Saturday, December 29, 2012

No Mere Rude Mechanicals

In a recent interview, I heard Aaron Sorkin, creator of the TV dramas West Wing and Newsroom, describe what he does as “reproduce phonetically” what real smart people say. The suggestion is that he does not really have the foundational knowledge of a truly erudite person, he is simply good at capturing how those who are properly educated sound. As applied to Sorkin, this description may be unduly self-deprecating. I do not presume to judge. But the phenomenon he described in such catchy terms struck me as familiar.
First, this notion that one can be gifted at “reproducing phonetically” utterances that correctly reflect knowledge that the writer him- or herself does not actually possess is a good way to describe one of Shakespeare’s gifts—especially if one starts with the premise that the guy who wrote all of those plays was the uneducated fellow from Stratford named W.S. But even if “Shakespeare” was really the highly educated, well-traveled Earl of Oxford, as some believe, the author of the plays did a remarkable job of “reproducing phonetically” distinct characters possessing a range of educations and practical skill sets, only some of which could have been obtained by the author through actual life experience.
Second, this notion of “reproducing phonetically” the sounds made by others who actually earned their foundational knowledge through laborious, practical acquisition is what I frequently do when writing briefs—particularly briefs involving legal issues in doctrinal areas with which I do not have prior experience. In other words, I have been fortunate to avoid the kind of narrow specialization that characterizes some contemporary law practices. But even if a lawyer becomes a litigator who works exclusively, say, on employment or patent or family or commercial disputes, litigation itself always involves people. And the fact-patterns that people generate are infinitely variable. Therefore, even if a lawyer only deals with disputes implicating one doctrinal area of law, the lawyer is forever encountering new issues. Not just variations on set themes, but legal issues that are truly new, even to a seasoned lawyer. When that lawyer is then called upon to brief these issues for a court, the lawyer has to figure out how to sound like someone who is profoundly well-versed in that subject.
How does a person do that? How does a lawyer write like Sorkin or Shakespeare, such that the lawyer “reproduces phonetically” the sounds someone would make who was a true scholar of a discrete issue?
At the very least, persons who hope to pull off this feat need to:
·         Admit to their ignorance;
·         Engage in some serious cramming;
·         Pay keen attention to nuance;
·         Remain profoundly insecure and thus self-conscious about how they might be misusing terms of art or missing some logical gap; and
·         Entreat someone with practical knowledge of the subject to vet the enterprise to ensure that it rings true.
Writing (and acting) that is mere mimicry is annoying—and unconvincing. But part of being a persuasive writer seems universal, whatever the genre: one has to commit to reproducing sounds phonetically that, until the writing project arose, the writer’s own life experiences did not equip him or her to utter. The challenge is to avoid “faking” knowledge of a subject so poorly that one ends up looking like an ass. See, e.g., Bottom in A Midsummer Night’s Dream. As Puck explains:
My mistress with a monster is in love.  
Near to her close and consecrated bower,  
While she was in her dull and sleeping hour,
A crew of patches, rude mechanicals,  
That work for bread upon Athenian stalls,
Were met together to rehearse a play  
Intended for great Theseus' nuptial-day.  
The shallowest thick-skin of that barren sort,
Who Pyramus presented, in their sport  
Forsook his scene and enter'd in a brake  
When I did him at this advantage take,  
An ass's nole I fixed on his head:  
Anon his Thisbe must be answered,
And forth my mimic comes. 

Being a “mimic” is what the “rude mechanicals” do, not what good actors or writers—be they playwrights or legal writers—do. The former become butts of jokes; the latter can elevate a culture’s consciousness, transform an entire language, or at least earn a decent living.

Wednesday, December 26, 2012

Freedom, hey-day! hey-day, freedom!

My e-mail inbox demonstrates that lawyers all around me were back at work, full throttle, shortly after the curtain fell on Christmas Day.
One thing I love about lawyers is their appetite for work. Most of the good ones enjoy working really, really hard. And virtually anyone who becomes a lawyer made a habit of striving shortly after learning to stand upright. This skill was ultimately tested in law school and is continuously honed in the work place. Occasionally, workaholic lawyers can even proceed with little respite for decades without driving everyone else in their lives bat-shit crazy.
I have written before about how loving one’s work seems to be a good antidote to growing old. And Shakespeare has said all kinds of things about how quality work is a means to conquer death itself. Work, particularly a métier, gives days much-needed structure. I for one quickly tire of truly formless vacation days. I love vacations that give me a chance to either have adventures or get lots of WORK done that I cannot otherwise get to because other, less appealing work keeps getting in the way.
One character who really hates the work that fills his days is Caliban of The Tempest. As soon as his master is out of sight, Caliban curses his man “Prosper” (aka “Prospero”) with relish: “All the infections that the sun sucks up/ From bogs, fens, flats, on Prosper fall and make him/ By inch-meal a disease!” On one hand, who can blame Caliban? The poor guy was turned into a virtual slave on his own island after he had the audacity to try to molest Prospero’s young daughter, Miranda. On the other hand, even when Caliban fantasizes about rebelling, all he can think to do is pledge himself to serve a “new master” the drunkard, Stephano, who “bears celestial liquor.” That is, even the oppressed Caliban longs not for leisure untethered to any work but for work that will permit him to enjoy his leisure:

