the creative process

We Shall Overcome

Martin Luther King Jr. Day seems especially portentous in the light of our current political climate. Today turned out to be one of those few occasions on which words fail me.

Instead, here is an arrangement of We Shall Overcome for concert band.

This arrangement is available under a Creative Commons Attribution 3.0 License, meaning you may share and alter freely as long as the source is cited.

(I’d say “Band directors, feel free to edit/rearrange as needed,” but who ever needed to – or, indeed, could – tell a band director anything?)

Full Score [pdf]
Individual Parts [pdf]
MIDI file [mp3]


Use of this arrangement is free, but you can help feed a starving arranger here.

Standard
writing

Here’s Why a Plagiarism Checker Won’t Save You From Plagiarism

Maybe I’m dating myself when I say this, but: I really hate “plagiarism-checking” software.

I taught college English briefly in the mid-2010s. Every class had at least one student obsessed with the idea of software like Turnitin: “Do you use Turnitin to check for plagiarism?” “Are you going to be putting our papers through a plagiarism checker?” “If Turnitin says my paper is 12 percent plagiarized, will I fail?” “What if the software says I plagiarized, will I get kicked out of school?”

My answers to these questions (no, no, maybe, and maybe) only seemed to confuse them more. I found myself having to devote an entire class period not only to what plagiarism is, but why plagiarism-checking software won’t save you from it.

The reason lies in how the software works.

Plagiarism checkers see words, not meaning.

Plagiarism is the act of passing off someone else’s intellectual work as your own. There are several different ways to pass off someone else’s intellectual work as your own, but plagiarism-checking software can only catch one of these: The use of someone else’s specific words to describe the same idea.

That’s because plagiarism checkers aren’t actually reading your paper. Rather, the software scans for groups of letters and spaces in your paper that also appear in other papers, articles, blog posts, etc. available online. If it finds similar groupings, the software will flag them as “plagiarism.”

“I copied and pasted from my sources” is the only form of plagiarism a plagiarism checker can see. But it isn’t the only form of plagiarism. It’s just the most blatant.

Plagiarism checkers may see “plagiarism” where there is none.

Because plagiarism checkers are scanning for identical or similar letter clumps, they’re vulnerable to identifying “plagiarism” where there is none.

A plagiarism checker will flag a long quote as plagiarism, even though it is not plagiarized as long as the quote is properly cited.

The use of citations as a saving throw was one of the things my plag-checker-happy students struggled with the most. “How can I ever quote anything if the computer tells me it’s plagiarism?” The idea that it’s not plagiarism if you tell me who said it and where could not, for some reason, compete with their fear of the software.

Plagiarism checkers will also flag some terms of art as plagiarism, even though they are specific terms that can’t be swapped out with synonyms.

For example: In law, the term “motion in limine” is a term of art. A motion in limine is a specific type of legal motion – one for which there isn’t really an alternate descriptor.

If I write a paper on “The Best Ways to Deal With a Motion in Limine,” and I use phrases like “motion in limine,” “pre-trial conference,” and “evidentiary standard” (all of which are related terms of art) over and over, there’s a good chance a plagiarism checker will flag this as plagiarism. It’s not. It’s the use of specific terms with specific meanings – substitutions will not do.

Realizing this, some purveyors of plagiarism checkers set thresholds for their matches. For instance, a paper whose plagiarism percentage is below 10 percent may not get flagged as “plagiarism” by the system.

While this may help deal with terms of art, however, threshold percentages still aren’t enough to ensure that plagiarism checkers always catch plagiarism.

Plagiarism checkers may not see “plagiarism” where it does exist.

As I mentioned above, word-matching is only one form of plagiarism – the most obvious form. But plagiarism includes any attempts to pass off someone else’s intellectual work as your own.

Plagiarism checkers are notoriously bad at catching unattributed summary and paraphrase, or the practice of stating someone else’s information in your own words without mentioning that you learned that information from someone else. Because the letter-clumps don’t match, the software doesn’t see unattributed summaries or paraphrase as plagiarism.

But it is. The operative element here is not “did I copy word for word?” It’s “did I tell the reader where this information came from, if it came from a source outside my own brain?”

