Minnesota lawyers: take out a sample of some of your recent legal writing (a brief, a contract, correspondence). Does it sing? Is it lyrical? Does it reflect your hard-earned erudition, your wit, your passion, and your personality? If so, you might have a problem.
I recently had the immense pleasure of interviewing a Minnesota litigator and poet, Tim Nolan (author of a collection of poetry, The Sound of It). Among many other refreshing and wise insights, he reminded me that the best legal writing, in most cases, should maybe be invisible rather than beautiful. It should not dazzle or draw attention to itself. It should just get the job done.
ML: Before our meeting, I sent you some questions to think about and let’s start with my question about “judge poets” (“Are there poets on the bench today?”)
Tim Nolan: Here’s what I’ve been thinking about. I don’t think of judicial opinions as being available to poetry. Somebody can write well in a judicial opinion, it’s not a poem. When judges attempt to be literary, usually they fail and there’s a kind of awkwardness and self-indulgence that is disturbing to me. I’m thinking you brought up the marriage equality case. I read Kennedy’s opinion. There’s some beautiful language in there and yet I don’t think of any of it as being the language of poetry because it’s serving the needs of the case. It’s like practicing law would be great if you didn’t have clients, you didn’t have cases, you didn’t have facts.
ML: Are you saying that’s what poetry is, it’s law where you have no facts, cases, clients, or …
Tim Nolan: I’m saying that a requirement of poetry for me is that there has to be an element of the transcendent in the poem or reaching after the transcendent. That’s very much not what a judicial opinion is. A judicial opinion is grounded in the facts of the case and the law.
There are constraints on what a judge can do in an opinion with the language but there aren’t in a poem. I really get annoyed when judges … occasionally I see these opinions where judges indulge in literary extravagance and I find that disturbing because the judge should disappear. The judge should not be present really at all. When a judge steps forward and says — and lets the language take over — I think they do a disservice to the decision. It should be almost without personality in a way.
Whereas a poem of course is full of personality. Every single syllable is me, me, me, in some way. It’s appropriate in a poem to have the persona front and center. Often it’s what we really admire, the very best poems, we have a sense we know this person, we know how they think and how they put language together and what sort of sense of music and rhythm and thought they employ.
There’s a judge who has retired now, Franklin Knoll. He writes poetry in the last couple of years since he’s retired. He writes these very simple … what’s kind of interesting about it is they’re about his practices as a judge and different stories, scenes, people appearing, they’re very progressive in their attitudes and stuff. He’s got a deep connection to the people who have appeared before him and he remembers them.
He’s an interesting writer. I can’t really think of anybody else.
ML: I’m finding what you’re saying provoking and interesting. It sounds to me like you’re saying poetry is all about the self and about no boundaries and the law is nothing about the self and lots of boundaries. If you read a judicial opinion and you get a sense of the voice of the speaker, that to you is not a good thing.
Tim Nolan: In a way, yeah.
ML: I would think you would hate, say, Justice Blackmun’s writing. You might think you’re reading his personal writings when you read some of his opinions.
Tim Nolan: Yes, and for a number of reasons I dislike Scalia. It strikes me Scalia is an extreme example of what I’m talking about where he has a very interesting writing style. It’s very snappy. It’s almost like he has come out of a scene in “Guys and Dolls” or something. He’s got this very New York snappy writing style, which is attractive in some ways. But, again, I think it’s indulgent. We don’t really need that from a judge. He’s amusing himself and that seems to me a problem in judicial opinions. He’s also a very angry person in general so he’s lashing out at his colleagues.
He’s doing it in a playful way at times. But this gets me to something else. I’ll just wander around my topics here. I came up with this idea some years ago.
There is a real virtue in poetry to being stupid. What I mean by that is being unassuming, open. The effect of that, of practicing that in writing, is that you meet the reader at the exact same place they’re at because the reader is stupid too when he comes in to a poem; he doesn’t know what to expect. To the extent the writer shares that, there’s a kind of intimacy that can occur on the page. It’s a meeting place of two souls who don’t really know anything. There’s something very magical about that.
