Most of us have seen a courtroom trial, either as a juror in the box or a visitor in the gallery. So we have a good understanding that the majority of what happens during a trial is relatively boring. Why then, if written effectively, are courtroom scenes in books or on the screen so entertaining? Because the courtroom is a crucible for human drama, and the writer of a good courtroom scene has honed in on the parts germane to the story.
If the writer has worked in the legal profession in some capacity, they have a well of resources to tap when writing legal scenes. But plenty of non-lawyer types write accurate and effective courtroom scenes too. How do they do it? Like the slew of other topics we writers never fully understand but still write about when our stories demand — research and repeated drafts until the scene is realistic and hits the dramatic mark.
Here are a few tips to help you write both an accurate and effective courtroom scene:
Do your homework
1. Visit your local courthouse
Most trials are open to the public (although during the era of COVID-19, some exceptions might apply). Stop in. Sit in the pews. Watch the proceedings. Take notes. What are the courtroom procedures? Who are the people in the courtroom (judge, lawyers, plaintiff, defendant, court reporter, bailiff, clerk, jury)? What are their respective jobs? How do things flow in the courtroom? Does the judge keep tight control of his courtroom? Listen to the jargon used by lawyers and the judge. Is it any different when lawyers talk to the judge versus when a lawyer talks to his client or the jury or a witness? What does the courtroom look like, smell like, sound like? Write what comes to mind. You cannot go wrong. Granted, the majority of the information you take in will not be used in your scene. It will, however, help create a realistic feel for what happens in a courtroom.
If you want an idea of what trials are in session, ask the court clerk. Tell them you are a writer. I clerked for a judge for two years, and the courtroom staff loved helping writers. You might be lucky enough to meet the judge, see the judge’s chambers, and visit the jury deliberation room.
2. Read legal thrillers for courtroom scenes
This is an excellent way to understand how skilled authors dramatize legal proceedings. Here are a few of my favorites:
To Kill A Mockingbird (Harper Lee)
Presumed Innocent (Scott Turow)
A Time to Kill (John Grisham)
Defending Jacob (William Landay)
Exile (Richard North Patterson)
3. Watch legal-related movies and television dramas
Like legal thrillers, legal-related movies and television dramas will give you an idea of the trial procedures in the courtroom, and expose you to typical legal jargon. But a word of caution. Watch these with a critical eye. Often I find mistakes, things that might be inappropriate in a real-life proceeding but on the screen happen only for the sake of drama. See my list below for a few of those mistakes. If you take time to visit the courtroom first, you should be able to pick out a few mistakes right away, like how the lawyer approaches the witness or argues with opposing counsel in front of the judge. Here are a few of my favorites legal dramas and movies:
4. Study the basics of courtroom procedures and the type of lawsuit you are writing about
I have written about the stages of a criminal trial before, which you can read here: Bail To Sentencing — Stages Of A Criminal Trial. Civil trials are conducted under similar rules of procedure and in the same manner as criminal trials, from opening statement to jury deliberation. Also, there are basics you should know regarding the criminal or civil dispute in your fiction or non-fiction. Is it a federal or a state case? What are the potential penalties or damages the defendant faces? There are plenty of helpful reference books you can start with, like Nolo Criminal Law Handbook and Civil Litigation: Process and Procedures.
5. Consult a legal expert
Depending on your story, talk to the appropriate person with the expertise you need, like a trial lawyer, judge, bailiff, or court reporter. If they cannot help, ask if they can refer you to someone who has the expertise you need. Remember, lawyers have specialties, so a criminal lawyer may not be helpful for your civil case. For example, civil cases involve conflicts between people or institutions harmed in some way — personal injury, breach of contract, landlord/tenant issues. Criminal cases involve enforcing public codes of behavior outlined by federal and state laws — murder, blue-collar crime, robbery. You will be surprised how many legal experts are willing to help if they know you are a writer. Tell them you will acknowledge them in the book. They will love it.
Things to think about when drafting courtroom scenes
- Write the scene like any other scene with a beginning, middle, and end.
- Civil cases involve lengthy discovery so there are few surprises at trial. Most of the truths and secrets uncovered during a civil case happen, not at trial, but during discovery. Criminal trials also involve discovery. Under the discovery rules, the prosecution is required to disclose evidence to the defendant before trial. This applies to raw information like witnesses, reports, test results, etc. But it doesn’t apply to the prosecution’s trial strategy. While the information may be strung out over time before trial, rarely is there any evidence the defendant’s lawyer is not aware of before trial begins. Defense counsel will do its own private investigation to poke holes in the prosecution’s case. While the prosecutor must reveal the evidence against the defendant, the defense attorney, depending on the jurisdiction and type of case, may have more flexibility as to what evidence she must disclose. Still, defense counsel cannot spring evidence and witnesses on the prosecution at trial. Check with your legal expert about specific procedures in the state where your fictional case resides.
