Monday, February 25, 2013

How now Scholar! whither wander you?

Henry VIII (IV.2)
While avoiding hunkering down and memorizing her lines for the upcoming class production of A Midsummer Night’s Dream, my daughter reported that she’d made a discovery. “It’s a very helpful site with all this Shakespeare stuff.” The Internet site she’d found is one hosted by MIT and managed by an MIT alum. And it is indeed a great free resource—the Bard’s complete works collected in a nice searchable format: I told her that I use this site all the time—when I don’t have my old hard copy of The Riverside Shakespeare handy or can’t remember where a particular line came from. We then had a nice chat about “credible web resources.” The discussion reminded me of the blessing-and-curse that is the task of legal research these days.
Regular people can find some information about virtually any subject now with no more effort than it takes to compose an intuitive Google search. But just because a person finds some information, that does not mean the information is reliable, let alone complete or timely. Such searches, therefore, have considerable limits in terms of efficacy. They can be great for resolving arguments in bars about which major-leaguer had the best betting average in 1957 or who was the Earl whom some purport is responsible for authoring Shakespeare’s  work or whether the SCOTUS has granted a particular cert petition this term. Getting more nuanced answers to questions that are not just a matter of “hard facts” is much more challenging.
But because people can easily find so much information about all manner of topics—including all manner of legal topics—many have started to push back against the notion that lawyers are particularly special because of their access to material that can illuminate answers to legal questions. Folks wonder, “Why should I pay some lawyer $300 or more an hour to find answers that I can now find on my own?” Even many law students think this way: “Why should I bother to learn how to use pricey, proprietary legal databases efficiently when I can always Google my way to some first approximation—maybe even some lawyer’s CLE PowerPoint Slides with all the key cases on an issue?”
In truth, conducting truly confidence-worthy legal research, like drafting effective legal writing, requires special skills generally captured by the phrase “thinking like a lawyer.” Researching legal questions is tricky business because the answers to most meaningful legal questions are not digital or neatly laid out in books.  Crafting meaningful and useful searches to run in specific databases is a skill that will yield better results than garden variety Google-searching ever will.  Yet starting with those free searches makes perfect sense because—well, it’s free and, if you know how to look at search results critically, the free stuff can help you learn enough to create intelligent, tailored searches that will be more successful.
With legal research, success means finding (1) accurate information that is (2) truly on point and, ideally, (3) binding.  But scoring this trifecta can be like finding a whole, unblemished Grecian urn circa 1000 B.C.E.  This is because:
To be accurate, legal information must be current.  Yet the law, comprised of both common-law traditions and statutory schemes codified by legislatures in each state and at the federal level, is forever in flux.
To be on point, a legal authority must deal with a situation sufficiently similar, in terms of both facts and law, to the legal mystery you seek to solve.
To be binding, the law must emanate from a court or a legislature that controls the conduct of the particular entities involved in your legal drama.
Here’s a hypothetical example.  You are trying to find out if your client, a West Virginia resident injured by a collapsing bed in a Texas hospital, can sue that hospital for negligence.  Finding a current article on West Virginia tort law will not help, however, because tort law varies tremendously from one state to another.  And in most states, the law of the state where the accident occurred will control.  But finding a 2002 Texas state court case involving similar facts will not help either because in 2003 the Texas legislature radically rethought the state’s approach to negligence claims, substantially curtailing the available options for bringing claims against healthcare providers of every stripe.   And if you find a current Texas federal court case involving factually similar claims against a hospital, it may not necessarily have anything to do with Texas state law.  That is, a particular federal court may have jurisdiction over a case because it involves parties and subject matter that allow the court to hear it without offending the U.S. Constitution; and the case may involve state law claims; yet those claims may not be Texas state law claims simply because the federal courthouse where the case was filed is in Texas. 
Learning to decipher all of this madness is part of the heaven-and-hell of American law practice.  Suffice it to say that legit legal research is not just a matter of unearthing something that is relevant—which is all Google and the like can promise at this point. A lawyer, like a scholar, has to strive to be “an honest chronicler” of a complex legal landscape, not just one who settles for any old source to support an impressionistic notion of what untethered instinct says.

