Bad Lawyering from Good Writers
Books, Crooks and Counselors: How to Write Accurately About Criminal Law and Courtroom Procedure is a new offering from attorney Leslie Budewitz that seeks to help writers more accurately portray criminal proceedings. The first fifty pages, available for a free look on Amazon, are pretty good. The need for such guides is great.
Many lawyers are failed writers, but many writers fail as fictional lawyers. Authors love to write courtroom scenes, and they can't resist legal twists and turns. The appeals are several: conflict between parties; the vagaries of an arcane system; and suspense leading up to a definitive climax, to name a few. Unfortunately, even great writers often do a lousy job.
For instance, Adam Haslett, whose wonderful first book of short stories, You Are Not A Stranger Here, was a finalist for the Pulitzer and National Book Awards, focuses on legal proceedings in his novel Union Atlantic. A now-older granddaughter, Charlotte, files a “petition” pro se -- i.e., without a lawyer -- asking for the return of real estate that her Massachussets town sold to a third party in violation of rules set up by her grandfather, who donated the land. Normally, pursuant to the rule against perpetuities, such restrictions expire after thirty years. At a “hearing,” Charlotte, secures a stunning victory by announcing that her grandfather had formed a charity, deeded the land to the charity, and that the rule against perpetuities doesn’t apply to charities. The judge immediately rules in her favor.
The reasons this would never happen are many, including basic matters of procedure. Charlotte filed the petition on behalf of herself, so it doesn’t matter what the charity is entitled to, it’s not a party to the litigation. Moreover, an organization cannot proceed pro se. See, for example Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79 (1988). And the rule applies to nonprofits: Brattman v. Sec’y of the Commonwealth, 421 Mass. 508 (1995).
The legal plot further loses credibility when the order gets reversed "on appeal" based on new documents detailing the charity’s lack of compliance with various regulations that the third-party buyer has stolen from Charlotte. First, appeals are generally limited to the record on appeal. Second, the buyer would be entitled to those documents through discovery, highlighting the novel's inaccurate portrayl of legitimate trial proceedings. And I could go on.
The amazing thing is that Haslett graduated from Yale Law School! He apparently never practiced, so it just shows that a little knowledge can be dangerous.
So read Budewitz’s book, or pick up some nutshells. And keep in mind two bits of advice (which Haslett could’ve used). First, spend the time to get the procedure realistic. Make sure you have the right parties in the right court. It’s boring stuff, but lawyers will notice if you mess it up. And second, be wary of the “gotcha” moment. It rarely happens. But if you dare, make doubly sure to follow the first point.
