Attorney, Writer, and Daredevil Fan

Ask me about law, domestic violence, human trafficking, writing, and Daredevil. Find me at AO3 (https://archiveofourown.org/users/ceterisparibus) and support me on Ko-Fi (https://ko-fi.com/ceterisparibus)!

[ceterisparibus116]

How would you go about writing a character who has a profession you’re unfamiliar with? For example, I’d love to write and see more of Lawyer Matt in fanfiction, but I never studied law and I don’t know where to start, the terminology, what cases could actually look like, etc. Do you do a lot of research beforehand? (Also, since you’re a lawyer, perhaps you could give me some legal advice per fanfiction writing? 😊) Also a huge fan of your work 😃

Hiii! This is such an awesome ask, tysm. (Because I too want to see more Lawyer!Matt in fanfiction, lol.)

This is going to be an incredibly long answer because I basically want to give you as much information as possible, and just share as much information as possible for anyone else who’s interested. Some of this is pretty technical; others are just facts I share in the hopes that you can get a sense of a "day in the life" or a lawyer or law student, or even maybe get a plot bunny based on something.

Also, for the record, if anyone wants some of my law school notes on a given topic, I’m happy to share. And feel free to shoot me asks/dms if you have specific questions! (And please do NOT feel the need to read the whole document before you send me asks. The document is just in case it helps you; you can ask me about anything and I won’t be like “Hey read the document first.”)

[That said, I legally can’t give you legal advice. Please don’t ask me about actual legal problems. This is just for fics.]

[Fellow law blogs, please feel free to suggest edits/corrections.]

Anyway, here’s the index, so to speak. I recommend using ctrl + f to navigate to different sections.

Websites

Vocabulary/terminology

Civil procedure

Trial

Criminal procedure: investigation

Criminal procedure: adjudication

Evidence (trust me this stuff is cool and will make you seem super smart)

Tricks for making trial scenes cool

Law school stuff (for those sweet, sweet law school fics)

*NEW SECTION* Day in the life (for figuring out what Matt and Foggy are up to on normal days at the office)

WEBSITES:

So first off, here’s a site that has TONS of legal information presented in a really accessible way, since it’s designed for non-lawyers. It also goes beyond just saying “here’s what X is” to sometimes saying “here’s what X looks like in real life.” Anyway, the cite is findlaw.com, and you can google “what is an arraignment findlaw.com” for example to get some great insight. Seriously, I highly recommend just poking around the site. You’re sure to learn stuff.

This is also a good cite for general legal information: Cornell Law School’s Legal Information Institute.

I’ve also straight-up bookmarked this site: penal code. It’s all the crimes in New York, including not only what the crimes involve but what the penalties are. THAT SAID, be sure to also check out what Findlaw.com has to say about the crimes, because the site ALSO includes defenses to crimes. Just – always go to Findlaw.com at some point in your research. That’s my advice. :P

Another thing you can do is just google a question and look for search results from law firms. ESPECIALLY if you google the question and add “New York” and then look at results from New York law firms, as they’ll speak more to what New York law is like. (However, very few people will care if your legal elements are specific to New York, so that’s not a biggie unless you, like, wanna show off.)

Oh, and here’s a guide to New York’s rules of evidence in case you wanna get fancy and start throwing rule numbers around(WHICH IS LITERALLY SO COOL PLEASE WRITE MATT DOING THIS I WILL LOVE YOU FOREVER). What I’m talking about is how an attorney at trial can object to something by saying, for example, “Objection, irrelevant,” but they can ALSO object by saying “Objection, [rule number e.g. 4.01]” and it’s just so fun and smart and makes you feel like a wizard casting spells. Also it’s a good trial tactic if you don’t want the jury to know what you’re upset about. Like, if you say “Objection, more prejudicial than probative” than all jurors who know what “prejudicial” means are gonna sit up like “Oh??? This hurts your case? Oh???” and you def don’t want that.

VOCABULARY:

I’m now gonna take a sec to walk through some, like, Law 101, since it’s hard to google stuff like “arraignment” if you don’t even know that’s a thing. I’ll bold words as I go through so they stand out in case you or anyone else wants to make note of them to research more later. And I’ll start with some important vocabulary.

[Interjection: as you explore legal concepts, you can also google “[concept] jury instructions” and find an explanation of the legal issue designed for jurors. Again, it’s ideal to search for New York jury instructions specifically, but if that doesn’t work, don’t sweat it.]

In general, lawyers can be referred to as “Counsel” or “Counselor.” (As in, “Are you ready to proceed, Counselor?”) Lawyers on the same side are co-counsel. Lawyers against each other are opposing counsel. Lawyers also refer to each other by their “side” (e.g. “the prosecution says X,” “the plaintiff misstates the fact,” and “the defense is clueless.”)

In the United States, the legal world is basically split into two categories: criminal and civil. Criminal is a narrower area of law; civil includes everything from property transactions to immigration to family law (although immigration and family law often have their own “courts” like “family court” and usually have some unique rules). It gets a little confusing in that there’s some overlap between criminal and civil; “assault” and “battery,” for example, are both torts (civil offenses) and a criminal offenses.

In a criminal case, you have the prosecutor/prosecution against the defendant/defense. The prosecutor is a government-employed attorney who represents the state (in state crimes, where the prosecutor might also be simply referred to as “the State”) or the US government (in federal crimes); the defense attorney can be either a private defense attorney paid for by the defendant (the person accused of a crime) or a public defender(paid for by the government). Defendants are guaranteed the right to an attorney, which is why public defenders are so important. That being said, even private defense attorneys can be “conflict” attorneys, which is where there’s a conflict of interest between the public defender and the defendant; in such instances, the court will instruct a private defense attorney to act as a public defender.

[This is cool because it means Matt and Foggy, despite being private defense attorneys, can still take a public defender role, which is something I’m really excited for in a future fic. Anyway.]

In a civil case, you have the plaintiff against the defendant. The plaintiff is just an ordinary person (or group or entity) who was allegedly harmed by the defendant. In the civil world, plaintiff and defense attorneys are private (e.g. paid for by the client rather than by the government).

There are two key parts to any case: legal issues and factual issues. Factual issues are questions like “Who did what?” and “Why did they do that?” and “Was that reasonable?” whereas legal issues are those like, “Was the contract valid?” or “What was the standard of care?” (which is specific concept from negligence that you can google if you want). The judge rules on issues of law (also including the admissibility of evidence) whereas the jury rules on issues of fact (basically asking, “What do we believe happened?”). However, the judge can also be a fact-finder if it’s a bench trial.

[This is important to keep in mind because the way you present a case is very different if you’re speaking to a judge who (presumably!!! But definitely not always!) knows the law at least as well as you do, vs if you’re speaking to jurors who sometimes neither understand nor care about legal nuances of a case.]

Also: evidence is broad: anything from physical evidence (like a gun) to digital evidence (like pictures or footage) to witness testimony is evidence. All evidence must be admissible to be presented before a jury. And speaking of evidence: if one party objects to evidence (because they want the evidence excluded) and the judge overrules, that means the judge DISAGREED with the objection and the evidence can be admitted. If the judge sustains, that means the judge AGREED with the objection, and the evidence is excluded. (Idk why Matt, in S3, “sustains” his own objection. I think they meant to say “overruled,” since that would be more in line with Matt’s self-deprecating humor (and Charlie Cox’s sort of sheepish delivery) to disagree with his own objection? Idk.)

Every case, whether civil or criminal, is made up of counts(also in criminal cases called charges). Counts are basically “things for which a person is liable” or “things that are illegal.” For example: battery and assault are both counts/charges. Every count is made up of elements. For example, the elements of assault (in both civil and criminal law) are: 1) intent; 2) reasonable apprehension of harmful contact; and 3) causation. The plaintiff/prosecutor has to prove ALL THREE ELEMENTS to win their case. If the defense pokes a hole in just one element, the plaintiff/prosecution loses. (Sometimes elements are also called prongs, but this is usually when “elements” are used in another context besides referring to counts. So, like, in Constitutional law, there are tons of “tests” for things, and the elements of a test is called a prong. If you have satisfy a prong, you can also be said to have met a prong. E.g. “Only three out of four prongs were met.”)

By the way, the counts come from statutes. Civil and criminal statutes explain what the law is. Statutes are passed by the legislature. It is NOT appropriate for a judge to ignore or change statutes (no matter how much they may dislike them). Judges merely INTERPRET statutes.

Besides the attorneys, the parties/clients, and the judge and jury, other cool people to take note of are: the judge’s clerk (this is the person who swears in witnesses and handles the judge’s calendar – do NOT offend the clerk as they will certainly let the judge know if you’re a jerk) and the bailiff (security in the courtroom). Some judges also have law clerks who are very, very special (jk – just, I’m currently a law clerk) who are lawyers fresh out of law school who basically help the judge research, decide issues, and write opinions (which are written documents announcing a holding (e.g. whether the judge is granting or denying someone’s request) and the reasoning behind it).

If a proceeding (like a hearing or a trial) is on record, you have to have a court reporter to write down the transcript. Traditionally, the court reporter sits in the courtroom and types everything on a special computer. Some modern courtrooms do remote court reporting where the court reporter is somewhere else and transcribes as they listen.

If anyone important to the trial speaks a different language, you have to have an interpreter. Some interpreters have a device that lets them speak directly into the other person’s ear and translate simultaneous to whatever’s being said. Other times, the court interpreter talks like everyone else: this means other people have to pause to let the interpreter speak. (Example: the judge says, “We are here for a hearing in the matter of State v. Jones.” Pause. The interpreter then interprets. Then the judge keeps going.) The interpreter repeats exactly what is said without any personal commentary. If the interpreter needs to speak on their own behalf, they indicate this by referring to themselves. (E.g. “The interpreter requests the attorneys slow down.” This happens a lot.)

