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ABA Section of Business Law
Business Law Today
September/October 1998
From a distance . . .
Legal fiction
By James C. Freund
What's every lawyer's dream project when he or she gets around to retiring?
To travel around the world?
No.
To laze on a tropical beach?
Hardly.
To join the board of a nonprofit institution?
No, dummy, it's to write a novel! Hey, if John Grisham and Scott Turow can do it, why can't we?
So, with six nonfiction books and numerous articles under my belt, I've turned to more creative pursuits. In
contrast to the criminal trial mode of so much fiction penned by lawyers, my novel would reflect personal
experiences and observations as a big city business lawyer. It's a field that's rich in bold plots and fascinating
characters against a backdrop of spirited negotiations - primed to resonate with a wide audience.
But what I've quickly come to realize is that this won't be a slam dunk. For a lawyer changing sides, plenty of
obstacles litter the landscape. So, for those of you who might be contemplating a crossover some day, here's a
preview of what's in store - a compilation of 10 do's and don't's for writers of fiction, guaranteed to give a
lawyer fits.
The italicized references to what works and what doesn't in today's fiction are paraphrased from an excellent
book on the subject - Making Shapely Fiction, by Jerome Stern (Dell, 1992).
1. Don't preface your story with explanatory material that makes your readers impatient for the story to begin.
Surely the author couldn't be referring to the essential "Background of the transaction" section . . . .
2. A cool and dispassionate narrative voice diminishes the importance of individual lives. . . . Writers who keep a
great distance from their characters sound as if they were writing encyclopedia entries instead of stories.
That's the cool and dispassionate narrative voice we learned so well in law school and have prided ourselves on
ever since.
3. Editors sometimes only have to read one or two pages of a 600-page novel to know they don't want to read
anymore . . . . Words repeat themselves, as if forgetting their earlier appearances; coordinating conjunctions
proliferate; phrases wander around looking for something to dangle off. . . .
Sounds like a prospectus to me.
4. Make your references to documents relatively brief, since readers have short spans of attention.
"In the section of the lease at issue, the lessee covenanted" (and I quote) "not to . . . [20 lines later] without
the lessor's consent." Relatively brief? Come on! And risk leaving something out?
5. Show, don't tell. Make the readers feel the emotions as the character does . . . . Don't reduce a complex
experience to a platitude or obvious moral. Ambiguity is often what the story is all about.
To someone who has long strived for clarity - every concept suffused with rationale, each phrase incapable of
differing interpretations, the reader led step by logical step in an inexorable direction - this is a heavy load to
shed.
6. Readers need clear visual images. The creation of a physical world is as crucial to the story as action and
dialogue. Characters who aren't described are just talking heads, not fully warm-blooded creatures.
Describing the way people or objects look is a skill that's not generally required of lawyers, so we don't have
much practice. This sounds easy enough - select the crucial detail and then find apt words to describe it. Listen,
however, to one of my wife's favorite refrains: "I had a buzz cut - half my hair cut off and the rest colored
purple - and Jim didn't notice that anything was different for a week." Let's just say, I'm not encouraged.
7. Direct, simple words get readers involved in the story without drawing attention to the narrator. . . By
contrast, circumlocution suggests a self-conscious writer who hides gut feelings behind big words.
Next. . . .
8. Metaphors need to be fresh, lively and pertinent.
No problem. "We used the poison pill to give us time to find a white knight who was willing to sign a hell-orhigh-water agreement . . . ."
9. Editors despise writers who let hackneyed expressions and trite phrases infest their prose. Avoid clichés and
literary fossils.
Hey, wait a minute, this is getting close to home. We lawyers gorge ourselves on hackneyed expressions
("caveat emptor") and clichés ("the plaintiff's case is full of holes"); and as for literary fossils ("In witness
whereof") - res ipsa loquitur.
10. Don't let adverbs litter the landscape.
Avoid adverbs? Have you ever read litigation papers - with everything larger than life and choking on adverbs
(the opponent's argument is "patently absurd," the simplest contractual phrase is "hopelessly ambiguous"). It's
enough to send shivers up a corporate lawyer's spine.
Well, I think you get the idea. And I haven't even mentioned what might turn out to be the most ticklish
problem of all - overcoming our ambivalence about making private intimacies public in order to write that
obligatory steamy sex scene.
But I'm not totally discouraged. In fact, I've noticed a number of similarities between writing fiction and the
stuff we lawyers produce. For instance:
1. For a novelist, an enormous amount of energy must go into structural considerations, with calculations and
manipulations about plots, subplots and entrances and exits.
Hey, structuring is just the kind of activity at which we excel.
2. Fiction thrives on tension, which is created by irony - where characters don't get exactly what they want, but
instead get something less definite, less predictable, more puzzling.
Sounds just like what happened so often to my clients . . . .
3. Revision is integral to the creative process. A story grows with each draft. . . . Finally you reach the point at
which you feel you've done all you can to make the story as complete as it can be. It's not perfect - you might
know more later - but now is not later, and now is the time to send it out.
For years, I've been holding forth on the critical distinction between achieving excellence and seeking perfection.
How reassuring it is to know there's a fictional analogue.
So anyway, be on the lookout for my upcoming best-seller - a real page-turner - chronicling the roller coaster
life and multi-faceted loves of a titan of the corporate trust department, as his seventh supplemental indenture
spreads its wings and languidly comes to market.
Freund is a retired partner at Skadden, Arps, Slate, Meagher & Flom LLP, in New York City, and is now of
counsel to the firm.
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