My Choice for the 2017 Harper Lee Prize for Legal Fiction

My last post set out that Gone Again by James Grippando was the winner of the 2017 Harper Lee Prize for Legal Fiction. This post provides my thoughts on which book from the shortlist should be the winner. On the shortlist were:

1.) Gone Again;
2.) Small Great Things by Jodi Picoult; and,
3.) Last Days of Night by Graham Moore

Among the criteria for determining the winner is the direction that Award is to go “to a book length work of fiction that best illuminates the role of lawyers in society and their power to effect change”.

Gone Again is a classic death penalty case in which Jack Swyteck seeks to save Dylan Reeves from execution. While Reeves is a despicable person Swyteck comes to believe he is innocent of the murder of Sashi Burgette.

Complicating the process is that Sashi and her brother are international adopted children from Russia. A compelling subplot to the book involves the legal and ethical issues with international adoptions gone badly. I had never heard of rehoming before reading the book.

Swyteck pursues a writ of habeas corpus with a more novel claim than most such applications - there is evidence Sashi is still alive.

Gone Again does a good job of showing lawyers have an important role in society of defending the damned and challenging wrongful convictions. 

It does not really show a lawyer effecting change. There were no arguments involving the death penalty that might bring about change beyond showing the risk of executing the innocent.

It was a book about a good lawyer, Swyteck, doing his job.

In Small Great Things the defence lawyer, Kennedy, defends a black nurse, Ruth Jefferson, charged with murdering the newborn son of a pair of white supremacists.

Race, though Kennedy wants to avoid any mention, is going to be at the heart of the trial when the parents insisted on a note being put on the chart that no African Americans could care for their child and the baby dies while under Jefferson's care.

The book contains a powerful examination of America's current race relations but once again there is little in Kennedy's role that shows a lawyer effecting change.

Kennedy comes to realize her blind spots as a white American but her skillful defence is not about changing race relations. It raises consciousness but is not effecting change.

Last Days of Night is perhaps the best of the group at showing the role of lawyers. In the great war over the light bulb between Thomas Edison and George Westinghouse the book shows the important role lawyers have in determining who invented rather than improved or adapted inventions. Patent law provides a method of registration that allows inventors prove their inventions.

While the book set in the late 1880's the principles of patent law have already been well established. Young Paul Cravath is not really effecting change in society.

What Cravath does do in the book is to establish the structure of the modern team lawyer approach to complex commercial litigation. He sets a quartet of young law students to weeks and months of intensive document review and legal research. Any young lawyer in the litigation department of a big law firm will be familiar with that approach to litigation.

In examining the books concerning the role and power of lawyers none of the books was strong on the issue of the power of lawyers. All were strong on the role of lawyers in society.

Last Days of Night, as set out above, did show an innovative lawyer with regard to the structure of litigation teams. For this reason and, far more importantly for me, because I thought it the best book I have read this year I think Last Days of Night should have won the Award.

2017 did have the strongest trio of books on the shortlist for the years I have been reading the books on the shortlist. There was not a weak entry this year.

2017 Winner of the Harper Lee Prize for Legal Fiction - Gone Again

A few days ago Gone Again by James Grippando was chosen as the winner of the 2017 Harper Lee Prize for Legal Fiction. The other books on the shortlist were Last Days of Night by Graham Moore and Small Great Things by Jodi Picoult.

Grippando told Award Co-Sponsor, The American Bar Association Journal, after being chosen:

“I don’t know who’s happier, James Grippando the writer or James Grippando the lawyer,” he said. “Winning the 2017 Harper Lee Prize for Legal Fiction is easily the proudest moment of my dual career.”

Molly McDonough, editor and publisher of the ABA Journal said:

Grippando’s book does a masterful, entertaining job exploring the important topic of the death penalty and actual innocence.

Gone Again was not the winner of the ABA Journal’s annual poll of readers with regard to the shortlist:

          1.) Small Great Things – 83.24%

          2.) Gone Again - 13.42%

          3.) Last Days of Night - 4.22%

Small Great Things drew a higher percentage of votes than any other book in the polls of the past few years with regard to the Prize.

It is a disappointment that the University of Alabama Law School, co-sponsor of the Award, has yet to put up a post about the winner on the section of its website devoted to the Prize.

Grippando will receive the Award on September 14 at the University.

