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.

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