Debris

Law is considered a scholarly profession, so we lawyers consider ourselves scholars. Worse, those of us who concentrate on litigating trials and appeals consider ourselves polymaths. A litigator’s expertise is process, not substance, so we take any case that walks in the door, assuming we can master the substantive law with our scholarly erudition. It’s no wonder we’re notorious know-it-alls. And on no subject is our conceit more apparent than literature. We trade in words, so some of us fancy ourselves writers and, yes, even poets.

I have a friend I met as an adversary—we tried a case together, on opposite sides. Flaubert presumably intended the pejorative connotation of “every notary bears within him the debris of a poet” for lawyers like my friend—he always wants to talk about literature, and I oblige him. But while my former adversary has forgiven me for besting him in the courtroom, he will never forgive me for admitting that, no, I don’t love literature for its own sake, but rather because it sharpens my persuasive rhetoric. He contends I’m abusing my “creative talents” by practicing law, but I’m quite certain he’s projecting. I am a lawyer first, foremost, and always. For me, literature serves the law, not the other way around. As I see it, Flaubert couldn’t cut it in law school anyway and dropped out, leaving lawyers to resolve the denotation of his poetic debris. We take out the poet’s trash.

Poets have the luxury of posing questions because the consequences of poetic equivocation are abstract. But lawyers are compelled to pose answers, because lawsuits result in unequivocal judgments which deprive our clients of life, liberty, or property. T.S. Eliot, a banker, was presumably familiar with the Golden Rule: if you have the gold, you make the rules. Bankers draft their documents with a relentless precision designed to reserve every advantage to the lender. But the lender’s advantage is often purloined by the borrower’s lawyer in litigation. In one case, I focused on an errant comma, resulting in a dangling modifying clause, upon which the whole case hung. Judges and juries don’t give “maybe” for an answer, so I argued the doctrine of the last antecedent, and that dangling clause fell to earth with a crushing blow on the bank’s position.

I suspect it was experiences like that which induced banker Eliot to bemoan “the intolerable wrestle / With words and meanings.” I know it was poet Eliot who taught me that you can never really be sure what the meaning of “is” is:

Words strain,
Crack and sometimes break, under the burden,
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still.
         —From “Burnt Norton”

Lawyers have a lot to learn from poets. I credit the Oulipian Raymond Queneau for my appreciation and, more important, comprehension of what is perhaps the longest sentence in the legal canon, Section 341(e) of the Internal Revenue Code. Try making sense of a sentence with 435 words preceding the main verb without a perverse appreciation for arbitrary constraints. That’s a dare, in case you were wondering.

Or try convincing a tribunal that it’s all right for a raunchy magazine to publish long-forgotten salacious photos of a now-famous actress without her permission. Well, the photos previously appeared in another (albeit less vulgar) magazine, so republication hardly invaded her privacy. And the text appended to the photos, while suggestive, was hardly libelous. Wallace Stevens cut right to the heart of the case:

I do not know which to prefer,
The beauty of inflections
Or the beauty of innuendoes,
The blackbird whistling
Or just after.
              —From “Thirteen Ways of Looking at a Blackbird”

Unlike Flaubert, Stevens graduated from law school, and practiced law. He fairly presented both sides of the dispute, but surely knew, deep in his dark lawyer’s heart, that the only choice is, precisely, both. So do I. Sometimes the clients are just wrong, and there’s not much we can do. We’re not poets, so we know we can’t win every time. All we can do is dispose of the poet’s debris.