On the website of his law firm, Boies Schiller Flexner, Grippando’s biography states:

His recent litigation and appellate experience includes trademark and copyright infringement arbitration, trade secret disputes, and a major victory at the U.S. Second Circuit Court of Appeals in a class action lawsuit involving Madoff investors. He regularly provides antitrust, intellectual property, and other advice to a wide range of clients, from Tony Award-winning Broadway producers to the world's largest sanctioning body for stock car racing.  He has lectured at various conferences for the American Bar Association and the American Intellectual Property Law Association, published editorials on timely legal issues in the National Law Journal and other major newspapers, and provided legal insights on national TV programs, such as MSNBC’s “Morning Joe.” 

In my latest posts I have reviewed all of the finalists for the Award. 

My next post will set out which book I thought deserved to win the Prize.

Small Great Things by Jodi Picoult Continued

In my last post I started a review of Small Great Things by Jodi Picoult providing my perspective as a lawyer on the evidence as it unfolded in the book. This post carries on with that review with my comments as a lawyer in italics.

Now the parents are convinced this black woman murdered their child. They hate her. Jefferson’s public defender, Kennedy, wants to keep race out of the trial.

That is impossible. The note cannot be ignored. The baby’s parents are not merely prejudiced. They fervently believe in the superiority of the white race. The issue of race will be in every juror’s mind.

Ruth has spent a lifetime living the race consciousness of America. A prominent African American broadcaster and minister reaches out to her wanting to publicize her charges as racist.

Not a good idea. The parents of Davis had nothing to do with the actual circumstances of death. A public campaign does not help a defence in Canada. From the North I am not sure whether American jurors can be swayed by such overt public appeals.

Jefferson’s pride will not let her take financial assistance for her living expenses. She takes a job at McDonald’s.

Pride is more often a vice than a virtue when you are a criminal defendant. I have told many clients (I am a private counsel rather than legal aid) in trouble that they need to find the resources to properly defend their case and, if they lack the resources, they may need to seek out assistance from family and friends. Refusing help is a bad idea. I know if Ruth had a friend or family member in trouble she would offer assistance. It is not weakness to take help when it is needed. Her stubborn unwillingness to accept help when she is facing life in prison and is the single mother of a 17 year old son is great for literary tension but simply perverse when it risks his future as well as her own.

I thought of famed San Francisco defence lawyer Jake Ehrlich on his fees for defending murder. His fees were E-V-E-R-T-H-I-N-G the client owned for what could be more valuable than saving a client from execution. Ruth was not facing execution but she was facing life in prison.

It is on the eve of trial that expert evidence for the defence is found providing a credible defence.

Only in fiction to build drama would an expert be consulted so late in the process. In real life it would be one of the first steps of the defence. The author could have built just as much drama from such an early consultation and the State’s refusal to accept the evidence of the defence expert.

****

While my review above concentrates on the legal case Picoult’s focus in the book is building a powerful portrayal of the perception of race dominating American life through the examination of the charges and the trial.

For the second year in a row there is a finalist for the Harper Lee Prize for Legal Fiction fraught with the tensions of race relations in America.

Last year it was The Secret of Magic by Deborah Johnson. Young black lawyer, Regina Mary Robichard, goes to Mississippi in 1946 to investigate the murder of a decorated Negro (the description of the day) war veteran. She encounters a rigidly segregated American South.

Sixty-nine years later Ruth lives a life in which there is subtle segregation. She can work in a prominent hospital. She can live in a mainly white neighbourhood. Her son can attend a mainly white school. However, she is not really a part of the life of her white colleagues nor is she really a part of the neighbourhood nor is her son really a part of the school. There is tolerance rather than equality.

Small Great Things is an exceptional book. My only disappointment is in the ending but not in the result of the trial. The finish of the book after the trial felt contrived after the scorching realism of the rest of the plot. I know I expect too much of popular fiction to have a realistic ending. 

Reading Small Great Things forces white readers to face their personal attitudes towards race. Looking at my own attitudes left me uncomfortable.

Small Great Things by Jodi Picoult

(25. – 912.) Small Great Things by Jodi Picoult – When I read a book featuring the defence of a criminal charge I, as a defence counsel in part of my real life legal practice, inevitably go through the book assessing the case presented by the author. My review of Small Great Things in this post and my next post will follow my assessment of the murder charge against Ruth Jefferson. My reactions and/or thoughts as a lawyer are in italics. Some of my remarks will be spoilers if a reader wants to limit their knowledge of the plot. I do not reveal the result of the trial but there may be more information than some readers would like in a review. (While I have defended many types of charges and assisted on murder cases I have never conducted the full defence of a charge of murder.)

In Small Great Things Ruth is a labour and delivery nurse at Mercy - West Haven Hospital. She has been working as a nurse at the hospital for over 20 years and is well respected for her skills and professionalism.

