by Jane Wiseman
Ignorance is bliss, they say. Not in the law, they say. Ignorance of the law is no excuse, they say. So, I ask, which is it?
The life of the law is language. Despite “sticks and stones may break my bones but words can never hurt me,” words have consequences. The law uses language to instruct, persuade, prohibit, regulate, enter judgment, importune, permit, encourage, deter, convict, condemn and pardon. And we ignore the language of the law at our peril. An Oklahoma motorist was quoted recently in the Tulsa World as being surprised and outraged at being pulled over for traveling some distance in the left-lane on Interstate 40, with little traffic in the right lane, in contravention of a state law enacted last year prohibiting such activity on four-lane highways. He said he didn’t know anything about the law, he wasn’t impeding traffic, and he was in the “fast lane.” There was a fair amount of publicity when the law became effective last November, and a subscription to the paper might have saved him the $200+ the ticket probably cost him. (And as a side note, the new law has certainly made driving on turnpikes considerably more pleasant and efficient, and it minimizes road rage caused by slow drivers in the passing lane. Now if we could just get lawmakers to see the beauty of the “zipper merge.” . . .)
Case law, the embodiment of appellate courts’ decisions on the common law and on statutory interpretation, among other things, is simply a form of very serious nonfiction writing. American nonfiction writer Tracy Kidder started out writing fiction but soon discovered he preferred to write about real people. He once said, “In fiction, believability may have nothing to do with reality or even plausibility. It has everything to do with those things in nonfiction. I think that the nonfiction writer’s fundamental job is to make what is true believable.” And when we see the conduct of litigants set out in the evidence in the record, our frequent reaction is “you couldn’t make this stuff up!” But every case tells a true story, however implausible (and it does create job security).
Tracy Kidder also characterized factual writing as a way “to signify a kind of nonfiction writing in which not only the information but the writing is important. For me the essence of it is really storytelling. And of course, the techniques of storytelling never belonged exclusively to fiction. Surely there is no single means of understanding the world.” This might account for our fascination with detective fiction and TV crime shows. We would be hard pressed to find a crime novel with an original story line—one not based on real events, especially when we consider the fertile field of true stories open to writers.
After binge-watching “Law and Order” recently, I certainly heard the ring of truth in those stories, however embellished. So I salute nonfiction storytelling, especially when well done, as a means, as Tracy Kidder said, “of understanding the world.”
Jane Wiseman writes for a living as a Judge on the Oklahoma Court of Civil Appeals. She counts the day she joined Nimrod’s Advisory Board as one of her happiest and currently serves as Chair of the Advisory Board.