Not strictly le­gal

Lawyers learn – some­times the hard way – the things that can hap­pen in the gaps and spa­ces, as well as in the bri­ary word thick­ets, and law re­ports can pro­vide fas­ci­nat­ing in­sights for fic­tion writ­ers in­ter­ested in world-build­ing

The Irish Times - Friday - The Ticket - - CONTENTS - WORDS BY DANIELLE McLAUGH­LIN

At the in­ter­sec­tion be­tween law and lit­er­a­ture

‘In 1966 there was a scrip­ture rally in Trafal­gar Square. A wid­ower, Mr Hon­ick, went to it. He was about 63. A widow, Mrs Rawns­ley, also went. She was about 60. He went up to her and in­tro­duced him­self. He was not much to look at. ‘He looked like a tramp’, she said. ‘He had been pick­ing up fag ends.’ They got on well enough, how­ever, to ex­change ad­dresses. His was 36 Queen’s Road, Waltham Cross, Hert­ford­shire. Hers was 74 Down­ton Av­enue, Streatham Hill, Lon­don, SW2. Next day he went to her house with a gift for her. It was a rose wrapped in a news­pa­per.”

This could be the be­gin­ning of a novel, or a short story. It sets out its stall with as­sur­ance, de­liv­er­ing a hint of strange­ness, a deft nod to in­trigue. As open­ings go, it is up there with the best. It is not, how­ever, a piece of fic­tion, but the open­ing para­graph of the judg­ment by Lord Den­ning MR in Burgess v Rawns­ley [1975] Ch429. It is al­most Chekho­vian in style: clean, clear, no un­nec­es­sary adorn­ment, al­ready so many el­e­ments of the story set in train.

In terms of his lit­er­ary style, Den­ning is per­haps bet­ter known for the open­ing of Hinz v Berry [1970] 2QB40: “It hap­pened on April 19th, 1964. It was blue­bell time in Kent.” Here, again, Den­ning lo­cates the tale swiftly and cleanly in time and place be­fore pro­ceed­ing to lead the reader deep into the story: “On this day they drove out in a Bed­ford Dor­mo­bile van from Ton­bridge to Can­vey Is­land. They took all eight chil­dren with them. As they were com­ing back they turned into a layby at Thurn­ham to have a pic­nic tea.”

I am of­ten struck by the sim­i­lar­i­ties be­tween the prac­tice of law and the prac­tice of writ­ing. The shap­ing of nar­ra­tive is cen­tral to both, for in­stance, as is the fo­cus on lan­guage. Both un­der­stand the rel­e­vance of nu­ance, of tone, are alert to things which are not said, but may none­the­less be sug­gested or im­plied. Lawyers learn – some­times the hard way – the things that can hap­pen in the gaps and spa­ces, as well as in the bri­ary word thick­ets. The fol­low­ing ad­vice from Thorn­ton’s Leg­isla­tive Draft­ing (But­ter­worths, 1987) would slot very nicely into a book on writ­ing short sto­ries: “. . . a word used with­out pur­pose or need­lessly is not merely a te­dious im­po­si­tion upon the time and at­ten­tion of the reader; it cre­ates a dan­ger be­cause ev­ery word in a statute is con­strued so as to bear a mean­ing if pos­si­ble. A su­per­flu­ous word is there­fore a po­ten­tial source of con­tention.”

Spell­sand­in­can­ta­tions

When I was still a teenager, be­fore I’d be­gun to study law, but al­ready knew that I wanted to, I used to en­joy read­ing the ap­pli­ca­tions for li­cences pub­lished in news­pa­pers, or the no­tices ad­ver­tis­ing “vol­un­tary wind­ing ups”. To me, they read like spells, in­can­ta­tions. I was cap­ti­vated by the idea that a par­tic­u­lar ar­range­ment of words, a for­mula re­cited in the cor­rect or­der, on the cor­rect date, could bring about a par­tic­u­lar re­sult. These no­tices even had their own spe­cial for­mats. Harry Pot­ter had not yet been in­vented, but these of­fi­cial no­tices were akin to the wav­ing of a magic wand. Get the words, or some other nec­es­sary el­e­ment of the spell, wrong and the thing wished for did not hap­pen. Mac­beth’s witches had eye of newt and toe of frog; the le­gal forms had their “Take no­tice . . . ”, their “premises sit­u­ate at”, the re­quire­ment for a full copy of the news­pa­per to be lodged in the court of­fice, the ad­ver­tise­ment it­self en­closed by a red bor­der.

