Friday, August 31, 2012

Showing Your Hand—That It May Then Be Bitten

Last of August; and so here comes the last (for a time) of my musings on King Lear. I experienced some serious angst in trying to decide which of the many things worthy of a lawyer’s attention to which to devote this post. At last, I settled on a scene that demonstrates a fundamental negotiation principle: don’t negotiate against yourself.

In the scene in question, Lear has left one daughter’s castle in a huff because she (Goneril) has told him he can only keep 50, not 100, unruly knights on hand as a condition of staying with her any longer. And, according to Lear, she has also “looked black upon [him,] struck [him] with her tongue,/ Most serpentlike, upon the very heart.” (II.4.159-60). Lear goes running to the other daughter, Regan. She, however, is skeptical. She urges Lear to go make peace with Goneril. Regan also suggests that, in due course, he’ll be calling her all the same foul names. But Lear makes it quite clear that his pride will not permit him to grovel to Goneril. And because he fails to read the obvious clues that Regan’s interests are more aligned with her sister’s in this matter than with Lear’s, Lear tries unctuous flattery. This strategy only exposes just how desperate he is:

No, Regan, thou shalt never have my curse:
Thy tender-hefted nature shall not give
Thee o'er to harshness: her eyes are fierce; but thine
Do comfort and not burn. 'Tis not in thee
To grudge my pleasures, to cut off my train,
To bandy hasty words, to scant my sizes,
And in conclusion to oppose the bolt
Against my coming in: thou better know'st
The offices of nature, bond of childhood,
Effects of courtesy, dues of gratitude;
Thy half o' the kingdom hast thou not forgot,
Wherein I thee endow'd.

Then Goneril shows up. After hearing her side, Regan again urges Lear to go back to Goneril’s—after dismissing half of his knights. She says he can then come to her place in a month as originally planned. Lear then further exposes his hand—swearing that he would “rather abjure all roofs, and choose/ To wage against the enmity of the air” and “be a comrade with the wolf and owl” then give in to Goneril’s demand. He calls Goneril yet more horrible names, suggesting that she is now no more than “a disease that’s in [his] flesh.” He categorically rejects her offer, declaring that he’ll stay with Regan instead.

But Regan makes it clear that it is not as easy as all that; she wasn’t expecting him. If he won’t take Goneril’s offer, than he has to negotiate with her in her own right. And she can’t see why he even needs 50 knights:

I dare avouch it, sir: what, fifty followers?
Is it not well? What should you need of more?
Yea, or so many, sith that both charge and danger
Speak 'gainst so great a number? How, in one house,
Should many people, under two commands,
Hold amity? 'Tis hard; almost impossible.

Regan offers to let him stay with her—but only if he gets his retinue down to 25 knights. Lear is appalled: “I gave thee all,” he says. Seeing that he has been backed into a corner, he turns again to Goneril and tries to accept the offer he’d previously rejected so unceremoniously. But Goneril’s offer has expired. And the sisters see that Lear has left himself completely vulnerable:

Hear me, my lord;
What need you five and twenty, ten, or five,
To follow in a house where twice so many
Have a command to tend you?

What need one?

And so: Lear decides he’d rather storm off into the storm, dismissing his daughters as “unnatural hags” upon whom he will have revenge—simply because they’d bested him in a fair negotiation.

