Law and Conversation

February 18, 2011

Looking for a few good (practicing) lawyer writers

Harrisburg, PA lawyer, booklover, and freelance writer Harvey Freedenberg recently asked me via Twitter whether I could name any practicing lawyers who write about law in the same way that doctors like Richard Selzer, Lewis Thomas, Atul Gawande, and Jerome Groopman write about medicine.

I haven’t read Selzer or Thomas, but I have read Gawande and Groopman, both of whom are not only very fine writers but also full-time practicing physicians.  But why couldn’t I think of any comparable practicing lawyer writers?  Freedenberg suggested Jeffrey Toobin, who’s a very fine writer indeed, but noted that he’s not a currently practicing lawyer.

I can think of practicing lawyers who are very fine writers of fiction–often legal fiction–and practicing lawyers who are very fine writers of legal materials or who blog about issues related to the practice of law, and nonpracticing lawyers who write very good articles about the legal profession.  But I can’t think of any practicing lawyers who have written nonfiction books and articles for the general public about the practice of law comparable to what those practicing doctors have written about the practice of medicine.

Groopman and Gawande seem enormously admirable to me, not only for their unflinching criticism of some common current medical practices, but also for owning up to and honestly writing about mistakes they have personally made in the course of their medical practices.  I know that there are plenty of very thoughtful lawyers who are every bit as concerned with improving the legal profession and the practice of law as those doctors are about improving the medical profession and the practice of medicine, but it strikes me that most practicing lawyers direct their energies into bar association activities toward that end, not to writing books or articles about the practice of law for consumption by the general public.

Readers, why should that be?  Certainly, there are ethical issues such as privilege, which Freedenberg noted as an issue in our exchanges, that lawyers must take care with when they write about the practice of law.  But do those issues–which are also present for doctors–preclude lawyers from writing comparably to Groopman, Gawande, and their fellow doctor-writers?  Are there other factors at play?  Is there a niche that’s waiting to be filled?  Or are Freedenberg and I just overlooking some obvious good answers to his question?  Please leave your thoughts in the comments.

A while ago I wrote about The Paris Review’s making its interviews with authors available online.  Now, I’m intrigued by the literary magazine’s new advice column, also available online.  The delightful Ramona Koval, host of “The Book Show” on the Australian Broadcasting Company’s Radio National, interviewed editor Lorin Stein, who writes the column, a few days ago.  Stein had some great advice for one reader who wondered which translation of Proust he should read, a question I’ve also been pondering since Scott Moncrieff’s classic translation gave me quite a bit of trouble a couple of years ago.  (Stein’s recommendation:  first read Lydia Davis’s new translation, then go to the most recently revised Moncrieff version.)  Perhaps Mr. Stein would give me some advice on another matter I’ve been struggling with:  which translation to read of Lady Murasaki’s “The Tale of Genji?” Waley, Seidensticker, or the gorgeously illustrated and annotated version by Royall Tyler?  Readers, if you have an opinion, I’d love your advice on that question, too.

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February 16, 2011

Lawyers in fiction

Since I posted earlier this week about Jane Gardam’s “Old Filth,” a novel with a retired British lawyer as its main character, I thought today it would be nice to highlight three other novels with lawyers as protagonists.  Some obvious possibilities came first to my mind: Harper Lee’s “To Kill A Mockingbird,” John Mortimer’s “Rumpole of the Bailey” series, and legal thrillers by Scott Turow, John Grisham, and other bestselling authors. 

Worthy as all of those are, though, I’d rather highlight some lesser-known books, or some that have fallen out of the spotlight.  Here are three such novels with lawyer characters that I particularly liked:

  1. The Forsyte Saga, by John Galsworthy.  This trilogy, which begins with The Man of Property, is a fascinating picture of Victorian and Edwardian England.  (Outmoded Authors goes into more depth on the Forsyte Chronicles here.)  Soames Forsyte is a creepy solicitor whose divorce is the main subject of the second book, “In Chancery.”  The story shows how wretched life could be for even women of the upper classes who were unlucky enough to be married to men they loathed because of their legal status as chattels in the not so distant past.  Galsworthy, incidentally, studied and practiced law before going on to a distinguished literary career, which included helping found PEN International and winning the Nobel prize for literature in 1932.
  2. The Floating Opera, by John Barth.  Tightly written and screamingly funny, this novel, which I read in law school, helped me see, as my class never did, that civil procedure could be a fascinating subject.
  3. Pudd’nhead Wilson, by Mark Twain.  Like Barth and Galsworthy, Twain certainly knew how to tell a good story, and this novella of pre-Civil War America is riveting even more than a century after its publication.

