Lawyers, like any other human, enjoy weaving narratives that “make sense”. But simple narratives can sometimes ignore the grey line between truth and illusion.
This week, I finished two books. One fiction, the other non-fiction.
It made me consider how the line between fact and fiction, truth and illusion isn’t always as clear as we think. Also, how we often weave narratives which attempt cohesion, but in reality—sit somewhere between those two poles.
With fiction, it can be difficult to discern where an author stops drawing on their own experiences and starts on the imaginative journey. With non-fiction, including trial judgments, we often only see through the eyes of one person—rather than multiple personas.
The process of weighing what goes in or what is left unsaid is crucial. Of course, one must never underestimate the importance of what remains unsaid. It can be immensely powerful.
I must clarify that there was almost nothing in common between the two books that I read. There were however common themes on life, memory, and perception, including the very grey line between truth and illusion. Let me introduce you to them.
Enter from stage left … Book #1
Meet The Book of Laughter and Forgetting by Milan Kundera, Czech-born master of literature exiled to France in 1975. One contemporary described Kundera as “the great modern descendant of Gogol and Kafka”. Big call there. (Rather accurate, methinks.)
The Book is at face value, a raw testimony of fiction, but wait… Every now and then, Kundera weaves his way in by telling us how he was watching from afar, or that he was in “so and so” place at the time. It does make for a rather surreal experience.
Where, does one’s experience start and stop? Did Kundera know these people? What did he experience in his personal life, that he was able to elucidate that human-ness common to us all—so often indescribable? (Of course, until someone like Kundera comes along.) Take, for example, this short excerpt:
“A delicate trace of a smile appeared on Passer’s face. Jan knew that smile well. It was not a joyous or an approving smile, but a smile of tolerance. They had always been far apart in their views, and in the rare moments when their differences became too visible, they would smile that smile to assure each other that their friendship was not in danger.”
— Milan Kundera, The Book of Laughter and Forgetting (Part 7, “The Border”)
As with his other work, it’s sometimes hard to work out if Kundera is trying to mess with your brain or tell you something important about humanity. You just have to go along with the ride. The Book reveals much (sometimes too much) about the truths of humanity – which is what any piece of good fiction should.
A warning about the Book. It is like being part of something raw, chaotic and visceral. It mercilessly prises into human consciousness and topics that we don’t often discuss, including death and sex. Some might not like the in-your-face aspect of it, but it is, in the end—great literature.
Enter from under the trapdoor … Book #2
Given the recent passing of the former Australian Prime Minister, Bob Hawke (1929 – 2019), I took an interest in finding out as much as possible about his life and work. This led to Wednesdays with Bob, co-authored by writer Derek Rielly and Hawke himself. Love or loathe (though most would agree with the former), Hawke was a giant of political history.
The book was inspired, as one half of the authorship (Rielly) confessed, by the bestseller Tuesdays with Morrie. Rielly admits that he had not himself read Tuesdays. And neither have I. But that’s all besides the point.
Wednesdays (anyone up for a Thursdays release?!) is a romp through recent and not-so-recent history. About two years ago, Rielly turned up at Hawke’s house on Wednesdays over a 10-month period. They discussed politics past and present, relationships, death—and everything else in between.
I gobbled up the first half of the book. It’s hard not to be inspired by certain parts, like this one:
Hawke: “… I was extraordinarily close to my father and admired him enormously. He said, ‘Son, if you believe in the Fatherhood of God, you must necessarily believe in the Brotherhood of Man. You are brothers and sisters and you should live that way. You should try your best to improve the lives of others.’
‘I accepted that and so I’ve always felt impelled by the reality of that statement, even when I ceased to be a part of organised religion at the end of 1952. I’ve always felt that we are brothers and sisters and that carries obligations. I would identify that as the major characteristic of my life and the way I’ve lived my life.’”
— Bob Hawke and Derek Rielly, Wednesdays with Bob (p 32)
Then came along the second part, which had a more fractured approach. Rielly increasingly gathered testimony from long-time friends or political foes. It was obvious that memories had faded, or that personal views glossed over what did or didn’t happen. There were times when the testimonies splintered or were inconsistent.
Hand over that testimony
The grey line between truth and fiction in testimony comes up all the time in litigation land.
What is truth?
The Third Murder is a Japanese movie which skilfully delves into the difficulties of ascertaining the truth. It follows defence lawyer Shigemori, who is assigned a murder case. His client admits to the murder at the outset, which makes Shigemori believe that it is an open-and-shut case.
Digging further, he realises that nothing is as it seems. For one, his client’s story changes each time he visits him in prison. Other potential witnesses are less than cooperative or have hidden motives. Shigemori finds himself in a Kafka-esque headspin as he tries to maintain a grip on the truth.
Legal eagles and anyone with a curious mind, this movie should definitely be on your list.
You might be at the earliest stages of a case, where your client believes they have justice on their side. Or the very final stages of closing submissions in court, where barristers wrap up their case in a conclusive flourish. Or the manner in which the evidence is dissected in a judgment—by accepting the accuracy of one testimony over another.
The French writer, Albert Camus, observed in The Stranger (or The Outsider) that a person accused no longer controlled their own narrative. Interpretation belonged to others, which is why the title of this novel “The Stranger” is so apt:
“Even in the prisoner’s dock it’s always interesting to hear people talk about you. And during the summations by the prosecutor and my lawyer, there was a lot said about me, maybe more about me than about my crime. But were their two speeches so different after all? My lawyer raised his arms and pleaded guilty, but with an explanation. The prosecutor waived his hands and proclaimed my guilt, but without an explanation. … In a way, they seemed to be arguing the case as if it had nothing to do with me. Everything was happening without my participation. My fate was being decided without anyone so much as asking my opinion. There were times when I felt like breaking in on all of them and saying, ‘Wait a minute! Who’s the accused here? Being the accused counts for something. And I have something to say!’”
— Albert Camus, The Stranger (Part 2, Chapter 4)
Our experiences: Potential to guide or mislead?
Finally, let’s add a further layer of complexity. How we perceive events and people invariably sits in our framework of experiences. For me, Kundera’s writing made very little sense while I was in high school. I’m horrified to think that I could have understood any of it then in its depth and richness. We derive very different messages from even the same book at various points in our lives.
In this sense, education must be complemented by experience. Neither can exist meaningfully without the other. Such is the case in law. It is why the views of experienced practitioners are so valuable. Particularly those who can say, “this came up in one of my cases…”. But sometimes, past experience can also colour our perceptions and mislead us. An example is transposing memories of a previous case or impression of a witness into the present. Clearly problematic.
Ultimately, no one living human can say that they have witnessed the entire gamut of human experience. Which is why, we must accept that we always tread the grey line between fact and fiction, truth and illusion.
A final point of fascination for you in the never-ending search for where fiction ends and fact starts, or vice versa. Some evidence is incontrovertible, for example, when it appears in the form of a generic document, like a tax return. Others which involve a person’s (or persons’) perspective(s), not so.
This can lead to interesting outcomes. Can “non-fiction” be further from reality than we think? We don’t often consider how the testimony of a person goes through the following process:
- narrated by the actual person (through their perspective and understanding);
- interpreted by their lawyer (through their perspective and understanding),
- wrangled over in court (through the various perspectives and understandings);
- interpreted by a judge (through their perspective and understanding).
Food for thought.