“Lawsuits” and the Difference Between Federal and State Courts

Most of the practice of law takes place while the federal prosecutor sits alone in a room with the suspects. Despite the episode’s other wacky issues, I found this storyline the least believable.

My son has a new nanny to help pick him up from school and babysit him in the afternoons on days when his kindergarten doesn’t meet. While discussing my schedule recently in regards to blocking out some time to write my column, I walked him through most of my ABA Journal topics and threw in some movie and TV titles that I analyzed.

She mentioned that she liked the show Combinations. I assured her that she was not the first person to present the series as the basis for this feature film. Seeing that I had no other option in mind, I thought it was high time I gave Combinations A try.

A bit of context

The series originally aired on USA Network on June 23, 2011. It ran for nine seasons, with the series finale airing on September 25, 2019. It can now be viewed on the Peacock streaming service. Combinations is an ensemble piece with many players, but for the intentions and purposes of this column, we will focus on high-profile attorney Harvey Specter (Gabriel Macht) and his “partner” Mike Ross (Patrick J. Adams ).

Although I used the faithful services of episode.ninja, according to custom, I took a somewhat different approach than usual. Typically, I pick the episode with the highest user rating and run with that; but this time I chose the second highest rated offer. I had my reasons: First and foremost, the highest-rated episode is the last entry in the entire series, and I had some reservations about starting with the end. Also, the second place caught my attention when I read: “Harvey and Mike find themselves at odds with a tough US lawyer.”

To anyone upset by this deviation from my usual practice, I apologize. However, I don’t make the rules, I just imagine them and write them down.

The episode in question (season 3, episode 16) begins with a recap, but I was still bound to be lost. My background research has taught me that Combinations revolves around the lawyers’ interpersonal relationships, particularly those of Specter and Ross. In the pilot episode, Specter hires Ross as a partner in his Manhattan firm, even though Ross never finished college, let alone graduated from law school. What Ross does have, however, is an undeniable understanding of the law (thanks to his photographic memory) and a penchant for the creative application of it.

Questioning time

In that context, I could at least piece together the episode’s discussion of Ross “becoming” a lawyer in some capacity. Apparently, in the previous episode, someone hacked into the bar association’s website and added their credentials to the lawyers’ roll. A little wild? Maybe. But I’m sure it makes for good TV for the uninitiated.

Near the beginning of the episode in question, Ross is approached by agents working with the local U.S. Attorney’s office. They ask Ross to accompany them and he complies. It looks like the US attorney has challenged a recent settlement Ross negotiated with another attorney, and he’s about to take down a “dirty lawyer.”

Agents bring Ross in for questioning, and the prodigy curiously fails to invoke his Fifth and Sixth Amendment rights. For someone billed as a legal genius, it seemed awkward to circumvent such prominent shields to speak freely with a prosecutor who has an ax to grind. Nonetheless, Specter quickly catches wind of the situation and shows up to save the day (for now).

Soon after, Ross was officially arrested on suspicion of conspiracy against the United States. He and his alleged co-conspirator are taken back to the US Attorney’s office, where they are separated and placed in holding cells. This time, Ross invokes his right to an attorney, but the prosecutor dismisses the request and simply relies on the Patriot Act.

Specter and his firm eventually step in to represent Ross and the other attorney against the prosecution’s presumably underhanded interrogation tactics. Therefore, there are no courtroom scenes and most of the law practice takes place while the prosecutor sits alone in a room with the suspects. Despite the episode’s other wacky issues, I found this storyline the least believable.

After all, every time I’ve met an assistant US attorney with a client, there was also at least one federal agent present. The condition here is “with a client”, so I couldn’t tell you how American attorneys behave when alone with suspects. I’ve only practiced in the federal courts of Oklahoma, so I can’t speak to any other jurisdictions. Yet my gut tells me that this situation rarely plays out, if at all.

Federal court versus state court

And why is that? Because the federal government allocates a ridiculous amount of resources to its prosecution arm, and I doubt many American lawyers would venture to jeopardize their extremely high conviction rate by even giving the appearance of impropriety regarding compliance rights of a suspect.

Also, in my experience, suspects in federal court are rarely interviewed unless and until officers have built a solid and viable case for prosecution. It’s very different from the small town “Barney Fife” surveys that we often see at the state level. In these local law enforcement situations, the Crown and law enforcement agencies may be more likely to switch first and ask questions later. The Feds usually have a much more calculated plan of attack in comparison.

This plan unfolds in the way they launch their formal charges. Here in Oklahoma, charges in state court almost always begin with an arrest warrant followed or concurrently by an indictment filed in the district court. Very rarely do we see criminal charges stemming from a grand jury indictment at the state level.

In federal court, however, we typically see charges arise in one of three ways. The U.S. Attorney’s office, in conjunction with law enforcement, will often file a criminal complaint, which will then lead to a formal charge and a warrant for your arrest. A criminal case can also be initiated by indictment after presentation to a grand jury. Yet many people contact my office after receiving what is called a “target letter”. This amounts to the government sending a notice that it intends to charge an individual unless they (and their attorney, if they choose) meet with the prosecution and the respective officer(s). .

To be fair, it is common practice for suspects/accused to meet with the U.S. Attorney – either for a Rule 11 debriefing if they are considering cooperating in any form or manner, or for a presentation and discussion – when they receive a target letter.

As I mentioned, I have never seen the prosecution in any of these meetings without at least one of the federal agents involved in the investigation. Therefore, it was difficult for me to give too much credence to the “interrogation” scenes depicted in this Combinations episode.

Nonetheless, the series works from a fun and unique genesis, and I’ve always been a fan of the anti-hero aesthetic. At the end of the day, Combinations has some appeal as a flashy, stylish legal drama for those unfamiliar with the inner workings of the legal system in real-world practice. And while there are some engaging interactions regarding the potential complexities of big business, it seems a bit of a stretch.

Still, that’s to be expected: we’re dealing with a conspiracy that revolves around a fraudster who has worked his way up, at least initially, to “become” a licensed attorney. I admit – much to my disdain – that not every legal drama need be primarily procedural. There is room for fun, as long as it is within the realm of the possible.

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Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white collar crimes.

The study of law isn’t for everyone, but its practice and procedure seem to be permeating pop culture at an increasing rate. This column deals with the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal or the American Bar Association.

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