I'll show thee the best springs; I'll pluck thee berries;
I'll fish for thee and get thee wood enough.
A plague upon the tyrant that I serve!
I'll bear him no more sticks, but follow thee,
Thou wondrous man.  . . .
I prithee, let me bring thee where crabs grow;
And I with my long nails will dig thee pignuts;
Show thee a jay's nest and instruct thee how
To snare the nimble marmoset; I'll bring thee
To clustering filberts and sometimes I'll get thee
Young scamels from the rock. Wilt thou go with me?

There is some lesson here for those whose work involves motivating others to work on one’s behalf. The trick can’t just be ensuring that the wine flows freely. (Although, at times, such stratagems probably have some efficacy. . . .) Inspiring others to want to plunge into work, all the while singing “Freedom, hey-day! hey-day, freedom!” as Caliban does—well, that requires convincing them that their work furthers some higher cause. Not just the quest for filthy lucre. Or the routine impulse to propound interrogatories.

Thursday, December 20, 2012

Make It Sing

 "[A] song is something you write because you can't sleep unless you write it."
Joe Strummer of “The Clash” to NPR in 1999
Shakespeare’s plays, especially the comedies, are full of song. The tunes he had in mind for these ditties are lost to us. But the lyrics that survive suggest an interesting ambivalence reminiscent of some more modern Brits, The Clash—a tension between melancholy themes and a defiant exuberance reflected in the act of singing itself. Here is a seasonally appropriate  example from As You Like It:
Blow, blow, thou winter wind.
Thou art not so unkind
As man's ingratitude;
Thy tooth is not so keen,
Because thou art not seen,
Although thy breath be rude.

Heigh-ho! sing, heigh-ho! unto the green holly:
Most friendship is feigning, most loving mere folly:
Then, heigh-ho, the holly!
This life is most jolly.

Freeze, freeze, thou bitter sky,
That dost not bite so nigh
As benefits forgot:
Though thou the waters warp,
Thy sting is not so sharp
As friend remember'd not.

Heigh-ho! sing, heigh-ho! unto the green holly:
Most friendship is feigning, most loving mere folly:
Then, heigh-ho, the holly!
This life is most jolly.
(Act II, sc. 7)

On several occasions, I have heard judges express a longing for legal briefs that “sing.” Conversely, I recently heard a member of the U.S. Court of Appeals for the Fifth Circuit bemoan the fact that the briefs she is required to muddle through “rarely sing.” By “sing,” I assume that judges are referring to the somewhat intangible qualities, like flow, that permit the reader to get through difficult material without feeling that it is difficult—or, better still, feeling that they are listening, not reading. And I would agree with a certain unnamed Fifth Circuit judge that many lawyers do not seem to excel at singing—at least not in their legal writing.
Perhaps the holiday season is a good time for lawyers to think about how they might make their professional writing rise above mere workmanlike sobriety and sing. What extra attention to detail might ease the readers’ burden, entice them to stick with us as we explain some dry regulation or statute or procedural rule and its application to a given fact pattern? How can we make those readers bob their heads or tap their feet to a subtle, yet captivating, beat embedded in our prose?
Or perhaps I am only preoccupied with the notion of metaphoric singing today because, last night, my daughter responded to my literal attempts to sing by seizing a pen and writing on my hand in bold, block letters: “STOP SINGING!”
Yet I soldier on.
Fa la la la la, la la la la.

Tuesday, December 18, 2012

"What's in a name?” Everything. Or almost everything.