Scalia’s tremendously bright, but it strikes me he has little self-awareness and he relies upon a certain kind of intelligence to get through the day and get through his opinions. It would not be good to bring that sort of intelligence to writing poetry because the reader would be put off. There isn’t anything welcoming about Scalia. There’s kind of a confidence he has that he has mastered the law and the facts of a given case and that he knows and nobody else does. That’s exactly the wrong attitude for a poet. He’s kind of an extreme example of that.
I think our best lawyer-poets … the very best lawyer-poet is Wallace Stevens who was incidentally a lawyer but primarily a poet. His essence was involved in writing poetry but his job was to be lawyer for an insurance company. That’s kind of the way I feel about my own work. I write very little about practicing law because I don’t think it’s very interesting.
What I really find interesting in a poetic way about the practice of law is that it’s all about an accumulation of details in the case that just didn’t tell you a lot… How lucky am I to be witnessing all these clients and their fact situations. But, as a rule, I don’t write about the law.
ML: You’re a construction lawyer, is that a fair description?
Tim Nolan: No, I’m more of a real estate litigator. I do construction work. I do a lot of title work for title companies, title correction actions… landlord tenant and general commercial kind of stuff. Everything is pretty much real estate related one way or another.
I think Lincoln is a great example in terms of what I’m talking about here. He wrote poems and published poems anonymously in the local newspapers. The poems were bad. They’re very maudlin, dreary, little bit influenced Edgar Allan Poe, kind of midnight storm, 19th century romanticism.
ML: That wouldn’t go very well for a presidential candidate these days. Anonymous maudlin poems.
Tim Nolan: Our President Obama wrote poems in college and had some published, which were not bad. They were pretty good. For Lincoln, who I’d say the greatest poem written by an American lawyer is “The Gettysburg Address.” For me that speech operates as a poem, as a prose poem in terms of its length or its brevity in terms of its looking forward and back at the same time, its transcendence, its sense of the future, and its devotion to the ideal of the Union. It’s almost like a love poem to America.
It’s an accidental poem because he was supplying all of this tremendous literary ability to an awful situation, civil war and the dedication of a cemetery. He uses all of the devices of poetry in those few words. There’s a wonderful book by Gary Wills about the Gettysburg address, and he tracked down all the sources. He doesn’t suggest that Lincoln was even necessarily aware of all these rhetorical devices, but he goes through classical Greek and Roman oratorical devices and brings that information to the text. It’s a fantastic book.
Lincoln was highly evolved in so many ways but as a literary figure…as a self-taught writer…what mattered to him almost as much as anything was the sound. If he read something, he had to read it out loud. In fact his law partner in Springfield would be annoyed because he’d be reading out loud all the time from the newspaper. It could be something totally meaningless but he’d read it out loud, and he said that he had to read it out loud because then it would be etched in his brain and he wouldn’t forget it because he had said it out loud. That’s very much a trait of a poet, to hear himself out, to hear the vowels and the consonants. That’s part of what goes on when you’re writing a poem, saying it out loud over and over again, or you’re hearing it out loud.
ML: I want to come back to this idea that there’s no place for poetry in legal opinions…That’s how I would characterize what you said earlier…and I totally understand what you’re saying except you mentioned “The Gettysburg Address” and I think of constitutional law which is about trying to invoke transcendence into reader if I hear you right, if you will Brown vs. Topeka Board of Education trying to move a broken country, if you will. Same with Justice Kennedy’s opinion in Obergefell.
I totally agree with you that, in the garden-variety boundary dispute, say, the last thing you want is an opinion that you’re going to be aware of the voice of the judge. You just want the right answer as clear as possible. I have two different points about that. One is, are there particular judges who you think master that invisibility and clarity? It’s not poetry but it’s the ideal judicial writing from your perspective. The second is, isn’t there a place for some poetry and some decisions, and do you find it anywhere? Obviously in your work which as you’ve said is real estate litigation, you would think not, but in constitutional law …
Tim Nolan: Yeah, and if there’s any place for poetry in the law, it’s in constitutional law and it’s in cases examining constitutional rights. I guess there’s some beautiful language in Kennedy’s opinion. There’s a paragraph there that everybody quoted which is a beautiful summary of marriage. You can sense that this is his, not just he’s observing, but this is his view too. There’s a moral underpinning to it. Even to use the word love in a judicial opinion is unusual. To use it in an informed way where he knows that his reader knows what he’s talking about.
