Writing Excuses 13.7: What Writers Get Wrong, with Lou Perry
Key points: What do writers get wrong about the law? Objection! Sustained! No basis? Actually, objection, leading the witness is okay, BUT you have to be leading the witness, on direct examination, not cross-examination. You are allowed to lead opposing witnesses, even be argumentative with them. Judges don’t usually do off-the-cuff rulings. Note that sometimes you have to make a choice between the narrative and accuracy. But the middle ground might work, with the real thing between scenes or offscreen. Legal actions take time. Other pet peeves? Fiery closing arguments. Don’t imitate Law & Order. Slow, boring, meticulous does the job. Small town lawyers are likely to be general practitioners, while big city firms are more likely to have specialists. Cross-examination of a dishonest witness might make a good piece of courtroom drama to put in a story. The best way to learn about courtrooms is to go to the courthouse and watch a trial.
[Mary] Season 13, Episode Seven.
[Brandon] This is Writing Excuses, What Do Writers Get Wrong, with Lou Perry.
[Mary] 15 minutes long.
[Dan] Because you’re in a hurry.
[Howard] And we’re not that smart.
[Brandon] I’m Brandon.
[Mary] I’m Mary.
[Dan] I’m Dan.
[Howard] And I’m ready to learn something.
[Brandon] We have special guest star, Lou.
[Lou] Thanks for having me.
[Brandon] Our pleasure. Thank you for being on the podcast. We are again live at GenCon.
[Mary] Right. So, Lou, in order to make our audience understand that you don’t exist along a single axis, tell us a little bit about yourself.
[Lou] Sure. Well, I’m here because I’m a lawyer, but I’m also a father and a husband, a writer, a reader, and as of a few months ago, I got way too into [Eight mander?] girls softball.
[Brandon] And became a rabid, rabid fan.
[Mary] So, what are we going to be focusing on today?
[Lou] Unfortunately, not the softball. We’re going to be focusing on the law and what you folks get wrong with it.
[Mary] So what writers get wrong with law.
[Brandon] This is probably a long, long, long list. We’d probably need an hour to get it all.
[Howard] And an attorney.
[Howard] I mean, like representation.
[Lou] Yeah, it’s gotten to the point for me where I don’t watch legal shows. I try not to read anything that has anything to do with the law. I’ve closed books before when that comes up and I wasn’t expecting it.
[Dan] Is there one particular cliché or pet peeve that stands out above the others? That you’re just like, “That again!”
[Lou] Yeah. Objecting with no basis.
[Lou] And then the judge making a ruling with no basis.
[Brandon] Tell us more.
[Dan] We’re just idiots. What do you mean by that?
[Lou] So, often times in trials, somebody’ll be making an argument, and the opposing counsel will object. There are bases for objection, there’s rules of evidence. In the lazier pieces of fiction, what you find is people just randomly objecting and there randomly being rulings on those objections, not based on any reason.
[Mary] So, in the real world, what would an objection sound like?
[Lou] Objection. Leading the witness. Now, you actually have to be leading the witness to have that objection. It has to be on direct examination, not cross-examination. A lot of times, I see, especially in TV shows, prosecutors will be objecting to a defense counsel who is leading a witness, but the witness is the prosecutor’s witness. So you’re allowed to lead opposing witnesses. You’re also allowed to be argumentative with opposing witnesses, because that’s what cross-examination is.
[Mary] Got it.
[Brandon] Okay. Wow.
[Mary] So then when a judge does the sustained or doesn’t… When you say that there’s a ruling, I take it that that’s more than just that one word, he would actually…
[Lou] He usually will make a more robust ruling. Sometimes there’ll end up being a ruling in writing. Sometimes there’ll be a recess. Sometimes there will be a conference outside of the jury, and they’ll come to… Attorneys will come to some agreement. Sometimes there will just be an off-the-cuff ruling.
[Brandon] So there is never a time where there’s like objection, overruled, objection, sustained, like over and over again. Does that just not happen, right?
[Lou] I have never seen that happen.
[Dan] So what you’re saying is that the law is really complicated?
[Lou] It’s very complicated
[Howard] What you’re also saying is that unless we’ve been in a courtroom, we’ve never seen anything remotely like a real trial.
