Saturday Creativity Quote — and a request to subscribers

Hello, friends! You may have noticed that the Creativity Quote and Writing Wednesday took a short break, but I’m back now. I do have a request. The service I’ve used for years to distribute the blog is being discontinued shortly. I’ve got a new method in place, but can’t automatically transfer my subscriber list. If you would like to continue receiving the blog, please follow this link and resubscribe. If that doesn’t work, go to my website and scroll to the bottom, where you’ll see an icon that says FOLLOW MY BLOG and click on that. Then watch for the confirmation email. (You may get duplicate messages for a time or two, until Google completely disables its service, but not for long.)

After all that, I want to give you a particularly fun quote. It’s funny, but it’s also a really great idea! And I loved the novel it came from!

“I grinned when [Professor Cohen] answered the door—in a tuxedo jacket.
“What on earth?” I asked.
“I’m trying to get into the mind of my character, so I put on my husband’s tails.”
“Is it working?”
“I’m not sure, but it’s great fun.”
—Janet Skeslien Charles, The Paris Library

See you next week!

Writing Wednesday — Common Mistakes Writers Make About the Law

If you’re a member of Sisters in Crime — and if not, what are you waiting for? — you may have watched the webinar I gave in October 2020 called Common Mistakes Writers Make About the Law. (Members can watch it free in the archives.) Or you might have heard me talk on the subject at the Writers’ Police Academy, Colorado Gold conference, or Flathead River Writers’ Conference. It’s an important subject and one I enjoy discussing.

But when I read the third book in a few months in which a character is arrested and immediately given Miranda warnings, I realized it might be time for a refresher. Herewith, a repeat of an article I wrote for The Writer (September 2013). (And if you want more details on using the law in your fiction, check out my guide for writers, Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver, 2011). Pay close attention — especially to the section on Miranda warnings.

Books, Crooks, and Councelors

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.

Writing Wednesday — dressing your characters

Once upon a time, we put on real clothes and went out into the world. Now a good chunk of us work from home in our torn jeans (and not fashionably torn), sweats, or yoga pants. Our characters, though, are still going about their business, running a Spice Shop in Seattle or a local foods grocer in Montana, and going all kinds of places. Which means that while I can grab the nearest thing on my closet shelf, I actually have to think about what they wear.

And because I live in a small town in western Montana, I don’t get to see the full range of clothing styles I could glimpse in just an hour sitting in the window of Starbucks on 5th Avenue in Seattle or nursing a cappuccino in a hip Missoula coffee house. When I do get out of town, I’m always looking, looking, looking. Turns out city lawyers don’t dress as formally as when I was a downtown Seattle lawyer—except when they do. There’s a lot wider range of styles and outfits these days.

Both physical magazines and catalogs and websites are a great source. Of course, you have to look beyond the companies you shop from. For Erin, my 32-year-old Montana girl, I browse Title 9, Athleta, REI, and other companies with an outdoor or “activewear” style. Her mother, Francesca, dresses from the pages of Soft Surroundings. For a special event, I’ve dressed characters from J. Peterman — take a look; the catalog copy itself is pretty wild. Pepper, who runs the Spice Shop in Pike Place Market, wears black yoga pants and T-shirts with her shop apron on workdays, but I let her go bright, bright, bright away from work, and on dry days, she loves to wear a pair of petal pink Mary Janes she splurged on in Assault & Pepper.

Bitterroot Lake

For Bitterroot Lake (coming April 13, written as Alicia Beckman), I thought about how different the four friends who are the focus of the story are. Sarah’s quite aware that her upscale Nordstrom look is right on par in her toney Seattle neighborhood, but a little out of place in Deer Park. Janine is a baker who’s showed up in town with only her work clothes. Sarah lends her clothes, but because of the tensions in their relationship, she’s self-conscious about it. Besides, everything’s too long. Nicole — Nic — is a lawyer whose workday wardrobe isn’t too different from the casual pants and fleece jackets she wears on her spur-of-the-moment, long-distance drive to Deer Park.

Dressing the men is even trickier. Around here, for men of a certain age — like the age of the man I’m married to — dressing up means a sport coat over Levi 501s and popping the dried mud off the cowboy boots. (Wear the ones with the nonskid soles this time of year.) Daily wear for the younger men tends toward cargo pants and T-shirts, although the “active wear” influence of the ski slopes and hiking trails is strong, too.

Think carefully about how your characters dress and what their clothing conveys about them. And do tell me some of your favorite tricks and sources for dressing your story people!

The Saturday Creativity Quote — the power of collaboration

The Barn, pastel on garnet paper, by the author

Writing, like a lot of other creative work, is often described as a solo activity. But there’s a strong case to be made for collaboration, as Joshua Wolf Shenk contends in the book Powers of Two: How Relationships Drive Creativity (2014; the original hardcover was titled Powers of Two: Finding the Essence of Innovation in Creative Pairs). Shenk looks at artists and scientists working together — Lennon and McCartney, Marie and Pierre Curie — but also at artist and inspiration — Vincent and Theo Van Gogh — and scientists who worked and reworked their ideas in conversations with spouses, co-workers, even rivals, typically uncredited.

