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Grappling With Story; or, Climbing into the Skin of Another: Applying Literary Truths to the Black Letter of Law

In Arts & Letters, Creative Writing, Law-and-Literature, Legal Education & Pedagogy on July 19, 2010 at 12:35 pm

Jonathan Board lives in West Virginia with his wife and two children.  A graduate of West Virginia University College of Law, he has also attended Harvard Extension School, Fairmont State University, Bob Jones University, and Witherspoon School of Law & Public Policy.

“A literature class?  In law school?  Are you sure you want to spend your time and money on that?”

Thus spoke my perplexed supervising attorney.  Weeks later, as I reviewed the syllabus for Law & Literature, his words haunted me.  The names on the syllabus ranged from Komie to Tolstoy to Melville to Kafka.  Of course, “the list” (as it was to become known) was much longer and full of colorful personalities, but, at least in my mind, most of the readings seemed like odd studies for law school.  Nevertheless, I was in my last semester, and I simply could not look at another case book.  So, on a cold January day, I clambered up icy, ugly, gray-yellow steps, found my classroom and a seat next to my best friend (who had strongly encouraged me to take this course and whose judgment I now questioned), and I began to discuss literature, a thing I thought I knew little about.

The “list,” for me, was daunting.  I’d never taken a graduate literature course, and I was several years removed from my college English courses.  I felt like Abraham’s son, Isaac, about to be slaughtered, except that there was no ram in the thicket and I wasn’t submitting to a father’s trembling hand but to a law professor’s pen and grade sheet.  My fears were abated, to a degree, when the professor walked in.  I’d heard that this man, Michael Blumenthal, had taught at Harvard and published works in many genres.  I was both excited to sit in his classroom and nervous about embarrassing myself in front of him.  I didn’t know it then, but Blumenthal, whose kindness was contagious, would make a lasting impression.  He encouraged me—us—to devour the works on the list and to apply those works to personal experiences with the law.At first the list seemed like a casserole of incompatible ingredients, but as weeks went by, I realized that it wasn’t a casserole at all.  It was a road, a path, a journey.  Actually, it wasn’t one road but many.  My classmates and I were exploring new terrain, occasionally crossing paths, sometimes stopping at the same intersection.

We began by reading J.S. Marcus’s Centaurs, a work that reveals, among other things, that lawyers sometimes have a private life but not a personal one.  Our next reading was Lowell B. Komie’s enjoyable book of shorts, The Legal Fiction of Lowell B. Komie.  Komie’s stories portray disenchanted attorneys coming to terms with a rambunctious and oft-depressing legal profession.  Our next reading was Scott Turow’s One L.  Anyone with aspirations in law should avoid reading One L immediately after reading Komie’s stories.  That combination will give the impression that lawyers, while not irredeemably wicked by nature, are more wicked than most.  

And so it went.  Week after week the list took on a life of its own.  Blumenthal tweaked and altered it to his will.  He created an aura of discovery, something that’s sorely missing in most law school classes.  Most if not all of these works conveyed a social tension between individual autonomy, moral values, and the law and/or lawyer.  Torn between a dehumanizing profession and their conscience, many characters struggled with existential angst.  Some, for vastly different reasons, were more memorable than others—Bartleby the slothful scrivener, Mateo Falcone and his selective justice, Frederick Marcus and his childish recreations (flying kites and the like), and the strong-yet-vulnerable Alicia Beauchamp.  These characters, provocative as they were, became starting points for deep discussions about the law and its attendant notions of morality.  In the last few weeks of class—indeed, of my entire law school tenure—I realized that these discussions about law and morality were more meaningful than the run-of-the-mill public policy debates that came and went in other courses. 

We read so many works in this course that I can’t possibly discuss them all, so I’ll stick with discussing two of the most profound: Bernhard Schlink’s The Reader and Harper Lee’s To Kill a Mockingbird.  These works show, I think, how literature can affect the practice of law, for better or worse, and how fictional characters can enhance our understanding of the law and help us to make sense of the trying experiences that our clients are going through.

 I. Reading “The Reader”

It doesn’t matter what I think.

It doesn’t matter what I feel.

The dead are still dead.

                                                            —Hanna Schmitz

I watched the book soar through the air, against the backdrop of my office bookshelf, and I cringed. 

