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
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.
So can anyone recommend a "legal thriller" that WON’T get thrown off the deck when I’m at the beach next week?
My favorite legal read was nonfiction, years ago, Helter Skelter, but you’ve probably already read that one!
I recently read Frank Turner Hollon’s The Point of Fracture, which I found very stark, but it kept me reading.
I’m vaguely remembering a Sharon McCrumb novel I read on a vacation in the mountains one year, that had to do with a crime of passion and how it played out in the local court system. I remember becoming very engrossed in it but I can’t recall the title.
Enjoy the beach!
Well, you probably don’t want any recommendations from me – Grisham fan that I am!
Margaret Maron does write the best courtroom mysteries I’VE ever read, just lush with fabulous characterization, location, and a lot of humor.
My favorite legal thriller remains Scott Turow’s PRESUMED INNOCENT, which I reread every year or so. Outstanding, and the film actually did it – uh – justice.
(RIP Raul Julia…)
Other than the trial scenes in TO KILL A MOCKINGBIRD, most courtroom stories turn me off. I’ve tried to read Grisham, but the only one of his novels I liked was A PAINTED HOUSE.
That said, Dusty, this was one of the most interesting blog posts I’ve read in a long time.
I think most people have their specialities and get turned off by a certain aspect of fiction. I know I’ve found myself crying “Hey, wait a minute. It’s not like that.” – over books and TV and movies. The worst one for me was Regarding Henry, which was sooooo far off I wanted to throw something through the TV. (Thank goodness I didn’t pay to watch it.
Everything I know about fictional law I learned from Perry Mason. If those weren’t too irritating for you, you might like Erle Stanley Gardner’s books. I actually like his D.A. series better than his Perry Mason’s. Or maybe you could read something by Robert Traver. “Anatomy of a Murder” and “Laughing Whitefish” were both good, IMO.
Michael Connelly’s Lincoln Lawyer. A good friend’s husband is a high profile defense attorney here in New Haven and he said that book was spot on. He said he’s also pretty picky about this sort of thing.
I have the same trouble with books with reporter protagonists. I can tell when a writer hasn’t been in a newsroom for a while or if he/she’s never been in a newsroom. Granted, my protag does things I never knew any reporter to do, but if I just had her going to planning and zoning meetings and waiting for press releases it would get pretty boring.
Dusty: Being an attorney, myself, I’d say your post is spot on–the best brief explanation of day-to-day small town criminal lawyering I can recall.
The other pet peeve I have about book/TV/movie courtroom proceedings is that the basis for an objection is rarely, if ever, stated.
Hi Dusty,
You want recommendations? I have recommendations….
In the more serious, darker category, I’d suggest books by either Reed Arvin – “The Last Goodbye” and “Blood of Angels” – or Rob Reuland – “Hollowpoint” and “Semiautomatic”. I can’t speak to their verisimilitude (love that word, and almost never get to use it 😉 but both Arvin and Reuland are brilliant writers, and their books are amazing.
On the lighter side, Dylan Schaffer is a Bay Area attorney who’s written two fabulous books – “Misdemeanor Man” and “I Right the Wrongs” – about an underpaid, unmotivated PD who gets tangled up in murder cases. They’re great.
I second that recommendation of Lincoln Lawyer, although I don’t know how realistic Connelly’s depiction was.
As for that “willing suspension of disbelief,” let me paraphrase a rejection letter a friend of mine got from a well-known agent a couple of years ago: “The willing suspension of disbelief does not mean that you have to grab disbelief by the throat and hold it up there until it’s dead.”
I had a tough time with John Lescroart Second Chair because the lawyers at the begining of the book didn’t care whether their client did it or not. There were only interested in justice, just billable hours. I know that was the point of the story, but it still hurt to read it. 🙂
BTW – line of the week: “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.'”
I’m fond of Paul Levine’s “Solomon Versus Lord” novels, more romantic comedies than legal thrillers. I enjoyed his earlier mostly out-of-print Jake Lassiter lawyer mysteries, too.
Of course, it’s all relative, right? I come from a laboratory background and although I like “Bones” and some of the forensic shows (they’re like Star Trek, you go watch them for the special effects), most of them suck from a scientific point of view. I abandoned Patricia Cornwall entirely after she began a chapter with what amounted to the marketing brochure copy as a description of a mass spectrometer/gas chromatograph. Wouldn’t it be better to just say it’s a machine that you use to identify unknown substances by incinerating the substance and analyzing the vapors?
The big killer in most forensic TV shows and novels, to my mind, are:
1. Time (anybody noticed the backlog these days on DNA testing?)2. Money (ever visited a crime lab? Newest and latest equipment does not usually describe their facilities. “Hey Chief, we really need a new MS/GC. It costs half a million.” “Well, Mr. CSI, here’s your option. We get your new MS/GC or your entire staff gets to keep their jobs. Pick one.”)
I haven’t read a lot of legal thrillers in a while, though I enjoy them tremendously. I did a jag of Lescroart a while back, and I have some Linda Fairstein to read. I’ve been wanting to read Alafair Burke — her character is a DA nand I hear great things about her series.
But I must admit to a fair bit of jealousy that you DO have such a fascinating sideline (mainline?) Dusty. If you ever want to write legal thrillers, your bed is already made. Think of all those research hours you wouldn’t need to put in: )
Have a great vacation!
I’d forgotten about The Lincoln Lawyer. I read it a few months ago, and liked it. I even considered closing the office and working out of my car. :-). Talk about things that just wouldn’t work…
And I have Solomon vs. Lord in the TBR pile. Into the bag with you!
Oh, and here’s a little P.S.: the best answer I ever heard to the “how can you defend someone you know is guilty” question was from my friend Bruce: “It’s not the guilty ones you lose sleep over. The ones you lose sleep over are the ones you know are innocent who might still get convicted.”
If I’m not too late to make a recommendation, one of the best books of any kind I’ve EVER read was A CIVIL ACTION by Jonathan Harr. The movie starring John Travolta did the book no justice (pun not intended) whatsoever—it was brilliant. And as it was non-fiction, I would suspect it was fairly realistic to boot.
Three fairly new authors who write legal mystery/thrillers whom I’ve enjoyed are:
Randall Hicks, author of “The Baby Game”. The cover’s fairly silly, but I enjoyed it. He’s an adoption attorney in real life, and the book revolves around that. I liked that the tone started off fairly lighthearted, but as his situation became more precarious the tone darkened up.
David Hosp, author of “Dark Harbor”. I think this series has some seriously great potential.
Mark Gimenez, author of “The Color of Law”, although I don’t have enough courtroom experience to know if this one would make you throw the book across the room or not.
Anyway, they are three I recommend fairly regularly at the shop that haven’t been mentioned here.
I don’t read legal thrillers much either, and I only worked in a law library! But I did enjoy your post, which was both entertaining and informative.