Writing legal scenes: how to not annoy lawyers.

by catherinerogan

The written (and TV) world is full of legal drama. The maverick cop who tore up the rule book (but he gets results, dammit), the sharp advocate who gets a confession of murder out of a seemingly innocent eyewitness, they lawyer who moves the jury to tears with his closing speech.

The real world has none of these things, at least most of the time. Young advocates in training are told to “avoid anything that smacks of legal drama”. This could cause a problem for anyone writing legal drama but wishing to be realistic. However despite the lack of fancy speeches and surprise witnesses, the courts are still places of drama, of freedom lost, and of truth and lies.

Do your research

You can go visit a court. Virtually all hearings (except in the family courts) are open to members of the public. You don’t have to make an appointment or justify why you are there, you can simply say you are a member of public who wishes to see the court at work. It’s a good idea to watch a short case so you get to see all the stages of a trial. Go to the type of court you are writing about. Most legal drama is based around the criminal system, but if you want to write something set in the Employment Tribunal go to see the Employment Tribunal. Remember Scotland is a different jurisdiction, they do things differently up there! Some cases, particularly murders and sex offences, will be difficult to watch. But if you don’t have the stomach to watch a rape trial maybe you shouldn’t write a rape trial.

When you visit the court you might be disappointed. Modern courtrooms don’t really look the part, mahogany benches have often been replaced by pine, and tribunals (Employment and Social Security) look more like classrooms than anything else. British judges do not have gavels! If you only remember one thing make it this! Judges with gavels annoys lawyers so much there is even a tumblr about it http://inappropriategavels.tumblr.com/

If you are writing a historical piece then you need to know what law was in force then. The Police and Criminal Evidence Act, which gives us much of the police station procedure we take for granted (like taping interviews) wasn’t enacted until October 1984. Marital rape was legal in the UK until 1991. If you give someone an ASBO in the 70s then you are going to look foolish.

Solicitors and Barristers

The British legal profession is split into solicitors and barristers. Generally speaking, the solicitor runs the case and then the barrister picks it up a few days before the hearing and represents in court. There are Solicitor Advocates who do represent in court, but they are a rare breed. In the Crown Court barristers (or Solicitor Advocates) wear wigs and gowns. Wigs and gowns are not worn in the magistrate’s court. Barristers often keep their wigs in old biscuit tins. The wigs yellow and discolour over time, so you can tell an inexperienced barrister by their snowy white wig (unless they bought it second hand!) Lawyers have a duty not to mislead the court, so if your character tells their lawyer that they did it you are putting your fictional lawyer in a difficult situation (pet TV lawyer peeve – lawyer asks defendant if they did it. Why!?) Write yourself a corrupt lawyer if you need one but remember most aren’t. The same goes for police officers. It’s not unheard of them to lie, but most are trying to do the right thing.

Equally, you don’t have to be an amoral monster to defend someone accused of something heinous – our justice system is based on the belief that everyone is innocent until proven guilty and everyone has the right to a fair trial. Barristers aren’t meant to turn down cases (known as the “cab rank rule”.) Most criminal lawyers (on both sides) are overworked and paid less than you would expect.

It’s very unlikely that a criminal defence barrister will have the time or energy to unmask the real culprit – and they don’t need to. They don’t even need to prove their client didn’t do it, it is for the prosecution to prove beyond reasonable doubt that the defendant did do it. Lawyers are not private detectives. Good advocates will avoid asking questions they don’t already know the answers to – most surprises aren’t helpful ones – but if you need your protagonist to be jailed for a crime he didn’t commit then feel free to give him a useless barrister (they exist). Just make it believable.

In the crown court the judge is referred to as “My Lord” or My Lady” in most cases. In the magistrate’s court the bench consists of a district judge and lay members. They are addressed as “Sir” or “Madam”. The lay members are members of the community and not usually legally trained. There is a handy article about modes of address at http://learnmore.lawbore.net/index.php/Modes_Of_Address_Introduction

Advocates refer to each other as “My Learned Friend”, My Friend” or “My Colleague”. Occasionally we will call each other by name. Judges refer to advocates by name. “Have you any response, Ms Rogan?” Advocates rarely shout “Objection!” Judges know the law and will step in if needs be. Where it is necessary to object to something a short explanation to the judge is preferable to acting like Perry Mason.