Perhaps it’s easier for lawyers and business folks than parents to see the problem with negotiating against yourself. Yet I’ve even seen business clients do it despite sound legal advice about the probable consequences. I am thinking of a very dear client—a human being who was my contact within a humongous company—whose job it was to try to resolve a dispute with a vendor. The company was in the oil field services biz; the vendor was a middleman who had bought some pipe on the international market for my client. The vendor’s whole business model involved searching the globe for relatively cheap materials, assuming the risk of importing the goods for the actual customer, and then making a little by serving as the middleman. On this occasion, the vendor had procured some (really cheap) steel pipe from China. Too bad the pipe exploded under modest pressure shortly after it was laid underground, thereby bringing chaos to a multi-party, multi-state pipeline project. There was really no question under the parties’ contract who was legally obligated to make all this right. My client could not see, however, that it might be in the vendor’s best interest to resist for a while. So litigation ensued. But after just a little taste of litigation, my client was eager to get to the finish line. He wouldn’t even wait for a mediation. He wanted to make a final offer on the eve of a scheduled mediation in hopes that the vendor would see the light and spare everyone the trouble of convening in some distant city for a day to pass notes back and forth from one conference room to another.

Alas, I did not succeed in talking my client out of making that “final offer.” I expressed my fear that making any such “final offer” would just establish a new ceiling and give the vendor renewed hope of getting out from under this disaster at a bargain-basement price. But my client so hated the litigation shenanigans he had already experienced, and his pride had been so wounded by this vendor whom he had trusted, that he just couldn’t see why the vendor wouldn’t just do the right thing and thereby preserve the business relationship.

Maybe I should have insisted that he read King Lear before he made that pre-mediation offer that did not prove to be the “final offer” he’d envisioned. But at least he did get the resolution he really wanted; the lawsuit settled in relatively record time. Moreover, the experience was not so traumatizing that he stumble off onto the heath in the middle of a thunderstorm shouting:

. . . . You think I'll weep
No, I'll not weep:
I have full cause of weeping; but this heart
Shall break into a hundred thousand flaws,
Or ere I'll weep. O fool, I shall go mad!

Wednesday, August 29, 2012

The Cordelia Complex

Time shall unfold what plighted cunning hides.
Who covers faults, at last shame derides.

Cordelia, King Lear, I.1.282-3

This is OCI season. For those unfamiliar with law-school-speak, that means “on-campus interview” time. During this season, lots of students swap out their running shorts and flip-flops for dark suits as they try to land a summer job for the next summer. These students worry obsessively about the numerous law firms with their Dickensian names, all of which seem indistinguishable after you’ve clocked a few hours scouring their websites, searching for profound insights into “what it might really be like” to work there. As a fresh batch of second-year law students struggles with whether they got enough interviews or call-backs or summer job offers relative to their peers and which of the various offers (if any) they should accept, other law students in the class above them are returning from summer stints at these same firms. Some return from the trenches elated; some disillusioned; some horrified; some relieved; some profoundly dejected.

Today I met with a fantastic former student who falls somewhere between the “dejected” and “relieved” categories. Turns out she did not get offers of permanent employment from the firms for which she toiled over the summer. And it seems that the reasons, though always mysterious, may have to do with a Cordelia Complex.

Remember how Cordelia refuses to play along with King Lear’s little game at the play’s outset? Instead of gushing, like her disingenuous sisters, about how she loves him “beyond what can be valued,” Cordelia says what she really thinks. As a result, she incurs the King’s wrath and is hastily disowned. At the very end of the play—indeed, almost the last line, Edgar urges everyone to “speak what we feel, not what we ought to say.” (V.3.326). By then, everything is so horrible, people are urged to just say what they really feel. But at the play’s beginning—when things are still fairly normal—speaking what you feel is not what protocol warrants. But Cordelia does not get this. (“I am sure my love’s more ponderous than my tongue,” she says. “I [lack] that glib and oily art.”)

Law firms, which are particularly buttoned-up institutions, can only handle hearing so much about people’s true feelings. Especially young females’ feelings about, say, the desire to have a gaggle of children. Or about how their political inclinations are at odds with those of the managing partner.

My former student is bouncing back admirably from the summer let-down. In part, this is because she has emerged from the experience armed with an interesting observation: “I don’t think the kind of women who are the ones who do well enough in life to get into the best law schools are generally the kind of women who can play the firm game.”

“What do you mean?”

