The Thursday Thinkpiece: Kafka on the Lawyers

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The Trial
Franz Kafka
Orig: Der Process, Berlin: Verlag Die Schmiede, 1925

Translation by David Wyllie

Chapter Seven
Lawyer – Manufacturer – Painter

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He was no longer able to get the thought of the trial out of his head. He had often wondered whether it might not be a good idea to work out a written defence and hand it in to the court. It would contain a short description of his life and explain why he had acted the way he had at each event that was in any way important, whether he now considered he had acted well or ill, and his reasons for each. There was no doubt of the advantages a written defence of this sort would have over relying on the lawyer, who was anyway not without his shortcomings. K. had no idea what actions the lawyer was taking; it was certainly not a lot, it was more than a month since the lawyer had summoned him, and none of the previous discussions had given K. the impression that this man would be able to do much for him. Most importantly, he had asked him hardly any questions. And there were so many questions here to be asked. Asking questions were the most important thing. K. had the feeling that he would be able to ask all the questions needed here himself. The lawyer, in contrast, did not ask questions but did all the talking himself or sat silently facing him, leant forward slightly over the desk, probably because he was hard of hearing, pulled on a strand of hair in the middle of his beard and looked down at the carpet, perhaps at the very spot where K. had lain with Leni. Now and then he would give K. some vague warning of the sort you give to children. His speeches were as pointless as they were boring, and K. decided that when the final bill came he would pay not a penny for them. Once the lawyer thought he had humiliated K. sufficiently, he usually started something that would raise his spirits again. He had already, he would then say, won many such cases, partly or in whole, cases which may not really have been as difficult as this one but which, on the face of it, had even less hope of success. He had a list of these cases here in the drawer – here he would tap on one or other of the drawers in his desk – but could, unfortunately, not show them to K. as they dealt with official secrets. Nonetheless, the great experience he had acquired through all these cases would, of course, be of benefit to K. He had, of course, begun work straight away and was nearly ready to submit the first documents. They would be very important because the first impression made by the defence will often determine the whole course of the proceedings. Unfortunately, though, he would still have to make it clear to K. that the first documents submitted are sometimes not even read by the court. They simply put them with the other documents and point out that, for the time being, questioning and observing the accused are much more important than anything written. If the applicant becomes insistent, then they add that before they come to any decision, as soon as all the material has been brought together, with due regard, of course, to all the documents, then these first documents to have been submitted will also be checked over. But unfortunately, even this is not usually true, the first documents submitted are usually mislaid or lost completely, and even if they do keep them right to the end they are hardly read, although the lawyer only knew about this from rumour. This is all very regrettable, but not entirely without its justifications. But K. should not forget that the trial would not be public, if the court deems it necessary it can be made public but there is no law that says it has to be. As a result, the accused and his defence don’t have access even to the court records, and especially not to the indictment, and that means we generally don’t know – or at least not precisely – what the first documents need to be about, which means that if they do contain anything of relevance to the case it’s only by a lucky coincidence. If anything about the individual charges and the reasons for them comes out clearly or can be guessed at while the accused is being questioned, then it’s possible to work out and submit documents that really direct the issue and present proof, but not before. Conditions like this, of course, place the defence in a very unfavourable and difficult position. But that is what they intend. In fact, defence is not really allowed under the law, it’s only tolerated, and there is even some dispute about whether the relevant parts of the law imply even that. So strictly speaking, there is no such thing as a counsel acknowledged by the court, and anyone who comes before this court as counsel is basically no more than a barrack room lawyer. The effect of all this, of course, is to remove the dignity of the whole procedure, the next time K. is in the court offices he might like to have a look in at the lawyers’ room, just so that he’s seen it. He might well be quite shocked by the people he sees assembled there. The room they’ve been allocated, with its narrow space and low ceiling, will be enough to show what contempt the court has for these people. The only light in the room comes through a little window that is so high up that, if you want to look out of it, you first have to get one of your colleagues to support you on his back, and even then the smoke from the chimney just in front of it will go up your nose and make your face black. In the floor of this room – to give yet another example of the conditions there – there is a hole that’s been there for more than a year, it’s not