That is kind if unusual. It’s almost like stepping out from behind the curtain. That is refreshing to a reader of judicial opinions and is used to having everything be so dry. I don’t think Kennedy’s opinion is … I wouldn’t describe it as poetic. I would say it’s human. It’s full of human emotion and insight, human insight, but for me a poem is something that has first of all been made, it’s an artifice. It’s an accident often. There’s something arbitrary about it, almost like catching light in a bottle or something. It’s evanescent. It’s quickly dissipating. You got to be fast to catch it.
All of those elements of it for me of a poem are not typically present in legal writing, and shouldn’t be.
Oliver Wendell Homes was a wonderful writer. He was also a poet and quite an accomplished and recognized poet. He had an obvious literary background, a way with words, appreciation, grew up with all those transcendentalists, Ralph Waldo Emerson and everybody.
Holmes wrote an opinion which we all had to study in law school. That was Buck v. Bell and it was the eugenics case from 1927 or something like that. He came to this phrase, “Three generations of imbeciles are enough.” Now I’m not at all condoning that decision or the harshness of the attitude displayed in that decision, but just that phrase [chuckling], it’s fantastic. It’s totally ruthless in a way. Just as language is very direct, he makes his point, it’s simple, declarative, and there’s no questioning what his position is on the case. So I can kind of admire that sort of mind, that use of language, but again I don’t think that’s necessarily poetry.
ML: Rhetoric or oratory or something does not qualify as poetry. I get that. Now I asked a lot of people when I interview them, their advice on lawyers but I’m going to ask you your advice to young poets.
Tim Nolan: I have occasionally taught classes. I go down once a year, maybe, to Gustavus Adolphus. My good friend Joyce Sutphen teaches down there. She’s the Minnesota Poet Laureate, a fantastic writer. We’re real good friends and had been for years. I go to her class and I’m struck by 19-year-old kids writing poems. Usually we write a poem in the class, but sometimes more than one. I give them different prompts and then they write their own poems. What’s so hard for young writers I think and I did wonder this myself, “What do I write about?” When you’re 18 or 19 years old, you haven’t had a whole lot of experience but on the other hand everything is new, so your attitude in a way is perfect for writing, but you also know, or sense, what you don’t know, which is a lot.
It’s kind of an awkward time for people to write poetry. The typical thing would be, say, like 18, 19 year-old young woman writing about the relationship with her boyfriend disintegrating, and all that loss, everything associated with it, which is honest and true at the time. For anybody who is older, you can see how much the age of the person is dictating the attitude. With a few more years of experience, they wouldn’t react the same way.
That’s what happens when young people are writing poetry, I think they don’t know what their voice is, they don’t know what they want to say, but they know that things are happening to them that are big. There’s this kind of struggling after… I think my advice would be to figure out what your voice is, what it is in particular that you can say that nobody else can say. And it turns out there’s a lot in anybody’s life. We are so very specific in our souls that if you can find your own way of speaking, it is authentic with your own, then everything else will just kind of follow from that.
That’s a real struggle, to find your own way of thinking, of speaking because okay, you’re starting out and you read Walt Whitman and you’re reading William Carlos Williams or Shakespeare and all of these great writers whose greatness has to do with the fact that they found their own way of speaking.
ML: Earlier on you were talking about particular judge poets or politician poets, and I can’t remember exactly, you described one as a good poet or a bad poet. I was going to ask you, “What is the criteria for judging good and bad poetry?” but I think you’ve just answered it by saying it’s “speaking in unique voice.” Is that fair to say?