“Well, the boys—they’re comfortable traveling in a pack, following orders, marching lock step. I just don’t think high-achieving girls are trained to do that.”

As she shared this observation, I recalled the time when the head of a law firm had said to me: “When I hear that a partner has told an associate to jump off a cliff, I then expect to hear that the associate jumped of the cliff. You understand me?”

Alas, those burdened with a Cordelia Complex have trouble with such directives. We would rather bet they’ll be others, like the King of France in Lear, who recognize that there is something odd about casting someone off for being precisely what garnered initial admiration:

This is most strange,
That she, that even but now was your best object,
The argument of your praise, balm of your age,
Most best, most dearest, should in this trice of time
Commit a thing so monstrous, to dismantle
So many folds of favour.

And one can hope that others, like the King of France, will eventually see the same quality that rubbed some folks the wrong way as “virtues” to “seize upon” such that a daughter who refuses to beg for a king’s largess ultimately finds herself a queen in her own right. But it is equally important that Cordelia recognize her own hand in her fate, as my wise, if wounded student has. That is, it is futile to resent a law firm for rejecting a Cordelia who was determined to show her true self in a context that implicitly demands something else entirely.

Sunday, August 26, 2012

Shape a new country in on old course

 Kent, O princes, bids you all adieu;
He'll shape his old course in a country new.

Earl of Kent, King Lear, Act I.1.188-89

It is still August; therefore, as per my pledge, my laser-like focus remains on that august play, King Lear. So much inspiration; so little time.

Lear’s plot, as with virtually all of Shakespeare’s plays (other than The Tempest), is derived from other sources. In part, the play is based on an old folk tale, recorded by Geoffrey of Monmouth in the 12th century. Raphael Holinshed included a version in his 16th century chronicle of British history. The “historical” tale involves an ancient king who had three daughters, one who loved him and yet he disowned and the others who were granted his kingdom and then did him wrong. Shakespeare also lifted the subplot involving the Earl of Gloucester and his two sons from another source: Philip Sidney’s Arcadia. In Sir Sidney’s tale, as in Lear, one son of a nobleman is responsible for his father’s eyes being gouged out and the other son rescues the old man and talks him out of suicide. You can read excerpts from some of Shakespeare’s sources in, for instance, the Signet paperback version of King Lear. The parallels are unmistakable and can hardly be characterized as a coincidence.

What? Are you accusing Shakespeare of PLAGIARISM?!?

Calm down. I am not making an original observation here. Scholars have long recognized that Shakespeare did not waste time inventing plots. So I am not “accusing” the man of anything newsworthy. And since the word “plagiarism” connotes wrong-doing, that is not an accurate description either. Plots, themes, even titles cannot be copyrighted. And artists do not have to cite their sources within the work itself. Anyone—Homer or Shakespeare or Rick Riordan—can take an inherited tradition, like a Greek myth, and use it as a point of departure. Transforming older sources into something new and vital is simply what artists of all stripes do. That is, few, if any, works of art spring, like the goddess Athena, full-blown from the head of Zeus. Art critics then keep busy tracking down the sources and alerting others regarding subtleties suggested by a given variation. What artists cannot ethically do, however, is try to pass someone else’s artistic transformation off as their own.

With legal writing, as opposed to art, establishing credibility involves citing sources obsessively and explicitly. Legal writers also have to demonstrate that the authority upon which they rely is relevant, current, and, preferably, binding. Steering the reader directly to the sources that support as many legal and factual propositions as possible is a best practice.

Aside from that distinction, there is a useful analogy here for legal writers who may be tempted to despair that the profession affords no room for creativity.

Shakespeare created a great deal of magic even though he relied on plots from other sources and then worked within a very exacting form (five-act plays and 14-line sonnets in which virtually all lines fit a strict meter). Legal writers cannot “get creative” with the facts underlying a case, which are like a play’s plot. And a lawyer’s arguments will not be taken seriously unless housed in a conventional formal structure. Yet even within those constraints—or, perhaps, because of them—legal writers can still be creative.

