“Legal Mysteries: You Can’t Handle the Truth” (by Ted Hertel)

Milwaukee attorney Ted Hertel is also a fiction writer whose first published story, “My Bonnie Lies” (from The Mammoth Book of Legal Thrillers), won the Robert L. Fish award for best first short story by an American author. He has gone on to sell a number of other stories, receiving an Anthony Award nomination along the way. He is also a historian of the mystery whose articles have appeared in many journals and books, and he frequently reviews mysteries for Deadly Pleasures magazine. One of Ted’s longstanding connections to EQMM derives from his being an expert on the works of Ellery Queen. His essays on the fiction of our magazine’s founders include “Queen’s Gambit: The Life and Times of Ellery Queen” (in The Tragedy of Errors, 1999) and “Ellery Queen: The American Detective Mystery” (in Crime Spree, 2004). He also assisted with the editing of The Adventure of the Murdered Moths (2005), a collection of Ellery Queen radio plays. Once other mystery writers have read this post, however, I suspect that it will be his legal knowledge, not his knowledge of mystery classics, that Ted will be most sought out for. —Janet Hutchings

With almost any occupation, whether it is medicine, private investigation, or the law, the fiction writer must take certain liberties with the way the profession is presented. For example, any story about a private investigator is going to contain a murder or two (or a lot more). But real private investigators do not go around solving murders. Cop Steve Carella, in Ed McBain’s 87th Precinct novel Long Time No See, recalls that “[t]he last time [I] had met a private detective investigating a homicide was never.” Taking this sort of liberty with the facts does not seem to bother readers overly. If what goes on in the day-to-day life of the doctor, the private eye, or the lawyer were accurately presented, it would generally make for a very dull story.

Imagine this real life scenario happening in one of Erle Stanley Gardner’s Perry Mason books: Perry shows up in court for a hearing for one of his clients. He sits around all morning staring at the walls, only to have his case adjourned for two months because of an overcrowded court docket. Della goes off to the Register of Deeds office to record a document, only to have it flung back in her face by an overworked clerk because of some minor technical violation having nothing to do with the substance of the paperwork. Paul Drake sits in his car all night long watching some divorce client’s spouse and then discovers that he does not have a big enough empty soda cup. Situations like this would make for some pretty boring stories, yet these incidents perhaps more closely reflect the day-to-day practice of the law than books like John Grisham’s or Scott Turow’s.

So, there is little that is actually thrilling about real-life legal work. In fact, there is probably little that is actually thrilling (or at least entertaining) about any type of work. Which is probably why it’s called “work.” As a result, a “legal thriller” naturally needs to be pumped up. Writers find that they must juice up the storylines in order to please the reading public. I suppose that there is really nothing wrong with this. If the author cannot sell a book by presenting events the way they occur in real life, then he or she must take steps to see that the story is publishable and entertaining.

I think that certain of these adjustments are perfectly legitimate. For example, the writer can quite properly condense the time frame of the story. Real life trials take much longer to get to final disposition than fictional ones. This is acceptable because the reader wants the story to move along smoothly and quickly. Actual attorneys always have other cases that they are handling at the same time, while fictional attorneys often seem to have only one matter (whether it is civil or criminal) that they must deal with during the course of a book. Again, failing to reflect this does no harm, since the main focus of the author and the reader is on that one big case.

Of course from the perspective of a real-life attorney, this sort of thing is laughable. How many times have we all seen in books or on television where the client walks into the lawyer’s office with a serious medical malpractice case and the lawyer is already in court the next morning arguing motions (or, God forbid, actually trying the case)? This raises a lot of unrealistic expectations in people. I cannot tell you how many of my clients cannot understand why some attorney on television can get her case into court right away (and in New York City, for example, on top of it!) and why it takes me a year or more to get their case to trial. So when I said “this does no harm,” I meant from the readers’ perspective, not from mine as a litigator.

Another real-life difficulty is raised by shows such as CSI. Crimes there are solved by DNA or other forensic evidence. Yet some actual juries have been known to acquit defendants in the face of other solid evidence proving their guilt because there was no DNA testimony presented. Once again, unrealistic expectations have been created.