Ah, poor Juliet. She really thought that if Romeo just "denied [his] father and refused [his] name" their romance would be able to transcend any and all obstacles. The trouble is: names that have become recognized labels are profoundly difficult to overcome. They operate as a kind of shorthand for all sorts of epistemological assumptions and value judgments. People hear certain names and think they know all there is to know about the phenomenon associated with that name. Therefore, those in the naming business who would like to shape the way others “understand” certain phenomena give serious thought to the name they select—be it for a baby, a new cosmetic product, the way a party is identified in a court document, or a social policy.
Juliet could hardly be faulted for her naïve longing to transcend “names,” though. She was, after all, not yet 14 when she got broadsided by her first (and alas only) encounter with romantic passion. And she just thought it would be nice if she and Romeo could be something separate and apart from “Montagues” and “Capulets.”
But the rest of us should know better. On one hand, we should take care in deciding what names/labels to attach to things. Lawyers, for instance, know that the act of naming something is an opportunity to persuade that shouldn’t be wasted. On the other hand, we should approach the names/labels that others apply to things with some healthy skepticism instead of just blindly agreeing to play along.
For instance, when I hear about the waitress who expresses outrage over “the death tax” she thinks she will have to pay upon expiring or the blue collar workers who think that the concept of a “right to work” state is something they should rally around—well, I get a tad irritated. Unless that waitress wins a multi-million-dollar lottery and then has so little sense to hire herself a competent estate planner, neither she nor her kin will ever have to trouble themselves about any so-called “death tax.” Likewise, the “right to work” agendas that involve stripping labor unions of the ability to require dues as a condition of membership is not about giving people a “right to work” but about crippling an interest group that tends to promote better working conditions for those engaged in certain kinds of demanding work and that tends to use some of the dues they collect from members to back politicians who will protect their right to engage in collective bargaining and so forth.
Most of the contemporary examples of effective, if somewhat deceptive, public-policy-related branding that I can think of emanates from the right side of the aisle.
One has to wonder why Conservatives are so much better than Liberals at the name game, why the former have such a finer sense of how to shape perceptions through labels. I doubt very seriously that Conservatives are former English majors or even Marketing & Design majors in vastly greater numbers than Libs. So I wonder if the lawyers—a professional class of wordsmiths with vast appreciation for nuance, connotation, and arguments-by-analogy—who end up working on behalf of Conservative causes are just better than their Liberal counterparts. And if so, why? Is it because lawyers who are politically conservative are more comfortable with the implicit cynicism involved in this language game? What I mean is, does a conservative perspective make a person more likely to be comfortable embracing the notion that language can be used to manipulate perception? And the fact that language will ultimately shape perception even if one does not consciously try to control the resulting perception?  Does a liberal perspective incline people to believe that “facts are just facts”? Are liberals qua liberals more uncomfortable with the idea that words can and do alter the way we look at facts—and thus, in a sense, alter facts themselves? Or is this a peculiarly American kind of liberalism?
I don’t know. But Juliet’s longing—for a world in which she and her Romeo could get beyond their names and simply BE who they truly were—it may be a liberal longing. Certainly a naïve longing. But, perhaps, a nice longing nevertheless.

Tuesday, December 11, 2012

Twelve Nights to “purg[e] the air of pestilence”

“The Twelfth Days of Christmas” has got to be the single most annoying holiday song ever. And the feature that makes it so annoying—the infernal repetition—is, perhaps, why it is beloved by children (including my precious daughter) the world over. But of course most American children who insist on singing it ad nauseam have no clue what those “twelve days” are all about. Those twelve days (nights, really) were, as Wikipedia can explain, an extended excuse for wildly drunken debauchery during the Christmas season in Ye Olde England.
One of Shakespeare’s last “true” comedies, Twelfth Night, is named for the culmination of that extended romp, which is the “Feast of the Epiphany” that falls on the twelfth and final night of Christmas.
As the twelve-night countdown began this year, I got to thinking about Twelfh Night. One fascinating thing about this play is that it incorporates virtually all of the bits that Shakespeare tried out in various other comedies:
  • A shipwreck;
  • Twins who are separated through some mishap and create problems associated with mistaken identity;
  • Lovers who are each in love with someone other than the person who is in love with them;
  • Cross-dressing heroines hiding their identity as both females and nobility; and
  • Fools that speak Truth to Power.
With Twelfth Night, it is almost as though Shakespeare decided to push the comic form to the breaking point by utilizing everything from his bag of tricks—thereby representing a kind of excess analogous to the holiday for which the play is named.
What, generally, is the result of such binging?
A horrible hangover.
Yes, I would say that Twelfth Night virtually induces a hangover with its layers of excess—too many coincidences, too much star-crossed love, too many cruel tricks performed by human beings upon one another.  And that is, perhaps, why the play ends on such an unstable note, with a promise of revenge—such that the audience is left feeling, not only unsatisfied, but a tad sickened. The vengeful threat is issued by poor “Malvolio” (note the “mal” in his name).  Malvolio is a prickly, supercilious, yet devoted servant who has been tricked rather sadistically by some other more fun-loving servants into believing that the noble mistress of the house is in love with him when she most certainly isn’t. (Throughout the play, she (Lady Olivia) is busy pining for Viola who is disguised as the boy Cesario, sent from Duke Orsinio to try to win Olivia’s love for the Duke upon whom the disguised Viola herself has a mad crush. Got all that?) When Malvolio gets fired for making inappropriate advances towards his mistress (whom he was led to believe was really into him), he departs vowing “I’ll be reveng’d on the whole pack of you.” And thus ends this “funny” play.
Yikes. The guy may have been a creepster, but he really was set up and then pushed too far, to the brink of insanity, really. Even the rich and powerful Lady Olivia and Duke Orsinio ultimately see that. So they send someone off to try to “entreat him to a peace.” Then the Fool (“Feste” as in “festival”) bursts into one last song. This song—the very last event in the play—is, however, all about how “the rain it raineth every day.”  Not exactly an uplifting motif, especially in light of what is supposed to follow now that the “play is done:” a dual wedding.
My view is that Twelfth Night demonstrates that Shakespeare, despite his great ear for comedic happenings and witticisms, was really no fan of the comedy genre or the comedic view of life. Even his more riotous comedies, like Midsummer and Much Ado about Nothing, have a decidedly bitter edge. Twelfth Night, which begins on a classically melancholy note, is among the most bitter of them all: 
If music be the food of love, play on;
Give me excess of it, that, surfeiting,
The appetite may sicken, and so die.