Creativity is, in fact, quite useful when it comes to:

·         turning case law into little stories that make the underlying legal issues come alive;
·         distinguishing unhelpful case law without distorting or soft-peddling material that is contrary to the client’s position;
·         making vivid analogies to illustrate how resolving a legal issue in a certain way promotes a good public policy;
·         coming up with potential arguments in areas where the law is gray (which is most areas);
·         prioritizing arguments and presenting them in a way that makes the hard case seem easy;
·         using vigorous prose that keeps the reader from nodding off without overstepping the bounds of professional decorum; and
·         articulating themes that connect your legal matter to something grander that the reader already cares about.

Shakespeare was stupendously creative while dealing with significant constraints. Legal writers can and should strive to do likewise. And thus the time at the office will fly by.

Friday, August 24, 2012

Getting Older, Not Old

The oldest hath borne most: we that are young
Shall never see so much, nor live so long.
King Lear (last line at 5.3.327-28)

Recently, the world celebrated milestones associated with a few of my childhood heroes: Julia Child (whose centennial was just celebrated without her, as she’d died a few days shy of 92), Phyllis Diller (who made it to 95 this week), Gene Kelly (who would have hit the century mark this week had he not had a series of strokes at 84). One of my other heroes, Pete Seeger, is still hard at work trying to save the planet at 93.

I will not try to explain here the eccentric childhood that compelled me to embrace such a diverse collection of characters. I merely note that another thing these diverse characters have in common is: a passion for their work.

Suggesting a correlation between loving the day job and longevity is not exactly original. And Karl Marx famously argued in support of the inverse proposition—that feeling alienated from one’s work is a sure way to suck the life out of a person. When it comes to law practice, one can see an interesting paradox. On one hand, lawyers have some of the highest rates of depression, substance abuse, and suicide among professionals; on the other hand, identifying lawyers who really love their jobs and refuse to close up the briefcase until they are well into their golden years is also easy. For instance, at the law firm with which I am affiliated, a remarkable number of senior partners are truly senior—yet do not seem eager to pack up their desks any time soon.

Shakespeare’s Lear was older—and then he suddenly became old. Being “older” is simply a mathematical reality; but being “old”—well, that’s a state of mind that can really do a person in.

Shakespeare tells us Lear’s age. And the number may surprise you. It is “fourscore and upward,” i.e., over 80. This is surprising because, in Shakespeare’s day, average life expectancy was around 35. Shakespeare himself did not quite reach 52 years. Even the relatively ancient Queen Elizabeth I died at 70. So the decision to make Lear that much older has significance. Also, noteworthy is the fact that, when we first meet the guy, he is a profoundly forceful figure. The act that precipitates his descent into “being old” is the decision to retire:

. . . ‘tis our fast intent
To shake all cares and business from our age,
Conferring them on younger strengths, while we
Unburdened crawl toward death.

We see pretty quickly, however, that Lear really has no interest in “crawling toward death.” He still sees himself as a player. And he is appalled that two of his daughters want to strip him of all the trappings of his former job, such as a contingent of armed soldiers and other executive privileges. The difference in the way he is treated once he gives up his job as Grand Poobah shocks him. And each trauma thereafter exacerbates his sense of himself as “old,” e.g.:

·         When he is banished from his two elder daughters’ homes, he says: “O Regan, Goneril,/ Your old kind father, whose frank heart gave all--/ O that way madness lies; let me shun that.” (3.4.19)

·         When one of his comrades encounters Lear wandering on the heath and offers him a hand, Lear says “Let me wipe it first: it smells of mortality.” (4.6.135)

·         When Lear is finally reunited with the daughter who actually loves him and whom he treated so shabbily, he says “Pray, do not mock me:/ I am a very foolish fond old man . . . .” And later in the same scene, he describes himself again as “old and foolish.” (4.7.60, 84)

