Unused and Probably Unusable

As we return to our recurring examination of the books of Robert Heinlein for material of legal interest, let's continue last week's discussion of litigation, courts, trials, and lawyers, with an inquiry into how Heinlein depicted lawyers (including some trial lawyers), and what happens when Heinlein characters go into a courtroom without one.

Maybe the title above should be Lawyers: Beyond Stereotypes?

Some Heinlein lawyers, like some Heinlein judges as I noted last time, are in fact a bit... two-dimensional. Or unpleasant. Villains, even. Everybody likes a good villainous lawyer - or rather, loves to loathe one.

Friday

The disastrously, viciously unhelpful Rhoda Wainwright, in Friday (review; hey, I just realized! Heinlein Fridays - heh), is less of a trial lawyer (she's shown only in the context of... (spoiler)

In passing I'll note that Friday is replete with Good Law, including discussion or depiction in action of Family law (marriage, including in totally non-traditional arrangements; divorce), Corporate law, Property and personhood (what counts? Are non-human sentients — or even human-but-designed people — more like natural persons, or more like machines?), Privacy and protections against search and seizure and invasion of the home, and a really substantial amount more. For an action-adventure, Friday shows a really highly developed sense of law, politics, science, and humanity. I wish I could make blogging look that easy.

As I mentioned last time, I wanted to point a spotlight at the pro se representation in The Rolling Stones. We're almost there. First, a trial lawyer or two.

Citizen of the Galaxy

Thorby, slave-turned-spacer protagonist of CotG, is a bit like Kim (see this spoiler-laden review, which doesn't note the similarity, and compare the Wikipedia article, which does).

In his adventures, there comes a time when he needs someone. Not a "snotty shyster" like Rhoda Wainwright (Friday, Del Rey, 249), but someone cast from an entirely different mold.

Thor is presented with a legal roadblock, and he's outgunned, outnumbered, and outclassed. He needs a shark of his own. So he consults a lawyer - Counselor James J. Garsch (CotG, Del Rey, 225-231, 239-252). Garsch is a gunslinger, a fighter. Thorby's first introduction to him is not promising - unless you know Heinlein.

The reception area is crowded; the receptionist's "mouth was permanently pursed in 'No.'" Thorby is ushered into the presence, where the lawyer looks "like an unmade bed." (In an amusing science-fictional touch, the lawyer's dress of trousers rather than tights indicates a lack of proper appearance, akin to his bulging gut.)

Garsch is informal ("siddown") and a bit patronizing (He corrects Thorby's use of the term "confidential" when he asks if the conversation will be, saying

Privileged, son. The word is 'privileged.' You don't ask a lawyer that. Either's he's honest or he ain't. Me, I'm middlin' honest. You take your chances.

This is both true (a conversation is privileged; while that means the lawyer should keep confidential anything he or she learns, see Model Rule 1.6, it further means that the information cannot be disclosed in court or otherwise (stronger than a duty of confidentiality; it's the holder of the privilege's right to exclude) unless privilege is waived or overcome) and also highly significant.

Garsch is not being folksy for no reason. He's not pompous, he's personable and shares typical Heinlein wisdom (You draw your cards and you take your chances; There's no way to ask a man if he's honest and get a useful answer). But by immediately leveling with Thorby, he's making himself the utter opposite of Thorby's enemies, who are hypocrites willing to utter blandishments, congratulations and reassurances to his face, but never admit that their interests are selfish and opposed to his.

Garsch, by admitting that he might or might not be honest, is identifying himself as a hero. Yes, you heard that right.

My favorite part is his bit about "middlin' honest" - it of course evokes Hamlet, with his lines to Ophelia:

Get thee to a nunnery: why wouldst thou be a
breeder of sinners? I am myself indifferent honest;
but yet I could accuse me of such things that it
were better my mother had not borne me: I am very
proud, revengeful, ambitious, with more offences at
my beck than I have thoughts to put them in,
imagination to give them shape, or time to act them
in. What should such fellows as I do crawling
between earth and heaven? We are arrant knaves,
all; believe none of us. Go thy ways to a nunnery.
Where's your father?

(Hamlet, Act III scene 1).

Garsch, balding, graceless (he bites his fingernails during the meeting, fails to stand up to greet Thorby), unshaven, nevertheless delights Thorby, who is "bucked up":

"He had never met a more mercenary, predatory old man - he reminded Thorby of the old, scarred freedmen professionals who swaggered around the New Amphitheater" back where Thorby grew up - a rough spot, Sargon, which had slavery, heads on pikes, and poison gas used by the local version of cops on criminals and the unlucky.

