Tales of tricks and greed and big surprises
Laymens views of law in oral narrative
(Meertens Institute, Amsterdam)
The trouble with lawyer jokes are:
Lawyers don't think they are funny
and civilians don't think they are jokes.
The shark as a personification of the American lawyer
In this paper I would like to focus on some folktales concerning law, judges and lawyers.
Folktales are popular, international and (mostly) orally transmitted narratives, varying from traditional genres like fairy tales, fables and legends to modern genres like jokes, funny riddles and urban legends.
Apart from the fact that we are mainly dealing with fiction (though various kinds of stories are thought to be true by many), I must stress that folktales cannot be considered a mirror image of reality. Folktales are bearers of mentalities. Folktales always form a subjective representation of how ordinary folk perceive reality. Folktales are all about perception - not necessarily about how life actually goes, but about how people feel and believe it goes. Folktales reflect the latent values, preoccupations, anxieties, taboos, prejudices and desires of narrators and their audiences. For this reason, narrative culture can serve as an instrument for cultural diagnosis. Popular narrative is a sensitive barometer for collective moods in society.
Consequently, folktales about judges and lawyers can be interpreted as the outsiders view on the practice of law in a given society at a certain time. The majority of folktales on legal practices are not invented nor actively spread by the in-group (although eventually, the in-group may join in, as a kind of defense mechanism). Most of these tales are made up by anonymous representatives of the out-group, in no way hampered by any solid legal knowledge. By means of storytelling, laymen and outsiders air their views and opinions of the administration of justice. Often these folktales are told from an underdog perspective - they are told by ordinary people who stand on the powerless side of the law (and I dont just mean criminals).
To begin with, I would like to present three examples from the past and the present.
The Ungrateful Serpent Returned to Captivity
The first example is a widespread fable, known as AT 155, The Ungrateful Serpent Returned to Captivity, in the international catalogue of folktales by Antti Aarne and Stith Thompson. The tale has been found in Europe, Asia, Africa and North and South America. The oldest Dutch version of this fable dates back to 1400 a.D., the most recent versions have been recorded from oral tradition in the 1970s. The version I will discuss here was written around 1400 by the Dutch sprookspreker Willem van Hildegaersberch (±1350-1408), who entertained the aristocracy, the clergy and the bourgeoisie of the medieval Low Countries as a professional performing poet. The title of his poem is Van den serpent: About the dragon. In a nutshell this is how the story goes:
One day a travelling knight finds a dragon with his claws caught in a split tree. Out of compassion the knight liberates the captivated - and seemingly meek - dragon, but as soon as he does so, the malicious dragon injures the knight with his venomous breath.
"Is this your way of showing gratitude?" the knight asks.
"Its the way of the world," the dragon replies: "Good gets rewarded with evil every day."
Since the knight keeps on protesting, the dragon suggests to take the case to trial. It is agreed upon to ask the first animals they encounter for a verdict.
Unfortunately these animals happen to be the sheep and the goose. Being ignorant prey, they can hardly distinguish between right and wrong, so their verdict is that the dragon is right.
(The poet remarks that the sheep and the goose can be compared to the incompetent sheriffs of his time. He adds that, for their verdict, the sheep and the geese are rightfully shaven and plucked.)
While the knight is still making objections, Reinaert the Fox walks by. It is soon agreed that the smart fox will pass sentence.
"Listen, I cannot decide in this case, unless we have a reconstruction of the incident," Reinaert says.
So the dragon sucks his poison out of the knight and sticks his claws into the split tree again.
"Now that we have restored the initial situation," Reinaert says, "here is my verdict: lets leave things as they were."
The knight agrees, and the man and the fox go their way, leaving the ungrateful dragon in captivity again.
Although Willem van Hildegaersberch added some details of his own, this is how the plot goes in most of the versions of AT 155. In the end, justice is done, but dont ask how! The case is won by the knight, not by appealing to the (incompetent) sherrifs, not by applying the law, but through the wit of an outlaw trickster. As the poet literally says: "Ic woudment noch soe verre brochte / Datmen schalck mit schalken vinghe" (vs. 190-191) he more or less means: it takes a crook to catch a crook. From a legal point of view, justice failed, but from a moral point of view justice prevailed.
