Sunday, December 7, 2014

SEALED FILES: Plot Twisting with Kara Piazza, esq.


Hand-folded letter sealed with wax and stamped...
. (Photo credit: Wikipedia)
Today, I am sharing with you an interview that I needed in order to write part of a plot point in my novella, Mine.

I sought the expertise of writer/lawyer Kara Piazza. First, since Kara is a very thorough lawyer (which we love) please read the disclaimer:

DISCLAIMER - This is a non-political site that is geared to help writers write it right. I am presenting information to help develop fictional characters and fictional scenes. In no way am I advocating any position or personal decision. All Kara's answers will be general and she cannot give specific legal advice in such a broad setting. She can give general statements and also it should be known that there are many nuances and exceptions in the legal realm so even the answers she does give might not always be the outcome in every legal situation.

Fiona -
Hey there, Kara, thank you so much for stopping by and helping today. Would you take a moment and introduce yourself?

Kara -  
I attended DePaul University College of Law (Chicago, IL) with my Juris Doctor degree. I then sat for the bar exam in Phoenix, and I am now a licensed attorney in the great state of Arizona. 

 In order to be permitted to practice law you must attend and graduate from an ABA (American Bar Association) accredited law school. You must take a number of required courses including Civil Procedure, Constitutional Law, and Torts (to name a few). Then you
are allowed to choose which courses
you would like to take. 

 I chose to take courses that emphasized litigation (in court proceedings) and business law. I have a little over a year experience in the prosecutor's office where I spent much of my time in the courtroom.

Fiona - 
ThrillWriting is so pleased to have you and your expertise here today. One of the topics that I find confusing when it comes to reading about courts is the FILE. Is a court file available for public scrutiny? If yes, how would someone go about obtaining one?

Kara - 
Generally speaking, court files are considered public records once the court clerk has officially filed them. 

It may be different from place to place, but from my understanding, most places you can obtain copies of the records through the clerk's office at the courthouse where the case was heard. It may be called something other than clerk's office at different court houses, for example some might be called the recorder's office instead or variations of those two words. 

Usually, there is someone in the courthouse that can direct you if you tell them you would like access to a public file. Some clerk's offices will have a database that you can search (which is often cumbersome and not very user friendly) and some places you will have to tell the clerk's office what file you want. You will need the date the case was heard and/or the names of the parties involved. Generally, they use the last names (if the parties are individuals) or company names (if the party is a corporation).

Fiona - 
So these files have all the information in them for example, the victims name and address? The names and addresses of the witnesses? What about social security numbers, phone numbers, email, and so forth.

Kara -
Ok, so there are rules for the way things work in court. In law school we study what are known as 'Federal Rules of Civil Procedure' (FRCP) which gives us the rules of the game so to speak. These rules are binding in Federal Courts and most State Courts adopt their own set of rules but many are similar if not exactly the same as the FRCP. 

There is a FRCP that states that sensitive information like social security numbers, Tax ID numbers, birthdays, account numbers even the name of minors, should be redacted from the public file. This is as close to a black and white rule as you're going to get though again there may be exceptions where the court or parties may choose not to have this information redacted. With this information redacted, the rest of the file is then placed in the public record.

Fiona - 
Okay good - but a perpetrator who gets off on a technicality could find out the address of the victim? Her employer? I'm just thinking how exposed a character might feel to have the villain "knows her stuff."

Kara - 
That is the kind of information a judge would "seal" especially in situations of people that have previously been victimized by the defendant or if they can show the judge that such information could be dangerous if not kept out of the public record. 

However, both attorneys generally have access to the information and there have been instances of unethical attorneys passing on sensitive information like that to their clients even though they were not supposed to. 

If the court "seals" a file though, most times such information is kept away from such perpetrators (again generally speaking). For the sake of drama for a story, it is possible for a court to decide the information is not worth "sealing" and it is also possible for the information to slip out if it is sealed. But under our rules of ethics it's a huge no-no.

Fiona - 
Is it true that juvenile cases are sealed when they are 18?

Kara - 
Generally speaking juvenile cases are sealed.

Also, I should note from my answer on juvenile records that some states automatically seal those cases but some states don't. The states where they don't, the juvenile (once they reach the age of maturity, or sometimes they have to wait a few years after) can ask to have the file sealed and the judge takes into consideration a number of factors like the age they were when the crime was committed, what the crime was, and others.

