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.

Friday, November 16, 2012

Speak the Speech Pt. 5

In the next part of Hamlet’s speech to the players, he explains that overplaying a scene may make the ignorant laugh but will generally offend those with judicious tastes; and, according to Hamlet, pleasing that much smaller segment of the audience is more important than catering to the masses:

Now this overdone,
             or come tardy off, though it make the unskilful
             laugh, cannot but make the judicious grieve; the
             censure of the which one must in your allowance
o'erweigh a whole theatre of others.

Hamlet then admits that some performers who make  a habit out of “strut[ing] and bellow[ing]” in a way that does not capture the way any real human being acts are sometimes praised:

O, there be
players that I have seen play, and heard others
praise, and that highly, not to speak it profanely,
that, neither having the accent of Christians nor
the gait of Christian, pagan, nor man, have so
strutted and bellowed that I have thought some of
             nature's journeymen had made men and not made them
             well, they imitated humanity so abominably.

Clearly, though, Hamlet does not approve of acting that is all about over-the-top artifice and cheesy pandering.

Because most lawyers are not trained as actors, when they try to be theatrical, they are likely to come across like the kind of second-rate performers whom Hamlet loathes. And when one’s audience is a small cadre of learned, older jurists, blatant theatrical displays are almost guaranteed to fall flat. Even if judges in their private lives simply adore Will Farrell movies, in their professional capacity overseeing oral arguments, they are probably disinclined to fall for “hamming it up.” Therefore, lawyers are more likely to underplay than overplay when they take center stage in a courtroom.

Although there are now video cameras in many courtrooms where appellate arguments are held—though not yet in the Supreme Court of the United States—most oral advocates aren’t tempted to play to the masses because the audience before them is quite obviously that small elite cadre in black robes more likely to be among the group Hamlet calls “judicious.” Being able to see exactly who your audience is as you play to them can help in calibrating your presentation to suit that audience’s tastes—although I think consciously making style choices on the fly is really hard and probably just increases the odds that one will “come tardy off.” But the goal really is to be so thoroughly prepared and focused on delivering the substance to one’s audience in a form it can appreciate that you don’t have the mental space to think about superficial embellishments to produce an effect.

Sure, being the more believable, engaging, authentically funny and/or passionate advocate does not guarantee a win when it comes to appellate argument. See, e.g., Paul Clement v. Don Verrilli in the Obamacare oral arguments available at . But it sure doesn’t hurt. See, e.g., Bryan Stevenson’s argument in Miller v. Alabama, available at

Tuesday, November 13, 2012

Speak the Speech Pt. 4

In my last post, I digressed into a discussion of Method Acting. Interesting, the next part of Hamlet’s speech to the players expressly presages the “modern” style of acting that now call “The Method”:
Be not too tame neither, but let your own discretion
be your tutor: suit the action to the word, the
word to the action; with this special o'erstep not
the modesty of nature: for any thing so overdone is
from the purpose of playing, whose end, both at the
first and now, was and is, to hold, as 'twere, the
mirror up to nature; to show virtue her own feature,
scorn her own image, and the very age and body of
the time his form and pressure.

According to Hamlet, holding a “mirror up to nature” requires striking just the right balance between passion and restraint and aligning speech and physicality. This advice is also spot on when it comes to oral advocacy. Because, even though oral argument is a fundamentally unnatural ritual—such that an upstanding professional is confined behind a podium meant to diminish the speaker as he or she addresses an audience poised to interrupt at will—a successful performance is one that seems “natural” despite the bizarre circumstances.
And what, according to Hamlet, is the ultimate goal of acting? Of portraying human dramas in a theatrical setting?
“[T]o show … the very age and body of the time [its] form and pressure.”
That is, the unnatural reveals fundamental truth, the real form.

The ultimate objectives of the artificially natural-seeming exercise of oral argument are equally ambitious: that advocates may sieze this last-ditch effort to guide the audience/the bench to some deep truth, induce them to use their power to effect legitimate justice, compel them to grant relief in one petty case because that result will lead to a better world more broadly speaking. Or, at the very least, oral argument is a theatrical exercise that shows just how vital the rule of law is at any given moment and how true we are to our better nature.

