People of the Book, by Geraldine Brooks, tells the imagined story of the Sarajevo Haggadah, an actual illuminated manuscript from the Middle Ages that has miraculously survived to this day, and which was dramatically re-discovered at the end of the Bosnian civil war. Each clue that the fictional archivist finds in the book reveals part of its history. Each chapter allows the reader to reach further back in time. Each crisis in the book’s survival corresponds to an historical crisis, from the Inquisition to the Holocaust to the siege of Sarajevo.
I did not think about the book’s relevance to a trial lawyer’s view of the world until after I finished it. But now it occurs to me that a lot of what we trial lawyers do is similar to the method and story of this novel. We pore over documents in detail–letters, contracts, hospital records, financial records, whatever–searching for every clue that might help or harm a client’s case. We choose the clues that seem most relevant. Since judges or juries have no direct knowledge of the events at issue in a case, they must base their decisions on documentary evidence only, or witness’s recollections of past events. Sometimes witnesses are not even permitted, or are not available, to testify to the meaning of a document. Therefore we must suggest for the fact finder an imagined narrative to give meaning to the documentary evidence. That imagined narrative must seem true, and it must accord with all the known facts, but the contrasting explanations that we and the opposing counsel and the fact-finder are creating might still be described as fictions, not much different from the world created by a novelist with a similar attention to detail and history. That is because an imagined narrative may be easier for the jury to accept than the messy, non-sensical reality of what we are describing. Or as Mark Twain supposedly said, “the difference between fiction and non-fiction is that fiction must be absolutely believable.”
Of course we lawyers may not create characters out of whole cloth, as fiction writers are permitted to do, but we can sometimes suggest actions that might have been taken by unknown characters, and we frequently have to ascribe motivations to actions that can only be discerned by making inferences from the known facts. We have evidentiary rules that make it objectionable to ask a witness to testify as to what the witness thinks was going on in someone else’s mind, but we ask the fact finder to engage in this kind of exercise all the time. If the issue in the case is whether a party committed fraud, or engaged in discrimination, for examples, each side asks the jury to draw a different set of inferences from the same facts, and the jury often constructs yet a third version of what somebody might have been thinking that more closely accords with their view of the truth.
To take an even more speculative example, I spent several years of my life trying a series of employment discrimination cases, in which the main issue in each case was whether the plaintiff would have applied to become an insurance agent had the company been more open to the recruitment of female agents. In other words, in each of these cases, we had to imagine a fictional world and then try to determine how the real person before us would have acted in that imaginary world. A writer of historical fiction also tries to imagine how either real historical figures or fictional characters would act in the world of the historical novel the writer is creating. In both situations, we are always endeavoring to get as close as we can to the truth, but we may have to use our imaginations to get there.
(page from the Sarajevo Haggadah from Geraldine Brooks’swebsite)