Law-Abiding Fiction: 3 Mistakes to Avoid

To help you achieve that all-important believability, let’s look at the three biggest mistakes writers make when depicting the legal process.
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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 aren’t 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, let’s look at the three biggest mistakes I see writers make when depicting the legal process:

This 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 (, a social media and book sales platform for thousands of successful authors.

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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 defendant—it 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 investigation—the 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 Amendment’s 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. That’s 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 you’ve seen on TV, judges, lawyers, witnesses and clients are usually staid and respectful when they’re in court. Judges are in full control of their courtrooms. Lawyers aren’t allowed to make long speeches that might prejudice a jury, and witnesses and clients aren’t allowed to interrupt proceedings. Although the popularity of shows such as “Perry Mason” and “Law & Order” has distorted the public’s perception of the courtroom, you can still be compelling without dispatching reality.

The most effective research is spending time in a real courtroom—most are open to the public—and with real lawyers. You’ll soon find it is very different than what you’ve 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 Writer’s Guide to the Courtroom by attorney Donna Ballman, as well as a bevy of online resources available to guide you.

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Brian A. Klems is the editor of this blog, online editor of Writer's Digest and author of the popular gift bookOh Boy, You're Having a Girl: A Dad's Survival Guide to Raising Daughters.

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