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Will the Defendant Please Rise

ISSUE:  Summer 1983
The Man Who Owned New York. By John Jay Osborn, Jr. Houghton Mifflin. $10.95.
The Rat on Fire. By George V. Higgins, Knopf. $10.95.
People Versus Kirk. By Robert Traver. St. Martin’s. $12.95.
Rumpole’s Return. By John Mortimer. Penguin. $2.95.
The Southern Reporter. By John William Corrington. Louisiana, $9.95.

Jefferson once said that lawyers were fond of “making every other word “said” or “aforesaid, ” and saying everything two or three times so that nobody but we of the craft can untwist the diction, and find out what it means.” Despite, or should I say notwithstanding, the recent compaign to write certain contracts in plain English, the state of legal writing has not improved much since Jefferson’s time. Indeed, lawyers today write graceful, concise prose about as often as they willingly take on pro bono publico cases. Lawyers, as someone once observed, are the only people who can write a ten-thousand-word document and call it a brief. They cling to the peculiar notion that repetition fosters clarity. As a result, we have phrases such as “null and void,” “full and complete,” and “convey, transfer, and set over.” And if said phrases are insufficient for the task, lawyers resort to “not inconsistent with” and “notwithstanding”—old standbys they—to muddy otherwise clear waters.

Some might argue that the problem of swollen, opaque legal prose is not serious. Lawyers tend to write only for other lawyers, and if they want to frustrate each other, well, that’s their business. What happens, though, when lawyers write fiction about themselves and their trade. We welcome such contributions because the law touches us all, some more forcefully than others. But surely lawyer-novelists cannot expect to have their books judged by standards that allow for the general difficulty lawyers have with our language. Their obligation is at least the same as that of any other writer: to write interesting, readable prose that tells us something about ourselves and our world. But they must also fulfill their obligation to give us insights into the law that only lawyers can give.

We can apply these standards to lawyer-novelists because in effect they hold themselves out as writers having a unique sensibility that makes a difference. Lawyers, of course, are not alone in writing about legal subjects, but we turn to them for something more than courtroom mysteries or novels focusing on obscure points of law because they promise to give us the life of the lawyer and the law, both specifically and abstractly, that only one who lives with the law understands. The novels under consideration here show lawyer-novelists at both their best and their worst. We’ll begin with the worst.

John Jay Osborn, Jr., a Harvard-educated lawyer, has gained fame and considerable fortune for his novels about life as a law student at Harvard and as a young associate in a Wall Street law firm. The success of The Paper Chase and The Associates, however, can be traced more directly to the television shows adapted from them than to the novels themselves. The Man Who Owned New York, Osborn’s latest novel, continues his decline and is embarrassingly bad, especially when examined as a legal novel. It has no life, no humor, and, worse yet, no meaning.

“It is the dull man who is always sure,” H. L. Mencken once wrote, “and the sure man who is always dull.” Osborn’s novel demonstrates that the two qualities are indeed complementary. One clue to Osborn’s unwavering belief in himself comes in the quotation introducing the novel. While others might use a line of great poetry (Dante’s Inferno, it seems, is a popular source in the novels I read), Osborn prefers to quote himself. More damaging evidence of his dull sureness comes in the novel itself, as Osborn apparently believes that merely presenting a young, troubled partner in a prestigious Wall Street law firm will be enough to enable us to understand the tensions lawyers in such firms experience.

Fox, the young partner in The Man Who Owned New York, is supposedly a driven man who is not sure where the throttle is. His is and has been an unhappy life, despite many obvious successes. Watching a character like Fox sort out the harnessing forces in his life could teach us something about the making of a lawyer, assuming we had enough information to understand the nature of the struggle. We are kept in the dark through much of the novel, however, so when Fox solves the problem at hand—the disappearance of three million dollars—and begins to understand himself, we feel cheated, finding it difficult to appreciate the effects after having been denied the causes.

George V. Higgins, a Boston lawyer, seems to have seen and understood much more of life than Osborn. Working first as a journalist and then as an attorney in the U. S. Attorney’s office, no doubt, gave him a chance to know his subject firsthand. He is able to write about the world of slimy criminals in and around Boston partly because he has taken notes on both what he has seen and heard. Higgins, in contrast to Osborn, has taught himself to listen. His characters are more interesting than Osborn’s not because they commit more crimes but because he makes them come alive.

Higgins, who has an excellent ear for dialogue, is a master at reproducing the vulgar, boastful, and often comic exchanges certain types of men have. He captures the rhythms of speech as well, the way sarcastic, complaining people spontaneously embellish their tales of woe because they sense they are on a roll. The dialogue is flawed only by the length of some speeches. Jerry Fein, the lawyer in question in The Rat on Fire, for example, occasionally makes speeches lasting more than five minutes. Like Faulkner, who could not understand that a five-page, single-spaced speech in a movie script was too long, Higgins sometimes loses sight of how much chatter on pages people are willing to tolerate.