The rueful notion of comedy, of the transformative power of love that is on display in Twelfth Night reminds me of successful mediations. In my limited experience, mediating a lawsuit has the best chance of success if scheduled during the twelfth days of the Christmas season. But, as many wise folk have observed, successful mediations are ones from which no one emergences truly happy. This is because mediations require true compromise; one achieves some closure on pronounced ugliness (litigation) but at a real cost on both sides in terms of money and/or justice. Such resolutions are not really funny, no occasion for unmitigated glee. But, I think, “’tis a consummation devotedly to be wished.” [Hamlet, III.1]
So I hope someone reading this is able to use the strange magic of the twelve nights of the Christmas season or the (remarkably similar) seven nights of Chanukah to get some troublesome case resolved outside of court through mediation. In doing so, all involved may walk away disgruntled, yet relieved to be temporarily out from under the cruel “whirligig of time.” [Twelfth Night, V.1.377]

Thursday, December 6, 2012

"To be a dog indeed"

Dogs are a wonder. They can spark smiles or even conversation among perfect strangers. They encourage bonding and loyalty. They promote peace. They inspire all kinds of warm fuzzy feelings—or, at the very least, awe in the case of those with dog-related anxieties.
This term the Supreme Court of Texas heard a case about dogs. See Specifically, the case is about the long-standing concept of dogs as property. More specifically, the case is about whether, when a dog-qua-property is wrongfully destroyed, should the property owner, as a matter of law, be able to recover the value of that property measured in terms of something as mushy as “sentimental value.”
This semester at the law school, we used this particular case, still pending, as the basis for an intramural moot court competition. The interesting tension in the case is between: (1) the very notion of dog as “property,” as opposed to “companion,” in this day and age when dog loving has been taken to whole new heights; and (2) the fact that the only way a dog owner can recover anything in the face of someone’s negligent or even willful destruction of the family’s beloved pet is because dogs are still considered property as a matter of Texas law. And thus arises a second tension: since you can recover when someone commits a tort and damages this “property,” how do you measure that damage if the dog has no real market value? According to the dog owner in the case in question, you ought to be able to measure damages just as someone does with a family heirloom that was negligently destroyed where the heirloom has only sentiment value. But how does one measure “sentimental value”? What factors should courts consider?
Everyone who has ever loved a dog has no trouble imagining how this calculation could quickly get out of hand. And then we’d have the odd situation where a person could recover some considerable sum upon the death of a dog but not the death of most loved ones—since there is no right to recover for loss of companionship due to the wrongful death of most people in a person’s circle beyond parent-child and husband-wife.
The Bard understood about the peculiarities of dog love and the quandaries it can create. Here is an example of his having some fun at the expense of a true dog loyalist, Launce, the hapless servant who fears his dog “Crab” may “be the sourest-natured dog that lives.” Yet Launce is true blue. This scene-stealing character in the rather forgettable Two Gentleman of Verona has sacrificed a great deal for his dog—including taking the blame for his rather bad table manners and some ill-timed stinkiness. But when Crab has so little gratitude that he blithely lifts a leg at the most inopportune time---
LAUNCE (addressing his dog Crab)
When a man's servant shall play the cur with him,
look you, it goes hard: one that I brought up of a
puppy; one that I saved from drowning, when three or
four of his blind brothers and sisters went to it.
I have taught him, even as one would say precisely,
'thus I would teach a dog.' I was sent to deliver
him as a present to Mistress Silvia from my master;
and I came no sooner into the dining-chamber but he
steps me to her trencher and steals her capon's leg:
O, 'tis a foul thing when a cur cannot keep himself
in all companies! I would have, as one should say,
one that takes upon him to be a dog indeed, to be,
as it were, a dog at all things. If I had not had
more wit than he, to take a fault upon me that he did,
I think verily he had been hanged for't; sure as I
live, he had suffered for't; you shall judge. He
thrusts me himself into the company of three or four
gentlemanlike dogs under the duke's table: he had
not been there--bless the mark!--a pissing while, but
all the chamber smelt him. 'Out with the dog!' says
one: 'What cur is that?' says another: 'Whip him
out' says the third: 'Hang him up' says the duke.
I, having been acquainted with the smell before,
knew it was Crab, and goes me to the fellow that
whips the dogs: 'Friend,' quoth I, 'you mean to whip
the dog?' 'Ay, marry, do I,' quoth he. 'You do him
the more wrong,' quoth I; ''twas I did the thing you
wot of.' He makes me no more ado, but whips me out
of the chamber. How many masters would do this for
his servant? Nay, I'll be sworn, I have sat in the
stocks for puddings he hath stolen, otherwise he had
been executed; I have stood on the pillory for geese
he hath killed, otherwise he had suffered for't.
Thou thinkest not of this now. Nay, I remember the
trick you served me when I took my leave of Madam
Silvia: did not I bid thee still mark me and do as I
do? when didst thou see me heave up my leg and make
water against a gentlewoman's farthingale? didst
thou ever see me do such a trick?


