There is the literature of law – the heavy tomes that recount case studies, interpretations of legislation, historical court cases and other legal situations; then there is law in literature, fictional, biographical or non-fiction stories in which legal ramifications loom large in the narration, or which deal directly with points of law. Add to that the rhetoric of the courtroom, building a case, persuading a jury or simply writing a report that will weight evidence one way or the other or stand firmly in the balanced position of presenting the facts, and you have poethics.
Poethics is a recognition of differences between fiction and reality, a consideration of how a lawyer or judge must use words to convey a sense of why a thing shall be adjudged in a certain way, and a correlation of the need to recognize the spirit of an existing legal ruling as well as the concrete structure of the words used to convey the mean of the law, the persuasion by the lawyer, and the decision of the judge. Richard Weisberg, in his book, Poethics and other Strategies of Law and Literature, uses quotations from classical poetry to point out that the poet begins with the personal or internal point of view, then proceeds to wisdom. But a judge, on the other hand, begins with the collective wisdom of society, listens to concrete examples, and from there issues a pronouncement.
Literature in the Study of Law
On the University of Virginia website, an article, “Using Literature to Make Better Lawyers” by Denise Forster, explains how biographical, historical and fictional accounts can be used to good effect when teaching future lawyers. A class that was a mix of legal and English students first examined Trial by Jury, an account of jury duty written by D. Graham Burnett. In the book, he expects to catch up on his reading and then go home – only to discover that he had been made captain of the jury and that the trial was complex and even a little scary. On the flip side of that is Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman. Guberman takes issues such as how to create a compelling narrative when the facts are dense and dry.
Literature as Insight When Legal Documents and History Aren’t Enough
Cultures change. For example, when John Quincy Adams was president, he thought nothing of skinny-dipping in the Potomac, while it is doubtful if his wife would so much as display an ankle. To bridge the gap between legal records and understanding what was customary when a case was originally brought to trial, we can turn to literature to get a feel for the social attitudes. Yet, because the Victorians loved a sensation as surely as a Shakespearean actor or a housewife viewing her Saturday afternoon soaps, literature should be used with caution.
Poethics is the art of balancing the factual details that can be gleaned through forensics with the spirit of a legal system. It is the rhetoric of the lawyer, the judge and even that of the accused and the witnesses. But it is also the environment in which the trial takes place and understanding how the two interact.