(Book Excerpt: A Lawyer’s Primer for Writers: From Crimes to Courtrooms)
Many legal thrillers focus on the dynamics of trial lawyers battling it out before and during a courtroom trial. Therefore, we thought it would be interesting to briefly talk about some popular prejudices against trial attorneys. If you’re writing a trial lawyer character, perhaps he or she confronts one of these prejudices from clients, jurors, even social acquaintances.
What Is a Trial Lawyer?
Some lawyers are known to be “trial attorneys,” meaning they are skilled at conducting courtroom litigation in their areas of specialization. For example, Shaun, the co-author of this book, is a trial attorney who specializes in criminal defense, business litigation and personal injury. Writing a story featuring a trial lawyer sets up some rich possibilities for dramatic courtroom scenes.
Outside the courtroom, however, trial lawyers have many other responsibilities that aren’t always as glamorous as books and film often portray. A trial lawyer often spends days reviewing files, interviewing witnesses, discussing cases with his/her clients, filing documents with the court. Each of these processes can take weeks or months as trial attorneys prepare for trial — later in this book, we go into more detail about what takes place throughout the pretrial phase and trial itself.
Now let’s look at some urban legends about trial lawyers.
They Don’t Have Souls
Below is a telling quote from the acclaimed attorney Gerry Spence, who has tried and won many nationally known cases, about one dark prejudice:
“Today the trial lawyer could be as pure and honest as Jesus in a pin-striped suit — and still the jurors will see him through jaundiced spectacles. Or the woman, as trial lawyer, could be Mother Teresa in a conservative business dress — dark worsted wool, a small string of no-nonsense pearls at her throat, a tiny gold cross pinned at her lapel, her face that of a saint — and still the jurors would undress her to her soul to see if, indeed, she has one. Suspicion. Worse. A thin fog of hate surrounds all lawyers for the people, these warriors for the people’s justice.” -Gerry Spence, American trial lawyer who has never lost a criminal case
So how does your fictional attorney deal with this? Does she take on a false bravado to compensate? Does he ignore it, or enter most situations (whether personal or professional) with an irritating bluster? Or, like Gerry Spence, perhaps it encourages him to reach out, be human and correct the misconception when opportunities arise. Of course, the last thing you want is a saint for a trial attorney, so such a Gerry Spence-like character would need an admirable flaw or two in his shining-knight characterization.
Another popular misconception is that all trial attorneys are “aggressive.” Here’s a definition of the word aggressive: Inclined to behave in an actively hostile fashion.
It’s a loaded word, one many attorneys love to use in their ads, as though an attorney behaving like a pit bull on crack equates to sure wins for a client.
Check out ads yourself to see how attorneys love this word. For example, we recently looked on the back of a fat telephone book (they still exist, you know) — and surprise! There’s a full-page ad where the attorney promises “Aggressive Representation.” We flipped to the yellow pages under Attorneys and saw these words in multiple ads: “Affordable and Aggressive.” We also saw several ads of a lawyer smiling next to the words “TOUGH and AGGRESSIVE Lawyer” (capitalized just as it is in the ad).
Aggression in the Courtroom
With the popularity of the word aggressive in lawyers’ ads, does that mean an attorney must be aggressive to be a winner in the courtroom? According to a local respected trial defense attorney, the answer is no. Below is his take on the term:
“In most cases, it simply is better not to be overly aggressive either in pre-trial matters, or at trial. Much of criminal law practice before trial consists of careful investigation and skillful negotiation. This is no place for an attorney to behave aggressively or unreasonably, at least not if they know what they are doing! Even at trial, most experienced trial lawyers know that being aggressive and unfriendly is likely to turn off the jury and everyone else.
While there certainly are situations that call for an aggressive cross-examination of an accuser or other witness, an experienced trial attorney knows that under most circumstances it is better to appear to the jury as a professional and reasonable defense attorney because that makes it much more likely that they will adopt the defense’s version of events and acquit their client. Usually if the jury doesn’t like the attorney, it’s bad news for the client. In fact most prosecutors want obnoxious, aggressive defense attorneys because they know the jury will not like them or their client. It’s a tough lesson to learn for the first time after your trial is over.”
~ End of Excerpt ~
A Lawyer’s Primer for Writers: From Crimes to Courtrooms by Shaun Kaufman and Colleen Collins. Available exclusively on Amazon.
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