By the time Lear and daughter Cordelia are taken captive in the midst of the civil war that has erupted in Lear’s former kingdom, Lear is no longer interested in confronting his tormentors. He has given up on worldly things and entered second childhood:

. . . . Come, let’s away to prison:
We two alone will sing like birds i' the cage:
When thou dost ask me blessing, I'll kneel down,
And ask of thee forgiveness: so we'll live,
And pray, and sing, and tell old tales, and laugh
At gilded butterflies, and hear poor rogues
Talk of court news; and we'll talk with them too,
Who loses and who wins; who's in, who's out;
And take upon's the mystery of things,
As if we were God's spies: and we'll wear out,
In a wall'd prison, packs and sects of great ones,
That ebb and flow by the moon.

And when Lear is confronted with the worst development yet—Cordelia’s execution—he becomes completely incapacitated and embraces “mere oblivion.” Cradling Cordelia’s lifeless body, he moans:

And my poor fool is hang'd! No, no, no life!
Why should a dog, a horse, a rat, have life,
And thou no breath at all? Thou'lt come no more,
Never, never, never, never, never!

At this point, he is not only at a loss for words, but he can no longer undress himself:

Pray you, undo this button: thank you, sir.
Do you see this? Look on her, look, her lips,
Look there, look there!

And so he dies.

If only the guy had kept working!

Seriously, there’s a reasonable argument to be made by analogy: If a person does not like being a lawyer, the sheer grind could easily drive that person to an early grave. If a person loves being a lawyer, all those long hours may actually promote long life; and hanging up the briefcase prematurely—just because a person is older—might transform that person from being older to being old if he or she is not careful. The really good news is that “being a lawyer,” unlike “being king,” can mean so many things. And if a person does not like being a lawyer in one mode, one can still hope to find satisfaction without abandoning the profession altogether. It just may take some resourcefulness to calculate the next move. In any case, we should all strive to find work we love and pursue it as we become older lest we suddenly succumb to being old.

Monday, August 20, 2012

"Arraign her first"

Arraign her first. 'Tis Goneril, I here take my
oath before this honorable assembly, she kicked
the poor King her father.

King Lear, 3.6.46-48

One of the most interesting scenes in King Lear is not in all versions of King Lear. Specifically—and I’m reaching way back here—the scene I have in mind is in the first extant version of the play published in the “First Quarto” (Q1) of 1608, but it is not in the version published in the “First Folio” (F1), the first “complete” collected works, published in 1623. Scholars debate what that and other discrepancies mean and which version better reflects Shakespeare’s true intent. I will leave the larger debate to others more qualified to opine on the subject. But, IMHO, the second (F1) version cannot be considered an “improvement” over the earlier (Q1) version for the simple reason that this pivotal scene is missing.

The scene to which I refer involves a mock trial (3.6). The trial takes place in a hovel where Lear and a little band of outcasts have sought shelter from a violent storm. At the time, Lear is busy losing his mind. To try to cope with his anxiety, he suddenly decides to put his two eldest daughters on trial in absentia. These two daughters are the ones who have emasculated him by depriving him of the last vestiges of power to which he’d tried to cling after impulsively giving them all of his actual power (and property). In the mock trial, Lear plays the role of prosecutor. He casts Edgar (disguised as “Poor Tom” the homeless madman) in the role of chief judge. He then appoints the Fool and his servant Kent to round out the panel of judges. The trial represents Lear’s hunger for a little law and order in a world that is coming apart at the seams. Wanting a public forum to counter the injustices he is experiencing is a profoundly noble human impulse. Even if this mock trial is just theatrical, the desire for such a ritual reflects one of the reasons we have real trials: We believe that these public vehicles, whereby the accuser and the accused must “bring in their evidence” (3.6.35), are a bedrock of civilization.

