The Fine Line Between Fiction and Litigation: An Interview with Walter Walker
This article originally appeared in the magazine of the Consumer Attorneys of California (CAOC) Forum Magazine, October 2000.
San Francisco personal injury lawyer and CAOC Board member. Walter “Skip” Walker published five novels from 1983 to 1992. In A Dime to Dance By, former high school football star, and now second-rate attorney, Chuckie Bishop whiles away his time sharing stories at the local bar with his drinking buddies. Forced by his boss to undertake the defense of an old high school friend who shot a man in the line of duty as a police officer, Chuckie suddenly finds himself in the middle of a political scandal that will rock not only the foundations of his town, but everything he knows about himself. The book won the Commonwealth Club award as best first novel.
Skip has also enjoyed considerable success as a plaintiff’s lawyer. He has tried or argued nearly 100 cases in various forums, including 30 jury trials, six of which have resulted in seven-figure verdicts. In 1999, he won $3.89 million, establishing liability against a bus company for negligent placement of a bus stop. (Bonanno v. CCCTA, Contra Costa). In 1992, he won $1.75 million for a Korean seaman whose ship caught fire. In 1989, he won $2.7 million for the pilot and co-pilot of a World Airways flight that crashed into Boston Harbor (Hertzfeldt v. Mass. Port Authority).
Skip is a graduate of the University of Pennsylvania where he studied creative writing under Phillip Roth, and Hastings College of Law.
M: Let me start by asking you about being a plaintiff’s lawyer. What was it that led you to represent plaintiffs?
W: I thought that was what being a lawyer was all about. I had the naive concept that every lawyer went into court and every lawyer was representing somebody who needed help. This was some way I could contribute to the betterment of society and the betterment of common man. Over the years, of course, I’ve learned that money comes with success, but my original thought was that this was something I could do to help other people and just make the world a better place.
M: That seems to be at odds with your Ivy League background. Do you know where those ideas came from?
W: I got out of college in 1971 and those were radical times. I had the understanding that a change was in the works and I wanted to be a part of that. Even in the Ivy League we were pretty liberal in the late 60’s and early 70’s. Most people – once they got out in the real world – readjusted their values. But there were a lot of us who continued to be idealistic.
M: You have recently joined the Board of Governors of the Consumers Attorneys of California. Is this the first post you’ve had with a trial lawyer’s organization?
W: It is. I’ve been a member for twenty years, but I’ve never sought any real involvement other than attending the conferences and occasional lectures. And the only reason I got involved this time was because of Tom Brandi and his persuasive efforts. I have been extremely impressed with the work that he has done – to the point where when Tom asks me something, I find it awful hard to say no. I see how hard he works and how much he puts in and I feel I ought to be doing something more, I ought to be contributing. I have gotten a lot out of the organization and it’s time for me to give something back. I think that there are a lot of people who have talent and accomplishments who don’t get involved. There are a disproportionate number of people that get recycled and keep doing the same things over and over again.
M: What do you see as the role of CAOC?
W: I know the concept is that we are representing those who don’t otherwise have the forum to speak for or represent themselves. I think each one of us would do that individually without the organization. The organization, though, is necessary for us to be able to speak as a body – to have some uniform influence over others, including the Legislature.
M: Do you think that there is anything that the organization can do to change public opinion about lawyers?
W: I would hope there is. One of our problems is that anybody can claim to be a personal injury lawyer, anybody can hang out a shingle and say I represent the injured. So many people think it’s easy. And those people who work with us, those people who depend on us, know that it’s not easy. But there is a concept that all we have to do is file a lawsuit and somebody is going to give us lots of money and then we sit back and take 33 or 40 percent. How can this be changed? I don’t know, but I think the struggle against the forces of the defense might need to be re-focused.
For example, getting across the message that insurance companies are not our friends may be easier than we’ve made it so far. By “not our friends,” I don’t mean as lawyers, I mean as individuals, citizens. Insurance companies definitely have a place in society; but they are businesses and they exist in order to make money. And the Legislature realizes that insurance companies have a wonderful thing going for them because they’re selling a product that people have to have but don’t want to use. The insurance company sells a product, it’s hoping you don’t use it – you buy the product, you’re hoping you don’t use it. As long as nobody’s using it, everybody is happy. The insurance company sends you a calendar once a year and that keeps you feeling chipper about the company. The Legislature has said – given this wonderful deal where insurance companies are selling a product that everybody hopes they’re never going to use – special circumstances apply. And therefore, if something goes wrong, the insurance company is not supposed to look for ways to best their insureds, they’re supposed to look for ways to help their insureds, including telling them what their benefits are.
