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What's the factual opinion on this court scenario for a script?

H

harmonica44

I have asked other writers before, about whether or not a defense attorney can speak to a witness in a case.

I was often told no, they are only allowed to do so at depositions with the prosecutor present. I have a story I would like to develop better, and in this story, the defense attorney and the witness are working together in a scheme, but will be tricky of they are legally allowed no contact.

So since I was told by many people that they cannot talk to witnesses, I found some lawyers and asked them for research. However, they all said that you can and that they have done so, many times. I even found this article that says that they can as well:

http://www.nolo.com/legal-encyclope...-case-interviewing-prosecution-witnesses.html

Now in my story, of course it is illegal for a defense attorney and a witness to be working together. I just need them to legally get together and talk for their plan to work, where the case will not be thrown out, just because he called her about it, or met up with her about it to ask questions.

Now it seems that the lawyers I have talked to, say it is perfectly legal, but all the writers and other people I have talked to, say it is not. Which is it though? There must be some law that says if you can or not, instead of everyone being in disagreement all the time? Why can no one agree on what the law actually is? Can the judges even agree?
 
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At the end of the day, you need the people who are watching the movie to accept it as "legal."
It doesn't matter (from a filmmaking perspective) whether it actually IS legal, but whether you can get people to accept it.
 
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Yes as a defense attorney you can speak to a witness. I'm assuming you mean a witness for the prosecution...
Forget what writers and other people tell you. Why are you asking them for legal advice in the first place? Rookie mistake.
 
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harmonica44 said:
I have asked other writers before, about whether or not a defense attorney can speak to a witness in a case. ... I was told by many people that they cannot talk to witnesses
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If you think about it logically for a minute: It's going to be difficult, if not impossible for a defence attorney to actually mount a defence if they can't talk to the witnesses! However, there are usually certain conditions imposed on communications under certain circumstances.

harmonica44 said:
Why can no one agree on what the law actually is?
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For three reasons:

1. Laws are not mathematical formulas, they are written in a spoken language and spoken languages are imprecise. This is why legal terminology has evolved to the point that it's almost a separate language (legalese) and often incomprehensible to non-lawyers. Although more precise, legalese is still imprecise though and it usually requires some degree of interpretation (of the intent of the law). When you seek a legal opinion you are seeking the lawyer's opinion on how the law will be interpreted and therefore the probable outcome, rarely will you get a absolute definitive answer.

2. For exactly 800 years, it has been enshrined in English law that no one is above the law (including the country's ruler) and therefore no one person can set or define what the law is. Arguably the most famous legal document in history, the basic principles laid out in the Magna Carta form the basis of the legal systems in all English speaking countries and directly or indirectly of just about every democracy on the planet. As no one person can set or define the law, there is no one person you can turn to for a definitive answer, which brings us back to point #1.

3. Legal systems, procedures and the laws themselves all vary, not only from country to country but from legal jurisdiction to legal jurisdiction and sometimes very significantly. So even in the unlikely event that there is an absolute definitive answer, it won't be a definitive answer everywhere. In this era of globalisation, this point often causes courts problems, especially civil courts. It's common for people to have a confused understanding of the law because of inaccurate portrayal in the media or even accurate portrayal but of a different jurisdiction or country.

We take it for granted that a jury has two choices; "guilty" or "not guilty" but even this is not set in stone. In Scotland for example, a jury has three choices; "guilty", "not guilty" or "unproven". Personally I think that system has a lot of merit but what is a Scottish screenwriter to do? Write according to the law in their jurisdiction or write according to what an audience will understand/believe (assuming a wider audience than just Scots)? For the reasons above, Mlesemann's answer is the correct one IMO and not so much Nefilmgroup's. Reality is sometimes stranger than fiction and therefore sometimes less believable (or desirable in filmmaking).

