Online Works – When a Lawyer Becomes a Writer

Presentation: West Virginia University, 2014

Why did I become a lawyer?

I may have got the title of this talk wrong. Instead of it being “When a Lawyer Becomes a Novelist” it should probably be “When a Novelist Becomes a Lawyer”.  Maybe it works both ways, because at the end of this hour I’m hoping you’ll agree that the important core task for both being a writer and being a lawyer — or at least being a litigator — is the same. We’ll get to what that is.

It doesn’t seem possible that that proposition could be true.  After all there are no writer jokes that I’m aware of.  How many writers does it take to unscrew a lightbulb…  Perhaps best not go there for fear we start a new fashion.

I’m going to give you some of my credentials as both a writer and a lawyer. I do this to remind myself of why I have been giving the honor of talking to you. I do it also to locate us just off the coast called “achievements” before we pull up anchor and sail into deeper, less chartered waters. Which is always a little nerve-racking. You want to know that the captain has her license to sail this boat.

I’m also going to talk about metaphors. I think we’ve racked up at least 5 so far.

As a young litigator, during a trial I watched the senior lawyers draw a line down the blank page on a notepad.  On the left side was written the evidence being given by the witness on the stand. On the right side were notes for cross-examination — mainly pointed arrows or acronyms such as B.S. It became my practice to do the same. But in the space on the right I put a different kind of note. I might write “the Judge looks like a bird — a parakeet” or “witness is pale — needs blood”. In other words, the left side was the lawyer (corresponding, I suppose to the left brain). The right side was the author.

I have split the page again today, in this talk. I’m going to go back and forth between the lawyer and the author.  You may think of the swaying of a boat, to continue that metaphor.

On the right side then: I have published three novels, one of which was nominated for the governor generals award, the equivalent of your Pulitzer Prize. Critics in the New York Times and Britain’s Time Out, The Observer, The Independent, and the Times Literary Supplement liked my work. Margaret Atwood thinks I’m a writer of “great talent and sensitivity”. My latest book was given a starred review by Publishers Weekly. It won James Elkins’s favor.

Just so I don’t have to interrupt myself later, I want to tell you briefly what my new novel Bring Me One of Everything is about, because I’ll be referring to it.

The initiating event for the novel actually happened. In the 1950s an anthropologist headed an expedition to Haida Gwaii — the Queen Charlotte Islands which are quite far north, off the coast of B.C. He cut down the largest stand of totem poles in the world and removed them by freighter to be housed in museums. You can see these totems in Vancouver and Victoria. The anthropologist committed suicide many years later. There the true story ends. My fictional anthropologist, Austin Hart, also commits suicide, but it is only a few years after the taking of the poles. And it is many years later that my protagonist, Alicia Purcell, becomes obsessed with finding out the reason why he took his own life. She goes on a terrifying, exhilarating quest to solve this puzzle and, as it turns out, many more mysteries about her own life.

On the left side, the lawyer: I have appeared before the Supreme Court of Canada a dozen times and successfully argued cases there. If you mentioned my name to the Chief Justice of the Court she might repeat what she once said to me: yes, Ms. Pinder. How extraordinary to be skilled in both the discursive and literary realms.

Of course there’s one major difference in the divide between the two professions. As a lawyer pretty much every day I was both liked and paid; and as a writer I don’t get enough of either.

It’s curious how many writers were going to become lawyers. They started out on that path, and then something happened to them. First year law is probably what happened to them.

            Goethe (who knew about pacts with the devil Faustus 1749-1832) 

            Henry Fielding (who knew about a roll in the hay Tom Jones)

            Frederico Garcia Lorca (killed by the fascists in the Spanish Civil War)

            (Your great poet) Wallace Stevens

            John Cleese (of Monty Python fame)

            Richard Forde

            One writer who narrowly escaped our fate, Franz Kafka wrote:

            A book should be an ice-axe to break the frozen sea within us.  Now that’s a metaphor.

 

I’ve had quite a lot of fun writing about lawyers from the point of view of the clients. In this passage from the novel I’m now working on, called Indulgence, a well-known actress is in the midst of a terrible divorce.  She is meeting with her lawyer, Wally Linklater. Her husband’s lawyer is named Cassidy Dalliwell.

