gashing his forehead and needing 36 stitches. Whether he was not buckled into the car seat or the car seat wasn’t attached properly was unclear, but the mother testified that she had done everything properly and that the seat belt failed.
Picking up a piece of paper and looking down at it dramatically, I asked, “Do you recall being visited by the police while your son was in the hospital?”
“No,” she answered.
Mustering my best Jack McCoy frown, I held the paper a little further from me, not quite offering it to the witness. “You don’t remember being arrested?”
She huffed, “The police dropped the charges.”
I nodded sadly and put the sheet back onto my pile. It said the charges had been dropped, but the witness’s evasiveness was clear to the judge.
For two days on the witness stand the mother equivocated, denied and occasionally outright lied. And I kept asking myself, “What would Jack McCoy do?”
Well, he would have had a smart—and undoubtedly gorgeous—assistant second-seating him. I didn’t, but I promised myself that I would will try to convince another lawyer to join me for the next trial.
Television might seem like a pretty poor model for how the legal system works or should work, but the more I see how it really operates, the more convinced I am that Law & Order is a reasonable benchmark.
Years ago, an interviewer asked the great trial lawyer Tom Moore whether he watched legal dramas. Moore, who has won more million-dollar jury verdicts than any lawyer in history—90 is the current count—didn’t hesitate. “Absolutely!” he said. “That is the level of performance jurors expect, and I don’t want to disappoint them.”
Few lawyers can achieve the dramatic delivery and mastery of legal argument that Moore can. I certainly can’t, and my efforts at imitating Jack McCoy occasionally went over the top. The judge didn’t appreciate my facial expressions—my range from disbelief to exasperation to righteous indignation was pretty limited—and my attempted pacing looked more like baby steps in the tiny courtroom.
But I was not wrong in approaching the trial as if it were a one-hour episode: a story that had to be told convincingly with a hero, a villain, and a victim. Portraying the mother as a villain was a delicate proposition: She was poor, soft-spoken and polite. She wasn’t a drug addict and didn’t beat the child. And the judge was predisposed towards her. But the mother was also a congenital liar, and the child would be better off living with the hard-working dad. That had already been proven by the boy’s successful bout at school when he had lived with his father.
So I brought out the evidence: photographs, hospital records, and report cards. I even introduced transcripts from an earlier hearing during which the mother lied to the judge.
This should have been an open-and-shut case, but it wasn’t. Six months after we finished the trial, we finally got the judge’s verdict: my client won sole custody of his son.
How could a trial involving a relatively straightforward custody matter with just three witnesses take 10 months to resolve? Part of the answer is the court system’s inherent inefficiency, but the real explanation is the sheer magnitude of the court system’s caseload.
In 2015, there were more than 220,000 new cases initiated in the New York City Family Courts, and there are 57 judges citywide. The most common were child support cases, which accounted for 82,000 matters. Another 60,000 cases involved adoption, custody, guardianship, or the permanent termination of parental rights. And 35,000 involved the most serious matters: child abuse and neglect. Ten months is the average amount of time it takes for a Family Court matter to be resolved.
I soon returned to my old habit of watching Law & Order reruns. Luckily, they are nearly always playing and seemingly around the clock. I realized what needed to be done to fix an overwhelmed Family Court system: The Family Courts had to operate around the clock, too.
Before 2011, some of the Family Courts held night sessions. Since then, due to budget cuts, none do.
That is unacceptable.
Increasing the number of Family Court judges and extending hours late into the evening—which would be far more convenient for working parents—would go a very long way to reduce the backlog and time for case disposition.
The 2018 New York State budget is $153 billion and is flush with pet projects and political deals. The operating budget for all New York Courts is just $2.2 billion. Certainly, the governor and legislature can find a bit more to help the youngest, most at-risk New Yorkers.
Family Court has been called “the saddest place in New York.” Speeding up the process won’t make it any less sad, but it would make it less onerous.
Watching Law and Order reruns is a good idea for all new lawyers. Adopting Law and Order’s almost 24/7 schedule is an even better idea for our beleaguered Family Court system. On that, I think Jack McCoy would agree.
Steve Cohen is an attorney in New York. He is a former member of the Board of Directors of the United States Naval Institute and of Reach Out and Read.