I had tossed The Reader, on an impulse, towards the window, and only as it hurtled toward the glass did I realize that never had a book aroused such feelings of anger in me.  The book crashed, fortuitously, against the wooden window frame, and as it came to rest on the floor, I felt a strange sort of respect for it.  I picked it up, brushed it off, checked its binding, and placed it on my desk.  There it sat for some time as I simply stared at it, refusing to read it, but at the same time refusing to withdraw from its presence.   

I thought about the only other time I’d thrown something in anger.  Once, as a child, my older brother had provoked me to the breaking point, and I hurled a rock at him in retaliation.  Thinking about this moment actually revived that long-ago anger if only for a second, and then I laughed aloud, relieved and somewhat delirious at the absurdity of my current frustration, which emanated from this little bounded bundle of paper with words printed on it.  I picked up the book and continued to read.

Part One bore the brunt of my anger.  I simply could not understand why Schlink felt compelled to depict several graphic rape scenes (yes, that’s right—rape scenes, because under most legal codes, sex with a minor, even if consensual, is rape).  Most purely physical relationships fail, either because there is nothing beyond sensual desire, or, more commonly, the couple realize that they have nothing to share but fleeting physical urges.  At first glance it seems as though Michael and Hanna fall into the latter class, but something truly amazing happens that prevents their relationship from destruction; they find commonality through their shared love of literature.  Making this connection even more astounding is the fact that Hanna is completely illiterate; yet perhaps it is her inability to read that gives the bond strength—otherwise, she, being the older of the two, would hold a position of power in all areas of the relationship.  Because of her reliance on Michael, a quasi balance is struck—one in which both parties rely upon the other to meet their desires.  But just as things become balanced, Hanna departs unannounced.

Part Two gives us some insight into Michael’s legal tutelage.  Schlink touches upon the traditional employment of the Socratic method and seminar style of legal study.  It is in this setting, many years later, that Michael encounters Hanna once again.  This time, Hanna is not his lover, but a defendant in the court system.  Michael learns of Hanna’s previous life as a Nazi.  Having sought out the position of prison guard at a concentration camp, she took part in the atrocities that occurred within that camp, including the burning of a building full of people.  Now with the war over, Hanna, along with her former colleagues, stands accused of human rights violations.  As a student and visitor at the trial, Michael realizes that Hanna and her co-defendants are also victims of a system of cruel ideology.  The most disturbing fact of all is that Hanna and her colleagues are human.  How could humans commit such inhumane acts?  How could anyone as sensitive as Hanna, who loved great literature and wept at its reading, inflict such pain and suffering and death? 

Micheal becomes a conflicted observer—with no power to help this woman he both hates and loves.  He insists, despite himself, that he feels nothing for her, “nothing at all.”  But if he feels nothing at all, he would not be so tormented—indeed traumatized—by the events unfolding before him. 

Eventually, a prosecutor questions Hanna about incriminating hand-written documents attributed to her, but instead of exposing her illiteracy—and in the process insulating herself from criminal liability—she claims that she not only signed but also authored them.  Michael knows that this claim isn’t true—that Hanna is innocent.  She cannot read or write, after all, and therefore could not have authored the document.  She would rather be committed to prison for life than expose her lack of learning and shame herself. 

I recently interviewed a witness in an area of West Virginia that locals call “the sticks.”  Upon arriving and being greeted by a pack of dogs—who challenged me to a biting and kicking match—I walked into a little mobile home and was greeted by a heavily pregnant, nineteen-year-old girl.  She was the witness.  I asked her to read several statements that she had made via telephone.  She replied that she couldn’t.  “My meds is messin’ with my eyes,” she said. 

I found this a strange and only barely plausible excuse, but I nevertheless read her statements to her.  When I finished the interview and began packing up, I asked her to sign an affidavit.  She called in her teenage-looking “boo,” who helped her grasp the pen and trace her name on the document.  Confused, I asked if her medication also bothered her hand.  She looked at me and said, “ I cain’t read ner’ write a darn!”  My thoughts drifted to Hanna Schmitz.           

I can appreciate wanting to hide the inability to read.  I was born with a strain of autism that manifested itself as dyslexia.  I remember being a small child in school and pretending to read the simplest cat-in-the-hat-style of book, mouthing words that were not there, and hoping nobody would notice.  I even pretended to come up with my own special alphabet simply to cover my disease.  Were it not for my parents’ dedication, I might have carried this secret to my grave.

