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.”
“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.