Wednesday, July 17, 2013


Why, how now, count! wherefore are you sad?

Much Ado About Nothing, II.1

This post is about counting, or, more specifically, about the process of ascribing a numbered sequence to something, more formally known as “enumeration.” In legal writing, when we have multiple arguments to make, we enumerate to give a reader a roadmap and to help keep them focused along the way.  For instance, we might set up an argument in a brief as follows: “Newco’s reliance on X statute is unavailing for at least three reasons. First, the statute does not say what Newco claims it does. Second, even if the statute could be interpreted as Newco suggests, the result would thwart the intent of the legislature that passed it. Third, the statute only applies on Tuesdays.” After that enumeration, the reader will then expect to see three paragraphs or three sections each of which is devoted to fleshing out each of those arguments in turn—in the same sequence in which they were announced.
Hammering out the precise contorts of a legal argument often takes time. You first have to get a grip on the governing law and the relevant facts to see what issues are even implicated in a particular fight. Once you understand the analytical process that the decision-maker would likely follow in resolving the fight, you can then plan an organizational structure that will harmonize with that analytical process and, hopefully, more easily guide the decision-maker to make a decision that furthers your client’s interest.

Enumerating at the outset of an oral argument is also really helpful: “May it please the Court. My name is Ms. Lawyer, and I represent Oldco. The trial court’s decision to grant Newco summary judgment under Statute X was wrong as a matter of law for three distinct reasons. First, . . .” With an oral argument, though, a person has to enumerate issues in even more bite-sized chunks than in a legal brief. Because the brain—even the capacious brains of learned, well-prepared jurists—can only take in so much information through the ear.

Not only is it hard to follow convoluted arguments that are presented orally, it is hard to make them in a way that accounts for how hard they are to follow. So a person might think that an easy solution is to take a moment before responding to some judge’s tough question and map out what will follow by offering an enumerated list. Moreover, this tactic can sound very impressive, suggesting to the inquisitor that the lawyer who is being interrogated really knows his stuff. I think this is why debaters are taught this trick:

Q:         Why do you think it would be good public policy to adopt the statutory construction for which you are advocating? Won’t it mean that more people are denied access to public facilities than with the alternative approach?

A:         Your Honor, Oldco has three points in response. First, . . .

The fact that the lawyer was armed with not one, but three, points in response to the question suggests that the question was anticipated. This in turn suggests that the question is a worthy one, one that needed to be asked and answered. Which in turn suggests that the lawyer respects the process, he cared enough to prepare so as to ensure that the exercise of airing matters out in open court would not waste anyone’s precious time.

 And since all of these bi-products of enumeration are good things, one might think that a person should enumerate every chance he gets during an oral argument. A former student of mine—one whom I would describe as both unusually sweet and talented—once succumbed to this temptation during the heat of a moot court competition. His adrenaline turned him into an enumerating madman:

“Your Honor, Newco is wrong for four reasons—”

“Your Honor, that concern can be addressed with at least five alternatives—”

“Your Honor, six factors weigh in favor of granting Oldco relief—”

“Your Honor, Oldco has seventeen points in rebuttal—”

 But we all know how too much of a good thing can be—

—fodder for great comedy!

Or at least Shakespeare knew that. Indeed, WS had the very insight about enumeration described above a few centuries before I did, and he put it to use in Much Ado About Nothing. Here’s Officer Dogberry, who is charged with organizing the neighborhood watch, after he has just helped apprehend some suspicious characters and dragged them before the Prince, Don Pedro:

Officers, what offence have these men done?

Marry, sir, they have committed false report; moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things; and, to conclude, they are lying knaves.

By trying to enumerate on the fly while the brain is overheated—like during an oral argument—you can easily lose your way and, like Dogberry, lose count. So, sixth and lastly, don’t let enumeration take you down for the count.  

