When people find out about my “day job” practicing law, they usually assume that I write legal thrillers. “Oh, like John Grisham,” is what I usually hear. Well, I wouldn’t turn down an advance the size of Grisham’s, that’s for sure, but I don’t write that much about trials and lawyers and such, which puzzles some people. After all, you’re supposed to write what you know, right?
The thing is, most legal fiction drives me up the wall because of all the things that occur that I know would never, ever happen in a real court of law or in actual practice. I know, it’s fiction, and you’re supposed to suspend your disbelief, but seeing someone blatantly violate procedure for dramatic effect is like having a unicorn walk into the courtroom. That sudden “Whaaaa?” takes me right out of the story.
And don’t even get me started on lawyer TV shows. I find myself leaping up, yelling “OBJECT, YOU MORON!” at the hapless lawyer sitting there looking like a stunned bunny while the hero or heroine walks all over him.
There’s really not that much witty repartee going on in the courtroom, and damned little drama. Most of the time, both sides and the judge know ahead of time how it’s going to play out, thanks to a process called “discovery”, during which both sides have to exchange documents, witness lists and other information in their possession. (Violation of the discovery rules is one of the main things that got Durham District Attorney Mike Nifong disbarred).
But the thing that makes me craziest in most legal thrillers is the cliché that every client is innocent. I mean, I love Ed McBain’s work, but when I came to a passage in one of his books featuring criminal lawyer Matthew Hope, a passage in which McBain stated that Hope only took on clients “he knew were innocent,” I literally threw the book across the room. Apparently, Matthew Hope Esq, is not fond of eating regularly, because if you only took on clients you knew were innocent, you’d go hungry a lot.
The most common question asked of attorneys in the criminal law area is “how can you defend people you know are guilty?” At the risk of sounding Clintonian here, the question is really based upon a misunderstanding as to what the words “defend” and “guilty” really mean.
Most people assume that criminal defense is like in books or on TV, where every lawyer only has one case at a time, every case is tried (usually within 45 minutes of the crime taking place) and that every trial’s about whether the guy at the Defendant’s table is the one who did the deed. Cases with what we call a SODDI (Some Other Dude Did It) defense actually make up a very small part of your trial load. Most of the time, everyone including you is pretty doggone sure that the person sitting next to you is the perpetrator. In cases like that, you’re often arguing about what the Defendant actually did, and what crime, if any, those actions constitute.
Example: There was this guy, let’s call him Danny. Danny was a long-haired redneck boy from up in the hard-scrabble northern part of the county. He was, by accounts of everyone who knew him, a pretty good guy, if a little wild. He was 19 years old, had a good job working construction, a pretty girlfriend, and a new Camaro. He’d had a couple of traffic tickets, a weed-based misdemeanor or two, but no history of violence. But, like most young men in his social circle, Danny had a gun. One Friday night, Danny was hanging out with his best buddy, a guy he’d grown up with, a guy who was like a brother to him. They were with a bunch of other people hanging around the Stop and Go convenience store. Danny and Best Buddy were splitting a bottle of Mexican tequila, the kind with the worm at the bottom. Now the legend is, if you eat the tequila worm, you’ll get really, really high. Well, before they knew it, the tequila was gone, and so was the worm. They started the kind of good natured back and forth that young guys get into some times: ‘Hey you sumbitch, that worm was mine, I’ll kick your ass for that!” “You ain’t gonna do shit,” etc. The people around the car all agree they were both laughing, mock punching, just screwing around. Then Danny pulled his pistol from beneath the seat and started waving it, still laughing.
The gun went off and blew Best Buddy’s brains all over the passenger side window.
The cops came and Danny was charged with first degree murder. The D.A. tut-tutted over how awful it was to "shoot a man over the worm in a tequila bottle."
Now, first degree murder, punishable by death or life without parole, requires premeditation and deliberation. Danny had no intention of shooting Best Buddy. He didn’t set out that night planning to shoot him. In fact, he was devastated by what he’d done. He sat in the office of the attorney I was clerking for and cried like a child. “I never meant to hurt nobody,” he said, over and over, and everybody who was there at the scene of the crime agreed.
So “defending” Danny didn’t mean proving he didn’t do it. He was guilty of something, but he wasn’t guilty of first degree murder. My boss argued, successfully, that what Danny was actually guilty of was involuntary manslaughter which, stripped of legal verbiage, means “the Defendant was doing something monumentally stupid and someone got killed.” The difference for Danny was five years instead of life. He pled to involuntary, did his five years, and hasn’t been in trouble since. In fact, he’s a deacon in his church. He hasn’t touched a drop of alcohol since that night.
Other times, “defending the guilty” means arguing for alternatives to prison. Sometimes, a probationary sentence involves getting your strung-out, drug addicted client into rehab, and sometimes it takes. Not often, but enough. And if a defendant is employed, probation with restitution gives the victim a chance to get their money back.
So while there are some great stories out there in actual law practice, very few of them are the type you’d read in a mystery novel.
All that said, a few people do manage to do it right. Margaret Maron, for example, has a number of scenes that absolutely nail the details of small town law practice (probably because she did some of her research with the Chief District Court Judge in my district). George V. Higgins' Kennedy for the Defense gets into the mind of a criminal lawyer, with its blend of idealism and cynicism, better than just about anyone (although he does have that annoying "only one client at a time" cliche going).
And for some reason, it doesn't bother me so much if it's played for laughs. Night Court didn't piss me off like Law and Order does. Although, ironically, the losers and loonies of Night Court seem closer to the real people you see some days in District Court.