Other problems can arise when authors throw actual legal procedure out the window and just make up their own to satisfy the demands of the story. Or worse, the author does not even know the correct language to use or the right motion to make. One of the more egregious examples of this was in a book by a very popular author who shall remain nameless, wherein (note use of “genuine” legalism there!) the attorney moved the court to dismiss charges against her client “without prejudice,” which means she was seeking a dismissal that was not on the merits. She should have requested that the dismissal be “with prejudice” (meaning the case against her client could never be brought again). In other words the result of this faulty motion would be that the state could then retry the lawyer’s client for murder. Now unless the attorney was looking for another big fat fee for a second trial, this is a totally incorrect request (not to mention the malpractice suit against her that would be sure to follow in the event the state did make the effort to retry the client). A simple check by the author with any lawyer who does litigation would have caught this error, which simply shows a lack of concern for detail on the part of the writer.

Errors like that creep into many books. I am not just faulting authors of legal mysteries here. I recognize that most readers will not be the least bit concerned with this sort of difficulty. However, there is no advantage to be gained by an author who does not check the facts when it is so easy to do so. Just pick up the phone and call a litigator. All of us would love the ego boost of seeing our names in the acknowledgement section of the book.

By the way, the real criminal almost never stands up in the back of the courtroom and confesses, just in case you Perry Mason fans were wondering.

So, sit back, relax, and enjoy some legal thrillers. Just do not plan to take the bar exam based on anything you read in them.

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7 Responses to “Legal Mysteries: You Can’t Handle the Truth” (by Ted Hertel)

  1. Jon L. Breen says:

    This is a great piece, Ted. What we all need to remember is that mystery/detective/thriller fiction is a branch of fantasy that establishes verisimilitude by the use of accurate details. When the details aren’t accurate, it can ruin the suspension of disbelief. In a trial novel, I can handle any amount of improbability if the terminology and procedure sound right.

  2. Lou manfredo says:

    Great piece, Ted, and something long overdue. I cringe at some of what I read or see on TV. Literary license is one thing, but lets all keep it within reason.True, no one wants to read about a detective filling out forms and making telephone calls the whole tour,, but we can do without the blatantly false or incorrect terminology and procedure. And maybe with a few shoot outs with helicopters as well.
    Quick aside regarding your with/without prejudice example. I once saw a defense attorney sum up by telling the jury that, yes, his client was participating in the robbery, but he wasn’t the actual shooter, thus convicting the client on the top count of felony murder as defined under New York State law. There are lawyers, and then there are LAWYERS.
    Stay well.

  3. Ted Hertel says:

    Thanks, Jon and Lou, for your thoughts on this topic, which has bugged me no end for years (apparently I have little else to think about!). As you point out, Lou, some lawyers should not be allowed to practice any sort of law. Maybe that lawyer you mentioned give the technical with/without prejudice advice to the writer I talked about . . . Sorry I didn’t respond sooner, since I was out of town for the Edgars and then spent the last week trying to catch up on things.

  4. Great article, Ted. I would comment, however, about the jury expecting CSI evidence causing the guilty person to go free. If the jury heard the evidence, and the defense counsel establishes a lack of scientific proof (DNA, fingerprints, ballistics, blood splatter, etc.) produced by the state, the result is normally a case dependent on eyewitness identification and confessions, or accusations by a co-defendant who’s been offered a deal. That evidence is often less reliable than scientific evidence, witness the Central Park rapist case. Obviously the various Innocence Projects have established the lack of reliability of such evidence, often relying on scientific evidence to prove an innocent person was convicted. Of course, (we) defense counsel will also raise the lack of credible scientific evidence repeatedly in trial, in order to create reasonable doubt. Hello, OJ..

    Although the system is not perfect, the increased use of DNA, video recorded confessions, and other scientific advancements have made it more difficult for the guilty to escape justice, so the reliance on such evidence by TV watching juries, actually has a meaningful foundation.

    Geez, I feel as though I know you incredibly well, having read your work. . .

    • Ted Hertel says:

      Thanks for the comment, Harry! I was, of course, using some “shorthand” in crafting the comment on DNA evidence — as you point out, there are many other factors that come into play in any verdict (up to and including “I think Lawyer X is better dressed than Lawyer Y….”). Justice is (at least theoretically) the goal of the system and we both know that it doesn’t always quite work that way. Defense attorneys (God bless you and them — it’s an area I don’t practice in) need as many weapons in their arsenal as possible to overcome the huge tactical advantage that the prosecution has. Lack of DNA or other forensic evidence can certainly be one of those powerful weapons.

      Thanks for reading my work. Maybe we’ve run into each other at a convention…?

  5. Either that, last week at the Brewers’ game, or at our parents’ home, I suspect.


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