LAW BASICS FOR WRITERS (AKA, ON BEHALF OF ALL LAWYERS, NEVER PUT THESE MISTAKES IN YOUR WRITING AGAI
Have you ever watched a show or read a book where the characters are in your profession and the writers just get so many things wrong? I don’t mean tiny details, I mean the big things that everybody in the profession knows because they are so basic. Almost like people who make the most obvious of grammar mistakes. It just makes you twitch to read it. (No, ending a sentence with a preposition does not count as grammatically incorrect anymore, so don’t nail me on that one!) I read a post recently from a doctor criticizing doctor shows for what they get wrong and just went, “Yes, exactly!”
I watched the beginning of How To Get Away With Murder and only made it through about 10 minutes before I turned it off, it was so bad. I spent the entire 10 minutes arguing with the TV. So I thought I’d jot down a few things writers (from movies and TV to books) get wrong about the law so you guys won’t drive lawyers crazy… I mean, so you can improve your writing 😉
1. You are not licensed to practice law in America, you are licensed to practice law in a specific state, more than one if you take that bar or are able to waive into that bar, but it’s still done state by state. This is different from the rest of the sane world that I know of, they license you for the entire country (so you can say someone is licensed in Germany).
2. To be allowed to take the bar, most states require you to take at least a one year program of law school in America called an LLM. (There’s a few states that will let you take the bar if you have legal experience, like you have apprenticed, but even then, as far as I know and could quickly Google, you still have to apprentice in the US.) So foreign attorneys who come here don’t just get to be licensed in a state, they don’t even get to just study and take the bar, they have to study law here.
3. Most cases (I don’t know the precise stat but it’s at least 95%) don’t go to trial. The criminal ones get pled out and the civil ones settle. Criminal ones can go quickly if the person just wants to plead and get it over with, but it takes years to get to trial. (Misdemeanors could take only months, but think more like 8 as opposed to just 2. The time is usually shorter in small towns though.) Civil cases take longer. Even just the process of discovery and negotiation takes years. If it does go to trial, there’s still appeals the loser can do, which takes even longer.
4. To get into what was sooooo stupid about HTGAWM, the big thing was no 1L class would be about practical application of the law. It just wouldn’t. Because you can’t apply the law until you know it, duh. And what the hell was she going to test them on? Their ability to come up with stories when they don’t even know what criminal law is?
Even if the set up was a 3L class, they don’t teach you in law school how to make up stories to explain away criminal charges. That’s not law, it’s story hour! Of course Defense Attorney’s do that, and you might have classes or extracurriculars that touch on that or have you do a practice trial where you whip up a good story, but other than that, you learn it on the job after law school.
5. And the next big stupid plot mistake. There’s this thing called confidentiality, attorneys take it very seriously. No attorney would just tell her whole class details about a case if any of it could fall under confidentiality. Students don’t work on cases as a class. They do intern, however, and then they get to be in on confidential stuff because at that point they’re practicing under the lawyer.
That’s not to say a professor won’t have you do work based on a real case, that’s half of what my Trial Advocacy class was, but the professor has to be very careful to not breach confidentiality and they won’t use your ideas unless you’re absolutely brilliant and came up with something they didn’t (Not likely). Now, I don’t know if the professor in HTGAWM actually gave away anything confidential, I didn’t watch it that long, but it was certainly an unnecessary risk.
6. There are depositions (where you sit down to answer questions and it’s recorded by an authorized officer of the court, like a court reporter) to discover information in civil cases. There are not depositions in criminal cases for this. The court will allow a deposition for a criminal case under special circumstances but they are not a usual practice and they aren’t used for discovery, they’re used to preserve a witness’s testimony (like if the witness is sick and probably won’t make it until the trial).
7. If you’re a witness being deposed, you don’t need your own attorney (unless you’re part of the case). You certainly don’t have to PAY for the attorney to question you! The person who hired the attorney pays them. The parties pay their attorneys to prep you, question you, whatever else they do.
8. You don’t sue a private party for a breach of your Constitutional rights. I can not say this enough times, the Constitution protects you from the government infringing on your rights, not from private citizens! The government then protects you from private citizens infringing on your rights. If you’re suing for employment discrimination for example, you aren’t suing under the Constitution; you are suing under laws passed by the government saying employers can’t discriminate.