While being accurate is often the wisest course of action in filmmaking, it's certainly not always so. You have to do your research AND apply judgement! This is where you so frequently run into issues, not just in screen writing but in many areas of filmmaking. You want absolute answers which you can apply regardless of context, thereby eliminating your personal judgement and any possible criticism of it. What you want is impossible and even if it were possible, you would still be criticised! ... for achieving it.

harmonica44 said:
Can the judges even agree?
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No. A judge applies the law according to their interpretation of the intent and (as explained in #1) an individual's interpretation is always open to disagreement/dispute. It's one of the main reasons, if not THE main reason, why most legal systems have not one but two higher authorities than a judge; some form of appeals court and then some form of ultimate high/supreme court and in both of these cases there is usually a panel of judges and decisions are commonly majority decisions rather than always unanimous.

G
 
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Okay thanks. I see what you mean. I will change my view from wanting the impossibly accurate, to wanting what the audience will accept. It seems though even though the lawyers tell me it's okay, the readers are saying there is a problem with the lawyer meeting a witness beforehand. So what can I do to satisfy the readers in terms of legal procedure?

Do you think I could write it so that one character says "Isn't meeting with a witness going against procedure"?

And the second character could say "The judge is the type to allow it".

Could that something like that help, where the reader will assume that it is going against procedure, but then accepts that this particular judge does not interpret it that way?
 
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harmonica44 said:
... in this story, the defense attorney and the witness are working together in a scheme
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Even Perry Mason or one of his aids visited potential witnesses, so I doubt it would raise too much of any concern. However, it sounds like this is crooked situation to begin with, so you've thrown 'legal' out the window. I'd say it's a moot issue. If the audience thinks it's questionable, it just adds up that it's a scheme. Slipping notes would add up as a scheme. The exchange of knowing glances could imply a scheme.

If it's part of the story that they're scheming, so be it. They meet up, exchange notes/glances or whatever.
 
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harmonica44 said:
I will change my view from wanting the impossibly accurate, to wanting what the audience will accept.
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You can change your view to whatever you want but just for the record, I didn't say "the impossibly accurate"! I said wanting "absolute" answers, two quite a different things.

harmonica44 said:
It seems though even though the lawyers tell me it's okay, the readers are saying there is a problem with the lawyer meeting a witness beforehand.
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This is an example of what I mean by "absolute" answers. 1. Who are these "readers", what makes you think their opinion is absolutely representative of the entirety of your potential audience? 2. Obviously they felt there was something wrong with your script but what makes you think they accurately identified the cause of that feeling? 3. What makes you think the way you asked their opinion didn't bias the response/s you received?

These three points mean you'll never get an "absolute" answer with #2 often being particularly problematic! As with everything else, you have to apply common sense, your personal judgement and as much objectivity as you can to feedback.

harmonica44 said:
And the second character could say "The judge is the type to allow it".
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I'll answer this question on the assumption that the lawyer meeting a witness beforehand really is the problem. However, this is a big assumption because there's plenty of precedent for this occurrence in numerous other films/shows and because the lawyers have given you a more factually accurate answer.

By applying some common sense, you can probably answer the quoted question yourself. Put yourself in a judge's shoes and ask yourself why judges tend not to go against procedure? I don't know for sure but common sense tells me that having a judgement overturned by an appeals court, due to a procedural error I made, would be a humiliating public declaration of my incompetence. To be "the type to allow it" I've therefore got to actually be that incompetent (and haven't yet been fired or reprimanded for it) or have some motivation stronger than potential public humiliation. Either of these scenarios (IMHO) are probably unusual or unexpected enough to require some sort of explanation or risk it feeling wrong or being accurately identified as a weak writing gimmick.

G
 
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Okay thanks. But it's like it was pointed out, Perry Mason does it all the time, as do a couple of lawyers I have talked to. It's the readers of the script who think it's unlawful for lawyers to do that. So either the average person is wrong in the law and they all just have the same incorrect assumption, or there is something the lawyers are not telling me.

Or it's all relative, based on the interpretation of law. I mean if you read law books, there is no absolute answer on this.

I guess I can just write it as best I can.
 
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Okay thanks. But since readers are telling me this is a problem for them, even though they are legally wrong, when it comes to wanting to make a script that people will like, the customer is always right in a sense.