A case can be referred to as a case, a matter, an action, and a suit (if it’s civil), distinguished by the name of the client. “Case” is the broadest term and it’ll probably never sound weird if you use it (anything from a casual “I’m working on Smith’s case” to a formal “We’re here concerning the case of Smith v [whatever]”). “Matter” is a phrase most often used by judges, I think. When they call the case, they might say “We’re here for a hearing on the matter of Smith v. [whatever]”). “Action” and “suit” usually refer to what type of case it is (“The Smith case is a civil action” or “The Smith case is a civil suit” but it would sound weird to say “the Smith action” or “The Smith suit”).

Cases are named according to the parties. The plaintiff or prosecution is named first. (So in “Smith v. Jones,” Smith is the plaintiff and Jones is the defense; in “State v. Jones,” the prosecutor is the State and Jones is the defendant.) However, in appellate cases, the appellant who files the case is named first; the other party is the respondent. So if in the civil case of “Smith v. Jones,” Jones loses and then appeals, the appellate case would be “Jones v. Smith.” Also, cases are usually italicized (sometimes underlined). So the proper way to write it would be Smith v. Jones and Jones v. Smith. When attorneys are familiar with a case, either because it’s famous in their field of law or because they’ve been relying on it during a particular case, they’ll refer to it either by the first name (“Smith” or by the defendant in a criminal case (“Jones”) since otherwise every criminal case would just be “State”).

Jurors have a little room called the jury room where they go to deliberate. Normally, jurors can go home each day (like at 5pm), but if the trial is particularly important and/or there’s high publicity, jurors may be sequestered, which means they’re put somewhere like a hotel where no one from the public can reach them. The goal is to prevent them from hearing things about the trial that might be legally inadmissible. Juries are provided lunch, usually pizza or sandwiches.

The judge is said to be “on the bench.” Attorneys might “approach the bench” to talk to the judge, or the judge could be said to “take the bench” when they start being a judge.

A mistrial is when something goes so wrong that you have to have the trial all over again. Some examples of things that could cause a mistrial: one of the attorneys saying something they shouldn’t or one of the jurors doing independent investigation and sharing what they learn with the other jurors.

Evidence that a lawyer intends to use at trial is called an exhibit. Every exhibit is marked for identification purposes, usually something like “Plaintiff’s Exhibit 1,” which is what it will be referred to at trial. More on evidence below.

Each case can only be brought within the statute of limitations. If the statute of limitations “runs,” it’s too late to bring the case. This is true of both civil and criminal cases. The statute of limitations for some civil issues might be only 2 years; the statute of limitations for some criminal offenses might be 10 years, or there might be no statute of limitation at all. (The rationale is twofold: justice and efficiency. Justice because it’s unjust to make people to live the rest of their lives with small infractions hanging over their heads; efficiency because it’s inefficient to try to bring a case through the system years after the infraction occurred, when witnesses may have moved or died or evidence is gone. Statutes of limitations can also be “tolled” (basically, the countdown doesn’t start) for various reasons. Please hit me up if you have questions; I am PASSIONATE about this topic.)

Another piece of vocabulary that’s small but comes up a lot and is nice to get right is: motion. In this context, a motion is a noun: attorneys file a motion asking the court to do something. The verb is “move,” as in, “I move for a continuance.” I bring this up because Matt in Season 2 suggests that they “motion for a continuance” which is just…not quite right. (But I get why the writers did that; “motion for continuance” sounds more professional than “move for a continuance” – it’s just wrong, lol.) (Continuance, by the way, is just a delay. Like pushing the date of a hearing or a trial back.)

Attorneys file briefs in support of motions (and arguments, like appellate arguments, which is when one side appeals a judge or jury’s decision). Briefs usually include a statement of the facts of the case and an analysis of how the relevant law applies to the facts. The law is case law (aka rules found from other opinions). Precedent is case law that is binding on a judge (for example, U.S. Supreme Court case law is binding on every judge), whereas case law that is not binding is just persuasive. (Like, Pennsylvania case law is not binding on a New York judge, but it’s probably more persuasive than, say, California case law, just because Pennsylvania is closer and as such has more in common with New York.) A LOT of an attorney’s time is spent researching case law on legal databases. The two most common databases are Westlaw and Lexis. (Westlaw fans and Lexis fans are bitter rivals. Lexis is better. Fight me.)

Payment from a client (so not prosecutors or public defenders who are paid by the government) is either by retainer or as a contingency fee. This is where a lawyer receives a percentage of the money the client wins at trial or in a settlement. It is unethical for private criminal defense attorneys (like Matt and Foggy) to be paid on a contingency fee. Private criminal defense attorneys are paid on a retainer, which means the client gives the lawyer a certain amount of money up front, and the lawyer uses that money to fund the case (pay for their own time in research and preparation and pay for other expenses, like hiring investigators or expert witnesses). This is why it is said that a client has retained a lawyer or that a lawyer is on retainer.

Let’s zoom out again to civil and criminal law. There are two main differences between civil and criminal law. One is the outcome. A guilty verdict in criminal law results in imprisonment and/or a fine to the court, and potentially the revocation of other privileges and rights. However, a verdict of “liable” in civil court can result in an injunction (the court ordering someone to do something or stop doing something) and/or fines paid directly to the victim. (Criminal offenses sometimes result in restitution to victims, but not always. Mostly that’s just if the victim had to pay for hospital bills, or if the criminal stole something from them.) [Please note that it’s super important to remember that civil suits aren’t JUST about money; injunctions are very powerful, and although defense attorneys like to act like civil plaintiffs are only interested in money, that’s not necessarily true.]

The other main difference is the “burden of proof.” The burden of proof is the amount of evidence needed to prosecution or plaintiff needs to prove their case. Most civil cases must be proven by a preponderance of the evidence, which just means the jury (or judge in a fact-finding role – but I’m just gonna talk about juries for simplicities’ sake) needs to be convinced that the plaintiff’s version of events is “more likely than not” true. [Note: some civil issues actually have to be proven by clear and convincing evidence, which is higher than a preponderance but no one really knows how exactly to quantify it.] Criminal cases need to be proven by “beyond a reasonable doubt.” [Note: it’s beyond a REASONABLE doubt, not beyond any doubt someone could possibly come up with.] “Beyond a reasonable doubt” is the HIGHEST burden of proof in the United States, which is because the consequences of a criminal conviction can include the deprivation of the defendant’s liberty, and the United States (…uh, theoretically, anyway) prioritizes liberty so highly. [Don’t get me started, then, on why it’s so absurdly stupid that immigration cases don’t need to be proven by beyond a reasonable doubt, even though the consequences could be deprivation of liberty or worse. It’s horrible.]

One more thing that I know will come up in fics: attorney-client privilege is NOT the same as attorney-client confidentiality. However, both apply not only when a client actually is a lawyer’s client, but even when the client is merely a prospective client. (No, Karen did not have to pay Foggy to secure either privilege or confidentiality. But it was a sweet gesture.) The difference is: Confidentiality is much broader; privilege is only evidentiary (which means it relates to admissibility). Confidentiality prevents a lawyer from sharing client details with anyone who’s not on the case (including the lawyer’s friends, family, etc.); privilege only prevents a lawyer from sharing client details in a legal proceeding. Both confidentiality and privilege can only be waived by the client.

With that said, on to how trials (and cases) actually work.

CIVIL PROCEDURE

Broadly speaking, the progression of a civil case is as follows:

- The plaintiff’s attorney files a complaint with the court which explains how they believe they were wronged by the defendant (this involves counts [aka bad acts, like “breach of contract” or “theft” or whatever] and the factual allegations supporting each count, and ends with a plea for relief [asking for injunctions or money or in some cases declaratory judgment which is basically where the judge just rules on what something is, like “This is a valid contract”])

- The plaintiff’s attorney files someone to serve the complaint on the defendant (so the defendant has “notice” of the allegations against them)

- The defendant files an answer in which they can do several things, such as admit/deny allegations contained in the complaint and/or raise certain defenses and objections commonly known as 12bdefenses and objections (such as “improper service” aka “dude I never got notice of the allegations” or my favorite “failure to state a claim for which relief can be granted” aka, basically, “I don’t know what you’re talking about??? That’s not a law???”)

- The defendant can also file a counterclaim (saying “actually, Plaintiff, YOU hurt ME”) with their answer and raise any affirmative defenses they think are available to them (such as, for example, “consent” which is a defense to battery; so for example if I take a karate class and get hit in the face and then I sue the instructor, they can claim that I consented to the physical contact)

- Note: if the defendant fails to answer within a certain amount of days, the plaintiff is awarded a default judgment in their favor. Yay for them

- Okay but assuming we get past the initial pleadings stage (the complaint, answer, counterclaim, etc. are all “pleadings”), we get to the fun part: discovery! Discovery is where the attorneys try to collect facts. They can do this through requests for admissions(basically you just send a document saying “admit you did X” and the other side either admits or denies), interrogatories (you send a list of questions like “How old were you when you signed the contract” or “list what you believe you consented to” and the other side has to answer), depositions(sitting a witness down and examining them under oath), requests for physical/mental evaluations, “requests for documents and things” (like, “give me all the emails between X date and Y date” or “give me a copy of the security footage”), and subpoenas (which is how you get discovery from non-parties aka people outside the case).

