Granted, the science fiction show “V” isn’t big on realism, but they committed a giant honking clunker last night when they showed their priest character getting laicized the day after he made a speech against the alien Visitors. The plotline is that Anna, the head of the Visitors, got to the Catholic Church in Rome by offering to let them send missionaries to their ships. The idea of so many new converts was appealing, no doubt. But her deal was that they had to stop priests from speaking out against them. The whole purpose was to stop one activist priest who is onto their lizardly nature and dastardly plans.
So our hero priest refuses to be cowed, makes another speech, and the next day he gets a letter that he’s been laicized. The elder priest who hands him the letter demands his collar. Bam! He’s no longer a priest.
I’m sitting there smacking my head. What the heck? As someone who was raised Catholic (lapsed), I know that they have rules and procedures for everything. They move at a glacier’s pace on any major decision. Remember all those pedophile priests they couldn’t get rid of? There’s a reason why.
So I looked it up. It took me about 15 minutes on the great wide interwebs to find out how a priest is legally defrocked. The writers could have bothered to at least look at Wikipedia, but there are better sources out there.
Laicization takes years. The church actually “streamlined” the process relating to pedophiles in 2001, but it’s still a long procedure. For those cases, the Congregation for the Doctrine of the Faith handles the defrocking. Even with abusers, the bishops can’t just zap the offending priests.
The laicization process involves sending a letter to the priest telling them the process is beginning. They then go through a tribunal. They’re given the right to canonical counsel (priest lawyers) who will defend them. The Church has to provide lots of documentation on the grounds. Assessors determine if the case is valid or not. If they think it is, then the Cardinal has to approve it. Only then will it go to the Pope with the Cardinal’s recommendation. The Pope is the only one who has the ability to laicize a priest or deacon.
The law governing laicization is the Code of Canon Law. A cardinal interviewed in a news story about the glacial pace of removing pedophiles said, "The right of a priest to defend himself is sacred, including in these cases. The right to defend oneself is internationally recognized and always preserved."
Due process is sacred, even in a religious institution.
Lazy writing is weak writing. Instead of staying involved in the story I was sucked right back into reality with that humongous clunker. It was such an easy fix that there’s no excuse.
What the bishops can do is remove an offending priest from ministering to a parish. And that’s what “V” should have done. Like any employer, the church can give you a totally crappy job to try to make you quit. They could have transferred him to Siberia, given him office work, or made him in charge of polishing collection plates and I’ve have believed it.
Get it right, people!
Wednesday, February 16, 2011
Monday, February 7, 2011
If My Character Has Amnesia, How Do they Get ID? Can They Get a Job?
On Litopia Writer’s Colony, I have my own section, Donna’s Domain where members can ask me questions about how the law affects their characters, plot, and settings. Here’s a question we answered on The Debriefer (my show on Radio Litopia – episode where I answered isn’t up yet but should be soon) and I thought it applied to enough stories that I’d also address it here.
Litopia’s J Katrin wrote:
“I have a question about issues of legal identity. If a character cannot remember who she is, and authorities are for whatever reason unable to discover her identity, what options are there for obtaining gainful employment, etc.? Without a birth certificate, you can't be issued an SSN, so what can you do if you don't have someone to take care of you and aren't considered dangerous enough to house in a prison or psych ward?”
Well, I found a real life story that may help with the answer. There’s a man they call Benjamin Kyle who has amnesia. He’s around 60 and they found him in 2004, naked, lying by a trash container. They’ve tried everything - DNA, prints, dental records, FBI databases, NCIC – and they haven’t found any clues to his identity. He lived in a homeless shelter for three years, then a nurse decided to step in and help. Since then, he’s even been on Dr. Phil, had all kinds of medical treatment, and still no luck.
Here’s where the story touches on J Katrin’s question. Congressman Kilpatrick has been trying to help him get a Social Security card. Here’s what Kyle says happened: "They have talked and talked to [the] Social Security [office], and they are adamant that the presumption is that I already have a Social Security card, so they cannot give me another one. They have asked for medical reports, and we have given them all that. Still, nothing."
Without a Social Security card, he can’t legally work. He can’t get a passport. Heck, he can’t prove he is a U.S. citizen. He works odd jobs and lives with the nurse who is helping him. He relies on a church for food donations.
