Law Class

I’ve been thinking lately about lawyer archetypes. (I don’t often sit around musing about Jungian psychology, but I needed to give a short talk on the legal profession, and one thing sort of led to another.) The topic comes up occasionally. An internet search leads you to a good CrimeReads article by Christopher Brown. The American Bar Association devoted an issue of their magazine to the topic in August 2016.

    Every occupation has its types: doctors, priests, teachers, and even assassins have predictable buckets for fiction and movies. I’m sure accountants and farmers have them, too. I just haven’t read enough books or seen those films. 

    For today’s conversation, I will identify five different types of lawyers. I focus primarily on criminal practitioners because that’s where I live, but I think the types are equally applicable to civil law.

            #1. The Crusader:

    When asked about a lawyer archetype, this is the one most commonly named.

Think Atticus Finch in To Kill a Mockingbird. The truth-seeking champion of the downtrodden speaking truth to power. She can be found seated at either counsel table in the courtroom. The Crusader may be the prosecutor seeking justice for a traumatized victim or a defense attorney fighting a lonely battle on behalf of a wrongfully accused social outcast. She might be a plaintiff’s attorney giving voice to a powerless litigant suing a giant corporation with a team of deep-rug lawyers.

    The Crusader doesn’t have to be good at the job. This type is based on passion, not talent. Although she will have to find a legal nugget somewhere. Nobody wants to watch/read the story where the true believer gets steamrolled by the mighty empire unless there is a twist.

            #2 The Shark:  

    Maybe getting runover enough times has led to cynicism. The Shark sacrificed early zeal for the pursuit of wealth. Perhaps the idealism never existed to begin with. The Shark has learned the courthouse’s back passages and traverses them for his own enrichment. A reasonable doubt for a reasonable fee.

    Sharks represent the profession devoid of any nobility. Maybe they are skeptical about whether anything like justice exists, or perhaps the Shark has just become detached, substituting the luxuries purchased through success for any moral examination.

    Perhaps you’ve seen the Shark’s billboard on your morning commute. They can usually be found near the emergency room entrance to the hospital.

            #3 The Sleazy Drunkard:

    Abandon hope all ye who enter here. The Sharks or The Crusaders might journey down a path leading to Sleazy Drunkard. Drugs or alcohol might serve as the balm for a Crusader who must confront frequent disillusionment as the system disappoints and ultimately crushes him (and his clients). Alternatively, the absence of a moral compass might lead to unrestrained hedonism. The lawyer’s downward spiral leads to professional lapses—the decline may be marked by the diminished quality of the Drunkard’s scotch.

    To be fair, perhaps the archetype should have a slash, Sleazy/Drunkard. This attorney might still dream of nobility through an alcohol fog or, alternatively, have substance abuse as but one of a collection of issues, the others more sinister.

    Sleazy/Drunkard stories might be about redemption. Think Paul Newman’s Frank Galvin in The Verdict. (There are more recent examples, but that’s where my mind went.) The Crusader who tumbled is resurrected. Alternatively, the story might make the Sleazy/Drunkard the villain. Clients come to an attorney’s office needing help. That need makes them vulnerable and subject to exploitation. Every courthouse I’ve ever worked in has rumors about lawyers who took in-kind payments for their services. Characters who prey upon the weak in their hour of distress make first-rate villains. 

            #4 The Buffoon:

    My final categories get a bit muddled. The Buffoon could easily be subdivided into several distinct buckets. I think that they arise from our shared understanding of courts. We know the tropes of a courtroom. The lawyer who runs afoul of those established practices can generate either
laughter or cringes.

    J. Cheever Loophole, played by Groucho Marx, might mock the theater of the
courtroom with an over-the-top portrayal. John Gibbons, the public defender in My Cousin Vinny, might set up Joe Pesci through his ineptitude. We know what they’re doing or failing to do because we have learned through books and movies what to expect from a courtroom.

    The Buffoon might also just be very bad at his job. There is an element of talent, experience, and instinct in a successful attorney, just as in any other profession. A case in the hands of a Buffoon might produce an unjust outcome. The story might, therefore, set the stage for vigilante action to balance the scales. Every revenge story is about righting an unpunished wrong.