[Lou] I think that’s correct.
[Mary] Is there anything among lawyers that you’re like, “Oh, this one. This one actually has it mostly right.”
[Lou] You mean in terms of fiction that I’ve [garbled read.]
[Mary] Fiction or film, media, any…
[Lou] John Grisham does an okay job. He was actually a lawyer. He knows what he’s doing, but he’s making choices to serve the narrative which sometimes annoys me.
[Lou] But he gets it right more often than he gets it wrong.
[Lou] He does get it wrong, but I think it’s on purpose.
[Dan] That’s actually a good point to make, that sometimes, even as an expert, you do need to make choices in favor of the narrative over accuracy.
[Brandon] But you will lose some readers every time you do that. Often finding the middle ground is the best thing to do. Saying, “All right, let’s indicate that the real thing happened, kind of between scenes or offscreen or hint at it,” and things like this, so that the person who is an expert can look at it and be like, “All right. It’s okay, they’re covering their bases. I can go on and enjoy this.”
[Mary] What are some of the things that signal to you… I mean, you’ve said that you will already just not read a book if there appears to be legal stuff in there. But are there early indicators that this one might be okay? I do the same thing, like I avoid puppet books for the same reason.
[Lou] An early indicator, I think, would be…
[Mary] The author’s bio?
[Lou] Maybe the author’s bio.
[Lou] But if I am in a book where legal things are happening, if they’re getting just the general sense that these things take time, there’s no big surprise thing happening in a legal action that’s going to ultimately cause the case to speed up, things go very slow. If that’s happening, I can generally be on board with it. But at this point, I have just kind of given up. So…
[Mary] So what are some other things… Because one of the things I have to admit that I really enjoy about this particular series is watching people rant about things.
[Mary] What are some other pet peeves that you have?
[Lou] Sure. Fiery closing arguments. Those tend to really annoy the judges, I think.
[Mary] Really? Why is that?
[Lou] Because they think you’re imitating Law & Order.
[Lou] They probably feel much like I do about Law & Order, they probably hate it. The trick there, though, is your client really likes it. Because they’ve also seen Law & Order.
[Lou] So those fiery closing arguments do happen. It’s just debatable…
[Howard] So television is why we can’t have nice things.
[Lou] Television is why we can’t have nice things. Correct.
[Dan] I remember I was on jury duty several years ago, and was surprised by how different it was from what I thought it was going to be. But that was one of the things that really stood out to me, was the really slow, boring, meticulous lawyer absolutely won that case. He didn’t give the big fiery speech, he wasn’t trying to be charismatic, he was just trying to present his case as thoroughly and relentlessly as possible.
[Lou] I think that’s right. That’s usually the way it should be done.
[Mary] Now is it different when you have… When you’re talking to a judge versus talking to a jury?
[Lou] A bench trial would be very different. I think you would find both parties, both lawyers, doing exactly what Dan was talking about. Being very meticulous… Understanding that the judge has seen this all a thousand times, and you’re not going to impress him with some turn of phrase or some fiery speech. Juries are just another factor that you have to put in. You have to understand who you have in your jury and whether or not they’re going to respond to that sort of thing.
[Brandon] Let’s go ahead and stop for our book of the week. You’re going to pitch a book to us.
[Lou] I am going to pitch a book. The book I’m pitching is called Ghouljaw by an Indiana native named Clint Smith. It’s out from Hippocampus Press. It’s Midwestern, weird fiction, short stories. Very good stuff. Kind of literary. Also kind of schlocky and funny, in parts. I really enjoyed it, and I think everybody else would, too.
[Brandon] Awesome. Well, let me ask you a question on that. Can lawyer or law fiction or things like that get so schlocky that you can enjoy it again? Can it just be so far off?
[Lou] I think the Frank Castle scene in Daredevil was so far off and so goofy and just so wrong and so angering…
[Lou] That I came around to the other side and sort of enjoyed it.
[Howard] I don’t know that that was what Brandon was hoping for.
[Mary] I have to admit that I’m surprised that you watched Daredevil at all.
[Lou] Well, there’s a fundamental tension when it’s involving comic book…
[Lou] Heroes from my childhood. So I will watch that. I mean, that also had ninjas and stuff.
[Mary] Fair. Fair.