Somehow the insurance companies – with all of their money and all of their history – have been able to capture the higher moral ground and leave the impression that they are the ones who are friends of the people, friends of the common ordinary citizen. But the ones who are really friends of the people are those who represent the people in getting the benefits to which they are entitled under the law and the insurance contract. That’s the message we need to get across.
M: Although the popularity of lawyers is going down, the popularity of lawyer-authors and legal thrillers is skyrocketing. At some level it seems like a contradiction. Do you think there is anything that lawyer-authors such as yourself can do in their writing to get this message across?
W: Certainly John Grisham tried in one of his books, The Rainmaker. Grisham’s problem in getting the message across is that he is so simplistic about matters. The reader looks on it more as entertainment than an expose. I suppose that, in and of itself, is helpful because at least the reader is following through the beginning to the end of the story. And the hero for whom the reader roots is somebody who is besting the insurance industry.
But the reason lawyer-authors are so popular is because they actually have stories to tell. Somebody is always looking for a new story, a new wrinkle, whether that person is a reader or a television viewer or moviegoer. One constant source is the legal profession because something clearly has gone wrong or lawyers wouldn’t be involved. And lawyers are often dealing with people under stress. And when people are under stress they tend to do unpredictable things. And unpredictability is often the key to interest.
M: You’ve had success as a writer of legal fiction and as a trial lawyer. Do you think there are any lessons to be learned and passed from one to the other. That is, does writing fiction make you a better trial lawyer or vice versa?
W: I don’t think writing fiction has made me a better trial lawyer, but the fact that I am a trial lawyer has definitely helped my writing. It could be something as simple as reading a deposition and understanding the way people really talk. Sometimes you get caught up in the lines on the page of a deposition transcript and say, “What is it about this that strikes so much emotion?” I’m only reading the words, I’m not seeing the person, I’m not looking at his facial movements. It helps to be able to get an understanding of why words can deliver so much impact. And a deposition transcript is as good a place as any because you have nothing but the words on the page. Certainly my knowledge of the workings of a courtroom and how a trial is conducted has been put to use in my writing. In my books there is almost always a trial scene. And I try to make it as realistic as possible.
But I don’t think being a writer has really helped me as a trial lawyer. I do, on the other hand, mine my experiences as a trial lawyer for scenes, ideas, exchanges that I try to put into my literary work.
M: A lot of continuing legal education programs talk about making opening statements and closing arguments and utilizing the elements of a good story: storytelling, characterization, and theme. I know when I try cases now I look at the opening statements as if I’m telling a story. I try to integrate some of these literary devices, and I think my opening statements have gotten better. But have you tried to do that?
W: Well, now that you mention it, maybe I have tried to incorporate more of my writing in my legal practice than I was aware of. I got involved as a trial lawyer with the understanding that when you present your case, you first tell the jury what you’re going to tell them, then you tell them, then you tell them what you told them.
M: Which is basic speech writing.
W: Right. Over the years, however, I have begun to think opening statements are far less important than I used to think…. I even sometimes have my associate, or second chair, give the opening. For one thing, that gives me a way out at the end if things don’t go as I anticipate. I blame it on my associate. I mean that facetiously, but certainly the lawyer’s credibility is always extremely important to the jury. The jury is just snatched off the street and told to adjudicate a dispute between two sides, each of which claims it’s right. And the jury is always looking for clues as to who was telling the truth or who wasn’t. And so, as a lawyer, I want to be careful that I always have credibility with a jury. Maybe my point isn’t right, but it’s not because I have intentionally misled them. So I tend nowadays to make my opening statements shorter, not lay my entire case out, just give the jury enough information to know that something more is coming, that I’ve got something here to make them want to keep listening.
M: That’s your narrative hook.
W: Exactly. Very good. The other thing that I think is very important, however, even though I say I now find the beginning less important than I did, is that you ought to be able to close up your case with some reference to the beginning so that the jury knows you have come full circle. The jury can say, “Ah ha, I’ve gotten to the end of the journey and I understand how I’ve gotten there.” I learned that when I was involved in politics – listening to politicians speak. George Miller, the congressman from Contra Costa, was extremely good at that. He would start off a speech or an address with a little anecdote and everybody would be laughing and caught up in the anecdote. Then he would graduate into the story he really wanted to tell. Then he would close with a punch line that somehow combined that anecdote with the message he was delivering. And I thought this is the way to get across the message to a group of listeners. And I try to do that myself.
