Writing Legal Characters/Stories: History of Trials

Besides teaching classes about writing private investigators, we sometimes also teach classes about writing legal characters/stories (thanks to one of us being a retired trial attorney, and to various attorneys and judges who’ve graciously offered additional material for the classes).  We thought we’d share some of that class material, starting with some background of how trials came to be.

History of Trials

“A trial is still ordeal by battle. For the broadsword there is the weight of evidence; for the battle-axe the force of logic; for the sharp spear, the blazing gleam of truth; for the rapier, the quick and flashing knife of wit.”
-Lloyd Paul Stryker, American attorney, quoted in reports of his death June 22, 1955

Our modern system of justice has roots in medieval Germanic and Anglo-Saxon conflict resolution, which these people of yesteryear called trial by ordeal.  Trial by ordeal was a battle that pitted appointed representatives of two disputing sides against each other. The entire premise behind this institution was based on the belief that God would not allow the guilty or the wrong to prosper. Like today’s trial system, the parties to the dispute did not enter the “field of combat” but instead, each chose “champions” to fight in their place (see the similarity to modern trial lawyers?).  Each champion would take an oath and swear that the cause they were undertaking was in the right, with the medieval belief being that God would strengthen the arm of whoever had sworn to uphold the more just position.

Trial by ordeal persisted in the English system of laws until its abolition in the nineteenth century. The basic principles and some of the details (for example, that the trial by ordeal was presided over by the coroner in English law, and that all trial systems provided for a presiding judge of some kind) persist in modern systems in America and England.  Imagine this system in today’s world—perhaps a television series where WWF champion wrestlers become trial lawyers!

Just like combatants in trials by ordeal, characters in the law still remain arrogant, independent, and ready for battle.

Have a great week, Writing PIs

Answering Writer’s Question: Why Do Lawyers/Others Ask PIs to Surveil People?

Today we’re answering a writer’s question about why attorneys and others might hire private investigators to surveil people.

WRITER’S QUESTION: What are some reasons lawyers or others have asked you to surveil people? In my story, I have a cop asking a PI who’s a retired cop to surveil a girl he believes is in danger, but she doesn’t know she’s being surveilled. Is that realistic?

GUNS, GAMS, AND GUMSHOES’S ANSWER: We think your scenario is realistic, especially with the PI being a retired cop (sounds as though he and the cop are/were friends?). Although neither of us at Guns, Gams, and Gumshoes are retired law enforcement, we have had a patrol supervisor (a friend) contact us with a request to follow up with a civilian who wanted surveillance.

As to reasons lawyers/others have asked us to surveil people, here are a few: cheating spouse, child custody issues (for example, a parent suspected of using drugs), skiptrace, process service, employment locate (in a judgement recovery or child support context), to confirm opposing parties’s whereabouts and activites when they’ve made claims that can be contradicted through continuing survillance, insurance fraud surveillance.

Tips for Developing a Trial Attorney Character

or

How to Take Popular Prejudices Against Sharks and Use Them in Characterization

“Apologists for the profession contend that lawyers are as honest as other men, but this is not very encouraging.”
-Ferdinand Lundberg, American author

We just wrapped up teaching “Trials 101,” an online class geared to writers developing legal characters, courtroom scenes, and more.  In part of the class, we offer tips for developing trial attorney characters (as one of our instructors is a retired trial attorney, we feel confident discussing this topic).  Today’s post shares some of the class material.

It might be interesting, as a point of character development, to keep in mind the prejudices already in place against your fictional trial attorney when she first meets people (clients, jurors, even social acquaintances). Here’s a telling quote from Gerry Spence about one dark prejudice:

”Today the trial lawyer could be as pure and honest as Jesus in a pin-striped suit—and still the jurors will see him through jaundiced spectacles. Or the woman, as trial lawyer, could be Mother Teresa in a conservative business dress—dark worsted wool, a small string of no-nonsense pearls at her throat, a tiny gold cross pinned at her lapel, her face that of a saint—and still the jurors would undress her to her soul to see if, indeed, she has one. Suspicion. Worse. A thin fog of hate surrounds all lawyers for the people, these warriors for the people’s justice.”

So how does your fictional attorney deal with this? Does she take on a false bravado to compensate? Does he ignore it, or enter most situations (whether personal or professional) with an irritating bluster? Or, like Gerry Spence, perhaps it encourages him to reach out, be human, and correct the misconception when opportunities arise. Of course, the last thing you want is a saint for a trial attorney, so such a Gerry Spence-like character would need an admirable flaw or three in his shining-knight characterization.

Another popular misconception is that all trial attorneys are “aggressive.” It’s a loaded word, one many attorneys love to use in their own ads, as though an attorney behaving like a pit bull on crack equates to sure wins for her client.

Check out ads yourself to see how attorneys love this word. For example, we just looked on the back of a fat telephone book—and surprise! There’s a full-page ad where the attorney promises “Aggressive Representation.” We flipped to the yellow pages under Attorneys and saw these words and images in ads: “Affordable and Aggressive” (this one seemed especially popular as it was used repeatedly in different ads), a photo of a lawyer smiling next to the words “TOUGH and AGGRESSIVE Lawyer” (capitalized just as it is in the ad), “Aggressive Representation” is used in multiple ads, then finally one lawyer who decided to soften the term a bit with these words next to his smiling photo “DILIGENT AND ZEALOUS REPRESENTATION” (capitalized again as in the ad).