Tuesday, July 9, 2013

Once More Unto Falstaff

The witty reprobate in the Henry IV plays is not the same Falstaff in Merry Wives of Windsor. The latter is the butt of jokes in a frothy comic world dominated by women smarter than he (as opposed to being the source of jokes in a painfully real world where his inability to grow up wears thin even though he dominates those in his circle with his superior wit). The fact of these irreconcilable Falstaffs might lead a person to conclude that the same guy could not possibly have written the plays with these disparate depictions. The Falstaff in Merry Wives is so transformed as to be unrecognizable—except by recourse to his name and some of his cohorts. After all, one can observe a more subtle version of this phenomenon in popular TV shows, where episodes are often written by different folks (or committees of folks) such that the same set of characters can seem wildly different in different episodes even though played by the same actors.

But instead of settling for the hypothesis that the same “Shakespeare” did not write the Falstaff history plays on one hand and Merry Wives on the other, I decided to push myself to find another theory, one that might prove more illuminating in the end. This exercise is what lawyers often have to do to try to reconcile judicial opinions that seem to involve very similar issues but which were resolved in opposite ways. Instead of just saying, “Well, one of these courts just got it wrong” or “It’s all political anyway”—by drilling down into the details, you can often find a more nuanced and satisfying way to resolve the tension between the seemingly contradictory holdings.
While trying to do this, it occurred to me that Shakespeare’s diametrically different Falstaffs are a bit like the contradictory portraits that we get of Socrates thanks to his disciple Plato on one hand and to Aristophanes a comedic playwright (and Socrates’s contemporary) on the other. Plato presents a Socrates who is a humble, deeply reflective mystic willing to die to preserve the rule of law and his fundamental commitment to questioning inherited wisdom; Aristophanes’s Socrates, by contrast, is a fraudster who runs a school called “The Thinkery” where he spends time on absurdly petty speculations, such as how best to measure the size of a flea’s foot. Can Plato and Aristophanes have really been seeing the same man? Who was right? Or were they both right—and wrong—about the True Socrates? Maybe that is what “Shakespeare” was demonstrating with his very different takes on Falstaff. He was giving his audience a lesson in the power of perspective; he was showing how easy it is to reduce a complex human being to a cartoon and how hard it is to see someone who is ancillary to our own unfolding narrative in all his dimensions.

Friday, July 5, 2013

Banish Jack Falstaff

Banish Falstaff?
No, my good lord; banish Peto,
banish Bardolph, banish Poins: but for sweet Jack
Falstaff, kind Jack Falstaff, true Jack Falstaff,
valiant Jack Falstaff, and therefore more valiant,
being, as he is, old Jack Falstaff, banish not him
thy Harry's company, banish not him thy Harry's
company: banish plump Jack, and banish all the world.
Falstaff to Prince Hal in Henry IV, Part 1, II.4
The Henry IV plays are not really about King Henry IV. They are about his son, Prince Hal, aka the young “Harry,” who will grow up to be King Henry V. More specifically, these plays are about Hal’s transformation from a reprobate who is a consummate disappointment to his long-suffering father into a man who will be king—and a really inspiring one at that.  Falstaff and a band of degenerate comrades play a pivotal role in this transformation. 

Hal’s transformation is triggered through a series of fun and games, during which Hal is prompted to take a hard look at a charismatic elder whom he clearly adores.

Falstaff and several members of his coterie plan to rob a pair of travelers and invite Hal to join in the “madcap” adventure. Prince Hal agrees, but, meanwhile, he and another of their pals, Ned Poins, secretly plan a counterplot, such that they will show up late in disguise and rob their own comrades and see how they react. The Prince has a good laugh watching his rotund friend swing in short order from one pole to another.  In one instant, Falstaff—the man known for his capacious belly—terrorizes the poor travelers in grandiose fashion by, of all things, insulting their girth: 

Hang ye, gorbellied knaves, are ye undone? No, ye
 fat chuffs: I would your store were here! On,
 bacons, on! What, ye knaves! young men must live.
 You are Grand-jurors, are ye? we'll jure ye, 'faith.