- Note: the other side can also object to your discovery requests, e.g. saying you’re seeking privileged information (such as information protected under doctor-patient or attorney-client privilege) or saying your discovery is too broad or something. But if the judge (who, again, handles legal/evidentiary questions and so handles discovery disputes) says “No you gotta answer the discovery requests” and the other side fails to do so, you (the requesting party) can file a motion to compel discovery where you ask the judge to order the other side to answer your requests.

- Also note: some discovery HAS to be provided; these are mandatory disclosures. One thing that is mandatory to disclose is the name and contact info of everyone you expect to call as a witness. In real life, surprise witnesses should not be happening, and if you fail to disclose a witness to the other side, the judge might not let you call the witness at trial.

- As you collect evidence, at some point you might file a motion for summary judgment. This is where you say there are no factual disputes left, and so the only question is whether one side wins as a matter of law. This means the judge can decide the issue on legal grounds without sending the case to the jury. Summary judgments are disfavored in US courts because, frankly, there’s almost always a question of fact, which means the case needs to go before a jury.

- Okay, if we get this far and summary judgment isn’t granted (and neither party settles which is where they reach their own agreement outside of court, which can be the result of just negotiation between the parties or of formal mediation and/or arbitration), we get to the fun stuff: TRIAL!

- Trial starts with jury selection aka voir dire. Jury selection is such an underrated part of the case (although I really appreciate that Daredevil gave us a hint of that with the Frank Castle trial). First the judge weeds out jurors by asking about issues that’d be true in all cases (like scheduling conflicts). Then the plaintiff’s attorney followed by the defense attorney each get to briefly introduce themselves and explain their perspective on the case, and ask questions designed to a) find jurors they think will agree with them, and b) find jurors they think WON’T agree with them. They can also use their questions to try to frame the case a certain way and signal what they want jurors to look for during the trial. After the questions are done, the attorneys can make an unlimited number of challenges for cause (asking to exclude certain jurors for articulable reasons like “This person’s obviously biased against my client’s gender”) and a limited number (usually 3) of peremptory challenges (excluding certain jurors for no apparent reason – although the other side can object if they think it’s motivated by racism or sexism).

- Note: in New York, civil trials only have 6 jurors (and one or more alternate jurors in case something goes wrong).

Trial:

Tbh I'm continuing my explanation of the civil process, but most of this also applies to criminal trials as well (just substitute "prosecution" for "plaintiff"):

At various points prior to the jury being seated, attorneys can file motions in limine basically asking to admit or exclude evidence ahead of time. This saves time during trial. The judge may decide they need to have an evidentiary hearing to determine whether it should be admissible.

Once the jury is seated, the judge will go over some rules with them (tbh you can google scripts for this if you want, or you can just skip that part), and then the plaintiff gets to give their opening statement in which they lay out what they intend to prove. What’s important about an opening statement is that the attorney can’t argue the case; all they can do is spell out what they will prove. So instead of the plaintiff saying “This is totally wrong!” they’ll say something like, “The evidence will show that this behavior was illegal.” See the difference? (Foggy, uh, doesn’t do a great job at the don’t-be-argumentative-in-opening-statement thing, tbh.)

The defense attorney gives their opening statement next.

After opening statements, the plaintiff gets to call their witnesses. No matter how many witnesses are called, it goes like this: plaintiff direct examines the witness, defense cross examines the witness, and then plaintiff can re-direct and defense can re-cross(repeat ad nauseum until the judge gets annoyed). Same story with each subsequent witness.

Direct examination means the attorney who calls the witness must ask open-ended questions (basically what, where, why, when, how questions). During cross-examination, the attorney who did not call the witness can ask leading questions which imply an answer (e.g. “You like chocolate, don’t you?” and “Isn’t it true you love cats?”). The attorney who calls a witness can ask leading questions of their own witness only if a) it’s foundational (e.g. “Your name is Karen, isn’t it?”); b) the witness is a child and the judge gives you permission; and c) the witness is hostile and the judge gives you permission. THE FACT THAT A WITNESS BECOMES A HOSTILE WITNESS DOES NOT MEAN YOU GET TO TURN AROUND AND GIVE A SPEECH TO THE JURY, MATT. It only means you get to ask leading questions of the witness.

Also: if each side has two attorneys (co-counsel, like Matt and Foggy) only the lawyer who direct-examines the witness can respond to objections, and only the lawyer for the other side who crosses the witness can make objections. So if Matt direct-examines Frank Castle, and Reyes cross-examines him, then Reyes can object and Matt can respond; Tower CAN’T object, and if Reyes objects, Foggy CAN’T respond.

Once the plaintiff has called all their witnesses, they rest their case (or, more technically, rest their case in chief).

At this point, the defense can motion for a “judgment notwithstanding the verdict” more commonly known as a “directed verdict” in which the defense basically says, “Look, the plaintiff had their chance to put on their case, and they failed to prove the elements. We don’t even need to call any witnesses; the plaintiff has the burden of proof, and they failed to meet that proof.” The judge then considers all the plaintiff’s evidence (“in the light most favorable to the plaintiff” since the plaintiff is the non-moving party, which basically means if there’s a slight uncertainty the judge should resolve it in the plaintiff’s favor) and decides whether the trial should continue. If the judge grants the directed verdict, defense wins; if not, they go on to the defense’s case in chief.

For the defense’s case in chief, the defense calls their witnesses, and the cycle is inverted: defense direct-examines, plaintiff cross-examines, and then defense re-directs and plaintiff re-crosses, etc. etc. Then the defense rests their case in chief.

Once all the witnesses have been called, the judge will give the jury their jury instructions, which explain the law the jury needs to understand so they can apply it to the facts. For example, the jury instructions will include explanations of every element of every count.

Then the plaintiff gives their closing argument. This is where the plaintiff explains why they think they proved their case. A good closing argument carefully walks the jury through the elements of the counts and shows why each has been proven by a preponderance of the evidence (or, if you’re the defense, why any given element has NOT been proven). Then the defense gives their closing argument, and then the plaintiff gives their rebuttal (a shorter argument countering the defense’s main points).

After this, the jurors are separated from the alternates by lot, and the jurors are dismissed to deliberate. During deliberation, they can review the evidence to their hearts’ content and even send out questions to ask the judge.

After deliberation is over, the jurors are brought back to give their verdict. The foreman (or foreperson) is the juror who announces the verdict.

Note: some trials may be bifurcated. For example, in a breach of contract action (action is another word for lawsuit, basically, and “cause of action” is the reason why you’re suing; e.g. “breach of contract” is a cause of action), the first half of the trial will be to decide whether there was a contract that was breached, and only after that trial and only if that trial decided “yep the contract was breach” do you move on to the second half, where you prove damages (what harm the plaintiff experienced as a result of the defendant’s breach of contract).

Whichever side loses might file an appeal, which sends the case up to the appellate court to determine if the trial judge got something wrong. An appellate case does not involve calling witnesses; instead, the only things the appellate judges can consider is whatever has been preserved in the record (a written transcript of what happened at trial + admitted evidence). The appellate court might affirm the trial court (basically “Yeah you got it right”) or overturn it, or even affirm in part and overturn in part.

(Note: in a criminal case, the prosecution can't appeal a loss due to double jeopardy; see below on that. But the defense can file an appeal.)

So that’s basically your standard civil case, from start to finish!

CRIMINAL PROCEDURE: INVESTIGATION

There are two categories of note: pre-trial and trial. Trial is basically the same as in the civil case (jury selection, opening statements, examination of witnesses, closing arguments), so I’ll focus on pre-trial.

Please be aware: in light of the current state of the US, some of this might be saddening, angering, or otherwise triggering to read. I fully acknowledge that not all police actually follow the rules as outlined here. However, reading this might help you be more aware of your own rights. That said, please do not read if you would find this section upsetting. This is why I split the “investigation” section from the “adjudication” section.

Pre-trial criminal procedure is ruled primarily by the 4th Amendment of the US Constitution, which guarantees US citizens the right from unreasonable searches and seizures by police. The teeth of the 4th Amendment (and the 5th, 6th, and 14th Amendments) comes from the exclusionary rule. The exclusionary rule holds that any evidence collected in violation of these amendments is “excluded” and cannot be used to prosecute a defendant.

What is reasonable for police depends largely how much information they have that you are engaged in criminal activity. The lowest recognized level is reasonable suspicion. Reasonable suspicion is more than just a hunch or a guess – it requires specific and articulable facts that you (or your things) are involved in a crime. Facts that could give rise to reasonable suspicion are: evading the police, nervous behavior or furtive movements, association with criminal organizations, matching a description of a recent 911 tip, and traffic violations. (Note: being in a “high crime” area is a factor that’s not enough by itself, and could be enough with other factors. Yes, that’s racist.) The next level up is probable cause: a fair probability under the totality of the circumstances that a crime is afoot and this this person or thing is involved.

Now, what can a police officer with reasonable suspicion actually do? They can stop and frisk you and they can do an inventory or administrative search. What can a police officer with probable cause do? They can arrest you and do a full search. (Note: if they have probable cause + “overall reasonableness” they can intrude by “extraordinary means.” Examples of extraordinary intrusions are: unannounced entry into home, entry into a home or office without a warrant, physical penetration of the body, and deadly force.)