Plagiarism checking software’s inability to catch summary and paraphrase, except in the most obvious cases of article-spinning (and even then, not always), is the number-one reason I hate plagiarism checkers. Students learn that the problem is copying word for word, and so they don’t prioritize proper citations – the thing that will actually protect them from any claims of plagiarism.

It always interested me to see how my students reacted to the news that I don’t use plagiarism-checking software. Most of them seemed relieved, as if they’d learned the panopticon was down for maintenance. A few seemed to think they’d get away with copying and pasting as a result. (The latter were always nastily surprised.)

The truth is, most student plagiarism is visible from space, especially for a teacher who has been reading what they write from the very first day of class. I notice when an 18 year old from the inner city suddenly starts to sound like a middle-school teacher from rural Oklahoma, for instance. And, contrary to the beliefs of some of my students, I don’t prize that middle-school teacher’s voice over the student’s. On the contrary: I’m disappointed that I don’t get to hear from the student – especially when the reason I write, and the reason I teach, is that I firmly believe in the power of writing to free us to be exactly who we are.

Plagiarism checking software limits that freedom without benefiting my students or my teaching. So no. I don’t use it. And I don’t recommend anyone else does, either.


What’s your take on plagiarism checkers? Comment and let me know!

Standard
writing

How to Write Realistic Legal Objections

Of all the law-related things I see writers get wrong – in books, in TV and in films – objections are the worst.

On television, objections are raised to heighten tension. They’re most often raised when someone mentions a piece of evidence the objector does not like. And they’re usually resolved telepathically, with a series of meaningful glances between the attorneys and the judge.

To anyone who has ever practiced litigation, fictional objections are maddening.

I don’t think writers can be entirely blamed for this state of affairs. After all, the vast majority of people only see objections play out in books or in courtroom dramas. Even if they’ve had the misfortune of being present during a courtroom trial, they may not have understood why certain objections were being raised – especially if they were raised via motion or resolved in a sidebar.

If you want to write a courtroom scene that doesn’t make lawyers tear their hair out, here’s what you need to know about objections.

Objections are for improper evidence, not “evidence that’s bad for my side.”

In fiction, objections tend to get raised whenever a piece of evidence comes up that is somehow bad for the person/side doing the objecting. As a result, many people who represent themselves will yell “Objection!” whenever something comes up that they don’t want the court to hear.

In legal practice, however, objections aren’t for “evidence I don’t like.” They’re for evidence that violates the rules of evidence in some way – evidence that is not admissible at trial.

US federal courts follow the Federal Rules of Evidence. State courts follow their state rules of evidence. Some state rules of evidence are very similar to the Federal Rules of Evidence. Some are very different. Most are similar in some ways but different in other ways.

If this all sounds very confusing, that’s because it is. The rules of evidence are Byzantine. Law schools teach “Evidence” as a semester course all on its own; some law schools teach Evidence as a two-semester course. (Having taken the single semester, I wish I’d taken the two-semester version.)

Fortunately, as a writer, you don’t have to spend an entire semester on the rules of evidence in order to understand how to write a scene in which a lawyer or pro se litigant objects. Some objections are far more common than others – I’ll get into those below.

Most objections are handled before the trial date.

Jurors do not like objections. They interrupt the flow of the trial. They waste time, and they tend to make whoever is doing the objecting look like a jerk – or worse, like they have something to hide.

As a result, most attorneys do whatever they can to resolve objections before they can come up at trial.

There are several ways to do this. One is by holding pre-trial hearings on matters that are likely to make a trial drag or to raise significant objections. Expert witnesses, for example, are often qualified in a pre-trial hearing, just so the jury doesn’t have to sit through the qualification process (on which the jury gets no say anyway, because “Is this person qualified to serve as an expert witness in this case?” is a legal question).

Parties to a lawsuit can also use motions to raise and resolve evidentiary issues before the actual trial. One of the most common of these is a motion in limine (pronounced “LIH-min-ee” or “LIH-min-ay” depending on who taught you to pronounce it).

A motion in limine is a motion made before the trial begins, seeking to keep out certain evidence. If the court grants the motion, the evidence at issue can’t be brought up – and if it is, you may hear an objection from opposing counsel.