By contrast, in the very next scene (3.7), we see the opposite human impulse with regard to doling out justice. The Earl of Gloucester has been accused of treason. The circumstantial evidence of his crime, which amounts to a letter expressing a desire to help out the old king, has been conveyed to the Duke of Cornwall by Gloucester’s own son, Edmund. Cornwall, who is married to Lear’s second daughter, Regan, has no interest in a trial. He merely orders his servants to “seek out the traitor.” And Regan suggests a sentence in advance: “Pluck out his eyes.” At that moment, it is not clear whether Regan is simply expressing the degree of her outrage. But pretty soon, poor old Gloucester is dragged before them, Gloucester is called names (“filthy traitor”), bound to a chair (“Hard, hard!”), mocked (by having his beard plucked), and forced to confess. Gloucester explains that he came to Lear’s aid out of pity and dismay that the man’s own children would treat him so cruelly:

Because I would not see thy cruel nails
Pluck out his poor old eyes; nor thy fierce sister
In his anointed flesh stick boarish fangs.
The sea, with such a storm as his bare head
In hell-black night endured, would have buoy'd up,
And quench'd the stelled fires:
Yet, poor old heart, he holp the heavens to rain.
If wolves had at thy gate howl'd that stern time,
Thou shouldst have said 'Good porter, turn the key,'
All cruels else subscribed: but I shall see
The winged vengeance overtake such children.

Cornwall reacts to this speech by taking Gloucester’s metaphoric use of “see” (and Regan’s previous impulsive suggestion) literally. He orders the servants to hold Gloucester as “[u]pon these eyes I’ll set my foot.” A more horrific punishment is hard to imagine. And very few Shakespeare plays ask that the audience witness such graphic violence unfold on stage. In addition to the eye gouging, for good measure, Regan kills a servant who tries to provide Gloucester some comfort during the torture session. She executes the servant by running him through with a sword from behind.

Gloucester is only “spared” a summary execution because Cornwall has some sense that “pass[ing] upon his life/ Without form of justice”—i.e., a trial—might look bad.

Cornwall and Regan’s approach to dispensing justice represents the flip side of the human impulse on display in the mock trial scene: reacting to perceived injustices by seeking revenge in the heat of passion. Trials are supposed to be about setting things right; yet the form is supposed to require that the desire for revenge/retribution/restitution be tempered by reason. That is, citizens who are asked to do their civic duty and serve on juries are explicitly instructed not to let emotion cloud their judgment. Jurors are supposed to assess credibility, weigh evidence, and see how the facts fit with the law as it is described to them.  And jurors mostly seem to take those instructions to heart.

Of course, we can all probably think of historic and contemporary trials where justice did not prevail; and the trial was more a formal pageant than a substantive exercise in ferreting out The Truth. Yet trials sure are a better alternative than rounding people up, torturing them, and then dispensing punishment absent any meaningful public scrutiny. At least that is one of the many lessons Shakespeare’s Lear seems to teach.

Wednesday, August 15, 2012

Acting, not Faking

One way Shakespeare gets the plot moving in Lear is to pull out one of his favorite little tricks: have someone throw on a disguise and then pal around with folks who know him or her well who nevertheless seem to be totally fooled by the maneuver. The point is not the physical disguise, which, in Shakespeare plays, is usually pretty pathetic. This device is, in essence, a symbol for theater itself and, on an even grander scale, for the human capacity for transformation. When we watch a play, if the acting is sufficiently compelling, we permit ourselves to be fooled by people pretending to be someone else. In the biz this is called “suspending disbelief.” All non-psychotic audience members know that the people on stage are not really the characters they portray, but if the actors hold up their end of the bargain by acting, instead of faking, we accept the artifice. We the audience do this in hopes of a reward--a bit of transcendence, a voyage into an alternate reality, a little vacation from ourselves. When Shakespeare has a character disguise himself as a plot device, he creates mini plays-within-the-play. This device is not just a gimmick, though. It illustrates what it takes for a person to grow.

