An Inside Look at Law and Lawyers: 5 Tips for Authors

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 doctor, lawyers, investigators, or law enforcement officials, be sure to study these posts (and print them out for reference).

The following guest post is from trial lawyer and novelist Dennis Kearney:

“The first thing we do, let’s kill all the lawyers.” —Henry the Sixth, William Shakespeare

The Old Bard tapped into something primal about fiction: we lawyers are a very entertaining bunch. This is especially true in the United States, given our unique devotion to the jury system. I have been a trial attorney for a long time, running the gamut from handling murder cases to dealing with defendants who were arrested for spitting on the sidewalk, and everything in between.

Speaking candidly, I never truly appreciated how fascinating the legal world is to the non-lawyer. Just this past summer, Susanne edited my historical legal thriller about two murder trials separated by fifty years, yet connected by one old man. Susanne’s tough-love comments and edits should have clued me in that writing about the law is interesting. I received the same reaction from a major publishing house, and secured an agent because she found the legal story “intriguing.”

What makes the law so intriguing, such that writing about it merits your consideration? Think about the law in light of lessons preached on this blog. The law comes prepackaged with tension, protagonists, antagonists, goals, struggles, changing sands, and finality. Gee whiz. I haven’t dropped a finger on the keyboard, and I’ve got all that!

The American system is called an adversary system. Justice is achieved (supposedly) when two sides come into court and beat each other’s brains out. Mix thoroughly, and bake in front of an unpredictable jury. You get the idea. Why should a non-lawyer miss the fun? You shouldn’t, so I humbly submit my 5 suggestions for mining this rich world.

  •  Don’t Be Intimidated: Admittedly, someone like me has an advantage in writing about the law because that happens to be my profession. Precisely: I have an “advantage,” not a “monopoly.” Novelists have never been in a time machine, to the moon, or to New York City in the 1880s. None of us would blush at the prospect of tackling topics totally foreign to our being. Feel empowered knowing that Harper Lee (To Kill a Mockingbird) somehow managed to create the paradigmatic legal thriller after dropping out of law school. Novelists excel at making things up. The law is your next canvas.
  • Pick Your Poison: Civil or Criminal? At the most base level, a civil case is about individual rights (money, free speech, personal injury) while a criminal trial is about personal freedom. My story happens to be about executing innocent people, but the civil side of the street is a broad as your imagination.

Think about any dispute, and you can place that fight in court. As you map our your story, be mindful that a civil case has very few surprises in court. Much of the fun in civil cases arises from uncovering the truth during a pretrial process called “discovery.” You can poke around, issue subpoenas, make people talk to you.

However, you have to turn that evidence over to the other side. Tension in a civil case comes from three things: (a) uncovering the truth outside court, (b) wondering how a witness will hold up on the stand, and (c) perseverating about what a jury will do with the evidence. I perseverate quite a lot.

Contrast this with the criminal trial. Most of the tension arises in court. The prosecutor rarely knows what the defense will do. Neither side knows what the jury will do. And the defendant always wonders: “Should I bring my toothbrush?”

  • Research: The legal story requires no less research than your story about the neurosurgeon. The best part is that you don’t have to study all the rules, just the ones that move your story forward.

The Internet is invaluable. You can read real cases that match your story line. Judges love to show off when they write opinions. That’s one rich primary source. If your tension comes from a private investigator and an attorney discovering the truth about ground water pollution, perhaps you only need to study how a lawyer compels evidence from a recalcitrant witness. Who cares about the rules of evidence if someone is going to threaten your protagonist’s life outside the courthouse?

Once you learn the rules applicable to your legal story, break a few. The legal system hums because great attorneys know when to break the rules. You will look like a pro when you do.

  • Keep It Dirty: More accurately, keep things un-neat. The law is never tidy.

When I was a prosecutor, I lost some cases that left me with a hole in my stomach. Was he really innocent, or just “not guilty”?—meaning, I didn’t prove my case. If the defendant is innocent, then the bad guys are still out there. How satisfying is that? We used to console ourselves in defeat by saying, “We’ll get him on the next one.” Often, the “next one” never arrived.

The law rarely delivers a nicely wrapped package like an episode of CSI. The law nags at you when you are lying in bed. Your story doesn’t have to resolve all the problems, just the ones facing your protagonist.

  • Consult an Attorney Who Has the Expertise You Need: This is your one big chance at free expert assistance. Trial lawyers are born storytellers. We have egos that love to be massaged. Everyone knows an attorney. While you are doping out your story, call an attorney you know, explain your issue, and ask for a referral for someone you can bounce ideas off. Trust me: your request will be met with open arms. Then, when you are done writing your scene, ask the attorney to take a quick read. Glaring mistakes will be obvious to her, and she will be honored to help.

Congratulations. You now have as much street cred as Harper Lee.

I’ll see you on the courthouse steps.

Dennis Kearney headshotDennis Kearney is a former prosecutor in Essex County (Newark) NJ, where he tried over one hundred cases involving murder, armed robbery, narcotics, arson, burglary, weapons, and assault. In the private sector, he continues to try matters involving health care fraud, RICO, trademark infringement, employee theft, and construction disputes.