Tim Nolan: Yeah. I’d like to say a little bit more about that I guess. There’s a kind of… there’s a Greek original word kind of like charisma, charism. There’s a kind of charism when one finds one’s own voice, so it’s almost like you can say anything if it’s in your own voice. The subject doesn’t matter. The words themselves don’t matter, but if there is this charism, then you will be heard. Because the reader’s charism is attracted to the writer’s charism. When we think of great writers, we are thinking of them because we sense that we know them through their writing. We know how they think and feel. We know if they have a sense of humor. We know a lot about them.
Take Shakespeare for example. I think it’s just hilarious that this idea persists that Shakespeare couldn’t have written Shakespeare. Anybody who’s read Shakespeare can sense right away from a single line: here he is, this is him, here he is. One of the features or one of the habits that Shakespeare has that is maddening is that his music gets ahead of his thought. He’s not a very good thinker when it comes down to it. He poses at being logical but he’s really not. I observe that not as a criticism of him but as an example of his charm or character.
Charm is related to this idea of charism.
Anybody who has read Shakespeare can’t really have any doubt that he was the person from Stratford … first of all, there’s this idea that, because he didn’t go to university, he couldn’t know all this stuff. That assumption is elitist to begin with. The guys who went to university, Marlowe and others, are wonderful poets but they’re not anything like Shakespeare. Shakespeare had the privilege of being from the middle class and typically that’s where great writers come from. It’s no accident that Shakespeare is Shakespeare.
You can’t read his sonnets and any of the plays and not recognize the same person behind them because there are so many indicators of that person.
ML: Are you suggesting that greatness often comes from humble origins, or generally does, or almost always does? Why is that?
Tim Nolan: I think there’s a kind of ambition that comes with being from humble origins that turns out to be beneficial, whereas if you’re from the nobility, you can slide a little bit.
These are generalizations. Our great writers in the US … there are a number of poets who came from very affluent backgrounds. James Merrill of Merrill Lynch… He is a great poet, but for the most part, I think most of our great poets came from middle class or working class.
ML: Do you know of any other Minnesota lawyer poet?
Tim Nolan: Yeah. Warren Woessner. He’s a good poet. He’s at Schwegman, Lundberg intellectual property lawyer.
ML: When you say he’s a good poet, you’re saying he has his own voice?
Tim Nolan: Yeah.
ML: And that’s your criterion for what makes a good poet, that’s how you judge a poet. Is that fair to say?
Tim Nolan: Yeah, I guess if I have to reduce it to a single thing, I’d say that’s it.
ML: Is it possible that someone would have their own voice and you don’t like it?
Tim Nolan: Yes.
ML: Are there any well-known poets you put into that category for you?
Tim Nolan: Yes, there are lots. There’s a poet who is very highly regarded and she teaches at Harvard. She’s had 10 or 12 books and she’s, I think, won the Pulitzer Prize. Her name is Jorie Graham. I can recognize her talent but I find it difficult to read her poems. In fact, with a few exceptions some of her poems I like very much, but I cannot physically read them [laughing]. She’s kind of an experimental writer so she’s very interested in the mind and the way thoughts occur but she tends to write out of a stream of consciousness, which strikes me as arbitrary. Because the thing is that the poem is artificial to begin with. I understand how writers aspire to make it not seem artificial, make it seem real but it is always a made thing. It’s been put under pressure, the pressure of length and the pressure of meter, rhythm. That’s part of the making of it.
So then, just like anything that’s made when you put it under that pressure, something happens to it. It’s somehow transformed. Whereas if it doesn’t get put under that pressure, there’s kind of a looseness. I’m not even talking about the difference between free verse and metered verse or rhyming verse. I’m talking about something that… It has to be put through … it’s actually very interesting to be able to talk about these things. I’m having fun.
I think of Bob Dylan, the great talent, genius of Bob Dylan is that he takes all his stuff from different sources and he is a great synthesizer of lots of different things, musical styles, and civil war poetry. He actually had albums in the last 10 years or so, he’s criticized for essentially stealing from an antebellum southern poet, not a very good poet. He stole wholesale. That isn’t the way he views this because he is the great collector. The thing that happens is it goes through him and then the song comes up. And that’s this pressure and he adds value as it goes through him. He adds his value and his mark, his identity somehow gets mixed in with that.