Another tool lawyers use to keep from interrupting a trial every five seconds with “Objection!” is the “continuing objection.” In short, the lawyer tells the court that they object to every question on a particular topic, or every piece of evidence on a particular topic, and all for the same reason.

Continuing objections can be very useful if, say, your motion in limine has been denied, but failing to object to the evidence could have a serious negative effect on your case or your client’s Constitutional rights.

For example, say your client’s house was searched without a warrant or without any exception to the warrant requirement applying – a situation that would make any evidence found in that search inadmissible in court. Nonetheless, the judge decides to let all that evidence in for some reason. By lodging a continuing objection, you preserve your client’s right to argue on appeal that the trial judge messed up, but you don’t keep the jury there for hours longer than necessary – or worse, make them start to hate your client – because you’re yelling “objection” every time someone mentions what was found in your client’s house.

Objections are not resolved by telepathy, but they can be resolved by sidebars.

In fiction, attorneys and judges often resolve objections by glancing meaningfully at one another, followed by the judge saying “sustained” or “overruled.”

In legal practice, none of us are telepathic (though it would have made more than one of my court cases much easier). Instead, the process of resolving an objection after it has been raised goes something like this:

Attorney 1: [Speaking]

Attorney 2: Objection, Your Honor, [basis for the objection].

Attorney 1: [Explains why that basis for the objection doesn’t apply or why the evidence should be allowed even if it does apply]

Judge: [Decides to allow the evidence and replies “Overruled,” or not to allow it and replies “Sustained.”]

There are, I think, two main reasons that most writers don’t portray objections in this way. First, it’s not particularly dramatic. It’s certainly not as dramatic as a well-acted Meaningful Glance.

Second, even people who have attended court trials don’t actually hear this back-and-forth. That’s because a lot of objections made during a trial are resolved in what’s called a sidebar.

You’ll know a sidebar is happening if you see the following:

Attorney 1: [Speaking]

Attorney 2: Objection, Your Honor, [may or may not state the basis]

Judge: Counsel, please approach the bench.

[The attorneys and judge hold a whispered conversation, usually with the judge’s microphone turned off.]

Judge: [Announces their decision and the trial continues.]

The purpose of a sidebar is to resolve objections without revealing the entire process of resolving those objections to the jury. The idea is that if the witness doesn’t hear the back and forth, it can’t affect their testimony, and if the jury doesn’t hear the back and forth, it can’t affect their decision in the case.

I’m not aware of any studies indicating that use of sidebars in fact results in better witness testimony or juror results (nor am I entirely sure how one would even design such a study), but that’s the theory.

The most commonly-used objection isn’t “hearsay,” but “relevance.”

Ask most novel and screen audiences to name a legal objection, and they’ll name “hearsay.”

Hearsay is the most complex single area of evidence law, but it’s not the most common courtroom objection. That title goes to “relevance.”

Federal Rule of Evidence 403 (and similar state rules) prohibits evidence whose “probative value” (i.e. usefulness in helping to resolve the case) is lower than that evidence’s likelihood of prejudicing the hearer, time-wasting-ness, and so on. This makes FRE 403 the all-purpose evidence rule: If something can’t be objected to on any other terms, it can probably still be objected to for its relevance.

In practice, objections as to relevance don’t get sustained as often as you’d think. Judges assume that most evidence is going to weigh against one party or the other. If everyone agreed that all the evidence was perfect as it is, the case would have been settled before trial. To win a relevance objection, the lawyer/party has to prove that the evidence’s prejudicial effect outweighs its probative value.

The prejudicial effect of your fingerprints in the victim’s blood on the murder weapon? High. The usefulness of that fact in helping the jury decide whether you were the one who did the killing? Also high.

By contrast: The prejudicial effect of news that you sold meth to children from your dorm room in 1998? High. The usefulness of that fact in helping the jury decide whether you cheated on your taxes in 2019? Low.

“Relevance” is perhaps the closest objection to “I don’t like this evidence,” but it’s not the same objection. If you have a character use it, be prepared to have them explain it.

Other common objections:

Asked and Answered

Pretty much exactly what it says on the tin. If a lawyer asks a witness a question and the witness answers it, the lawyer doesn’t get to ask again just because they did not like the answer.

