Friday, June 12, 2015

Objectionable Legal Writing


Nothing makes me want to punch a book in the face more than a legal scene where one lawyer calls another "counselor."  I don't care what you've seen on Law & Order, we don't talk like that  . . . EVER!

As a lawyer, here are my top five pet peeves when it comes to reading fiction dealing with the courtroom:

1.     The Rocket Docket

Cases take years to go to resolve. Years. YEARS. I stop reading any story where someone walks into a lawyer's office seeking representation and then is in trial a few weeks later.  I'm not saying it is impossible, because there are certain types of cases where that can happen (so do your research), but as a general rule, the wheels of justice move at a glacial pace.

2.     The Eleventh Hour Smoking Gun Document or Witness

As a general rule, witness and exhibit lists are filed well in advance of trial, and what is contained on them is often limited by information that has been previously exchanged and/or disclosed among the parties.  It is rare that a judge will allow a witness or document not previously disclosed to be used at trial.

3.     Hissy Fits in Court

If a lawyer grandstands or goes on a screaming tirade in a court room while examining a witness, he or she is going to get a knot yanked in his or her neck by the judge.  Lawyers are expected to behave professionally in court.  The judge will not let a lawyer get in a witness's face.  A jury is supposed to base its decision on the facts, not passion or prejudice. A judge will do a lot more than pound a gavel if a lawyer starts peacocking around the courtroom. Someone is going to be paying sanctions/a fine and may find himself or herself in custody of a marshal or bailiff.  

4.   Lawyer in a Big Firm Handling a Small Case

Big firms have big overhead. While lawyers in those firms can do some pro bono work, they also have a certain number of billable hours they have to meet to generate the necessary revenue for the firm to pay its rent, make payroll, etc. Practicing law isn't cheap. Lawyers have high hourly rates, and those rates typically increase based on the size of the firm and the size of the city in which the lawyer practices. A lawyer is not going to be working on a case that will generate a fee that results in the firm taking a loss. Doing so will drag the firm under (on a side note, when I took a class on class action litigation in law school, our professor had us read A CIVIL ACTION to learn the real moral of the story - one case can bankrupt a law firm).

5.     Procedural and Evidence Mistakes

If you are going to have a courtroom scene, research it. Audit a class on evidence, civil procedure and/or criminal procedure. There are rules about what can and can't happen in a courtroom.  There are rules about what can and can't be presented to a jury. Random misplaced objections and cases being heard in the wrong type of court are common mistakes in fiction, and they alienate people familiar with the legal community. 

If you want to avoid drawing objections to your legal writing, be sure to attend my workshop (Law and Order for the Writer: Avoiding Objections to Your Legal Writing) at the RWA National convention in New York.  My workshop will be Thursday, July 23 at 12:45: https://www.rwa.org/p/cm/ld/fid=1051 

Do you have a professional mistake that drives you nuts (don't get my mother-in-law started on medical dramas)? I would love to hear it.  Do you have any questions about writing legal scenes? I'm happy to help.

7 comments:

Nancee Cain said...

I'm with your mother in law on the medical issues. Great article, Heather! Wish I was going to RWA to go to your class!

Jillian said...

AMEN to all the above. AND it applies to tv shows as well. LOL! Interestingly, we have a judge here who calls all lawyers counselor. I think it's because he can't remember our names. LOL

Wish I was going to RWA to see your presentation. You will be awesome.

Jillian said...

Oh and I once threw a book where the (NY TIMES Bestselling) author had the heroine's lawyer call her and say her former husband was taking her to court to end his child support because he was remarrying and that he was going to win the case.

Never, Ever, would that be remotely possible. I was done. LOL

Aidee Ladnier said...

I'm really, really, looking forward to your talk at RWA (and purchase the audio if its available). So is it less acceptable to put all your court cases in the science fiction future where the author makes up the rules of law or does that raise the hackles of professionals as well? #askingforafriend

Susan said...

Great post and super helpful!! Thanks!

Chris Bailey said...

Love this list! Professional pet peeves? I experience them every time I pick up our statewide newspaper. Like last Sunday, when the garden columnist mentioned various soil amendments, including lime, and the editor slapped a photo of a bowl of limes onto the top of the page. But in novels? Not so much. Sometimes, when writers who have no journalism training attempt to quote a news story, I wince. Not often. Most writers get writing right.

Ali Hubbard said...

I like how you've organized your list! It helps non-lawyers know what to focus on first. And where to go for additional resources. Great post!
Lawyerly stuff is a lot like some historicals for me...I don't know enough to know when it's wrong so it doesn't bother me. lol.
Best of luck with your workshop at RWA!

@Chris Bailey *snort* limes......