We all live in the grey to a greater or lesser extent. The moral grey, that is. It’s an everyday reality of being part of our society and part of the human race.
Most of us also tell our stories–amusing anecdotes, explanations of our actions, justifications for problematic behaviours or outright mistakes and transgressions–with a subtle or not-so-subtle spin that builds in the ways in which we justify our actions. We preface our narratives with explanations of our reasoning, our paradigms, our perspectives or contexts, such that any unsympathetic, foolish or otherwise questionable behaviour seems more justified in the re-telling than it might have been to others who witnessed our actions in real time.
It’s part of human nature, and part of our process of becoming socialized.
In my day job, it’s all grey. In family law, the law part is generally fairly clear, except around its outlying edges–the marginal, threshold cases. The bulk of the battle in family takes place in the arena of the facts. The “he said, she said”s, and the greys. Some of these distortions are intentional, and some are simply the result of emotions and the ways in which distress, anger, stress, as well as love or affection, distort and haze over the perceiver’s ability to accurately remember what took place.
As a lawyer, this can be stymieing. I listen to the client’s account of what took place, constantly asking myself where the self-justifications are hidden, because somewhere behind that subtle (or not at all subtle) spin, amid all those small or significant self-favouring distortions, is something like the truth, and beyond that “truth”, is the ex’s version of events, which will tend make similar distortions in favour of his or her position.
To be clear, I’m not condemning my clients for presenting the self-justified, distorted versions of events. We all do it–it’s part of who we are. The problem with my clients’ self-justifications is that they create a huge unknown. I can only assess our chances of success in making a claim, in relation to rights that arise out of the legislation and case law, if I have accurate facts on which to base those assessments. So, I draft up materials, and take a position, on the basis of what the client has told me, sometimes adjusted to a less extreme position on the basis of my own assessment of credibility (along the lines of “a judge will never buy that, because even I don’t”). And sometimes I get blindsided, when I receive the materials from the other side and there’s a sinking feeling as I wonder just who is being suckered, and might it just, possibly, be me? Did I just swallow a line, was this new revelation totally out of left field, involving significant information that my client simply didn’t disclose and I couldn’t possibly guess at, or is it the other side that’s full of bull?
This can be intensely frustrating, in the middle of spirited volleys of letters, or rushes to serve and file court documents under the wire of fast-approaching deadlines.
But the writer in me–that detached, analytical observer who lives in a creaky garret in a corner of my brain, and doesn’t have to worry about looking like an idiot in court–is absolutely fascinated.
In everyday life, we are not usually forced to come face to face with this kind of ambiguity. An anecdote, or an indignant account of a grievance experienced is just that–and we can sympathize with a friend or acquaintance, without needing to make too close an assessment of whether or not, and to what extent, the narrator is unreliable. It really doesn’t matter, ultimately, in the context of being engaged by the telling of an incident, or lending a sympathetic ear. So, we may feel skeptical at some really blatant distortion, but for the most part, we suspend disbelief to a greater or lesser extent.
Another gap that I see in my everyday practice–which frustrates me as a lawyer and fascinates the writer in me–is the disparity between what someone says, and what he or she actually does. In our everyday lives, self-representations about intention often don’t really matter. One can occasionally be frustrated because a co-worker doesn’t follow through, or someone drops the ball. But here, that gap can have profound effects and significant consequences, which, at the extreme, includes the kinds of ethical dilemmas I talked about in Part 1.
I hear a lot of “I just want to be fair”, sometimes on endless repeat, juxtaposed with actions that appear to me to be anything but.
It’s like the concept of the unreliable narrator in fiction–how any first person or point of view narrator in a story creates the potential for unreliability. It’s that gap between what probably happened, and what the point of view character perceives as having happened. In the case of the first person narrator, there are actually three potential layers: between what actually happened, what the narrator perceived as having happened, and what the narrator says happened. Sometimes, but not always, the latter two blend, with recollection of what was perceived distorting and blending into what is recounted in the retelling.
A skilled author can bring out at least one of those gaps (actual/perceived; actual/recounted). A masterful writer can bring out all three levels (actual/perceived/recounted).
As a lawyer, part of my ethical imperative is that, like Cassandra of Greek mythology, though I see much, I cannot speak of what I see–not in a way that would violate privilege and confidentiality.
I take that very seriously. But I can generalize, and interpolate, and seek to understand more about human nature, about the gaps between personality (how we present ourselves to the world) and character (how we react when placed under pressure and tested), and about the ways in which we are all unreliable narrators. As a writer, any such insights I am able to reach are invaluable to my development, helping me to add nuance and subtlety to the characters I create.
And ultimately, understanding the myriad, fascinating and sometimes disturbing ways in which we are each unreliable narrators, might also help make me a better lawyer as well.