Garsch then proceeds to take Thorby's money and fight the for him tooth and nail. (brief spoiler)


The legal maneuverings in I Will Fear No Evil (wegrokit review; Heinlein society article (amusingly titled "An Angry Fabulist's Expression of 'Rejection Syndrome'" - this is why I don't write scholarly criticism, but prefer to tell you whether something's any damn good, or at least interesting)) were similar.

In both books, a major legal battle develops over whether the main character is who they say they are, and regardless of whether they are, whether the other parties can nevertheless interpose themselves and prevent the protagonist from getting what they are claiming.

In both, a lawyer takes up the lance on behalf of the main character, doing through skill and slipperiness what the hero cannot on their own. Jake Solomon, of IWFNE, is no "karky fixer," as one character slangily puts it, but a deeply loyal, zealous advocate for his client. Garsch is a more-mercenary version of the same thing: he stays bought, and fights hard for his client.

Enough, for a moment, about trial lawyers. Let's see what happens when a Heinlein character goes before the Bar without having first passed the Bar.

Pro se representation

"He who is his own lawyer has a fool for a client" - although apparently, defending another can be a different matter.

Before getting to fools, I want to finally get to The Rolling Stones, as well as refer again to The Star Beast.

The Rolling Stones

This one's interesting. (See review at Gotterdammerung dot org, "Although not Heinlein's best [novel for juveniles], TRS is one of his funniest." Hazel Meade Stone, matriarch of the Stones who go Rolling, is a formidable character. An original patriot of the Lunar Revolution, an outstanding liar, space pilot, haggler, and screenwriter of sci-fi serials, Hazel wouldn't likely encounter her match in a galaxy... except for her family. (Wikipedia article on the book.) Her youngest grandson, Buster, cheats at chess... by reading her mind. Her twin grandsons Castor and Pollux are two of the greatest rogues in all of Heinlein's books, after perhaps only Lazarus Long himself. Her son, who is the stay-at-home placid member of the family, is a former Mayor and engineer; her daughter-in-law is a physician who says "Yes, dear" to her husband but always gets her way. With these folks in her crew, Hazel can - and does - go anywhere.

So when the Terrible Twins get in trouble with the law, Hazel steps in, and saves the day.

[A legal aside: when marking something for later retrieval in orbit, the Stones post it with a notice, "Not for Salvage," and declare their intention to return to claim it, citing to U.P. Rev. Stat. # 193401. Since there is no Revised Statute collection codified by - what, Universal Planets? - this is an amusing invention.]

The court scene comes (Del Rey, 167-175) when the Twins are charged with fraud and conspiracy to evade tariffs. There's a fairly good brief discussion of the charges, and then we're before the judge, in medias res. Naturally, Hazel argues for the boys.

"Since when is she admitted to the Bar?" asks her son, but that's not too big a problem; on a frontier, things are more relaxed, and UPL is not a crime (unlike Texas nowadays).

Dr. Stone wonders, "shouldn't the boys have a regular lawyer?" In fact, Hazel ties the prosecutor in knots, successfully arguing for a clever characterization of the goods in question which simultaneously admits that they are what the prosecutor says, without agreeing that they ought to be subject to the tax. It's excellent lawyering. The judge reproves the prosecutor, who tries in vain to keep the focus on the "plain meaning is plain meaning, rose is rose" argument whereby if it is what he says it is, defendants lose. The judge doesn't buy it, instead adopting Hazel's folksy analogy that a roast pig is a luxury - but "Not to the pig, son." This seems perhaps like an overly familiar way for a judge to address a prosecutor before him, until the prosecutor slumps his shoulders, says "Sorry, Dad. I got excited." and rests his case. I guess things really are different on a frontier.

This delightful scene is similar enough to the aggressive lawyering done by Betty on behalf of John Thomas and Lummox in The Star Beast (mentioned last time) that I'll let it go with a recommendation to read those courtroom scenes as well, plus some brief description below after "Coventry."

Finally, sometimes pro se litigants really are fools.