He never loses sight, however, of human frailities and the corruption they inspire. Corruption in Higgins’ world, we find, is everywhere. In Jerry Fein’s case the problem is money. He is a slumlord with a typical headache: tenants who will not pay their rent, preferring instead to rip out and sell their copper plumbing. Seeing no way out, Fein hires two arsonists to make his problem go away, but they bungle the job and all fall prey to a young prosecutor intent on reducing the number of torchings. Fein, a lawyer who avoids the courtroom, finds he will visit one after all.

We understand Fein, though we do not like him. We also understand the criminals and the cops pursuing him (jamokes all, to use Higgins’ phrase). All live with nagging frustrations. Some must endure pompous, incompetent superiors, while others just want to retain some small measure of dignity. “I don’t care if you think I’m stupid,” one of them says, “but I resent you thinking I’m dumb.” The pleasures in their lives might seem small, but for these men the stakes are high enough to risk going to jail, a fear that is on their minds daily. They feel a need to distinguish themselves somehow in their behavioral sink. In their own way, all are trying to give their lives meaning, to believe that they are not like all the others who are losing the game without even knowing they are playing.

Neither The Man Who Owned New York nor The Rat on Fire gives readers of legal fiction what they tend to want most, either an examination of a lawyer’s sensibility or a look at the law in action. But while Higgins makes no attempt to make Fein’s legal career the center of his book, he shows Fein to be just another rat scrambling about a rat-infested landscape, thereby challenging our traditional image of lawyers. Higgins uses his understanding of lawyers to show us not what a lawyer is but what he is not. Osborn, on the other hand, wants to make the life of his lawyer the focus of his novel. He fails, however, to show us what Fox thinks it means to be a lawyer, and as a result the book fails.

The failure is one of nerve. Osborn is unwilling to ask the difficult questions, the most important of which looks to the impact living with the law daily has on a lawyer. Osborn’s novel, ultimately, would not have been much different if Fox had been something other than a lawyer. The problems he experiences come from a domineering father. That his father was a lawyer who pushed him into the law does not much matter. This, however, is a distinction Osborn failed to recognize.

Robert Traver, the pen name of John D. Voekler, takes a different approach and fits his People versus Kirk snugly within the popular genre of courtroom fiction. More specifically, Traver’s interest is in what we might call serious courtroom fiction. The other half of the genre, courtroom mysteries, relies more on the clever solution to the mystery than on the realistic depiction of the judicial process. Erie Stanley Gardner, perhaps the best-known courtroom mystery writer, for example, consistently gives a false impression of murder trials by having a spectator spring to his feet and confess his guilt.

Serious courtroom fiction does not need mysteries to be effective, however. The trial by itself, as Professor Ball reminds us in “The Play’s the Thing,” a 1975 Stanford Law Review article, has all the necessary ingredients for compelling drama. For the drama to emerge, the novelist must have an understanding of the adversary process—the greater the better—and a brisk narrative style. He must be able to give insight into the dreaded feeling of being prosecuted by the state, what the courts describe as being “immersed in the intricacies of substantive and procedural criminal law.” At its best, courtroom fiction should let us experience vicariously that bewildering feeling of being lost in the maze of the law’s intricacies.

In People versus Kirk, Traver, a former associate justice on the Michigan Supreme Court, explores the issue of hypnosis, both as a defense in a criminal trial and as a means of stimulating a witness’s memory. Traver carefully researched the current law on hypnosis in criminal trials, using the cases that have begun a trend toward liberalizing the use of evidence derived from hypnosis as a foundation upon which he develops the fact pattern in his own case. His plot might seem contrived to some, but only in that it helps us focus on the basic principles of culpability in criminal law. Traver tests the elasticity of legal principles to see more clearly their limits. In this regard, Traver’s novel is as thoughtful an inquiry as those appearing in the scholarly journals.

Traver fills People versus Kirk with subtle details that distinguish it from other courtroom fiction. Drawing upon his experience, he captures the small-town courtroom atmosphere of seriousness and familiarity, and he also gives us a look into the tensions between defense and prosecuting attorneys. The subtle details reflect the thing as it is. Traver’s recognition that the play is truly the thing, as Professor Ball suggests, ensures the novel’s success. Knowing the rules of evidence and understanding the strategies lawyers employ— when not to object to objectionable evidence, for example— only help to keep our vision focused on the essential conflict at the center of every trial.