There was also the sense of his­tory such no­tices con­veyed. How many decades of leg­isla­tive de­vel­op­ment un­furl them­selves in a “No­tice of Ap­pli­ca­tion for a Gen­eral Ex­emp­tion Or­der in re­spect of premises sit­u­ate in the vicin­ity of a pub­lic mar­ket or square”? The near-oc­cult state of le­gal lan­guage is aug­mented by its for­ays into Latin: nosc­i­tur a sociis; vo­lenti non fit in­juria; nemo iudex in causa sua (it is known by its as­so­ciates; to a will­ing per­son, in­jury is not done; no-one should be a judge in his own case).

I am aware that many peo­ple per­ceive law to be bor­ing. Or per­haps they are pre­pared to con­cede that a drugs trial, say, might be in­ter­est­ing, or a mur­der, but they refuse to coun­te­nance that there could be any­thing grip­ping about the dis­puted in­ter­pre­ta­tion of a sub­sec­tion of the VAT acts. To those peo­ple I of­fer Car­roll J in the High Court in McCann Ltd v S O’Cu­lachain (In­spec­tor of Taxes [1985]IR 298 pro­nounc­ing on the mean­ing of the word “man­u­fac­tured” for the pur­poses of Sec­tion 54 of the Cor­po­ra­tion Tax Act 1976.

The case re­quired the judge to rule on whether it was pos­si­ble to “man­u­fac­ture” ba­nanas. There was dis­agree­ment be­tween the par­ties as to whether ar­ti­fi­cially ripened ba­nanas were “man­u­fac­tured goods” for the pur­poses of at­tract­ing tax re­lief un­der the rel­e­vant sec­tion. The case is gen­uinely fas­ci­nat­ing on the life cy­cle of ba­nanas, and the his­tory of ba­nana ripen­ing. Fic­tion writ­ers in­ter­ested

‘‘ I am of­ten struck by the sim­i­lar­i­ties be­tween the prac­tice of law and the prac­tice of writ­ing. The shap­ing of nar­ra­tive is cen­tral to both, as is the fo­cus on lan­guage. Both un­der­stand the rel­e­vance of nu­ance, of tone, are alert to things which are not said, but may none­the­less be sug­gested or im­plied

in world-build­ing could do worse than study this case’s de­scrip­tions of the ripen­ing room, a place I pic­ture in my head as a cross be­tween a mush­room farm and the bridge on Star Trek; “Eth­yl­ene gas was blown into the ripen­ing room and it pen­e­trated the cells of the fruit.” Air-proof con­di­tions were re­quired, as well as pre­cau­tions to avoid ex­plo­sion. There ex­isted only two or three peo­ple in the coun­try with suf­fi­cient ex­pe­ri­ence to man­age the ripen­ing rooms.

In con­sid­er­ing the mean­ing of the word “man­u­fac­ture”, Car­roll J said: “It comes back to whether an or­di­nary per­son would at­tribute the word ‘man­u­fac­ture’ to the ripen­ing process. On bal­ance, I think not. If a la­bel were put on the ba­nanas, ‘Man­u­fac­tured in the Re­pub­lic of Ire­land’ what would be the re­ac­tion of the or­di­nary per­son in the street? I think the re­ac­tion would be: ‘How can you man­u­fac­ture a ba­nana?’”

On ap­peal, the Supreme Court said that the word “man­u­fac­tured” might be taken at first sight to be a sim­ple word hav­ing wide­spread and un­am­bigu­ous cur­rency. Closer ex­am­i­na­tion how­ever re­veals the use of the word in many dif­fer­ing ways; in some in­stances the word im­plies vir­tual cre­ation, in oth­ers al­ter­ation of ap­pear­ance rather than make-up, of shape rather than sub­stance. The court went on to hold that the ripened ba­nanas did come within the def­i­ni­tion of “man­u­fac­tured”.

Press­ing the delete key

If there are sim­i­lar­i­ties be­tween the two pro­fes­sions, there are also dif­fer­ences. In those early days of writ­ing fic­tion, when it was new to me, and my head was still in a lawyer’s space, I re­mem­ber the thrill of blithely delet­ing a para­graph with­out hav­ing to won­der if I might get sued. Where the lawyer might fret, or go in search of sec­ond opin­ions, the writer just presses the delete key, shrugs, and moves on.