Thursday, February 21, 2013

All About Bats

Yesterday, by attending a presentation at my daughter’s school, I learned a great deal about bats. I was wholly ignorant, for instance, of the fascinating diversity encompassed by that little monosyllabic name—well over 1,200 distinct species with some truly bizarre traits. You most certainly know about little Vampire Bats that will return again and again at night to suck on a porcine ear until the poor piggy finally collapses from infection or steady blood loss. But you may not know that these bats have a small slit in their bottom lip through which they stick their tongues so as to more efficiently suck their sanguine elixir. You might also not know that the Mexican Long-Tongued Bat is only about 2-inches long but sports a 1-inch tongue, which it uses to lap up tasty mango nectar. Then there is the rather creepy Giant Golden-Crowned Flying Fox that weighs in at 4 pounds and has a huge set of black, leathery wings that span over 5 feet. They do indeed look like large, flying foxes but are instead fruit-eating bats who reside in the Philippines. Here in Austin we have our own precious bat colony, comprised of many thousands of tiny Mexican Free-Tailed Bats who live under the Congress Avenue Bridge and soar from beneath their adopted home en masse each eve, creating impressionistic, smoky swirls in the dusky sky. These bats are among the “insectivores” that, according to my daughter, constitute 2/3s of all bats. These insectivores are nocturnal, as are the Vampires, but the fruit bats have no trouble seeking a hearty meal during the light of day.
When one seeks to forge a connection between Shakespeare and bats, of course the mind wanders to Macbeth, among Shakespeare’s creepiest plays. Most obviously, one of the Weird Sisters chants:
Eye of newt, and toe of frog,
Wool of bat, and tongue of dog,
Adder's fork, and blind-worm's sting,
Lizard's leg, and howlet's wing,--
For a charm of powerful trouble,
Like a hell-broth boil and bubble.

In concocting a “charm of powerful-trouble,” a bit of a bat fiber fits in quite well with the rest of the disgusting inventory. Moreover, Macbeth himself, when hinting to Lady M about the next murderous deed he is about to embrace, uses a bat image to unsettling effect:

. . . Ere the bat hath flown
His cloister’d flight, ere to black Hecate's summons
The shard-borne beetle with his drowsy hums
Hath rung night's yawning peal, there shall be done
A deed of dreadful note.

But there is evidence that Shakespeare did not have merely a facile notion that bats were just icky things of darkness. In The Tempest, the ethereal Ariel sings a little ditty to celebrate his imminent freedom that includes a perfectly lovely bat reference, which situates bats among other merry, industrious, natural beings:
Where the bee sucks, there suck I:
In a cowslip's bell I lie;
There I couch when owls do cry.
On the bat's back I do fly
After summer merrily.
Merrily, merrily shall I live now
Under the blossom that hangs on the bough.

I submit that lawyers ought to see bats in a similarly natural way. Indeed, they should feel some serious empathy for bats. Lawyers, like bats, are often unfairly lumped together; without regard to nuance, they are uniformly maligned as a dark, creepy, blood-sucking lot. The work that they do, which enables, not only their own survival, but that of civilization itself, is often dismissed as distasteful—until a person needs to partake of its benefits. I’ll leave it to your imagination to analogize how some lawyers’ work functions like bats’ role in keeping the insect population in check or, as with the fruit bats, in enabling pollination and other efficacious events. But without irony I say, spread those leathery wings and soar, lawyer, soar.

Friday, February 15, 2013

Muse of Fire

One of my lovely former students, Brian Peterson, was recently invited to blog for Ms. JD about a presentation given by the current ABA President, Laurel Bellows. He seized the opportunity with gusto: His contribution has already secured him an invitation to blog again. When Brian was sharing this good news with me, he asked if I had noticed how he had used the opening of Henry V to help him frame his introduction. How bizarre that a person such as myself should fail to notice such I thing! But when I looked again, the allusions to that play’s famous Prologue were unmistakable. For instance, Brian describes the blog as “an unworthy scaffold to bring forth so great a presentation” and entreats readers to put their “imaginary forces to work.” He then sets the stage, just as the "Chorus" does in the Prologue to the Bard’s most rousing history play, which begins:

O for a Muse of fire, that would ascend
The brightest heaven of invention,
A kingdom for a stage, princes to act
And monarchs to behold the swelling scene!
Then should the warlike Harry, like himself,
Assume the port of Mars; and at his heels,
Leash'd in like hounds, should famine, sword and fire
Crouch for employment. But pardon, and gentles all,
The flat unraised spirits that have dared
On this unworthy scaffold to bring forth
So great an object[.]

