William L. Prosser, the torts scholar of whose name any 1L is familiar, said that law is “one of the principal literary professions. One might hazard the supposition that the average lawyer in the course of a lifetime does more writing than a novelist.”
Although, from all the court documents I have reviewed in my job as an attorney editor at a legal publishing company, I would say that many lawyers are guilty of pleonasm and could learn to be far more concise. Lawyers would be better off spending their free time studying the sparser pages of Hemingway and Faulkner rather than the prolific, verbose pages of Pynchon and George Eliot.
Jessica Silbey, in her article “Images in/of Law,” in the New York Law School Law Review, notes that, exactly as novelists, “lawyers and judges are word people … We might use chalk to diagram a room or a chase. We might use photographs to identify suspects. But the nuts and bolts of law study and practice are words, not pictures … lawyers and judges (ironically enough) believe images are less precise than words. We are uncomfortable with the maxim that ‘a picture is worth a thousand words.’ Which words? And how can I shape them, direct them, cross-examine them?”
The narrative of a complaint or judgment is itself an act of storytelling.
Exhibit A: Harper Lee, John Grisham, Erle Stanley Gardner, Scott Turow, Richard North Patterson, Wallace Stevens, John Buchan, Louis Auchincloss, William Landay, Theodora Goss, Robert Traver, Lisa Scottoline, David Baldacci, Ovid, Seneca, Giovanni Boccaccio, Petrarch, Michel de Montaigne, Francis Bacon, John Donne, Henry Fielding, Voltaire, James Bostwell, Johann Wolfgang von Goethe, Washington Irving, Walter Scott, Honoré de Balzac, Benjamin Disraeli, Victor Hugo, Thomas Carlyle, Henry Wadsworth Longfellow, William Makepeace Thackeray, Charles Dickens, Gustave Flaubert, Robert Louis Stevenson, Henry James, Marcel Proust, John Galsworthy, Franz Kafka and Louis Auchincloss.
These are all authors who either practiced law or studied law.
Law and lit are wed, for better or worse, through their common medium of words. Indeed, “poetry and law have risen from the same bed,” wrote Jakob Grimm (yes that Grimm, the author of Grimm’s fairy tales, who was also the son of a German lawyer and himself once a law student).
American lawyer and poet Archibald Macleish, once an official librarian of Congress, further argued: “The business of the law is to make sense of the confusion of what we call human life — to reduce it to order but at the same time to give it possibility, scope, even dignity. But what, then, is the business of poetry? Precisely to make sense of the chaos of our lives. To create the understanding of our lives. To compose an order which the bewildered, angry heart can recognize. To imagine man.”
The words of literature compliment the words of law in that the creative framework of poems, novels, and plays offer a way to, as George Washington University Law School professor Daniel J. Solove puts it, “examine the law from a humanistic and philosophical perspective.”
And before I ramble too far myself, I’ll briefly recite my closing argument:
We lawyers, judges and law students are Word People. We read, we write — words. Our profession consists of creating clarity out of ambiguity by analyzing and arguing words. Words, words, words! This reminds me of the warning I received from multiple attorneys I talked to before deciding to go to law school — that I had better love reading and writing, because there would be no end of it!
Ami C. Janda works as an attorney editor at a legal publishing company in Eagan.