Despite Crab’s cruel trick and Launce’s exasperation, Launce stands by his dog. How could the law possibly find a way to measure such devotion?

Saturday, December 1, 2012

Euphemism or Understatement?

Speaker of the House, John Boehner, said this week that he was “disappointed” with the President’s proposal for resolving the looming Fiscal Cliff problem. This reminded me a bit of the moment when Michael Corleone in Godfather II states that he is “disappointed” with his brother Freddo, whom Michael eventually arranges to whack. In either case, the use of the word “disappointed” suggests something quite different than what most parents mean when they say to their kid “I’m disappointed that you didn’t get all of that homework done before dinner.”
Human beings turn to euphemisms most often as a means to soften discussions of bodily events, such as (1) death (passing away), (2) sex (making love), (3) farting (breaking wind). That is, euphemisms, generally involve a subclass of “understatement” designed to cover topics beloved throughout human history by 14-year-old boys.
Trying to soften what you are saying by picking more delicate words can be risky business in legal writing. One risk is that the subtlety will be lost on the reader; especially in a persuasive context, the reader may just miss the point. Another risk is that the reader will perceive the attempt to soften or pretty-up the presentation of an awkward fact and conclude that you are being disingenuous. For instance, Chief Justice Roberts scolded an Assistant Solicitor General during a recent oral argument about a description in footnote 9 of a brief in an ERISA case that had been filed on the Secretary of Labor’s behalf.
The situation that spawned the footnote is a shift in the government’s position from one taken ten years ago. The footnote begins by acknowledging the position the government had taken in some older ERISA cases, e.g.: “Previously, …, the Secretary of Labor had filed an amicus brief in which she urged that where plan terms expressly provide for full reimbursement and expressly disclaim responsibility for attorney’s fees and costs, courts should enforce the plan’s terms and should not apply the common-fund doctrine. [citation omitted]. ” The footnote then provides an explanation for the departure from that position: “Upon further reflection, and in light of this Court’s discussion of ERISA’s preservation of the equity court’s core remedial powers in Amara, …, the Secretary is now of the view that the common-fund doctrine is generally applicable in reimbursement suits under Section 502(a)(3).” (emphasis added)
Roberts reacted to this footnote by suggesting “It would be more candid for your office to tell us” that the change was a result in “a change in position”—that is, a change in who was occupying the White House and thus the helm at Labor. Roberts did not like the “upon-further-reflection-of-the-secretary” characterization: “It's not that the secretary is now of the view—there has been a change. We are seeing a lot of that lately. It's perfectly fine if you want to change your position, but don't tell us it's because the secretary has reviewed the matter further, the secretary is now of the view. Tell us it's because there is a new secretary.”
 The ASG tried to explain that it wasn’t merely that the person occupying the secretary position had changed but also that the law had changed in intervening years: ““With respect, Mr. Chief Justice, the law has changed since that brief was filed nearly 10 years ago in the court's review.” (Note that, as quote above, the footnote does in fact mention two reasons separated by the conjunctive “and.”)
But Roberts was having known of it: “Then tell us the law has changed. Don't say the secretary is now of the view. It's not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”
He is the Chief so he gets to dress people down about their footnotes. (And footnotes do tend to be places were lawyers stash snarky or awkward arguments.) But this particular footnote reads to me merely as an understated, polite even, acknowledgement that both the Executive and Judicial branches had changed their positions during the intervening years on an aspect of ERISA law at issue in the case.
Understatement can be rhetorically powerful. Euphemisms, however, work best, in my view, if they are both funny and graphic. Shakespeare was a master of this variety. He described death, for instance, as “shuffl[ing] off this mortal coil” (Hamlet) and sex as a chance to “die in your lap” (Much Ado about Nothing) unless a male partner has imbibed too much such that the drink makes him “stand to, and not stand to” (Macbeth).
When it comes to farts, Shakespeare’s euphemisms were not as creative, generally involving extended references to wind. One of the most artful of these is Harry Hotspur’s response to the leader of the Welsh rebels, Owen Glendower, when the latter tries to intimidate Hotspur in battle by bragging that the very earth shook when Glendower was born. Hotspur retorts:
O, then the earth shook to see the heavens on fire,
And not in fear of your nativity.
Diseased nature oftentimes breaks forth
In strange eruptions; oft the teeming earth
Is with a kind of colic pinch'd and vex'd
By the imprisoning of unruly wind
Within her womb; which, for enlargement striving,
Shakes the old beldam earth and topples down
Steeples and moss-grown towers. At your birth
Our grandam earth, having this distemperature,
In passion shook.
Henry IV, Part I, III.1

In other words, Hotspur suggests that, if indeed the earth shook at Glendower’s birth, it was merely because Grandma Earth had developed a bad case of indigestion as a result of his baking in the womb; she rumbled with discomfort and then expressed massive relief upon freeing herself of the burden when Glendower was at last born.

