'Fisk' is the civil-practice lawyer you've been looking for

If you're looking to fill that Netflix queue as the writers' strike drags on, check out the Australian sitcom, Fisk.

When I put together a church message on ethics recently, I was looking to fill out a line about civil practice attorneys and coming up short. I wanted to make the point that when someone says "personal injury lawyer," we are quick to think of iconic unethical characters, and it's harder to conjure up the ethical ones. I didn't at first realize how much harder.

I ran the thought experiment on myself first. Even for me, a torts prof, it's hard, first, to filter out criminal lawyers. When I work the problem chronologically, the first character lawyer I remember adoring in my youth is Star Trek's Samuel T. Cogley (Elisha Cook), who defended Captain Kirk in a court-martial: criminal. The first civil selection that comes to mind is Boston Legal's Alan Shore (James Spader). But even he first appeared on The Practice, a criminal-law show.

Solidly on the civil side, unethical characters do come to mind quickly. For the message, I settled on My Cousin Vinny's Vinny Gambini (Joe Pesci), who was a civil-practice attorney out of his depth in a criminal-law storyline, and, to cross generations, Breaking Bad and Better Call Saul's Jimmy McGill/Saul Goodman (Bob Odenkirk). 

Then the ethical characters....  There are plenty in criminal, both prosecution and defense. Jack McCoy (Sam Waterston) is most often cited as admired when I survey 1L students. Ben Matlock (Andy Griffith) and Atticus Finch are classics.

Civil? Alas, so few people remember Alan Shore. I briefly considered Victor Sifuentes (Jimmy Smits). But on close inspection, nobody on L.A. Law holds up well as memorable and consistently ethically. There was Ally McBeal (Calista Flockhart), but she had a lot of balls (and dancing babies) in the air besides law practice. I interrogated the staff of The West Wing; none of the leads was a lawyer. I'm fond of Madam Secretary's Mike B. (Kevin Rahm), but he was as often as not a devil's advocate to test Elizabeth McCord's righteousness. Erin Brockvich? Real-life hero, but, to be technical, paralegal and consultant, not lawyer. Maybe Ralph Nader, though then it gets political.

John Calvin (1509-1564)
Public domain via Wikimedia Commons

For the church message, I settled on the real-life John Calvin, the 16th-century French theologian. He trained as a lawyer before he got caught up in the Reformation. It's a reach, I know.  But the bench is not deep, and Calvin was a stalwart for his faith.

So I come back around to Fisk, the title character of which is lawyer Helen Tudor-Fisk, created and played by comedian Kitty Flanagan. Tudor-Fisk was a high-powered corporate lawyer in Sydney until a bitter divorce and a workplace meltdown prompted her to upend her career and move to Melbourne. There she struggled to find a bed and a job, landing as a temporary fill-in for a suspended trusts-and-estates lawyer at a scrappy two-partner shop.

Fisk is not about law or legal ethics. The show, and its comedy, derive from Flanagan's delightfully dry-witted character as she navigates the ups and downs of her shattered life. The law practice is setting and background. But then—I don't think it's a big spoiler to say—her quiet diligence in her new job suddenly and gratifyingly comes to the fore in the finale of the six-episode season 1.

When I finished Fisk s1 last week, my own biases were laid bare. I had tried to think of what an ethical civil-practice attorney looks like. I pictured a renowned, tough-as-nails civil litigator, a silver-haired Matlock analog, dazzling jurors in the courtroom in "ripped from the headlines" cases.

Forget all that. Helen is the real deal.

I fell for Fisk.

Season 1 of Fisk is streaming now on Netflix. Season 2 ran on Australian Broadcasting last year; to my knowledge, it has not yet been licensed to stream in America.

UPDATE Oct. 22, 2023: Fisk s2 is now available to purchase in America from services including Amazon Prime.

Netflix's 'Enola Holmes' tangles with family copyright

Brown (image by Gage Skidmore 2017 CC BY-SA 2.0)

I quite enjoyed the film Enola Holmes, released on Netflix in 2020, a welcome respite from #QuarantineLife.  Stranger Things sensation Millie Bobby Brown was delightful as the lesser known teen sister of the super-sleuth Sherlock, played with rich arrogance by Henry Cavill.  I did not know then that the movie was based on a YA book series, by fantasy writer Nancy Springer, dating to 2006. 

The Arthur Conan Doyle estate seemed content to let Springer go about the quiet business of spin-off fan fiction, but got its hackles up when Netflix got into the game.  The copyright picture behind Sherlock Holmes is complicated: one might say, a puzzle to be solved.  Some of the works have fallen into the public domain and some have not, and the matter is further complicated by a U.S. copyright regime that protects copyright a full generation longer than British law.

The Doyle estate sued Springer and Netflix in federal court in New Mexico in June for copyright and trademark infringement.  The estate's U.S. licensing representative lives in Santa Fe, an attorney explained to the Las Cruces Sun News.  The case, Conan Doyle Estate Ltd. v. Springer (D.N.M.), was dismissed in December upon stipulation, suggesting the parties reached a settlement.