What Brian does not know is that I have written a book about legal writing called Muse of Fire, whose title is an allusion to this same speech. That book has yet to see the light of day, so there is no reason why he (or most anyone else) would know about it. Nor does he know that a question he asked me back when he was a One-L inspired one of the chapters. That chapter is about accepting the limited leeway lawyers have—especially non-famous lawyers—to indulge in stylistic innovation when they write legal documents. Just as Shakespearean actors in Elizabethan times had only a handful of devices at their disposal, the legal writer has to find ways to be creative within a very narrow range of acceptable options. Yet just like the Chorus in Henry V, lawyers need to commit to doing their utmost to make their dry legal arguments or explain their complex factual predicates so that they seem vivid and accessible to a busy, harried reader. And unlike the Chorus, legal writers cannot ask their audience to “[p]iece out our imperfections with your thoughts” or read with “humble patience.” If legal writers hope to see their work “kindly judged,” they have to do most of the heavy lifting themselves.

In any event, big congrats, Brian, on an excellent job inducing his readers to “gently hear” all that he has to say!

Wednesday, February 13, 2013

Wise Enough

This fellow is wise enough to play the fool;
And to do that well craves a kind of wit:
He must observe their mood on whom he jests,
The quality of persons, and the time,
And, like the haggard, cheque at every feather
That comes before his eye. This is a practise
As full of labour as a wise man's art
For folly that he wisely shows is fit;
But wise men, folly-fall'n, quite taint their wit.

Viola, Twelfth Night, III.1

Last night I saw a production of Twelfth Night. At least I saw as much as I could until my dainty daughter’s snoring forced us to leave at intermission. The production wasn’t that bad. In other words, my daughter’s condition cannot fairly be laid at the feet of the performers. They were sweetly earnest. The real problem, aside from it being a school night, was with the venue’s problematic acoustics such that the female actors in particular were impossible to hear. But the funniest scene in the play—which is one of the Bard’s most bawdy, witty portrayals of drunken indulgence ever—was admirably played. That scene, however, is what sent me abreacting back into the depths of my thespian past such that I must now unburden myself in hopes of purging the residual shame.

It was a dark and stormy December night more than two decades ago. The night of the premiere of my creation “Wise Enough to Play the Fool.” This was the second piece in what I envisioned would be a long series whereby I would single-handedly revitalize Shakespeare for the masses. These were one-hour comedy sketches created entirely out of bits of Shakespeare, which I had vowed to debut only in bars.

The first one had been a smash hit. Probably because of extenuating circumstances that involved a first “free drink” for all attendees.

This second one certainly had promise, though. The piece, written for four actors to perform playing multiple roles, centered around a drunken redneck bar patron who was forced to attend a 12-step comedy defensive driving course--where all of the “lessons” were made out of Shakespeare’s most famous drunk scenes. One such lesson was the scene from Twelfth Night to which I referred above. Here’s a sample:

. . . . Does not our life consist of the
four elements?

Faith, so they say; but I think it rather consists
of eating and drinking.

Thou'rt a scholar; let us therefore eat and drink.
Maria, I say! a stoup of wine!

The attendees at this second premiere were also treated to free drinks. Indeed, the denizens at the Deep Ellum establishment on this particular night had access to a bar that was to be fully open—all night long.

As we prepared to begin the show, the hipsters were pouring through the door. But not for our little show. They were coming for the club’s “holiday party” to which only the owner’s employees, best clients, top bands, and a thousand or so of his  closest friends had been invited.

How is it that we came to be part of the entertainment line-up that included some of the region’s most promising unsigned metal bands of the day?

Well, one of my glamorous young actors happened to be dating the much-older coke-head owner of said club. And he had invited us to “open” the evening—as a show of support for her artistic endeavors. He’d even offered to pay us $5000 for the gig—a veritable fortune in theatrical terms!

But by curtain time, it was clear that this was all a horrible mistake. Yet I couldn’t see how to stop the tape, prevent the nightmare from unwinding. After all, we had spent weeks preparing for this night. That very day, we’d invested hours setting up our portable lighting, creating a “backstage” for our prop tables and quick change stations. We had checked and rechecked our meager soundtrack and ambient microphones using the club’s state-of-the-art sound system. Now the show must go on.

So it did. And all I, the director/playwright, could do was watch in horror, impotent, as my actors valiantly struggled to perform before an ever-expanding, utterly oblivious crowd eager for stimulants of every variety—except for those then being offered up on stage. Blenders roared, feedback from sound checks blasted over various speakers, a tattoo-artist set to work on his whirring equipment, and drunken revelers shrieked greetings to old friends and new peddlers of illicit substances from every corner of the cavernous bi-level warehouse space.
After the longest hour ever logged on earth, when my crew finally stumbled to the end of what had proved to be an extended pantomime, my face was drenched in tears. Luckily, the atmospherics were so deafening no one had heard me sobbing like a motherless child. The only good news I could parlay to my cast when it was all over was that the open bar was now open to them as well.


A simple, most basic one: Know thy audience.