Magistrates’ and Crown Courts

Magistrates’ Courts hear more minor cases – they can only sentence up to six months. Most serious cases will be sent to the Crown Court. All cases start in the magistrate’s court though – even a murder case will begin with the magistrate sending it up to the Crown Court.

There is a straightforward guide to the shape of a crown court case at http://ukcriminallawblog.com/2013/03/25/crown-court-trial/

The prosecution goes first, the defence gets the last word. Remember that the prosecution must prove beyond reasonable doubt that the defendant did it. If there is reasonable doubt even before the defence give their evidence then the trial will collapse (and possibly should never have been brought). You need to give your fictional prosecutor enough to bring the case, whatever the result you have planned is. You have an advantage over the real life lawyers in that you are writing the evidence. Plan each side’s evidence before you write. Think hard about whether realistically a jury would convict or acquit.

Examination in chief and cross examination

Unless a witness statement is so uncontroversial both sides agree to it simply being read to the jury, in criminal courts the evidence is given by the advocate asking the witness a series of questions. This is called evidence in chief. The important thing to understand is that an advocate should not ask her own witness leading questions. “You were driving to your mother’s house, weren’t you?” is a leading question. “Where were you driving to?” isn’t.

Cross examination is where the opposing advocate questions the witness’s evidence. Here is where leading questions are expected. It also sounds the most like legal drama. “I put it to you that you did not drive to your mother’s house. I put it to you that you drove to the victim’s house, didn’t you?”

Witnesses are generally nervous, often burst into tears and get flustered. A hard witness to crack is one that gives short factual answers to the questions asked. However human nature being what it is, most witnesses give far too much information and tie themselves in knots. Being cross examined is an unpleasant experience, it is hard to keep up a convincing lie. Witnesses do lie, however, and rarely admit to lying even when it’s obvious that they are doing so. The defendant doesn’t have to take the stand, although if he doesn’t the prosecution might ask the jury to draw inferences.

Evidence

Laypeople often put undue weight on eyewitness evidence – judges have a standard warning that a witness who saw a crime may be “honest but mistaken”. On the subject of eyewitnesses, identification parades are almost always wrong in films and TV – you need at least nine people who look something like the suspect.

What the witnesses say is evidence (don’t say “there was no evidence to convict him” if there was a witness who claimed he did whatever evil crime you have thought of). Other common mistakes in talking about evidence are misunderstandings of the words “forensic” and “hearsay”.

Forensic simply means “for a court”. It is a mistake to think it refers only to evidence from a laboratory. However lots of advocates do make reference to “forensic evidence.” If a judge is being witty they might say “I hope all your evidence is forensic”.

Hearsay evidence is second hand evidence. If I give evidence that says “Jane said that Bob had been drinking” then it is evidence that Jane said that, but only hearsay evidence that Bob had been drinking.  Hearsay evidence is not always inadmissible. In fact English and Welsh courts are far looser on what is admissible than the Americans.

Verdict and sentencing

In the magistrates court the magistrates will go and confer then return with a verdict. In the crown court the jury will do this. The jury may have been directed by a judge to find not guilty on some counts, for example where parts of the legal test haven’t been made out. Juries are free to ignore the judge (I think) although they rarely do

Sentencing might happen on the same day as the verdict, or weeks or months after. People often overestimate the length of custodial sentences. Luckily you can easily look up the likely sentence at http://sentencingcouncil.judiciary.gov.uk/sentencing-guidelines.htm  You can read sentencing reports online (I think they are really interesting) – it will give you an idea of what the judge will talk about and take into account in sentencing.

If all this makes the courts sound boring, it’s because they sort of are. And as the legal profession seeks to become more accessible the courts will be even less theatrical and arcane. But the moment someone is told he will spend the next five years in jail, or a woman sees her rapist walk free, that cannot help but be dramatic. The story is in the people, not the procedure.

I am an employment law adviser with some advocacy experience, not a criminal lawyer – all mistakes are my own and feel free to point any out so I can correct. This post was inspired by the first episode of Silk, and The Escape Artist (or, as I like to call it, Dr Who breaks the rules of Bar Standards Board. I tutted so much at that.)

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