John Mullan of The Guardian posted lists of the 10 best lawyers and the 10 best bad lawyers in fiction that I found inspirational for my own ever-growing reading and rereading lists.  The ABA Journal also published a list of 25 great fictional lawyers who are not Atticus Finch, which inspired BL1Y of Bitter Lawyer to come up with a list of the 10 greatest fictional lawyers overlooked by the ABA.

Who’s your favorite fictional lawyer, good or bad?  Do leave a comment with your picks.

On a completely different topic, check out Dutch engineer Theo Jansen’s Strandbeest site and associated videos.  I first learned about Jansen and his PVC beach animals several years ago, from a Radio Netherlands documentary.  There’s a more recent video from the BBC here that’s been making the rounds on Twitter.  Beautiful!

January 31, 2011

Shakespeare, SpongeBob, and the law

Any article with “Shakespeare and SpongeBob” in the headline will get my attention.  And, indeed, I enjoyed this article from the New York Times on Staten Island Civil Court Judge Philip S. Straniere, who, with a little help from his literary friends, achieves his goal of writing decisions that the litigants can understand.  (The article’s original eyecatching headline has been changed to a less colorful one that omits the literary and cartoon references.)

Judge Straniere numbers not only the Bard and residents of Bikini Bottom among his friends, but also L. Frank Baum, Mario Puzo, Dr. Seuss, Oscar Hammerstein, Meredith Wilson, MAD magazine, and many others, all of which he’s cited in opinions he’s written. 

Lawyers are often criticized as a profession for being poor writers.  I don’t think that’s entirely fair—there are many lawyers who are very fine writers, and many fine writers who trained in the law—but it is true that many statutes, administrative regulations, court opinions, and legal articles, all of which are, admittedly, written by lawyers, rival Ambien as cures for insomnia.  I haven’t read any of Judge Straniere’s opinions, but I’ll bet they’re delightful.

Reading about the judge’s citation of nonlegal sources in order to bolster the understandability of his opinions to his audience–the litigants–made me think about another side of legal writing:  the briefs that lawyers submit to their audience, that is, judges.

Nonlawyers may not generally know that there are two types of opinions issued by many intermediate reviewing courts: precedential and nonprecedential.  They’re also referred to as “published” and “unpublished,” though that’s no longer generally true.  In Illinois, at least, all opinions, state and federal, are published in some fashion, if only on the Internet.  The two types are also referred to as “opinions,” which are published and precedential, and “orders,” which are “unpublished” and not precedential.  The number of states that continue to make this distinction is diminishing, Ottawa (IL) appellate lawyer Michael T. Reagan, who’s studied and testified on the issue, tells me.  The federal courts also continue to distinguish them.

In those jurisdictions that continue to make the distinction, it’s important because precedential opinions are legal authority and may be cited in briefs filed with the court.  Opinions that the authoring courts or judges designate as nonprecedential are often subject to court rules that actually prohibit their citation, except under certain narrowly defined circumstances.  In Illinois, the court rule applicable to those opinions is Supreme Court Rule 23.  In the federal courts, the applicable rule is Federal Rule of Appellate Procedure 32.1.  Federal district courts may adopt their own rules to some degree on whether and to what extent to allow the citation of nonprecedential opinions issued before January 1, 2007.