Today, instead of calling him Cassidy Dalliwell, Wally referred to him as “the lawyer on the other side”, as if he lived across a dank, muddy river of uncharted depths and uncertain currents.  [Wally] was obsessed with him as one would be of a foe whom it was oracled he would have to fight and conquer.  Dalliwell lived on the other side, in a place where the light was from smoky fires, just at the edge of things, a place of incantations and secret rituals. A place of ethical ambivalence. Wally Linklater would raid that village and maim its king.

 Like all foes, Wally also had a fondness for him and a desire for his continued health, safety and vitality.

[Wally said] “I bet he has a shopping cart full of arguments.  You’ll see, that will be his downfall  because he’s looking for any check-out aisle with a cashier ready to scan the bar code.  That’s not smart.  That’s not what we’re going to do.”

Lucinda felt left out of this battle. She was paying the bill to enable this ancient game to ensue between combatants who, after her, would find others to fund their favorite blood sport.  She was cranky.

A few years ago when I was asked why I became a lawyer my immediate response was that I’d been negligent. There’s something alarming, even to a lawyer, about a lawyer. As when the Canadian writer, Michael Ondaatje told a friend of mine: “I have never knowingly slept with a lawyer.”

My negligence was the sort that leads to a charge of “driving without due care and attention”, although in this case the car was my life. I was destined to be a novelist. I had no intention of becoming a lawyer.  But I became distracted. My life sort of ran me into the ditch of the law. Where I stayed for a long time.

Here are more particulars. I was out of grad school, working on my first novel and I needed money. I got a job at the police department because I thought it would be interesting and gritty. Then I grew curious about the system. I got a job as a court reporter. It was dead easy. All I had to do was to sit in court and turn on a recording machine, taking enough notes to be sure to be able to find the location of the evidence if anyone wanted it played back, which they seldom did. All day long the police served up one story after another: of murder, rape, theft, breaking and entering, fraud. The budding novelist in me thrived. At night I wrote and wrote, poems, short stories, diary entries. By day the criminals kept coming through the door, along with the victims — as well as the vast array of hangers-on: the lawyers and the judges. Gradually, I realized that everyone, including me, was entangled in the law. I’d spend lunch hours in the prosecutor’s library looking up cases cited in court and the meaning of phrases like nunc pro tunc. I eventually followed the tug of the law to univeristy, and then into practice. Two novels and 28 years later, I got out of the law and permanently into writing.

That’s one way of putting it.

I’ve been fairly contented with that somewhat glib response as to why I became a lawyer — I was negligent — until James Elkins asked me to come and speak to you today. It really is extraordinary how long it takes to figure out why one does anything.

If I take an ice-pick to my story, there is quite another way of putting it.

Until I was eight years old, I was a very bright, happy girl. I took dance lessons. I played the piano. I was the prima ballerina in the family — a kind of tom-boy princess. My father was the King. He was a doctor and a healer. He had just finished his residency, specializing in treating ailments to the major sense organs: “Eye, Ear, Nose and Throat”. We didn’t have much money but we were living in the very centre of a small, dynamic, secure and known world. Every day I was full of bounding joy.

And then the unexpected happened. My 36 year old father fell down dead from a massive heart attack. I had never known death before: the inexplicable, cataclysmic earthquake which disappears your love. Within a year, my mother married again, this time to a handsome man with power and connections and money. We moved across the city, into a different house; I went to a different school. I didn’t know anybody.

Figuratively, the country in which I lived had a new ruler; there was an entirely different order and I didn’t understand any of it. Nor did I belong. I didn’t know the rules, who made them, or how they were made. As three more children were born, my place of privilege and security was taken up by others. I was pushed to the edge of this country. I was uncertain, confused and hurt. I had lost my patrimony.

Fifteen years later, I had studied well, coming 9th in my class of 200 at law school, and now knew something of the legal rules and how they were made. I knew about the Court of Star Chamber and The Court of Equity. I seemed to have made my way back into the centre of things. I was the token female litigator in a large, prestigious firm.

And then the unexpected happened.

I was going to my first firm dinner with all the other lawyers. It was being held in an exclusive men’s club. As we were walking down the street, one of the junior associates said to me: “I’ll go in through the back door of the club with you.” “Why?” I asked. “Because women can’t go in the front door. They have to enter through the servants’ entrance.”  “Oh. Well, it’s okay, thanks, I’ll go through the front door.” 