            #5 The Pettifogger

    This type takes the conversation in a different direction. To this point, the types have been more about degrees of cynicism toward the criminal justice system. The Pettifogger may fall anywhere along the scale. This is a classification based on tactics.

    By etymology, the Pettifogger may seem synonymous with the Shark, the Drunkard, or the Buffoon, depending on where the emphasis lies. A combination of “petty” (small) and “fogger,” an obsolete Dutch expression for a cheater. (You might think of an English profanity that sounds something like it.)  A pettifogger became a “small cheat,” a substandard practitioner of law. One who handles only small cases or employs questionable methods, according to the website Lexico.

    Instead, I’ve seen the name employed and use it here to describe the attorney who makes every question a struggle, every point a battleground. To illustrate, consider the following exchange.

            Lawyer #1: “Tell the Court your name.”

            Pettifogger: “May I take the witness on voir dire?”

            Judge: “Briefly.”

            Pettifogger: “How do you know your name?”

            Witness: “My parents called me that.”

            Pettifogger: “Objection, hearsay. No personal knowledge of the fact.”

            And with that, the bloodletting begins.

    I’ll hasten to add that there is a place for focusing on the details in court. Witnesses may want to describe with broad strokes and attention to the specifics is how inconsistencies may be reconciled and conflicts resolved. Reasonable doubt is created in the details. Excessive focus on every detail, perhaps using the pain of court to deter seeking an appropriate legal remedy, creates the world where “lawyer” becomes a pejorative.    

    We’ve split the lawyering world into five classes. You might find other categories as you look across the expanse of fiction. We might also think about how these categories affect fiction. That will have to be a topic for another day.  

    Until next time. 

Guest Post: V.S. Kemanis on "Writing Legal Suspense"

I'm pleased to host V.S. Kemanis today for an insightful guest post on writing legal suspense fiction. I know Vija best as a fine short story writer whose work has appeared in Ellery Queen's Mystery Magazine and the EQMM anthology The Crooked Road, Volume Three, among other places. But she's also a novelist—Deep Zero, the fourth book in her Dana Hargrove series, releases next week—and as she discusses here, much of the series draws on her background as an attorney herself. As her website explains, "In her legal career, she has been a criminal prosecutor of street crime and organized crime for county and state agencies, argued criminal appeals for the prosecution and defense, conducted complex civil litigation, and worked as a court attorney for state appellate courts." An impressive career, an extensive resume, but how do you draw on one career in law when pursuing another as a writer? In her essay here, she addresses that point and more. Welcome, Vija! — Art Taylor

Writing Legal Suspense: Navigating the Personal and the Professional 

By V.S. Kemanis

V.S. Kemanis

Writing what I “know,” drawing on my legal career, I created a series featuring a female assistant district attorney. To clarify, I recall a pleasant chat I had with two people in a noisy bar—the KGB Bar in Manhattan—on an evening I was scheduled to read from my work. A bit later, when they didn’t realize I was standing nearby, I heard one of them say to the other, “I can’t believe that woman told us she used to be a prostitute!”

Sorry to disappoint, but my protagonist is a female prosecutor, not a prostitute. I’ve given her some enviable qualities without being too liberal in the idealization department. She’s not without her vulnerabilities, some of which are taken from my own experiences.

I went to law school in the late seventies, a time when the male/female student ratio was finally approaching 50/50. By the time I entered the Manhattan District Attorney’s Office, the class of new recruits was almost evenly split along gender lines, but the courtroom was still largely a man’s world. I never had to break new ground, to go where women had never gone before, but I rode in on the tidal wave of female entrance into the legal profession.

Even so, it was not easy. I remember times when I felt like the fifth wheel or the unwanted interloper in the old boys’ club. A few uncomfortable situations from the early years will never fade from memory. There was an appellate judge who told me during oral argument that I sounded like a “schoolteacher.” A boss who made jokes about not being able to get around me in the hallway when I was pregnant. A roomful of seasoned investigators explicitly discussing a woman’s body, unmindful of my presence.

But these indignities were insignificant compared to greater challenges. Working in the criminal justice system can be an emotional rollercoaster, dealing with shattered lives, tough adversaries, and conflicting views on policing and punishment, to name a few things. For a young professional starting a family, juggling the demands of career and personal life can be nearly overwhelming.

