Law & Ardor: 10 Common Mistakes to Avoid in Your Fiction

LAW & ARDOR: Writing about legal themes? An attorney identifies 10 common mistakes to avoid in your fiction (Originally published in The Writer, September 2013)

If you’re writing fiction, chances are a legal thread runs through your story. On screen or on the page, legal issues are often central to plots and backstory.

In mysteries and thrillers, past crimes may surface with present ramifications. Law enforcement officers and P.I.s need to know what’s legal and what isn’t. Amateur sleuths—the chef, gardener, or librarian—may start digging because they fear police won’t investigate or will nab the wrong suspect.

The law figures in mainstream and literary novels, too. And legal plots don’t require a crime. With a good storyteller, civil law can be gripping. Think of the possibilities in adoption (Jacquelyn Mitchard’s A Theory of Relativity; Ann Patchett’s Run), inheritance (Dickens’ Bleak House), even insurance (Double Indemnity, Billy Wilder’s movie based on James M. Cain’s novella).

But the law can be confusing, too. It changes constantly, and varies from state to state. Information and misinformation abound. Plus most of us, thank goodness, live happy lives without facing serious legal trouble. What follows is one lawyer-novelist’s list of common mistakes—and tips on avoiding them.

1. Using the wrong terms to identify prosecutors and courts.
On  TV’s Law & Order—and I love the show—the prosecutor is the D.A. In other stories, she may be the county attorney or prosecutor, the state’s attorney, even the people’s attorney. A  handle like commonwealth’s attorney might be shortened to “the prosecutor.” Does she try cases in District Court, Circuit Court, or Superior Court? If the terminology baffles you, call the court or prosecutor’s office, the state bar, or a law professor. You may even find a source to answer future questions.

2. Assuming law enforcement officers need a warrant to make an arrest.
Police don’t need a warrant to make an arrest in a public place, or in “exigent circumstances,” such as when an officer witnesses a crime or pursues a suspect. But police still need probable cause—that is, a reasonable belief, based on facts, that a particular person is responsible for a particular crime. “Mere suspicion” is not enough.

3. Confusing direct and circumstantial evidence.
Evidence is anything offered at trial to prove a fact necessary to the elements of the case—testimony, documents, or physical evidence like a gun or DNA test results. Direct evidence is evidence of a fact. Circumstantial evidence is evidence of a fact that leads to an inference or presumption.

An illustration: You tell your kids not to eat the brownies until after dinner. You see your son snatch one—direct evidence of disobedience. You don’t see your daughter touch the plate, but you spot chocolate smears around her mouth and crumbs on her shirt—circumstantial evidence.

In both civil and criminal law, circumstantial evidence may be enough to make the case. If the other side objects, the judge must rule on whether to allow (admit) it or not. The standard is relevance: Does it make facts that matter to the case more or less probable?

4. Giving every suspect a Miranda warning.
A warning is required only before custodial interrogation. In other words, only persons in custody need to be warned, and even then, only before questioning. Voluntary statements by persons not in custody or not made in response to questioning are admissible. A suspect who’s been warned may waive his rights and agree to talk. Of course, mistakes are fodder for defense lawyers—and writers.

5. Failing to distinguish between state and federal crimes.
A crime doesn’t get to be federal just because it’s important. Federal crimes are violations of federal statutes. They include many (but not all) drug and firearms offenses, kidnaping across state lines, and offenses related to securities or banking, immigration, war, terrorism, or interstate communications, or occurring on federal property. Regulatory offenses, such as pollution violations, may be federal crimes. If a crime violates state law, the state prosecutes. Some conduct may violate both state and federal laws, triggering a tug-of-war over jurisdiction. State court systems handle the majority of civil and criminal litigation—about 95%.

If your fictional crime is set in Indian Country, do your research. While the FBI investigates crimes on many reservations, as in Tony Hillerman’s Leaphorn and Chee novels, state authorities exercise full or partial jurisdiction on others.

6. Assuming a felon can’t vote or own a gun.
Restoration of civil rights—including voting and gun ownership—after a felony conviction is complex. The Sentencing Project, a national organization promoting sentencing reform, estimates that full or partial state bans—many applicable even after a sentence has been fully served—deny the vote to 5.8 million people and have a disparate racial impact.

