Creative Lawyers and Judges
By Christopher G. Moore
Most writers are asked about their prior jobs. When I say my job was a law professor and lawyer, they follow up by asking whether law training helps or hurts you as a novelist. The creative aspects of law practice before a judge features in this excellent article by Maksymilian Del Mar: The Legal Imagination.
Having been on both sides of two creative cultures, and that has given me a slightly different perspective from Del Mar. Here are my thoughts. Lawyers (specifically trial lawyers) and judges can show flashes of creativity in interpreting another’s story so that it fits better than his rival’s story. Both litigants desire outcome permitted by law and they often have very different stories about the same events or circumstances. No doubt that takes creativity to shape a client’s story into a convincing, compelling narrative that blows the other’s story out of the water. You’ve seen the films or TV show where this happens.
Okay, if lawyers are so creative, why aren’t most novelists by training lawyers? The reality is most lawyers couldn’t bother to write a novel. But I understand a fairly sizeable number do write that novel. It’s a bit like Fermi’s paradox about extraterritorial life. If they are out there, why don’t they contact us? One explanation is the class of lawyers who write that novel on the side, with a their little makeshift altar/shrine complete with John Grisham’s picture, can’t write a publishable novel. Their novels may circulate as ebooks but they become lost (rightly or wrongly) in the deep space of indifference where most mediocre stories go to die.
I have a theory why that is the case. Like all theories, it is subject to be falsified. Here it goes. A novelist must possess the skill and talent to invent an original, believable cast of multilayered characters, each with their own demons, dreams, loves, betrayals, bitter experiences and aggression. The fiction characters exist in the writer’s head but they move through their tangled of conflicting invented stories as if they are real people in real situations. The novelist invents them, he transcripts them, he allows them to vent their feelings, doubts about their lives, the significance of events, along with smells, sights, and touch all have to be forged into words. In terms of the legal world’s thinking the writer, in effect, becomes his own client.
Every lawyer is told from day one that only a fool is his own lawyer. That’s the poisonous little seed of contempt that lawyers are taught about thinking he can be both client and lawyer. The lawyer, like the judge, waits until someone comes to them with a story and conflicts with someone else’s story of why I was injured, cheated, beaten, extorted—you get the picture. Their stock in trade of the trial lawyer is his positive, creative spin on the evidence that supports his client’s case.
The judge’s verdict decides whose story is the most reasonable and supported by the evidence. You can have some creative fun going through the evidence but the reality is the judge doesn’t make up the characters or the evidence, or set the scene in the distant future or past, or explore other aspects of the litigant’s lives; he only cares about the evidence that comes before him. Inevitably in the legal world there is a distinct winner and loser. In the fictional world, things can be much more uncertain and murky.
It is precisely this attitude about being his own lawyer that terminates his creativity beyond his office or chambers. His cardinal belief isn’t of much use to him much as a novelist where readers demand creativity unearthing quirks of fate, coincidence, and doubt that shape a character’s motive or intention. Courtroom dramas compress life. Like a jpeg it is useful to compress information unless it is totally relevant. It allows the judicial system to work. It excludes the irrelevant. Like any system of law creativity is the lifeblood that keeps the lawyers and judges relevant and useful.
In my view, the manacle of relevance chains the lawyer and judge to his armchair consideration of what happened. No novelist would ever make that mistake.
In the end, yes, lawyers and judges are creative. But does that give them advantage as a novelist? I argue that creativity of law practice (unless you are representing Wall Street bankers) is the kind of creativity process that fails to produce publishable fiction. The novelist isn’t constrained by waiting for a case to come in the door, and what goes through his or her mind is from all of the evidence what is relevant. The rest gets thrown away.
While, the novelist goes out the door and finds the case somewhere in the street or alleyway. He or she is always bumping into things. Irrelevance things that enhance fiction such as way a shadow falls over a face at sunset. Creativity for fiction is a very different process. The rules of evidence don’t apply. But I know whom I’d like to follow into fictional territory, where it is the irrelevant, irreverent side road keeping far away from the expressway to relevance. That’s the road filled with serendipity: and where the best creative pearls are found are never where you think they’d be found.
Christopher G. Moore