So, when I embarked on my legal suspense series, I wanted to wrap all of this up in my strong-female-lead-with-vulnerabilities character. Her name is Dana Hargrove. For some years now, I’ve been throwing impossible ethical dilemmas at Dana, many involving the intersection of her career and family.

In creating these novels, the easy part is plotting Dana’s criminal cases and ethical dilemmas. A pool of this stuff swirls in the back of my mind, cases I handled as a prosecutor or read about in the latter part of my career as an editor at an appellate court. Insert fictional characters, change some details, find a connection to Dana’s life, and the plot emerges.

The tough part for me is to incorporate the law into the story, without making it sound like a legal brief. I endlessly rewrite the sections with the legal underpinnings for Dana’s conflicts, dilemmas, and decisions. My goal is to be accurate and to make the law accessible and interesting. Not boring. (Really? The law can be boring?) This is where questions of writing technique and target audience come in. I imagine that any writer who relies on technical knowledge to advance a story faces similar challenges.

Let me back up and make an embarrassing admission. I’m absolutely fascinated by criminal law and courtroom procedure! This stuff has everything: it’s intellectual and technical and absurdly detailed but also grounded in basic moral tenets. Who couldn’t love it?

Well, I’ve come to learn that many fans of crime fiction do not share my thrill at the clever gymnastics of incisive legal argument. To be fair, many do. I could decide to limit my target audience to legal nerds like me. But I’d rather make my stories appealing to a broader audience, without sacrificing the legal conundrums. Comments from beta readers, reviewers, and fans have helped with this.

The main technique I use for making the law flow is to cut out a lot of filler. The dramatic bits are highlighted: a brutal cross-examination, the surprise testimony, the jury’s verdict in a close case. This doesn’t make it inaccurate or unrealistic—just condensed. Focusing on the consequences of a prosecutor’s decision, instead of the technical rules, is another way to make the story come alive. If Dana does X, she could be disbarred. If Dana does Y, the killer could go free.

Thanks to popular entertainment, basic legal terms are now part of everyday language: probable cause, Miranda rights, suppression of evidence. The writing challenge arises with ideas that haven’t made it into common parlance: statutory elements of specific crimes and rules of professional ethics. Sometimes, Dana goes through mental gyrations or discusses a problem with her colleagues. I read these scenes out loud to myself and others. Do they make sense? Does the dialogue sound authentic? Funny or not, a lot of lawyer-speak is completely authentic but won’t sound that way to a non-lawyer. “People don’t talk like this.” Actually, they do. But anything that bogs down the story should be trimmed or rewritten to make it more colloquial.

After four novels, my journey through Dana’s fictional world has been a new mix of the professional and the personal. The pastime of fiction writing has morphed into a profession. The creation of characters has morphed into my alternate reality. Dana, her friends and family, have invaded my life.

I ask creators of series if you agree: It’s a lot of fun having a second family.

The Court Reporter's Tale

            One of the many problems I have with courtroom dramas (let me count the ways!  and I probably will, as time goes along) is that they ignore court reporters.  They're there, taking notes, saying nothing, and vanish whenever anything happens.  And yet they're a pivotal, important part of any court.  

            Now, I admit I don't know how it's done in New York City, but in smaller cities and rural areas, every judge has his/her own personal court reporter.  These are long-lasting relationships - some for decades.  Always symbiotic; sometimes strange; usually very professional; sometimes not; and once in a while the kind to make any court administrator wake up in a cold sweat, with the words "sexual harassment law suit" running through their minds.  And court reporters are human beings, too:  I remember one court reporter who started dating one of the witnesses, surreptitiously, who later turned out to be heavily involved with the drug-dealing defendant.  That got wild and wooly:  the court reporter got shot one night, and the only reason the court reporter wasn't fired was that the judge used all of his considerable clout to prevent it.

            Judges will use their clout to protect their court reporter, because one of the worst things that can happen to a judge, other than being caught in a motel room with a minor the day before elections, is to lose their court reporter of long-standing.  This is hell for a couple of reasons:  (1) most judges depend on the court reporter to keep track of  everything for them and (2) they're going to have to break in a new court reporter, and no one - let me repeat, NO ONE - wants to be around while that's going on.  (http://www.stus.com/stus-cartoon.php?name=Court+Reporter&cartoon=blg5807)   There's also the problem of getting transcripts, but we'll get to that in a minute.   

