The other day I was walking along the Milwaukee River in Estrabrook Park amazed, as I am every year, at the colors of the leaves changing. I noticed around ten different individuals wading in the water and casting flies into the current. My mind went back to John D. Voelker, the attorney, author, Michigan Supreme Court Justice, and fly-fisherman who was as at home in the north woods and spinning a narrative as he was in a courtroom.
One of the most cited Michigan Supreme Court decisions authored by Voelker is Mitcham v. City of Detroit, 355 Mich. 182 (1959). In it the court examined a tort case by a couple who had been injured while riding in a “trackless motor coach” that stopped abruptly, hurling the wife into a metal stanchion. The legal issue turned on whether or not the plaintiff’s prima facie negligence argument was of proper form. In finding for the Mitchams, Justice Voelker, writing for the majority, took the opportunity to make some broader assessments about litigation and the aims of procedure:
“The cause of a deserving litigant is no less dead when it is slain by a procedural arrow than if there were no cause at all. . . . It is bad enough that individual litigants have thus been made unjustly to suffer, but that is not all. This has frequently been done with the helpless acquiescence if not active aid of our courts. Too often the trial of cases has become a game of legal hide-and-seek. Just as bad has been the accompanying bewilderment and cynicism of the public—including the jurors who vainly sat on the case—over the baffling mysteries and vagaries of the law. The public has sometimes been righter than it knew.” Id. at 196.
There is even a nod to that antiquated, even for the time, notion of justice: “We still indulge the old-fashioned notion—which we trust is neither too Utopian nor violent—that the primary purpose of all litigation is to elicit facts, assess blame, and try to do justice between the parties.” Id. at 201.
Voelker’s legal novels have their roots in actual legal disputes that occurred in Michigan. His most popular book, Anatomy of a Murder, follows a murder prosecution. I will write more on the film adaptation of Anatomy of a Murder later this month, but I was surprised recently to find a brief cameo of Voelker interacting with the director in an experimental trailer that was released. (Beginning at :54.)
Another of Voelker’s enduring titles is Laughing White Fish. Based on the 19th century case Kobogum v. Jackson Iron Co., the book deals with a land dispute between a Native American and the Jackson Ore Company over an iron mine. Of course in Voelker’s fiction, as in most legal disputes, things are never quite that simple and the story ruminates on the outlines of equity as etched by the frailties of our own humanity.
While a judge, Voelker wrote under the penname “Robert Traver.” Presumably it was considered inappropriate for a public figure to be writing poplar fiction at the time. Perhaps judges writing fiction today follow the same reasoning, as I struggle to find much written by practicing judges outside of doctrinal matters.
The recent visit of Fausto Martin De Sanctis to Marquette Law School provides a foreign counterexample. Brazilian Judge De Sanctis mentioned, among his many other works, authoring two books of fiction, one of which has been published. I would be interested in reading the literary works of more judges as they provide unique perspective on the shifting shapes of justice in society.
The idea that the law and fiction relate in a meaningful way has been explored in the law and literature movement. U.S. Supreme Court Justice William O. Douglas wrote, “Books must serve as powerful agencies of social, economic, or political reform. They may enable us to get a keener insight into our society and its problems.” We The Judges (1956).
Voelker also published some wonderful books on fly-fishing. One that I enjoy is Trout Magic, which serves as more of an essay, or kind of love letter, to the practice of fly-fishing, imbuing its subject with attentive consideration, keen narrative, and inexhaustible love. I get the sense that these are the qualities that Voelker brought to callings in life, particularly the practice of the law.
Back at the Milwaukee River I did not see anyone catching anything on that sunny fall day. In fact, I have not witnessed, nor heard of anyone witnessing, a trout caught on the often polluted and stagnant Milwaukee River within the city limits. But that shouldn’t discourage anyone from continuing to cast.