Feature Photo Credit: shawncalhoun via Compfight cc

11 Responses to “An Inside Look at Law and Lawyers: 5 Tips for Authors”

  1. Andy Farman March 16, 2015 at 11:59 am #

    Another factor with juries in criminal cases, at least in the UK, is the catchment area from which they are called.
    Securing a conviction at Inner London Crown Court, in a deprived area of south London, is a deal harder than it is at Maidstone Crown Court in rural, affluent Kent.
    ILCC juries just do not like the police.
    However, you can walk away from any court in the land scratching your head and wondering how on earth the jury came to the decision that it did.
    Basically the jury is twelve pressed men and women, at least half just want it over and done with so that they can get on with normal life, five knuckle down and give it a fair go whilst the twelfth is as keen as mustard with all the box sets of ‘Rumpole of the Bailey’, ‘Judge John Deed’ and ‘Perry Mason'(digitally re-mastered) at home. Number twelve is easy identified from you position in the witness box as he/she is the only one trying to record every word in long hand and also endevouring to observe if your eyes flicker under cross examination.

    Many thanks indeed for all five suggestions as I have no idea how the courts really work on your side of the pond but always assumed that it is nothing like US TV shows portray them.

    A pointer for anyone writing about UK courts, the British judges do NOT have gavels despite what British TV shows would have you believe as the writers and directors do their research by watching US TV shows.

    Many thanks once more, sir.

    • Dennis Kearney March 16, 2015 at 12:13 pm #

      Little did I expect to receive such enlightenment from a brother at the bar across the pond! Thank you for the insight on the British model. You are more savvy than I in figuring that US courts are not like Judge Judy or TV cop shows. I just assumed all depictions of the British system on TV are gospel. Thanks for sharing and making this a richer post. Dennis

      • Andy Farman March 17, 2015 at 3:16 am #

        Very kind of you to say so sir but I am just a thirty year veteran London Bobbie, and one who has had his a**e handed to him a time or two by far more savvy barristers in court.

    • Rachel Amphlett March 20, 2015 at 5:53 pm #

      Thanks to you both, Dennis and Andy, for sharing your valuable insights; I have a feeling this is a Live Write Thrive blog post that I’ll be re-visiting over the years!

  2. Sean O'Mordha March 17, 2015 at 3:11 pm #

    Good points. Oh, how I cringe at cops and lawyer shows. I have degrees in Criminal Justice and Law, and until retirement worked as a police officer, Investigator, Chief of Police, and Prosecutor. That background provides unique insights into each of those areas, insights that a person who has not had such personal experience fails to grasp. Alas, I don’t know of many people who would volunteer to be involved in a riot or firefight to accurately describe an officer’s emotions and feelings, and then sit through a trial as a defense attorney analyzes every move and decision. It boils down to write what you know, and if you don’t know, put boots on the ground to find out.

    Sean O’Mordha

    • Dennis Kearney March 18, 2015 at 6:03 am #

      Your observations ring so true. My #1 son spent 7 years in the Washington, DC Metro Police force on the narcotics squad. He had to make split-second decisions on whether a perp who refused to show his hands was hiding a weapon. He saw poverty and violence every day, as well as police who became numbed to it all. When he told me he wanted to go to law school, I happily gave him my blessing. God bless you guys, who risked so much for so little in return.
      Dennis

  3. Sheryl Dunn March 17, 2015 at 4:15 pm #

    Although I am a Canadian lawyer, and in the middle of writing a legal thriller, the story is set in the US. Even if it were set in Canada, however, I would still get my scenes looked over by an American trial attorney.

  4. Sheryl Dunn March 17, 2015 at 4:27 pm #

    Hey, Dennis, are you offering?

    Two court scenes involved:

    1. protagonist volunteers as an ‘Internet Angel’ i.e., she poses as a child in chat rooms and trolls for pedophiles but when the pedophiles turn up to meet her they meet the police instead. I have no problem with this trial scene because the protagonist freaks during the trial. What I have a problem with are some of the jurisdictional issues about the police and how these volunteer organizations interact with the police (I can likely find out the latter from those organizations.)

    2. barely adult and suffering from diminished capacity, the protagonist’s granddaughter is accused and convicted of attempted murder. The DA, the judge and the jury don’t buy the diminished capacity defense because the defendant has a very basic idea of right and wrong, but doesn’t really ‘get’ the relationship between cause and effect. This trial scene will be more challenging because it will be from the ‘beginning’ to the end, with suitable omissions.

    My Canadian trial experience is limited to judges sitting alone, with only one assist on a jury trial.

    • Dennis Kearney March 18, 2015 at 5:59 am #

      My post is an open invitation! Couple of thoughts, and feel free to email me as well.
      As to Question #1: if a volunteer organization is trolling for internet stalkers, you’ve eliminated all constitutional challenges by the defense, to such things as entrapment, Fifth Amendment (right to silence) issues. This is because constitutional limitations do not apply to a private citizen, only to the government. As a practical matter, the private organization becomes the complaining witness, instead of the State.
      As to Question #2: each of the 50 states has slightly different standards for mental capacity. For a specific intent crime, such as attempted murder, the defendant must have the mental ability to know the nature and quality of her acts and the ability to act knowingly.
      Welcome aboard.
      dkearney1210@verizon.net.

  5. Larry Winebrenner March 18, 2015 at 7:25 am #

    You would never say things legal have not changed since Roman Empire days, but are there resources [Google included, but what to ask] other than gospel records of Jesus’s trial{?} where one might find out at least processes and procedure? [And if you don’t understand that question, consider how unable in my ignorance I am to ask.]

    Otherwise, great post. I’m filing them where I won’t be able to find them when I need them, along with a ton of other stuff I wish I could find.

    I love you and all of God’s children.

    • Dennis Kearney March 18, 2015 at 8:04 am #

      The only uniform system of civil and criminal rules of procedure are the federal rules. Each state has its own rules of procedure, that can be as quirky as your imagination. Fortunately, most courts follow a fairly consistent approach to the Rules of Evidence, so if you are researching how a trial might unfold, you should be safe perusing the Federal Rules of Evidence.

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