KEVIN FLYNN

Another in a series of posts about the intersections between the art of trial lawyering — which I performed, so to speak, for 35 years — and the art of writing.

 

This is all about a skill that both art forms have in common: being able to plan backwards. It's not a skill that's commonly considered to be essential to either. In fact, it's essential to both.

 

As a trial lawyer I was a prosecutor, which means that I had to advance my case from the beginning of trial, from opening statement on. (Defense attorneys have the luxury of — naturally — playing defense, and the best are like guerrilla warriors, lurking in the shadows before springing out and attacking.) And I had the burden of proof — at trial's end, establishing the defendant's guilt beyond a reasonable doubt. Which means that I had to look to that end point and work backwards.

 

In every trial I handled, I plotted out my closing argument before I wrote my opening statement. I couldn't predict in advance everything that would happen in the trial, but I could foresee what I'd need to be able to tell the jury at the end — and here's something important — based on the evidence that I'd be presenting. Contrary to what's presented in popular entertainment, trial lawyers can't get up before a jury in closing argument and wax eloquently about matters that may sound wonderful but don't have facts to back them up. So my trial plan began at the end, and ended at the beginning. Every detail that I'd be talking about in closing had to be set forth through witnesses in what's called the government's case-in-chief, and, before that, introduced through my opening statement to the jury.

 

So what does all of that that have to do with the art of writing? A lot.

 

There are various schools of thought among writers as to how much structure should be imposed on a work in advance. But I don't believe that any serious writer would say that you should just sit at a keyboard, come up with a rough idea of a plot and a few characters, and then let the characters run around over 300 pages or so, figuring stuff out for themselves. You have to have a really good idea of where you're going before you even start.

As a young prosecutor, this wasn't an easy intellectual exercise for me. Lawyers are trained to have linear minds — A leads to B which leads to C, and so on — not, jump up to J and move back to A by way of I, H and G. But I learned.

 

And on the writing side there's this, offered recently on Substack:

 

"R. L. Stine has written 300+ books. The Goosebumps series alone has sold more than 400 million copies. In 2016, he revealed the secret to his impressive output:  'I figure out the end first.'"  

 

Funny how it all comes together.

 

Here's a follow-up to my last post.  It's titled: Don't lionize the police.

 

And the lesson for a writer is: Don't make your heroes too heroic. That's not how life works.

 

My career as a prosecutor was almost derailed by a dirty cop.  It's a long story, too long for this space, just the basics here. 

 

The case was a triple homicide, three victims being laid down on the hardwood floor of their living room and shot in the back of the head. A fourth victim survived and was interviewed by police. He identified two suspects as the killers. They were the two defendants that I was about to take to trial in summer 1993, until … it all fell apart.

 

By way of background: I wasn't the first prosecutor on the case. I wasn't assigned to it until a month before trial. My predecessor on it was a golden boy in my office, which was deeply invested in him, based on other major cases he was spearheading. If I got into why that was an institutional misjudgment, this wouldn't be a blog post, but more of a book.

 

Flash forward. Right before trial I came across evidence that the detective who'd taken the fourth victim's identifications had lied about how he'd gotten them. Of course I had to tell the judge and the defense lawyers about what I'd learned, and on the eve of jury selection the judge held a hearing on the identification issue. And the detective lawyered up and took the Fifth.

 

And our case was crippled. No justice for the victims, or their families.

 

Here's the thing. Before trial I'd sat down for hours with that detective, painstakingly walked him through all the facts about that fourth victim's IDs. He looked me in the eye and told me his story. And I believed it — he was a senior detective, with years of tough service on the job. I believed the story he was telling me well into the court hearing, all the way up to the point where I knew for sure it was a lie.

 

As I look back on who I was before I became a prosecutor 35 years ago, I believe I may have had some measure of the talent that it takes to become at least passably proficient at the techniques of the writing trade.

 

But as for taking a conflicted and ultimately corrupt character like that, and putting him on paper? I wouldn't have had a clue how to do that.  

On trial lawyering and writing: When I last posted, I discussed my former day job — more a day-into-very-late-evening job — which was violent crime prosecutor, and how it has influenced me as a writer. More specifically: how a job such as that, which entails meeting conflicted and compromised people face-to-face in arduous circumstances, can give a writer a leg up in portraying the human condition fully and authentically.

 

Examples from my experience abound. Here's one, with a second to follow soon.

 

Title this one: Don't demonize drug dealers.

 

Many young prosecutors cut their teeth handling drug cases. I certainly did, in the middle of DC's crack epidemic in the late 1980s. There were no shades of gray in my perceptions about narcotics distributors. I saw them simply as people profiting from preying on the addicted, and in the process bringing violence to city neighborhoods that were already struggling.

 

Then I got to know one, very well. I'd moved from drugs to murders, in the rough parlance of a prosecutors' office. I met him in my first major homicide case. His mother and sister had been brutally murdered. On the night of the killings he'd come home to find a horrific scene — the people closest to him, mutilated — and in just minutes had somehow summoned the poise and courage to take many steps needed to lead the police to the killer, who was his mother's ex-boyfriend. He was an essential witness in the case. More than that, he was a hero.

 

He was also a drug dealer, and the defense at trial tried to attribute the murders to his associates and rivals, and indirectly to him. He took the stand and faced down the allegations bravely. The jury believed him, and found the defendant guilty of the murders.

 

I spent many hours with him in the months before trial. He was no kingpin. He'd hustled to get money for his family, put food on the table. None of what he made through the trade lined his pockets. He worked a regular job but it didn't pay much, this paid more, and he was good at it, so he did what he had to do for the people he loved.

 

I'm not saying what he did was right, and it certainly wasn't legal. But it was understandable.

 

He's in his 50's now, he's a family man with a good job, and his days on the other side of the law are far behind him. To the extent that he thinks about his past, it's only about how his mother and sister looked in life, and how they looked when he happened upon them in death.

 

In fact or fiction: To quote an Irish writer, every saint has a past, every sinner has a future.

 

 

Another in a series on the interconnections between the craft of trial lawyering and the craft of writing. 

 

Today's discussion: On how meeting conflicted and compromised people face-to-face in arduous circumstances gives a writer a leg up in portraying the human condition fully and authentically.

 

To the extent that anyone thinks of trial lawyering as a creative craft, they would naturally think of it as only being presented on the stage of a courtroom. That conception, as understandable as it may be, is as limited as believing that the art of painters is circumscribed by what in the end appears on their canvasses.

 

I was a violent crime prosecutor for more than 35 years. Over that time I sat down with hundreds of people across the full spectrum of life, and not just victims and witnesses, but defendants too —people charged with serious crimes who came into my office with their lawyers to try to trade their version of the truth for some measure of leniency from the system. They were looking to be what are called "cooperators," and that cooperation would come with significant risks, which they were willing to bear for fear of the alternative. 

 

In the end, I didn't put many of those defendants on the witness stand. Some I didn't find believable in significant ways. Some wanted deals from the government that I couldn't endorse. The ones that I did call as witnesses acted admirably and honestly, and received due credit for bringing more culpable cohorts to justice.

 

But the bottom line is that all of those conversations with all of those defendants — whether I ultimately sponsored them as witnesses or I didn't — offered me a view of every aspect of human nature, from the very bad to the very good, that the everyday person never gets a chance to see.  And all of those experiences are woven into everything I am as a fiction writer, trying to create authentic, full-bodied characters.

 

More soon on specifics.

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.