Are you writing a story with a courtroom scene and need to add some realistic touches? Or perhaps you’re fleshing out a trial attorney or other legal player in the courtroom? Or maybe you just want a handle on a few terms for when your heroine makes a court appearance? This article is a brief, introductory “Trials 101” (U.S. legal system) to help you with those realistic touches, fleshing out, and terms. It outlines the key players in the courtroom, the history of trials (think combatants in battle), a few reasons why trials happen (as well as some wrong reasons trials happen, which could provide great story conflict), and ends with several examples of outstanding trials in books and movies. Let’s start with the key players.
Attorneys
“Lawyers, I suppose, were children once.”
-Charles Lamb 1775-1834
In my experience as a legal investigator working for numerous attorneys, and from the perspectives of several hearty attorneys who reviewed this article, lawyers come in three packages:
The careful-thinking, detail-oriented scribe who never goes to court.
The engaging, sometimes charismatic big-picture thinker who speaks too much and tells great stories doing so.
The rarest and truly the most refined of all: a lawyer who is mindful of what the populace values and treasures, who uses intuition and intellect, and who blends the two work styles above; this individual is the model attorney, one who benefits and complements society.
If, as Shakespeare purported, we were to kill all the lawyers, the third category is the one to spare.
The Other Players: Judges, Plaintiffs, Defendants
In state courts (where most justice is meted out) the judge is a lawyer (usually a politically astute lawyer) who is either elected or appointed by the governor. They are rarely unbiased (no rule of law ever said that they have to be unbiased) and their assigned role is to apply rules of law and procedure. They preside over jury trials and increasingly, they are interested in making the trial experience as fair for jurors as it is for litigants.
Judges make legal decisions based on legal principles. The law that judges use is found in statutes, or in books of rules or procedure, or it is found in a body of law called common law. Common law is the body of legal traditions and principles that has been passed from judge to judge over the last thousand years (think common law marriage–judges created a rule many years ago that two people who hold themselves out as married to the public, and who file official documents as a married couple, are indeed married). Common law was a part of the legal world for hundreds of years before someone decided to pass a law about it. Judges apply the law, and juries determine whether the facts that they believe have been proven to them and actually support the claims brought in a civil or criminal lawsuit.
A litigant is a person who is suing or being sued. A plaintiff is someone who is suing, as is a petitioner (primarily in divorce cases). A defendant is one accused in a criminal case or the person being sued in a civil action (also called a respondent in a divorce, or any other family law, case). Counsel are the lawyers for the various sides.
Next, let’s overview the history of trials, which explains the high-stakes gladiator drama of courtroom battles.
History of Trials
“A trial is still ordeal by battle. For the broadsword there is the weight of evidence; for the battle-axe the force of logic; for the sharp spear, the blazing gleam of truth; for the rapier, the quick and flashing knife of wit.”
-Lloyd Paul Stryker, American attorney, quoted in reports of his death June 22, 1955
Our modern system of justice has roots in medieval Germanic and Anglo-Saxon conflict resolution, which people of yesteryear called trial by ordeal (literally an ordeal as it typically involved torture by fire or water), which evolved into trial by battle (where the aggrieved and the accused did battle). The premise behind trials by ordeal or by battle was based on the belief that God would not allow the guilty or the wrong to prosper.
Later, trial by battle was used in civil cases. Like today’s trial system, the parties to the dispute did not enter the “field of combat” but instead, each chose “champions” to fight in their place (see the similarity to modern trial lawyers?). Each champion would take an oath and swear that the cause they were undertaking was in the right, with the medieval belief being that God would strengthen the arm of whoever had sworn to uphold the more just position.
Trial by battle persisted in the English system of laws until its abolition in the nineteenth century. The basic principles and some of the details (for example, that the trial was presided over by the coroner in English law, and that all trial systems provided for a presiding judge of some kind) persist in modern systems in America and England. Imagine this system in today’s world—perhaps a television series where WWF champion wrestlers become trial lawyers!
