Top 10 Mistakes Authors Make When Writing Legal Scenes
Today’s post is part of a series on professionals sharing tips and expertise in order to help novelists convey accuracy in their fiction. If you are writing any scenes that include doctors, lawyers, investigators, or law enforcement officials, be sure to study these posts (and print them out for reference).
The following guest post is from novelist and attorney Rick Acker:
I’ve been writing legal thrillers for ten years and litigating for over twenty. As you might guess, that means I get lots of questions about how to write legal scenes. Often I’m asked about how to make legal scenes accurate and effective. However, Dennis Kearney did a nice job last month explaining how to do things right when writing legal scenes. I’m here to help you spot things you may be doing wrong—probably because you saw someone else do them wrong in a book or on a TV or movie screen.
Here are the top ten most common mistakes I’ve seen, and I’ll share my thoughts on them:
- Screaming, crying, speechifying lawyers who don’t go to jail. It makes great TV: the impassioned advocate giving a stirring impromptu speech as she walks around the courtroom, while the judge impotently pounds his gavel. But it never happens. After about three words, the judge would warn the lawyer. If she didn’t shut up, the judge wouldn’t get flustered and bang away with his gavel. He’d simply turn to the bailiff and tell him to remove the eloquent attorney from the courtroom and take her to the lockup.
- Surprise witnesses and evidence. Surprise witnesses or evidence are like car crashes: They’re rare, and they generally don’t happen unless someone makes a serious mistake. The reason is simple: discovery. The opposing lawyers get to ask each other all sorts of questions, and only an incompetent lawyer will fail to ask what witnesses the other side plans to put on the stand and what exhibits they plan to put into evidence.
- Lawyers speaking directly to each other in court. Courtroom exchanges can get pretty heated, so there are a number of rules meant to keep things from getting out of hand. One is that lawyers can’t directly address each other. Instead, lawyers can only speak to the judge or (during opening statements or closing arguments) the jury. They aren’t allowed to argue directly with each other. And they can’t interrupt each other. Doing either of those is an excellent way to lose whatever point you’re arguing. And doing them repeatedly will get you held in contempt of court.
- Private citizens who “bring charges” or refuse to. When your villain beats up your heroine, she can’t bring charges against him for aggravated assault. Only a prosecutor can do that. All your heroine can do is report the incident to the police. And if she decides to have mercy on the villain, she can’t keep the prosecutor from bringing charges.
- State cases in federal court and other jurisdictional mistakes. Not all cases can be brought in all courts. Sometimes this is obvious—when your hero challenges a fraudulent will forged by his evil cousin, he doesn’t go to tax court, right? He goes to probate court. But most of the time, jurisdictional issues aren’t obvious to nonlawyers. For example, all federal courts have “limited jurisdiction,” which means that you can’t sue in federal court unless a federal law gives you the right to do so. State courts, on the other hand, are courts of “general jurisdiction,” meaning that you can sue in them without jumping over the same sort of jurisdictional hurdle.
- Lawyers getting in witnesses’ faces. This is another one we can blame on screenwriters. They want to show a dramatic closeup of a lawyer confronting a witness, so they have the lawyer stride forcefully up to the witness box and question the witness from just a few feet away, sometimes even closer. That doesn’t happen for two reasons. First, the judge typically won’t allow it (see below). But even more important, it’s very ineffective. Why? Picture where the jury is when the lawyer is leaning over the rail of the witness box: behind the lawyer’s back. They can’t see the lawyer or the witness, and they probably won’t be able to hear well either.
- Lawyers who move around the courtroom without permission. Judges typically maintain tight control over their courtrooms and don’t like lawyers (or anyone else) wandering around in them. Attorneys are expected to stay behind the lectern unless the judge specifically gives them permission to leave it (when pointing out something on a blowup of a picture, for example).
- Unfounded objections. Lawyers are only supposed to object when there is a legal flaw with a question or piece of evidence. Objections are not opportunities to argue about the other side’s case or manners. For example, “objection, hearsay” or “objection, the question assumes facts not in evidence” are valid objections. But “objection, the defendant’s slander of my client’s reputation is completely outrageous—she would never consort with trash like him” is not a valid objection.
- Big firms handling little cases. Hourly rates at big firms typically start around $300 an hour for junior associates fresh out of law school and go as high as $1,000 an hour for the top partners. And the rates will be even higher in places like New York City or Silicon Valley. As a result, it almost never makes economic sense to hire a big firm unless there’s more than $5 million at stake.