While federal felons are barred from gun ownership for life, state law varies widely. Some states prevent or limit gun ownership by persons convicted of violent felonies, but allow it after the sentence is served, including probation. Waiting periods may apply. Court process may be required. Some states permit ownership of hunting rifles but bar handguns.

Debate rages over the constitutional implications of voting and gun restrictions and their effect on a person’s ability to re-enter society. Does your character live in fear of an ex-con ex-husband with a gun—or worry that she can’t buy a gun to protect herself because of her own record? Is your fictional legislator’s re-election in dispute because a faulty list prevents hundreds of ex-felons from voting?

Change will continue, so check your story state’s laws.

7. Referring to guilt in a civil suit for damages.
A criminal defendant will be found guilty or not guilty (not “innocent”). A civil defendant is either liable for the plaintiff’s damages or not—the concept of guilt does not apply.

Unlike criminal guilt, civil liability is not all or nothing. In a personal injury claim, the jury may decide that the plaintiff—the party bringing suit—contributed to her injuries by her own negligence. If her negligence reaches a certain level—typically more than 50%—she may be prevented from recovering damages. Multiple defendants may share liability.

Picture a slip-and-fall: A shop owner fails to shovel her sidewalk and allows ice to form. A woman falls and breaks her arm—but she walked there daily, knew the danger, and was on her phone. A neighboring shop owner had promised to shovel, but forgot. Who’s liable, meaning who pays? The jury decides.

8. Sentencing a defendant minutes after a criminal conviction.
Sentencing is a separate proceeding, usually held after a pre-sentence investigation by a probation officer or other investigator (terminology varies). Prosecutors and defense counsel need time to review the report and make recommendations. A few weeks is typical. Sooner is possible—Casey Anthony was sentenced a few days after the verdict, but the charges she was convicted of were relatively minor and circumstances may have triggered an expedited proceeding.

Sentence may be imposed right away if a defendant enters into a plea agreement—but only after lengthy negotiations that include evaluation of all the factors that go into a pre-sentence investigation.

If you need sentence imposed quickly to get your character to prison, build in facts that let you do so. Just don’t let your fictional judge hear the verdict and impose sentence without taking a breath.

9. Allowing lawyers—or their clients—to argue with the judge, especially after she’s ruled.
Don’t do it—not if you care about your characters or their case. But if you want to irritate your fictional judge, go ahead. Your chances of success are excellent.

And don’t let your characters interrupt in court, unless you want them hauled to the slammer for contempt.

10. Introducing new evidence on appeal.
Appeals are decided strictly on the record below—meaning the evidence, including testimony, and legal arguments. Parties to an appeal may not present new witnesses or argue legal issues not previously raised. As part of its decision, though, an appellate court might order the trial court to reopen a case to consider evidence or arguments previously excluded.

In a criminal case, new evidence may surface weeks, months, even years after conviction. Other procedures exist to ask a judge to reopen a case after the appeals process has ended.

Obviously, mistakes happen in real life, which is why lawyers file motions to suppress evidence or dismiss charges (in criminal cases), motions to exclude evidence or dismiss claims (the civil terminology), and appeals. But mistakes also add to the drama and create great opportunities for tension and conflict.

Is it ever okay to make a mistake on purpose, to fool the reader? Not in my book. Exaggerate a bit for drama, sure, but deliberately building a story on a faulty premise breaks faith with the reader. As prosecutor turned novelist Marcia Clark said in a panel discussion on forensics in fiction, “The more we tell the truth, the more dramatic it is.” We don’t need to lie about the facts to tell a good story—we need to find the story they tell.

Writers who take time to check legal terms and principles will discover terrific opportunities to twist, deepen, complicate, or simplify their stories. Getting the details right can make all the difference.

 Tracking Down Those Pesky Details

The National Center for State Courts website includes directories of all state court systems with court structure charts, and of public defender systems.

The Sentencing Project map tracks state incarceration, probation, parole, and disenfranchisement rates.

The NRA maintains a directory of state gun laws.

The American Bar Association charts summarize state statutes on domestic violence, stalking, protective orders, and related issues.

– For state-by-state specifics on recording conversations, see this guide from The Reporters Committee for Freedom of the Press.

The FBI maintains a directory of state and tribal sex offender registration laws.

Leslie Budewitz, a practicing lawyer, won the 2011 Agatha Award for Best Nonfiction for Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure. Her  mystery Death al Dente is set in Northwest Montana, where she lives.

