May 2009

The Truth Is Better Than Fiction

by WSBA President Mark Johnson

I would like to discuss a diabolically, devilishly difficult case. As is the custom with our profession, let’s start with the facts:

Our client’s name is Jabez Stone and he lives in New Hampshire. If you were to ask Jabez what he did for a living, he would tell you that he is a farmer. If you were to ask Jabez’s neighbors what he did for a living, they would qualify his description somewhat by telling you that, although he works very hard at being a farmer, maybe he is just unlucky, maybe he isn’t a good farmer but, undeniably, he is not a successful farmer.

For example, when the winter snows of New Hampshire melt and the ground thaws and Jabez hitches his plow to his horse and heads to his field to turn the soil, invariably, inevitably, his plow will strike a rock and break a blade. When his crops need rain, they get scorching sun, and when they need sun, there will be a deluge.

One day, as he was standing in his field looking down at another year’s decimated crop, the years of frustration and failure finally overwhelmed Jabez Stone and he muttered under his breath, so quietly that he almost could not hear the words himself: “I would sell my soul to the devil for a few years of good harvests.”

No sooner had those words tumbled from the mouth of Jabez Stone than he sensed that he was no longer alone in his failed field. And he was not, because seemingly as though he had materialized up from the ground, a tall, rail-thin man now stood next to Jabez.

And although the man was impeccably, expensively dressed all in black, his clothes carried with them the distinct smell of burning sulfur. The man didn’t introduce himself to Jabez — he didn’t need to — Jabez knew who he was and why he was there; and the man knew that Jabez knew.

In a few minutes, the deal was done. Jabez Stone had sold his soul to the devil for seven years of good harvests. And the devil kept his word; Jabez’s crops flourished and his family became wealthy. But the years went by quickly, much too quickly for Jabez, and one day Jabez again sensed the man’s presence and, when he turned to face him, Jabez noticed that the devil carried with him a small black box — a box in which the prince of darkness would capture, carry to the underworld, and keep for eternity, the immortal soul of Jabez Stone.

When Jabez saw the devil and his box, he knew he was in the tightest spot imaginable.

Jabez knew what he needed and he knew who he needed, so he took off running to the home of attorney Daniel Webster, the greatest lawyer of his day. By now, it is probably apparent that the facts of the case do not come from a case book or a bound volume of reported decisions; they come to us, instead, from a short story written in 1937 by the American author Stephen Vincent Benét.

As the story goes, counselor Webster took the case and argued it to a jury chosen by the devil himself — a jury of the damned — but when that jury came back with its verdict in the case of the Devil v. Jabez Stone, it found in favor of farmer Stone and against the Ultimate Injustice.

The Devil and Daniel Webster was intended to be a tribute to the legal and oratorical abilities of Daniel Webster. Webster was, of course, a real lawyer and was considered to be the greatest lawyer and orator of his day. He also served in the U.S. Senate, the House of Representatives, and as Secretary of State. Benét’s story places a real lawyer in a fictional setting in opposition to the devil — a wonderful metaphor for injustice.

The Devil and Daniel Webster is not the only example of lawyers being lionized in literature. In Harper Lee’s To Kill a Mockingbird, the hero was lawyer Atticus Finch, a fictional character, but the story — the prosecution of a black man falsely accused of assaulting a white woman in a small town in Alabama during the Depression — is said to be based on true events.

So we have a real lawyer in a fictional story and a fictional lawyer in a true story. And then we have the third type — the craziest of all — a story which proves that sometimes authors of fiction don’t know when to quit.

In this story, the central character is the descendant of slaves. As a child, when he misbehaved, his father punished him by making him read the U.S. Constitution, and because of that, he takes a interest in the law and goes to law school — but not to his first choice of schools — he is denied admission to his state school because of the color of his skin.

Ultimately, he becomes a lawyer and argues 32 cases before the U.S. Supreme Court, winning 29 of them. Along the way, he sues the school that denied him admission on behalf of another young black man who wanted to attend law school and he wins that case. Finally, he becomes the first African-American to serve on the U.S. Supreme Court … I’m sorry … I got confused — that’s not fiction, that’s fact — he’s Thurgood Marshall.

The point is that, although lawyers take more than our fair share of criticism, and a great deal of unfair criticism, it’s a fact, not fiction, that our democracy would not exist without an effective justice system and our justice system would not exist without lawyers, on the bench and at the bar, who are the bedrock of that system; and it’s a fact, not fiction, that lawyers, on the bench and at the bar, are most responsible for the creation, implementation, and protection of our democratic rights; and it’s a fact, not fiction, that lawyers on the bench and at the bar practice daily by the principle that, while the law may be our trade, we know that justice is our profession. 

WSBA President Mark Johnson can be reached at 206-386-5566 or mark@johnsonflora.com.