Claims of copyright in fictional characters are always dicey, because they press the limits of the doctrinal dichotomy in copyright law that only fixed representations, and not ideas, may be protected by copyright.  A character has one foot fixed in a tangible medium of expression, as the law requires, and, at the same time, has one foot in the wind of idea.  In the instant case, the plaintiff advanced one remarkable theory to bolster its position.

The plaintiff suggested that Arthur Conan Doyle in fact authored two distinct versions of the Sherlock Holmes character, and that the fictional Holmes universe created by Springer and Netflix employed specifically the latter incarnation—which, suitably for the plaintiff's case, remains copyrighted.  The complaint explained that before WWI, Holmes was famously "aloof and unemotional," quoting Watson from "The Adventure of the Greek Interpreter" on Holmes's "deficien[cy] in human sympathy," "aversion to women," and "disinclination to form new friendships."  Then:

All of this changed. After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.

Thus, the complaint posits, Enola Holmes, the story of Sherlock's sister, a figure long marginalized but now primed for redemption, is derivative specifically of post-WWI Sherlock Holmes—©.

Despite the dismissal, you still can enjoy untangling the skein of intellectual property claims in Conan Doyle Estate v. Springer with Alice Chaplin, writing on February 4 for A&L Goodbody's Ireland IP and Technology Law Blog.  Then solve a mystery with Enola Holmes on Netflix.

Book review: Towles's 'Gentleman in Moscow' weaves rich tapestry of 20th-century Soviet Russia

I'm part of a book group, among other reasons, to find an excuse to read things I otherwise would not take the time to read. I love my group, but a lot of the times, the reading only confirms my good judgment about use of time in the first place. The exceptions, though, stand out, e.g., Fredrick Backman's Man Called Ove, and invariably make the whole commitment worthwhile.

Last month was such a worthwhile month.  We read Amor Towles's A Gentleman in Moscow, selection of public-service-lawyer-extraordinaire Karen Owen Talley.  Here's the beautiful and clever book trailer (Delphine Burrus, dir.).



"Beautiful and clever" only begins to describe this book.  I have not read Towles's previous and popular Rules of Civility, so I cannot compare.  Suffice to say, though, I was surprised to learn that Towles is a Boston-born investment manager writing from Manhattan, and not a full-time scholar of the Russian Revolution, or even a recently arrived time traveler from 1920s Moscow.  Shelved as "historical fiction" in some libraries, this book depicts changing Russian society over decades after the revolution, from the 1920s to 1950s, all from the curious and ultimately delightful perspective of an aristocratic political prisoner under house arrest in an upscale hotel.

Maybe Towles was playing at Russian style, or it's just his speed; the book feels slow on plot a good ways in.  Ordinarily that's a turn-off for my action-aficionado, smartphone-addled brain.  Yet somehow this book was engrossing; every day I looked forward to re-immersing my mind's eye in the fantastical world of the Metropol Hotel, as envisioned from the endearingly witty perspective of Count Alexander Ilyich Rostov.

Towles is brilliant at authoring irresistible rabbit holes for the reader.  Sometimes these seemingly discrete stories feel like pointless tangents; a fellow groupie and I had simultaneously imagined Towles as the sort of person who carries around a small memo pad to jot down vignettes of the day, from his peculiar perspective, and then litters his writing room with the pages.  Yet these seeming tangents weave themselves together later in the book into a tapestry that is so much more than the sum of their parts.  While each vignette in the book seems dispensable in its time, the whole of the novel would be painfully incomplete were it lessened by any one.  Here's a short example, just as the Count has discovered morning coffee and the reward of grinding it himself:

Even as he turned the little handle round and round, the room remained under the tenuous authority of sleep.  As yet unchallenged, somnolence continued to cast its shadow over sights and sensations, over forms and formulations, over what has been said and what must be done, lending each the insubstantiality of its domain.  But when the Count opened the small wooden drawer of the grinder, the world and all it contained were transformed by that envy of the alchemists—the aroma of freshly ground coffee.

In that instant, darkness was separated from light, the waters from the lands, and the heavens from the earth.  The trees bore fruit and the woods rustled with the movement of birds and beasts and all manner of creeping things.  While closer at hand, a patient pigeon scuffed its feet on the flashing.

. . . .

So perfect was the combination that upon finishing, the Count was tempted to crank the crank, quarter the apple, dole out the biscuits, and enjoy his breakfast all over again.

But time and tide wait for no man.

I won't go much into the meat of the tale, other than to counsel the reader to watch for time as a theme.  The seeming absence of plot is itself a grand illusion, representative of how time passes and transforms Russia outside the steady, unchanging walls of our protagonist's hotel confinement.  I didn't realize that until we started to put the pieces together as a book group, and now I wish I had paid closer attention on first read.

A TV series is in the making.  I thought that a bad idea, at first, worried that this delicate marvel would be tortured by Hollywood-like priorities until it yields something more fast and furious.  But a fellow groupie pointed out that it's all in the characters: an unhurried and dignified telling might be executed well in the right hands.  Perhaps it bodes well then that Kenneth Branagh is set to produce and star.  But don't wait for a screen adaptation; you'll be cheating yourself out of a journey best rendered by the imagination.