Elvis Presley did the same thing. He was a great synthesizer of all different kinds of music, gospel and country. All came through him. He put his work to it, changed it and sent it out.
ML: Here’s an area where art and law cross paths. I’m curious to get your thoughts on these synthesizers. Do they owe anything to their sources? How do you feel about copyright? How would you feel if I took one of your poems, put it on my website, change a few words and said this is something I had written, I synthesized it?
Tim Nolan: Yeah, that raises some interesting questions because there are artists who have done exactly that. There’s a photographer, Sherrie Levine, and she came up and she hit the scene about 30 years ago. She would take photographs of Walker Evans photographs and then it would be titled “After Walker Evans.” Anybody looking at it, it’s a Walker Evans photograph but she’s “appropriated” it. That’s the language.
This concept or whatever, I think it’s a total sham. That isn’t the kind of synthesis that I’m talking about. There is an example of people who have stolen poems and changed a couple of lines. In fact, there’s a great book. It came out about 10 years ago. I’m not going to be able to remember the title or the author. The author was a poet who taught at Iowa State University for many years and he discovered through a friend that somebody had been taking his poems, changing them slightly and republishing them in magazines as their own. He became obsessed with this and he hired a lawyer. The first thing the lawyer said was “What’s your poem worth?” He says “Well, it was published in ‘Poetry Magazine’. I got paid $100 for it.” The lawyer said “Well, so it’s worth $100. That’s your damages?” So the lawyer said, “Well, I don’t really want to take the case.”
Then he hired an investigator to go investigate this guy who was a high school English teacher and very mentally disturbed and had done this to a bunch of poets. He had stolen from Mary Oliver and a bunch of poets who essentially didn’t care. It was like they found out somebody stole, they were like, “Who cares?”
That’s my attitude. It is partly because there’s no market. To be too concerned about copyright with respect to poetry is kind of silly because there is no market.
ML: That brings me to another question that I asked you in advance, which was about how technology has really altered the practice of law in my opinion. I wondered whether you think it affected poetry. In particular, I’m curious why I can’t go online and see all of your works in a single website for example. Because you can do that in a very, very low cost it seems to me and essentially have your work endlessly replicable and a universally accessible library for your poetry.
Tim Nolan: Yeah. I haven’t really thought of that. A couple of things. Technology has changed, publishing poetry and in some ways it’s affected the writing of poetry. I think there’s a kind of caffeinated quality to some poetry now that is an aspect of multitasking, having different screens you have got to check. It’s a franticness in some poetry now that I think is related to this technology.
It’s funny because we’re right in the midst of all kinds of change with respect to how poetry is disseminated, but the old models persist. In the old models, I write the poem, I get a bunch of them together, they get put into a manuscript. I send it out, somebody accepts it, it gets made into a book, and then maybe one of the poems gets read on Writer’s Almanac and that helps sell a few books. The book is there on Amazon. Anybody can buy it, probably forever because it’s all print on demand now. It used to be you did a book of poems published and there’d be an edition of 1,000 copies and you’d sell 200. 800 copies would sit or else they’d end up being remaindered and you could buy them for $0.69 a piece at Barnes & Noble or wherever.
Now with print on demand, a book never goes out of print because the publisher can just call up and say I need 10 more copies and they’d print them out on demand.
It’s wonderful to be able to hear poetry now. You used to have to go to a reading to hear a poet read their poems. Now you can just click on a link and there it is. I like that aspect of it.
I had something funny happened a few years ago where I had a poem that … I used to put my poems up on Facebook. I’d write something. I liked it. I put it up on Facebook. I stopped doing that because a few years ago I sent a poem to a magazine, it got accepted and then the managing editor of that magazine was a friend on Facebook and she got in touch with me and said “You put this poem up on Facebook so it’s already been published. Normally we don’t publish poems in our magazine that have already published so you should take down that poem.”
I was kind of annoyed. I ended up taking all of them down just to avoid this problem, but I did say to her, “It’s funny because you’re assuming my poem has some value and at the same time you’re assuming that you have set its value at two contributor’s copies of your magazine. That’s the value you set for it.”