- In both civil and criminal cases, lawyers are often worried about how their witnesses will perform on the stand. Is the witness hiding something? Is the witness a key witness who hates public speaking or fears retribution from her employer or the defendant’s family who happens to be the mafia? Create some tension with your witnesses. Create some baggage with your lawyers and judges to up the conflict and stakes. All this will make your characters flawed, interesting, and more human. Everyone has emotional and situational baggage that they bring to the courtroom.
- Ask your legal expert about ways a lawyer may break a few rules to get the judgment they want. Those scenarios are always perfect tension builders.
- Find the human element of the scene. Stick with the emotions and tie that into your theme, while avoiding too much courtroom protocol that will slow down the story. Divorces, custody battles, family dramas, for example, are often emotional. The wife who had an affair, the father who skips out on child support — find those places where you can write in a lot of the emotional content. Like Scott Turow’s Presumed Innocent where courtroom scenes show Rusty Sabich’s attraction to Carolyn Polhemus (the woman he is accused of murdering), or the tension created when Rusty’s boss testifies against him, or the anger Rusty feels for his ex-colleagues who attempt to convict him of murder. Tie these emotional scenes into your theme — whether it is good vs. evil, abuse of power, etc. This will help you avoid relying on courtroom protocol to carry the scene, which of course will make the scene stale and boring.
- Write as if your reader is one of the jurors — this way, if you give conflicting sides, you let the reader struggle with what decision to make, just like a juror would.
- Use legal jargon for authenticity but only sparingly. Legal jargon, like big words, might provide a sense of flavor to the writing, but those same words also pull the reader out of the story each time, which is exactly what you don’t want.
- Don’t let heavy facts and descriptions slow down the pacing of the scene. Deadlines can help with pacing, whether you need to slow it down or speed it up. Trial proceedings are filled with deadlines, some unexpected due to motions brought by opposing counsel.
- For more points about drafting courtroom scenes, see this previous Sidebar Saturdays post by Mike Pace: Inside The Courtroom: Little Stuff That Can Be Big Stuff.
Things that will make your courtroom scene unrealistic
- Other than opening and closing statements, lawyers don’t give speeches during the trial. Judges won’t stand for it. If it does happen, the lawyer would receive a warning. The second time, the lawyer best be ready to spend some time in jail for contempt (and/or pay a fine). I once knew a lawyer fined $25,000 for a discovery abuse that went directly against a judge’s order (wasn’t me, by the way).
- During the trial, lawyers don’t speak to each other across the aisle as they do on television dramas. They don’t yell at each other. They don’t interrupt each other (unless making an objection). They don’t argue with each other in front of the judge. Courtroom procedures prevent such actions so the proceedings don’t get out of hand. Lawyers talk to the judge. If they feel it necessary to yell at opposing counsel across the aisle, then they suffer the wrath of the judge (maybe he denies their motion, or holds them in contempt of court). Judges retain tight control of their courtrooms.
- Prosecutors decide what criminal violations to prosecute, not the victims of the crime. As for civil cases, private citizens file those against a defendant.
- Lawyers cannot move around the courtroom as they do on the screen. The judge expects lawyers to stay at their tables or the lectern unless given permission to approach the bench, or use evidence, or approach a witness. While it might be more dramatic for a lawyer to approach a witness to question him, maybe with the sole intention to intimidate, such courtroom antics would provoke a strong admonishment from the judge. If the lawyer’s actions are habitual, the judge can hold the lawyer in contempt of court. A lawyer never wants to piss off the judge unless there is some bizarre strategy (and even then, that could have negative ramifications to the lawyer’s reputation…judges talk).
- When making objections, lawyers must state the foundation for the objection. For example, Objection. Assumes facts not in evidence. Or Objection. Hearsay. A judge will not permit arguments during an objection where one lawyer argues about opposing counsel or the prosecution. If you use objections in your scene, understand why and use them correctly.
- Here are a few more points to consider from a previous Sidebar Saturdays post by Mike Pace: Inside The Courtroom: Little Stuff That Can Be Big Stuff.
If your story and characters take you down the legal path, don’t feel intimidated. Courtroom scenes might be full of complex procedures, but they are also full of juicy conflict, tension, and struggles just waiting for you to weave those nuggets into your fiction.