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!

Writing Wednesday — death investigations

Once upon a time, I wrote a book called Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure (Linden/Quill Driver Books, 2011), winner of the 2011 Agatha Award for Best Nonfiction. One section discussed medical examiners and coroners, the two types of death investigation in the U.S. Since I had to look up a few details of Washington State’s system recently, I thought you might need a refresher, too.

Books, Crooks, and Councelors

Remember that terms and laws vary state by state. Whether your state uses a coroner, an ME, or a mix of the two, as Washington does, the role is the same: to investigate deaths as required by state law. As the Washington Association of Coroners and Medical Examiners says: “Coroners and medical examiners use the same forensic death scene investigation process,  forensic autopsies, toxicological testing and decedent histories to determine the cause and manner of death, resulting in consistent, professional and high quality death investigations.

Cause and manner. That’s their focus. In other words, what was the medical cause of death, and was it natural, accidental, suicide, homicide, undetermined, or pending. This summary from Washington’s Snohomish County website gives more detail on the five manners of death and specific considerations for each. Remember that particulars in your story state may vary. Coroners and ME’s don’t investigate the who and why—that’s up to law enforcement, whether it’s local police, a sheriff’s department, or a federal agency.

Coroners may be elected or appointed. In some states, they are independent, while in others, they are part of the country sheriff’s department. Medical examiners are typically medical doctors appointed to the position. Autopsies may be done within the department or done by forensic pathologists employed by a local hospital. Some states, like Montana, have a combined system where the sheriff is also the coroner, although a deputy may take on the primary responsibility, while autopsies and forensic examination are done by pathologists and forensics examiners at the state Crime Lab. How can you find out more about your story state’s system? Start here, with the CDC’s summary of Coroner/Medical Examiner Systems, by State; it also provides links to info for each state. The site also provides additional info that will intrigue crime writers. You might also glean useful details from the National Association of Medical Examiners website, including how to become a medical examiner, the violent death reporting system, and more.

Finally, the U.S. Department of Justice publishes this guide, Death Investigation: A Guide for the Scene Investigator, full of legal and other details for dealing with the body, the scene, medical history, and more.

Writing Wednesday — doubt and the book journal

I’m just starting a new project and with it, the book journal. It’s an idea that was new to me when I first heard the late Sue Grafton talk about it, lo these many years, and it was, as many things about writing were to me then, A Revelation.

She described it simply: Create a journal document on your computer for each project. (Mine is called Notes, or Notes + some descriptive word from the title, e.g., Notes Spice #6.) Open each session with that document. Date the entry and jot a line or two about what’s going on in your life. Then, use this place to capture ideas, story questions, worries, research to be done later. I often add my goals for the writing session.

Here are a couple of typical entries, from The Solace of Bay Leaves:

“Tues 7/16 Not quite awake yet, but I can’t get on line, so – to the page! When last we saw our faithful but worried scribe at her desk pondering this ms., she was struggling. Looking for the joy in the writing process, but bogged down by worry and fear, and uncertain where this ms would go. Picture in the corner, a leeetle beety creature – or maybe an angel descending on a spider’s thread, to tell her: It’s all part of the process. Doubt and fear? Let them go. The unknowing? Know that it will resolve itself ON THE PAGE. Each book teaches you how to write THAT BOOK. GO LEARN!

Today’s goal: Cruise. Get to the end of what’s already written. Don’t try to Fix Everything.

What a struggle. But think how proud I’ll feel when I pull it off!

Can I really name a woman Kimberly Clark and get away with it??? (In a story sense, not a legal sense.) Yes, though I might want to reconsider if she turns out to be the killer.”

The Solace of Bay Leaves by Leslie Budewitz

Fri 7/26 Did a short stint Wed before we headed to Missoula, then in the car, I realized I DON’T NEED THE SOCCER MOM story line and the whole thing will be much better. Instead of trying to cram a problematic story line in, GET RID OF IT! And follow the Maddie-Pepper thread, wherever IT goes.

