Law and fiction — blogs with a real-life view of lawyering

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Writing a character who is a lawyer, but you’re not one — or closely related to one? A recent post on favorite blogs for lawyers on the Washington State Bar Association blog mentioned these, so I took a quick look. Good inside info.

Corporette: subtitled Fashion, Lifestyle, and Career Advice for Over-Achieving Chicks. If your image of women lawyers is pumps and charcoal gray suits, take a look. Things have changed, thank goodness!

Attorney at Work: No pictures of shoes or ruched-sleeve jackets (love ’em!) here. Lots of practical advice for the working lawyer, including ideas for business development, better meeting strategy, and being a good employer. I like this for writers because it reminds us that lawyers are business people, too — and like all business people, some handle it better than others. The pieces here will give you a better idea of a lawyer’s daily life, and may suggest some conflicts, small and large, that you haven’t thought of.

More than 50% of lawyers work on their own, or with only one or two other lawyers. Solo Practice University gives advice for the solo and small-firm lawyer. Like Attorney at Work, quite a few posts apply concepts from other fields to lawyering, which I like very much.

Remember that the more you understand about your character’s real life and daily struggles, the more conflict you can add to your stories and the more fully you can develop your characters — and understanding what they want and will do to get it is what leads to plot. Blogs are a great way to catch a glimpse of daily concerns and struggles, the very stuff that help us build intiguing characters on the page.

A Day in the Life of an Expert Witness — guest Lisa Black

Welcome back to Law & Fiction: the Blog author and forensic scientist Lisa Black, whose experiences as an expert witness remind lawyers to be verrry considerate of our experts, and give both writers and readers an insider’s view of the criminal justice system. Her newest novel, THAT DARKNESS: a Gardiner and Renner novel , releases tomorrow, April 26.

that darkness coverI have testified in court as an expert witness approximately sixty times in my 20 years as a forensic scientist, and I can positively state that I would rather respond to the scene of a decomposed hoarder death in a house skittering with roaches and bedbugs then present myself in court for any reason whatsoever. At least I’d only be surrounded by trash and bad smells for an hour or two, whereas a court appearance can stretch into days.

There’s absolutely nothing fun or glamorous about it. You are jerked away from whatever it was you were doing (work, your day off, a vacation) and plopped into a cold, boring room in the cold, boring courthouse. If you’re lucky the room has a window and a minimum of chatty co-witnesses. You have to stay there for as long as the attorneys think they ‘might’ need you and will be freed only after at least one of them has done their best to make you look incompetent at best and conspiratorial at worst. The whole experience, quite frankly, sucks.

And it’s the most important thing we can do. All the crime scene work, swabbing up blood, wearing surgical masks to be able to breathe amid the stench, straining our eyes staring at fingerprint ridges for hours upon hours—all these things count for nothing if they don’t stand up in court.

But that’s the big picture, and usually I’m stuck in the pixels.

The waiting isn’t so bad when it isn’t your vacation you’ve been pulled away from, and you’ve prepared by bringing snacks, change for the pop machine and a book to read. I’ve taken my laptop along and gotten my writing done while waiting (though you may have to dodge those chatty fellow witnesses). If you have a smartphone, I highly recommend downloadable e-audiobooks from your library system (heaven!!). Our courthouse even has free wifi for surfing the web or answering email.

Also sometimes I have to go on Mondays, when our local courthouse does all the ‘housekeeping’ kind of stuff—pleas, motions, continuances—to collect a defendant’s palm prints or footprints, which the regular court bailiffs don’t do. This is the only kind of non-stressful court appearance I have since no one is going to ask me questions and I get to sit inside the courtroom for a change. There I can watch a sometimes interesting parade of people and hear the mini-synopsis of their predicament, such as the guy who got into an argument with someone, called 911, and as the officer arrived to explain that 911 was only for emergencies, called 911 three more times to complain about being told not to call 911.

What drives me to distraction, however, is my increasing appearances in court for sentencing hearings. When a person is convicted after a trial or plea, their fingerprints (not palms) are rolled in open court as an official record that this, indeed, is the person who was convicted in this particular court case. When they are convicted again, before they are sentenced, the prosecutor wants to establish that they have prior convictions so that the sentence can reflect that. So I have to compare the in-court prints from that conviction not yet sentenced to the in-court prints from one or two or five prior convictions. This is a minor thing, an easy comparison since the prints are usually decent and if, say, the right thumbs are smeared, you have nine other fingers to choose from. However I still have to do the comparison, hand it off to another examiner to re-do and therefore verify the comparison,  write the report, give it to my verifier to check and initial, then give to my supervisor to check and initial, make a copy for me, contact the court liaison to tell him he can pick up the report, then go to court and wait a half-hour or hour or two, then put up with the defense attorney complaining about my report (not long enough, too long, I made a typo in the birth date) as if he or his client is really suggesting that they are not the person incarcerated on these previous charges—because if they weren’t, surely they would just say so.

