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

. . . . And let those that play
your clowns speak no more than is set down for them;
for there be of them that will themselves laugh, to
set on some quantity of barren spectators to laugh
too; though, in the mean time, some necessary
question of the play be then to be considered:
that's villanous, and shows a most pitiful ambition
in the fool that uses it.

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.