Tips for Developing a Trial Attorney Character
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.