Arrgh!

Yes, I whine. But this does represent an outlay of taxpayer-paid time, and not just my time—my co-workers, the attorneys, the judge, the jury—and all to prove something that is already documented and that no one is questioning.

Attorneys have told me that this practice, which only began about four years ago, is due to some court decision, but I don’t believe it. I think it’s something they do ‘just in case’ it may prove to be a point of appeal. They’re trying to protect their body of work, but meanwhile more and more cases are dropped or plead down to nothing because the court’s schedule can’t handle them all. Sometimes crossing every t and dotting every i means that other t’s and i’s suffer.

Another new practice of the extreme stating of the obvious is asking ballistic experts to take bullets apart and then testify to the fact that they are bullets, with a slug and gunpowder, etc., to be used in a firearm. This is apparently requested when the use of a firearm is part of the charge or sentencing considerations, and in addition to verifying that the firearm itself is functional. After all there are several reasons why a firearm might not be able to fire as well as very realistic looking air guns—but nothing else quite looks like a bullet. And if the defendant wants to make the case that his bullets were not functional, he can, again, say so. Then order the testing. But to do it reflexively in every case adds up to a colossal waste of time and resources.

So, yeah, I don’t really enjoy going to court!

(A reminder to writers: local practices vary, and the new procedures Lisa has encountered in Florida are not required everywhere, so talk to a local expert before using them in your scenes!)

Lisa and powderThat Darkness is now available wherever books are sold!

It seemed like a typical week for crime scene specialist Maggie Gardiner–a gang boss shot in an alley, a lost girl draped over an ancient grave, a human trafficker dumped in the river–nothing all that out of the ordinary for the Cleveland police department as spring turns toward summer along the Erie banks. The methods are usual, the victims unsurprising–but when she notices a pattern, a tenuous similarity among the cases, she begins to realize that her days will never be typical again. How much of her life, her career, her friends, will she be willing to risk to do what’s right?

Jack Renner is a killer who does not kill for any of the conventional reasons…no mania, no personal demons. He simply wants to make the world a safer place. He doesn’t think of himself as a dangerous person–but he can’t let anyone stop him. Not even someone as well-meaning as Maggie Gardiner.

Maggie has the self-sufficiency of a born bit-of-a-loner. She works with a bevy of clever experts surrounded by armed police officers.        She is both street smart and book smart, having seen the worst the city has to offer.

But Maggie Gardiner is not safe. And, until she can draw Jack Renner into the light, neither is anyone else.

Jeff Lindsay, author of the Dexter series, says: “Lisa Black always delivers authentic characters in riveting stories. That Darkness takes things to a spellbinding new level with a taut and haunting story that will stay with you long after you finish reading it.”

Publisher’s Weekly says: “The intriguing forensic details help drive the plot to its satisfying conclusion.”

“Black is one of the best writers of the world of forensics, and her latest introduces Maggie Gardiner, who works for the Cleveland Police Department. Her relentless pursuit of answers in a dark world of violence is both inspiring and riveting. Readers who enjoy insight into a world from an expert in the field should look no further than Black. Although Cornwell is better known, Black deserves more attention for her skillful writing – and hopefully this will be her breakout book.”– RT Book Reviews, 4 Stars (Top Pick)

Lisa Black has spent over 20 years in forensic science, first at the coroner’s office in Cleveland Ohio and now as a certified latent print examiner and CSI at a Florida police dept. Her books have been translated into 6 languages; one reached the NYT Bestseller’s List, and one has been optioned for film and a possible TV series.

And yep, that’s her looking like a happy chimney sweep! 

Miranda Magic: Strengthening Your Story — guest Lisa Preston

Orchids coverGather round, children, as we welcome Lisa Preston to the blog. A veteran police officer and EMT, as well as a horse trainer and backcountry adventurer, she’s the author of the new novel ORCHIDS AND STONE. (Read more about Lisa, below.) Today, she’s sharing a cop’s perspective on Miranda warnings, and how you can use them to strengthen your story without breaking the law. 

Miranda Magic: Strengthening Your Story

I once read (part) of a novel by a best-selling author in which a character pleads guilty to murder then the rest of the plot develops over the succeeding criminal trial. Of course, this is not at all what would happen; there would not even be a trial. Only those who plead not guilty receive criminal trials.

