Saturday, July 14, 2012

Be Not Hoist With Your Own Petard

What a piece of work is a man!
William Shakespeare, Hamlet, Act II, scene 2, line 312

Back when I had occasion to teach Shakespeare to undergraduates instead of legal writing to law students, I proposed that all of Hamlet could be reduced to a single metaphor: to be “hoist with his own petard.” (III. 4.207) That metaphor is, perhaps, misunderstood as often as it is quoted. A “petard” is an explosive device. Those who speak French will recognize that the word shares Latin roots with “péter,” which, en français, refers to a more modest bodily explosion, i.e., breaking wind. Hamlet uses the metaphor of an engineer being blown up by his own bomb to describe what he hopes will happen to his two former school chums whom Hamlet’s murdering uncle, King Claudius, has enlisted to “marshal [Hamlet] to knavery”—i.e., steer him to an early grave. But Hamlet plans “to delve one yard below their mines” and thereby “blow them at the moon.” In other words, he is going to see that they are undone by their own scheme. This metaphor sums up the entire play because every major character and several minor ones end up dying as a result of their own efforts to lay a trap for someone else. For example, Hamlet gets a target painted on his back after he arranges to have some traveling players stage a production for the court that Hamlet calls “The Mousetrap,” designed to “catch the conscience of a king.” (II.2.617) And, sure enough, the scheme works! The play, which reenacts Claudius’s murder of Hamlet’s father, does startle the murderer into revealing his guilty conscience. But the scheme also alerts Claudius to the fact that Hamlet, Jr. is on to him. Therefore, King Claudius becomes hell-bent on disposing of young Hamlet, even if the kid is both his nephew and his new wife’s beloved son. After a few missteps, Claudius succeeds in orchestrating Hamlet’s demise. But those same efforts also bring about Claudius’s own death—along with the deaths of his collaborator, Laertes, and the seemingly innocent bystander, Queen Gertrude. Eventually, Hamlet, Claudius, Laertes, and Gertrude are all hoist with their own petard in one fell swoop. And that is just one example.

How does this theme apply to lawyers’ work?

Lawyers should be a bit wary about their own petards. For instance, what might seem like a really clever provision to stick in a contract may, in retrospect, become a landmine that blows up on those whom it was intended to protect. (I have seen it happen, though I am not naming names.) Of course, predicting when, where, and why business relationships will fall apart is extraordinarily difficult. And drafting hermetically sealed, self-contained contracts whose terms are obviously enforceable in all respects borders on impossible. Even when a legal document seems crystal clear to lay eyes (which is hard even to imagine), when people want out of a legally sanctioned relationship, they will squint and see some loophole in the document. And if the stakes associated with breaking up the relationship are high enough, people can always find a lawyer willing and able to marshal all manner of creative arguments as to why the contract is: indefinite; the product of mistake, fraudulent inducement, or duress; barred by laches, the statute of limitations, or estoppel; or downright  unconscionable. But instead of elaborate, clever constructions, as a rule, simple, transparent formulations are a safer bet. Less imprecision means less to fight about. To quote Hamlet’s mother, Queen Gertrude:  “More matter, with less art” (II.2.95) is the best goal. Otherwise, clever lawyers on the other side will find a way to see you hoist with your own petard.

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