A jury will start out with respect for her as a dedicated health care professional.

One night she is called to assist with Davis Bauer, the newborn child of Brit and her husband, Turk, who is described as “hulking”. They are white supremacists appalled that Ruth, who prefers to be referred to as a woman of color rather black or African American, is his nurse. Turk insists the nursing supervisor put a note on the chart that no one like Jefferson can take care of the baby.

Race is going to be an issue in the trial. Will it help or hurt the defence?

While reluctant the supervisor posts a hot pink Post-It note on the chart saying:

NO AFRICAN AMERICAN PERSONNEL TO CARE FOR THIS PATIENT.

I think the hospital is in real trouble civilly when a supervisor posts such a note and it remains on the chart. Criminally the note is making the accused a victim.

During her examination of the baby Jefferson detects a possible heart murmur.

A day later, Davis is recovering from an operation for circumcision when there is an emergency C-section taking the other nurses from the ward and Ruth is directed to watch the baby. While she watches him he stops breathing. Uncertain what do because of the note she freezes but then assesses the baby. Hearing someone coming she wraps up the baby. She tells the supervisor returning to the ward that she was doing nothing. Ruth has lied and repeats the lie during the subsequent investigation and to her lawyer.

Lying, even well motivated lying, to another witness is harmful but more often than you would expect not decisive in a criminal case. Lying to your lawyer is stupid though it happens all too often.

The supervising nurse takes charge and a full scale effort is made to resuscitate Davis. Ruth is directed to commence compressions. Using two fingers she begins compressions of the baby’s chest. At one point she is told her compressions are too intense. Despite all efforts Davis dies.

What is the actual cause of death?

It is:

…. Hypoglycemia leading to hypoglycemic seizure leading to respiratory arrest and cardiac arrest.

How is Ruth legally responsible for such a death? What is the expert evidence in support of the official cause of death? Could there be another cause?

Ruth is charged: count one is murder and count two is negligent homicide. 

Murder is a reach. Where is her pre-meditation? She had no idea she was going to be put in charge of monitoring the baby. With regard to compressing the baby’s chest she was following orders. There is no indication in the cause of death that her compressions factored into Davis’s death. With regard to negligence could her hesitation be criminal? Yet what was she supposed to do when the hospital said she was not to care for the baby? Is it her legal responsibility to ignore the order of her supervisor not to care for this baby? She has been given contradictory orders – care and not to care.

(To be continued.)

10th Canadian Book Challenge Roundup (Part II)

In my last post I provided a list of the 16 Canadian authored books that I read for the 10^th Canadian Book Challenge. This year’s Challenge collection of reading was among the most varied. While 13 were crime fiction there were a trio of exceptional non-fiction books.

I like to look at the settings of Canadian crime fiction. This year’s books were set:

1.) One in Saskatchewan;

2.) One in Alberta;

3.) One in Newfoundland;

4.) One in Manitoba;

5.) One in Ontario;

6.) Two in British Columbia (one of which had multiple other international locales);

7.) Two in Quebec;

8.) One in England;

9.) One in Indonesia;

10.) One in the United States; and,

11.) One in Morocco and the United States.

What was striking was that 9 of the 13 were set in Canada. Last year 8 of 16 were fully set outside Canada and another 3 partially out of Canada.

Except for this annual post I do not consider whether a Canadian authored book is set inside or outside Canada. I admit to a continuing prejudice to prefer Canadian books set in Canada.

I was surprised that only three involved the United States as a location with but one of the three set fully in America. I am not sure whether Canadian crime fiction authors are resisting encouragement to set books in the United States or whether my reading was an anomaly.

For the first time my favourite read of the Challenge was a work of non-fiction. Letters to a Nation was written by our current Canadian Governor General, David Johnston. I was both fascinated and challenged by the personal letters he has written to Canadians past and present. I was inspired to write a letter to him of review that covered three posts. I was honoured to receive a handwritten reply. We are fortunate to have him as our Governor General.

Second was A Great Reckoning by Louise Penny. Some of her most recent books featuring Armand Gamache have not been satisfying reads. A Great Reckoning was a wonderful return to form with two amazing intertwined plots. The first was a murder at the Police Academy where Gamache has been appointed Commandant. The second involved the origins of a map found in the walls of the bistro in Three Pines. I am really looking forward to the next in the series.

Third was another non-fiction book, Final Appeal by Colin Thatcher. It involved the criminal trial of my lifetime in Saskatchewan in which the author, a former Provincial Cabinet Minister, was convicted of murdering his wife. He was writing his perspective on the case as reflected in the sub-title, Anatomy of a Frame. It was of special interest to me as I knew several of the legal participants and was interested in the decisions made before, during and after trial with regard to his defence.