so big that a man could fall through, but it is big enough for your foot to disappear through it. The lawyers’ room is on the second floor of the attic; if your foot does go through it will hang down into the first floor of the attic underneath it, and right in the corridor where the litigants are waiting. It’s no exaggeration when lawyers say that conditions like that are a disgrace. Complaints to the management don’t have the slightest effect, but the lawyers are strictly forbidden to alter anything in the room at their own expense. But even treating the lawyers in this way has its reasons. They want, as far as possible, to prevent any kind of defence, everything should be made the responsibility of the accused. No a bad point of view, basically, but nothing could be more mistaken than to think from that that lawyers are not necessary for the accused in this court. On the contrary, there is no court where they are less needed than here. This is because proceedings are generally kept secret not only from the public but also from the accused. Only as far as that is possible, of course, but it is possible to a very large extent. And the accused doesn’t get to see the court records either, and it’s very difficult to infer what’s in the court records from what’s been said during questioning based on them, especially for the accused who is in a difficult situation and is faced with every possible worry to distract him. This is when the defence begins. Counsel for the defence are not normally allowed to be present while the accused is being questioned, so afterwards, and if possible still at the door of the interview room, he has to learn what he can about it from him and extract whatever he can that might be of use, even though what the accused has to report is often very confused. But that is not the most important thing, as there’s really not a lot that can be learned in this way, although in this, as with anything else, a competent man will learn more than another. Nonetheless, the most important thing is the lawyer’s personal connections, that’s where the real value of taking counsel lies. Now K. will most likely have already learned from his own experience that, among its very lowest orders, the court organisation does have its imperfections, the court is strictly closed to the public, but staff who forget their duty or who take bribes do, to some extent, show where the gaps are. This is where most lawyers will push their way in, this is where bribes are paid and information extracted, there have even, in earlier times at least, been incidents where documents have been stolen. There’s no denying that some surprisingly favourable results have been attained for the accused in this way, for a limited time, and these petty advocates then strut to and fro on the basis of them and attract new clients, but for the further course of the proceedings it signifies either nothing or nothing good. The only things of real value are honest personal contacts, contacts with higher officials, albeit higher officials of the lower grades, you understand. That is the only way the progress of the trial can be influenced, hardly noticeable at first, it’s true, but from then on it becomes more and more visible. There are, of course, not many lawyers who can do this, and K. has made a very good choice in this matter. There were probably no more than one or two who had as many contacts as Dr. Huld, but they don’t bother with the company of the lawyers’ room and have nothing to do with it. This means they have all the less contact with the court officials. It is not at all necessary for Dr. Huld to go to the court, wait in the ante-rooms for the examining judges to turn up, if they turn up, and try to achieve something which, according to the judges’ mood is usually more apparent than real and most often not even that. No, K. has seen for himself that the court officials, including some who are quite high up, come forward without being asked, are glad to give information which is fully open or at least easy to understand, they discuss the next stages in the proceedings, in fact in some cases they can be won over and are quite willing to adopt the other person’s point of view. However, when this happens, you should never trust them too far, as however firmly they may have declared this new point of view in favour of the defendant they might well go straight back to their offices and write a report for the court that says just the opposite, and might well be even harder on the defendant than the original view, the one they insist they’ve been fully dissuaded from. And, of course, there’s no way of defending yourself from this, something said in private is indeed in private and cannot then be used in public, it’s not something that makes it easy for the defence to keep those gentlemen’s favour. On the other hand, it’s also true that the gentlemen don’t become involved with the defence – which will of course be done with great expertise – just for philanthropic reasons or in order to be friendly, in some respects it would be truer to say that they, too, have it allocated to them. This is where the disadvantages of a court structure that, right from the start, stipulates that all proceedings take place in private, come into force. In normal, mediocre trials its officials have contact with the public, and they’re very well equipped for it, but here they don’t; normal trials run their course all by themselves, almost, and just need a nudge here and there; but when they’re faced with cases that are especially difficult they’re as lost as they often are with ones that are very simple; they’re forced to spend all their time, day and night, with their laws, and so they don’t have the