Maybe it was Maddie who Pat stayed home to meet – a secret meeting to work out a compromise? Wouldn’t he have made notes? Maybe she took them.

Deanna as killer? I wanted a man…

And what about ghost signs?

WHAT IF – an old bldg had been torn down in the 1970s and replaced with an icky one; now it was going to be replaced again and the neighborhood wanted it to fit in better…

A new theme is emerging: A not-so-perfect Maddie.”

Grafton often told a story on herself that illustrated the usefulness of her book journal. She got to a particular point in that year’s book when she was sure she couldn’t pull it off. She told her husband, who said “you said that last year at this point.” “Well, maybe, but this not time. This might be the time when I really can’t figure it out.” “You said that last year, too.” And when she opened the previous year’s book journal, by golly, he was right. She laughed at herself, got back to work, and with the help of her book journal, pulled it off.

So did I. You can, too.

Writing Wednesday — staying on the page with a timer

It’s an odd thing, but one of the best techniques I know for keeping my bottom in the chair and my mind on the page is setting a timer. It’s as if my brain knows it doesn’t have to think about or do anything else for that short burst of time, that its only job is to write.

And by golly, it works.

These days, I set the timer on my iPhone for 30 minutes, and I am almost always surprised when it buzzes, because I’m so deep in the work. If you’re prone to distraction from your phone’s beeps and buzzes, turn it off or tuck it in a drawer and use a kitchen timer. I landed on 25 minutes almost by accident—20 seemed too short, 30 too long—and only later discovered that the time management expert who developed the Pomodoro Technique advocates 25 minute sessions. (Why pomodoro? It’s Italian for tomato and he uses, and sells, a tomato-shaped timer.) Now that I’ve done this for a while, 30 minutes is just right.

Give yourself no more than 5 minutes for a break. Do a few deliberate stretches, pee, refill your coffee or water, sit back down, set the timer, and forget it. Don’t go online until your day’s writing session is over. Any longer break, or one that engages your attention in any significant way, will break the connection between your conscious and subconscious minds and disrupt the flow.

Flow, baby. That’s the ticket.

Writing Wednesday — Free Writing

In my Building Character class, one of the tools I describe is the free write, an exercise to delve deeper into a character. Use it with a character who is not forthcoming about their experiences, one who is very different from you, or even one you know well. In writing the stand-alone currently circulating with publishers, I used a free-write session with the main character who is in many ways much like me but whose particular motivation wasn’t clear on the page. I’ve also used it in revision, as with the forthcoming Bitterroot Lake, when my editor suggested that the killer’s motivation needed more depth. I combined a free-write with some emotional research to delve deeper and even found the basis for another scene I knew I needed but had resisted adding because I didn’t know what the story needed.

A student new to the concept asked how to get started. The keys are to write by hand, write in first person, and open yourself to the voice and experience of that character.

Why by hand? Grapho-therapist Jamie Mason Cohen said in an interview that “[w]hen you write by hand, the act itself slows you down, resulting in single-tasking and focused concentration on what you’re doing in the moment and fully present.”

Alicia Beckman's Bitterroot Lake

I believe that free-writing these snippets of our characters’ inner lives by hand frees our creativity by creating a direct link to the subconscious. It frees us from judgment. This same effect comes from writing in first person, in the voice of the character we’re exploring, even if the story itself is in third, or in first but in the voice of a different character. For a few minutes—five to twenty—you’re giving that character a chance to speak directly to you. To tell you their story. You may not use it all on the page, but you’ll learn details and detect emotions that will help you understand that character, their emotional responses to the story events, and what they do as a result. In other words, this simple exercise will advance both characterization and plot

Try asking yourself a some questions, almost like a guided meditation. One of my favorites for mystery and crime writers comes from my friend Ramona DeFelice Long, a writer and editor, who called it channeling your inner OJ. You’ll remember that after OJ Simpson was acquitted of double murder, he claimed to be in search of the real killer and wrote a book called If I Did It, giving a hypothetical description of the murders and how and why they might have occurred. Talk to your suspect and let him or her tell you how and why they might have done it. Pay particular attention to the why, their motivation, and see what surprises they reveal.

