Writing About Juries? Don’t Make These Gaffes

I want to nitpick one of my favorite shows, The Good Wife, again. A couple gaffes with jury scenes really threw me out of the moment recently. It seems that most people who write about juries have never actually seen jury selection or how bailiffs handle juries, because I see lots of stuff that’s flat out wrong when I read or watch jury scenes. Here are two things not to do: 

Jury selection: When the lawyers do jury selection, they have the opportunity to ask questions of jurors. Then they get to agree with the juror being seated or challenge the juror. What will (probably – I won’t say never) not happen is that the lawyers object to jurors in front o of the jury pool. This happens after the questions (voir dire) are asked and the jury is sent outside. Prospective jurors are sent to the hallway or a room away from the lawyers and judge.

Then the judge will go through the list, something like this:

Judge: Juror number 1.

Plaintiff’s lawyer: Accept.

Defense lawyer: Strike. (That’s a peremptory challenge and the lawyers will each get 2 – 3, sometimes more – they have to use them carefully).

Judge: Juror number 2.

Plaintiff’s lawyer: Challenge for cause

[Argument ensues as to whether there is cause to strike the juror for bias. The juror could be called in to be asked more questions. Then the judge will rule. If the juror is stricken for cause, the lawyer doesn’t have to use up one of those precious peremptory challenges].

Once the lawyers go through the whole list and have 6 or 12 jurors and the alternates picked, the judge will ask if the lawyers want to make any back-strikes. That means they can use up the rest of their peremptory challenges. If any more jurors are stricken, the judge then asks the lawyers about the next juror in the pool.

When the jury is picked, the judge calls the pool back inside, calls up the jurors who were picked, and thanks the rest for their service. In some jurisdictions, the remaining jurors are excused for the day. In some, they’ll be sent back to the jury pool room to see if they get picked for another jury.

In The Good Wife, it would have been easy to fix the problem. Show the juror answering, then cut to the scene where the lawyers are objecting. Simple.

Communications in front of jurors: The writers also showed a scene where a lawyer, accidentally on purpose, was on his cell phone in the rest room talking about the case when a juror was in there with him. Turns out, two jurors were in there, but that’s another story. I’ve never seen this happen and, at least where I practice, it couldn’t happen. Jurors are usually escorted to/from the restrooms by a bailiff, who stands outside and shoos everyone away while they’re in there to avoid just this sort of thing. If the lawyer does see a juror in the restroom, they are supposed to stay far away. Any contact with a juror, even a “hello” in the elevator, has to be reported to the judge.

I don’t know how the writers would fix that problem other than to delay the trial another way. That storyline was improbable, to say the least.

If you’re writing about a jury trial, my best recommendation is go down to your local courthouse and watch one. It’s good experience and will give you the realism you need for your story. Don’t use television to get legal information for your stories. It’s usually wrong.

Jimmy Carter Suit Over – For Now

I wrote about the suit against Jimmy Carter a few weeks ago. A group sued Simon & Schuster and the former president regarding Carter’s 2006 book Palestine: Peace Not Apartheid. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations, saying the book was falsely advertised as nonfiction. They claimed they were misled into buying the book and wanted their money back.

While this wasn’t the first consumer protection case against an author (thanks, James Frey), it was the first time the argument was made that the laws could be utilized on behalf of readers who disagreed with a book’s contents and the way it was advertised.

I warned that disaster would fall if Simon & Schuster paid these folks to go away. I said the floodgates would open. For nonfiction, the danger was that one poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk. I was also concerned that fiction authors would be at risk. What would happen if they advertised a book as “exciting” but a reader finds it boring?

Well, you’ll be glad to hear that, at least this time, the danger has passed. The plaintiffs withdrew their suit and got no money. While Simon & Schuster proclaimed victory, the plaintiffs said they plan to refile in NY state court.

This is still a suit to watch closely if it’s refilled. I hope Simon & Schuster continues to stick to its guns and fight this lawsuit. Stay tuned.

Looks Like We Need Another President: The Event, and What Really Happens When the President is Incapacitated

I was surprised when I watched this week’s episode of The Event and saw them swearing in the Vice President to be President. The plot is that the aliens who have infested the planet poisoned the President, intending to kill him. He’s in a coma. So the Vice President and Cabinet met to have him declared incapacitated. Then the Vice President was sworn in as President. I’m thinking, huh? He’s not actually the President yet. How can they swear him in as President? What gives?

So I looked it up. The writers got it half right. The 25th Amendment of the Constitution says:

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The Vice President and Cabinet meet, declare him incapacitated, and they prepare a written declaration. The Vice President under these circumstances becomes Acting President. He has the power of the Presidency but the President is still the President. The Constitution requires that the VP immediately assume the job duties once the Speaker of the House and the President pro tempore of the Senate get the declaration. He doesn’t have to be sworn in, and nobody has ever actually been sworn in under these circumstances, or where the President has voluntarily said he was going to be temporarily incapacitated (a different provision in Article 25). Remember, he was already sworn in as Vice President. (Maybe one of these days I’ll be able to use the word “she” in this context. Or is that too far off into science fiction?)

Presidents have voluntarily turned over authority three times when they were undergoing medical procedures. Interestingly, when Reagan was shot and underwent surgery, George H.W. Bush refused to convene with the Cabinet to declare him temporarily incapacitated. He apparently felt it would be akin to a coup.

The Presidential Succession Act of 1947 provides for what happens if neither the President of Vice President can serve. In that case, there’s a line of succession starting with the Speaker of the House. Whichever one in the line takes over has to step down from their office. They are then sworn in as Acting President. They still have to step down when the President is able to serve again.

I give props to the writers of The Event for getting it half right. They did have the Cabinet convene and declare the President incapacitated. I realize the swearing in was more dramatic, but it was just plain wrong. The President is still the President until he dies. It might have been more interesting to have had the good guys (who correctly suspect the VP had a hand in the poisoning) shoot down the idea of the swearing in and constantly remind the VP that he’s only Acting President.

I also think Article 25 provides some interesting potential plots if the writers want to keep the evil Vice President in office a little longer. He could say the President is still incapacitated and then Congress will have to decide.

If you actually look up the laws that apply to your story, sometimes you’ll get great ideas you never thought of (which is the whole purpose behind The Writer’s Guide to the Courtroom). Doing your research pays off. Try to get it right.