- Armies of lawyers working on a single case. There are two reasons this doesn’t happen. First, armies of lawyers are hugely expensive (see above). Second, virtually all evidence in big cases is now kept in massive databases with powerful search engines. So all you need are a handful of tech savvy lawyers and paralegals running searches and reviewing what they turn up. Today, a big team for a single case is half a dozen lawyers and three or four paralegals. And if a firm really needs an army of lawyers for a particular project (e.g., reviewing paper documents in a warehouse), they’ll hire temp lawyers for $100 an hour and let them go as soon as the project is done.
These are my own personal Hall of Infamy candidates, but other lawyer-writers have their own. And there plenty of legal scenarios that sound like mistakes, but aren’t (just Google the “rule against perpetuities” to see an example). So, if you’ve got questions or comments about this list, have additions you’d like to suggest, or are curious about whether something else really happens in courtrooms, please leave a comment below. I’ll be happy to respond when I stop by later.
Rick Acker is a deputy attorney general in the California Department of Justice. His unit prosecutes large corporate fraud lawsuits of the type described in his legal thriller, When the Devil Whistles (#1 Kindle best seller). His other novels include Dead Man’s Rule (Top Pick, Romantic Times), Blood Brothers, and the Davis Detective Mysteries for young adults. In addition to his novels, he is a contributing author on two legal treatises published by the American Bar Association. Rick lives with his wife, four children, and miscellaneous animals in the San Francisco area.
How valid are “common law” assumptions, e.g. Common Law Marriages are in effect and valid after 7 years cohabitation [living together, not sexual intercourse].
The common law is still alive and well, but it’s more of a gap-filler these days. Most states now have legislation that covers the subjects that common law used to. That includes common law marriage. It’s still available in a few states, but most now have specific statutes covering the creation of marriages.
Great post. Good reminders, all. Apropos #7 (moving around), I once asked a federal judge how close he’d let me get to the jury box. He drew an imaginary line which he called the “Andersonville Line,” after the Confederate Civil War Prison w/out fences. Said the judge: “Just like Andersonville, if you get closer to the jurors than that, I’ll shoot you.” Message delivered.
Dennis, did you know that the origin of the word deadline comes from the Civil War? I don’t know if it originated from a specific locale, but it meant a line drawn in the dirt that one could not cross without getting shot. Good thing our publishers don’t opt for this meaning when we’re late turning in our manuscripts!
I learn something cool every time I read this blog! Nope, had not heard the origin of ‘deadline,’ but it sure matches what that judge told me!
Great story, Dennis! You should use that line in a novel (if you haven’t already).
Thank you very much for your time, Rick. This is a great article and I have often wondered about these very points. It all just seems so ‘Hollywood’. I don’t write about law, but what you have said is the way I would imagine it to be.
Jo
Thanks, Jo! Glad you enjoyed it.
Your article is great! Thanks!
I am a physician, and often cringe at the inaccuracies of hospital scenes in TV shows and books.
I have a question about a court scene I am writing. The biological mother is fighting the adoptive parents for custody of a child. First, she has to prove she is the mother using DNA tests, and then show she is capable of taking care of the child. My questions are:
1. Would this happen in the family court?
2. There would be a judge, but no jury?
3. Are the lawyers allowed to cross-examine witnesses?
Thanks in advance.
Sunanda
Thanks, Sunanda! Here are my responses to your questions:
1. Would this happen in the family court? Yes
2. There would be a judge, but no jury? Correct
3. Are the lawyers allowed to cross-examine witnesses? Yes
Two big caveats to the above: First, I’ve never practiced family law, so those answers are based on my general litigation experience fortified with a little Internet research specific to child custody cases. Second, I’m giving you the general rule. Family court is a division of the state trial court system, so it varies some in every state. And in some states, it may vary a lot. For example, Texas and especially Louisiana are (in)famous for doing legal stuff differently from the rest of the country.
Thanks, Rick!
Sunanda and Rick,
First, great article and responses to the questions and comments, Rick.
In my former practice, I had a few difficult cases in family court and since have been busy mediating couples seeking to divorce amicably. It was great grist for the mill in my writing. Sunanda, it might help for you to know that the presentation of evidence in family court will generally be less constrained than in criminal and even most other civil matters. This is because what is being decided is “the best interests of the children” rather than innocent/guilt (criminal) or liable/not liable (other civil matters). With this in mind, you can take a few more liberties than you might think in presenting what goes on in your trial scenes (most often called hearings in family court). It would still help to have a lawyer look over how you have the attorneys examine and cross-examine the witnesses. You might be quite surprised with the support you receive.
If you’d like, take a look at “Boundaries,” the novel I’ve written about a case in family court. There are three chapters covering two hearings in a pretty interesting case – entirely fictional.