In Lear, not one, but two main characters do this play-within-the-play bit. In both cases, high born characters pretend to be someone at the other end of the social spectrum. The Earl of Kent pretends to be an old valet so that he can come back and look after the King who has just banished him. Edgar, heir to the Earl of Gloucester, pretends to be a mad, homeless beggar:

I will preserve myself: and am bethought
To take the basest and most poorest shape
That ever penury, in contempt of man,
Brought near to beast: my face I'll grime with filth;
Blanket my loins: elf all my hair in knots;
And with presented nakedness out-face
The winds and persecutions of the sky.

Initially, Edgar resorts to this extreme measure to save himself because, thanks to his half-brother’s machinations, their father thinks Edgar is plotting dad’s assassination and has called for Edgar’s arrest. But by adopting a disguise and really committing to it, Edgar ends up saving more than himself. When Lear’s sanity is on the verge of collapse, Edgar, pretending to be “Poor Tom, that eats the swimming frog, the toad, the tadpole, the wall-newt and the water,” is the only person who is able to get through to Lear. As they huddle together in a hovel as a violent storm rages outside, Poor Tom teaches Lear a few things about human nature and empowers him to reconcile with the daughter whom he has unjustly disinherited. Poor Tom then goes on to stage a little performance that saves his own dad, Gloucester, from suicide.

In the end, even Poor Tom, whom Lear calls “my philosopher,” cannot prevent the old men’s hearts from breaking. But at least while Edgar is fully committed to being a raving lunatic, he is able to raise both Lear’s and Gloucester’s consciousness.

Maybe one reason why Edgar and Kent succeed at getting through to the high-and-mighty by adopting the persona of someone occupying a low rung on the social ladder is that these folks at the top are not used to seeing such people as more than stock characters. Actually, neither Lear nor Gloucester was any good at reading even the people whom they should have known the best: their own children. And so maybe it is not surprising that Lear and Gloucester come to see the truth about their own kin thanks to someone they experience as utterly unthreatening and Other. The pretend servant and pretend madman are successful, in part, only because their audience doesn’t really know what servants and madmen are like, having never bothered before to see the world from their perspective before. So it doesn’t really matter that neither Kent nor Edgar really look like a servant or a lunatic, respectively; what matters is that Kent and Edgar are thoroughly committed to the performance, and the performance precisely suits their audience’s needs.

Thinking about all this reminded me of a federal securities fraud case I once witnessed tried to a jury. With that case, I saw a quasi-tragedy play out before my eyes. It was a “quasi” tragedy because it was just sad—at least from the defendant’s perspective. The defendant was a mid-level manager whose bosses had already negotiated plea agreements with the government. He was a handsome family man and a hard-working, ambitious professional—trained as both a lawyer and an accountant. He was also the author and recipient of many e-mails describing various complex accounting transactions and observations on what should and shouldn’t be disclosed to “anyone.”  At trial, the lawyer for the accused pursued a theme that went something like this: “My client don’t know nuthin’ ’bout no mark-to-market accounting. His company hired lots of fancy lawyers and accounting firms. He and the company relied on them to tell him what was right. The Government is gist tryin’ to make his young fella a scapegoat and get another notch in its gun.” To go with this theme, the lawyer, a city boy, adopted an exaggerated country accent, cowboy boots, and bad grammar.

This strategy struck me as distracting. Neither the lawyer nor his client was an ignorant bumpkin. And the mismatch between the lawyer’s style and the case’s exceedingly complex substance created a disturbing dissonance. I cannot say that the jury found this bright young family man guilty on multiple criminal counts because they too felt this dissonance and thus distrusted the lawyer and, by extension, his client. And, certainly, the decision to pursue this particular trial strategy was not professional malpractice. Yet, for whatever reason, the strategy did not result in the client prevailing in the face of the government lawyers’ plodding, methodical presentation. The jury was not willing to suspend its disbelief.