Fourth was A Candle to Light the Sun by Patricia Blondel. I was captured by the story of a young boy growing up in rural Manitoba during the Great Depression of the 1930’s and then his post-war years. What made the novel truly special was the poignancy of Blondal’s personal story. Diagnosed with terminal cancer in her early 30’s she took three months away from her family to write the novel she had dreamed of writing.

10th Canadian Book Challenge Roundup (Part I)

June 30th marked the end of the 10th Canadian Book Challenge. John Mutford hosted the Challenge for its first 10 years. The new host is Melwyk at her blog, https://indextrious.blogspot.ca/. I am planning to take up the 11th Canadian Book Challenge with her.
This past year I read 16 Canadian books which is about average for me. In the 9th Challenge it was also 16. In the 8th it was 19 and for the 7th it was 18.


The books I have read for the Challenge are:

1.) Open Season by Peter Kirby

2.) A Red Herring Without Mustard by Alan Bradley

3.) The Scottish Banker of Surabaya by Ian Hamilton

4.) A Great Reckoning by Louise Penny - The Academy and Comparisons and The Map

5.) A Candle to Light the Sun by Patricia Blondal and Patricia Blondal

6.) Jack - A Life with Writers by James King

7.) Invisible Dead by Sam Wiebe

8.) Safe at Home by Alison Gordon

9.) Set Free by Anthony Bidulka

10.) Elementary She Read by Vicki Delany

11.) Final Appeal by Colin Thatcher

12.) The Idea of Canada - Letters to a Nation by David Johnston - Part I and Part II and Part III and his letter in reply

13.) Black Thursday by Scott Gregory Miller

14.) Hang Down Your Head by Janice MacDonald

15.) The Fortunate Brother by Donna Morrissey

16.) After James by Michael Helm

In my next post I will discuss the books I read during the 10th Challenge.

Paul Cravath from Last Days of Night

One of the many striking aspects of Last Days of Night is author Graham Moore’s use of real life events and people.

There was a real electric light legal war between Edison and Westinghouse. It has been described as the War of the Currents as Edison championed DC and Westinghouse stood behind AC.

Last Days of Night also brought to mind another patent law thriller I read a few years ago. In A Patent Lie by Paul Goldstein there is a major court action over and AIDS vaccine. As with the light bulb the question of who was first is at the heart of the case.

For the second year in a row a book on the shortlist for the Harper Lee Prize for Legal Fiction uses real life legal events. Last year it was C. Joseph Greaves in his book, Tom & Lucky and George and Cokey Flo. In that book there was an excellent recounting of the criminal trial of Lucky Luciano in the 1930’s.

I was further reminded of another recent work of fiction to explore a real life legal conflict. Robert Harris in An Officer and a Spy provided a powerful recounting of the Dreyfus Affair in late 19^th Century France.

Moore has done extensive research into the lives of the participants and the real life court cases.

While probably most readers will focus on Thomas Edison, George Westinghouse and Nikolai Tesla, the larger than life inventors, I was most taken with Paul Cravath. He was the founder of one of New York’s most prominent firms, Cravath, Swaine & Moore.

In the book Cravath is an ambitious young lawyer from Tennessee. He seeks to apply to law firms the principles of American factories he has observed in the operations of Edison and Westinghouse. In particular, he admires how Edison directs teams of engineers to tackle and solve problems.  Cravath builds the concept of the modern legal factory where teams of lawyers are assigned to files. While I am prejudiced against the giant law firms of the 21^st Century I recognize the team of lawyers approach is the best approach to complex court cases.

In 1922 in an address Cravath discussed what he wanted in a lawyer:

“Brilliant intellectual powers are not essential,” he told an audience of Harvard Law School students. “Too much imagination, too much wit, too great cleverness, too facile fluency, if not leavened by a sound sense of proportion, are quite as likely to impede success as to promote it. The best clients are apt to be afraid of those qualities.”

A century later his firm, now Cravath, Swaine & Moore won another legal war with the aid of the Cravath system. In 1982 IBM prevailed against the U.S. Government and other corporations against anti-trust charges. The war had lasted 13 years.

A New York Times article from 1982 described the extent of the war and Cravath’s commitment to the conflict:

The I.B.M. cases – in which the United States Government and private parties, including the Telex Corporation, the Greyhound Computer Corporation and California Computer Products Inc., charged the computer giant with violating Section 2 of the Sherman Act – produced more than 66 million pages of documents. The Government action alone took up 726 trial days and 104,000 pages of transcript; the defense called 856 witnesses and cited 12,280 exhibits.

