This article appeared previously in Hennepin Lawyer.
Novelists must carefully scrutinize their characters to discover their struggles, motivations, and secrets. Playwrights rely on actors, directors, and stage managers to convey their stories. Photographers use images to tell stories that words alone can't impart.
What does this have to do with law? As a novelist, playwright, and litigation attorney, I am often struck by the similarities between these areas. Lawyers use the tools of novelists, playwrights, and photographers to tell our clients' stories. Even lawyers who rarely see the inside of a courtroom draft contracts and briefs, work with clients and colleagues, and use visual aids to advocate on behalf of clients. Whether you try cases before a jury or draft contracts for corporate clients far from a courtroom, the practice of law incorporates the wordcraft of the novel, the drama of theater, and the simple power of the photograph.
Lawyer as novelist
Think about the last great novel you read. Consider how the author created the narrative arc, and the main characters' sense of place and purpose. Now think about the questions the author asked before writing the first word of that epic novel.
What drives the central characters? What external events affect them that are out of their control? Who is their enemy? What is the conflict that drives the story? And what are they hiding that you as a reader must determine for yourself.
Atticus Finch wanted to protect his children and defend Tom Robinson. Atticus, Jem, and Scout had to confront not only a racist society and fearful, vindictive neighbors, but their own prejudices and misconceptions about their mysterious neighbor Boo Radley. And everyone who reads To Kill A Mockingbird must reach their own conclusion about what drove Atticus to risk his life defending the doomed Tom Robinson. Was it a deeply rooted sense of justice, or an equally rooted sense of guilt? Atticus never tells us why, which only adds to the brilliance of the story.
Lawyers must ask these questions of their clients. Is the objective purely financial, or is there something else? What relationship do you want to have with the other side after this dispute is over? What else is driving this conflict that you have not told me? These questions apply to every legal problem: drafting a contract, litigating a nasty family dispute, or resolving a multimillion-dollar patent case.
Lawyer as playwright
While novelists work alone, the playwright needs actors and directors to bring the words to life. Similarly, lawyers are sometimes the playwrights and often the directors of dramatic legal proceedings, and the actors who comprise the cast include clients, adversaries, and witnesses, all of whom may interpret the same facts in wildly different ways.
Several years ago, I was workshopping a rough draft of a play I had written. During a table read, one of the actors asked me about a main character's motivations and fears. I told her how I envisioned this character's motives and drivers as I was writing the script. The actor paused for a moment before telling me I was completely wrong. "I don't see her in the same way you do," she said, before offering a completely different set of motives, drivers, and fears.
At first, I was annoyed – I wrote the play, so who would know this character's motivations better than me? But as the actor explained her impression of the character's hopes and fears, I began to see her viewpoint. She read the same words I did, yet came away with a completely different picture of the character. And when we performed the play, she did not change a word of the script, but her vision of this fictional person completely changed my view of the character.
So too with lawyers, witnesses, and third parties. All are reading the same text, but each may form different opinions and conclusions about the text and the speaker. The lawyer must understand and exploit these differing viewpoints.
Consider the following famous "witness testimony" from William Shakespeare's Henry VI, Part 2:
JACK CADE:
Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven half-penny loaves sold for a penny: the three-hoop'd pot shall have ten hoops; and I will make it felony to drink small beer: all the realm shall be in common; and in Cheapside shall my palfrey go to grass: and when I am king—as king I will be—
ALL:
God save your majesty!
JACK CADE:
I thank you, good people:- there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.
DICK:
The first thing we do, let's kill all the lawyers.
JACK CADE:
Nay, that I mean to do. Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since.
What does Dick mean by "let's kill all the lawyers?" Does he think doing so will improve society for the poor, the thirsty and the hungry? Or does he intend to eliminate those who would use the peaceful tools of civil society to block a violent insurrection that would destroy property and sow chaos? (Shakespeare knows. For the rest of us, the answer depends on whether you are a lawyer.)
The power of the photograph
We make our living wordsmithing. But there are times when words are simply not persuasive.
Consider what is more persuasive. This:
"Members of the jury, the Defendant caused the accident, and the damage to my client's car was significant."
Or simply:
Persuasive lawyers know when words are not enough.
Consider how you can use the tools of the novelist, playwright, and photographer in your practice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