Best of luck in an interesting project.
Jim Steinberg
I hear what you’re saying. Some verisimilitude is always a good thing to strive for. I was in the Army for a while, and I often bristle when a story or a movie gets something wrong. For example, if somebody says something like “let’s get back to the base,” I go slightly insane because there are no army bases in the United States. They’re called posts, not bases. For some reason that still bugs the crap out of me.
Having said that, however, if you go for too much verisimilitude, you just may sacrifice drama and action.
An old writer friend of mine spent ten years working as an ER doctor, and one time I watched ER with him. I stopped counting how many times he said, “No, that doesn’t happen.” Or “That never happens.” But the thing is, he still loved the show. He watched it practically religiously. He obviously could forgive the show whenever it veered from reality, because the reasons to watch the show in the first place far outweighed any “real life” discrepancies.
He always told me fiction and movies need to based on real life, but they shouldn’t be exactly like real life. Real life is often far too dull. What I’m saying is if a writer, let’s say, wanted to follow all of your guidelines in order to render a realistically accurate courtroom scene, I would hope for his or her sake, that that scene would be really short, because it might be really boring if it isn’t. I’m speaking from the point of view of a screenwriter. I probably shouldn’t say that this applies to novels as much as it does to the visual mediums of television and film, but there is a reason why you often see in a film or television show lawyers screaming and arguing with each other and moving around the room and getting in the faces of witnesses, and that is because it all makes for good drama, and you need good drama more than you need to follow what’s real. You said it yourself. It makes for good drama.
Let me put it this way. What would My Cousin Vinny have been like if Vinny had been confined to a lectern whenever he spoke in court?
By the way, I bet you really hated Ally McBeal huh? 😉
How could I? Not possible!
Thanks, Michael. In my experience, it’s possible to create compelling courtroom scenes that are realistic. You want your heroine to make an impassioned speech? That’s fine, but save it for closing argument. You want your hero to ignore the judge’s courtroom rules? Okay, but recognize that he may wind up in jail as a result–which actually happened & was a funny running gag in My Cousin Vinny (one of my favorite legal movies, BTW).
Thank you!!! These reasons, especially 2 and 3 are exactly why the show Suits drives me crazy. They are supposed to be these amazing, brilliant, best of the best, powerful lawyers until…
They show up in court or to meet with their opponent/another lawyer and get bested by a teeny tiny unknown fact that a paralegal could’ve figured out.
And I’m not even a lawyer!
Great post, Rick!
Thanks, Rachel! Glad you enjoyed it.
Great article and advice! I write noir and most of my protagonists are the “justice first, rule of law second” type so I may never write a courtroom scene, but I am saving this article in case I ever do. Accuracy is paramount in my writing, as evidenced by the hours of research I will do online when my story takes place somewhere I’ve never been. Nothing makes me cringe more than shows like ER or Reckless. I have to remind myself those shows are written that for effect, but, I mean, really?
Just because it’s fiction doesn’t mean it shouldn’t be true to life, right?
Great article!
I have a couple of questions about rules of evidence in criminal trials:
1. Does discovery apply to evidence the prosecution possesses, but which has no apparent exculpatory value, and which prosecution does not use at trial?
2. If this isn’t already answered in response to the question above: Assuming no discovery violations, is anyone–before, during or after trial, permitted or entitled to know what evidence prosecution possesses, but does not use at trial? If discovery rules are followed, and neither prosecution nor defense present a given piece of evidence at trial, is there anyone else–before, during or after trial–who would be permitted or entitled to know what evidence the prosecution possessed, but did not use?
I’m guessing the answer is “yes”, since strategies are not necessarily shared in advance, and it would be difficult to know what could or could not be supportive of the defense case, if one does not know what the defense strategy is, or what the strategy for a future appeal might be?
In the case I am writing about, the defendant, Mirandized and with lawyer beside him, gives an uncontested confession to having inadvertently killed the victim during a struggle, after the victim invited the defendant into his home, then discovered the defendant attempting to steal items from the home. Among items found at the scene are cameras belonging to the victim, containing nude photos of the defendant. The photos are determined to have been taken in the victim’s home shortly before the killing, and it appears the defendant posed willingly for the photos.
If the prosecution has no use for these photos and doesn’t present them, is the prosecution required to inform the defense that it has the photos?
If the defendant later changes his account, and claims he took a shower in the victim’s home, then inadvertently killed the victim in self defense, when the victim refused to reveal where he had hidden the defendant’s clothes–do the photos become exculpatory, since they could conceivably support the account of clothes being hidden?
Thanks for any assistance you can provide. This is set in California, by the way.