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Saturday, February 25, 2012


This blog is dedicated to making it easier for writers to get it right when if comes to writing about how courts work and what happens in court.  Sometimes we tend to think that it is only inferior or inept writers who write bizarre, unrealistic trial scenes. But no, today that dubious honor must go to Julian Fellowes the creator of the mass-market super-success, Downton Abbey. Yes, despite having scads of lucre, researchers by the score, and in all likelihood an abundance of lawyers on board he has managed to come up with a preposterous, pathetic excuse for a dramatic trial scene. It was so bad that I had visions of Rumpole of the Bailey dying in turns of laughter and embarrassment. What Fellowes doesn’t know about the law or trials could fill the next season. One only hopes Fellowes handled other esoterica in the plot with more care for accuracy.

Here’s the scene. Poor Mr. Bates, valet to Lord Grantham, and loyal attendant during the “African Wars” is unfortunately married a first-class bitch. Ex is a scorned woman and yes, hath fury beyond the bounds of hell.  On the other hand Bates is saintly and in love. We are compelled to pull for him. Bates tries everything to free himself of this hell whore. He’ll even give Ex his entire net worth. But she wants his pain and suffering. If anyone has a motive to kill this woman, Bates does. Bates goes off to London, where his ex-wife resides and returns with a scratch on the side of his neck. His Ex is found poisoned.

But Fellowes fails to give us a mystery. In lieu, we must endure long stretches of dialogue from every member of the household that boils down to “yup, Bates had a motive to kill the bitch.” Bizarrely, the Prosecutor calls half of the population of Downton, all of them pro-Bates, without any attempt to interview them. And the defense attorney is baffled why. Does he possess a copy of his client’s statement? Does he even know his client has made a statement? We’ll never know. One thing we do know, this would never happen in a real trial. Lawyers prepare for trials. They interview witnesses. They read statements of their clients. They concede the obvious and look for weaknesses in the other side’s case.

Fellowes gives us no weaknesses in the prosecution’s case. He wants us to be satisfied with Bates’ sterling character as providing the reasonable doubt, but character has very little sway when it comes to domestic violence, especially after a season’s worth of preparation for this inevitable event.

Fellowes seems clueless that he is shortchanging his viewers. For some inscrutable reason, Fellowes didn’t want to give the saintly Bates a defense. Didn’t anyone else want to kill his nasty Ex? Was she up to poisoning herself just to stick it to Bates? What about the poison angle? Where was Bates supposed to have gotten it? How did he administer it without her noticing it? Where’s Bumpole? Has he really got “no questions?” The way Fellowes sets it up, Bates has to be found guilty.

Then we are handed the absurdity of a reprieve. Fellowes tells us that’s because there was doubt as to premeditation. Whoa.  Wait just a minute here. Poisoning someone involves premeditation. You don’t get the goddamn Home Secretary to reprieve a convicted murderer based upon quaint logic that Bates poisoned his wife but it was somehow not in his plans. There was no premeditation issue according to the story line. Fellowes arrogantly thinks he can make it so just by saying it.

Let’s be clear. When you’ve got a client with a motive, you look for other people with motives. When you’ve got a cause of death that’s complex, read poison, you look for facts that would make it hard for the defendant to implement the cause. When you want grounds for a reprieve, you write it into the scene. You don’t call witnesses you’ve never interviewed, particularly when they may be hostile. And you don’t bore viewers or a jury proving the obvious. There’s no dramatic upside in that.

Fellowes gives us an open and shut case of premeditated homicide. So why the need for a trial? Why pretend there is reasonable doubt when you don’t bother to write in any? Why didn’t we just cut to the chase? As written, Bates did it, and it was premeditated. The Home Secretary is a fool. But what of the viewers? Why do we deserve the bum’s rush? Why couldn’t Fellowes spare an hour or so of research giving us a trial with verisimilitude and some reasonable doubt, only to have the defense fail? Why bother getting it all wrong, when a browse through See You In Court! would have resulted in a world of improvement.


Monday, February 6, 2012


While I was preparing my non-fiction trial guide, SEE YOU IN COURT! for publication, it came to me that it was a good reference work for writing fictitious court scenes. It is full of nuances and quirks that could lend credence to a narrative.  And that got me to wondering what, if anything, lawyers and authors have in common. Go to the mystery and thriller section of a bookstore (if you can find one of those) and you will see that a lot of authors are actually lawyers who write novels. I came to the conclusion that there must be something they have in common. But what?

Of course, they both need to know how to write. But what you write about and the forms that you use to convey your message are completely different. To begin with, lawyers tend to want to tell. And they use funny words you could never get by with in a novel; words like “notwithstanding” and “submit” (not the kinky kind) “quash” and “subsequent.”  Authors like to show and be omniscient. Sometimes they don’t even write sentences, or whole ones. You’d never get away with that in a legal brief. So, “no” authors and lawyers don’t really have writing in common.

Unless they’re extraordinarily successful, authors don’t dine where lawyers do. They don’t go business class. And they don’t usually dress in suits. Authors often need day jobs. Authors sometimes need lawyers. Lawyers rarely need authors. Lawyers practice civil or criminal law. Authors are civil or uncivil.  Lawyers need a license to practice. Authors have license.

So what accounts for the plethora of lawyer/authors?  What accounts for, John Grisham, Erle Stanley Gardner, Scott Turow, Lia Matera, John Mortimer, Richard North Patterson, Henry Fielding, Marissa Piesman and Studs Turkel? I think I have an answer: observation. Authors and lawyers are in the business of paying close attention to human behavior, body language and the physical surroundings in which events occur -- good ones, at least. 


Now you are saying, “Wait a minute, other occupations rely on observation too. What about cops and doctors, for example?” The difference though between those other occupations and lawyers is that the observations are generally used within the profession. More often than not, doctors report to other doctors and cops work with cops. They both tend to use lawyers when they want to translate their observations into language for public consumption. 


Trial lawyers, especially, are trained to closely observe jurors' responses to their questioning during a selection process called voir dire. We scrutinize documents for evidence of forgery or late creation. We examine forensic evidence. We size up witnesses in pre-trial depositions. And our task is to communicate those observations to jurors, a judge or the public in general. Authors who have that skill can ascribe to their characters behavior from nuances and quirks to more definitive conduct. Authors can make their characters sweat, blush, pull their arms across their chests or stare.  These kinds of descriptions can show the reader a characters’ personality. Readers will come to empathize or despise, based on the behavior described. Readers can pick up on these descriptions to draw their judgments, rather than having the author tell us how the character feels. Likewise the physical environment can be shown, rather than told about. The gun can still be hot to the touch but the show would be inability to hold onto it, and then perhaps licking some burnt fingers. A stiff wind can whip clothing into knots or cause a wayward piece of trash to wrap around a leg. If I were to write: “As he walked, sheets of newsprint swirled about the sidewalk and the front page of the morning rag decided to wrap tightly around his leg,” the reader might guess that it was wind that caused it.  


The law might call the dropping of the gun or the paper-wrapped leg “circumstantial evidence” that the gun was hot and the walk was windy. In See You In Court!, I explain that legally, circumstantial evidence is as good as a percipient narration, but in fiction,  circumstantial evidence is better. It is those kinds of details that make the best narrative. Attention to detail, through relating these small clues makes the story. So just as a lawyer is shown evidence, the author can show the reader the evidence, whether it be a weapon, a room, or a document, paying attention to clues, which constitute the circumstantial evidence that makes for the best reading. The best of the lawyer/authors possess this ability to process the evidence and then to communicate it in plain, simple, easy-to-read language.