He looked alarmed. But not as alarmed as I. I really didn’t want to make a fuss. But I was a brand new lawyer, just two weeks from my call. I couldn’t possibly just bend over.

So I waited across the street, watching the male lawyers go in. I thought they’d all gone through. I climbed the steep set of granite stairs, looked at the heavy steel door, and pulled it open. In front of me, I saw the backs of 4 men. Oh, I thought, this is why women can’t enter here. There’s a urinal. I was a little out of my mind.

But it wasn’t a urinal, it was a coat check. One of the four men turned around to look at me; he was a senior partner of the firm. He resembled Alfred Hitchcock. His voice boomed, “There’ll be hell to pay for this.”

It didn’t work out for this firm, having me be the first token women litigator.

Four months after I was forced out of the firm, George Manuel, who was to become one of Canada’s great native leaders, asked me to work with him and his people.

Like most non-natives, I hadn’t a clue about them.

Here’s my protagonist, Alicia Purcell’s, in Bring Me One of Everything (we’re now on the right side of the page):

In my upbringing in Vancouver, the native Indians were kept out of sight — or chose to hide — assembling at the rough blood and urine hotels along Hastings Street.  I knew nothing about them: where they were from, what they cared about, and especially what had happened to them that they should be in this forlorn state.  Theirs was the equivalent of an urban disaster.

In my ignorance, I thought the natives didn’t have entitlement to any land except for the reserves which had been generously set up for them. They didn’t pay taxes. I erroneously believed they were being well looked after, except when they came to town, which was a mistake.

George Manuel took me into their communities, into their band offices, into their homes. I learned about their history and I researched the law.

These were a people who had had vibrant, thriving cultures, occupying their territories and living in harmony with their surroundings. They knew their land like they knew the shape of a friend’s back. In their creation myths the origin of the world was right where they lived. They were the first people.

Suddenly, the strangers started coming. Backed by foreign governments, settlers took over the land that had been used and occupied by the natives and pushed them out. Their cultures were shamed by the priests who called them evil; their societies were decimated. The effects were inexplicable, cataclysmic and like an earthquake.

On the right side of the page: in the novel, Alicia Purcell thinks about what she’s read in Austin Hart’s diaries:

… at the time of first contact there were fifty Haida villages and a population of over 30,000.  In 1915, as a result of traders giving blankets to the natives which were infected with smallpox [], and because of other diseases, they numbered 588. Those remaining engorged with grief… I tried to absorb the enormity of the deaths for the Haida.  Nobody had died on me in a long time…  To experience, in a generation, most of your family, your friends, dead — how could anyone get up in the morning, or even stand?  They showed courage even to be drunk on skid-row.

This next passage is from Austin Hart’s fictional diary when he imagines what happened to the native people he met:

It started with a visitor who came into your house, sat at your table, ate the food that you offered and at the end of the meal, said – working at his teeth with the toothpick you gave him – ‘Now to the business at hand.   This is not your house.  You must leave.’  He starts to clear the dishes away, but instead of putting them in the sink, he’s putting them in a box and into a truck in the yard where there are many more people just like him.  They remove the remains of the food, the pots and pans, and put them in the truck, then the chairs and eventually the table.  The man drives off calling ‘we’ll be back, we won’t tell you when but we’ll be back to take the rest, because everything is ours.  There will be more of us next time.  You don’t belong here anymore.’  You are stunned.  Your sister is stunned. 

One day your children go out to play in the morning and they don’t come back at night.  You learn that your son and daughter have been put in the truck and taken away.  You sit in the corner.  They come to get you as well and you are brought here to this barren place.  You can’t find your children.

When the children are returned they are speaking a different language.  They are taken away again by the man who is no longer a stranger to you.  Each time they come back, your children understand less and less of what you say to them.  Everyone sits alone at night in front of wet, blackened logs soaking in the rain.  You don’t have a shelter.  You cannot make a fire.

Something like this happened to these people. 

This is where I am.

Now, in this talk, we are on the line which cuts the page. Although monumental to me, but really minuscule by comparison to what had happened to the native people, the shape of my story was nevertheless fully engaged with theirs, as unlikely as it may seem. It’s taken many years for me to understand this. At first it was only a resonance, like the ringing of a bell. I wanted to do something about the injustice.