Here’s a definition of aggressive: Inclined to behave in an actively hostile fashion. Is it really a given that an attorney must behave this way to be a winner in the courtroom?

According to a local respected trial defense attorney, the answer is no. Below is his take on the term:

“In most cases, it simply is better not to be overly ‘aggressive’ either in pre-trial matters, or at trial. Much of criminal law practice before trial consists of careful investigation and skillful negotiation. This is no place for an attorney to behave aggressively or unreasonable… at least not if they know what they are doing! Even at trial, most experienced trial lawyers know that being aggressive and unfriendly is likely to turn off the jury and everyone else.

While there certainly are situations that call for an aggressive cross-examination of an accuser or other witness, an experienced trial attorney knows that under most circumstances it is better to appear to the jury as a professional and reasonable defense attorney because that makes it much more likely that they will adopt the defense’s version of events and acquit their client. Usually if the jury doesn’t like the attorney, it’s bad news for the client. In fact most prosecutors want obnoxious, aggressive defense attorneys because they know the jury will not like them or their client.

It’s a tough lesson to learn for the first time after your trial is over.”

Think about this notion of “aggression” in terms of your fictional trial attorney. Does she buy into that behavior? Does he use this term in her advertising, when deep down, he knows it’s for marketing only? How about the fictional trial attorney who learns the hard way that aggression and bluster just lost the case for his client?

Hopefully these tips help add fodder for your development of fascinating, true-to-life legal characters.

Marketing the Private Investigations Business

“Let me explain something to you, Walsh.  This business requires a certain amount of finesse.”
-Jake Gittes in Chinatown.

A private eye is a business person.  Has to be.  It’s not all about running after felons and solving cases, it’s also about paying the bills.  Even Sam Spade carefully extracted money from his clients, and Phillip Marlowe spent a lot of time worrying about money. Although writers shouldn’t write pages and pages about their fictional sleuth filling out a business credit card application, checking in with his/her CPA, revising contracts, ordering business cards (all that humdrum stuff!), managing a business is still part of the sleuth’s world.  Understanding this means a writer can add a touch of reality/plausibility here and there.  If the PI is wrangling with a testy bill collector, a critical CPA, or a disgruntled subcontractor, it could even be a humorous sub-plot.

Let’s take a brief look at how a private investigator (PI) markets a business.

Marketing the PI Business

As writers, think about all the ways you market your stories: ads in hardcopy and online publications, websites, blogs, electronic newsletters, giveaways to readers, etc.  Pretty similar to what a PI does to market his/her business.

When we decided we wanted to start an investigations company, the first thing we did was sit down and brainstorm two plans: a business plan and a marketing plan.  We worked both of these plans concurrently because we knew as soon as we were ready to open our doors (after following the business plan) we wanted to have customers knocking on those doors (hopefully, thanks to our marketing plan).

In our marketing plan were tasks such as:

• Designing and printing brochures, letterhead, and business cards
• Writing/mailing introductory letters about our business and services to attorneys
• Analyzing what information and focus we wanted on our website
• Hiring a webmaster we believed could fulfill our vision
• Advertising with numerous Internet PI sites
• Joining reputable PI organizations, some of which offered free advertising for its members
• Making cold calls to different courthouses and attorneys’ offices (with brochures and business cards in hand)
• Writing articles (with bios that advertised our business)

We’re living in a digital world, but interestingly enough, our first few clients came to us after receiving one of our letters or our brochure/business cards from a cold call.   The latter is still one of our favorite marketing approaches whenever work gets slow–we’ll visit attorneys’ offices and/or hit the courthouses and pass out our business cards (think about your fictional PI–maybe he/she picks up a case while shmoozing in the halls of justice, or maybe he/she sees a criminal they once investigated–both have happened to us).  

Marketing Never Ends

Advertising never stops, even after the PI business is up and running.  Frank Ritter, a well-known California PI who specializes in personal injury investigations, regularly sent out newsletters to attorneys (he swears his cartoons are what pulled in new clients).  One local financial investigator gives workshops on how to detect financial fraud, after which he personally hands out his business card to every single person in the room.  Another local PI, who’s built an extremely lucrative business over the years, courts the newspapers with articles about his successful investigations (free PR!).

Branding the PI Business

What about brands?  Does your fictional PI have a brand for his/her business?  There’s power in a brand—the first American private detective agency, Pinkerton National Detective Agency, had the “all-seeing eye” as their logo (with the motto “We Never Sleep”).  The term “private eye” came about because of their brand:

Marketing to an Audience

Just as writers should know their audience, so should PIs.  Because our firm specializes in legal investigations, we primarily market to law firms and attorneys.  A loss prevention investigator might market heavily to department stores.  Or maybe an investigator uses his physical location as a launching pad for marketing—for example, an investigator who lives near a large, recreational lake or other large waterfront area might market to insurance companies who specialize in marine insurance (boats and watercraft).

Maybe Jake Gittes should’ve said, “This business requires a certain amount of finesse…and a lot of marketing.”