In fact, the next time I am lecturing my students about how it is critical that they write their legal briefs for a precise audience—because no one is paying them to write great literature or academic treatises or self-indulgent exposés—I must permit my mind to flash back to that ugly night in the ___ club in Deep Ellum. I possess no more visceral memory of the costs of failing to ascertain in advance who one’s audience is going to be. And the biggest price I paid—and continue to pay—is that so many witty lines from a great play like Twelfth Night remain inextricably bound up in my imagination with that experience when I was not “wise enough to play the fool;” I was just a fool.

Sunday, February 10, 2013

All the World’s a Stage—and I mean all

All the world's a stage,
And all the men and women merely players:
They have their exits and their entrances;
And one man in his time plays many parts[.]

As You Like It, Act II, sc. 7

To help them prepare for an upcoming production, last week I conducted a little workshop on A Midsummer’s Night Dream for my daughter’s fifth-grade class. We focused on the Rude Mechanicals and how their efforts to prepare a play for the Duke’s wedding are like what they are trying to do in preparing a play as a class project. Implicit in the comparison was how they can use the Mechanicals’ experience to help them avoid making some terrible choices, such as:
  • Interrupting the director at every turn with self-serving disgressions;
  • Trying to play all of the parts;
  • Adding material to the script out of fear that the audience won’t “get it” or to make sure that members of the audience aren’t so moved that they become unhinged by the power of the performance;
  • Worrying about their costume or the lighting before they have even started practicing their lines;
  • Having people impersonate set pieces (like “The Wall” or “Moonshine”) and thinking that will help create just the right mood;
  • Breaking character in the middle of the performance;
  • Saying all their lines at once, cues and all.

The Mechanicals do all of these things and more—with unintentionally hilarious effects. Or at least it should be hilarious if the actors playing the bad actors can act well enough to earnestly perform being a very sincere bad actor.
Lawyers as well as fifth-graders can learn from the Mechanicals bumbling efforts! Here’s how the above precepts might apply to law practice:
  • Don’t interrupt the judge in court or the client in the conference room when they are trying to direct traffic to show your superior grasp of the situation.
  • Don’t try to do everything; find effective ways to delegate—while keeping in mind that you remain ultimately responsible for all beneath you in the chain-of-command (including more junior lawyers, paralegals, secretaries, law clerks making photocopies, etc.).
  • When drafting any kind of legal writing—including briefs for a court or memos for a client—don’t feel compelled to explain everything and “show all of your work.” It will not earn you extra credit for being a hard worker; it will just exasperate your audience.
  • Take time to prioritize and don’t let concerns about minutiae distract you from absorbing the substance first.
  • Recognize that atmospherics matter—but shouldn’t steal focus or create comedy when you were going for tragedy.
  • When performing in public, such as at trial, realize that you are never “off stage.” You should care deeply about your client. And if any juror ever catches you treating that client—or any member of the court personnel--with disrespect or even indifference, your cover will be blown and your performance a bust.
  • A successful lawyer has to be part of a dialogue that involves a larger context and multiple players; lawyers aren’t hired to give monologues devoid of feedback from their fellow performers or environment.
Now go forth and break a leg!

Tuesday, February 5, 2013

My Kingdom for Some DNA!

A horse! a horse! my kingdom for a horse!

Withdraw, my lord; I'll help you to a horse.

Slave, I have set my life upon a cast,
And I will stand the hazard of the die:
I think there be six Richmonds in the field;
Five have I slain to-day instead of him.
A horse! a horse! my kingdom for a horse!

Yesterday all sorts of news media were abuzz with Shakespearean news (of sorts). See, e.g.,; The test results were in! Bones that had been disinterred from beneath a parking lot back in September, bones which scholars hypothesized to be the remains of King Richard III, had been subjected to testing and now some in the scientific community felt sufficiently confident to confirm the match.
I blawged about the initial discovery of the old bones back in September:
Now I feel compelled to note that the question has never been whether Richard III existed or whether he died in battle or even whether this king—who, after occupying the English throne for a very brief period before dying in a battle initiated by the ultimately triumphant Tudor clan (which still occupies England’s throne today)—had a physical deformity. The question is whether the charismatic, morally reprehensible guy depicted in Shakespeare’s famous play of the same name bears any other resemblance to the historical Richard. Sadly, a DNA match will not answer that question.
But DNA does answer some questions rather well—including some rather serious legal questions. Like probable guilt or “actual innocence” in cases involving horrific crimes. Back in the day of the OJ trial, folks didn’t quite get this. Now, everyone pretty much gets this. DNA evidence is now widely accepted as more rock-solid than most other kinds of evidence—like eye-witness testimony, which, with disturbing regularity, proves to be flat wrong, even when the witness has no intent to lie or even shade the truth. This is one reason why burying potentially exculpatory DNA evidence is a really bad thing.
Another more-local news item yesterday had to do with the fall-out from a prosecutor’s seemingly willful decision to bury all sorts of exculpatory evidence in a murder case that robbed the victim’s wrongly accused spouse of nearly twenty-five years. An innocent man languished in a Texas prison while the prosecutor responsible for the bogus conviction went on to become a state court judge. Now that’s a story.
Let’s hope the inquiry into that particular horror will ultimately elicit as much interest as the identification of a missing medieval monarch’s old bag of bones.