So is their something I can do to satisfy readers, if they think this will be a problem? Like how do I tell them that they are wrong, and this is the right way?

Why do several people think it's illegal when it's not? There is something in their way of thinking about the law, that is causing that, and if I can pinpoint what it is, that might help in writing it.
 
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You just need to write it well enough that people are willing to suspend disbelief - they have to become sufficiently vested in your story and your characters that they don't spend their time dissecting the legal aspects.

No, there isn't an easy way to do that. Just keep working on it.
 
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You're blurbling about nonsense. If you want constructive feedback, provide the excerpted scene. As it is, you've stated you've changed the story. So what made it 'wrong' before may no longer be the case. You want a blanket rule when one doesn't exist. If you choose not to share, then you need to accept the verdict of your readers who have seen the script.

As Mlesemann said, solid character development and an interesting, believable plot will buy you greater leeway if your take on the law needs to be a little creative. The questions you need to be asking are "Does the audience/reader really want to follow my character(s)?" and "Do these seem like believable decisions a person would make in the same situation?". If the answer to either is no, then you have a major problem.
 
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FantasySciFi said:
You're blurbling about nonsense. If you want constructive feedback, provide the excerpted scene. As it is, you've stated you've changed the story. So what made it 'wrong' before may no longer be the case. You want a blanket rule when one doesn't exist. If you choose not to share, then you need to accept the verdict of your readers who have seen the script.

As Mlesemann said, solid character development and an interesting, believable plot will buy you greater leeway if your take on the law needs to be a little creative. The questions you need to be asking are "Does the audience/reader really want to follow my character(s)?" and "Do these seem like believable decisions a person would make in the same situation?". If the answer to either is no, then you have a major problem.
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I'm guessing most Americans won't haven't watched it, but the second season of the UK series Broadchurch is a good example of what to avoid. After a solid first season whodunnit, the story outside of the court case of whoactuallydoneit was dull and uninspiring, verging on nonsensical, and so every single error in courtroom/legal procedure (and there were a lot) was analysed and torn apart.

(Link contains spoilers, obviously).
 
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Okay thanks. Is it perhaps not believable that the lawyer talks to the witness in my script, because the lawyer calls the witness? Is it perhaps because I do not explain how he gets her number? Would he be allowed to have her number? I wonder if this is why it comes off as unlawful?
 
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Okay thanks. But since lawyers are allowed to talk to witnesses in the real world, is their a way I can get it across to the reader that it's perfectly legitimate? It seems that it's only witness tampering, if you actually tamper. But for some reason people think that the very questioning of witnesses, is in itself, tampering.
 
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A lawyer can definitely speak to a witness. In litigation, there are no property rights in a witness, and the lawyer can speak to any witness so long as he identifies himself as the lawyer for the client.

If you want to convince the audience that this is acceptable, have a scene where a junior lawyer speaks to a senior lawyer, asking that question. The senior lawyer will then explain the law, which is what I just said. I'm a lawyer, so I know.
 
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Okay thanks. If I write it so that there is another lawyer character though, then I am just creating a character who's only purpose to serve is an explanation. Is that really necessary, to create a new character and have to hire an extra actor just for that?

What I could do is write it so that the witness tries to correct the lawyer, but the lawyer can then say that he is allowed to speak to witnesses, regardless of what they think the law is based on what they have heard from others, if that works?
 
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harmonica44 said:
Okay thanks. If I write it so that there is another lawyer character though, then I am just creating a character who's only purpose to serve is an explanation. Is that really necessary, to create a new character and have to hire an extra actor just for that?

What I could do is write it so that the witness tries to correct the lawyer, but the lawyer can then say that he is allowed to speak to witnesses, regardless of what they think the law is based on what they have heard from others, if that works?
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A screenwriter can answer that better than a lawyer, because this involves the story-telling technique. I would prefer the audience see a senior lawyer teaching a junior one, but, again, that's a personal choice, perhaps based on my life experience.
 
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