Lawyers and History

Drew Wagenhoffer had a piece on his blog this week about lawyers who write Civil War history. He had a list of us, myself included. Fortunately, most of us are well-respected names like Gordon Rhea, Kent Masterson Brown, Russel “Cap” Beatie, and the dean of all of us, Alan Nolan. It’s been my good fortune to be able to count Gordon and Kent as friends—Gordon graced my study of Sheridan’s Trevilian Raid with an excellent forward—and I know Alan Nolan from attending the Gettysburg College Civil War Institute. Alan’s book Lee Considered served as the model for my book Little Phil: An Assessment of the Civil War Generalship of Philip H. Sheridan. Gordon does tremendous work, and Kent’s study of the retreat from Gettysburg is a classic. I don’t know Cap Beatie, but I admire and respect his work. He’s written two tremendous books on the early days of the Army of the Potomac, and he’s also co-owner of Savas-Beatie publishing. Ted Savas, his partner in that venture, is also a lawyer, although if you ask Ted, he will tell you that he’s a recovering lawyer (which, I might add, I aspire to be sooner than later).

I won’t be so bold as to speak for my fellow barristers, so what you’re about to get here is my perspective on things.

First, there’s the obvious question of why so many lawyers who are so prominent in this field of endeavor? In my case, it’s the convergence of a lot of things. First, I have had a very powerful fascination with the Civil War since a third-grade class trip to Gettysburg in about 1968 or so. The study of the war has been a major influence in my life since that trip—I checked the American Heritage picture book of the Civil War out of the library the next day, and have never looked back. Mix in the fact that I don’t particularly enjoy the practice of law very much and that, given my druthers, I would much prefer my historical work. Finally, I have a very restless mind and a short attention span. I spend many an evening writing in front of the TV (I’ve actually killed off a couple of laptop computers that way—in a future post, I will relate those sagas), with the TV basically serving as background noise. I’m pretty sure that I have a mild case of ADD, as I’ve always needed background noise and a little bit of distraction to be able to concentrate. My writing is no exception. Finally, my wife Susan had a series of jobs that required her to work a lot of evenings, and then she went back to school to finish her degree. So, there were plenty of evenings where I didn’t have much else to do, and writing was an excellent way to pass the time. People often ask me how it’s possible for me to be as prolific as I am—I’ve just told you very specifically.

So, why write history? The short answer is that I’ve done scholarly legal research and writing, and after my fourth scholarly article on the law was published, I was bored, and was really looking for something else to do. Given my almost life-long fascination with the Civil War, that was an easy decision to make. Anyone who knows me knows that I love challenges. I haven’t had a formal history class of any sort since the 10th grade. I am entirely self-taught, so I have thoroughly enjoyed the challenge of mastering an entirely new discipline. My first article, on Joshua Chamberlain, was published the week we got married in 1992, and it was, if I may say so myself, very bad indeed. I’m honestly embarrassed by just how bad it was as I look back on it today, but you have to start somewhere, and that’s where I started. For me, this was a logical progression, and once I tried it, I loved it.

Finally, how does my legal training affect my historical work? Well, that’s actually rather simple. As law students, we’re taught that you can never, ever assert that something is a proposition of law or statement of fact without having either specific pieces of evidence or legal authority to support that. I’ve always adhered to that important piece of instruction—I had a law review article years ago that had nearly 300 footnotes because of it—and it’s always been how I attack the writing of history. It’s why I’ve always tried to be exhaustive in my research, and it’s also the specific reason why my work tends to have so many footnotes—I feel compelled to exhaustively document the things that I say whenever possible to do so.

Also, trying cases is a form of story telling. I’ve probably done 60 trials of different varieties in my career. You pick a theme, you build your story around that theme, and then you tell your story piece by piece. Each piece of evidence is intended to build on the last one until the pile of evidence, if you will, meets the burden of proof and the picture is complete. I write history the same way…carefully and piece by piece. In that sense, what I do is exactly the same irrespective of whether I’m doing legal work or writing history….I’m still interpreting and presenting evidence in a fashion that enables me to weave a complete story.

There is typically one major difference. When I’m acting as a lawyer, I am acting as an advocate. I’ve been hired to serve as an advocate, which means that my job—my ethical requirement, for that matter—is to zealously represent the interests of my client to the fullest extent of the law. That means that I’m not being objective, I’m advocating a position. With one notable exception—which I will touch on momentarily—I do not approach history from the angle of advocacy. Rather, I go where the historical evidence leads me, even if those conclusions run counter to what I might otherwise hope. Once I see where the evidence leads me, I then tell the story as completely and objectively as I can.

There has been one very notable exception to this rule. My book Little Phil makes no attempt at objectivity. From the very beginning of the book, I tell the reader that I am serving as an advocate, that the book has been written as a lawyer’s brief. I lay out my case—as if I was trying it to a jury—with no pretense of objectivity. I’ve been criticized for that, but I think that it was important to be honest and up front about the approach. That approach was admittedly taken from the work of Alan Nolan, and I have always freely acknowledged that his book Lee Considered was very much the model for my Sheridan book. It bears noting, though, that the Sheridan book was probably a once in a lifetime thing—while I try never to say never again for the most part, I can’t envision myself undertaking such a project again. My subsequent work has gone back to an objective telling of the story, punctuated by my take on events, and that’s how I expect to proceed as time passes.

One final point needs to be made. I write because I love it. I write because I need to do so in order to keep my sanity in a high-stress profession. Finally, I write because I feel compelled to tell the stories of the men who fought and died to give us the country that we have today.

Eric J. Wittenberg

September 18, 2005

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