Other prompts to ask your character, writing for at least five minutes:
What I most want is…
If I don’t get this, I will …
The thing that stands in my way is…
What I am most afraid of is…

Now pick up your pen and go!



Writing Wednesday — Emotional Research

This week, I recorded a short video (really short!) as part of Sisters in Crime’s SINC-Up series of writing tips. My topic: emotional research. Watch it here.

In the unedited version, I also suggested talking with people who have had the experience you’re writing about, if you can, or folks who work with it professionally; and searching out articles, personal accounts, and other resources. In the example I gave, from my Food Lovers’ Village Mysteries, I found guides online for teachers and school counselors that were enormously helpful.

Writing Wednesday — reading for the love of reading

I wrote about the importance of reading like a writer a few months ago, but today I want to suggest that over the next week or two, you should just read because you love it. Read because it feeds your soul and reminds you why you write. Read because you’ve been reading since you were five or six years old and few things connect you to who you really, truly are than a good book. Read not because you want to learn how Elizabeth George handles shifts in POV (masterfully), how Laura Lippman writes the modern noir in Sunburn, or how Ken Follett makes building a cathedral fascinating—although it’s perfectly fine to notice those things, and even to make a few notes for your own WIP. Read to get lost in a book, to forget what time of day it is or where you are. Read to meet new people, eat new food, explore a new community, and find out what happens, as my friend Barbara Ross says in her “cozy covenant.”

I promise, if you take a little extra time during this holiday season to read for pure joy, you’ll return to the WIP invigorated and inspired.

Writing Wednesday — Writer Unboxed

desk

My favorite writing blog—it may be the only one I still subscribe to—is a group blog called Writer Unboxed, subtitled “about the craft and business of fiction.” Founded by novelists Therese Walsh and Kathleen Bolton, it’s a group blog with more than thirty regular contributors along with a cast of occasional contributors and guests, offering posts on craft, business, and inspiration. The craft posts are detailed—agent and teacher Don Maass, for example, raises a provocative topic then offers specific questions for you to ask yourself about your WIP. Novelist and teacher David Corbett writes often about character, and I’ve come to value craft posts from Kathryn Craft, Barbara Linn Probst, Barbara O’Neal, Heather Webb, and others. Editor Dave King, co-author of Self-Editing for Fiction Writers, often posts snippets from manuscripts he’s worked on, showing his edits and annotating them with his thinking. Editor and novelist Ray Rhamey dissects the opening pages of NY Times best-sellers in his “Flog A Pro” segment. Other posts give a practical look at the business of writing. I was particularly inspired by a Barbara O’Neal post on using collage to better visualize a WIP, and drink in posts on refilling the well and nurturing the creative spirit. Dialogue often erupts in the comments, giving additional suggestions and ideas.

Give it a try.  

Writing Wednesday — The Emotional Craft of Fiction

I’m a big fan of literary agent and teacher Donald Maass. I’ve attended both his Break-out Novel Intensive (BONI) and his BONI Graduate Retreat, intensive seminars where 30 writers gather for a week of classes with Don, Lorin Oberwenger, and other instructors. When I attended BONI in Hood River, Oregon in April 2012, I had a 3-book contract with Berkley for the Food Lovers’ Village mysteries. The first manuscript was due August 1; I had about 60% of a first draft and felt pretty good about it. I went home and started over.

And Death al Dente won the 2013 Agatha Award for Best First Novel.

Each of Maass’s books on writing is filled with insight, easy-to-grasp analysis, and detailed exercises. I recommend them all, but particularly the most recent, The Emotional Craft of Fiction: How to Write the Story Beneath the Surface (Writer’s Digest Books, 2016). We read in large part for an emotional experience, and Maass’s book shows us how to evoke that on the page for our readers. Easy to say, difficult to do, but so much easier with a master teacher.