In terms of combining my writing and my legal career, it was always my assumption that I was only going to be a lawyer for a limited period of time and I would then become sufficiently successful at writing that I would do that full time. And I had a number of indications that was going to be the case. Interestingly, over the course of time, I have had a great deal of success – more than I ever expected – as a litigator and instead of that freeing me up to do more writing, it has actually reduced my opportunity. As time went by and cases continued to come in, success leads to success and – knock on wood – I’m very much appreciative of that. But there never came a time when I said, “Oh, now I can take off six weeks and devote it to my writing,” or “Now I can come in at noon every single day,” as I rather loosely envisioned I would be able to do. So, once again, I am not complaining because being a lawyer has proven to be so successful for me. It’s just surprising that things didn’t work out as I had anticipated they would. I’m not giving up in my writing, I’m still doing it. But I have also come to realize that I really love being a litigator.
M: You haven’t published a novel in quite a few years although you have written two. Tell me about your efforts to get those published. What have been the roadblocks?
W: I have had five novels published. My first novel came out in 1983 and it got a fair amount of attention and success. It was optioned to the movies on three or four occasions. There were a lot of people who claimed that they were going to appear in it, including James Woods and Jack Nicholson. And as a result of the success, my publisher, which was then Harper and Row, now Harper Collins, asked what else I had written and I gave them a book that had made the rounds and not been published over a several year period.
M: That was The Two Dude Defense.
W: Right. With a little tuning up that book was published with considerably less success than A Dime to Dance By, my first book. Shortly after that, I came out with a third book called Rules of the Knife Fight that I like very much. But somehow it didn’t get the attention that I was hoping. The reviews were all good, I just didn’t have that many. I listened to the sirens, decided to leave Harper and Row and went to Viking for publication of my fourth book, which was The Immediate Prospect of Being Hanged. I was with a very hot editor. Unfortunately, half way into the pre-publication stage of that book he left Viking and I was sort of the abandoned stepchild, picked up by an editor who hadn’t made the same promises that he had. So that book came out and once again those who read it liked it. The Philadelphia Enquirer called it the best mystery of the year. But it didn’t seem to get that much attention. So, still listening to those people around me saying I wasn’t being promoted sufficiently, I left Viking and my next book went up for auction and several houses bid on it. Ultimately, I got a six-figure contract from Pocket Books, which was just starting up a hardcover division. And that book was about professional basketball players and game fixing and crooked agents. I was interested in the people who become professional basketball players, those youth who go from absolutely nothing to having absolutely everything – when they are very young and not prepared to handle it. So I thought there was a story to tell there. That book was called The Appearance of Impropriety and Pocket did a lot in terms of following through on its promises to promote it. I was on television a few times, on a number of radio stations around the country. Unfortunately, the book didn’t sell. It hit the ground with a thud.
M: Have you continued writing despite those setbacks?
W: Yeah. I try to write every day. I try to get up early and write before I go to work. If I’m in trial or if I have something pressing, then obviously I don’t write. Sometimes I write both early in the morning and late at night, although I find I’m far more productive early in the morning. I try to work on the weekends – Saturday and Sunday both – unless I’m involved in something else. With two teenage sons, more often than not I’m involved in something else on the weekends. Though I don’t have a rigid schedule of writing, I am constantly writing. The word processor is never shut off in my study at home.
M: Some writers try to write for the market so they can sell their books. Have you altered your writing style or any of your plotlines or characters to try to generate sales?
W: I haven’t really. One of my peculiarities has been that while there’s always a crime involved in my stories, they’re not really mysteries. At least I don’t conceive of them as mysteries. To me, far more important than “whodunit” is the character who is involved in trying to resolve a crisis in the book.
M: Do you have any words of advice for lawyers who may be thinking about writing a novel or started writing a novel?
W: Well. that’s an interesting question because I’m probably asked on the average of twice a month how one can get a novel published. The number of lawyers who are either writing novels or who have written novels or would like to write a novel is just astounding. I assume that has to do with the fact that we lawyers work with words all the time. And because we are dealing with crisis situations and situations of stress we do have prompts for us to say, “Gee, that was a good story.” Do I have any advice for would-be lawyer-authors? Yeah. As with anything else, this is a craft that has to be developed. You have to keep working at it. Most importantly do not be self-indulgent. That’s the biggest problem with a beginning writer is that he or she so often is caught up with what he or she has to say that there isn’t sufficient regard for what an objective person is going to think. An objective person may not be as interested in your life as you are. And you must bear that in mind at all times.
Stephen M. Murphy is a sole practitioner in San Francisco where he practices plaintiffs employment and personal injury litigation. He serves on the editorial board of the CAOC Forum.