            It's the court reporter who makes sure that the judge's life runs smoothly.  First of all, he/she keeps the judge's calendar.  That's a lot of clout right there.  You want an early hearing?  Or a delay?  Does the court reporter like you?  Know you from Adam's off ox?  Let's just say that any smart attorney keeps in very good with the court reporter. (Note this website about "gifting" - http://promotionholdings.com/legal/court-reporter-gifting-and-lawyer-ethics/  Not that it happens very often, of course.)  By the way, when the judge calls everyone into his/her chambers for some reason?  The court reporter is there.  When the judge goes golfing?  Court reporter often goes along.  When the judge is in chambers, thinking?  The court reporter is the guard dog on the threshold. 

            Other things on a court reporter's plate:  making sure the courthouse is set up to the judge’s personal specifications.  There's a whole list of things, from proper beverage on - or under - the bench, to the various requirements of life in the judges' chambers.  Hint:  When the court reporter tells you the judge wants M&Ms or Diet Seven-Up or only blue pens, get it before the fit is pitched.  Often the court reporter is also the judge's chauffeur, driving them to and from court (and here in South Dakota, that could be a considerable distance for a traveling judge).  Court reporters are also secretaries, valets, servants...  There's a wide range of duties.   

            Oh, and yes, they also take notes.  Either the very old fashioned way by hand (Bogie movies), 

or the old fashioned way (stenotype machine), or the new paperless way. 

Now the court reporter is hired by the state or the federal government (depending on judge’s level); but the government doesn’t pay for the court reporters’ equipment (which costs about $4,500).  This means that while the court reporter is paid for taking down the hearing or trial in court, the actual notes technically belong to the court reporter, and he/she is paid again for actually transcribing them.  “Double-dipping!” claim the accountants.  “Pay for our equipment!” cry the court reporters.  “No way in hell!” scream the bureaucrats.   And the situation continues.  By the way, in case you're wondering, transcripts currently cost around $2.00-$2.50 a page, or $1.25 a minute of court time, whichever costs more.  A court reporter who works for an active judge can make a pretty good living.  It's the free-lancers who are often close to starving...

 Let's talk for a minute about the records.  The old stenotype machines have only gone the way of the dinosaurs fairly recently.  They produced a stack of paper, about 3 inches by eternity, on which the transcript is coded; this code is in shorthand, and each court reporter had his/her own shorthand on top of that.  It could be very hard for one court reporter to read another court reporter’s notes.  (And that wasn't entirely by accident:  it's called job security.)  In the old days, the court reporter would read the paper tape and type it on a typewriter.  Then a computer.  And, finally, software was developed that could take those notes and format them into a word processing mode, but, since this requires translation from the shorthand, even this gets tricky.  For example, the words “their”, “there”, “they’re” and “the air” are all coded exactly the same.  So the court reporter has to both program the software to match his/her shorthand, and also remember what was actually said in the hearing.  Sometimes they don’t.  Sometimes they're not around because they're retired.  Sometimes they're dead.  

And that's when it gets tricky.  Because not all court notes get/got transcribed right away, or soon, or at all.  Think of all the hearings and trials that are held every day in every town and city:  they don't get transcribed unless they're specifically asked for.  Joe Blow pleads guilty to a DUI and gets sentenced to, say, a year's probation and time served .  Jill Smith gets caught robbing a casino, and gets 2 years.  There's a dispute over the construction of a driveway that goes to trial.  (I remember congratulating the judge on his ability to sleep with his eyes open on that one.) There's a jury trial about a possible child abuse case, and the person is acquitted.   Or one in which they're found guilty.  The paper is there, on tape, on record - but it may or may not ever be transcribed, because the real reason for transcription is a dispute over the verdict. That doesn't always happen.  Or at least, not right away.  In my days with the circuit court, I remember seeing stacks and stacks and stacks of tapes, dated and semi-labeled, that had never been transcribed, and probably never would be.  

Unless...  And what if...