I was able to empathize with their being kicked out of their homeland by brutal forces stronger than they. How battered they were, in exile in their own land, being ruled by laws which declared them foreigners where they once belonged. Simply acquiring their daily bread by  hunting and fishing was illegal. They were fenced out of their own lives, and relegated to the margins.

This is the story in Exodus; in The Mahabarata, in Homer’s Odyssey. In a small way it was my story. It is the story many of us carry. 

Along with two other women — and then a handful of young lawyers — I began to channel all my passion, knowledge and creativity to use the legal tools I had to help these people.

Most of our colleagues and friends said: don’t take it on. The fight is useless and thankless. Don’t rock the boat. There’s lots of room for innovation in corporate law.

But because we were young and fearless — and because the native people were so generous and compelling — with ways of thinking unlike my own, with traditions and rituals spiritual in nature — we were pulled in, we were adopted — we were trained. We came to know how all of this had happened.

There’s been some mistake here, I thought. We have to fix this.

On the left side of the page: we started with a simple question: how is it that the government occupies the land of the original inhabitants without conquering them or paying for what they have taken?

This question existed at the very edge of things. It existed at the boundaries, outside the conversations. And yet, once asked, even though it was posed way out in the hinterlands of no where, the question reverberated right to the very centre, to the foundations of the King’s house.

There were no theories. There was no law. There was no theory of law. There was no framework. It was, in legal terms, a terra nullus. The land wasn’t terra nullus, the law was. How were we going to find a foothold. Where do we start?

As lawyers we asked it of the government in the courts:

How is it that you claim this land as yours?

The question was unwanted by those at centre of the house. Because although treaties were entered into with the natives in all parts of Canada (just as in the US) in the Province of British Columbia, there were no treaties.

Our job was to establish that aboriginal title had never been lawfully extinguished. It led to a lot of hard fought, difficult, exhilarating litigation.

Together with our clients, my colleagues and I stood in front of that massive, closed door, and gradually we shaped the law which pried it open just a little so we could get a purchase on it, and then, case by case, we swung it wide. The original inhabitants of the land were let back into the house.

Back to the right side of the page: I started to take notice of the figurative expressions used in the law. As Thomas Ross has noted, these expressions are plentiful. “So much so that the law has been described as ‘a magical world . . . where liens float, corporations reside, minds hold meetings, and promises run with the land.’34  

Of the five senses which could be used as the conveyors of information, it is sight which has, until recently, been in favor with the legal shape-makers. We “observe” the law; actions are seen “in the eye of the law”; lower court decisions are “reviewed”. Instead of being abstract, the law is something we can visually look at: it is a “body,” a “structure,” a “seamless web.”5 Ownership is imagined as a “chain of title.”9 The law is absorbed with light and darkness: there are “bright lines” between legal doctrines; we resort to “black letter” law and one can have a  “color of right”. Perhaps most telling about the domination of the seeing metaphor is that Justice must be blind, because otherwise she may be prejudiced.

For us to succeed we had to influence the dominant metaphors. If we could create law which required their voices to be heard, our clients would be ushered back into the kingdom from which they had been expelled. The sensory faculty of sound — not sight — was the new metaphoric vehicle we insinuated into the discourse. The entitlement to speak, as well as to be heard, would carry the newly established rights. This was especially important because not only had their voices been silenced, but the foundation of their cultures — as with so many other marginalized people — is based on orality.

I noticed the need for these new metaphors most sharply during a test case on the existence of aboriginal title called Delgamuukw v The Queen (1984-1997). It became the longest trial in the history of western jurisprudence. Mary Johnson, an elder from the tribe in northern B.C. (Gitskan), was on the stand. Evidence of her oral history was being led as proof of her people’s jurisdiction over their territory. In her traditions, a ceremonial song was sung at a particular fishing site when her people were gathered there. Despite the significance of the song to the case, the trial Judge didn’t want to hear it. “I have a tin ear,” Judge McEachern said. “It’s not going to do any good to sing to me.” Indeed, it didn’t do any good. He ruled that aboriginal title in B.C. had been extinguished and was no more. We won the case on appeal to the Supreme Court of Canada.

The voices of the native peoples are no longer be silenced. The Supreme Court of Canada has ruled that the law of aboriginal and treaty rights is the reconciliation of those rights with the needs of the non-Aboriginal peoples. In court these days, counsel for the natives are talking about re-establishing a relationship of harmony between the cultures. The metaphor of singing continues.