The mood is generally upbeat these days at Cravath’s I.B.M. outpost in White Plains, where dozens of lawyers have labored in totally anonymity on the case for as long as 10 years. There, the staff is busily engaged in the lawyerly equivalent of striking the big top – deciding which materials to “archive” or to “access,” stuffing records into boxes marked “Confidential Waste,” “Document Retention” and “Otherwise Disposable.” 

That case was also the first time I read of a lawyer billing more than 24 hours in a day. One associate purportedly billed 27 hours for one marathon day that involved working for 3 hours more than 24 hours because he flew to California from New York during the day and gained 3 more hours.

What is most amazing about Cravath’s defence of Westinghouse was his age. At 26 he was defending Westinghouse from what I believe was the largest claim in American history as of the end of the 19^th Century. I am not aware of any other billion dollar cases. Certainly in a 21^st Century big law firm he would have been toiling away on document review rather than leading the defenders.

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Moore, Graham - (2011) - The Sherlockian and Email Exchange with Graham Moore, Author of The Sherlockian on Self-Garroting; (2017) - Last Days of Night;

Last Days of Night by Graham Moore

Last Days of Night by Graham Moore – 

Brilliant!!!!

I find few books brilliant and fewer yet deserving of brilliant with exclamation marks. Last Days of Night is brilliantly written, brilliantly plotted, has brilliant characterizations, brilliantly uses historical figures and events and is brilliantly named. Lastly brilliant is so appropriate for a book focused on electric light.

Set at the end of the 1880’s Last Days of Night manages to make a patent law conflict into a riveting thriller. While ordinarily patent law is a complex, at times esoteric, area of law it comes vividly alive in Last Days of Night.

Paul Cravath, 26 years old and barely two years out of Columbia Law School, is contacted by George Westinghouse to defend his company from patent infringement allegations made by Thomas Alva Edison.

Edison alleges Westinghouse has breached Edison’s patent on the electric light bulb. While the light bulb is a mundane object of little notice in the 21^st Century it was at the forefront of scientific exploration late in the 19^th Century.

Determined to drive Westinghouse out of business for challenging him, Edison sues Westinghouse for $1,000,000,000! The one billion dollar claim would be startling today. It was a staggering amount for late Victorian times.

Why Westinghouse would retain such young counsel is a reflection of the tightly connected business world of New York City in that era. Every major law firm in New York had either worked for Edison or his largest shareholder, J. Pierpoint Morgan. Cravath was too new to the legal business to have a conflict of interest.

Following a legal strategy still used by Big Business almost 130 years later Edison seeks to overwhelm Westinghouse and Cravath by volume of litigation. Taking to the courts against Westinghouse’s main corporation and subsidiaries all over America Edison launches 312 separate court actions. It is legal war over electric light.

It is a daunting struggle for the young Cravath. Edison clearly reached the Patent Office with the first electric bulb patent. Westinghouse, a much better industrialist, significantly improved the electric bulb and has a much better product. However, how can he distinguish his light bulb from the patented Edison bulb.

Looking to penetrate Edison’s actions in inventing the light bulb Cravath searches out, Reginald Fessenden, recently fired by Edison. A generous offer lures him the Purdue University campus to Westinghouse.

Fessenden recommends that Westinghouse recruit the most brilliant inventor of that era, Nikolai Tesla. (I contend “brilliant” is apt not over-stating Tesla’s intellect.) The Serbian born scientist is eccentric to the extreme but his restless mind constantly releases new ideas.

Tesla aids Westinghouse’s cause by providing breakthroughs in the use of alternating current (AC). Edison, stubborn beyond scientific reason, uses direct current (DC) in his machines. The conflict, thus begun over the light bulb, now includes AC v. DC. An epic legal contest is extended from the light bulb to which company shall control the production and nature of electricity in America .

Through the legal fray there is skulduggery, treachery, a touch of violence and amazing minds conjuring the future.

In Cravath’s personal and professional life comes Agnes Huntingdon. The most popular singer of the day is a beautiful, very self-possessed young woman. The nature of the relationship between Cravath and Huntingdon surprised this reader.

It is the best book I have read in 2017 and a worthy member of the shortlist for this year’s Harper Lee Prize for Legal Fiction. Best of all it is based on the truth.

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Moore, Graham - (2011) - The Sherlockian; Email Exchange with Graham Moore, Author of The Sherlockian on Self-Garroting