Monday, November 12, 2012

Speak the Speech Pt. 3

When I was a young actor, whenever I’d get cast, the first question I wanted answered was: “What’s my costume going to look like?” Would it involve a funny hat, lots of fabulous sparkles, or some other attention-grabbing bit of artifice? Later, when studying acting at the Stella Adler Conservatory in NYC, I learned that my superficiality wasn’t all bad. At least Stella Adler, one of the last American acting gurus to sit at the feet of Stanislavsky (Mr. Method Acting), believed that getting a feel for a character’s costume—most critically, the person’s shoes—provided an essential gateway into that character’s essence, along with the props, the setting, and other features of a person’s physical environment. In other words, Stella Adler’s view was that method acting worked from the outside in: you should first learn about the externalities—how a person looks—then you should develop the right voice, accent, posture, gait, bulk, and, eventually, what was underneath, the person’s authentic emotion life, would bubble up to the surface. According to Adler, actors should never try to slap on emotions but should slap on a heavy wig, platform shoes, and a big dress, if that’s what the character had to deal with. Lee Strasburg, another great American acting coach, advocated the opposite approach: start by trying to tap into a character’s authentic emotions by discovering that same emotional capacity in one’s self; worry about all the external trappings later.

But all acting schools agree on one thing: emotions cannot be put on like a costume; that is, you can’t expect a costume (and other superficial displays of emotion) to do the work for you if you hope to portray authentic human emotions.

Hamlet has some performance advice that speaks to this precise issue.

O, it
offends me to the soul to hear a robustious
periwig-pated fellow tear a passion to tatters, to
very rags, to split the ears of the groundlings, who
for the most part are capable of nothing but
inexplicable dumbshows and noise: I would have such
a fellow whipped for o'erdoing Termagant; it
out-herods Herod: pray you, avoid it.

With these lines, Hamlet is urging the players not to indulge in what acting teachers today call “indicating.” This is when actors consciously “indicate” the emotions their characters are feeling so the audience will be sure to “get it,” e.g., “See how HILARIOUS this is!” “YOU CAN TELL THAT I AM REALLY, REALLY MAD NOW!” “This is the sad part; see how broken up I am?” “This guy is scary, can’t you tell by the way I am glowering and making my voice tremble?” Hamlet is so offended by this kind of fake theatricality—which reduces a character to a two-dimensional cartoon—that he would like to see actors who do it “whipped.” Indeed, he sees their crimes as greater than those perpetrated by the classic villains, like Termagant and Herod, that these actors seek to portray.

Admittedly, this tip of Hamlet’s reveals a pronounced elitist sentiment. Hamlet suggests that this kind of overacting represents a naked play for the “groundlings”—the poor folk in the cheap seats—who, in his view, are mostly incapable of appreciating anything other than mugging and splashy special effects. (If you consider the acting style on display in most American comedies and that most blockbusters involve more special effects than character or plot, it seems that contemporary Hollywood producers have the same view about what appeals to the Average Joe as the actors that Hamlet/Shakespeare berates.)

I believe, however, that the best trial lawyers know that jurors can see through surface displays of theatricality. Indeed, such jurors are more likely to suspect that they are being manipulated than to be won over by lawyers who “tear a passion to tatters.” I also believe that most appellate lawyers probably err in the opposite direction—not doing enough to show the (authentic) passion they feel for their cause. But I have seen oral arguments where lawyers seemed to think that pounding on the podium, bellowing over the judges’ questions, calling out opposing counsel in personal terms, and otherwise getting puffy and red-faced was the way to show that they had a just cause. Such tactics, though, are more distracting than effective.

Hamlet is right to say: “pray you, avoid” such antics. Over-the-top displays of emotion are no substitute for real emotion. You need to feel those real emotions; but then, like Stella Adler would probably have advised, you have to be guided by the externalities so that those emotions are calibrated to suit the forum. In the case of oral argument, that means embracing a certain costume (pressed suit and formal, sober shoes) in a particular setting (staid courtroom) with appropriate staging (standing up straight behind a weighty lectern) with the intent to assist a specific audience (learned judges who do not like being mistaken for groundlings).

Saturday, November 10, 2012

Speak the Speech Pt. 2

Today I continue my journey through Hamlet’s oral advocacy primer. Quite wisely, he urges performers to avoid distracting gesticulation:

Nor do not saw the air
too much with your hand, thus, but use all gently;
for in the very torrent, tempest, and, as I may say,
the whirlwind of passion, you must acquire and beget
a temperance that may give it smoothness.