"Coventry"

In the opening lines of Coventry, the court is sentencing the protagonist, who is unrepentent despite the jury's guilty findings. He is presented with the Two Alternatives (being sent to Coventry, or accepting treatment for his maladaptive behavior - given the title of the story, which do you think he chooses?), and wants the opportunity to say his piece before he does. The "hero," David MacKinnon, is ungracious, unreasonable, and speaks exceedingly informally ("Do I get to talk, or don't I? It 'ud be the best joke of this whole comedy, if a condemned man couldn't speak his mind at the last!") - and amazingly enough doesn't receive a contempt rap for his display. Possibly because the entire point of the proceeding is his failure to abide by social norms....

MacKinnon, like other Heinlein protagonists who speak wildly in defense of individuality and freedom (I'm thinking now of Peewee and Kip in Have Spacesuit, Will Travel), seems to be missing some truths about the situation. The Senior Judge asks for permission to correct the record, and responds: "The Covenant is not a superstition, but a simple temporal contract entered into [...] for pragmatic reasons." The Judge further discusses the social contract, and why MacKinnon's actions and attitudes did not merely violate it, but mean that he poses a danger to society.

The Judge also neatly differentiates between disliking someone (or approving when someone gets punched in the nose, or hit by a pie, as I would approve if someone acted rudely towards Ann Coulter, who is a bigot and jerk) as contrasted with thinking that somebody has the power to actually inflict that punch or pie or otherwise acting on the dislike. I would never punch or pie Ann. I can cheerfully discuss pie-ing her, or suggest that the world would be best served if she would go take a long vacation elsewhere and forget to return, but I am not interested in personally infringing on her rights, civil or otherwise. That's her thing (an example: urging an angry mob of her supporters to deal with protesters by saying "You're men. You're heterosexuals. Take 'em out." Emphasis added. Ann, you urged something that might have been a polite request for eviction of a disruptive influence, but reads in context like a call for mob violence. You're a dangerous nutjob, Ann).

Compare David's performance in "Coventry" with John Thomas' capitulation to the judge in The Star Beast (Del Rey, 78). John is so honest, so naive, he thinks that admitting liability and offering to pay damages in court is going to be the best way to resolve issues. Betty Sorenson, his friend and possible love interest, aware that negotiation is best entered into from a position of strength, tries to hush him. The judge rules that no confession will be binding, and so allows him to speak despite his youth and inexperience - two shortcomings Betty appears to not possess, despite being John's age and not a lawyer. Betty uses every procedural and substantive argument that she thinks will work to achieve her goals, including asking for a change of venue, for the judge to recuse himself, attempting to create a mistrial, asking that a supposed animal be allowed to testify as a witness, not to mention her maneuverings to be present at all.

Betty arranged for John to sell her a half interest in the titular beast which is the subject of the consolidated actions, so that she has standing. See discussion at pp.59-61.

Betty is, in fact, the most adept legal actor in the book - possibly the most acute diplomat as well. My biggest disappointment with the book (aside from a few minor instances of patronizing language from the bigger, older, more experienced males, which Heinlein does not *quite* disapprove ("Confound her pretty blue eyes," references to paddling, etc.), is that the question "Miss Sorenson... how does it happen that you do not ask to be ambassador yourself" (p.251) receives no satisfactory answer. Well, the book was published in 1954.

So what can we take away from all this?

If you're charged with something, have a lawyer. Unless you're actually smarter than the prosecutor and/or judge, and have more cards up your sleeve, you want the best representation you can obtain. After all, a trial lawyer is a trained warrior, a skilled advocate able to think about your problem and on behalf of you without losing the ability to think strategically.

The worst failing for any pro se defendant is to be unable to recognize when you yourself lack credibility; to differentiate between your strong arguments and your frivolous ones; to decide when to encourage the defendant to testify, and to enable that testimony to be presented in the best light, and when to encourage the defendant to relax, and let more competent advocates put forward the arguments.

[Funny: I found this site by googling the words Heinlein lawyer. It notes that it was removing e-Books subsequent to nastygrams from lawyers representing Tolkien's estate. It reprints said e-mail, noting it "is pretty much exactly the same as the email that I received from Robert Heinlein's lawyer, accept [sic] that Robert's hired gun at least had a sense of humor." Well, H.Hill and/or Mad Ogre, hopefully the take-down ended your legal troubles. But that's what happens when you facilitate copyright violation, and you're a big, fat, visible target.]

Tune in next time for one of my planned Heinlein Fridays, on either Vigilantism or Aliens/Combatants. Vote today for topics you want to see!