Most legal goofs are not so egregious and will likely be missed by many readers, but the writer will lose credibility with readers who roll their eyes when a writer bends the legal system too far for the reader to ride along. As a retired cop, I am one of those readers who doesn’t tolerate fiction with significant goofs in legal procedure. As a writer, I was amused when an editor thought the police officer who had arrested my protagonist should have Mirandized her. This brings me to the two major misunderstandings I see writers struggle with on Miranda warnings.

[LAB: Just because the cops turn the proper noun Miranda into a verb by adding -ize does not mean you may do so in any other context. We shall tolerate this one grammatical misuse only!]

First, Miranda [LAB: Named for the U.S. Supreme Court’s 1964 decision in Miranda v. Arizona) applies to custodial interviews. The cliché scene of a cop snarling Miranda warnings the minute the suspect is handcuffed is not the way police Mirandize. To do so would create an adversarial approach, lessening the chances of the subject being cooperative. Moreover, there’s no reason to Mirandize if there’s no interview.

Whether or not an interview is custodial for the purposes of determining if Miranda warnings are required is not as straightforward as asking whether or not the person is under arrest. It’s possible to not be under arrest, yet be in custody. Here is the 3-pronged test to establish whether or not the interview was custodial:

∙ What did the officer believe (about whether or not the subject was free to leave at any time)? Was the interview subject in the back of a patrol car (from which he could not let himself out)? The officer knows that person is not really free to leave at any time; the interview is custodial and Miranda is required.

∙ What did the interviewee believe (about whether or not he was free to leave at any time)? Was the interviewee in a police station behind locked doors? If he was escorted deep within the building and doesn’t feel free to leave, Miranda is required.

∙ What would a reasonable person believe (about whether or not a person in that situation would feel free to leave at any time)? Was the interview subject first told by the police officer to sit down on the park bench? Maybe the officer is standing over the person now, asking questions. A reasonable person could find that custodial.

Second, there’s nothing magic about a police officer giving the Miranda warning; the key is that the interview subject must waive Miranda rights before being questioned. The 3-prong test for a clean waiver of the Miranda rights is a knowing, intelligent and voluntary waiving of the right to not talk and to not have an attorney present. If the officer read Miranda but the interview subject never waived his rights, then anything learned in the interview could be suppressed or not admissible in court because there was no waiver.

Of course, a writer can use good information to develop a story in any direction. Want the cop to be incompetent? Have him scream Miranda at the arrestee, scaring the subject right out of talking to a cop with an aggressive attitude. Want the cop to be dirty? Have him bait the guy into talking then turn on a recorder and catch what he says without benefit of a Miranda advisement and waiver. Want good procedure? Follow good procedure. Use reliable resources to clarify the legal rules that apply to your fiction. Leslie’s guide, Books, Crooks and Counselors, is an excellent resource, one I recommend to all writers. For details that touch on all senses in a given police scenario, talk to officers who have been in similar situations. We’re happy to share experiences with writers who want to strengthen their stories.

LisaPreston_01With one semester to go in high school, Lisa Preston moved to Alaska and almost immediately began mountain climbing. To improve her first aid knowledge, she took an Emergency Medical Technician course, which included ride-alongs on the Fire Department’s Advanced Life Support ambulances. She moved to Oregon for training and was soon back in Alaska, pulling 24-hour shifts as a paramedic.

After a number of years, she transferred to the Police Department. Her second career started with the position of street officer and she still claims it is the most demanding job in law enforcement. Faced with a choice between K-9 and detectives (she’d trained protection and tracking dogs), she became a detective, working in the Vice unit  and later in Crimes Against Children, with a special assignment as a Hostage Negotiator. She went back to the street as a sergeant, and eventually returned to investigations, supervising Internal Affairs.

She teaches three writing workshops (The Query Class; The Right Rewrite; Ambulances, Badges and Courtrooms). She’s an ultrarunner and rides solo for long distance on her AKhal Teke horses, exploring in the backcountry.

Her publishing credits include nonfiction on the care and training of animals Her thriller, ORCHIDS AND STONE, will be released in trade paperback, e-book and audiobook in April 2016. Connect with her on her website, http://www.lisapreston.com 

Anatomy of an evidence room

When I practiced in Seattle, a small group of lawyers in my firm represented commercial fishermen and seafood companies. That’s what led us to involvement in a large criminal conspiracy case against a man known as “the Geoduck King.” (That’s gooey-duck, and it’s a big old ugly clam.)