Argumentative

If the lawyer/party tries to make an argument disguised as a question,, or to badger the witness, the opposing party/counsel can object to the question as argumentative.

“Are you afraid of the defendant?” is not argumentative (generally); “Oh come on, how can you be afraid of someone who’s a foot shorter and 100 pounds lighter than you are?” is argumentative (generally).

Foundation

If there’s been no attempt to establish what a piece of evidence is or where it came from, that evidence may face an objection as to lack of foundation.

For example, a witness who testifies “I answered the phone and heard Patty’s voice” may hear an objection if there’s been no attempt prior to this answer to explain who Patty is or how the witness would recognize Patty’s voice on a phone. (This is why witnesses often seem tedious at first; the early questions are often about laying a foundation.)

The phrase “Objection, assumes facts not in evidence” is an objection to foundation.

Leading Question

A question that contains its own answer, usually phrased as a “yes” or “no.” For example, “You saw him leave the bar, didn’t you? He had the gun in his hand at that time, correct?”

Note that leading questions are usually disallowed only on direct examination (i.e. when a lawyer is questioning a witness they put on the stand themselves). They’re allowed on cross-examination.

To complicate matters further, leading questions are also allowed on direct examination, if the lawyer has permission to treat the witness as “hostile.” It’s relatively rare to ask for or get permission to treat your own witness as hostile, but it does happen. For example, a prosecutor in a domestic violence case whose only witness is a victim who doesn’t want to press charges may ask for and receive permission to treat that witness as hostile, and thus to ask leading questions like “The defendant hit you in the face, right?”

Opinion

As a rule, most witnesses cannot offer opinions on the stand. They can only offer facts: Things they saw, heard, smelled and so on. But be aware of the two main exceptions: (1) expert witnesses may offer opinions based on their expertise, and (2) fact witnesses can offer opinions if the issue is whether they do in fact hold a particular opinion.

That last one can get tricky, so here’s an example. “Are you afraid of the defendant?”, above, is not an opinion question. Rather, it seeks to establish the particular fact of the witness’s feelings toward the defendant, which may in turn have spurred particular actions on the witness’s part. “Should we be afraid of the defendant?” seeks an opinion.

Speculation

“Speculation” is an objection that can cut two ways. First, it can be used against questions that ask the witness to speculate: “How many piano tuners do you think are in the city of Chicago?” Second, it can be used to address speculative answers: “If I had to guess, I’d say about 400.”

Often, a question or answer is speculative if it asks for a guess. If the information would not be a guess with the proper foundation, the proper objection is to foundation. For instance, “I’d say there are about 400 piano tuners in Chicago” is not speculation if the witness is an expert in the demographics of Chicago professionals and a foundation has been laid to demonstrate such.

Vague

A question that’s not specific enough for a clear, direct answer can be objected to as vague. “Can you tell the court where you went earlier?” is vague (when was “earlier” – this morning, last week, 1976?). “Can you tell the court where you went between eight am and noon today?” is specific enough for a clear answer.

“Vague” is also a good catch-all if the question is obviously some kind of trap, but you’re not certain what kind of trap it is. “Have you stopped beating your wife?” is one example: As a yes or no question, the only proper answers are “yes” or “no” – as in “yes, I’ve stopped beating my wife” or “no, I have not stopped beating my wife.” There’s no way to answer “I never beat my wife in the first place.” (This particular question can also be objected to as argumentative or compound.)

Speaking of “hearsay”: It’s harder to use correctly than you’d think.

“Hearsay” is one of the most popular legal objections in fiction, but the vast majority of readers don’t actually understand what it means. That’s okay. A lot of lawyers don’t properly understand hearsay objections either.

There are two reasons hearsay is so hard to understand:

  1. Hearsay has a very specific definition that’s not entirely covered in the word itself, and
  2. There are several exceptions to the prohibition against hearsay, as well as a handful of “exclusions.”

First, the definition of “hearsay” is not merely “I heard someone say.” Rather, hearsay is 1. a statement 2. made out of court 3. mentioned in court in order to prove the truth of the statement’s contents.