Seems to me Hotspur’s description captures aptly what the nation will continue to feel until Congress gets its euphemism in gear so as to divert another gratuitous showdown over national fiscal matters. . . .

Wednesday, November 28, 2012

Blawgging in the Forest

The American Bar Association just announced its picks for this year’s “Blawg 100”—the ABA’s 100-favorite law-related blogs. Can you believe this blawg did not make the list? Of course, I find it shocking that the same multitudes are not clamoring to read my personal musings about the link between some bit of Shakespeare and contemporary law practice as are eager for the latest law firm and law school gossip. See  But I’m not bitter. Oh no. Or even envious. After all, Shakespeare shows us just how ugly “the green-eyed monster” can make a person—transmogrifying even a great man like Othello into an insecure rage-oholic seeing unforgivable betrayals in misplaced handkerchiefs.

In all seriousness: I have been routinely delighted to learn now and then that anyone is reading these posts. Indeed, one of the most rewarding by-products of this enterprise is the occasional unexpected connection it sparks across cyberspace. Among my favorites was hearing from a metallurgist who served as an expert witness in a heartbreaking personal injury case in which I participated a number of years back. I had not had direct contact with this individual since that case wrapped up but learned, because of this blawg, that he is a Shakespeare fan who has performed in several productions.
Sure, for some blawgers, blawgging may prove a gateway to that seductive “15 minutes.” But most blawggers (and bloggers), like most lawyers, routinely write for a very circumscribed audience. Therefore, the writing has to be about something other than the pursuit of recognition. For me, writing is an activity that demands commitment to greater clarity; it is about building bridges outside of one’s own head where the engineering is exposed, and thus one cannot settle for vague connections and unsupported level jumps. Writing is also, as Shakespeare understood, a means to thumb one’s nose at mortality. Writing at least has the potential to defy death. Therefore, even the act of writing to no one expresses some confidence in the potential to survive physical death, to outsmart time—that great equivocator.
Nor shall Death brag thou wander'st in his shade,
When in eternal lines to time thou growest:
So long as men can breathe or eyes can see,
So long lives this and this gives life to thee.
Sonnet 18

Sunday, November 25, 2012

Go See Lincoln

The mystic chords of memory, stretching from every battlefield and patriot grave
to every living heart and hearthstone all over this broad land,
will yet swell the chorus of the Union, when again touched,
as surely they will be, by the better angels of our nature.

Lincoln’s 1st Inaugural
Abraham Lincoln was a lawyer adept at quoting Shakespeare. Indeed, “better angels” in the speech quoted above is an allusion to Shakespeare’s Sonnet 144, in which Shakespeare discusses his two great loves, one which gives “comfort” and the other “despair.” The former—“[t]he better angel”—is “a beautiful man,” the same young fellow to whom about 2/3s of the sonnets are directed. The “worser spirit” is the infamous Dark Lady to whom many of the other sonnets are devoted; Shakespeare suggests that his love for the latter “angel” does not bring out the best in him and, he speculates in this sonnet, she seems to be in the process of corrupting his “saint to be a devil,/ Wooing his purity with her foul pride.” But Shakespeare also recognizes that his love for these two very distinct personalities indicates something about his own divided soul. Lincoln appropriated the metaphor in 1861 to allude to a nation on the brink of civil war, divided over the moral issue of slavery.
Lincoln really knew his Shakespeare. And like Shakespeare, Lincoln knew the power of story, word play, humor, and arguing by implicit analogy.
But most impressively, Lincoln knew how to enlist the aid of opponents by disarming them with his humility and by accepting compromise as essential to getting anything momentous accomplished. These aspects of the Great 16th Pres are on display in Steven Spielberg’s masterful new film featuring an astonishing performance by Daniel Day Lewis. The beautiful screenplay was crafted by America’s greatest living playwright, Tony Kushner, based on a terrific book, Team of Rivals, by presidential historian, Doris Kearns Goodwin. The movie’s riveting plot is about the legislative sausage-making necessary to secure passage of the 13th Amendment that finally abolished slavery in this country as a matter of law during the last throes of the Civil War. Immediately after sitting through a sold-out showing this weekend, I was ready to watch it all over again (except that I couldn’t because they kicked us out to make way for another sell-out crowd).
Hooray for the artistic and intellectual heft that has given us a cinematic work for the ages! Hooray for those flocking to see a movie about the rule of law, the excruciating triumph of equality, and the craggy face of true leadership. . . .
The film made me reflect that Shakespeare could have been anticipating Lincoln when he penned the following:
[T]his [man]
Hath borne his faculties so meek, hath been
So clear in his great office, that his virtues
Will plead like angels, trumpet-tongued, against
The deep damnation of his taking-off[.]

