Are you writing a story with a courtroom scene and need to add some realistic touches? Or perhaps you’re fleshing out a trial attorney or other legal player in the courtroom? This article is a brief, introductory “Trials 101” (U.S. legal system) to help you understand some of the real-life players in the courtroom. We’ll also briefly discuss the history of trials (think combatants in battle), and a few reasons why trials happen (as well as some of the wrong reasons trials happen, which can provide great story conflict).
First, let’s look at some of the keys players in the courtroom.
“Lawyers, I suppose, were children once.”
-Charles Lamb 1775-1834
In my experience as a legal investigator working for numerous attorneys, and from the perspectives of several hearty attorneys who reviewed this article, lawyers come in three packages:
The careful-thinking, detail-oriented scribe who never goes to court.
The engaging, sometimes charismatic big-picture thinker who speaks too much and tells great stories doing so.
The rarest and truly the most refined of all: a lawyer who is mindful of what the populace values and treasures, who uses intuition and intellect, and who blends the two work styles above; this individual is the model attorney, one who benefits and complements society.
If, as Shakespeare purported, we were to kill all the lawyers, the third category is the one to spare.
The Other Players: Judges, Plaintiffs, Defendants
In state courts (where most justice is meted out) the judge is a lawyer (usually a politically astute lawyer) who is either elected or appointed by the governor. They are rarely unbiased (no rule of law ever said that they have to be unbiased) and their assigned role is to apply rules of law and procedure. They preside over jury trials and increasingly, they are interested in making the trial experience as fair for jurors as it is for litigants.
Judges make legal decisions based on legal principles. The law that judges use is found in statutes, or in books of rules or procedure, or it is found in a body of law called common law. Common law is the body of legal traditions and principles that has been passed from judge to judge over the last thousand years (think common law marriage–judges created a rule many years ago that two people who hold themselves out as married to the public, and who file official documents as a married couple, are indeed married). Common law was a part of the legal world for hundreds of years before someone decided to pass a law about it. Judges apply the law, and juries determine whether the facts that they believe have been proven to them and actually support the claims brought in a civil or criminal lawsuit.
A litigant is a person who is suing or being sued. A plaintiff is someone who is suing, as is a petitioner (primarily in divorce cases). A defendant is one accused in a criminal case or the person being sued in a civil action (also called a respondent in a divorce, or any other family law, case). Counsel are the lawyers for the various sides.
Next, let’s discuss the history of trials.
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 people of yesteryear called trial by ordeal (literally an ordeal as it typically involved torture by fire or water), which evolved into trial by battle (where the aggrieved and the accused did battle). The premise behind trials by ordeal or by battle was based on the belief that God would not allow the guilty or the wrong to prosper.
Later, trial by battle was used in civil cases. 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 battle 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 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 battle, characters in the law still remain arrogant, independent, and ready for battle.
Apply this knowledge of the real-life players in the courtroom, as well as their historical origins, to develop the high-stakes gladiator drama of courtroom battles in your stories!
Colleen Collins-Kaufman is a legal investigator and multi-published author. She and her business partner also teach online classes to writers developing legal thrillers and detective fiction. For more information, go to http://www.writingprivateinvestigators.com