Metaphors are part of our deep structure.  When the existing metaphors have become rigid and won’t let in other perspectives, they must change or the law will ossify (another metaphor about bone, the marrow, cutting close to the bone). To expand the metaphors to let in the other senses — from sight to sound — is to let in more of the world, in every way. It is to let in more choices.

In order to prevail in such cases which shake up the house and re-arrange the furniture, it’s necessary for you, as a lawyer, to hear that resonating bell — to follow the scent of the law, to be touched by the tragedy of your clients — in short, not only to use all your intelligence but also all of your 5 senses to plumb the depths of the big story: yours and your clients’. And to put that into figurative language that wakes everyone up.

That is also what you need to do to shape the narrative in a novel. Nothing less.

As a lawyer, you must not be sentimental about your clients’ state or enamored with your impressive arguments. As a novelist you must not be sentimental about your characters nor enamored with your prose. You are pushing back the injustice; and you are making gains against incoherence. It’s important to be fearless and to not avert your eyes. From anything.

All of us, one way or another, come into the law as into a big narrative.  Sometimes we get muddled about the plot; sometimes we quit before the third act, but there is a reason that being a lawyer is referred to as a “calling”. I don’t know how you came to be here today, in this room with me, but I imagine it’s a pretty interesting story. Its roots are deep. It’s this story you have to offer: to your clients, to your work, on your path.

It’s taken me a long time to understand the big themes that are in my life and how they connected with my clients. Once I got an inkling of that, I became a better lawyer. And a better writer. It’s still dawning on me. But the shape needs to be simplified to its essence. That’s what you have to do.

“My Lords this is a case about dispossession.”

There’s a lot of interesting law that needs to be made out there in this brave new world. There are a lot of interesting things to accomplish on an earth which seems weary of our misdeeds. Don’t waste one second of your time on the trivial and the superficial. If you pay attention, your intuition will lead the way. That makes the difference between a good lawyer and a great one; a haunting novel and a haunting submission.

I want to end this afternoon on the right side of the page.

The new novel I am working on is called Indulgence. A few years ago, I became fascinated with the bullfight. I went to Seville and spent 2 weeks, going to a fight every day. I have constructed the scaffolding of the book on the bullfight. The arena of the courtroom is the correro. The ring.      

Here is the description of Judge Terrance McNally the first time we meet him.

 “Maybe he hadn’t always been portly. He had the thin legs and barrel chest of a man passed middle-age who had gradually become top heavy.  He’d be tough to push over, so long as he was expecting it; but if he were taken unaware, or was especially tired, even a slight tap would topple him, just a little and he’d be down.  And who would pick him up again, and when, he often wondered.”

My protagonist, Lucinda Yates, goes to an actual bullfight. This is a description — much later in the book — of the bull: 

“He was so big and ferocious and certain — he could push over trees or tractors or anything — the bull pounded into the ring, breached the air with his indelible self – was all head and shoulders and bulk.  Yet his legs were small, and his feet.  Lucinda thought maybe they were even too small.”

Later on, we see the Judge in court. This is how one of the spectators describes him:

“The Judge wasn’t trying to be grand or godlike, but this was nevertheless the effect.  It was partly because you couldn’t see his feet.  His feet would have some qualities: broad, short, gnarled, high arched or even flat.  But it was improper to think such things about the Judge; the courtroom and its courtiers were against it.  In any event, it didn’t really seem possible that he had flat feet, or feet at all.  So, being only head, he did seem lofty and superior.  And he didn’t like Madame Prosecutor.”

Eventually — as shown in these sections banked together, you’ll know that in one aspect of his character, the Judge is the bull.

In the novel, for each character there is something which corresponds to the cape for the bull:  distracting, the place they shouldn’t go, the thing they shouldn’t be enticed into, but they are.  It delivers them into unpardonable danger.  The novel is about what happens when love turns to hate and everyone turns to the law.  As one of the lawyers in the book declares, “The law will never be able to establish the truth but it is guaranteed to root out and expose the lies – guaranteed.”

It may be that the work you have to do in the law chooses you, more or less the way that a novel chooses its authors. I hope so.

It has been my great pleasure to talk to you today and to be with you.