Then, the moment the tables are turned on him by his friends (disguised as rival thieves), Falstaff squeals in terror, abandons his booty, and flees. As Hal puts it: how “Falstaff sweats to death,/ And lards the lean earth as he walks along:/  Were 't not for laughing, I should pity him.”

Having witnessed this spectacular pendulum swing, Hal and Poins then meet up with Falstaff and the others  at The Boar's-Head Tavern in Eastcheap for what happens to be the longest scene in the play and among the longest scenes in all of Shakespeare. In this scene that unfolds in the wee hours at a bar, Hal and Falstaff take an emotional journey together during which Hal lures Falstaff into describing a great feat that never happened and then Hal exposes Falstaff as a liar and a coward; then Falstaff induces Hal to do a little role-playing, with Falstaff taking the role of Hal’s father, the King, so that Hal can practice what he is going to say the next day when he will be called before his father for a thorough scolding about his unseemly ways. 

While playing the role of Hal’s father, Falstaff warns the Prince about all of the unsavory characters with whom he has been seen cavorting—but one: “[a] goodly portly man, i' faith.” Falstaff-as-the-King swears he sees "virtue in his looks.” Then Hal declares that he wants to play the King’s part and insists that Falstaff stand in for him. Hal-as-the-King chides Falstaff-as-the-Prince for hanging about with that “villanous abominable misleader of youth,/ Falstaff, that old white-bearded Satan.” And in response to this assault, Falstaff-as-the-Prince urges Hal-as-the-King to banish everyone else—just not sweet, kind, valiant, old plump Jack Falstaff. And during this speech, one sees the mask slipping, the game shifting into a more desperate, authentic exchange in the hours after midnight. In response to this speech, Hal—who may no longer be merely playing the King but starting to see himself as a king—says in response to the insistence that he not banish Jack Falstaff: “I do, I will.”

In an instant, the spell is broken—both the spell created by the game they have been playing in the bar and the spell that has permitted Falstaff to bind Hal to him.

Immediately thereafter, the sheriff and his men come bursting in, looking for “the fat man” who is “as fat as butter,” for he is wanted in conjunction with a robbery. Hal covers for the fat man as he hides behind an arras. And when the coast is clear, Falstaff is found passed out, “fast asleep behind the arras, and snorting like a horse.” Hal takes the opportunity to go through the old man’s pockets and finds no more than papers, which he vows to read later at his leisure. He also pledges to return the money that he and Poins had stolen from the thieves to the rightful owners. Hal seems to be laughing off the whole incident, but he isn’t. He knows his days of “uphold[ing]  the unyoked humour of [their] idleness” are numbered. 

This scene has got to be one of the greatest in all of literature. We, like Hal, see Falstaff revealed in all his comic glory and unbearable, embarrassing humanity. He is unethical, arrogant, conceited, desperate, self-serving—but also hilarious, eloquent, brazen, exciting. He is transcendent; he is a joke. He is bizarrely lovable and profoundly dangerous.

I think of Falstaff when I see headlines about “ex-Big Firm lawyer charged with tax fraud involving beach homes” or “prison recommended for lawyer involved in Ponzi scheme.” And I think of the Hal-Falstaff relationship when I hear stories about a client who ceased doing business with a firm after a golf outing in which in-house counsel noticed how a charming partner kept taking mulligans or about a young associate who lost faith in a dazzling mentor after seeing mysterious round-trip, 1st-class tickets to and from New York on the expense report for a small personal injury case where all the parties and witnesses were located in Texas.

Let Falstaff be an object lesson: just because people in power find you fun to carouse with, that doesn’t mean they are giving you permission to lie, cheat, and steal with impunity.  Eventually, they may assume that, no matter how passionately attached to them you seem and how much fun you are to drink with, you are not someone to be trusted and, therefore, must be banished for the sake of some larger good.