right feel for human relationships, and that’s a serious shortcoming in cases like this. That’s when they come for advice to the lawyer, with a servant behind them carrying the documents which normally are kept so secret. You could have seen many gentlemen at this window, gentlemen of whom you would least expect it, staring out this window in despair on the street below while the lawyer is at his desk studying the documents so that he can give them good advice. And at times like that it’s also possible to see how exceptionally seriously these gentlemen take their professions and how they are thrown into great confusion by difficulties which it’s just not in their natures to overcome. But they’re not in an easy position, to regard their positions as easy would be to do them an injustice. The different ranks and hierarchies of the court are endless, and even someone who knows his way around them cannot always tell what’s going to happen. But even for the junior officials, the proceedings in the courtrooms are usually kept secret, so they are hardly able to see how the cases they work with proceed, court affairs appear in their range of vision often without their knowing where they come from and they move on further without their learning where they go. So civil servants like this are not able to learn the things you can learn from studying the successive stages that individual trials go through, the final verdict or the reasons for it. They’re only allowed to deal with that part of the trial which the law allocates them, and they usually know less about the results of their work after it’s left them than the defence does, even though the defence will usually stay in contact with the accused until the trial is nearly at its end, so that the court officials can learn many useful things from the defence. Bearing all this in mind, does it still surprise K. that the officials are irritated and often express themselves about the litigants in unflattering ways – which is an experience shared by everyone. All the officials are irritated, even when they appear calm. This causes many difficulties for the junior advocates, of course. There is a story, for instance, that has very much the ring of truth about it. It goes like this: One of the older officials, a good and peaceful man, was dealing with a difficult matter for the court which had become very confused, especially thanks to the contributions from the lawyers. He had been studying it for a day and a night without a break – as these officials are indeed hard working, no-one works as hard as they do. When it was nearly morning, and he had been working for twenty-four hours with probably very little result, he went to the front entrance, waited there in ambush, and every time a lawyer tried to enter the building he would throw him down the steps. The lawyers gathered together down in front of the steps and discussed with each other what they should do; on the one hand they had actually no right to be allowed into the building so that there was hardly anything that they could legally do to the official and, as I’ve already mentioned, they would have to be careful not to set all the officials against them. On the other hand, any day not spent in court is a day lost for them and it was a matter of some importance to force their way inside. In the end, they agreed that they would try to tire the old man out. One lawyer after another was sent out to run up the steps and let himself be thrown down again, offering what resistance he could as long as it was passive resistance, and his colleagues would catch him at the bottom of the steps. That went on for about an hour until the old gentleman, who was already exhausted from working all night, was very tired and went back to his office. Those who were at the bottom of the steps could not believe it at first, so they sent somebody out to go and look behind the door to see if there really was no-one there, and only then did they all gather together and probably didn’t even dare to complain, as it’s far from being the lawyers’ job to introduce any improvements in the court system, or even to want to. Even the most junior lawyer can understand the relationship there to some extent, but one significant point is that almost every defendant, even very simple people, begins to think of suggestions for improving the court as soon as his proceedings have begun, many of them often even spend time and energy on the matter that could be spent far better elsewhere. The only right thing to do is to learn how to deal with the situation as it is. Even if it were possible to improve any detail of it – which is anyway no more than superstitious nonsense – the best that they could achieve, although doing themselves incalculable harm in the process, is that they will have attracted the special attention of the officials for any case that comes up in the future, and the officials are always ready to seek revenge. Never attract attention to yourself! Stay calm, however much it goes against your character! Try to gain some insight into the size of the court organism and how, to some extent, it remains in a state of suspension, and that even if you alter something in one place you’ll draw the ground out from under your feet and might fall, whereas if an enormous organism like the court is disrupted in any one place it finds it easy to provide a substitute for itself somewhere else. Everything is connected with everything else and will continue without any change or else, which is quite probable, even more closed, more attentive, more strict, more malevolent. So it’s best to leave the work to the lawyers and not to keep disturbing them.

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