As an attorney who has practiced law 24 years, I have a hard time watching shows or reading books involving the law. Why? Because so many of them get so much of it wrong. It takes me right out of the story to sit there thinking, “That would never happen.”
Most lawyers I know can’t read or watch stories about law because the factual errors are too frustrating. Gross misunderstanding of how the justice system works can take away from even the best plot. There are over 1.1 million lawyers in the United States, so alienating us with mistakes that are easily corrected can affect your sales and ratings.
While I’m willing to suspend disbelief for a great story, some things tick me off so much that I find it hard to watch or read past the point where the writer commits any of these gaffes:
- Length of time of court proceedings. There is no case in the world where the client walks in the door and they’re in trial the next day or the next week. Cases take time. At least show that some time passed in the proceeding. Age the characters, have something in their lives change. There are all kinds of things your lawyers do to prepare – depositions, hearings, motions. This gives you lots of opportunity to create interesting moments in your plot.
- Lawyers switching sides. I really didn’t think this needed to be said until I saw it on a TV show. A lawyer can never change sides in the middle of the case. I don’t care how much the client on the other side begs. I don’t care if the firm the lawyer works for is okay with it. This will never be okay. If the lawyer in your story does this, show the disbarment proceedings in the next chapter.
- Turning against client or going rogue. The lawyer doesn’t get to accept settlements the client didn’t agree to or secretly work against the client. If you show a lawyer doing this, you’d better have done your work to develop your character as a sleazy lawyer with zero ethics who knows they’re doing wrong.
- Meeting alone with the judge. There are very few times when a lawyer can meet ex parte with the judge. Ex parte is fancy lawyer talk for without the other side. An emergency injunction is one of those circumstances. But in most cases, if you show the lawyer hopping into the judge’s office alone to talk about the case, you should show the judge’s bailiff escorting them to the door.
- Meeting alone with a party on the other side. The lawyer can’t meet with a party they know is represented unless that party’s attorney agrees to let the meeting happen. I don’t care what Patty Hewes does on Damages. And you know why it doesn’t bother me on Damages? Because the lawyers did their character development and I know Patty Hewes has no ethics. It’s in character and I believe it.
- Secret recordings. All states require at least one party to consent to a recording, so a lawyer or a party can never plant a device to record a conversation they’re not part of. Many states require both parties to consent to the recording, so if your lawyer is in one of those states and they hid a tape recorder in a purse, they’ve likely committed a felony. An illegal recording probably won’t be admissible in court.
- Improper questioning. I see lawyers virtually testifying in TV and movies all the time. If the lawyer is talking about evidence that hasn’t been introduced through some witness on the stand, they’ll be told to cut it out.
- It’s just circumstantial. All that great forensic evidence you see on CSI? It’s circumstantial. Eyewitness evidence is the most unreliable evidence. I hate it when lawyers and judges go around saying, “oh, but the evidence is just circumstantial.” Circumstantial evidence is reliable as heck. Witnesses are lousy at remembering details, but ballistics rarely lie.
- Wrong jurisdiction. Showing a federal judge handling foreclosures, a criminal judge handling small claims cases, a divorce judge trying a personal injury case, is all amateur hour. Judges are limited in the types of cases they can hear. Do your homework and show the right judge hearing the right kind of case.
- Yelling at judges. If a lawyer yells at a judge in court, they’ll land in jail for contempt, or at least get a severe dressing-down. There are all kinds of proceedings that don’t happen in front of judges where you can set the big dramatic scene where the lawyer acts out. If you set it in court, the next scene should be in jail.
So, do your research, and get it right. Thank you in advance for writing something that 1.1 million lawyers will be happy to read. If I can help even one novelist keep from having their book thrown down in disgust, or one TV writer from having the channel changed, my work is done here.
Donna Ballman has practiced employment law for 24 years. She was named in The Lawdragon 500 Leading Plaintiffs’ Lawyers in America, 2007, and has received numerous awards. Donna’s book, The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers (Get It Write), is part of Behler Publications’ award-winning “Get it Write” series. The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, by Donna Ballman, is available on Amazon, Barnes & Noble, Borders, and many other stores online. Donna ’s blog is The Write Report, http://writereport.blogspot.com. She covers writing and publishing news and some of the gaffes she sees writers make, along with tips for fixing those problem areas. Donna Ballman’s website is http://www.donnaballman.com. You can use the contact form there to ask her about using the law in your writing. No personal legal questions please!