However, despite all this, the 4th Amendment does not apply unless the police actually searched or seized you or your things. So it’s crucial to be able to define and identify searches and seizures. A search is when a government agent uses a sense to get information. Yes, all the senses. The lowest level of search is the stop (a “seizure” of a person). A stop occurs when a reasonable person would not feel free to terminate the encounter. If a reasonable person would feel free to leave, then it’s just an encounter, not a stop. Note, however, that if police take advantage of a confining situation (like cornering people on a bus), that’s not a stop unless the police created the confining situation. However, ways that police CAN stop you are: show of authority to which you as the citizen submit, intentional touch (no matter how slight), and taking and withholding an item you need (like your wallet or a transportation ticket).

Other information to know about stops: officers are NOT required to inform you when you’re free to leave. They MAY ask about immigration. (Yeah. Yikes.)

How do you know when a stop has become an arrest? Consider these factors:

Duration of the stop

Level of intrusiveness (including dog sniffs that add to the time of the stop)

Drawing a weapon

Handcuffing

Placing you in a squad car

Moving you

Next level up: frisk. A frisk occurs when an officer has already stopped you and now pats down the outer clothing (and may include groping). A frisk requires, first, that the stop preceding the frisk is legitimate, and, second, reasonable suspicion that the suspect is armed with a weapon. Anything the officer can tell by plain feel is contraband may be seized. If the officer has to manipulate the thing they’re touching to figure out what it is, then they’ve gone beyond the scope of a frisk and they can’t admit whatever they find against you.

If the search reveals contraband, then there’s probable cause to seize the contraband. And to seize the person.

Which brings us to: arrest. An arrest is the ultimate seizure of a person. It requires probable cause. Arrest also allows an officer to do a full search incident to arrest, which means the officer can search your person to make sure you aren’t armed. This includes going into your pockets, which is why it’s more intrusive than a frisk. An officer can also search the area around you; however, the search can’t extend beyond your wingspan: the area you can reach with your hands. (In a car, your wingspan includes the area of the car you’re in, e.g. the driver’s area or the passenger area. Except they can’t search your car after they’ve removed you from it UNLESS they are searching for evidence of the crime for which you were arrested in the first place – so, like, if you’re arrested for a traffic violation, there’s no point in searching the car, but if you’re arrested for suspicion of drug use, they can search the car because you might have drugs or paraphernalia in the car. A search of the trunk requires separate probable cause.) Note: if an officer issues a citation, the interaction is terminated, and they can’t then do a full search.

Really, really, really bad news: if an officer has probable cause, the officer is allowed to use pretext to make an arrest. So for example, a racist cop might arrest a Black man purely because of racism, not because this particular officer actually cared about probable cause that the Black man was engaged in crime. But as long as the probable cause exists, it can be used as a pretext for the arrest.

Okay, but what about search of a place? A search of a place is not subject to the 4th Amendment at all unless there is both: 1) a subjective expectation of privacy and 2) an objective expectation of privacy. Subjective means the property owner actually expects privacy (as indicated by taking steps to make something private; leaving your windows open shows you don’t have a subjective expectation of privacy with regard to anything that can be seen through it). Objective means we as society recognize this as a valid thing to keep private (so, like, even if you subjectively feel that anything on your roof should be private, there’s no objective privacy because we as society recognize that it’s perfectly normal for people to see things on your roof). Also, if you knowingly turn something over to a third party, you have legally demonstrated that you don’t have a subjective expectation of privacy. This is why, for example, the information contained on an envelope is not private, whereas the things inside the envelope are. Also, note: police don’t have to avert their eyes from something the public can see. There’s a twist with technology, though. The general rule is, police can’t use technology that a regular citizen can’t. So police can use, for example, binoculars, but they can’t use, like, thermal imaging searches (without a warrant) since most of us don’t walk around with thermal imaging devices.

A more modern twist is the mosaic rule. What if police can collect enough disparate data about you to form a mosaic? Like by looking at cell site data, tracking your GPS, etc.? Is that okay? Not if: a) the data was collected individually and then added together; b) you surrendered it passively; and c) the data collection is so pervasive that it can’t be said that you knowingly assumed the risk of its collection. So no, police can’t look at your GPS data, even if it all goes through third parties at some point, because each blip is separate, you didn’t intentionally give anyone your GPS data, and almost everyone has GPS such that it’s not reasonable to say people sit down and think “Hmm, how can this data be used against me?”

Another important thing to keep in mind is the importance of warrants. The 4th Amendment includes the warrant requirement. A valid warrant for search or seizure (including arrest) must be issued by a neutral and detached magistrate and describe with particularity the place, person, or thing to be searched/seized. Also, it’s important to note that warrants can’t be stale, which happens if too much time has passed between the alleged criminal activity and the issuance of a warrant.

In practice, prosecutors submit an affidavit of probable cause in which the cop explains why they think a warrant should be issued. Based on that, and that alone, the judge determines whether the warrant should be issued. However, defendants can challenge a warrant that they think is insufficient (or that they think was issued by a biased magistrate) at a Franks hearing. HOWEVER, even if you can prove that cops lied in an affidavit, the warrant might still be valid unless the lies were necessary to the issuance of the warrant. Nowadays, there are apps that let prosecutors send warrants straight to a judge’s phone to be signed, which means prosecutors can get a warrant signed, like, at midnight or something as long as a judge is awake, instead of waiting for business hours. These are called telephonic warrants.

Note: even with a warrant, officers can’t just break into your home or office. They have to announce themselves first – UNLESS: 1) you’re seeking a person and there’s a high likelihood the person will run; 2) you’re seeking evidence and the evidence is evanescent; or 3) there’s a danger to either the officers or the public.

Also: if officers have a valid warrant to search your home or office, they can usually go ahead and detain you, since a detainment is considered a lesser intrusion then the search.

Now, once the officers are in the home or office, what can they do? They can search only in paces where the thing (or person) they’re seeking could reasonably be. So if they’re searching for, like, drugs, they can search basically anywhere. If they’re searching for, like, a giant gun, they can’t go poking through tiny little drawers. But they can also seize anything in plain view: anything they can see (without having to move anything else) and immediately recognize as contraband.

Can officers ever intrude in your home or office without a warrant? Yes, if there’s an exigency. Valid exigencies are: Risk of fleeing felon (gotta go in here to catch the guy about to run away); Hot pursuit of felon (guy we’re already chasing runs into a house); Safety (there’s a bomb in there); Evanescent evidence (like, we’re looking for tiny little papers and we just heard someone flush the toilet three times in a row), and a catch-all category of any other type of emergency.

If there’s no exigency, and no warrant yet, officers might “freeze” the situation by staying outside the building or walking alongside a person until they get a warrant.

Now let’s transition from search and seizure to interrogation. This is where more of your rights as a suspect/defendant kick in, starting with your rights regarding confession.

Probably the most famous rights are your Miranda rights. The trick is, Miranda rights only apply if there is custodial interrogation. This means you have to be both 1) in custody, and 2) being interrogated. The test for whether you’re in custody is: would a reasonable person in your position feel they were not free to terminate the encounter? This is an objective test, so it doesn’t matter what you actually feel; what matters is what a reasonable person would feel. (That said, your age does matter, as does difficulty with the English language. But other things that I think should matter, like prior bad experience with police, don’t necessarily matter.) Factors that suggest custody are: whether the atmosphere is “police-dominated,” the location of interrogation (home suggests not custody; police car or station says probably custody); whether you transported yourself to the interrogation or if police brought you; whether you are allowed friends/family/“allies” in the room with you; your age; whether you were threatened with prosecution; the time (generally, 2 hours suggests custody); whether the questioning is aggressive/deceptive/accusatory; and whether you are arrested immediately after interrogation.

The test for whether you’re being interrogated is: did the police use words or actions (other than those normally attendant to arrest/custody) that OFFICERS should have known were reasonably likely to elicit an incriminating response? So this is a subjective test from the officer’s point of view. However, if an officer confronts you with potential evidence of a crime, even without speaking, that can sometimes count as interrogation.

Now let’s say you are in custody and you are being interrogated. What do your Miranda rights mean? If you are being custodially interrogated, you must be advised of your right to silence and your right to counsel during interrogation. If you invoke silence, the outcome is: police must immediately cease questioning you, but can resume questioning you after a “significant pause,” and can also question you on a different matter. If you invoke your right to counsel, police must immediately cease questioning you and can’t resume questioning until either your attorney arrives or you reinitiate conversation. Note: just staying silent is not enough to invoke silence. Also note: saying vaguely “Should I get a lawyer?” or even “I think I want a lawyer” is not enough to invoke counsel. To avoid confusion, your statement must be clear and unambiguous; best to clearly say: “I am invoking my right to silence and I am invoking my right to counsel.” You can, however, waive your Miranda rights as long as the waiver is knowing, intelligent, and voluntary. Meaning you must have been given your Miranda rights, understood them, and then waive your rights clearly (by talking) without having been coerced. The burden (or responsibility) is on the government to demonstrate that you waived your rights.

In addition to Miranda, you can also challenge the admissibility of a statement under the Due Process clause of the Constitution if you can demonstrate that coercive conduct overwhelmed you, leading you to make a coerced statement. (Note: this applies even if you’re not in custody.)

And then, of course, there’s the 5th Amendment. The Fifth Amendment holds that you can’t be made to incriminate yourself. But you can only assert the Fifth Amendment if: 1) you are subject to government questioning; 2) you have a real and substantial fear that the testimony will incriminate you; and 3) you actually assert the privilege by refusing to testify. (If you testify, you’ve waived the right.)