In practice, few disputes over hearsay are actually about whether something is a “statement” (although there are some really interesting recent ones over whether things like a Facebook thumbs-up counts). Similarly, whether a statement was made out of court is not usually at issue.

Rather, the vast majority of fights over a hearsay objection is whether the statement is being presented to prove the truth of the statement’s contents.

Here’s an example:

Witness. …And that’s when I went to the bar.
Prosecutor. What did you do when you got inside the bar?
Witness. Well, I saw Casey sitting there. And I walked up to Casey and said “Hey, I saw Robin run over Pat with a car last week down by the Try ‘n Save.”

The vast majority of lawyers representing Robin at this point are going to object to this statement as hearsay. But is it hearsay?

If it’s being offered to prove that Robin did in fact run over Pat with a car, then yes, it’s hearsay. It’s an out of court statement being offered to prove the truth of what’s in the statement: “I saw Robin run over Pat with a car last week down by the Try ‘n Save.”

But: If it’s being offered to prove something else, then no, it’s not hearsay. Suppose the judge lets the prosecutor continue:

Prosecutor: Why did you tell Casey this?
Witness: Well, I wanted Casey to go beat the sh*t out of Robin. Because I hate Robin’s guts.

Suddenly, “I saw Robin run over Pat with a car last week down by the Try ‘n Save” isn’t hearsay, because it fails that essential third part of the test. It’s not being offered to prove that Robin ran over Pat; rather, it’s being offered to prove that this witness has a grudge against Robin.

(Note that “I hate Robin’s guts” won’t survive an objection as an opinion here, either. In this context, it’s a fact: The fact that the witness hates Robin is relevant to the witness’s behavior toward Casey.)

To make matters even more confusing, there are about 25 exceptions to the hearsay rule, most of which are listed in FRE 803 and 804. The thing that connects all these exceptions is the belief that, even though the information is hearsay, it is sufficiently reliable that the court’s not too worried that a witness is just making it up on the spot.

Common hearsay exceptions include:

  • Present sense impressions and excited utterances. A recording of the above witness yelling “Holy crap, Robin’s running over Pat in the Try ‘n Save parking lot!” over the sound of squealing tires and Pat’s screams would fall into both categories. It’d be considered reliable because it’s being made as the event happens. (Note that this recording would have to meet foundational requirements to be admitted.)
  • Business and medical records. Robin’s timecard from the day of Pat’s vehicular squishing could be admitted to prove Robin was at work, since it’s a record of the type Robin’s business routinely keeps. Similarly, medical records from Pat’s ER trip would probably fall in this area. (Foundational requirements apply here too. You can’t just make a timecard out of your phone bill and assume it’ll get admitted.)
  • Previous court judgments. If Robin was found liable for wrongful death in a civil case involving the Robin-Pat incident, that judgment could be admitted in a criminal case against Robin – and vice versa.

There are also a handful of exclusions. My personal favorite are statements by a party-opponent. In a criminal case against Robin, these would include the prosecutor introducing evidence like Robin posting to Facebook, “I ran over Pat and I’d do it again,” “I hate cleaning Pat guts out of my radiator” or “Karma’s a b***** and so is being run over by my car, Pat!”

This is why you never, ever post your criminal escapades to social media – they can’t be kept out by the hearsay rule.

Tl;dr

There are plenty of things I didn’t, and can’t, cover in this blog post. If you’re really interested in knowing what all the rules of evidence are, you can find copies of the Federal Rules of Evidence online and in just about any university library.

For writing purposes, keep the following things in mind:

  • There are always reasons an objection is made in court, and that reason is never just “This evidence makes me look bad.”
  • The vast majority of things that parties might object to are handled in advance and/or outside the hearing of the jury. During a trial, most objections arise from unexpected turns of phrase by witnesses; anything that could have been seen coming before the trial has usually already been settled.
  • Jurors hate objections, so most lawyers try to avoid them unless the damage to their case will be worse than the annoyance of the jury.
  • When in doubt as a writer, fall back on a relevance objection, not a hearsay one.

Note: This blog post is not legal advice; it is a general overview of trial objections meant to help fiction writers. If you need legal help, contact your local Legal Aid office or a lawyer who practices in you area.

Standard