The Foggy Effect: Daredevil Season Two Shows Us What Good Lawyering Really Is

[Minor spoilers ahead for season two of Daredevil.]

Greetings friends! I’ve returned from my two-month sabbatical to give you a take so hot you better cover your face if you don’t want your eyebrows singed off. Ready for it? 

Daredevil season two is pretty great about showing what it’s like for lawyers to excel at work they don’t even like.

I know what you’re thinking. Daredevil? That came out a month ago. No one’s talking about that anymore. We’ve moved onto Batman v. Superman and Hardcore Henry and The Jungle Book. In a few more weeks, there’ll be yet another superhero opus hitting theaters with Captain America: Civil War. We don’t have time to think about Daredevil anymore. Such is the pitfall of Netflix’s “release it all at once” model. We can’t marinate in a show like we did in the old days.  The date of release is now the beginning and end of the conversation.

Which is a damn shame because the show took everything that worked in season one and honed it in season two, particularly its depiction of the legal profession. It’s no secret that I’m a fan of Elden Henson’s Foggy Nelson, the law partner of Matt Murdock/ Daredevil. A year ago, I praised Henson’s performance because he played Foggy like a person, not a plot point. I said then that Foggy is “silly, bright, capable, nervous, quick to forgive, optimistic about the future while being realistic about the present (they have no clients), adventurous, and willing to do anything for his friends.”  I was grateful to discover that I’m not the only one who really likes him.  As this io9 article points out, Foggy in season two isn’t just a good lawyer, he’s actually the moral center of the show. The article’s author says this about him:

“Foggy is a highly welcome mixture of competence and realism. His goals are to do the best by his clients that he can—while recognizing that he can only do so much within the system. In a show where so many people are either corrupt or so hidebound to ideology that they can’t bend, Foggy just keeps grinding out help.”

Which of course I agree with wholeheartedly. Nowhere is this more prevalent than when, at Matt's suggestion and over Foggy's repeated protests, the law firm of Nelson & Murdock take on as their client the most dangerous man in America: Frank Castle, a.k.a. The Punisher, after Castle’s savage murder-spree across Hell’s Kitchen. I get Foggy's concerns here. It's hard to ably represent a client you actually think is guilty and is terrifying to even be around (this is something Jon Bernthal gets very right about The Punisher: how terrifying it is just to be in his presence).

Yet despite being strong-armed into representing a client he hates and who won’t communicate with him - Castle rarely speaks to Foggy in anything more complicated than a grunt - Foggy does what any good lawyer would do... he represents his client competently.

I’ve talked in the past about how lawyers sometimes have to represent bad people because that’s our job. It’s easy for the outside world to accuse us of moral relativism or sinister intentions, but it’s rarely that simple.  A lot of lawyers, myself included, believe that even the worst of us deserve fair and competent representation. But it’s not just a belief in fairness that compels us - it’s the law. Our Constitution says that everyone has a right to legal representation, and the very first rule in the New York State Rules of Professional Conduct states that lawyers “should provide competent representation to a client”  and may not intentionally “fail to seek the objectives of the client through reasonably available means permitted by law” or “prejudice or damage the client during the course of the representation.”  In other words, even if you hate your client, you have to represent him to the best of your ability (since Matt and Foggy aren't public defenders, you could argue that they didn't have to accept the case to begin with, let alone fight to become Castle's attorneys. To that I would say, "but then we wouldn't have gotten to watch those awesome trial scenes!").

But the rules don’t stop there. When a lawyer takes on the representation of a client, whether in civil or criminal proceedings, the lawyer must “abide by a client’s decisions concerning the objectives of representation and… shall consult with the client as to the means by which they are to be pursued… In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.” So while a lawyer may have control over the tactical moves in a case, the client has final say over the strategy.

During trial prep, Foggy tries to convince Castle, a decorated war veteran, that the best way to avoid the death penalty would be to claim his violent rampage was the result of PTSD from his time in Afghanistan. Castle immediately rejects the idea because it would dishonor actual veterans suffering from PTSD. For Castle, the murders he carried out - all against criminals, killers, and rapists - were done clear-eyed and with purpose. He's not interested in weaseling his way out of responsibility on a technicality. And Foggy has to listen to his client! Not just because he’s compelled to by state law, but because he risks having Castle tank his own defense out of anger (which he does later anyway). What Foggy is left with is a client who won’t cooperate and a half-baked strategy for defending him. Yet still he perserveres.

And by the way, he does all this without Matt, the guy who got him into this mess to begin with! While Foggy is singlehandedly devising trial strategy and making up arguments on the fly to defend a man he personally believes is guilty, Daredevil is off investigating a new mystery with his ex-girlfriend, Elektra, essentially abandoning Foggy during the most important case of their entire legal career. 

But Foggy rises to the challenge. If your partner bails on you, you can’t just stop everything (you could ask the judge for a recess or a continuance, but those requests would likely be denied). You go forward as well as you can. It’s in this crucible - representing a bad man without your partner who is admittedly a more skilled orator - that Foggy proves his mettle. Not only is he a great lawyer (an attribute that is thankfully recognized and rewarded later in the season), but he’s got the moral high ground over the actual protagonist of the show. 

Daredevil may engage in more heroics, but in my opinion, Foggy is the real hero.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA