Sunday, January 28, 2018

The Law And You: What Writers Need To Know

I recently gave a presentation to the Speed City Chapter of Sisters in Crime on "What Writers Should Know About the Law."  Although the program was only an hour long, we only touched on a small percentage of the materials I prepared.

I've broken the materials down to post them in several separate posts on this blog. This information is for general purposes for assisting those who write stories and novels dealing with the legal system and legal issues. It is a guide only -- a starting point. This is not legal advice. Specific laws and procedures differ from state to state.

The Law And You: 
What Writers Need To Know


A.   Michael Connelly’s Lincoln Lawyer books

B.    Scott Turow, Presumed Innocent

C.   My Cousin Vinney

D.   Bleak House

E.    Grisham’s  The Client,  Rainmaker & Gray Mountain

F.    Anatomy of a Murder


A.   Legally Blonde

B.    Double Jeopardy

C.   Runaway Jury

D.   The Verdict

E.    Double Jeopardy

3.  TIPS

A.   Don’t get your law from television or movies

B.    Don’t make stuff up because it makes your writing easier

C.   If you’re writing a detective story or thriller, you can avoid the legal system. Example: James Lee Burke. 

D.   If you’re going to write about the legal system:

               i.         All trials are public. You can just walk in and sit down (sometimes you have to go through an office or only enter or exit at certain times so you don’t disrupt the proceedings).  Exception:  Juvenile proceedings are closed to public.

              ii.         Sit in on trials at your local court house. Watch the proceedings. Observe how lawyers and judges interact; the various ways lawyers handle witnesses; if a jury trial, watch the jury and how they react to what’s going on.

            iii.         Call up a local lawyer or even a judge, tell them what you’re doing and ask if you can buy them lunch and talk about the law.  Many, probably most, trail lawyers and judges are story tellers. They like to tell war stories. If you make an appointment and tell the judge or lawyer it will take 15 minutes – DO NOT take more than 15 minutes unless you are invited to do so. Prepare. Have specific questions. Don’t just ask: “Tell me about trying a case.”

4.  civil V. CRIMINAL LAW

A.   Civil cases:  Disputes between private parties, or between government and private party seeking non-criminal penalties

               i.         Burden of proof:  Preponderance of Evidence, meaning “more likely than not.”

              ii.         Generally, Jury (or judge in bench trial) returns verdict of liability (or non-liability) and awards damages.  A person is not found “guilty” in a civil case.

            iii.         Examples:  car accidents; breach of contract, real estate disputes, etc.

B.    Criminal Cases:  State or Federal Government seeking to convict person of breaking the law, imposing a criminal penalty of imprisonment, fines or both.

               i.         Burden of proof:  Beyond a Reasonable Doubt.

              ii.         Examples:  Murder, Rape, Burglary, Money Laudering, Kidnaping, Drug offenses.


A.   Two entirely separate systems


               i.         50 different systems that often are very different, with different procedures, terms and substantive law. 

1.    All state law is rooted in English common law – except for Louisiana, which is rooted in the Napoleonic Code of 1804.

              ii.         50 different criminal codes and 50 different civil codes

            iii.         50 different sets of trial rules, criminal procedure rules, probate codes and rules of evidence, although most (but not all states) now use the federal rules of civil procedure and federal rules of evidence as the basis, but with significant modifications from state to state, as well as significant differences in interpretation of the same rules.

            iv.         System of selection of judges differs significantly. Indiana, trial judges are elected (required to be lawyers); appellate judges appointed through a process of application, selection of three applicants by a commission, and selection from the three by the governor. Retention ballot after 2 years, then every 10 years after.


               i.         Not every case is a federal case.

              ii.         Separate Federal Court systems,

1.    Trial level:  each state has District Courts. How many courts and how many districts vary by population.

a.     Indiana has 2 districts, Northern District with courts in South Bend, Hammond, Fort Wayne and Lafayette; Southern District with courts in Indianapolis, Terre Haute, Evansville and New Albany

2.    Appellate level:  US Circuit Court of Appeals – second highest next to Supreme Court.

a.    Currently 12 Circuit Courts of Appeal, 11 numbered plus DC Circuit Court of Appeals.
b.    Indiana is in 7th Circuit, which sits in Chicago and includes Indiana, Illinois and Wisconsin

3.    All Federal Judges – District Court, Circuit Court & Supreme Court --  are appointed for life

a.    Removable only by impeachment
b.    Referred to as Article II judges, as the lifetime appointment is provided for in Article II of the US Constitution
c.    Appointed by President, with confirmation by U.S. Senate

            iii.         Criminal cases:  charged in federal court only for violation of federal law. 

1.    EXAMPLES: 

a.    Kidnapping was not a federal crime – until Lindbergh baby case. Congress made it a federal crime when crossed state lines.
b.    Until 1964, murder of a President was not a federal crime.
c.    RICO – Federal Racketeer Influenced and Corrupt Organization Act.
d.    Money Laundering (including the $10,000 cash limits)

2.    Same acts may violate both state and federal law (example: drug crimes, Oklahoma City bombing; Boston Marathon bombing)

3.    Federal law does allow capital punishment – with executions conducted in Federal Prison in Terre Haute

            iv.         Federal Civil cases:  Jurisdiction in federal cases can be very complex. Basics:

1.    Statute gives jurisdiction for the claim (examples:  Anti-trust; Patent infringement; civil rights; housing discrimination, etc – although many of these statutes also gives jurisdiction to state courts.

2.    Diversity

a.    The parties are all from separate states (hence “diverse”).
                            i.      This is actually very complex so unless you want to go to law school and study federal jurisdiction, stay away from this issue in your writing.
b.    And the amount in controversy is more than $75,000 (this amount changes periodically).