When lawyers take the stage, they invariably adopt a persona of some kind. But the role has to be calibrated to work for a particular audience and suit a precise context. And the lawyer has to play the part with great sincerity, which, generally, requires really believing in the underlying cause. Borrowed garments alone won’t get the job done.

Friday, August 10, 2012

What Kind of Fool

When King Lear’s trusted colleague, the Earl of Kent, tries to come between the King and his self-destruction, Lear comes unhinged:

Royal Lear,
Whom I have ever honour'd as my king,
Loved as my father, as my master follow'd,
As my great patron thought on in my prayers,--

The bow is bent and drawn, make from the shaft.

Let it fall rather, though the fork invade
The region of my heart: be Kent unmannerly,
When Lear is mad. What wilt thou do, old man?
Think'st thou that duty shall have dread to speak,
When power to flattery bows? To plainness honour's bound,
When majesty stoops to folly. Reverse thy doom;
And, in thy best consideration, cheque
This hideous rashness . . . .

Kent, on thy life, no more. . . . Out of my sight!

Because Kent has the audacity to speak up, Lear banishes the man who has faithfully served him for years—without any semblance of due process. By contrast, when Lear’s Fool gets even more sassy—telling the King exactly how stupid the Fool thinks the King has been—Lear lets it slide:

. . . . Give me an egg,
nuncle, and I'll give thee two crowns.

What two crowns shall they be?

Why, after I have cut the egg i' the middle, and eat
up the meat, the two crowns of the egg. When thou
clovest thy crown i' the middle, and gavest away
both parts, thou borest thy ass on thy back o'er
the dirt: thou hadst little wit in thy bald crown,
when thou gavest thy golden one away. If I speak
like myself in this, let him be whipped that first
finds it so.

(then singing:)

Fools had ne'er less wit in a year;
For wise men are grown foppish,
They know not how their wits to wear,
Their manners are so apish.

When were you wont to be so full of songs, sirrah?

I have used it, nuncle, ever since thou madest thy
daughters thy mothers: for when thou gavest them
the rod, and put'st down thine own breeches,
Then they for sudden joy did weep,
And I for sorrow sung,
That such a king should play bo-peep,
And go the fools among.

The Fool is the only person in Lear’s circle with the power to get through to Lear. The Fool’s power, however, arises not from their personal, but rather from their professional relationship. Fools have a professional license to speak the truth. Only if they lie will they be whipped. (“And you lie, sirrah, we’ll have you whipped.” I.4.185).

So, in some way, being a court jester is akin to being a tenured university professor. Both roles permit a person to speak one’s mind about sensitive topics with reasonable confidence that he or she won’t be banished or placed in the stocks.

One frighteningly accomplished person at UT Law who embraces that power and uses it with particular flare is Constitutional Law professor, Sandy Levinson. Levinson’s most recent books, for instance, take direct aim at one of our nation’s most sacrosanct texts: our federal Constitution. In Our Undemocratic Constitution, Levinson inventories flaws in the document and shows how many of its underlying assumptions have not withstood the test of time or are just plain creepy. In his latest endeavor, Framed, Levinson takes his thesis one step further. He identifies specific governing mechanisms that the Constitution dictates, such as the much-maligned electoral college and the onerous amendment process. He then explains how these procedural mechanisms have contributed to the current, seemingly dysfunctional federal government. He walks through numerous alternatives (suggested by provisions in various U.S. state constitutions) and explains how they would permit a more responsive, flexible national government.

Levinson will be discussing and signing copies of his new book here in Austin on August 15 at 7:00 pm: Even if he doesn’t show up for the gig wearing motley or a coxcomb, I bet that, being the polymath and provocateur that he is, he fully understands and relishes the Fool’s power—and he knows that wielding that power is no fool’s errand.