Fiona -
What if it is not a criminal case - it is a civil case - If I was suing Mr. X for killing my man would that fall under the same sealing regulations? "I want his money for depriving my of my husband's income - but you can't know who I am?" 

Which leads me to a second question: do you have to tell your name in court in front of the accused can you be called "Jane Doe" for safety reasons?

Kara -
A defendant has the right to know his accuser so the person who files against them must be named. In cases such as child abuse, the accuser is typically the state which is why the children's name is usually replaced with just their initials. For witnesses, it can be a different story, here is where you can get away with using "Jane Doe" if you can convince a judge that it's necessary. It is generally left to the judge's discretion.

The court can seal both criminal and civil files. And right, that is a very common scenario for informants to be kept confidential with the use of the name "John/Jane Doe" for that specific reason.

Fiona - 
Right because - who wants to come forward and rat on the gangbanger, and then find his homies standing in her living room the next day?

What are other reasons that a file could be sealed - my thoughts are going to the government secrets - the military... ?

Kara - 
Reasons a file might be sealed. 
1. Birth records for "closed adoptions." 
2. We've already mentioned witness protection and child abuse but sometimes custody cases might be sealed as well to protect the infant (under 18 in legal lingo) 
3. Trade secrets are another biggy. And then of course 
4. What you're looking at state secrets. 
**This list is not exhaustive but these are usually the big ones.

Fiona - 
What did I not ask you about sealed files that you think we should know?

Kara - 
Hmm that's a good question. I think that the law is extremely unpredictable. 

In cases of record sealing, the judge is granted a lot of discretion. If you are wanting the information to be leaked (for dramatic effect or plot advancement) it is possible, and it is also possible that the judge will decide not to seal it in the first place. 

The right to face your accuser is a heavy burden to overcome and sometimes a judge will decide that the perceived threat against someone's safety is not enough to overcome this burden (or maybe the judge thinks there is no threat at all). It's such an uncertain thing but I think that is helpful in writing, it can really add to the drama and suspense.

Fiona - 
And finally, your favorite scar story. . .

Kara -
Haha I could probably write a whole book about it!
I have a Y shaped scar on my forehead from when I was a senior in High School. I went to a small school, and it was the first year we had a football team so for homecoming, the junior and senior girls did a powder puff flag football game. 

I'm super competitive so when we were playing, I was going all out. The final play of the game, I was running towards my opponent who had the football. I was reaching for her flag, when she slipped past me, and I realized too late that my teammate and I were on a collision course. I remember waking up a few moments later, lying on the ground, forehead bleeding profusely with my hand triumphantly clutching the flag. My teammate was bleeding next to me in the grass, moaning. 

The circle of people standing over me was swaying as I tried to focus. "How many fingers am I holding up." One of the teachers asked. "She wouldn't know that anyway," my friend quipped helpfully. The teacher rolled her eyes and asked, "Do you know where you are?" To which I replied, "I'm pretty sure this is hell." Another eye roll, and I was asked, "I need to make sure you don't have a concussion, do you know who you are?" At which a smile spread so wide across my face, I felt it in my head wound. "I'm batman."

Fiona - 
Okay, Batman, you obviously love drama - can you tell me about the novel you're working on?

Kara - 
I am currently working on a YA novel series. My first novel will be the Seeker Initiative. I am nearly finished and then will be querying literary agents with the hope of being published in the traditional manner. 

My novel is about a young girl named Alitheia Seeker who is faced with a very difficult task in the year 2215. The world has been enslaved by a powerful, tyrannical group called the Static. However, a more pressing problem exists: no one seems to know who these mysterious people are and most of the population doesn't even know that such overlords exist. Alitheia must decide whether to free the minds of every adult on the planet and risk an untold number of deaths, or ignore the disappearances and deaths of anyone who disagrees with the tyrants and leave the world at the mercy of these rulers. Alitheia and her friends are put in danger when they begin to ask questions the Static has worked so hard to suppress for over a hundred years. Overwhelmed by the answers they are finding, the young friends get help from an unlikely source, a group of black market traffickers. Known in secret circles as the AT, these renegades offer to join forces to bring down the Static. Just as it seems hope has arrived, the teens start to wonder if the traffickers are giving them better solutions or just a different set of troubles in disguise. Do you have the courage to ask the difficult questions when no one else is willing? If so, you might have what it takes to join the Seeker Initiative.

Fiona - 
Very fun! Best of luck. Thank you so much for your help. You can reach Kara at: Her Blog and on Facebook.

And thank you for stopping by, I love having you here.


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