Just like combatants in trials by battle, characters in the law still remain arrogant, independent, and ready for battle.
Why do trials happen?
“I can try a lawsuit as well as other men, but the most important thing is to prevent lawsuits”
-Confucius, Analects, c. 500 B.C.E.
Trials happen for the right reasons, such as determining losses for an injured party or the guilt of an accused when the evidence is close. A trial that happens for the right reasons leaves the public with added confidence in the legal process.
Unfortunately, even the right reasons can go wrong in trials (although this can make for great conflict in our stories!). Below are a few examples of wrong reasons.
Wrong reason #1: Lawyers or parties personalize case issues and become vengeful against the other, which results in cases being driven to trial as a result of animosity between lawyers. Clients who were not otherwise at serious odds become that way by taking on the acrimony flowing between lawyers.
Wrong reason #2: Lawyers placing personalities ahead of the greater welfare of those concerned. In an instance such as this, clients and lawyers are drawn to a particularly strong personality in the courtroom–be it judge, witness, expert witness, or others–and any challenge to that individual is seen as a slight to the person drawn to the favored individual.
Wrong reason #3: Attorneys who use “Rambo” techniques and attitudes. It should be noted that many lawyers study “warrior mentality” in books like The Art of War by Sun Tzu. Think about this jewel from Sun Tzu: “If your opponent is of choleric temper, seek to irritate him.” While this might be great advice for war, this sentiment most certainly doesn’t facilitate affable resolutions! A lawyer may beat up an opponent in a skirmish in the courtroom so badly and so offend others that any possibility of global settlement in the litigation is scuttled. Hmmm…does your fictional attorney have this streak in his/her personality? Or maybe your fictional attorney leans heavily on another concept in The Art of War. As a writer, it would benefit your character research to check out this book and see what traits/values/etc. you might cull for your fictional attorney.
It can be said safely that anything that advances acrimony feeds the likelihood that a case will go to trial. Add to the mix that the entire process of a trial is filled with so many variables that trials are, fundamentally, imprecise. This is especially true in a high-stake situation.
Examples of Great Trials in Books and Movies
Attorney-Author Scott Turow lists these books, among others, as some of the best books about trials:
Anatomy of a Murder (hailed for its realism and grittiness, written by former Minnesota Supreme Court Justice/Trial Attorney John Voelker under the pseudonym Robert Traver, and later made into a moving film)
A Passage to India (noted for moving, sympathetic characterization against a background of broad social issues, written by E.M. Forster)
The Just and the Unjust (a detailed portrait of a young deputy DA’s personality and the events surrounding his first murder trial, by James Gould Cozzens).
Listed below are some films that have showcased different aspects of human experience from the trial’s conflict to its resolution:
Twelve Angry Men, Inherit the Wind, and The Verdict: Each of these films pits the colossal struggle of personalities and ideas.
Adam’s Rib: This movie is a personal story of love and humor against a concurrent trial over a serious crime.
To Kill a Mockingbird, And Justice for All, and Philadelphia: These films display complex characterizations against backgrounds of social issues.
Interestingly, both Anatomy of a Murder and To Kill a Mockingbird frequently appear on lists of the ten best trials in the categories of film and novels.
Keep in mind that, generally speaking, none of the above-referenced books or films present completely accurate depictions of trials because real trials are, for the most part, slow and boring. However, each of the above writers had a sufficient knowledge of the law to create a background of believability. The credibility that flows from this accuracy both captures and keeps the readers’ attention and, maybe more important, their trust. This remains true even when the author takes license with reality and improvises a bit. To paraphrase an old saying, first know the rules, then break them.
Hopefully this article helped you better understand some of those basic rules, historical background, and real-life players in the courtroom.
Colleen Collins is currently working on a hardboiled comedy-mystery she calls “Nick and Nora in the 21st Century.” To read more about her writing and books, go to www.colleencollins.net.