Next month I’ll post the sidebar to The Writer article: my list of 10 great novels on legal issues. 

The Saturday Writing Quote: “creative solitude”

IMGP2091“An artist must have downtime, time to do nothing. Defending our right to such time takes courage, conviction, and resiliency. Such time, space, and quiet will strike our family as a withdrawal from them. It is. An artist requires the upkeep of creative solitude. An artist requires the time of healing alone. Without this period of recharging, our artist becomes depleted…. We strive to be good, to be nice, to be helpful, to be unselfish. We want to be generous, of service, of the world. But what we really want is to be left alone. . . . ”

—Julia Cameron, from The Artist’s Way (1992)

A twist in the case of Barry Beach


Update, November 2016: This past spring, the Montana legislature passed a new law, giving the governor — rather than the state parole board —  final authority to grant clemency to prisoners. Governor Bullock has now granted Beach clemency, saying that regardless of his guilt or innocence, he had served enough time — more than thirty years. The now-retired district judge whose grant of a new trial was overturned by the Montana Supreme Court said that during his 18 months of freedom, Beach had shown himself reformed, and as quoted by the Missoulian, “Isn’t that the goal of the American justice system?” See more details in these news accounts from the Missoulian and the Billings Gazette.

I’ve written before about the case of Barry Beach, convicted in Montana for the 1979 murder of a teenage girl in a small northeastern Montana town. Beach, then a teenager himself, argued that his conviction was based on a false, coerced confession, and after serving 30 years, sought a new trial. The trial judge agreed and he was freed for 18 months—renting an apartment, holding a job, and finding support in a new community. The Montana Supreme Court then reversed that decision, denying Beach a new trial and sending him back to prison.

Changing tack, Beach and his legal team are now seeking to have his sentence of 100 years without the possibility of parole commuted — that is, converted to life with the possibility of parole — so that he can seek parole. The case will be heard by a panel of the state Board of Pardons and Parole next week, which can deny the request or make a recommendation to Governor Steve Bullock to commute. The twist? The Missoulian reports that Governor Steve Bullock has now written the Board, urging it to recommend clemency. The article fails to note — because here in Montana, we all know — that Governor Bullock was the state Attorney General who opposed Beach’s request for a new trial and successfully argued for reversal on appeal. He writes that the Board should focus not on guilt or innocence, but on whether Beach is a good candidate for parole, saying “The reasons for maintaining Mr. Beach’s 100-years-without-parole sentence at taxpayer expense diminish with each passing year.”

I know the Governor and admire him. He was wrong as AG, but he’s right now. Beach’s sentence should be commuted so he can be considered for parole, and he should be paroled. There is evidence pointing to other killers; unfortunately, it will probably never be tested in court, meaning justice may be incomplete. But even incomplete justice does not justify injustice.

(Photo: Montana State Capitol)


New Jobs for young and old lawyers

IMGP2172Because I’ve been practicing law for thirty years — gad — people often assume I write legal mysteries or thrillers. Or that my protagonists are former lawyers. Lawyers — retired or working — make great characters, but I’m enjoying exploring other career paths in my fiction, primarily those focused on food!

But I can’t stray too far from the field I know so well. In Death al Dente, first in my Food Lovers’ Village Mysteries, set in Jewel Bay, Montana, protagonist Erin Murphy is surprised to discover that Bill Schmidt, the local herbalist and her widowed mother Fresca’s new beau, is an ex-lawyer. When Erin needs legal advice, she pops around the corner into Bill’s magical, mysterious shop. And in my Seattle Spice Shop Mysteries, debuting in March 2015, Spice Shop owner Pepper Reece worked in HR for a large Seattle law firm before it imploded in a rash of scandal. That gives her access to law firm librarians, paralegals, criminal lawyers, defense lawyers, and other experts she met in her former career.

What other careers do lawyers tackle? Just about anything you can imagine. This Washington State Bar journal article  profiles Tim Blue, a practicing lawyer and winery owner. Another lawyer I knew left the bar behind to, well, open a bar. One runs a campground. Greg Bartholomew, whom I worked with in Seattle, is a successful choral composer. Former lawyers run all manner of businesses — one of my law school classmates is president of Bank of America, and another runs his family’s construction business. Some work in insurance. More than a few have left the law for the ministry. A very successful local trial attorney now spends much of the year in Italy, painting. One of my writer pals spent years as a criminal defense lawyer before returning to her early love of books and becoming a junior high English teacher, in small prairie towns and on Indian reservations.