According to both the poems of Willem van Hildegaersberch and the work of other medieval poets, much is wrong with the legal system and practice. Apart from the incompetence of judges, greed, bribery and corruption are frequently mentioned. Furthermore, there are the obvious cases of class justice: a poor man can hardly ever win from a noble man, no matter how just his case may be.
Negative portrayal of the lawyer by Jan Luycken (1649-1712)
The Lawyer's Mad Client
The second example is not a fable, but an anecdote or joke. Again this is an international folktale, which has been orally transmitted for centuries, and is catalogued as AT 1585, The Lawyers Mad Client. This time, I will be quoting a recent version, as told by the Frisian working class narrator Hendrik Meijer on April 3rd 1969.
There once was a farmer who had stolen four sheep. The police found out, the sheep were confiscated and the farmer had to stand trial.
He went to a lawyer and said to him: "I was caught stealing four sheep. I will have to stand trial. Will you defend me?"
"Alright," the lawyer said, "I will defend you. But it will cost you 300 guilders." [Which was a lot of money in those days]
"That's fine by me," the farmer replied.
"Well," the lawyer continued, "when you have to appear in court, you must pretend to be crazy. When the judge asks you a question, you must say: 'Baa!'"
"Okay," the farmer said.
He went to court and the judge asked him a question.
"Baa!" the farmer replied.
The judge asked him another question.
"Baa!" the farmer said.
And the third time, again, he said "Baa!"
Then they were all convinced he was an idiot and he was released.
As the farmer walked out of the courthouse, the lawyer was already waiting for him.
"I would like to have my 300 guilders now," the lawyer said.
"Baa!" the farmer said.
"You fool," the lawyer said, "you don't have to do that anymore."
"Baa!" said the farmer. He said 'baa!' to everything, and the lawyer did not know what to do.
He never got his 300 guilders.
In the first story, an unlawful trick was used to punish the guilty party. In this second story, a lawyer misuses the law to free his guilty client. Still, we are inclined to sympathize with the farmer, because he plays the same trick on the greedy lawyer.
The Microwaved Pet
The third example is not a traditional tale, but a modern narrative - a so-called urban legend, to be more precise, in the Netherlands commonly known as a 'Broodje Aap-verhaal', a Monkey Burger Story. The story is internationally known under the title 'The Microwaved Pet'. In the last 8 years, I came across 19 Dutch versions of this story.
An elderly woman has a small poodle. Several times a day she takes the dog out for a little walk. Every now and again it rains, and the dog comes home wet. In those cases, the woman preheats the hot-air oven and puts the dog in for a short while to let it dry. Unfortunately, one day the hot-air oven breaks down. The elderly woman's daughter gives her a brand-new microwave oven for her birthday. After walking the dog on a rainy day, she puts the small animal into the oven. Within a minute, the inevitable happens: the hair of the dog catches fire and wham! The poodle explodes.
The elderly woman decides to sue the manufacturer of the microwave oven. After all, the manual never mentions that one is not supposed to put a live pet into the oven. The senior wins the lawsuit and receives a large sum of money as a financial compensation. Nowadays, all manuals for microwaves mention the impossibility to put a pet into the oven. Of course, this all happened in the United States.
Well, actually, it did not happen. Not in the United States, nor anywhere else. Still, many people believe the story to be true: even legal students do. A Dutch law student once said:
It is such a well-known story, about the dog in the microwave. Its article 1401 BW on product liability. The manufacturer has to pay the damages, because he is liable. The judge decided that, in all fairness, this woman could not have known that is was impossible. I heard this so many times during lectures. There is a decree as well. It is something like the Leaking Hot-Water Bottle Decree, about children that had been burned by hot water from a hot-water bottle.
So, is this law student right or wrong? One of the characteristics of an urban legend is that the plot is peculiar, but not unthinkable. Many urban legends are told with the reassurance that "Its true. It happened to a friend of a friend." This is why urban legends are also called FOAF-tales, in which FOAF stands for Friend Of A Friend.
