Law-Abiding Fiction: 3 Mistakes to Avoid

By: Guest Column | March 3, 2017

Some of the most successful authors of all time have made their names with stories
that hinge on the legal process. John Grisham, Patricia Cornwell and James Patterson
have mastered the tough balancing act of being legally accurate while telling a
good story.

In real life, most of what lawyers do is sit in front of their computers. Cases drag out
for months or years and then usually settle out of court. And in most situations,
lawyers arent allowed to act like investigators or have direct contact with the bad
guys. Yet these popular authors keep the tension high and legal procedure accurate
enough to be within the realm of possibility.

To help you achieve that all-important believability, lets look at the three biggest
mistakes I see writers make when depicting the legal process:

Abraham Mertens featuredThis guest post is by Abraham Mertens. Mertens is a

corporate and trial attorney in California. He is vice president and general counsel of
Red Room (redroom.com), a social media and book sales platform for thousands of
successful authors.

For more information about Mertens, visit jdcounsel.com.

1. Confusing criminal and civil law.

Civil and criminal cases begin and end in very different ways. A civil case starts
when a plaintiff files suit against a defendantit is a private dispute between
citizens. A criminal case typically begins when a prosecutor files charges against a
defendant based on information obtained through a police investigationthe
defendant is considered to have committed a crime against society.

Civil and criminal cases have different rhythms, and their rules differ greatly.
Plaintiffs can drop a lawsuit; victims cannot stop a prosecution. In civil cases it can
take up to three months for the defendant to answer the complaint, and in most
jurisdictions it takes more than a year for a case to be ready for trial. Time between
civil wrongdoing and judgment can be very long. By contrast, a criminal case has to
be brought to trial as quickly as possible, usually within a few months, because of
the Sixth Amendments requirement of a speedy and public trial.
It is important to note that 97 percent of civil cases settle before trial and more than
90 percent of criminal cases end with a plea bargain. Thats right: No courtroom
drama, no exciting verdict. So if your novel surrounds a civil case, how do you keep
it interesting? John Grisham, a former lawyer in real life, wrote The Runaway Jury
around the slow pacing issues inherent in the civil process by making the book more
about the players than the courtroom.
2. Not understanding jurisdiction and venue issues.

Each case has a venue, the geographic location where the matter is adjudicated,
and jurisdiction, the court that hears the matter. In the United States we have
federal and state courts.

State court systems vary. For example, in California, the trial-level court is superior
court, the intermediate level is the courts of appeal, and the supreme court is the
highest court in the state. Yet in New York, the trial-level court is called the supreme
court and the highest court in the state is the courts of appeal.

All of which goes to show that if the courts are the setting for your novel, you must
research from the bottom up to keep the reader immersed in the story and not
questioning your credibility. For a strong example of how a veteran writer can make
legal jargon seem interesting, take a look at the organized crime novel Judge & Jury
by James Patterson and Andrew Gross.
3. Depicting unrealistic behavior in and out of the courtroom.

It should go without saying that the appeal of the characters, and the underlying
human story, are more important to a successful novel than any clever legal
maneuvers. But when it comes to those people, despite what youve seen on TV,
judges, lawyers, witnesses and clients are usually staid and respectful when theyre
in court. Judges are in full control of their courtrooms. Lawyers arent allowed to
make long speeches that might prejudice a jury, and witnesses and clients arent
allowed to interrupt proceedings. Although the popularity of shows such as Perry
Mason and Law & Order has distorted the publics perception of the courtroom,
you can still be compelling without dispatching reality.

The most effective research is spending time in a real courtroommost are open to
the publicand with real lawyers. Youll soon find it is very different than what
youve seen on TV. If you are writing a district attorney character, find one to run
everything by and attend her trials. If that feels out of reach, there are several
books, such as The Writers Guide to the Courtroom by attorney Donna Ballman, as
well as a bevy of online resources available to guide you.