trial | Leslie Budewitz

I spotted this blog post on the NW Sidebar, a publication of the Washington State Bar, titled Witness Backgrounds: What’s Admissible in Washington vs. Oregon, and thought it raises some interesting possibilities for fiction writers. (I’ll wait while you read it.)

In short, every state sets its own standards for what criminal history can be brought out when a witness testifies in court. But these are good examples of two general approaches — one more flexible, one more stringent, though in each state, statutory limits are the starting point.

How can you use this in your story? Is a witness afraid to report a crime, or to speak honestly to police, or to testify in court because of her history? How will your fictional prosecutor deal with an eye witness who has a lengthy criminal history, even though it may have nothing to do with what the witness saw? Even bad guys can innocently, by coincidence or bad luck, witness other bad guys in the act. How will your fictional defense lawyer deal with the same situation? What emotions does the fear of testifying trigger in your witness? She and her new husband were beaten and robbed; if they testify against the thug, will the ten-year-old arrest for forgery that she’s never told him about be used against her in court? What will she do to prevent that—lie? Insist he testify? Develop laryngitis or an excuse to be out of state visiting her supposedly ill sister? Will a jury really hold a minor criminal history against a witness or victim in evaluating credibility?

Note that we are talking about witnesses here, not defendants. We’ll talk about the admissibility of a defendant’s criminal history another time.

A recent newspaper story claimed that a family had “won a settlement” in a suit against the Montana Department of Natural Resources and Conservation for damage done to their land by a scorching, and allegedly unnecessary, backfire the DNRC set. The story then mentioned the jury award.

Wait. What was it–a settlement or a jury award? Know your terms! A settlement is a voluntary agreement reached by the parties, to resolve the dispute between them. For example, in an auto accident, the defendant driver–or more likely, his insurance company–pays the plaintiff an agreed-on amount of money. In exchange, the plaintiff executes a written release of all claims against the defendant arising out of the accident. If a lawsuit has been filed, the lawyers sign a joint stipulation to dismiss the case. In a contract dispute, the terms may be more complex; e.g., a building contractor who sues for nonpayment may get paid, but will also be required to release any liens he filed against the property, and the payment he obtains may be less than he demanded, if the property owner claims that the work was defective. In business litigation, the written settlement agreements can be extensive.

The parties and their lawyers may negotiate the settlement agreement themselves or participate in a mediation or settlement conference, with a lawyer who is not involved in the case serving as mediator or settlement master. The mediator serves as Henry Kissinger conducting shuttle diplomacy–going back and forth between the two sides, conveying offers and demands, offering his or her own evaluation, and helping the parties see reason and find common ground. If a lawyer views the case differently than his or her client does, a skillful mediator may be particularly useful. Settlement conferences are mandatory in many jurisdictions, before trial and on appeal. I’ve served as an appellate mediator many times.

(The criminal counterpart is a plea agreement–which must be approved by the judge.)

Yes, a settlement is a victory of sorts–for all parties–because it buys peace and ends the litigation, but saying a party “won” implies prevailing at trial.

Say that the parties “reached a settlement.”