Legal Thrillers: Trial and (Many) Errors

In 17 years as a trial lawyer, I never saw a judge bang a gavel or shout "Order in the court!" But that hasn't stopped me from writing scenes in which the judge silences an unruly mob, the gavel echoing like a rifle shot.
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In 17 years as a trial lawyer, I never saw a judge bang a gavel or shout "Order in the court!" But that hasn't stopped me from writing scenes in which the judge silences an unruly mob, the gavel echoing like a rifle shot.

I've taken liberties, but mostly small ones. Nothing irritates me more than a courtroom scene that's dead wrong. Recently, I was reading a promising debut novel that involves a murder trial.

"Does the prosecution intend to call the defendant to testify?" the judge asks.

Maybe if we're in China, I thought.

In the U.S.A., there's the little matter of the Fifth Amendment. The choice to testify belongs solely to the defendant.

The prize for Most Ludicrous Legal Story Ever goes to the film Double Jeopardy, a 1999 Ashley Judd potboiler. A woman convicted of killing her husband gets early release from prison and discovers her hubby had faked his death and is still alive. She decides to kill him, because "double jeopardy" prevents her from being charged with murder.

No, it doesn't! The supposed murder six years earlier is a different crime, and she can be charged if she aces the faker today. (If it were up to me, the screenwriter would go to jail along with the homicidal woman).

If you want verisimilitude, read Scott Turow. If you want to sue God, hire Ally McBeal. Okay, I'm stretching it, because the mini-skirted lawyer refused to sue God on behalf of a little boy dying of leukemia. The kid came from a hard-luck family. Years earlier, a lightning bolt had killed the boy's father. Another lawyer on the show suggested that the lightning was an "act of God," so they could sue the Big Guy for that, as well as for the kid's leukemia. Who says we don't need tort reform? 2010-08-04-perrymason.jpg

The portrayal of the justice system in popular entertainment has changed substantially over the years. In Perry Mason's world, the D.A. was a likeable dullard, and every client was innocent. On Law & Order, the prosecutors were indignant and intelligent, and the defendants almost always guilty. My favorite character was Jack McCoy, the hard-nosed prosecutor given to hard-boiled dialogue:

"Your grief might seem a little more real had you not just admitted you cut off your wife's head."

"The last time I checked, 'stupid' isn't a defense to murder."

"You played me, you son-of-a-bitch!"

Here are some of the common courtroom fallacies foisted upon us by screenwriters and novelists:

"We lost the case on a legal technicality." Really? Is that what you call the Fourth Amendment's ban on unreasonable searches and seizures?

"Put yourself in my client's shoes." No way! In real life, you're supposed to live by the "Golden Rule." In closing argument, it will get you a mistrial.

"Objection! Counsel is badgering the witness." I don't know how this got started, but it's epidemic on television. There's no such objection under the Rules of Evidence. "Argumentative" gets the point across, and it's what real lawyers say.

My courtroom tales are not immune to criticism. I co-created the CBS Supreme Court drama, First Monday, which the Wall Street Journal gleefully described as a "moronic melodrama." Yeah, I feel the same about their editorials.

A Justice Department lawyer who once clerked for Ruth Bader Ginsberg took issue with my portrayal of the Supreme Court in the novel Reversal. (Originally published in hardcover as 9 Scorpions.) In a scholarly piece -- it had 171 footnotes! -- John B. Owen, Esq. objected to a female law clerk having an affair with her boss, the young Justice Sam Truitt. Wouldn't happen, he said. A strip tease the clerk performs at a Christmas party "divorces the story from any sense of authenticity," Owen wrote in the University of California Law Review.

Owen also criticized Supreme Court thrillers by David Baldacci and Brad Meltzert. He found Baldacci's The Simple Truth unrealistic, and declared that Meltzer's "The Tenth Justice won't win any awards for its attention to finer detail."

But doesn't that miss the point? "Finer detail" is not what fiction is all about. A novelist need only create an imaginary world that is real in the broader sense. Compelling stories involving the quest for justice or the thirst for revenge or a host of other inner needs can emerge from a setting that is an approximation of reality. And if all else fails, write a scene involving a strip-tease at the Supreme Court's Christmas party.

To mark its 20th anniversary, To Speak for the Dead is now an e-book with all proceeds pledged for cancer treatment at Penn State Hershey Children's Hospital. In July, the e-book was the number one "hardboiled mystery" on's bestseller list.

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