As far as folklorists have looked into the case of the microwaved pet, they never found the specific lawsuit. They did find people imitating the tale, but that is a different story...
What does the story of the Microwaved Pet have to tell us? For one thing it is a kind of humorous horror story. In a cruel way, we take pleasure in the death of the animal. We are dealing here with an appalling fluffy and trimmed little poodle, pampered like a child by her old mistress. The old woman cannot keep up with modern technology: she is too stupid to know that microwaves heat things up from the inside out. Anyone knows you cannot put a pet into a microwave oven without killing it. But not this old lady. So the pet dies: serves her right!
Then the second layer of the story is supposed to hit us by surprise. The lawsuit - at least in the laymans view - illustrates the complete unpredictability of jurisdiction. The outcome of the lawsuit is the opposite of what one would expect. The judge is actually rewarding the old lady for her stupidity. And what is more: in order to avoid enormous financial claims, manufacturers are forced to extend their manuals with the bleeding obvious. Whatever will be next? Dont put your bird into the aquarium or it will drown? Do not swallow billiard balls because you will suffocate? In other words, the Microwaved Pet story is a tale of the unexpected. When told in the Netherlands, people often add that it all happened in the United States of America. For most listeners this explains a lot. Lawsuits with strange outcomes are supposed to be quite common in the US. Somehow it becomes less plausible when the story of the Microwaved Pet is told as if it had happened in the Netherlands. Apparently most narrators and listeners do not find this story illustrative for the Dutch legal system.
The lawyer as a vulture
Legal themes and social context
The three folktales I mentioned are more or less exemplary for the themes involving justice in past and present. In summary, these themes are:
Ordinary narration of folktales always involves tales of the extraordinary. As far as tales of justice are concerned, the image of legal practice is seldom positive. Even in the famous and positive case of the righteous Salomon, the king is relying on his wit rather than on the law. If a lawsuit results in a satisfactory solution, most of the time, unorthodox methods have been applied. If the outcome of a case is unfavourable, ordinary folk consider this to be a confirmation of the pessimistic image they already had of the legal practice. Unlike the past, the image of the judges nowadays seems to be better than the reputation of the lawyers. Their fees are out of proportion compared to the services supplied. They have a reputation for winning cases through tricks and legal hairsplitting. They try to delay justice by focussing on technicalities and legal procedures. When real criminals stand trial, the defence goes for discharge or minimal punishment, rather than for not too much or fair enough punishment. From the perspective of the laymen, it is not a pretty sight at all.
Modern Lawyer Jokes
However, if we take the actual number of tales and jokes about legal justice into consideration, it is not all that bad: in daily life other themes appear to be more important than jurisdiction. When we look at jokes in the Netherlands, the topic of sex appears to be much more popular than law. At the moment, a lot of jokes are made about politics, ethnicity, islam and terrorism: these are the issues of real concern, not the practice of lawyers. To my estimation, the number of lawyer jokes told in the Low Countries more or less equals the number of mother-in-law jokes. The number of folktales about jurisdiction is relatively small, and this goes for the present as well as for the past. In the Dutch Folktale Database at the Meertens Institute in Amsterdam, I have collected no less than 26.000 folktales, including jokes and funny riddles. Between 1994 and 2003, only three Dutch jokes entered the Database which can be qualified as lawyer jokes, similar to the ones that have recently become popular in the US:
1. Last winter it was so cold, that I saw my lawyer walking the street with his hands in his own pockets. (1996)
2. What would you call a thousand lawyers on the bottom of the ocean?
A good start. (1997)
3. "You are a very expensive lawyer. If I pay you 500 dollar, would you answer two questions for me?"