Police might off you immunity in exchange for your waiver of the Fifth Amendment. Use/testimonial immunity prohibits the use of your testimony (or any evidence derived from that testimony, like if the police use your statement to inform their investigation) against you; however, the government can still prosecute you based on other evidence as long as that other evidence has no connection to the testimony you gave under use immunity. Transactional immunity is much stronger because means police can’t prosecute you at all on the subject of the testimony. (So Ray Nadeem testified under use immunity, meaning if police found evidence unconnected to his testimony showing his work with Fisk, they could still prosecute him for conspiracy and other things. But if he’d been given transactional immunity, all his interactions with Fisk would be shielded.)

And then we get the 6th Amendment. Not to be confused with your right to counsel under Miranda, which kicks in with custodial interrogation, the 6th Amendment right to counsel only kicks in once the formal adversarial process has been initiated by formal charges, an indictment, arraignment, or a preliminary hearing. However, the 6th Amendment does allow you to kinda look back in time to see whether you had an attorney at all “critical stages,” potentially including custodial interrogation.

Now, if evidence is collected in violation of the above rights, that evidence is considered “fruit of the poisonous tree” and must be excluded, unless the police can show inevitable discovery: that the evidence would inevitably have been discovered even without using unconstitutionally-obtained testimony.

But let’s say the police have enough evidence (or think they do) to formally charge you. They will then book or process you. This is where police get certain information out of you, take mug shots, etc.

Now what?

CRIMINAL PROCEDURE: ADJUDICATION

If the case is federal, not state (like, the crime occurred across state lines or on federal land), you’ll get a grand jury. The prosecution presents their case to the grand jury, and if the grand jury is convinced there’s enough evidence to go forward, the “target” of the grand jury (who doesn’t even know it’s happening) will be indicted. Note: the prosecution has no obligation to submit exculpatory evidence (evidence that suggests the defendant’s innocence), and the defendant has no right to counsel at the grand jury, or even the right to be present.

If it’s a state crime, you’ll be arraigned, usually within 24 hours of being charged. At the arraignment, the judge reads the charges against you and informs you of the maximum potential penalties, and you announce whether to plea guilty or not guilty. A guilty plea waives your right to a trial as you admit to guilt. (Note: an Alford plea means you admit that the prosecution could prove your guilt, but doesn’t admit that you actually are guilt.) A not guilty plea preserves all your rights and means your case will continue through discovery to trial, similar to in a civil case. If you plea guilty, a date will be set for sentencing, when you will receive your actual sentence.

Regardless of whether you plea guilty or not guilty, depending on the severity of the crime, you might be taken into custody in jail. You can try to bail out of jail by giving the court a certain amount of money in exchange for your temporary freedom. Bail hearings consider whether you are a “flight risk” (meaning you’re not likely to return for other hearings or for trial) or whether you are a danger to the community. If you’re a flight risk or a danger, you probably won’t get bail, or it’ll be incredibly high.

Discovery is mostly similar to what you see in civil trials, except certain evidence is required to be turned over to you by the prosecution: this is Brady material. Brady material is evidence that is favorable (to you as a defendant) and material to the case (evidence that creates a reasonable probability of a different outcome at trial). Unfortunately, Brady evidence by the government only violates Due Process if the government acted in bad faith.

At any point even up to during trial, you can take a plea deal. A plea deal is an offer by the prosecution to potentially dismiss certain charges (or enhancements, which increase the underlying sentence because you’re a repeat offender or you used a deadly weapon or for various other reasons) and argue for certain lower penalties in exchange for your plea of guilt.

The Sixth Amendment also offers you another right: the right to a speedy trial. In New York, you must have a trial for a felony within six months of your not guilty plea, or else your right to a speedy trial has been violated – unless delays are your fault. (Like if hearings keep getting delayed because you fail to show up.)

When you’re at trial, you again have the Sixth Amendment right to counsel. Your counsel must be effective; otherwise, you have a claim for ineffective assistance of counsel. To prove ineffective assistance of counsel, you must prove both that: 1) your lawyer was ineffective (fell below reasonable standards); and 2) you were prejudiced (the outcome would’ve been different otherwise). Note that courts assume attorneys are effective.

Another key part of a criminal trial is the Confrontation Clause of the U.S. Constitution. This clause gives you the right to “confront” witnesses who present testimonial evidence against you – not testimonial broadly in that it’s “testimony,” but specifically in that it’s a statement made in a situation where a witness would expect it to be used as evidence in a criminal trial. So, like, a 911 call is not testimonial, but a statement made to a police tip line is testimonial.

If you go to trail and win, then you can’t be tried again for the same offense (by the same “sovereign”) under the double jeopardy rule. Sovereign in this context refers to the government. So if you commit a crime that’s both a state and a federal crime, the state prosecutor and the federal prosecutor can both prosecute you without violating double jeopardy.

If you go to trial and lose, you’ll go to sentencing. At sentencing, the prosecutor will argue for a certain sentence, and the defense attorney will argue for a certain sentence, and you’ll have the right to make a statement as well. Also, any victims (who have the right to be present) also have the right to make a victim’s impact statement. Then the judge imposes the sentence within the maximum confines of the law. A sentence will usually include, at minimum, a certain amount of time to be spent in jail or prison, as well as a fine. However, both the time incarcerated and the fine can be suspended. If the jail/prison time is suspended, you’ll be put on probation, where you can basically live normal life, except that any violation (any violation) of your probation will result in the imposition of your sentence. Your sentence might also include other fees to the court, restitution paid to your victim, certain limitations (like not being able to drive a vehicle) and certain mandates (like having to get a job).

If you go to trial and lose, you can appeal your sentence, which triggers the appeals process, but I honestly don’t know much more about the appellate process other than what was mentioned elsewhere in this document.

And I think that’s good enough for now on criminal procedure!

EVIDENCE

The rules of evidence are HARD, but knowing this stuff at just a basic level will absolutely set your story apart from others. In my opinion, evidence issues are where you get to have a lot of fun and add more conflict and twists to your story, instead of just mechanically marching through trial procedure. So here goes!

Again, evidence can be, basically, things (objects, documents, recordings, etc.) and testimony. Evidence can also be direct(like footage of someone doing an act) or circumstantial (like bank statements showing the defendant deposited a large amount of cash the day after the alleged robbery). CIRCUMSTANCIAL EVIDENCE IS TOTALLY VALID AND YOU CAN TOTALLY WIN A CASE, EVEN A CRIMINAL CASE, ON CIRCUMSTANCIAL EVIDENCE. PLEASE DON’T HAVE A CHARACTER SAY “OH NO IT’S ONLY CIRCUMSTANCIAL EVIDENCE” OR I WILL CRY.

Evidence must be admissible in order to be considered by the jury. Inadmissible evidence may not be considered by the jury. If the evidence is inadmissible for ANY REASON, it’s out. That’s it, the end.

First, let’s talk briefly about things. Say you’re the defense attorney and you want to admit into evidence security footage that shows your client was nowhere at the scene of the alleged crime. Say you didn’t admit it prior to trial in a motion in limine, and want to admit it at trial instead. You gotta go through some steps:

Show the evidence to the opposing party (the prosecutor) before the trial

At trial, call a witness to the stand who can talk about the footage (ideally someone responsible for the evidence, aka a custodian, but anyone who can speak to the footage’s authenticity will do)

Ask permission to show a short clip of the video so the witness knows what you’re talking about

Ask, “Do you recognize this video?” (the witness should say “yes”)

Ask, “How do you recognize this video?” (the witness will explain they’ve seen it before)

Ask, “Is this a true and correct copy of this video?” (the witness should say yes)

Ask the judge to admit the evidence

[the judge will ask the other side if they have any objections, which you’ll have to deal with it]

If it’s admitted, ask for permission to publish the evidence to the jury (until you do this, the jury will not be allowed to see the evidence)

And ta-da!

Now I will focus on witness testimony because that’s the easiest example for applying all the crazy rules. At trial, a witness is calledby one side. The witness then takes the stand (sits in a special chair) and is sworn in (“do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” “I do”), and then proceeds to testify under oath. Note: the witness can’t just start talking; they have to answer the questions posed by the attorneys.

Now let’s explore the admissibility of a given “piece” of testimony (a statement). Let’s say you’re the prosecution, and you call a witness who testifies: “On June 16, I heard the defendant say, ‘I am going to the store’.”

The threshold question is relevance: is the statement relevant? (“Objection, relevance” or “Objection, 4.01.”) Relevant evidence is that which makes a fact in consequence more likely than not. (Facts in consequence are ones that relate to either a) the legal/factual issues of the case, or b) the credibility of witnesses.) Irrelevant evidence is always inadmissible. This statement may be highly relevant if the store in question was robbed on June 16 and the case is about a robbery at the store; it may be completely irrelevant if the case is about an assault on a totally different day.

But just because evidence is relevant doesn’t mean it’s admissible. For example, the evidence is excluded if its probative value (aka relevance) is outweighed by prejudice, confusion, delay, or unfair surprise. (e.g. “Objection, more [prejudicial than probative]” or “Objection, 4.07.”) This is a balancing test which means the simple fact that either probative value or prejudicial effect may exist doesn’t resolve the issue; the judge has to ask whether the probative value is OUTWEIGHED by the prejudice. For example, “On June 16, I heard the defendant say, ‘I am going to the store’” may be a little prejudicial to the defendant, but the probative value is quite high, so it would be admissible. (But if the statement is something like, “Three years ago, I heard the defendant say he kicks puppies for fun” – that’s highly prejudicial and has zero probative value to the case, so it would be inadmissible.)