I thought of that recently when I read this article on a police department evidence room in a Twin Cities suburb. It’s an eye-opening look at how physical evidence is handled and stored, how it can pile up, and how it’s managed.

But they don’t say anything about storing a freezer full of big old ugly clams.

You can easily create good complications for your stories, if you put yourself in the position of an evidence room manager or a police officer. Imagine an officer bringing in a piece of evidence during a rush; does it get properly cataloged? What happens to a criminal case if the right gun, or the right baggie of “green leafy vegetable matter,” can’t be located?

Space can be a real issue, and not just for freezers full of clams. Computers may be smaller than ever, but they still take space. Cars and trucks, front-end loaders, trailers, and other really big items will be stored in an impound lot, often outside and exposed to the elements. What if a storm causes additional damage or destroys an RV that was the scene of a crime?

Think, too, of what happens to evidence after a case is closed? Clerks of court will call occasionally to say they’ve received a file back from the state Supreme Court, and what would we like to do with the broken chain that struck a young man in the eye? He lost that claim because he couldn’t prove where his uncle had bought it, and sued three farm & ranch suppliers, including our client, each of whom was able to show they had not bought that length of chain from that manufacturer. Your fictional criminal defense lawyer or civil trial firm, like mine, might have displays of evidence: the dented timber company hard hat that sits on top of Fred the Skeleton, or a glass-front book shelve holding small odd items. No guns or bullets, though, and no green leafy material!

Character opportunities: guns and domestic abusers

I spotted these two articles recently that struck me as useful resources for writers. Quite a few states restrict the ability to own guns of those convicted of domestic abuse, charged but not yet tried, or subject to a protective order. (I’ve written about protective orders in domestic abuse cases here and here.)

This article chronicles recent changes in state laws, as well as changes under discussion.

And here’s a Q&A on the topic.

And here’s a pair of directories to gun laws, one state by state and one by policy. (I’ve not yet used it, and can’t vouch for its accuracy; if a state law is key to your story, check the statutes.)

 

Character opportunities — booking photos

Montana laws strongly favor public access to information, while also recognizing the personal right to privacy — both are expressly recognized in our 1972 Constitution, replacing the bare-bones model we enacted on statehood in 1889. Curiously, we did not have a recognized public policy on booking photos — aka mug shots — probably because our low population means some important issues simply never reach the courts.

Now a Montana District Court — our court of general jurisdiction, or primary trial court — has decided that booking photos are public records, under the category of “initial arrest information” specifically made public by our statutes. Courts and prosecutors in several counties, including the largest, had long taken this position, while others had treated them as confidential, leading to clashes with the media. Proponents of release point to the statutory language, and also the benefit: locating missing suspects, drawing connections that prove guilt or innocence, deterrence, and public safety. Opponents argue that release of photos suggests guilt, but media have long had access to arrest and booking records. Many small-town newspapers routinely publish those records, and jail rosters are often online.

Here’s the Missoulian’s summary of the issue.

The law may vary in your story state, but release of public info — from booking photos to jail rosters — can play a part in your stories. Think of the child who’s been told her father is working out of state, only to come across his name in a public arrest record — or to hear her friend’s parents discuss his arrest. What’s the impact on a character when a man with a similar name is publicly identified as a suspect in a horrible crime? How does seeing a suspect’s photo in the newspaper affect the victim of a crime, or lead a neighbor, a landlord, a teacher to recognize the man and decide how to respond? What emotions are unleashed in a woman who sees the photo of her long-lost love — the man who left her a voice mail message pleading for help in fighting a wrongful accusation?

Bias in the legal profession

I recently took an online CLE — continuing legal ed seminar — on Eliminating Bias, presented by Maryland lawyer Steven Vinick. Vinick presented some recent statistics from the American Bar Association on the makeup of the bar that surprised me. No, they astonished me.

Gender, 2015:
Male – 65%
Women – 35%

Vinick cites articles noting that despite this figure, roughly 16-19% of partners are women, and that women in elite law firms earn on average $66,000 less a year than men.

Race, in 2010: 
White – 88%
Black – 5%
Hispanic – 4%
Asian-Pacific American – 3%
Native American – <1%

The seminar did not include stats on disabilities or sexual orientation.

What stuns me is that this is what the profession looks like after years of women and people of color attending law school in greater numbers. Visnick notes that a client who values diversity may have trouble finding a suitable law firm, and if the client is looking to hire a law firm for a civil rights matter, this can be particularly important.