"Certainly, what's your second question?" (2001)
As you may have noticed, two out of three jokes deal with the theme of greed. In the American jokes, lawyers are depicted as moneygrubbing sharks and vultures, as ambulance chasers, as frauds and as heartless liars. After they die, they go to hell - there are no lawyers in heaven. Furthermore they are said to be stupid, lazy, filthy and even criminal lowlife, preferred dead rather than alive. In Dutch joketelling, these last qualifications are reserved for our neighbours the Belgians (being stupid, that is), and for ethnic minorities like the Surinamese, the Turks and the Moroccans (being everything else) - not for lawyers. Finally, a few American lawyer jokes are told in Holland about consultants and accountants.
American lawyers as sharks
To my knowledge, no recent increase can be found in lawyer jokes, neither in the Low Countries, nor in Western Europe. In this respect, the sharp increase of lawyer jokes in the US in the 1980s and 1990s is remarkable. This boom calls for an explanation. Fact is that the Dutch are not reluctant at all to appropriate American narratives. We took over the American dumb blond jokes without hesitation. Both American and European men love to depict women as stupid and sexually overactive, to match their fears of female emancipation and compensate their unanswered desire for uncomplicated lust. Most American urban legends have found their way to Western Europe as well, except for some specific university horror stories, probably because of a lack of campus culture in the Netherlands.
Apparently there is a breeding ground for lawyer jokes in America, whereas there is none in Holland (yet). There are of course some obvious differences between the American and the Dutch legal system. In recent years, the American sueing culture is becoming more evident than ever. It seems to me that the quantity of lawyer jokes equals the rise of the number and the social status of lawyers, the exuberant wages of top-lawyers and their sky-high compensation claims. Regarding this last point, I would just like to mention the American lawsuits against tobacco companies and the McDonalds Coffee Case.
From the point of view of ordinary folk, a lawsuit can easily turn into a 'lose-lose' situation. If you lose a case, a claim can bankrupt you. If you win a case, your lawyer's salary can bankrupt you. Remember that most jokes are told from an underdog position - most narrators of jokes are lower and middle class men.
Furthermore, I would like to return to the unpredictable outcome of jurisdiction, although this was a topic in folktales in the past as well. For ordinary folk, the result of a trial cannot be predicted any more on the basis of common sense and a basic sense of justice only. In the opinion of the ordinary citizen, jurisdiction is no longer a matter of finding the truth and doing justice, but a lucrative game in which the most cunning lawyer with the best tricks and the gift of rhetorics wins - especially in the US. In other cases, social and ethnic politics prevail over justice, as seems to have happened in the cases of Rodney King and O.J. Simpson. In general, one should not underestimate the role of the news media covering spectacular lawsuits; apart from personal experience and story telling, legal news coverage plays an important role in how ordinary folk look upon justice and lawyers.
American cartoon by Collins
Folk narrative research provides a tool for social and cultural analysis. When all of a sudden folktales start focussing on certain groups or developments in society, the researcher can be sure there is something brewing. Considering the new jokes and urban legends these past two years, it is obvious that Western society has become seriously worried about muslim fundamentalism, terrorism, right-wing political movements, American aggression and armed conflict in the Middle East.
Folktales in the US indicate that there are distinct feelings of discomfort towards jurisdiction and the legal profession - feelings of discomfort that should be a cause for concern for the judiciary and the lawyers. Feelings of discontent about the obscurity of justice, but above all the dominant 'vulture culture' of sueing, claiming and cashing, as exposed in the news media. This may eventually result in a basic loss of trust in the legal system. Remember the underground humour that preluded the fall of communism in the former USSR. Still, this would be a worst-case scenario. Stories need not be dangerous, but they certainly are never harmless or meaningless, for stories are always vehicles of latent beliefs, moods and opinions. What is more, the telling of tales and jokes cannot be suppressed or prohibited.
It is perhaps a comforting thought that in Holland, according to the folktale repertoire, these alarming feelings do not exist to the same extent. Not yet. However, this does not mean that Dutch lawyers can lean back in ease. Perhaps we should learn from the American situation, because as soon as Dutch lawyers take over the American mores, the news items, the feelings of discontent and the matching folktales will follow automatically. Almost a thousand lawyer jokes already exist in English: unless they are based on English wordplay or verse (for instance: "Between grand theft and a legal fee / There only stands a law degree"), translating them all into Dutch will be a piece of cake.