When I read about Hanna’s trial and her illiteracy, I shuddered more than a few times.  And when Hanna was asked to give a writing sample—in that pivotal moment of the book—my childhood fears came rushing back in a dizzying way, nearly haunting me.  All of a sudden I was back in that school-house, afraid of being called on to read aloud, afraid of having to write something publicly.  Although my life never hung in the balance because of dyslexia, I could still relate to Hanna, who was willing to surrender her life and not expose her painful secret.  It is not an issue of pride but of guilt—of grappling with fears of inadequacy and inferiority.  Yes, I was saddened by Hanna’s dissimulation, but I was also relieved on her behalf.  She kept her secret.  She won.         

I don’t mean to suggest that Hanna’s actions as an SS guard were anything less than wretched.  But I do think it’s telling that some of the worst evils the world has ever known emanated from “common” folk and not just from ideological zealots and political tyrants.  Hanna had several opportunities to do the right thing but she chose not to simply because she was following orders.  Her illiteracy neither excuses nor explains her part in mass genocide.  But for this reader at least, it made her human and recognizable.  It also made evil all the more terrifying, revealing as it did that evil is not always obvious, that not all moral questions are easily settled, and that bad things often poison the people we love.

 II. Of Songbirds and Mockingbirds

 You see, you never really understand a person until

you consider things from his point of view… Until

you climb into his skin and walk around in it.

                                                            Atticus Finch

When my Great Uncle Charles, whom I call “Uncle Chuck,” found out about my intention to enter law school, he said, “You had better read To Kill a Mockingbird.”  I told him that I had watched the film and read the book, which was only partially true, since I had only read excerpts.  “I’m sure you have,” he said, “it’s a classic.”  “But,” he said, “you read the book and watched the film as a child, not as a future lawyer.  Do yourself a favor and read it again.”  I assured my uncle that I would, but it wasn’t until this class, during my third and last year of law school, that I did.

My best friend is something of a Harper Lee aficionado.  His grandfather grew up with Lee, he reads To Kill a Mockingbird at least once a year, and he has a dog named Atticus.  Interestingly enough, he was sitting right next to me in this class.      

To Kill a Mockingbird takes place during the Great Depression in a small Alabama county called Maycomb.  Maycomb is quiet and happy for some but harsh and cruel for others.  At the heart of this novel are the themes of social inequality and plain human decency. 

Language is a unique and beautiful thing, and the citizens of Maycomb, like the citizens of many regions in this country, speak with a special dialect.  I found myself re-reading certain passages to make sure I’d read what I thought I’d read. 

Dialect is such a part of this novel that even Atticus and his children have to listen closely to what others in the community are saying.  There are, after all, different sub-categories of dialect in the town—from twang to drawl. 

As a native West Virginian, I can relate to this aspect of Maycomb.  I remember my first year clerking with a nearby criminal defense firm and arriving for the first day of work.  My supervising attorney—the only attorney in the office—asked me to conduct several witness interviews.  I began by telephoning witnesses but quickly realized that I simply could not understand what these witnesses were saying, despite the fact that I was born and raised right down the road from them.  Their accent was so strong that I had to guess what words had issued from their lips. 

Sometimes I think my fellow West Virginians have a pride about their state that is trumped only by Texans’.  Much like the people of Maycomb, we have a certain jargon.  There are, apparently, some extra-unique jargons common to extra-small communities here.  Some of these are foreign even to me.  That’s why I prefer to carry out my legal duties in a face-to-face setting.  I can witness the non-verbal aspects of communication—the hand gestures and facial expressions, the nods and sighs, even the occasional tear.

Feuds are widespread in legal practice.  In fact, you might say that they’re the essence of legal practice.  Not all feuds, however, are as freighted as the one in To Kill a Mockingbird.  This feud arises when Atticus takes on the role of defense lawyer in an unpopular case.  He represents a black man accused of raping a white woman, subjecting his family to community scorn and even to physical altercation.  Atticus knows that these troubles will follow from his decision to defend Tom Robinson, so why does he accept the case?  I would submit that it’s because of courage and principle—the conviction, to borrow some words from the novel, to do the right thing “when you know you’re licked before you begin, but you begin anyway and see it through no matter what.”  There are times when, as lawyers deciding to take on clients, we know that failure is not only obvious but also inevitable.  It’s not always practical to operate on principle.  And sometimes deciding what is the right principle is not cut-and-dry.  Is it right to lead a client into expensive litigation, for instance, when you know his case is doomed even if you believe his case is morally right?

