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Sunday, February 28, 2010


I want to talk about some people operating in the legal system who move around enough or who have enough information that they might be useful to your stories. I’m going to tell you about them every once in a while. My book The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers has loads of suggestions if you need more.

Today, I’ll talk about bailiffs.

Bailiffs keep order in the court. If your character’s cell phone goes off, if there is talking, or if someone gets violent, the bailiff is the one who will remove the offending party. They see and hear everything that goes on in court. It’s their job is to observe.

As characters, they can be witnesses, blackmailers, or heroes. They protect the judges if there is any violence, and they protect the jurors, witnesses, and lawyers as well. They frequently have to lend a hand checking lawyers in for hearings, handling evidence, calling witnesses in, and other administrative tasks.

One of my favorite things about bailiffs is they escort the jury to and from the jury room, and stay outside the door to make sure they stay safe, sequestered, and get what they need. This means they are in a great place to observe any shenanigans that take place during jury deliberations.

Some of what a bailiff might witness in your story:

• Death threats among lawyers, witnesses or parties
• Physical altercations (even murder)
• Bribery
• Judge’s misbehavior
• Ex-parte communications with judge
• Text messages he’s not supposed to see (since he has to tell people to turn off phones)
• Switching exhibits
• Jury tampering
• Jurors checking the internet or talking to people about the case
• Juror arguments (it gets tough being with the same people for long periods)
• Notes or other items being passed to jurors
• Tampering with juror food
• All kinds of conversations, either before hearings/trials or on breaks
• People coming and going at the courthouse

Observation of any of the above can go any way your imagination takes you. For instance, a greedy bailiff could uncover a note that went to a juror from one of the attorneys in the middle of a trial. Instead of taking it to the judge, does he go to the lawyer and ask to be paid off? Does the lawyer pay him, or does the blackmailing get him killed.

Or, your bailiff could stumble upon her judge taking a bribe. Does she ask to be cut in? Take it to the police? End up dead?

A heroic bailiff could uncover an attempt to assassinate a defendant. He could throw himself between the victim and the bullet. Does he get a huge reward or end up in a lawsuit against the city for poor security? Does he become a media darling and run for office? Does he end up paralyzed and sad? Maybe that makes him an ideal hero for a romance novel. Or is he killed? Children’s writers looking to knock off parents might start their story a year after he dies. How does your protag deal with a heroic death of a parent?

In a sci fi or fantasy, you have to build a new world. You could have a bailiff observing and participating in your brave new justice system, show us how it works. After all, the individual rights and responsibilities of your invented society will affect your characters’ daily lives.

So, to recap, bailiffs observe and move around the courthouse in places most people can’t go. That makes them useful to any story needing a witness, murder victim, blackmailer, or hero.

Saturday, February 6, 2010

The Good Wife Does Objections Right, Circumstantial Evidence Wrong

It doesn’t take much to give me a thrill when I’m watching a legal drama. Even the tiniest bit of law done right can make me happy. Yes, I’m probably easily amused. But when a screenwriter gets it right, I jump for joy because it’s so darned rare.


When I was watching The Good Wife last week, the lawyer was examining a witness using leading questions. In general, leading questions are ones with yes or no answers. Opposing counsel objected to the leading questions. The lawyer conducting the examination responded that the witness was hostile and he was allowed to lead.

When the judge overruled the objection, I was happy beyond words. That tiny bit of correct procedure added to my viewing pleasure. Here’s what was going on that they got right.

A hostile witness is a witness who favors the other side. It’s usually an employee, relative, someone the other side has control over. While leading a witness on direct examination is usually a big no-no, this is an exception to the general rule against leading on direct. I usually like to call them an adverse witness when I’m using this exemption, mainly because sometimes the judge will say, “Well, I haven’t seen them being hostile. I’ll allow it only if they act hostile.” Doi. That’s a misuse of the exemption. Hostile simply means, in this situation, adverse. But still, I like to keep it simple. So when I tell the judge I’m leading because the witness is adverse, they’ll almost always allow me to lead.

Watching a TV lawyer leading a witness on direct drives me batty. Here, they showed some action, a bit of drama, and told all the folks who know about the justice system that we’re in good hands.


They did one little thing that bugged me though. I couldn’t get too exercised about it because everyone makes this mistake. I’d like to see it eradicated in my lifetime, so I’ll keep picking at it. That’s the misuse of the term “circumstantial.” I always hear characters say, “But that’s just circumstantial,” or “I need hard evidence, not circumstantial evidence.”

Circumstantial evidence is where the fact is not directly observed but where inferences are drawn by the surrounding circumstances. Your character hears a shot fired, sees a woman standing over her husband with the smoking gun. The forensics show that she has gunpowder residue on her hands. That’s all circumstantial evidence.

Eyewitness testimony is not circumstantial when the eyewitness observed the fact. If the maid saw the wife pull the trigger, that’s eyewitness testimony. It’s not circumstantial. What it is, though, is incredibly unreliable. Eyewitness testimony is the least reliable evidence. Witnesses are crap at recalling details. Witnesses of one race can’t reliably identify faces of people of other races. Eyewitness testimony is why so many people are wrongly convicted.

All that great scientific evidence that TV dramas and juries love is circumstantial evidence. It’s reliable as heck. Give me circumstantial evidence any day over eyewitness testimony.

So please stop dissing circumstantial evidence in your writing. Use it right.