I’m not saying a white lawyer can’t do a damned fine job for a black client in a civil rights claim, or that lawyers of color must do that kind of work; I’m talking about perceptions here. Certainly statistics alone do not establish that bias exists in a particular interaction. But if this is what our profession looks like, it makes it hard for clients to believe they’ll get representation free of bias, let alone bias-free results.

Vinick points out that the legal profession is less racially diverse than most other professions, and that the makeup of most law firms would look like intentional discrimination in a private company. (And publishing, alas, isn’t much better. Lee & Low’s new survey on diversity in publishing shows that the field is about 79% white, 78% female, and 88% straight.)

Other studies Vinick quoted report that 57% of women thought judges appear to give less weight to women lawyers’ arguments, while only 12% of men thought so. 63% of women but only 19% of men said demeaning jokes or remarks against women were made “often or sometimes” in court or chambers. No doubt some would say women are “too sensitive,” but the point is that people who are not subject to a particular type of bias are far less likely to see that bias.

The good news is that more and more CLE and in-house training addresses conscious and unconscious bias. Law firms are becoming increasingly aware that discrimination can violate the rules governing the profession. The ABA, state bars, and individual law firms are talking about the issues. The Washington State Bar journal, the NW Lawyer, is running a lengthy series of articles addressing elements of diversity and bias, and I suspect other state bars are as well.

Where there’s talk, there’s hope for change.

So if you’re writing about fictional lawyers, judges, and court staff, think about these issues. How do they affect the dynamics? The spoken and unspoken, the conscious and unconscious motivations, the perceptions of whether justice is truly attainable.

Character opportunities: breath tests for pot and a “check the box” ruling

Last year, I took you along with me to a marijuana business law course I took, thinking that the increase in legal medicinal and recreational use of pot offers some good potential story complications. Here’s part 1 and part 2. 

But there are other legal issues as well. This NPR piece reports on efforts to develop a reliable breath test for THC, the intoxicating ingredient in marijuana. New scientific evidence always requires evidentiary testing before it will be admissible in court, so the effort could continue for years, even after scientists develop a reasonably reliable test. Your characters might wrangle over the test itself, over admissibility, over uses in employment, and other ways, as characters do.

Another development with potential ramifications for your fictional employers and employees: What’s sometimes called “the box,” where a job applicant indicates whether she’s ever been charged with or convicted of a crime. The Pennsylvania high court has now ruled unconstitutional a state law preventing convicted criminals from getting full-time jobs in nursing homes or long-term-care facilities, because a lifetime ban did not serve the statutory purpose of protecting the elderly. Here’s the NPR summary. The laws are applied in many situations; does one hold your character back?

Writing about cops? Changes in police training

These articles on the changes in police training are several months old, but still very interesting, exploring the changes introduced in Washington State by the new director of the Criminal Justice Training Academy, former King County (Seattle and environs) Sheriff Sue Rahr. Part I focuses on Rahr and the academy; part II looks at the training from the recruits’ perspective. And in May, NPR interviewed Rahr and a New Jersey police chief on changing police attitudes on the use of force.

Wrapping up the year with Justice Breyer, a police firing, and forensic hair analysis

I’m wrapping up the year with links to a broadcast I enjoyed, a report of a police officer’s resignation in lieu of being fired, and a story that could make a great legal thriller.

I’ve long admired Supreme Court justice Stephen Breyer. This NPR podcast includes a frank and fun interview, in which the justice describes the court’s decision-making process, offers his comments on the new musical on Alexander Hamilton, and opines on the art of compromise.

The Seattle Stranger reports on the resignation of an officer who faced termination for violating “several department policies, including policies on honesty and professionalism, a requirement that police record their work using their in-car cameras, and the prohibition on using their positions for personal gain.” The officer had responded to a complaint from a woman who said patrol officers were sleeping in their cards instead of patroling, and repeatedly texted her, inviting her out. Interesting note: as in most jurisdictions, prosecutors are notified when an officer is found to be dishonest, because that finding can be used against the officer when testifying in court. But, it turns out, there’s no agency charged with looking through police records or past testimony for other evidence of dishonesty. How can you use that to make life harder for your fictional characters—officers, lawyers, victims, or witnesses?

The FBI recently audited the use of forensic hair analysis, concluding that much of it — by both state and federal analysts — was flawed. As reported in the Missoulian, several states are now conducting a review of cases in which hair analysis contributed to convictions. Flawed forensic evidence is a fascinating — and terrifying — problem, making it great fodder for crime writers. Read this article for a peek at how reviews are conducted, what factors go in to the decision to reopen a case, and some of the impact of flawed forensics on the accused. (This related article discusses two recent Montana cases involving hair analysis.)