Sure, a person at the podium must be passionate. But often lawyers in the midst of arguing are seized by what I call the “dancing hand” syndrome, which is analogous to what Hamlet means by “sawing the air.” These advocates’ sense of urgency and nervous energy are telegraphed through hands that seem to have a mind of their own and make the same gesture over and over again. This kind of tick pulls focus, distracting the bench from an argument’s substance. Some common hand-sawing gestures I have observed are:

·         A chopping motion with one hand;
·         Finger pointing at one’s notes or, worse, at the bench;
·         A double-handed conductor’s motion;
·         Fist pumping or pounding; and
·         The profoundly distracting pen taping against the podium’s edge.

The opposite problem is the white-knuckled death-grip on the sides of the podium. That strategy can serve as a short-term cure for the dancing-hands problem. But a better solution is to watch yourself on videotape or in a mirror, catch yourself in the act such that you become conscious of your involuntary gestures, and then make strategic choices about when to use precise gestures to emphasize a point, thereby giving your presentation tempered animation.

As with good actors, lawyers in the midst of an argument never want a gesture to seem choreographed. But, ironically, the best way for a gesture to seem natural is for it to be choreographed. The choreography, however, has to be so well rehearsed that the artifice disappears.

By holding a “mirror up to nature,” we can observe just how unnatural some of our instinctive hand motions are. [Hamlet, III.2] Seeming natural, by contrast, starts with heightened self-consciousness.

Thursday, November 8, 2012

Speak the Speech

This week, I began what has become an annual adventure: coaching students on oral advocacy skills to prepare them to compete in national moot court competitions. This same week, I also learned that a talented former colleague had a fantastic adventure of his own, presenting a non-moot oral argument before this nation’s highest court: see . The transcript reveals that Barry deftly fielded a barrage of questions from justices who, from their rarified position on this country’s most elite appellate court, do not seem entirely familiar with how trial courts routinely handle the issue of an expert witness’s reliability before allowing that expert to testify (as opposed to how lawyers use cross-examination to test the relative probity of an expert’s testimony that, though imperfect, is nevertheless sufficiently reliable to be admissible). Every trial lawyer knows the famous SCOTUS case that first announced the “gatekeeper” role that trial judges are supposed to play when a party objects to an expert’s potential testimony: Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). And Barry even injected a bit of humor into his argument in response to a question from Justice Scalia about the hotly contested issue concerning the proper pronunciation of “Daubert.” (Some prefer the French “Dau-bare;” I always thought that, at least in Texas, “DOW-bert” was the preferable approach.)

In light of this amazing synchronicity—that someone I know had a real-world SCOTUS argument just as I began working with law students on how best to approach fake versions of such arguments—I decided today was a good time to trot out a theory I have about oral arguments. This theory is that Hamlet’s speech to the players provides a terrific compendium of tips that oral advocates should embrace.

First, a quick refresher: The speech to which I am referring is delivered to a traveling band of thespians who decide to pay a visit to the Danish court. The players’ arrival excites Hamlet. He is eager to see them perform. He has ulterior motives, though. He also wants them to take a particular set piece, “The Murder of Gonzago,” make a few adjustments, and then perform the modified version for the King and Queen. The modifications that Hamlet makes capture his understanding of how his father was recently killed—such that the present king, Claudius, snuck up on his older brother, Hamlet Sr., while the latter was sleeping in the castle garden and then Claudius poured poison into Hamlet Sr.’s ear. While watching the murder’s reenactment, Hamlet Jr. hopes that Claudius will be startled into revealing his guilt. In preparing to set this “mousetrap” whereby Hamlet hopes “to catch the conscience of a king,” Hamlet spends all of Act III, scene 2 offering advice to the actors about how to do their jobs. The speech begins as follows:

Speak the speech, I pray you, as I pronounced it to
you, trippingly on the tongue: but if you mouth it,
as many of your players do, I had as lief the
town-crier spoke my lines.

In other words, Hamlet urges the players to use good diction yet avoid unnecessary theatricality or bellowing; otherwise, Hamlet suggests, he might as well entrust the play to someone hawking things in the public square. To be convincing as real people, the players must seem conversational even as they take pains to make their speech intelligible from a stage.

Likewise, lawyers engaged in oral argument must adopt some formality, calibrating their speech (in terms of volume, pitch, pace, and diction) so they are easy to hear and understand in the particular forum. Yet the style of their speech should also seem conversational, inviting the judges to interject and ask questions. Trying to lecture or shout at the justices will not be effective.

In subsequent posts, I will work my way through the rest of Hamlet’s long instruction manual to test my long-standing hunch about Hamlet’s relevance to oral advocacy. Stay tuned.