I’ve written a number of articles for the Illinois Bar Journal on court rules regarding nonprecedential opinions.  The most recent addressed the Illinois Supreme Court’s amendment of SCR 23, which was effective on the first of this year

Whenever I talk to lawyers who practice before courts of review, they wonder why it should be OK, and certainly not prohibited by any court rule, to cite the words of Shakespeare, SpongeBob, the Talmud, or the person they sat next to on the bus that morning, but not OK and, in fact, prohibited by court rule, to cite the words of the very court before which they’re appearing if those words happened to appear in an opinion designated nonprecedential. 

Though the question is rhetorical, it’s a good one.  The answers I’ve heard from proponents of maintaining the distinction include that nonprecedential opinions add nothing to the law (which others say isn’t so), that they’re not as well written or of as high quality as precedential opinions (an assertion that surprises me), and that citing them is never, or hardly ever, persuasive–which may be so, but then again, Shakespeare and SpongeBob probably won’t tip the scales, either.

Lawyers and judges, what do you think?  Can anyone provide other reasons for continuing to make the distinction between precedential and nonprecedential opinions?  Do the courts of other countries make this distinction?

December 9, 2010

Three fun books on food

For my Read This! post on Monday I highlighted Jeffrey Steingarten’s “It Must’ve Been Something I Ate,” a delightful compilation of Steingarten’s columns on food from Vogue magazine.  Today I have three other books on food as part of my weekly series recommending three books with a common theme that tell great stories:

1) Heat, by Bill Buford.  Account of the amateur chef and former Granta magazine editor of learning culinary techniques by working in the restaurant kitchen of his pal, renowned chef Mario Batali.  For a fun book group activity, count the number of times Batali uses the f-word.

2) Kitchen Confidential, by Anthony Bourdain.  Memoir of how the Travel Channel superstar got interested in food and started his career.  Bourdain tells a great story and doesn’t flinch when it comes to the less attractive aspects of his own behavior, one of the marks of a really good memoirist.

3)  Food Matters:  A Guide to Conscious Eating, by Mark Bittman.  Bittman’s articles on food and cooking in The New York Times are superb examples of storytelling; as I noted on Monday, the one on no-knead bread can change your life.  In this book, he recounts his own journey toward awareness of what he eats.  As a bonus, he includes a number of recipes.

If you have an interest in cooking, the forums on ChefTalk.com are a great place to go for advice. 

Three’s a lovely number, but any list of three books necessarily omits many others that are equally good or even better.  What food books have you enjoyed?

UPDATE:  Commenting on an editorial by David Frum on CNNMark Bittman weighs in on obesity and the military’s “don’t ask, don’t tell” policy.

December 6, 2010

Read this: Jeffrey Steingarten on food

Today’s Read This! recommendation is especially for those who love both good food and good writing.  And it’s a book by a lawyer, to boot:  “It Must’ve Been Something I Ate,” by Jeffrey Steingarten.

The book is a compilation of columns that Steingarten has written for Vogue magazine as its food critic.  One of his specialties is examining conventional wisdom to see how it holds up, a skill which he displays to particular effect in his essays on salt, MSG, chocolate, and cheese.

As a lawyer myself, I read “Cheese Crise,” his essay on raw milk cheese and the FDA, with especial delight. 

Steingarten begins by recounting a Parisian cheesemonger’s telling him with satisfaction, “Not even the dogs at Kennedy Airport will smell through this,” while wrapping in several layers of plastic and carefully taped paper a package of raw milk cheese for Steingarten to take back on the plane to the US.  With satisfaction equal to the cheesemonger’s, Steingarten then reveals his own elegantly simple and foolproof scheme for getting food items from abroad that are prohibited for sale in the US through US customs, which, as an additional advantage, ensures that he’ll never be prosecuted for violating any law:  “My secret method is called declaring everything.”

For more good writing on food by a renowned nutritionist, check out Marion Nestle’s blog, “Food Politics.”  Lately Nestle has been writing about S. 510, the FDA Food Safety Modernization Act, which passed the Senate last week.

And for still more good, intelligent food writing, check out Mark Bittman’s columns in the New York Times (where Steingarten’s work has also appeared).  If you like fresh, crusty bread, his column on Jim Lahey’s no-knead bread, accompanied by Lahey’s recipe and an instructive video, may change your life.

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