KEVIN FLYNN

Another in a series of posts on the interconnections between the craft of trial lawyering — which I practiced for 35 years as a prosecutor — and the craft of writing, and for that matter, every other art form.

Let's talk about the visual arts, and presenting a criminal case, and how it all might matter to the process of writing.

When I first started trying criminal cases in D.C., in the late 80's, there was no such thing as video tech in courtrooms. Then: pretty much all spoken word. Today: screens, PowerPoints, enhanced videos.

I adapted to the tech, to the point where over the last 10 years or so my trial presentations, especially in opening and closing arguments, interweaved audio and video, sometimes through PowerPoints. In a world where attention spans are short and screens matter, this is what you do when you're trying to involve jurors in the ongoing trial story that you're telling.

But at the end of the day, the spoken word — uttered by way of an honest, authentic voice — surpasses every other medium.

In a murder case, no graphic can surpass the power of a witness saying, I watched my friend get killled.

As for writing: We all fall in love with our evocative, visual descriptions. But sometimes we just need to let our characters talk, and the descriptions can follow, and maybe mean more in the process.

So, I was talking about trials and writing. More specifically: I gave the example of a trial prosecutor questioning an eyewitness in a homicide case, and having to react spontaneously when the witness wanted to go beyond pretrial prep to give a fuller account of everything she saw. My account included her putting herself on the courtroom floor, in the fetal position, to best represent her real life experience.

So what does any of this have to do with the art of writing? Just this. Prosecutors try to plan out every development in a trial, just as many fiction writers are inclined to map out in advance every scene in their book, even every moment within every scene. In my humble opinion, a fiction writer sometimes reaches a point where a main character decides to take off on their own — if you've created a full-bodied character in the fictional present when the book begins, that actually SHOULD happen. And when it does, you just have to follow the lead of that main character, even if the plot goes off on a different course in the process.

Sometimes your main character will need to get out of a chair and put themselves in a fetal position on the floor. And you just have to respect that and go with it.

Another in a series of Notes on the interconnections between the craft of trial lawyering — which I practiced for 35 years as a prosecutor — and the craft of writing, and for that matter, every other art form.

So — where were we? Ah yes, direct examination of a witness in the government's case. Seemingly the most routine part of the whole trial process, right? You and the witness have prepared in advance, all the questions and answers have been planned out, at least generally. But in the courtroom — real life, real time — things can change and the trial lawyer needs to react and seize the moment spontaneously, knowing that life can take strange twists.

True story: About a decade ago I put on the stand the sister of a decedent in a home invasion murder. Before trial we'd gone over her testimony — all straightforward. But once she was on the stand and we were going back and forth, I had a sense that she had more to tell that she'd never shared with me. I'd gotten to know her well enough that I knew that whatever she communicated would be completely authentic. And so with my prompting, unrehearsed, she got off the witness stand and in the middle of the courtroom physically shared — down to getting on the floor in a fetal position — what it was like to be in a house under invasion and to watch her brother get killed.

So what does that intense scene have to do with the act of writing? I will get back to you soon on that. And my delay is not to set up a "teaser." It's only because segueing from that story, which is still so vivid to me, to a writing tutorial doesn't seem quite right, for lack of any better way to put it.

More soon.

Another in a series of posts about how the craft of prosecutorial trial lawyering mirrors the craft of writing, short form and long.

In a criminal prosecution, there is one overarching story, presented in summary form in the government's opening statement, and brought to an ending in closing arguments.

But within that long form story are many short stories, mostly found in the back-and-forth direct examination of the witnesses in the government's case. All of those exchanges have to be pointed and succinct, but at the same time directed towards an end result. And all of those exchanges, as short stories, have to have their own arc.

Case in point: the stereotypical drug-addicted witness to a drug-related murder has to be given rein to offer their account about that murder within the context of their life experience, if they're to be able to convey that their story is truthful.

A prosecutor's direct examination of any of their witnesses — from the most virtuous to the least — boils down to this: authentic and purposeful conversation. Which makes the process pretty much indistinguishable from pure dialogue in fiction.

More to come as to how a prosecutor uses direct examination to make flawed witnesses in a trial believable to a jury — with resonances in the fictional world.

I was a prosecutor in D.C. for 35 years. Now I'm exclusively a writer. Here's my take on the first stage of trial.

A prosecutor's opening statement in a criminal trial is a short story, fraught with the potential for dire real life consequences.

It has to start with a hook, a first sentence that sets out its theme. That first sentence needs to be the thread that will be woven through the rest of the trial, to be knotted up at the end. And that sentence has to be succinct and pithy: no word can be more than two syllables. Going further, as to the whole of opening statement: unless technical terms have to intrude, stick to the same rule. If you're using a word that's more than two, at most three, syllables, it had better be mellifluous. If you doubt me on the syllable rule, think about the main lines in the speeches that most moved you, and say them out loud to yourself.

Opening statement needs to set a place, just as a short story does. The place comes first, always. All criminal cases by definition arise out of one of two places: an inside scene or an outside scene. If it's an inside scene, the jury has to have a connection with it in order to care about, or at least be interested in, the people who populated it. They have to think, that could be my house, or my office, my workplace. If it's an outside scene, the same. They have to think, that could be my neighborhood.

After opening statement has set out place, it needs to populate the place with characters: the people who will be called as witnesses in the prosecution case. Those characters have to be portrayed authentically, with warts and all. A prosecutor can never hide the negative side of any witness who's to be called in the course of the case, just as the author must always observe the true nature of the people that they've allowed to run about their keyboard, and then let loose upon the world.

Finally, a prosecutor's opening statement has to end with an utterance it is definitive and unequivocal — "beyond a reasonable doubt guilty!" — even as it's being delivered with the author's secret knowledge that the vagaries of life can steer any story wildly off track.

Background: I was a trial prosecutor for 35 years and believe that trial lawyering is connected with multiple art forms, to the point where it's an art form of itself — at bottom, it's all about being able to tell a story. With honesty always at its heart.