Tag: Hypotheticals

Fiction for Attorneys

Posted on | by Linda Kruschke | 2 Comments on Fiction for Attorneys

By Ian Pisarcik, Legal Publications Attorney Editor

As an attorney, two things are reasonably certain to occur in your lifetime: Sallie Mae will deduct an astronomically high student loan payment from your checking account and someone, somewhere will ask you if you’ve read To Kill a Mockingbird and if you were aware that John Grisham used to be a real honest-to-God practicing attorney. It is at this point that you will calmly try to explain that you read more than just legal thrillers or you will begin shouting and waving your arms like a windmill with a broken turbine. Take solace in the fact that it could be worse. You could be a doctor. Doctors are asked similar questions (insert The House of God and Michael Crichton) followed by a request to diagnose the inquirer’s mysterious malady.

In the spirit of recognizing that your interests extend beyond the narrow scope of your profession, here are ten lesser-known books worth reading that have only a tangential connection to the practice of law.

  1. Fourth of July Creek by Smith Henderson: Released in hardcover last month, Fourth of July Creek is already receiving a lot of praise. The novel tells the story of a social worker who finds a nearly feral eleven-year-old boy living in the Montana wilderness. Dependency attorneys will relate all too well.
  2. Plainsong by Kent Haruf: This novel features a plot that will also strike a chord with dependency attorneys. The story, which would be intriguing in the hands of a lesser writer, is nearly flawless in the hands of Kent Haruf (for my money, one of the best writers alive).
  3. The Hermit’s Story by Rick Bass: Acclaimed writer and environmental activist Rick Bass will appeal to environmental attorneys, lovers of wild places, and fans of powerful writing.
  4. Train Dreams by Denis Johnson: Attorneys could learn a thing or two about being concise from this epic story about a day laborer in the American west told in a mere 128 pages.
  5. The Power of the Dog by Thomas Savage: Attorneys understand the complexities of human beings and perhaps no fictional character is more complex and fully-realized than Phil Burbank in this novel that inspired the better known novella, “Brokeback Mountain,” by Annie Proulx.
  6. Canada by Richard Ford: While most people think of John Grisham and Scott Turrow when asked to name lawyers who became writers, many forget the formidable Richard Ford.
  7. Birds of a Lesser Paradise by Megan Mayhew Bergman: Megan Mayhew Bergman lives on a farm in rural Vermont with her veterinarian husband, four dogs, three cats, two goats, chickens, and a handful of rescue animals. These animals are featured in many of her stories (my favorite is about a woman who drives hundreds of miles to visit a parrot so that she might hear the voice of her deceased mother one more time). Animal attorneys rejoice!
  8. Winter’s Bone by Daniel Woodrell: A dark, gritty novel about taking the law into your own hands.
  9. In the Lake of the Woods by Tim O’Brien: The lauded author of The Things They Carried crafts a complex story about a failed politician who may have murdered his wife in his sleep. A story fit for a bar exam hypothetical.
  10. Independent People by Halldór Laxness: An epic novel set in rural Iceland, Independent People tells the story of a sheep farmer determined to live independently on a nearly unmanageable patch of land. The novel doesn’t have a great deal to do with the law, but it’s beautifully written and most attorneys have at least considered quitting their jobs and moving to a sheep farm in the middle of nowhere.

Honorable Mentions: Meditations from a Moveable Chair by Andre Dubus; Crooked Letter, Crooked Letter by Tom Franklin; Fencing the Sky by James Galvin; Where Rivers Change Direction by Mark Spragg; Winter in the blood by James Welch; and Lives of Girls and Women by Alice Munro.

They say if you want to write well you must read good writing. Perhaps reading some of this great fiction will improve your writing for that next big brief in which you must somehow keep the attention of a judge while explaining your client’s complicated fact pattern.

A Beautiful Hypothetical

Posted on | by Linda Kruschke | Leave a Comment on A Beautiful Hypothetical

By Ian Pisarcik, Legal Publications Attorney Editor

There is a scene in the 2001 film A Beautiful Mind where John Nash’s wife Alicia, played by Jennifer Connelly, discovers that the door to an abandoned tool shed at the edge of the property in a grove of trees has been left ajar. Alicia enters the shed and discovers that the walls are covered with newspaper and magazine clippings. Random words and numbers are scribbled in black marker over the clippings. Thin agricultural rope connects words, images, and numbers. It is in this moment that Alicia realizes the extent of her husband’s mental illness. Though John Nash believes that the clippings are part of a code that can be deciphered in order to identify the exact position of a nuclear bomb being transported somewhere on the eastern seaboard, Alicia sees the installation for what it is: the rambling scrawls of a man deep in the throes of schizophrenia.

This scene often comes to mind when I read complex hypotheticals or doctrinal illustrations that identify parties by unrelated letters, or worse, switch between unrelated letters, proper names, and normative categories. The following is a common example:

A, a contractor, agrees to build a house for B. C, a subcontractor, agrees with A to lay the foundation for $50,000. C supplies goods and services worth $25,000 for which contractor made progress payments aggregating $15,000 as required by the subcontract. C then breaches by refusing to perform further. A reasonably spent $40,000 to have the work completed by D, another subcontractor. C sues A for reasonable value of benefits conferred and the contractor counterclaims for breach of contract. Should plaintiff recover the benefit conferred on defendant for which plaintiff has not been paid?

The above hypothetical distracts the reader and creates unnecessary cognitive demands for two reasons:

  1. Meaningless letters, and
  2. A lack of consistency.

The solution to this problem often depends on the subject matter and the audience. Normative categories (e.g., general, plaintiff) are often helpful in contract hypotheticals written for other lawyers. For example:

General agrees to build a house for owner. Sub agrees with General to lay the foundation for $50,000. Sub supplies goods and services worth $25,000 for which General made progress payments aggregating $15,000 as required by the subcontract. Sub breaches by refusing to perform further. General reasonably spent $40,000 to have the work completed by someone else. Sub sues General for reasonable value of benefits conferred and General counterclaims for breach of contract. Should Sub recover the benefit conferred on General for which Sub has not been paid?

Ohio First District Court of Appeals Judge Mark Painter, on the other hand, urges lawyers drafting briefs to remember that parties have names. Judge Painter notes that “when we use procedural titles, the reader must translate to understand what we mean.” Moreover, “the procedural titles change throughout the case, but names remain the same.” Also, “using names humanizes your client.” Finally, Judge Painter urges lawyers to be consistent. He notes that he once read a brief stating “Defendant-Appellant Mary Jones (hereinafter usually referred to as Jones).” Usually?

Whether you decide to use normative categories or proper names depends on the situation. But unless you want to turn your reader’s office into a mock-up of John Nash’s tool shed, avoid using meaningless letters, or switching heedlessly between meaningless letters, normative categories, and proper names.