Perspectives Larry Woiwode's Response

A Literary Guide to Litigation

His view arrived with such intellectual weight that by the 1940s and 50s into the 60s, American writers and instructors of creative writing were talking noisily as telegraphers about violation of point of view, as if it were imbedded law about the human body.  Those points of view can be summarized in this way: first person, meaning “I did this, I did that,” the I I I of so many modern novels; second person, meaning “You were the one, you did that,” seldom used for a novel although entire stories have been composed in it; third person, meaning “She did that, he did this,” the mode commonly used in distanced writing of a Jamesian mode; limited third, meaning “She or he is I,” that is, limited within the skull of the same, singular person--an effect similar to first person, when handled judiciously; omniscient, meaning “I am God,” or maintain an all-seeing godlike view of the mortals far below, as encountered in Thomas Hardy.  The shifting Tolstoyan view, however, often accommodates all of the above, excluding the “I” that entered with Turgenev and Chekov.

These are the compartmentalized limits, as may be seen, that must be adhered to in a courtroom.  The defendant is always “he” or “she,” unless she takes the stand, and in that movement takes on the first person “I,” as in “I did not do that”--although she may include references, within limits that don’t extend to hearsay or impugning others, in the third person: “He did it.”

The litigator, in referring to this witness, must be solicitous to use the second person, as in, “Is it true that you…”  Occasionally this litigator may step back inside his or her first person to say, “I think that you…” but this step is best taken with prudence or is likely to summon the first person response, “I object, your honor!”  The only situation in which a litigator may safely use the first person singular (“we” is the province of judge and jury) is when he is called to the bench to explain himself, as in the instance of using first person too freely in interrogations.
Your honor the judge and court must be addressed in third person, to signify her objective distance, and is often referred to in an elevated third that suggests an omniscient entity, as in “If it please the court…”  The court, the judge, is permitted to use any person she pleases: “You, sir, are out of order” or “I rule that--” or “She may retake the stand” or “This court, having seen all…”
If the lawyer-litigator does not mind his manners to remain inside the proscribed lines of point of view so solidly set in place in American fiction by Henry James, then that lawyer, though ascending to the colorful language of Robert Louis Stevenson, had best exempt himself from another day in court.


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