I asked a Florida lawyer I know who handles Social Security issues, Lyle Masnikoff, and here’s what he said about it: “This Social Security question is very interesting. If the person can be identified even though they don't know who they are, I would think that the person would use the same SS# and info to work as prior to the amnesia. However, if no one can identify the person, the person would have to get a new SS # which is not legal unless you have permission from a judge and a court order. Individuals placed in Witness Protection sometimes receive a new social security number, but other than that the chances are slim.”
So there you have it, from real life and from an expert. In these days of Homeland Security, immigration concerns, and crackdowns on employers hiring undocumented workers, your character with amnesia will have a tough time. Their best bet will be to hire a lawyer to try to get a court order to issue a new Social Security card. Otherwise, they’ll have no driver’s license, passport, work permit, entitlement to government benefits – nothing. They’ll have to rely on the kindness of strangers until their memory returns.
A great plotline, don’t you agree? Fantastic question, J Katrin!
If you have questions like this one about how the law affects your story, ask in the comments here or check out Donna’s Domain on Litopia.
Litopia’s J Katrin wrote:
“I have a question about issues of legal identity. If a character cannot remember who she is, and authorities are for whatever reason unable to discover her identity, what options are there for obtaining gainful employment, etc.? Without a birth certificate, you can't be issued an SSN, so what can you do if you don't have someone to take care of you and aren't considered dangerous enough to house in a prison or psych ward?”
Well, I found a real life story that may help with the answer. There’s a man they call Benjamin Kyle who has amnesia. He’s around 60 and they found him in 2004, naked, lying by a trash container. They’ve tried everything - DNA, prints, dental records, FBI databases, NCIC – and they haven’t found any clues to his identity. He lived in a homeless shelter for three years, then a nurse decided to step in and help. Since then, he’s even been on Dr. Phil, had all kinds of medical treatment, and still no luck.
Here’s where the story touches on J Katrin’s question. Congressman Kilpatrick has been trying to help him get a Social Security card. Here’s what Kyle says happened: "They have talked and talked to [the] Social Security [office], and they are adamant that the presumption is that I already have a Social Security card, so they cannot give me another one. They have asked for medical reports, and we have given them all that. Still, nothing."
Without a Social Security card, he can’t legally work. He can’t get a passport. Heck, he can’t prove he is a U.S. citizen. He works odd jobs and lives with the nurse who is helping him. He relies on a church for food donations.
I asked a Florida lawyer I know who handles Social Security issues, Lyle Masnikoff, and here’s what he said about it: “This Social Security question is very interesting. If the person can be identified even though they don't know who they are, I would think that the person would use the same SS# and info to work as prior to the amnesia. However, if no one can identify the person, the person would have to get a new SS # which is not legal unless you have permission from a judge and a court order. Individuals placed in Witness Protection sometimes receive a new social security number, but other than that the chances are slim.”
So there you have it, from real life and from an expert. In these days of Homeland Security, immigration concerns, and crackdowns on employers hiring undocumented workers, your character with amnesia will have a tough time. Their best bet will be to hire a lawyer to try to get a court order to issue a new Social Security card. Otherwise, they’ll have no driver’s license, passport, work permit, entitlement to government benefits – nothing. They’ll have to rely on the kindness of strangers until their memory returns.
A great plotline, don’t you agree? Fantastic question, J Katrin!
If you have questions like this one about how the law affects your story, ask in the comments here or check out Donna’s Domain on Litopia.
Sunday, January 23, 2011
Fairly Legal is Unfairly Inaccurate About Mediators
I try to give all the new legal shows a fair chance. So when I started watching Fairly Legal, the new USA show, I was really hopeful. USA has a great track record of developing shows I enjoy. In fact, I think I watch all of their original shows: Burn Notice (one of the best shows on TV), Psych, In Plain Sight, White Collar, Royal Pains and Covert Affairs are all season passes on my TiVo. So I thought, yay, finally there will be a fun legal show I can watch.