Many former lawyers work in government, at all levels, in all departments — not necessarily as lawyers. Some run charitable organizations. Others teach in law or business schools; several of my classmates at Notre Dame Law School are deans or hold other positions in university administration, and a woman who graduated a few years behind me became a woman’s basketball coach. My former dean, long widowed, is now a Catholic priest.

And of course, quite a few write mysteries. What career can you give an ex-lawyer character, to add a legal perspective to your story — and give your sleuth a resource to consult?

The Saturday Writing Quote: fueling the fire

“But here’s a radical thought. What if all the mess – the children, spouses, emotional demands, the dogs, the volunteer work, school visits, journalism, book reviews, the things we do to make money and to keep life ticking over for other people – what if they’re the fuel that runs the fire? What if the distractions and chaos of every day life are what give our books a heart and a pulse and an understanding that life is conflicting and complex and frustrating and full of unexpected pleasures?”
– Meg Rosoff, on Writer Unboxed, 3/19/14

The Saturday Writing Quote: Going Home Again

“Going back is a creative process. The events of childhood are like the Hebrew alphabet; the vowels are missing, and the older self has to make sense of them. Robert Frost’s famous poem about the two paths diverging in the woods isn’t only about the two paths. It also describes how older people go back in memory and impose narrative order on choices that didn’t seem so clear at the time.”
— David Brooks, in the New York Times, 3/20/14, in an essay called “Going Home Again,” inspired by a TED talk by Sting, describing how going back to his childhood helped him return to songwriting

Subscribing to Garner’s Usage blog

GarnerI’ve quoted from Bryan Garner’s blog, Garner’s Usage Tip of the Day, based on his Garner’s Modern American Usage, and readers have told me the entries are useful but they can’t find a way to subscribe. One way is through the publisher’s website. The email subscription option is midway down the page.

Try another route through this page on Garner’s website. The email subscription option is below Garner’s signature in the right-hand column.

And feel smarter already.

The Saturday Writing Quote: “Creative Solitude”

IMGP2181 “An artist must have downtime, time to do nothing. Defending our right to such time takes courage, conviction, and resiliency. Such time, space, and quiet will strike our family as a withdrawal from them. It is. An artist requires the upkeep of creative solitude. An artist requires the time of healing alone. Without this period of recharging, our artist becomes depleted…. We strive to be good, to be nice, to be helpful, to be unselfish. We want to be generous, of service, of the world. But what we really want is to be left alone. . . .”

— Julia Cameron, from The Artist’s Way (1992)

Back to School for Lawyers

IMGP2172Lawyers are required to take continuing legal education courses, typically 15 credits a year. Some states mandate ethics courses as well. Here’s a sampling of the topics from a recent stack of brochures that crossed my desk — they’ll give you an idea of the wide range of practice areas your fictional lawyers may be involved in, and maybe spark an idea or two:

Auto Injury Litigation – Start to Finish

Payroll Law Bootcamp

Medical Malpractice — Expert Witness Strategies

Hydraulic Fracturing Land Lease Negotiations

Medicare Requirements in Injury Settlements

Quiet Title Actions (just tell it to sit down and shut up, or you’ll send it to bed without any dinner!)

Prior Appropriation Water Rights (as Snoopy says, I don’t even understand the lunch menu)

Collection Law from Start to Finish

Estate Administration Procedures: Why Each Step is Important (lots of story fodder here)

Drafting School Handbooks and Policies

LLC or Inc.? Entity Selection for a Small to Medium Sized Business (Anybody else think of The Exorcist when you hear the word “entity”?)

Human Resource Law

The Art of Settlement

HIPPA Compliance for Lawyers: The New Requirements

Social Security Disability: Advanced Issues & Solutions

Farm Injury Litigation: A Plaintiff’s Guide — includes determining liability, finding insurance coverage, maximizing recovery from multiple wrongdoers, workers’ comp, and other sources, OSHA regs, defective machinery design, and proving damages

Several courses on land use issues, understanding surveys, title insurance, and boundary disputes

Litigating School Bullying & Cyberbullying Lawsuits

Law Practice Management

Construction Defects

Marijuana in the Workplace

Authenticating Social Media and Email Evidence

And a postcard for the annual On-Campus Interview Weekend at the Law School, for firms looking to hire.