I always give permission … The funny thing, maybe 8 or 10 years ago, I had a poem on the Writer’s Almanac and it’s called Prayer Chain and Garrison Keillor read it and I got more reaction to that poem than anything I’ve written.
A prayer chain in a parish, it will have mostly elderly women who will be praying to different people…You can say let somebody on the prayer chain know that so and so has had a heart attack and we should pray for him. It’s also kind of a gossip chain because you find out what’s going on. [chuckling]
I got more reaction to that poem from ministers who contacted me, wanting to reprint it in their church bulletin. I said yes to all those requests. I generally say yes. Partly just because there’s no value. It’s easy to say yes.
ML: I’m stating the obvious, but there’s immense value but it’s just not monetary or capturable.
Tim Nolan: It’s just not monetary. Right.
ML: In fact, the value, in a way, goes up when the cost goes down.
Tim Nolan: Yes. Unlike pop music for example poetry is sort of an amateur endeavor and it’s because there is no value. There’s no monetary value. At the same time there’s no monetary value, you wouldn’t believe how competitive it is. It’s really hard to get a poem published in a good magazine. It’s tremendously hard. Thousands of people trying to do it and a lot of very good writers. MFA programs turning out more and more of them almost on a daily basis.
It’s a strange combination. Nothing at stake… I mean it’s kind of like life. Nothing at stake yet tremendous stakes. I guess it somehow matches my view of life.
I said it was an amateur occupation but I have been paid enough for it over the years. I guess I consider myself pro now. It doesn’t bother me at all when I get rejected, which is constant. If you send stuff out, it gets rejected. That’s something that … it no longer bothers me at all. I don’t even think about it.
ML: You’re not tempted to simply self-publish?
Tim Nolan: No. I have this notion that that’s not fair. I’m not criticizing anybody who does that, but there is some value to having your work go through an editorial process, if you respect the editor. You’re having it go through a kind of a curatorial process so somebody who knows accepts it.
The other thing I decided years ago was I was never going to pay anybody to publish my work. That was just like an absolute. I didn’t care if they paid me very much because I don’t, but I wasn’t going to pay to have something published. I’ve kept to that. It’s like I have my standards. [laughing]
ML: When you say there’s something to be said for the curatorial role of a publication that you submit your poetry to. I am wondering if ever you have actual kind of editing or revisions or comment we would publish this poem if you drop this line or if you change this word or-
Tim Nolan: Yeah. It doesn’t happen so often because usually the attitude is … it’s usually they like it or they don’t. If they like it, they like it because they like it the way it is. But maybe, I don’t know, one out of 10 times, somebody will make a suggestion and I am completely open to that.
Every time I’ve had an editor make a suggestion, that’s been an improvement. Every time.
One editor in particular, she’s so good. She just got way deep into the poem and figured out certain very simple things that could be done that improved it tremendously. That’s a gift.[Previous Minnesota Litigator Profiles: Laurie Vasicheck, 25 year veteran of the Minneapolis office of the EEOC, Jake Holdreith, an IP litigator for “drug dealers” (better known as pharmaceutical companies, Pam VanderWiel, lawyer for Minnesota municipalities, Bill Dossett, Executive Director of Minnesota’s Nice Ride bike-sharing program, Christina Snow, lender/servicer real estate and foreclosure lawyer, Clayton Halunen, plaintiffs’ employment lawyer, consumer rights lawyer, Stephen L. Smith, straddling a civil and a criminal litigation practice, Kevin Dunlevy, Minnesota real property authority, Vildan Teske, consumer rights class action litigation and service members class actions, Jim Behrenbrinker, civil rights/excessive force cases, Eric Cooperstein, “ethics maven“, Mike Flom, Gray Plant’s General Counsel, Phil Gainsley, veteran solo civil litigator, John Halpern, collections, Elliot Olsen, foodborne illness litigation, Dave Potter, railroad industry litigator, Katherine Mackinnon, ERISA plaintiff’s lawyer, Kristine Boylan, international IP/Complex Litigation lawyer.]