9. You can’t sue somebody for breaking your heart (metaphorically speaking, if they damage your heart physically, you can totally sue for that). Yes, marriage is a contract in its own way, but you can’t sue for breach of contract when you get left at the alter (but maybe for the costs you incurred in paying for the wedding). If you bring a frivolous lawsuit you know has no basis like this, they can sue you and report the lawyer who brings the frivolous lawsuit to the Board.
10. And that goes to another big one I see over and over again. Each state has a Board of Professional Responsibility, that’s where you make bar complaints, as in, you report a lawyer for ethical breaches. The Bar Associations are merely professional organizations, basically social clubs, they have no power over ethics (except the ones that have the Board within the state bar association). So you only would report to the state board or bar if the board is within it. This means, you do not report someone to the ABA!!!
11. You get a lawyer appointed to you for criminal charges if you can’t afford one. This doesn’t mean you get a lawyer for every little thing. You don’t get a lawyer to fight a fine for a traffic ticket. Yes, it’s sad that I have to say that. You’d be amazed at some of the stupid things people believe they have a right to.
12. In criminal trials, you do not plead and you are not found Innocent. You plead or are found Not Guilty.
13. You do not have to admit guilt to something you didn’t do to get a favorable plea deal. It is not just Guilty or Not Guilty. There is also what we call an Alford Plea. That’s where you are saying you are taking the plea bargain the Prosecution is offering because you fear a trial could turn out badly for you and you’d rather have the good deal than risk it, but you maintain that you’re not guilty.
14. Every crime is defined by elements. Like Burglary is usually (remember, it varies by state so this is just an example) something like 1. entered or stayed in dwelling without permission. 2. with intent to commit a crime therein. 3. within the boundaries of this jurisdiction. And the Prosecution has to prove each element beyond a reasonable doubt. So if you break into a place to get out of the rain and that’s it, it’s criminal trespass, not burglary. They can still charge you for burglary obviously and then you argue the elements to a jury if it gets that far.
15. Every crime has to have an act element and a mental element. You can’t be charged with attempted anything if you haven’t at least taken a step towards it. You can’t be charged with doing something if you didn’t have the required mental element. That doesn’t mean “I didn’t mean to” is a defense, just that if you can convince the jury it was possible that you didn’t mean to, they would give you a lesser charge that requires a reckless or negligent mind rather than an intent one.
16. Federal and State are different jurisdictions. Each one can only charge you if you broke one of their laws. Most of the time, criminal laws are taken care of by the state. For something to be a crime on the federal level, the federal government had to have a justification for making it a federal crime when they made the law, like the crime crossed state borders, otherwise it’s seen as infringing on states’ rights.
17. After criminals are convicted, pretty much every one of them does what we call a collateral attack. They usually argue they had ineffective assistance of counsel. If they succeed, they get the conviction overturned. These mostly are rejected and that’s that, but they always try it, because why not? It does not reflect badly on the attorney, the Board could care less, because every defendant does this as a Hail Mary. So the stories about attorneys freaking out because of one of these claims, are bunk. (This is different from being sued for malpractice, losing those ones looks bad.)
18. Patent Attorneys aren’t just lawyers that practice patent law. They have to have a science background that is either a Bachelors in a hard science or the equivalent. They have to prove this science background to the PTO to be allowed to even take the Patent Bar, and then they have to pass the Patent Bar (first time passage rate is approximately 50%). But you do not have to be an attorney to take the Patent Bar. If you pass it without being an attorney, you’re a Patent Agent.
19. First time passage rates for state bars vary between states, but they are not as low as 50%! (Sorry HIMYM, but that episode was so wrong.) Usually, they’re not lower than 60% and in some states they’re as high as 95%. Now, people who are repeaters in that state (meaning they have failed that state’s at least once and are trying again, not that they took another state’s and are now taking this state’s) have a much lower passage rate than the first time takers, they drag down the average passage rate. (Hey, there’s a reason they failed the first time.) Many states post the results online for the public to look at (which is just fantastic when you’re a wreak and terrified all your friends will see right away if you failed) and they email the results to you. And while some do have a password protected private look-up on top of one of these, you would never have to wait for them to come in the normal mail.
20. The bar is only given at the end of July and the end of February. It’s not like tests you can schedule at a testing place to take whenever you damn well please. (The Patent Bar, for example, is one you can schedule at a testing place.)
So, there’s the basics. As always, nothing here is meant to be taken as legal advice, just writing advice. There are a lot of nuances to the law and If you have a specific legal question, hire an attorney. Whatever you do, don’t get your legal advice from fiction. Nope, not even Law and Order, and they even had an attorney as one of the actors.