When one of Scout’s peers ridicules Atticus, Scout defends her father and starts a fight.  Later, when Atticus talks to her about this episode, Scout asks him why so many people are angry, and Atticus says that their anger has to do with his decision to defend a black man.  He adds that, even though he knows he will lose, he can’t expect Jem or Scout to respect him if he refuses the case.  His courage and principle are therefore bound up with his notions of fatherhood.  Whether she understands it or not, Scout, by defending her father, proves Atticus’s point—she does what she believes to be right even when the outcome is uncertain and failure is likely.

Having grown up in the region of the Hatfields and McCoys—families that continue to feud—I know a thing or two about community conflict.  I know what it’s like when two or more parties divide a whole town—and also how anger can transform a decent lawyer into a narrow-minded fanatic.    

To Kill a Mockingbird demonstrates how ideology can become ossified as law.  The transformation of Maycomb from a quaint, quiet community to a place that fails to prosecute lynch mobs and that instead prosecutes innocent men, is an amazing one, driven not by any one cataclysmic event, but by several instances of misconduct exploited by a few ignorant ideologues (like the Ewells) in the service of immoral dogmata.  The system of prosecution misuses law as a defensive and not an offensive mechanism.  The community of Maycomb accepts this misuse because it works against a black man.  Justice may be blind, but injustice is not—it sees Tom Robinson as a black man and nothing more, and it punishes him for the color of his skin.  The relationship between pure justice and communal notions of morality is often fraught.  Sometimes popular opinion shapes the law for the worse; sometimes law adapts to a dynamic nature of justice.  Atticus deals with these competing and complicated visions without resorting to abstractions.  He simply says that people like the Ewells are “entitled to think that, and they’re entitled to full respect for their opinions . . . but before I can live with other folks I’ve got to live with myself. The one thing that does not abide by majority rule is a person’s conscience.” 

It is his conscience that makes Atticus a compelling character.  For all of Atticus’s resolve, strength, and wisdom, however, it is Scout’s innocence that proves to be the more powerful—able to move grown men to tears and to lead lynch mobs to their homes and families and possibly even to human decency.

I’m referring, of course, to the scene on a cold autumn evening when Atticus guards the jailhouse holding Tom Robinson.  Scout, Jem, and Dill sneak out of the house and run downtown to see what Atticus is up to, and Atticus sits on the jailhouse steps, alone and reading the newspaper.  A lynch mob materializes and clamors for Tom’s life.  The children rush to protect Atticus, and the lynch mob grows even more hostile, but all of sudden Scout recognizes one of the men in the mob.  The man is the father of Scout’s classmate, and Scout singles him out and asks him questions, unaware of the danger she is in.  Singled out from the crowd, the man returns to his senses and drops his savage communal wrath.  The men in the mob become softened at Scout’s innocence—at her failure to realize what is going on, at her ability to recognize people for what they are: people.  She steps between the mob and her father and tells the man to “say hey” to his son, Walter.  This comment quells the angry crowd, which disperses without incident.  The eight year old hero skips home without understanding what has transpired.  I consider myself emotionally controlled, but when I read this passage, I could not hold back tears.    

Just days after reading To Kill a Mockingbird, I presided over a compulsory mediation in Family Court.  The dispute arose because two parents refused settle on a proper parenting plan.  Neither parent wanted to concede any ground to the other.  Blinded by their anger towards each other, these parents, rather than considering the best interest of their daughter, used their daughter to hurt each other.  They tried to force their daughter to pick favorites; they tried to praise their daughter to gain her favor.  I realized that the mediation had taken a wrong turn and was about to send the parties back into “the system” for a cookie-cutter, judge-ordered opinion, when the sniffling daughter decided to speak up.  She walked over to her mother first, whispered something inaudible into her ear, then hugged her.  Then she turned to her father and did the same.  Both parents started crying.  I’ll never know what this little girl said, but the effect of her words was nothing short of a miracle.  Fifteen minutes later, her parents had agreed on a plan that protected all of their interests. 

At the end of my semester in Law & Literature, I realized I had made a journey.  Sitting here writing about this experience has only confirmed this fact to me.  I may not have arrived at any grand conclusions or life-changing revelations, but I have come to appreciate the complexities of life and of law.  I have become more reflective at work and at home.  If literature has any relevance in a law school setting, it is because of these kinds of changes.

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