Sunday, February 3, 2013

Time Heals Some

I have mentioned Shakespeare’s A Winter’s Tale before, a play that used to obsess me. This week I was thinking about it again. Particularly, I thought about it during an NPR broadcast about the resurrection of Grand Central Station. When I lived in New York City for a few fleeting years back in the early ‘80s, Grand Central was a bit of hellhole. Like 42nd Street, which was full of peep shows, and Bryant Park, which was affectionately known as “Needle Park,” Grand Central was then yet another old midtown institution that had fallen on hard times.
Today Grand Central is breathtakingly beautiful. It has been renovated to recapture its lost grandeur—starting with the epic cerulean blue painting of the constellations that adorns the main interior dome; and many new features have been added—like high-end retail shops, classy restaurants, a local artisans market, and other bits of opulence.
The resurrection depicted in The Winter’s Tale is a bit more like what has happened down in Galveston, Texas, a place I recently visited. Galveston is no longer the trashy wasteland of my childhood. Some of its truly grand spaces from the late-nineteenth and early twentieth centuries have been restored. Carnival and other cruise lines are now making regular use of its harbor. And many of the Victorian houses—among the biggest and grandest collection of such in the United States—have been brought back from the brink. But if you drive down the old boulevard, Broadway, that divides the island in two, among the few spectacular domestic palaces from Galveston’s initial glory days, one finds mostly fried chicken joints, pawn shops, auto part stores, and signs of urban blight. In other words, Galveston has fought back quite a bit; but the toll taken by Time is still palpable, irreversible.   
The moral of Galveston and The Winter’s Tale should, I think, be the moral of any lawsuit. Even if you “win,” you do not really undo or make up for what has been lost. A court’s judgment cannot bring back lost time; money damages never compensate for the dead or missing body parts or even broken business relationships. Time does not really heal all most of the time. Time usually comes out ahead. In The Winter’s Tale “Time,” literally, skips on stage and announces that sixteen years have passed; then a dark tragedy, which had seemed to culminate in the senseless deaths of the Queen, her young son, her new-born daughter, and one of the King’s most loyal servants—all because of the King’s irrational jealousy—suddenly turns into a pastoral comedy. Then the climax of the comedy is the quasi-resurrection of the Queen as a statute that seems to come to life and the revelation that the sixteen-year-old “Perdita” is the King and Queen’s long-lost infant daughter, now all grown up. But no one mentions the dead son. The King had been deceived into thinking that the Queen was dead; and the daughter had survived without anyone realizing it—miraculously spared when a shepherd rescued her abandoned little self during a terrible storm. This is great news—that Perdita and Hermione live! But no one mentions the boy, the dead son. I don’t think Shakespeare, however, meant for us to forget about him. After all, he is the one who speaks the line that gives the play its name—in the last moment when we see him alive in this adorable little scene with his mother, Hermione, before she is sent off to prison by her own husband:
. . . . Come, sir, now
I am for you again: pray you, sit by us,
And tell 's a tale.

Merry or sad shall't be?

As merry as you will.

A sad tale's best for winter: I have one
Of sprites and goblins.

Let's have that, good sir.
Come on, sit down: come on, and do your best
To fright me with your sprites; you're powerful at it.

There was a man--

Nay, come, sit down; then on.

Dwelt by a churchyard: I will tell it softly;
Yond crickets shall not hear it.

Come on, then,
And give't me in mine ear.

Alas, Mamillius’s effort to tell his story is interrupted by black-booted guards. They tear his mother away from him; he then dies of a broken heart. Sixteen years later, spring comes again—Mamillius’s mother and the sister he never had a chance to know are restored to their rightful place. But in the spring, with all its exuberant promise, one has to find a way to remember little Mamillius, who is truly gone for good. Spring masks Time’s brutality. Time, like the law, can only do so much to ease the pain associated with real loss—even when “justice” seems to prevail.