But what if our witness has a really sketchy past? Introducing the terrifying world of character evidence (rule 4.11), perhaps the only set of rules that rivals hearsay rules in terms of complexity. Briefly put: evidence that your witness did something bad in the past is NOT admissible to prove propensity (e.g. that they have a “propensity” for bad stuff). This actually comes up most often with defendants (like, if this defendant is charged with bank robber I can’t admit evidence that he was convicted of bank robbery before just to show that “Hey guys c’mon this dude is obviously a bank robber”). But prior bad acts ARE admissible to prove…literally anything other than propensity. Like knowledge. (For example, I can’t say the defendant robbed a bank before and must therefore be a bank robber, but I can say he robbed a bank with super high-tech security, so he has the knowledge required to rob this OTHER bank with the same or similar super high-tech security.)

Note: a fun way to write evidentiary sparring is as follows: Attorney A brings up the prior bad act (“Isn’t it true you robbed a bank before?”) to which Attorney B shouts “Objection! Rule 4.11!” to which Attorney A fires back with, “This isn’t propensity, this is for knowledge,” and after explaining why, Attorney B insists, “This is still inadmissible under 4.07!” and now we jump back to the more-probative-than-___ balancing test. It’s super fun. (Seriously. Fun.)

Now, our statement may be probative, and its probative value might outweigh the risk of prejudice or other problems, but it’s still not automatically admissible. There are several other categories of rules, all of which could exclude it:

- Privileges (like, again, attorney-client or doctor-patient) – but PLEASE NOTE that privileges are not absolute. This means privileged evidence is not guaranteed to be inadmissible; it can be admitted if it is important enough, like if there’s no other way this issue can be explored at trial. So without getting into spousal vs marital privilege (hmu if you want to know the difference but it’s deathly technical), let me just say that: sure, Matt and Foggy can totally get married and that makes it HARDER for anyone to ask Foggy to testify against Matt, but it doesn’t guarantee that Foggy would NEVER be made to testify against Matt. Their spousal/marital privilege is not absolute. Sorry to crush your dreams.

- Witnesses (which I’ll explain in more detail below)

- And the infamous hearsay (which I’ll explain in more detail below).

So, witness rules. Rule 6.07 is a good one to know: lay witnesses (who aren’t experts) can only testify to FACTS about which they have personal knowledge. If they start giving opinions, their opinions are inadmissible (“Objection, speculation” or “Objection, 6.07”) – unless their opinion is 1) rationally based on their perception; 2) within the limit of their common experiences; and 3) would help the finder of fact to either understand the witness’ testimony or determine a fact in issue. (So if you’re trying to admit the lay witness’ opinion, you’d ask the question to elicit the testimony, and the other side would object under 6.07, and you’d fire back with 7.03). However, remember that expert witnesses ARE allowed to speak outside their personal knowledge and give opinions – as long as the expert is properly qualified as an expert (under 7.01). This qualification usually happens in a motion in limine outside the presence of the jury. Also note: New York has special extra opinion rules for certain topics like abuse and sexual assault.

Anyway, because “On June 16, I heard the defendant say, ‘I am going to the store’” is not an opinion, your witness can make the statement even if the witness is a lay witness as long as foundation is laid/established to show that the witness was in fact within earshot when the defendant made this statement.

Moving on. What if your witness gave a statement to police a few weeks before trial, in which your witness said “On June 16, I heard the defendant say he was going to do nothing but play video games”? Oh no. This is a prior inconsistent statement (rule 6.15) because it’s a statement made prior to trial that is inconsistent with the statement made at trial. Inconsistent statements can be used to impeach a witness. (Impeachment is basically anything that questions the witness’ credibility.) Once your witness says “On June 16, I heard the defendant say, ‘I am going to the store’” you have “opened the door” to the defense using the inconsistent statement. Note: in a civil case, the inconsistent statement can be used for the truth asserted in the inconsistent statement (e.g. that the defendant said he was going to do nothing but play video games), but in a criminal case, the inconsistent statement can ONLY be used to say “Hey this witness said two contradictory things, maybe you should not trust them.”

What if there are no inconsistent statements, but about your witness’ sketchy past? Well, whatever is sketchy in the witness’ past is only admissible if it relates to TRUTHFULNESS. Crimes of dishonesty (like fraud or perjury) are good for that; other stuff like theft is not. (Rule 6.17). Note: this is similar to 4.11, but not the same, because this is only about truthfulness, not knowledge or propensity or other stuff.

Okay, moving on. Let’s talk hearsay, the thing that terrifies law students everywhere! Hearsay is an “out-of-court statement given for the truth of the matter asserted.” Out-of-court means it’s a statement that was made by someone who wasn’t on the witness stand at the time; “given for the truth of the matter asserted” means you (the person introducing the statement) is using the statement to prove what the statement says. The general rule is that you CANNOT admit an out-of-court statement given for the truth of the matter asserted (Rule 8.01). Also keep in mind: the person who said the out-of-court statement is the declarant.

So if your witness says, “On June 16, I heard the defendant say, ‘I am going to the store’” note that not all of that statement is hearsay. The hearsay is “I am going to the store.” See why? Your witness is on the stand, so what your witness says is not out-of-court until the witness quotes (or references) a DIFFERENT statement made outside of court. Your witness can say all sorts of stuff about what your witness saw the defendant do on June 16 – the only thing your witness can’t do is repeat what the defendant SAID. At least…not if you, the attorney, are using the statement to prove the truth asserted in the statement. For example, you can admit “On June 16, I heard the defendant say, ‘I am going to the store’” to show that your witness was around the defendant on June 16 or that the defendant had plans on June 16 or…anything else you can think of, really. The only thing you CAN’T do is admit “On June 16, I heard the defendant say, ‘I am going to the store’” to prove that the defendant actually went to the store on June 16. Also: in the example of your witness saying “On June 16, I heard the defendant say, ‘I am going to the store’” the declarant is the defendant.

Or…can you? And here we get to tackle all the exceptions to the hearsay rule. Check them out on the above-mentioned guide-to-evidence website; I’ll just pull out a few fun ones.

Co-conspirator’s statement! (Rule 8.09.) Say this robbery at the store is actually a conspiracy (meaning multiple people agreed to commit the crime of robbery). Say you call your witness to say “On June 16, I heard Joe [not the defendant] say, ‘I am going to the store with [the defendant].” Now you can admit Joe’s hearsay statement (“I am going to the store with [the defendant]”) as long as: 1) Joe (the declarant) is a co-conspirator of the defendant; 2) Joe made the statement in furtherance of the conspiracy (e.g. to help the conspiracy); and 3) Joe made the statement in the course of the conspiracy (e.g. not after the fact when the conspiracy was over). Ta-da.

Statement against interest! (Rule 8.11) Broadly speaking, this is pretty simple: you just argue that the statement is “against the interest” of the declarant such that the declarant would not make the statement if it weren’t true because…well, it’s dumb to lie against your own interest. (Silly examples are, “Yesterday I stole money” or “I would love to kill someone.”) However, in a criminal trial, there are some fun twists to the rule in 8.11.2.

Dying declaration! (Rule 8.15) In New York, this exception ONLY applies in a homicide case. An out-of-court statement is admissible under this exception if: 1) the declarant genuinely believed they were imminently about to die, and 2) the statement concerns the cause/circumstances of death. (Note: it’s not required that the declarant ACTUALLY dies, as long as the declarant THINKS they’ll die.) (So is Ray Nadeem’s “dying declaration” admissible? Um, not all of it. Yes, he genuinely believes he’s imminently about to die, but a lot of what he says goes beyond the cause/circumstances of death.)

Excited utterance! (Rule 8.17) Hearsay is admissible if the statement: 1) was made while the declarant was “excited” (scared, thrilled, surprised, angry, etc.) and 2) is about the exciting event. Like if your witness says, “On June 16, I heard the shop attendant scream ‘That guy’s got a gun!’”

Forfeiture by wrongdoing! (Rule 8.19) Hearsay is admissible against a certain party if: 1) that party tried to prevent the declarant from testifying, and 2) the party’s actions were a significant cause of the witness’ decision not to testify. You see this a lot in domestic violence cases, where a defendant threatens the victim to scare the victim out of testifying. If this happens, you can use the victim’s statements even if the statements are “out-of-court” because the victim never takes the stand.

Present sense impression! (Rule 8.29) Basically, hearsay is admissible if the statement was made either describing something or shortly afterwards. Like if your witness says, “On June 16, I heard Joe say, ‘Look, [the defendant] is going to the store.’” The idea is that the declarant is basically narrating something as it happens, without enough time between the event and the statement for the declarant to think about lying.

Prompt outcry! (Rule 8.37) As far as I know, this rule is unique to New York, and I love it. It’s a specific exception carved out for out-of-court statements showing that a victim of sexual assault promptly reported, to be used to show: 1) that the victim is credible; and/or 2) to explain the investigative process.

State of mind! (Rule 8.41) Hearsay is admissible if the statement is made by the declarant showing how they are thinking or feeling at the time. Also includes physical state. For example, “On June 16, I heard the defendant say, ‘my stomach hurts.’” Also includes stuff like intent or plan (e.g. “On June 16, I heard the defendant say ‘I will go to the store’”) but you can’t use it to prove that he actually DID go to the store; only that he planned to or wanted to.

And, again, there are so many other exceptions. These are just some of my favorites

And that’s probably more than you ever need to know about evidence. Now you can have fun throwing the rules around to admit/exclude stuff.