“So much of the creative exchange gets hidden. It happens offstage, and isn’t a part of history. Sometimes that’s due to prejudice, or ignorance, and sometimes it’s because, if things go well, you just don’t hear about the second person,” Shenk said in an interview in Vox.

For writers, think of the brainstorming sessions with a writing pal, email exchanges with an editor, even conversations with your S.O. about how to kill a character or how one character might behave in a particular situation.

Then take those ideas, spurred by an exchange, to your writing room and write them!

Montana Women of Mystery — coming your way Wednesday

Bitterroot Lake

Join me and my partners in crime, Debbie Burke and Christine Carbo, at 3 pm Mtn time this Wednesday, Feb 24, for a lively Zoom discussion about our mysteries, thrillers, and suspense novels, the writing process, and more. Our gathering is sponsored by the Buffalo Hill Terrace senior living community in Kalispell; open to the public. Zoom link

I hope you can join us for fun, secrets, and laughter with Debbie, Christine and me.

(The downside of Zoom? You’ll have to bring your own snacks. But check the back of my books for recipes!)

The Saturday Creativity Quote

In honor of Black History Month, the February quotes will all come from famous Black authors.

“One writes out of one thing only—one’s own experience. Everything depends on how relentlessly one forces from this experience the last drop, sweet or bitter, it can possibly give. This is the only real concern of the artist, to recreate out of the disorder of life that order which is art.”

— James Baldwin, American novelist (1924-87), Notes of a Native Son

The Saturday Creativity Quote

Deer Heart (photo by the author)

“Given the ways in which race works in this country, and in the West in general, it actually becomes a radical political statement to introduce blackness into the consciousness of the reader without explanation or announcement. In this way, my characters are not measured over or against whiteness, or understood as a reflection of whiteness. They are simply themselves.
The hardest thing about writing, I think, is observing properly. But more and more, I think, it’s what makes a piece of writing good.”

—Ayana Mathis, in Light the Dark: Writers on Creativity, Inspiration, and the Artistic Process, ed. by Joe Fassler (2017)

The Saturday Creativity Quote

“We’ve all heard the expression ‘one person, one vote’ used to promote the idea that every human being deserves a voice in the political process. Well, I like literature that’s ‘one person, one truth’ – that each person’s experience, no matter how marginal, has the power to tell us something vital about what it means to be human. It’s true that, in many ways, fiction has not been universal: It’s probably been a middle-class form, and there are definitely forgotten people whose lives have not been chronicled. I don’t think writers should be self-congratulatory. But one of the ideological things that the novel form helped accomplish was to expand literature’s focus. The novel tends to show us that the lives of ‘ordinary people’ are as full of drama, emotion, and even political significance as those of the greats.”

—novelist Tom Perotta in Light the Dark: Writers on Creativity, Inspiration, and the Artistic Process, ed by Joe Fassler (2017)

Writing Wednesday — Using tradition to shape plot and character

Vase painted by my paternal grandmother; photo by my cousin, mystery author Laura Childs

This is a season that is particularly shaped by tradition. We celebrate some of our most important holidays and holy days in the last quarter of the year, as autumn becomes winter and we turn the page to a new year.

But this year, traditions are dramatically changed. Travel is harder, public events are limited in size, individual gatherings and celebrations are being reshaped.

And that has me thinking of the role of tradition in story. Think about it in the story you’re working on. How do traditions influence your characters? How guide or frustrate their choices? How create—or recall—tensions between characters, or within them?

Which character assumes the family will always gather at her home? Which character resents that, resists it, has always tried to change it, and finally circumstances allow the change—but what now? Whose help does she need? Who refuses to give it? What does she feel compelled to do, but unsure that she can succeed?

Who absolutely will not hand over the star that always goes on top of the Christmas tree, because it’s always been on her tree because we’ve always gathered at her house.

Who tries to interject new traditions? Who feels rebuffed, rejected, relegated to the kids’ table?

Tranquility, oil on canvas, Tabby Ivy (collection of the author)

I’m speaking both literally and metaphorically here. Traditions aren’t confined to the holidays and holy days, or to family gatherings, and you needn’t be writing about the pandemic to ask your characters these questions. Think about how your characters respond to traditions and to changes. Consider how the usual ways of doing things have influenced the interactions between spouses, sisters, business partners, or rivals—and how changes in the traditions affect those interactions. What ripple effects occur when one person decides to think or feel about “the way things are” or “the way we’ve always done it”? What does that character do as a result, and how does another respond?

And if you find yourself singing a particular song from a Broadway musical, go for it.