[Dan] Now that’s a question. Let me ask really quick because I remember years and years ago being in a WorldCon panel about fencing where people were just griping about how bad the fencing was in Princess Bride. But then, at the end of the panel, one of the people asked, “Okay, but be honest. How many of you got into fencing because of Princess Bride?” Every member of the panel raised their hand.
[Dan] So like, what are some of the… I mean, is that how you got into law, in some ways?
[Lou] No. I got into law… I was an English major in undergrad, and…
[Mary] Realized you wanted to make some money.
[Lou] I wasn’t finding much in the way of a job market, and I went to law school, and it turned out to be the right fit. I think writing and the law kind of go hand-in-hand. I found I did pretty well in law school. Not because I was the smartest or the best student, but I think I was a better writer than some. That was due to the English degree, and due to the… Always reading.
[Howard] It’s amazing how much good written communication can jumpstart your career in any field where people at work think for a living.
[Lou] That’s right.
[Brandon] When I was in my degree program, the English major, one of the number one follow-ups to an English major was a law degree. Which I… It just shocked me, because I was just like, “Isn’t everyone here to read Jane Austen and dance through the flowers?”
[Brandon] That’s why I was there. But apparently that’s a really good preparation for a law degree, which should, alone, tell us a little bit more… A little bit about how different being an attorney is from how it’s presented.
[Mary] Now, one of the things that I understand is that there are multiple different types of attorneys. So can you kind of break down some of the things? Because I think that a lot of people… One of the mistakes that I will see is that they think that all attorneys are the same thing. That if you do corporate law, it’s the same thing as being trial law, it’s the same thing as…
[Lou] Yeah. I mean, it really depends on where you’re living. If you’re in a smaller town, you’re going to do a lot of stuff… You’re going to be a general practitioner. If you’re in a bigger city, there’s a good chance you’re going to be in a decent-sized firm and you’re going to be specializing in one certain thing. Maybe it’s corporate law. I do intellectual property litigation. It could be nonprofit law. But generally, everybody has kind of a niche practice. But then you go out into the smaller counties in Indiana, and those guys do everything. They do criminal law, they do corporate law, they do IP law. They do some of it better than other portions of it, but they just do it all.
[Mary] So, let’s say, since you have admitted that you will avoid them like the plague. What would make you… If one of our writers did this… What would make you go, I would read it if you did this?
[Lou] See, that’s a tough question, because if you got the law all right, it would be a very, very boring story.
[Howard] I guess… To approach it differently, what if… You have a story which is overwhelmingly in a different area, and the story crosses through at some point a courtroom. What pieces of the courtroom, what pieces of that activity, can I show that will convince you that this is okay, without boring my readers to absolute tears?
[Lou] I think a cross-examination of a dishonest witness is a very fun thing to do, and to watch. But it’s got to be done in a not terribly dramatic way. But I think there are a lot of ways to build tension and to get a lot of character across and also to tell a lot of story through what’s being said and not said.
[Dan] So, given that we don’t have much time here, and can’t necessarily go into it all right now, what are some good resources that our listeners could look to to find out how to do something like that correctly?
[Lou] I think if you go to your local county courthouse and just sit around and watch a trial, I think that would be a very good thing to do. You can get deposition transcripts. You can read those. That’s probably not the most scintillating reading.
[Lou] But it’s… They’re all out there. A lot of stuff’s online. That’s what I would do.
[Brandon] Excellent. We’re out of time, but you did have some homework for us.
[Lou] I did. It’s going to be very unpopular.
[Lou] I was thinking about this. I’m going to suggest that everybody go out and pick a Supreme Court opinion, preferably where Justice Scalia is dissenting. Read it. Read the opinion, that’s likely written by Ruth Bader Ginsburg. Then read Justice Scalia’s dissent. Try to keep an open mind about what he’s saying and why he’s saying it. Also pay attention to the law that’s at issue. I think you’ll find that you can see where he’s coming from and you’ll see where Ginsburg is coming from. And you can see the fundamental problem with the law as written.
[Brandon] Excellent. Wow.
[Brandon] Well, thank you so much, Lou, for being on the podcast with us. Thank you to our audience.
[Brandon] This has been Writing Excuses. You’re out of excuses, now go write.