TRICKS FOR MAKING TRIAL SCENES COOL

Here are some random tidbits to make your trial scenes stand out (in the right ways, and not stand out in bad ways):

Even when lawyers are arguing with each other, if they’re in court, they argue to the judge. Instead of saying “No, you’re wrong,” they say, “Your Honor, opposing counsel is wrong.”

Lawyers generally can’t approach the judge or a witness on the witness stand without permission. They should ask, “May I approach?” to approach the judge or “May I approach the witness?” to approach the witness.

In court, lawyers should refer to the judge as “Your Honor.” Some lawyers just call the judge “Judge” but in my opinion, that comes off as too familiar and potentially disrespectful.

A case should have a theme that the jury can easily understand.

Lawyers can totally use powerpoint presentations in their opening statements and closing arguments.

One mistake that will stand out if you include it in a fic is having either side in a criminal trial talk about penalties. Penalties for a criminal conviction are decided at sentencing. Mentioning penalties at trial can lead to a mistrial.

Another mistake that will stand out is having lawyers debate the admissibility of evidence in front of the jury. It’s improper for the jury to be exposed in any way to evidence that may not be legally admissible, and it’s improper for the jury to consider legal arguments. So if one side objects to evidence, they should simply say “Objection, [brief reason or rule].” Launching into their argument is called giving a “speaking objection” and it can get you in trouble. Sometimes just the brief rule or reason (like “Objection, relevance”) is enough if the problem is obvious. But if a lawyer wants to signal to the judge that they have an argument they want to give, they should say, “Objection, [brief reason or rule]. May I proffer?” Only when the judge says “Yes” can they make their argument. Before they do so, either the jury will be dismissed, or the attorneys will be invited to stand in front of the judge, and the clerk will hit a button that fills the rest of the room with a buzzing sound so no one else can hear what’s going on. (Again: if the judge AGREES with your objection, your objection is sustained. If the judge DISAGREES with your objection, your objection is overruled.)

A good objection argument has the following format: “[evidence to be proffered], [conclusion], [rule], [application of the rule to the evidence].” (Example is: “Your Honor, if permitted to testify, this witness will say she heard the defendant say, ‘I will go to the store’ on June 16. This evidence is admissible under Rule 4.01. Rule 4.01 states that relevant evidence, which is evidence with a tendency to make a fact in consequence more or less likely, is admissible. This statement is relevant because it makes it more likely that the defendant did in fact go to the store on June 16, which is a fact in consequence because the store was robbed on June 16, and this case alleges that the defendant participated in the robbery.” See how easy that is to follow? (I hope, lol.) However, most attorneys don’t argue so clearly, so it’s not necessarily realistic to write it that way. Unless you want to point out that your attorney is particularly precise/experienced.)

LAW SCHOOL STUFF

In the US, law school is usually 3 years long, though some people graduate faster by taking classes over the summer and others graduate later by going part-time.

Law school requires an undergraduate degree. So you’ve got usually four years getting an undergrad degree (like English or political science – probably the most common degrees for lawyers, but please note that “pre-law” is NOT an actual degree).

At some point prior to admission to law school, you have to take the LSAT (the entrance exam for law school). You don’t study for the LSAT; you practice for the LSAT. That’s because the LSAT is skills-based, not knowledge-based. It tests reading comprehension, logical reasoning, and analytical reasoning. Reading comprehension asks you to read a passage and identify main points, styles of argumentation, types of evidence, etc. Verbal reasoning basically does the same thing, just with shorter passages. Analytical reasoning tests your ability to problem-solve with the infamous logic games. Google them and you’ll see why they’re scary for most people.

With your undergrad transcripts, GPA, LSAT score, and personal statement, you can now apply for law school. If you’re a desirable candidate, you can expect to get scholarships, which is awesome.

Now, let’s say you get into law school. What’s that like? Stressful for sure. Also a lot like high school. You’ve got a relatively small group of people all taking the same classes together. Cliques and rivalries form. Study groups appear and then dissipate. Some schools get vicious (there are infamous stories of people stealing books from the library right before finals), but most schools these days try to encourage a more cooperative experience. That said, there will always be “gunners” which are the people who can be counted on to always want to answer questions in class. They usually sit in the front row. They are usually incredibly obnoxious. (I maintain that I was not a gunner because although I always wanted to answer questions and usually at in the front row, I wasn’t actually obnoxious? I hope???) Often, everyone thinks gunners will be top of the class, but almost invariably the top of the class is some person in the back who never says a word all year unless directly called on.

When you start law school, you are known as a 1L or “one-L” because it’s your first year. During your first year, you have little choice in what classes you take. Classes are usually those that will be tested on the bar exam (the licensing exam; more on that later). Check out this website for a roadmap of the Columbia 1L (and 2L and 3L) experience: https://www.law.columbia.edu/community-life/student-life/roadmaps.

Traditionally and generally speaking, the only law school classes that involve “papers” are your LP classes (Legal Practice Workshop classes) which teach legal writing. Students in these classes might have to write briefs or memos (short analyses of a case, written as if to a supervising attorney). Additionally, law school classes traditionally and generally only have one exam: the final exam. Yes, this means that aside from any points you get from attendance/participation, your ENTIRE grade rests on one (1) exam, which is usually closed-book and can last about 3 hours, comprised of one or two essay questions. You’re lucky if you get a midterm to give your GPA a buffer. (So no matter how much angst Matt and Foggy go through in law school, they CANNOT MISS A FINAL OR THEY WILL FAIL THE CLASS AND HAVE TO RETAKE IT.) That said, more modern-thinking professors recognize the issues with this approach, and may offer other tests, quizzes, and projects. In which case sure, let the angst get in the way of finals.

The bulk of your work in law school is reading textbooks full primarily of cases with little helpful explanations. It’s up to you to pull the important things out of cases (“important things” being relevant facts, the holding, and the reasoning behind the holding, and sometimes interesting bits from the dissent). Good luck doing that when the case is from the 1800s.

Whatever you pull out of textbooks is helpful for two reasons: prep for class, and prep for exams. Prep for class means knowing as much as you can about the cases so if you get called on, you can answer without everyone making fun of you. If the professor “cold calls,” that means they call on students in random order. Other professors might go alphabetically or have some other system. Professors in law school generally use the Socratic method of teaching, which means they teach through conversation. The questions are supposedly designed to make you think critically, rather than to make you look dumb. That’s up for debate.

Prep for exam means building an outline. An outline is your synthesis of all the most important cases. Though you usually can’t have your outline with you during the exam, the process of making it helps you not only review information but figure out how it all fits together (since law is notorious for having weird exceptions and stuff that only applies in specific circumstances). You can also possibly borrow outlines from other students, and usually there are a few outlines floating around that some student four or five years ahead of you created—but the fact is, you probably won’t learn as well if you just copy someone else’s outline rather than building your own.

The week prior to finals is usually called “dead week” ostensibly because there are no classes but really because everyone is dead. Or in the library. Or dead in the library.

Also, you get spring break (a week), Thanksgiving break (a week in November for my non-US followers), and winter break (usually about three weeks from mid December to mid January), as well as summer break off.

After exams, rankings are posted. Everyone is ranked. Rankings are crucial in getting good externships during law school, and good jobs after law school. Top 10-15 are pretty much set to get clerkships if they want them (clerkships are, again, where you work for a judge for a year or so after law school). (Disclaimer: I wasn’t actually in the top 15% but idk my judge liked me.)

Note: applying for externships and jobs both pretty much involve submitting your transcript, résumé, letters of recommendation, and the big one: a writing sample. (Also: the importance of letters of recommendation is a great reason to visit office hours and befriend professors.)

While in law school, you might engage in extracurricular activities. Here’s what Columbia offers: https://www.law.columbia.edu/academics/experiential.

Note: technically, I think Columbia only offers “moot court” programs, rather than “mock trial” (or “trial team”). Moot court is appellate advocacy (where each side writes a brief and then gives an oral argument before a judge) whereas mock trial is trial advocacy (where each side gives opening statements, calls witnesses, and gives closing arguments). Appellate advocacy is great practice for appeals (obviously) and oral arguments at hearings, but mock trial is better practice for, well…trials. And in my humble opinion, having done both, mock trial is WAY more fun. So I personally choose to ignore reality and imagine that Matt and Foggy did mock trial instead of or in addition to moot court.

In a mock trial, you’re given a case file (sometimes just called a “packet”) which includes the civil or criminal complaint, witness statements or affidavits, and exhibits. Each team is responsible for knowing the packet inside and out and building their cases based on what’s contained inside. You’re not allowed to bring in extra information from the real world unless it’s common knowledge.

You’re also on a team, usually with just three other people. You must be prepared to present both sides of a case. For each side, two of you play attorneys and two of you play witnesses; you switch roles when you switch sides. (So Matt might be a prosecutor and a defense witness whereas Foggy would be a prosecution’s witness and a defense attorney.) There are two ways an individual can partner with a teammate: by being co-counsel or by being an attorney-witness pair. (So if Matt is a prosecutor and he calls Foggy as his witness [in that he direct-examines Foggy], Matt and Foggy would be an attorney-witness pair [and probably Foggy would be Matt’s defense attorney when the team switches to play defense]; alternatively, Matt and Foggy could both be prosecutors or both be defense attorneys, in which case they’d be co-counsel.)

Note: some mock trial competitions only have two competitors. Both teammates are co-counsel for both sides of the case, and the witnesses are played by volunteers. In this kind of competition, you only get about 15 minutes to “prep” your witness (whom you’ve never met) before the competition actually starts, unlike in the other version of mock trial, where your witness is a classmate with whom you’ve practiced for months. This version of mock trial is honestly a lot closer to real life, and could be a fun twist if you’re writing a mock trial fic.