Macbeth, the would-be assassin, speaking of Duncan,
the Scottish ruler whom Macbeth ultimately murders
Macbeth, I.7

Certainly, if anyone should be damned by history, it is the Shakespearean actor who took Lincoln from us prematurely. Thankfully, Lincoln lives again in this new movie—which has so much resonance for our times, such much to teach us about our dueling angels.

Thursday, November 22, 2012

Thanksgiving Sonnet

Emulating WS's form, if not his transcendent lyricism, I offer this “Thanksgiving Sonnet” for those reading this blog. I am thankful for you!

The holiday that calls for giving thanks
When yellow leaves or few or none do hang
Upon the boughs, and thereby yanks
The heart toward sappy sentiment and pangs
Of earnest hunger and regret for all
That has and has not been, calls too for an
Account of that which serves us as a mighty wall
Against despair. Count the solace where you can.
The squeaky child’s voice that sparks a smile;
Adoring gaze or purr of family beast;
Surprising ways that nature can guile;
The human arts permitting sensual feasts;
The cause, the quest, the whirl of busy days;
The ones injecting light into the grays.

Tuesday, November 20, 2012

“The brightest heaven of invention”

One thing that I find very pleasant about writing briefs for patent litigators is the chance each project provides to get immersed in the magical argot associated with patent law. That doctrinal area seems peculiarly blessed with unique standards, tests, and theories, mostly invented by the extraordinarily smart and thoughtful judges who sit on the specialized Federal Circuit Court of Appeals. These unique features of patent law are captured in terms that can be utterly cryptic to the uninitiated. One of my favorites, “the objective factors for assessing non-obviousness,” was at the center of a recent Federal Circuit case, Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., No. 11-1555 (Fed. Cir. Nov. 15, 2012) (about which my pal at Blawgletter recently blogged).

The requirement that an invention be “non-obvious” may seem, well, obvious. Certainly, inventive litigators defending against patent infringement suits have developed all kinds of ways to assault a duly issued patent to try to show that the folks at the US Patent Office just made a big mistake. Just one of those ways is to try to show that the invention was “obvious.” And courts long ago concluded that an invention is not patent-worthy if the fact-finder concludes that it was, after all, “obvious.” So, even if an accused infringer is found to have infringed, the infringer is off the hook if the patent is deemed invalid on the basis of obviousness.

But the Federal Circuit has also developed a means for defending against the defense of obviousness. The “objective factors” that can be weighed to determine non-obviousness include evidence of (1) an invention’s commercial success; (2) that it received “industry praise;” (3) that it produced “unexpected results;” (4) that it prompted “copying” by competitors; (5) that the idea earned “industry skepticism” at the outset; (6) that the resulting technology resulted in “licensing” by those eager to use the invention; and (7)—my personal favorite—that it met a “long-felt but unsolved need.”

In a previous post, I discussed the fact that virtually all of Shakespeare’s plays involved plots and characters lifted from other sources, though combined in non-obvious ways. See Moreover, I feel certain that Shakespeare could mount an effective defense of his work based on most of the objective factors of non-obviousness:

(1)   His work has certainly experienced commercial success—in his lifetime and for several centuries thereafter.

(2)   His plays have received praise from industry insiders, whether those “insiders” are countenanced as other literary giants who have been inspired by Shakespeare’s oeuvre or as academics who continue to find new things to marvel at in that same oeuvre;

(3)   His plays have produced “unexpected results,” in that even he never thought they would get performed after his death, let alone published, let alone interpreted in countless other media—like film, ballet, opera, sculpture, and this blawg!

(4)   His plays and sonnets have indeed been copied by competitors—with much of this copying being conscious acts of tribute, as with Kurosawa’s film Ran and Jane Smiley’s novel A Thousand Acres, both stunning transformations that “copy” King Lear.

(5)   The theater “industry” may not have been skeptical about Shakespeare’s work at the outset. But this is hard to test. Theater itself was a phenomenon about which there was great skepticism until its popularity resurfaced with a vengeance as Europe emerged from the Middle Ages, in large measure thanks to Billy Shakespeare.

(6)   The plays certainly resulted in much “licensing” for some time, never going out of print or off the stage—although now the works have long been in the public domain.

(7)   Shakespeare’s work met a “long-felt but unsolved need” we had for a monumental literary genius who could utilize the amazing expressive breadth of the English language and the unique power of theatrical performance.

I rest my case.

Saturday, November 17, 2012

Speak the Speech Pt. 6 (and the last)

 The last admonishment that Hamlet makes in his exhausting speech to the players involves the problem of “clowns” taking liberty with the playwright’s lines and ad libbing bits to try to milk laughs from the audience:


Hamlet captures here a frustration common to playwrights the world over about a habit tempting to amateur and professional actors alike. The temptation to milk a scene for laughs is so pronounced because when performers nail a good one, the laughs that come tend to be the most robust, the most authentic, which in turn create truly memorable moments of theater magic.