A de­tail from a paint­ing gen­er­ously do­nated by Elva Mulchrone fea­tures on the cover of

Coun­ter­parts, an an­thol­ogy that brings to­gether fic­tion, per­sonal es­says and poetry, paired with and in­spired by ex­tracts from law re­ports. Mo­tifs in Mulchrone’s work cen­tre on the vis­ual rep­re­sen­ta­tion of data. A for­mer solic­i­tor with a back­ground in eco­nom­ics, her artis­tic prac­tice in­cludes in­ter­views with aca­demics and some of the world’s lead­ing eco­nomic thinkers. In an es­say mark­ing Mulchrone’s first solo ex­hi­bi­tion, Ir­ra­tional

Ex­u­ber­ance, at Eight Gallery in Dublin ear­lier this year, Niru Rat­nam, writer and com­mer­cial di­rec­tor at ArtRe­view, writes about how Mulchrone presents us with vis­ual frag­ments of re­search un­hinged from their orig­i­nal sources. Rat­nam goes on to dis­cuss how Don­ald Trump’s pres­i­den­tial cam­paign was char­ac­terised by mis­lead­ing data vi­su­al­i­sa­tion em­ploy­ing tech­niques now com­mon in mar­ket­ing and cor­po­rate pre­sen­ta­tions.

If in­fo­graph­ics can­not be trusted, Rat­nam says, then what ex­actly is their point? Mulchrone works with in­fo­graph­ics as “a ghostly pres­ence in what is a very in­di­rect way of com­mu­ni­cat­ing with the viewer. If rep­re­sen­ta­tions of in­for­ma­tion can never be ob­jec­tive, then per­haps it is more ap­pro­pri­ate to watch those rep­re­sen­ta­tions of in­for­ma­tion dis­solve into that most sub­jec­tive of vis­ual arena; ab­stract paint­ing”.

When I think about Ire­land’s hous­ing cri­sis, I find my­self think­ing about how fig­ures can be­come “un­hinged” from what they pur­port to rep­re­sent, and of the dif­fi­cul­ties that can arise when the dev­as­ta­tion of a fam­ily or an in­di­vid­ual is de­picted by a fig­ure on a pie-chart, or a point on a graph.

A sud­den ill­ness at the age of 40 meant I had to stop prac­tis­ing law and trans­fer my clients to an­other firm. And just like that, a rich seam of sto­ries, lan­guage and drama closed. Psy­cho­log­i­cally, I was cut adrift, but I was to dis­cover that be­tween the be­gin­ning and end of a short story was a space where I could still ne­go­ti­ate the world, even if I did have to write that world into ex­is­tence first. When I be­gan send­ing my sto­ries out, a funny thing hap­pened: I be­gan to meet – at writ­ing fes­ti­vals, in work­shops – lots of fel­low lawyers also en­gaged in this strange busi­ness of writ­ing. Al­though I was no longer prac­tis­ing as a solic­i­tor, I hadn’t for­got­ten the

fas­ci­nat­ing hu­man sto­ries and re­mark­able writ­ing of the le­gal judg­ments. The law re­ports, it seemed to me, were de­serv­ing of a wider au­di­ence. And so was born the idea for Coun­ter­parts.

As I write this, al­most 10,000 peo­ple are home­less in Ire­land. De­pend­ing on how the data is rep­re­sented, that fig­ure may be even higher. All pro­ceeds from the sale of this an­thol­ogy will be do­nated to the Peter McVerry Trust, a char­ity that for over 35 years has been en­gaged in ef­forts to com­bat home­less­ness. The writ­ers, as well as ev­ery­one else in­volved in mak­ing this an­thol­ogy hap­pen, have made their work avail­able for free, and gen­er­ous spon­sor­ship by le­gal firms has cov­ered the print­ing costs.

It will soon be 10 years since I last prac­tised law. In a re­cent in­ter­view, speak­ing about the need for sol­i­dar­ity with peo­ple who are home­less, Fr Peter McVerry said, “Peo­ple end up home­less be­cause their path in life has gone in a to­tally dif­fer­ent di­rec­tion to the one they ex­pected, of­ten through no fault of their own. And most of us are very lucky our path in life has gone in an­other di­rec­tion, usu­ally through lit­tle credit to our­selves.”

I’m for­tu­nate to be one of the lucky ones. Ill­ness shunted my ca­reer in a to­tally dif­fer­ent di­rec­tion, and I have never re­gret­ted it. Which is not to say that I haven’t ex­pe­ri­enced from time to time a tug back to law, a tug that has grown stronger while putting this project to­gether.

Danielle McLaugh­lin: “I was cap­ti­vated by the idea that a par­tic­u­lar ar­range­ment of words, a for­mula re­cited in the cor­rect or­der, on the cor­rect date, could bring about a par­tic­u­lar re­sult.”

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