The fact that the show has a mediator as its lead character made me really excited, since I’m a mediator, since I talk about mediation in The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, and since the only other show with mediator characters I can recall is Wedding Crashers. When I teach at writing conferences, I always talk about underutilized characters in the legal system that writers can utilize to get away from the old typecasting. Mediators have great possibilities, so I encourage writers to use them in their stories.
The characterization was pretty good, and that’s what USA is particularly good at. They develop interesting characters with interesting backgrounds and make them funny. Fairly Legal started out so well – the mediator was the victim of an armed robbery and she negotiated a resolution that was a win-win for the robber and store owner. Fantastic!
Then it went utterly off the rails. The mediator is a former lawyer who works for her now-deceased father’s law firm. The wicked stepmother is in charge and clients start abandoning the firm the day of Dad’s funeral. The firm’s in trouble, and one of the firm’s clients is about to walk away from a deal the firm negotiated. Wicked SM wants our mediator to mediate the client back on track. In the meantime, a judge who hates our mediator appoints her to mediate a case he thinks is a waste of time. Okay, so far not so bad.
Here are the top ways this story went into lala land:
1. The firm apparently has the mediator mediating for the firm’s own clients. This particular case didn’t involve a non-client, but if it did, she couldn’t be the mediator. She has a conflict. She can only mediate cases where the firm and she don’t have any dog in the race. If it’s a client, she can’t be the mediator. They didn’t do this wrong yet, but they plan to. Note to writers: STOP IT NOW, BEFORE IT’S TOO LATE!
2. The mediator blackmailed one of the firm’s clients to get her way. Malpractice central. First of all, she went and did her own research. A mediator would never start investigating a case they were mediating. She has to work with the facts and information the parties give her. She can never be an advocate. Second, she can’t blackmail anyone, much less a client. Blackmail is illegal. Mediators have a code of ethics that require them to remain neutral. As a lawyer in a law firm, she also owes a duty of loyalty to the firm’s client. Go directly to the disbarment hearing.
3. The mediator inserted herself into a criminal case that had an impact on her mediation. She met with a criminal defendant without his attorney. She can’t do that because she’s still a lawyer. And she has no business getting involved in a case she isn’t mediating.
4. The judge who appointed her told her that if she didn’t settle the case by the next day she’d be in jail for contempt. That judge would be up on charges so fast his head would spin. A mediator can’t make parties settle and neither can a judge. The mediator should have declined the case (which is her right) and reported him to his judicial qualifications commission.
5. The mediator decides at the beginning of the court-appointed mediation that the case is bogus. She sends all the defendants home without any agreement from the plaintiff to dismiss the case. Until there’s a signed settlement, the mediation isn’t over. Plus, she can’t decide which side is right on her own, whether or not she has her personal beliefs. She shouldn’t be allowed to mediate. She’s incompetent. Not that she’s a bad negotiator. She’s a pretty great one in fact. But she’s a terrible mediator as written.
Here’s how mediation really works:
Mediation is where a neutral third party tries to help the parties reach a settlement. Mediators aren’t able to make decisions in the case, and won’t be the person deciding the case if it goes to trial or arbitration. Their job is to get the parties to reach an agreement so that everyone walks away and says, “I can live with that.”
You may remember Wedding Crashers as a funny movie about two guys who crash weddings. But do you remember how it started? The crashers are family mediators, and the mediation scene is fabulous. It’s funny but realistic. These mediators are creatively trying to get the parties to move off entrenched positions, which is exactly what real mediators do:
Lawyer: “I knew this was a bad idea.”
Mediator 1: “You know what Ken, the bad idea would be to let your client walk out of here today and drag this thing out another year, wasting more time and wasting more money. The only good idea is to let me and John do our job and mediate this thing right here.”
Mediator 2: “You wanna hear the crazy thing? I know it doesn’t feel like it, but we’re making progress. We settled the deal with the cars. Let’s see, that takes us to frequent flyer miles. We’re flying.”
The mediators took an argument and made it turn around. They got the couple to remember some of the good days of their marriage and the case settled. This is a great example of using a realistic scene, adding some humor, and giving the story authenticity. Just because it’s comedy doesn’t mean you don’t have to keep it real.
Mediations can be a fun or serious aspect of your story. They can be a brief interlude or the climax of the story where everything resolves.