I still remember a performance of a production in which I participated as a kid that highlights this truth. Forgive me while I set the stage so as to make a point that has some vague relevance to the practice of law.

This was a Theater Under The Stars production of the musical Oliver! presented at the old Music Hall in downtown Houston. The stage version of Oliver! includes a scene in Act I between Mr. Bumble and Widow Corney, the ruthless caretakers of the workhouse where little Oliver then resides. The scene in question comes right after Oliver has been told that his impudence in asking for more gruel means he is going to have to pack up and leave. While Oliver is packing, Mr. Bumble and Widow Corney congregate in a sitting room where Bumble makes amorous advances that Corney pretends to find offensive. One night during this scene, the two actors, both of whom were decidedly not petite, got a little carried away; while tousling with one another, they accidentally up ended a cart that held a full china tea set. So their musical number, “I Shall Scream,” was punctuated by a different kind of uproar: a cacophonous crash. Worse than the disruption was the resulting mess—shards of broken china—all over the stage floor. The backstage crew could not possibly rush on and clean it all up during the short blackout between scenes. And the next scene was a rather elaborate number, a street scene in which Bumble sings “Boy for Sale” as various villagers dance on and off stage from every direction. The stage crew had to think fast. Someone had the brilliant idea of having one dancer in the chorus glide across the stage as a street sweeper and sweep away the mess. That little bit of improvisation itself garnered laughs and a burst of applause from the audience. But what really brought the house down happened in Act II in a scene back in the workhouse in the same sitting room where Bumble and Corney had had their amorous encounter interrupted by the cacophony of breaking china. The lights came up on Mr. Bumble and Widow Corney, now unhappily married. The script dictates that Mr. Bumble begin the scene with a few plaintive lines ruminating about how happy things were back when their relationship was just an illicit flirtation. The actor playing Bumble made the impromptu decision to add a little coda to the lines as written, gesturing to the empty tea cart and saying, “And there was that lovely tea set we used to have. . . .” That improv sparked a spontaneous eruption—the heartiest laughs of the night, of the entire run really. Indeed, the intensity of the laughter and applause at this moment in the show was so wild that actors streamed from their dressing rooms backstage and gathered in the wings to try to figure out what had happened on stage to bring the show to a virtual halt as the audience cackled hysterically.

Note that I have no trouble recounting this event that took place nearly 35 years ago. It was truly memorable. I may not be deft enough to capture the sheer hilarity of the moment. But THE POINT HERE IS THIS: moments like that are like a jolt of crack cocaine to an actor’s brain. The euphoria, the power of moving a crowd of hundreds or even thousands to spontaneous laughter like that--WOW!!!! Therefore, the quest for such moments can be truly addicting. But when actors make a habit out of seeking such laughs, they can really screw up a show for the other performers and the audience.

We can see the same phenomenon in Supreme Court oral arguments. Those moments when an advocate is able to improvise something really clever in response to a Justice’s hostile question—well, those are the moments that get all the press, the moments that the participants remember. For instance, there was such a moment during the third day of the grueling, multi-day Affordable Care Act oral argument. Chief Justice John Roberts told the beleaguered Solicitor General, Don Verrilli, charged with defending Obamacare’s constitutionality, that the Court had decided that it needed more time to consider the expanding-Medicaid part of the Act. In response to hearing that he would receive an extra 15 minutes, Verrilli said, “Lucky me,” which prompted an eruption of laughter, injecting a moment of levity into tense proceedings.

Such moments are so appealing that even some Justices are tempted to seek out laughs for themselves. For instance, during the argument about whether the Court could sever any portions of Obamacare deemed unconstitutional and thus avoid striking down the entire Act,  Justice Scalia asked Deputy Solicitor General Edwin Kneedler a question intended to evoke laughter.  With mock incredulity, Scalia asked Kneedler, who was arguing for severability, “[W]hat happened to the Eight Amendment? You really want us to go through these 2,700 pages?” That is, Scalia’s quip implied that forcing the Justices to analyze the relationship of the challenged provisions to the Act as a whole was akin to the “cruel and unusual punishment” that the Eight Amendment prohibits. The temptation to play for laughs got so out of hand during that last day of Obamacare arguments that the Chief Justice finally felt compelled to say “That’s enough frivolity for a while.”

And that brings us back to Hamlet’s advice. A lawyer who aggressively pursues cheap laughs during an oral argument risks being dismissed as a “clown” or a “fool.” First, a lawyer really needs to be imbued with a gift for sensing when and how improvisational levity will likely be effective in a rarefied context like an appellate argument. Second, such lawyers have to let the moment come to them; they can’t, through “most pitiful ambition,” actively try to seek notoriety through cheap laughs. But what Hamlet fails to recognize is that, when a person scores a hit with improvised shtick the resulting magic can be more powerful than anything a playwright can ever hope to script.