Traver’s novel is like Erie Stanley Gardner’s fiction, though, in that Traver’s defense attorney represents an innocent client. In real criminal trials, on the other hand, the defendant is most likely guilty, which, when you think about it, is the way it should be. The defense attorney must then wrestle with the dilemma of trying to get off someone he knows to be guilty. Samuel Johnson once observed that lawyers can ease their anxiety by considering that the defendant is not truly guilty until the judge or jury finds him so. Splitting epistemological hairs might sound fine, but many lawyers have difficulty applying Johnson’s advice. We miss in Traver’s novel, then, the important struggle affecting most lawyers torn between truth and their client’s defense.

A more probing look into the mind of a defense attorney comes in Rumpole’s Return, a short novel by John Mortimer, a distinguished English barrister. The novel follows two collections of short stories about Rumpole that were made into television dramas for public television. While the short stories and novel have been labeled as mysteries, they go far beyond that genre because Rumpole, the quick-witted, irreverent barrister, dominates. He wins some puzzling cases with some clever thinking, but the cases themselves remain less important than Rumpole, who is, as he should be, the star.

The Rumpole short stories have a distinct television flavor to them. Mortimer, in the manner of a one-hour television dramatist, adroitly pulls together two or more plot lines reflecting that week’s theme. Substance, as a result, often lags behind form in such stories. Some plot developments are contrived, for example, and Mortimer, knowing that each story must have an easily grasped conflict, sometimes alters his characters to fit the needs of the moment.

Writing a novel instead of short stories geared for television adaptation allows Mortimer to present Rumpole as he wants us to see him. When the novel opens, Rumpole is basking in the Florida sun after reluctantly retiring from his chambers in London. His retirement, to his great relief, ends quickly when he returns to assist in a murder case featuring blood stains—Rumpole’s speciality—as the key piece of evidence. How Rumpole wins the case, however, matters less than the way he handles life with and without the law. His gleeful exclamations that murder trials provide a bit of fun, as well as his irreverent humor, present only one side of Rumpole, distracting us from his other, serious side. Rumpole is, ultimately, a dedicated barrister, dedicated to both his clients and to the law itself.

Mortimer subtly uses Rumpole’s wife, Hilda, to remind us of Rumpole’s commitment to the law. On one level Rumpole’s strained marriage to Hilda provides comic relief. He refers to her as She Who Must Be Obeyed, for example, and for good reason. She does more than just insist on having the last word—she always gets it. We might think that Rumpole would thrive when he returns to London and spends three weeks by himself before Hilda catches up to him, as he finally has a chance to eat what he wants and to keep a messy house, but amidst this happiness is a symbolic sagging practice. Rumpole, we begin to suspect, is not the same barrister when Hilda is absent because when examined closely she represents what American courts have termed the prosecutorial forces of organized society. Rumpole is a zealous advocate in court, where he can present a defense, because Hilda continually reminds him of what life would be like without the chance to defend oneself from authoritarian forces. Thus Rumpole’s commitment to the law is reinforced daily. It is the motivating force in his life.

Mortimer uses Rumpole to tell us more about the law. The lines of poetry that Rumpole so often quotes, for example, reflect not so much his eccentricity as his sense of history, that sense that others before him have encountered the same problems, whatever they may be. Rumpole’s sense of history as illustrated through literature can be applied to highlight the traditional obligations involved in upholding the law. The subplot about the attempt to force Rumpole out of chambers and back into retirement, in this regard, takes on additional meaning. Rumpole’s eventual triumph over the young, ambitious, and hypocritical barristers urging his exit thus represents the triumph of Rumpole’s—and by extension Mortimer’s—commitment to the law, complete with its respect for history.

We can’t begin to understand the law, John William Corrington tells us, unless we understand history because in a real sense history is the law. Corrington, a lawyer and novelist, has written six short stories about the law, three of which are collected in his recent The Southern Reporter. I strain the declared scope of this essay—novels about the law—to mention his stories briefly because they are provocative and perceptive. No writer today explores the mind of the lawyer as well as Corrington does.

Corrington’s legal fiction, in both The Southern Reporter and his earlier The Actes and Monuments, gives life to Holmes’ observation that the law is an abstraction, “wherein, as in a magic mirror, we see reflected not only our lives, but the lives of all men that have been.” The lawyers in Corrington’s stories, ordinary men all, seek meaning in their lives and come to recognize the continual impact of the past on the present.

“The past isn’t dead,” Faulkner once wrote, “it isn’t even the past.” In “A Day in Thy Court,” for example, an old lawyer stricken with cancer learns the truth of Faulkner’s words. He learns that to deny the past is to deny part of himself. His life, in this beautiful short story, becomes complete when he embraces his past, which for him means letting himself be touched by the ironic pain lost love brings.

Corrington writes brilliantly about the law, often using love as a metaphor for history. He does more than just meet his obligation as a lawyer writing fiction: he sets the standard against which all other legal fiction must be measured. This is not, of course, to deny the contributions of Mortimer, Traver, and Higgins, as they too meet their obligation as lawyer-novelists. It is only to say that for now Corrington’s is the final word on the subject.


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