Mediator characters will tell the parties that, if everyone is a little unhappy with the settlement, it is probably about right. They are trained in tactics to help the parties reach a consensus. Mediation will usually start with a session where everyone is present. The attorneys if the parties are represented, a party representative if it’s a corporation, the party if it’s an individual, and the insurance adjuster (if there’s insurance), will be present, or sometimes on the phone. The mediator will explain the process and give each side time to explain their side of the dispute and what efforts have been made to settle the matter.
Most mediations then break into “caucuses,” where the mediator will meet with each side in separate rooms.They’ll discuss the upsides and downsides of the case, and relay any settlement offers from the other side. What is discussed in caucus is confidential unless the party relaying the information gives the mediator permission to relay it to the other side.
The mediator will then go back and forth between the parties, relaying information and offers, asking questions, making sure both sides understand the risks of going to trial, and try to reach a settlement. They can’t give legal advice or put pressure on any side, and they can’t prefer one side over the other. They can’t try to bully the parties into a settlement
Mediators have to disclose any conflicts, prior dealings with either side or the attorney, or other potential matters that could affect their impartiality. The parties can object to any mediator, and will usually be asked to agree on one. Sometimes the court or mediation group will appoint one, subject to objection by either side.
The mediator is paid by the hour or on a flat daily rate, and is paid whether or not the case is settled. Most cases that are mediated settle at mediation.
Mediation with a trained, competent mediator may be the best thing that has happened to the justice system in the past century. It has done much to unclog the court systems and move the parties toward amicable resolutions.
If a mediation is successful, the parties walk out with a signed settlement agreement. If unsuccessful, impasse is declared and the case goes on to the next step.
I actually liked Fairly Legal because I enjoyed the characters and found it funny. With a little tweaking, the writers can get it back on track to show what mediation really is and use it to full advantage. Because there’s no judge present, anything can happen at a mediation. The writers should use this to full advantage while still holding true to what mediation is all about. I’ll give the show another chance or two, but if it stays so ridiculously far from what is realistic, I won’t be able to watch it for long.
The fact that the show has a mediator as its lead character made me really excited, since I’m a mediator, since I talk about mediation in The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, and since the only other show with mediator characters I can recall is Wedding Crashers. When I teach at writing conferences, I always talk about underutilized characters in the legal system that writers can utilize to get away from the old typecasting. Mediators have great possibilities, so I encourage writers to use them in their stories.
The characterization was pretty good, and that’s what USA is particularly good at. They develop interesting characters with interesting backgrounds and make them funny. Fairly Legal started out so well – the mediator was the victim of an armed robbery and she negotiated a resolution that was a win-win for the robber and store owner. Fantastic!
Then it went utterly off the rails. The mediator is a former lawyer who works for her now-deceased father’s law firm. The wicked stepmother is in charge and clients start abandoning the firm the day of Dad’s funeral. The firm’s in trouble, and one of the firm’s clients is about to walk away from a deal the firm negotiated. Wicked SM wants our mediator to mediate the client back on track. In the meantime, a judge who hates our mediator appoints her to mediate a case he thinks is a waste of time. Okay, so far not so bad.
Here are the top ways this story went into lala land:
1. The firm apparently has the mediator mediating for the firm’s own clients. This particular case didn’t involve a non-client, but if it did, she couldn’t be the mediator. She has a conflict. She can only mediate cases where the firm and she don’t have any dog in the race. If it’s a client, she can’t be the mediator. They didn’t do this wrong yet, but they plan to. Note to writers: STOP IT NOW, BEFORE IT’S TOO LATE!
2. The mediator blackmailed one of the firm’s clients to get her way. Malpractice central. First of all, she went and did her own research. A mediator would never start investigating a case they were mediating. She has to work with the facts and information the parties give her. She can never be an advocate. Second, she can’t blackmail anyone, much less a client. Blackmail is illegal. Mediators have a code of ethics that require them to remain neutral. As a lawyer in a law firm, she also owes a duty of loyalty to the firm’s client. Go directly to the disbarment hearing.
3. The mediator inserted herself into a criminal case that had an impact on her mediation. She met with a criminal defendant without his attorney. She can’t do that because she’s still a lawyer. And she has no business getting involved in a case she isn’t mediating.