Monday, November 5, 2012

For Patterns' Sake

Although I am still mindful of all things political—what with tomorrow being election day--today I thought I’d try to derive some wisdom, some hint about effective rhetoric from my daughter’s favorite bit of Shakespeare. Her favorite, she recently revealed, is this little ditty:
This royal throne of kings, this scepter'd isle,
This earth of majesty, this seat of Mars,
This other Eden, demi-paradise,
This fortress built by Nature for herself
Against infection and the hand of war,
This happy breed of men, this little world,
This precious stone set in the silver sea,
Which serves it in the office of a wall,
Or as a moat defensive to a house,
Against the envy of less happier lands,
This blessed plot, this earth, this realm, this England[.]

This speech is an excerpt from a much longer rant by John of Gaunt, although my daughter does not know that fact. She also does not know that the speech is from Richard II, a play about a failed king who becomes more eloquent as his situation becomes more dire until he is ultimately imprisoned and assassinated. Nor does she know that the speech she’s learned is preceded by an angry diatribe that then continues for many more lines—all about how England is going to hell in a hurry. But who can blame my daughter for not knowing these things? She is, after all, only ten.
Why does she even know this speech at all? Well, she has an odd mother who insists on reading her all manner of stuff and nonsense from centuries gone by. When I first read this patriotic tribute to her during the London Olympics, she decided to see how fast she could memorize it. We had a race, see, in the spirit of the Olympics. She won, fair and square. Now we play another little game. I give her the first line from something I know she once memorized, and we see if she can still conjure it up. But the other night, to mix things up, I just asked her to recite her favorite Shakespeare piece—whatever that might be. She showed that she could still nail the speech about the “blessed plot.” So after duly admiring her ability to perform parlor tricks, I asked her to explain why this one is her favorite. Without pausing, she replied in that squeaky voice of hers that delights me more than chocolate cake, “Well, I like it that the lines at the beginning go in twos, like a mirror or something—‘this royal throne of kings/ this scepter’d isle, This earth of majesty/this seat of Mars’—back and forth like that. I also like that it is all one sentence, and so I can say it really fast.”
“Anything else?”
“Oh, I also like it because you did that funny dance on the last line the first time you read it to me.”
I am not sure how her latter points can edify us much. But that observation about the pattern she spotted in the first three lines is quite interesting. Kids love patterns. But so do grown-ups. Especially grown-ups taxed with reading really hard stuff, like legal briefs and memos. Any opportunity a legal writer can seize to create patterns is good for helping the reader stay focused. For instance, I love it when I can make the headings in a brief all take the same basic grammatical structure. For instance:
I.                    The State’s Commercial Speech Restriction Does Not Directly Or Materially Further Its Purported Interest In Curbing Methamphetamine Production
II.                  The State’s Commercial Speech Restriction Is More Restrictive Than Necessary To Further Its Purported Interest
Other patterns that are helpful involve being sure to use key phrases or legal “buzz words” consistently so that the reader is not tempted to chase after phantom distinctions that you do not intend. For example, instead of describing the legal test for ripeness as “fit for judicial resolution” and then “appropriate for adjudication” and then “suited for judicial review,” pick one formulation—preferably, the one that shows up most often in the key cases—and stick with it throughout your document.
One more trick is to try to repeat phrases from one sentence to the next to help ease the reader through dense material by implicitly showing them the logical thread in your argument:
With Webster v. Reproductive Health Services, Justice O'Connor exposed herself as a justice committed more to stare decisis than to conservative activism. A conservative activist would have challenged the rationale underlying Roe v. Wade as soon as an opportunity presented itself. Instead, in Webster, O’Connor shored up Roe's underlying rationale. Her opinion expressly states that Roe's underlying rationale need not be revisited to decide the constitutionality of the Missouri law at issue in that case. But Missouri had sought a writ of certiorari precisely to encourage the Court to revisit that rationale. Revisiting the rationale would permit a reversal, not simply of the decision below, but of Roe and all of its progeny. By bolstering that progeny, O’Connor simultaneously demonstrated independence and restraint, traits anathema to those who had counted on her to play for a particular political team. Yet those same traits showed she was inclined to play by rules fundamental to judicial decision-making.
The sense that legal writers should craft patterns to help ground their readers is yet another lesson plucked directly from Shakespeare. The pattern my daughter saw in John of Gaunt’s speech is just one example of how Shakespeare consciously created patterns—for instance, to help actors memorize lines and provide appropriate emphasis and pacing. He also employed patterns to give his audience clues about characters’ social status, a scene’s mood, a plot’s climax. Knowing that humans are pattern-seekers, Shakespeare made sure to give them what they would be looking for.