Five mistakes writers make about the civil side of law — by Leslie Budewitz

I’m excited to introduce today’s guest blogger, Leslie Budewitz!  Leslie won the prestigious 2011 Agatha Award for Best Nonfiction for “Books, Crooks & Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure” (Quill Driver Books).  A practicing lawyer, she blogs about ways writers can use the law in their fiction at www.LawandFiction.com.  Welcome, Leslie!
— Allison

Thrilled to be here on today-thanks, Allison!

So many novels, movies, and TV shows touch on the law. But legal plots don’t require a crime. In a good storyteller’s hands, civil law can be equally gripping. Think of the possibilities in adoption (A Theory of Relativity, by Jacquelyn Mitchard, or Run, by Ann Patchett), inheritance (Dickens’ Bleak House), even insurance (Double Indemnity, a great book and even greater movie). My Sister’s Keeper, Jodi Picoult’s novel and a movie, turned on a minor’s right to make her own health care decisions.

In reviewing SVU, Allison identifies what the writers get right and wrong about criminal law. While some mistakes crop up in both criminal and civil cases, as a civil lawyer, I’ve got my own list of common mistakes that get under my skin.

 1.  Using the wrong terms.

Are the fictional lawyers in District Court, Circuit Court, or Superior Court? In New York, the main trial court is called the Supreme Court. It’s easy to check. A writer unsure of terminology can call the court, check its website, or consult the National Center for State Courts website-its excellent directory shows the structure and names of all state courts. Another trick: call a law professor in the story state.

I always recommend writers read news accounts of recent trials. They often reveal local quirks that give a story a sense of place and realism.

2.  Allowing lawyers-or their clients-to argue with the judge, especially after she’s ruled.

This drives me nuts-on the page, on the screen, or in real life. There is no better way to piss off a judge.

Years ago, I went to court with another lawyer in my firm to babysit our client while he argued a motion to the judge. The practice was for the lawyers to stand, side by side, in front of the bench to present their arguments. Our client was incensed by statements opposing counsel made and by our guy’s failure to interrupt and correct him. At one point, she leapt out of her seat, in her red power suit, to dash forward-intending what, I don’t know. I had to physically grab her, and force her to sit. Not recommended.

3. Confusing direct and circumstantial evidence.

Direct evidence is testimony or physical or documentary evidence of a fact. Circumstantial evidence is evidence of one fact that leads to an inference or presumption. In both civil and criminal law, circumstantial evidence may be enough to make the case. If the other side objects to circumstantial evidence, the judge must rule on whether to allow (“admit”) it or not. Is it relevant-that is, does it make facts that matter to the case more or less probable? But circumstantial evidence isn’t necessarily weak, and it won’t necessarily be excluded.

4. Referring to guilt in a civil suit.

Another personal bugaboo. In a criminal case, the defendant will be found guilty or not guilty. But in a civil case, the question is liability, not guilt.

Unlike criminal guilt, civil liability is not all or nothing. Multiple defendants may share liability. The plaintiff-the injured party-may also be “contributorily negligent,” meaning her actions contributed to causing her injuries. At a certain point-typically more than 50%-the plaintiff’s negligence will bar her recovery. Think of a shop owner who failed to shovel her sidewalk and allowed ice to form-but the woman who fell and broke her arm walked there daily, knew the danger, and was too busy texting to watch where she was going.

5. Introducing new evidence on appeal.

Appeals are decided on the record below-meaning the evidence and arguments at trial. An appellate court might order the lower court to reopen the case to consider evidence or arguments it previously excluded. But it won’t allow the parties to present any evidence or argue legal issues not presented below: no new testimony, no new witnesses, no new physical evidence.

(In a criminal case, new evidence may surface weeks, months, even years after conviction. There are procedures to get it in front of the court, to decide whether the case needs to be reopened. But that won’t happen on appeal.)

So, if you’re a writer, now you know better! And if you’re a reader or a viewer, now you can sit on your couch and smirk when a lawyer hands an affidavit with new testimony to an appellate court, or says a driver is guilty and owes his client a million bucks.

(And of course, as Allison says of all posts here, this is just for fun-and is not intended to provide legal advice in real-life cases.)

 Leslie’s cozy series, The Food Lovers’ Village Mysteries, set in Jewel Bay, Montana, a small lakeside resort community on the way to Glacier Park that calls itself “a Food Lover’s Village,” will debut from Berkley Prime Crime in 2013. She lives in northwest Montana with her husband, a doctor of natural medicine, and their Burmese cat Ruff, an avid birdwatcher. http://www.lawandfiction.com