Law and Fiction: Getting the Facts Straight 1

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Getting the Facts Straight: Federal Court Terminology
(First published in the Sisters in Crime Guppy Newsletter, First Draft)

Even though we're writing fiction, we all want to get the facts right. We want to eliminate any chance that an astute reader will lose interest and put our book aside because the world we've created doesn't seem realistic--or worse, that an agent or editor will reject the manuscript because the details don't ring true. Mysteries, of course, often involve the law--a field ripe for snooty reader responses pointing out errors both large and small. So, to help Guppies limit what lawyers call "reversible error," I'll use this column to respond to common questions fiction writers have about legal issues.

Let's start with terminology. I often hear people refer to "the D.A." That's puzzling, because we don't have D.A.s--District Attorneys--here in Montana, or in many states. The fact is that many people, including readers, are TV-educated. We get what we know--or think we know--about courts, crimes, and forensics from television, and most shows are set in NY, LA, or some Never-Neverland in between. We borrow facts and phrases at our peril.

Two court systems--state and federal--exist side by side. (There are other speciality courts, like federal tax and bankruptcy courts and state workers' comp courts, but we'll leave those aside, as they're rarely the setting for thrilling drama, in real life or on the page.) The federal system is the simplest, so we'll start there.

Both civil and criminal cases are handled in the same courts. Civil cases--those involving claims between individuals, groups, or businesses such as discrimination or breach of contract--are started by the plaintiff's lawyer (or the plaintiff pro se, acting "for himself") filing a complaint with the Clerk of Court and paying a filing fee. Once the complaint is served on the other side, we're off and running, governed by the Federal Rules of Civil Procedure, any local court rules, and the Federal Rules of Evidence. Or I should say we're off and walking--civil cases typically take a year a half to trial, longer in some districts, especially if the courts are backlogged, the case is complex, or delays occur.

Criminal cases are filed by the U.S. Attorney for the geographic district in which the crime occurred. The U.S. Attorney is appointed by the president and hires assistants. (The U.S. Attorney may also file civil suits or defend some civil cases against the federal government, while some cases involving the government are handled by Justice Department attorneys.) Not surprisingly, the Federal Rules of Criminal Procedure govern. Other rules also apply, including the Federal Rules of Evidence and Federal Sentencing Guidelines. Only a small percentage of criminal cases involve a grand jury investigation.

Who hears these cases? U.S. District Judges, appointed by the president with the advice and consent of the Senate, and sometimes referred to as Article III judges, after the section of the Constitution that created them. Like Appeals Court judges and Supreme Court justices, they are appointed for life. U.S. Magistrate Judges are appointed for a limited term to handle specific matters assigned to them or specific regions like national parks. Judges, including magistrates, should be addressed as Judge, Judge (last name), or Your Honor, but Supreme Court justices are called Justice.

Each state has at least one federal District, with a Chief Judge who handles administrative matters. The District may be divided into geographic divisions. While each division has a courthouse, it may not have a resident judge; in that case, a District Judge may be assigned to travel to a particular division, or the judges may rotate handling cases there. Some courts, especially bankruptcy courts, use video-conferencing to conduct procedural hearings.

Federal judges at all levels have secretaries and law clerks, recent law school graduates who read briefs and research the law. The judges and their staffs work closely with the Clerk of Court, also an appointed position. Senior judges, who are retired but still hear some cases, help both District and Appeals Courts manage their case loads.

A civil case is generally resolved in one of three ways: the parties settle on their own or with assistance from a settlement master (typically a lawyer agreed to by all parties) who shuttles between the parties, Kissinger-like, to reach a mutually agreeable resolution. The case may go to trial, before the judge alone (a bench trial) or a judge and jury. Or, the trial judge may decide the case on a motion, a written request for a particular decision, supported by a brief making legal and factual arguments. Some motions are procedural, e.g., they ask the judge to require the other side to produce certain documents, while others are substantive, presenting a legal issue that affects the outcome. Substantive motions can result in some or all of a case being dismissed, or being decided in one party's favor. After any of these three events, a judgment is entered and the case at the District Court level concludes.

Federal cases are appealed to the U.S. Court of Appeals, sometimes called the Circuit Court or by number, e.g, the Ninth Circuit, for the geographic circuit in which that state is located. There are eleven circuits with judges appointed from throughout the circuit, plus the D.C. Circuit and the Federal Circuit, which have specialized functions. Decisions are typically made by a three-judge panel, but larger panels--sometimes as large as twenty--hear some cases. A Court of Appeal must decide all appeals, but it need not hold oral argument on every case; decisions may be made on briefs submitted by the parties. A lower court decision will only be reversed for reversible error, that is, a mistake in interpreting or applying that law that could have affected the outcome.

A few cases are appealed to the United States Supreme Court, by petitions called writs of certiorari. For the most part, the Supreme Court has the discretion to decide what appeals it will consider. The Court may consider death penalty appeals that raise federal constitutional grounds. It is the trial court for actions between states or by foreign governments, and the Chief Justice presides over presidential impeachments. Woodward and Armstrong's juicy classic, The Brethren: Inside the Supreme Court (Simon & Schuster, 1979), provides a gossipy peek inside the daily workings of the Supreme Court.

A graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz is astonished to realize she's been out of law school twenty years. If you have a question about a legal issue in your fiction, see Law and Fiction: Services.

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