Which , listen, academically speaking, mock trial was the highlight of my law school career. I absolutely love it. If you want to do a mock trial fic, PLEASE hit me up. I will gush about it.

While in law school, you can also get practical experience at clinics by helping real people in different areas. Here are Columbia’s clinics: https://www.law.columbia.edu/academics/experiential/clinics.

You can also do externships! Sadly, these are almost never paid. Here are Columbia’s externships: https://www.law.columbia.edu/academics/experiential/externships. Also, you don’t usually do internships or externships AFTER law school. So I choose to believe Matt and Foggy interned at L&Z in their 3L year.

Lots of law schools have something called “bar review” which just means everyone goes to a bar together and gets drunk. Clever, right? Yeah, law school is notorious for alcoholism. Actually, the whole legal profession is notorious for alcoholism.

At some point during or immediately after law school, you have to pass the MPRE, aka the ethics exam for lawyers. It’s a joke.

After completing 3 years of law school, next begins the worst month and a half of your life: studying for the bar exam. The bar exam allegedly tests minimum competence but that’s just dumb. The problem is, the bar tests many different areas of law even though you as a lawyer will certainly not practice in all of those areas in your life, and will certainly not practice all of them at once. Also, it’s dumb because most of the bar exam tests memorization, and although memorization is important, it’s far from the most important thing in the real practice of law. Unless you’re literally at trial or at a hearing, you can always look up a statute or cases; you don’t have to have it memorized. Here’s a breakdown of the components of the bar exam, including a fun (and by “fun” I mean “horrible”) schedule: https://www.newyorkbarexam.com/new-york-bar-exam-format/.

Anyway. The New York bar exam is widely known as one of the most difficult in the nation. It’s two days long. Oh, and results aren’t posted until 3-4 months afterwards (November if you take the July exam; May if you take the February exam). The waiting is torture. And the pass list is public, so everyone who knows you took the bar can see immediately whether you passed or not. Which obviously is not fun. If you fail, you can take it again. Downside: the bar exam is ridiculously expensive, both to take the test itself and to buy all the test prep materials because guess what, law school didn’t actually teach you all the absurdly technical things you’ll be tested on.

Actually, okay, look. If I’m being honest, I found the bar exam super fun, but that’s because I prepared well and don’t get test anxiety. It’s not impossible to have fun on the bar exam. Just…most people don’t. And the bar itself is still mostly stupid. Plus, you have to start applying like four months before you take it and the application process is huge and frustrating and made me cry.

Once you pass the bar, you are officially licensed to practice law in that state (or in any states with whom licensing is reciprocal). If you aren’t licensed to practice law…you can’t practice law. This includes giving legal advice of any kind to anyone.

Any kind of ethical infraction can be reported to the bar association in your state. For Matt and Foggy, that’s the New York Bar Association. If your misconduct is bad enough, you might lose your license and have to wait a while to try to get it back. Matt should totally have lost his license by now. So should Foggy, since ethical rules require Foggy to report known ethical violations of another lawyer (Matt). But anyone else could file a bar complaint against Matt and Foggy too, even including their own clients.

Even after law school, lawyers are required to take a certain number of credits of continuing education (referred to as CLEs). CLEs can be hyper legal-specific (“Here’s the breaking news in the world of patents and intellectual property law!”) or more about social issues (implicit biases, trauma-informed interviews, etc.). I haven’t done this yet, but a CLE could be a cool plot device for informing Matt and Foggy (and the readers) about some issue you happen to care about.

Day in the Life

If you’re wondering what our characters are up to on a normal day at the office, wonder no more!

A ton of legal work is reading. You have to read police reports, witness statements, depositions, affidavits, and motions and briefs filed by the opposing party. You also have to do legal research, which means reading statutes and case law.

Not technically reading, but lawyers also spend time reviewing other types of evidence, like pictures, video files, and audio files. (Sometimes this can be a hassle if technology decides not to cooperate.)

Generally, if you’re not reading, you’re probably writing. You might be busy writing questions for witnesses or an outline of an opening statement or closing argument, but the bulk of pre-trial work will be writing motions, replies, and responses.

Motions are documents filed with the court asking the court to do something. Replies respond to the other side’s motions. Responses reply to the other side’s reply. (I know that’s confusing.)

Three important motions to be aware of in a Daredevil fic are motions to: suppress, strike, and compel.

A motion to suppress is a motion asking the court to exclude evidence for Constitutional reasons: usually because the evidence was obtained in violation of the Fourth, Fifth, or Sixth Amendments.

A motion to strike is a motion asking the court to exclude evidence because the evidence violates a rule of evidence. For example, if the prosecution calls an expert to talk about the results of a test that was run (maybe a test to determine if the substance found with the defendant is an illicit substance), the defense will move to strike the testimony if the testimony violates Rule 702 (the standard for experts).

A motion to compel is a motion asking the court to force the other side to provide evidence. For example, the defense might move to compel the prosecution to provide statements made by the defendant.

Each motion will include a “fact” section (that lists the relevant facts of the case), a “standards” section (that sets forth the standard of review by an appellate court), and an “analysis” section that usually begins by outlining the law (statutes and case law) and then applies the law to the facts.

A lot of time spent in the office is spent outlining, researching, and drafting motions, replies, and responses.

Other time is spent discussing the case with colleagues. Other perspectives are always helpful for identifying holes in the case and more persuasive ways to argue the case.

Lawyers also will bring witnesses into the office to prep them (which basically means discussing with them the strengths and weaknesses of their testimony and running them through practice questions, particularly practice cross-examination questions). It’s important to note that prepping is not the same as coaching, which is unethical. Coaching is when a lawyer tells a witness what to say or what not to say.

CONCLUSION

Oh my gosh. I think that’s everything. Actually, I’m sure it’s not. I’ll be back to add stuff as I think of it. But for now, I hope this is helpful. Again, let me know if you have questions or want to know more about specific things, and I'll try to keep updating this as I think of other tidbits.

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

In which Luke and Mara repeatedly safe each other from peril while their friends wait for them to realize they're in love.

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

Hi it's me, projecting onto The Blorbos again.

[doomsday-dj]

There was recently a copyright infringement case in YA and I need everyone to know that the following sentence was in the legal decision:

“Hot, sexy, dangerous boys, central to virtually all young adult romance novels, cannot be copyrighted.”

[kuttithevangu]

“Regarding setting, the court held that both works taking place in Alaska high schools was not protectable because Alaska is a public place and setting a teen novel in a high school is a common genre convention.”

Freeman v. Deebs-Elkenaney | Loeb & Loeb LLP

Freeman v. Deebs-Elkenaney | Loeb & Loeb LLP

[bitt-better]

Oh my god

[ceterisparibus116]

I.

I have no words.

[kdheaven]

D23 Inside Disney | Daredevil Season 2

[ceterisparibus116]

He is so. Skrunkly.

[olympain]

Charlie Cox and Krysten Ritter on set of DD:BA S2

[ceterisparibus116]

THEM

whatever else happens, at least they are having fun together <3

[caito-does-stuff]

peter looks absolutely miserable in the new trailer we're so back guys

[ceterisparibus116]

we're so back

[bullseyelover]

2017 2027

[ceterisparibus116]

MY BOY

[pryvatecourt]

Charlie Cox will be on Hot Ones Versus with Vincent D'Onofrio, episode premiering on Tuesday, March 10

[ceterisparibus116]

PSA!

[nkp1981]

Daredevil wanted posters spotted in New York, March 2026

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

In which Wedge makes sure Luke is thoroughly bundled.

Aka my take of the classic Sunshine Desert Boi Can't Acclimate To Hoth fic.

[ceterisparibus116]

So I think it's important to acknowledge that, per the novelization of A New Hope...

Luke Skywalker canonically knows what a panda is.

But wait, there's more.

HE KNOWS WHAT A CAPYBARA IS.

But.

But.

But but but but but.

He does not know...

...what a duck is.

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

I love Luke and Han so much I'm crying in a corner.

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

In which Luke grapples with the aftermath of Bespin.

So I almost passed out at work and decided to project all the subsequent feelings onto Luke. Y'know. As one does.

[ceterisparibus116]

An Archive of Our Own, a project of the Organization for Transformative Works

Heyo my Vader Lives AU just hit 30k words!

In which Han and Vader...bond. Sort of?

[kdheaven]

god i love when they work together 😭❤️

[ceterisparibus116]

Top tier dynamic.

[halfbloodcat112]

Cut Man whump moment that people don’t talk about enough

Everyone talks about the hallway fight. Everyone talks about the collapsed lung. But this, THIS, is the moment that wrecks me every rewatch.

Right after he finishes interrogating the Russian, just before he goes to rescue the kidnapped boy. Matt is already hanging on by a thread. He turns and that tiny, involuntary “ah” slips out of him, and it betrays everything. He’s in severe pain. But when Claire shows concern, his first instinct is to push her away, physically and emotionally. Classic Matt.

Watch his breathing: shallow, careful, like every inhale is a negotiation with God. Watch how he hunches, how his hand hovers near his ribs, how his movements get a little sloppy. Those ribs are shifting. Something sharp is digging into his chest. Every breath probably feels like shattered glass. And he’s still standing there in that stupidly tight black shirt, stubborn and bleeding and unbearably hot about it.

This scene is not loud whump. It’s quiet, desperate, body-language whump. The kind that crawls under your skin and stays there.

[ceterisparibus116]

YES.

...And is mirrored by the way she pushes him away when he first tries to comfort her in the garage.