by J.D. Rhoades
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
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
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
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.
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
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.
So can anyone recommend a "legal thriller" that WON’T get thrown off the deck when I’m at the beach next week?