4. The judge who appointed her told her that if she didn’t settle the case by the next day she’d be in jail for contempt. That judge would be up on charges so fast his head would spin. A mediator can’t make parties settle and neither can a judge. The mediator should have declined the case (which is her right) and reported him to his judicial qualifications commission.
5. The mediator decides at the beginning of the court-appointed mediation that the case is bogus. She sends all the defendants home without any agreement from the plaintiff to dismiss the case. Until there’s a signed settlement, the mediation isn’t over. Plus, she can’t decide which side is right on her own, whether or not she has her personal beliefs. She shouldn’t be allowed to mediate. She’s incompetent. Not that she’s a bad negotiator. She’s a pretty great one in fact. But she’s a terrible mediator as written.
Here’s how mediation really works:
Mediation is where a neutral third party tries to help the parties reach a settlement. Mediators aren’t able to make decisions in the case, and won’t be the person deciding the case if it goes to trial or arbitration. Their job is to get the parties to reach an agreement so that everyone walks away and says, “I can live with that.”
You may remember Wedding Crashers as a funny movie about two guys who crash weddings. But do you remember how it started? The crashers are family mediators, and the mediation scene is fabulous. It’s funny but realistic. These mediators are creatively trying to get the parties to move off entrenched positions, which is exactly what real mediators do:
Lawyer: “I knew this was a bad idea.”
Mediator 1: “You know what Ken, the bad idea would be to let your client walk out of here today and drag this thing out another year, wasting more time and wasting more money. The only good idea is to let me and John do our job and mediate this thing right here.”
Mediator 2: “You wanna hear the crazy thing? I know it doesn’t feel like it, but we’re making progress. We settled the deal with the cars. Let’s see, that takes us to frequent flyer miles. We’re flying.”
The mediators took an argument and made it turn around. They got the couple to remember some of the good days of their marriage and the case settled. This is a great example of using a realistic scene, adding some humor, and giving the story authenticity. Just because it’s comedy doesn’t mean you don’t have to keep it real.
Mediations can be a fun or serious aspect of your story. They can be a brief interlude or the climax of the story where everything resolves.
Mediator characters will tell the parties that, if everyone is a little unhappy with the settlement, it is probably about right. They are trained in tactics to help the parties reach a consensus. Mediation will usually start with a session where everyone is present. The attorneys if the parties are represented, a party representative if it’s a corporation, the party if it’s an individual, and the insurance adjuster (if there’s insurance), will be present, or sometimes on the phone. The mediator will explain the process and give each side time to explain their side of the dispute and what efforts have been made to settle the matter.
Most mediations then break into “caucuses,” where the mediator will meet with each side in separate rooms.They’ll discuss the upsides and downsides of the case, and relay any settlement offers from the other side. What is discussed in caucus is confidential unless the party relaying the information gives the mediator permission to relay it to the other side.
The mediator will then go back and forth between the parties, relaying information and offers, asking questions, making sure both sides understand the risks of going to trial, and try to reach a settlement. They can’t give legal advice or put pressure on any side, and they can’t prefer one side over the other. They can’t try to bully the parties into a settlement
Mediators have to disclose any conflicts, prior dealings with either side or the attorney, or other potential matters that could affect their impartiality. The parties can object to any mediator, and will usually be asked to agree on one. Sometimes the court or mediation group will appoint one, subject to objection by either side.
The mediator is paid by the hour or on a flat daily rate, and is paid whether or not the case is settled. Most cases that are mediated settle at mediation.
Mediation with a trained, competent mediator may be the best thing that has happened to the justice system in the past century. It has done much to unclog the court systems and move the parties toward amicable resolutions.
If a mediation is successful, the parties walk out with a signed settlement agreement. If unsuccessful, impasse is declared and the case goes on to the next step.
I actually liked Fairly Legal because I enjoyed the characters and found it funny. With a little tweaking, the writers can get it back on track to show what mediation really is and use it to full advantage. Because there’s no judge present, anything can happen at a mediation. The writers should use this to full advantage while still holding true to what mediation is all about. I’ll give the show another chance or two, but if it stays so ridiculously far from what is realistic, I won’t be able to watch it for long.
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