Saturday, August 31, 2013

Back to School

In As You Like It, the melancholy Jaques describes one of the seven stages of human existence as follows:

And then the whining school-boy, with his satchel
And shining morning face, creeping like snail
Unwillingly to school.

When it comes to the back-to-school season, I never feel like a “whining school-boy” who creeps unwilling back to the books.  I feel about fall the way those who live in northern climes must feel about spring—and this is not just because I live in Texas where September means that, even though the temperature gauge outside still routinely registers triple digits, the end of the misery is neigh.  For me, fall is a season of renewal, optimism, infinite opportunity—mostly because it is the back-to-school season. 

It isn’t that I always loved school itself.  Oh no.  I have plenty of public school horror stories about snaggle-toothed teachers who obsessed about my lousy penmanship while ignoring my heroic literary efforts or who thought assigning infinite numbers of boring worksheets passed for pedagogy. But I have always loved what school is supposed to be about. Which is one reason why I love to teach.  When you teach, you never have to give up the surge of excitement that comes with heading back to school—an action where going “back” promises leaps forward.

Although I have taught, in fits and starts, since the mid ‘80s, I’ve only spent a few of those years where my primary occupation was that of “teacher.”  One of those years included one of the best jobs I ever had.  Quite by chance, when I was merely an adrift drama major, I lucked into a job teaching English to pre-literate Cambodian refugees in a housing project in North Houston; I labored four nights a week in an un-air-conditioned room where barefoot youngsters, pups, and chickens made frequent appearances as I gesticulated like a madwoman and scribbled on a makeshift chalkboard.  What I learned from those first students of mine, survivors of the Khmer Rouge killing fields, I will never forget.   

But, generally speaking, teaching holds such allure because it always entails being a student.  And being a student means you remain in one of those early “stages of man,” forestalling the ones that involve “round bellies with good capon lined,”  or worse, those involving “spectacles on nose and pouch on side, … [a] shrunk shank; and [a] voice, turning again toward childish treble, pipes and whistles in [its sound.”  Or worst of all, that stage of “second childishness and mere oblivion.”

Schooling, or at least learning, keeps a person youthful.

Of the various occupations I have sampled during the past thirty years of laboring full-time, I’d say none requires a perpetual commitment to schooling quite like lawyering does.  (It is called “practicing law” for a reason.)  As a lawyer, you never arrive at some stable plateau where you can rest on what you already know; every new matter demands learning new stuff.  Clients’ factual situations and the variety of legal issues that may apply are so varied that the possible permutations are infinite.  Besides, the law itself is forever in flux.  Of course, experience teaches a person to spot patterns.  But because human begins are involved, the dynamics are often more complex than a game of three-dimensional chess. 

Perhaps this is why unhappy lawyers tend to fit into two categories.  First, there are those who crept unwilling to school all along, and so they find the perpetual learning curve associated with law practice exhausting.  Second, there are those who have taken “law” jobs that may involve a nice paycheck but do not afford much opportunity to practice law; instead, folks with hungry minds find themselves mired in endless hours of document review or preparing boilerplate form documents or gathering materials that others use to do the interesting work of helping people solve complicated problems.

Lawyers who remember the fall back-to-school rush fondly and who see the profession as affording perpetual chances to head back to school can, in a sense cheat time by extending the most exhilarating stages of “this strange, eventful history” known as human existence.

Monday, August 26, 2013

Prove It!

This was sometime a paradox, but now the time gives it proof.
Hamlet, III.1
The Spanish Tragedy by Thomas Kyd is not performed much but is often taught as an important precursor to Shakespeare’s work. Most certainly, Shakespeare knew the play and, seemingly, cribbed numerous bits from it when he created Hamlet.  Such as:
·         A frame created by regional warfare;
·         A vengeful ghost;
·         A play-within-a-play device used to root out a murderer;
·         A character named “Horatio” who is the best pal of the King’s nephew;
·         A female character driven mad by the violence unfolding among her loved ones;
·         Lots of dead and mutilated bodies on stage by the final scene.
More recently, scholars have been working hard on the opposite angle: that Shakespeare really wrote some key passages in Kyd’s play.  Poor schmoe Kyd. The guy has only one surviving play that is considered worthy of attention, and they want to give part of the credit to Shakespeare, who already has a string of masterworks associated with his name.
This new scholarship, which seeks to demonstrate that stuff attributed to Kyd was really written by Shakespeare, was recently discussed in The New York Times. The “proof” is two-fold.  One scholar has used elaborate computer-aided analysis to make the case, while another has cited Shakespeare’s messy handwriting as his source of proof.  This second guy, Douglas Bruster at The University of Texas, has inventoried a set of spelling patterns and textual “corruptions” found in what is described as a fragment of Shakespeare’s handwriting. The article does not say what that fragment is. But, apparently, Bruster used the patterns he detected in this fragment to try to explain a particular speech in Kyd’s play—including suggesting that the guy at the print shop just couldn’t read Shakespeare’s lousy penmanship, which is why some of Kyd’s lines do not quite make sense. Very interesting, very scientific, very methodical.
What struck me, though, upon reading the article about this recent scholarship, is that, by article’s end, I found myself less inclined to accept the thesis than before I’d read about this seemingly methodical approach. Isn’t that odd? How is it that an able description of someone’s meticulous, dispassionate proof pushed me towards, rather than away from, skepticism about Shakespeare having written part of Kyd’s play?
With mere anecdotal evidence, which true scientists loath, I would have had little difficulty accepting the possibility that Shakespeare deserved some credit for Kyd’s work as it has come down to us.  Back in ye olde Elizabethan times, theater was highly collaborative.  Productions were pulled together quickly.  The text wasn’t supreme, the performance, an inherently ephemeral thing, was. So, sure, it isn’t hard to imagine theater managers and actors contributing lines, and one playwright tweaking another playwright’s work, as everyone worked frantically to get a multi-hour piece ready for public consumption, sometimes in a matter of days. And if you have ever been part of giving birth to a brand new play (or perhaps even a legal brief) this collaborative phenomenon would seem almost self-evident.
But why do I find the anecdotal explanation more compelling than the more precise handwriting-analysis argument?
Well, the very precision of the argument got me focused on the evidence: the handwriting.  As far as I know, the only samples of Shakespeare’s handwriting that we have that people agree really can be attributed to him are a few signatures and the words “by me” followed by a signature on his last will, which someone else wrote out for him.  There are no scraps of literary work except some speculation about a few lines that some (very few) people think Shakespeare might have contributed to a play (Sir Thomas Moore) that most people have never heard of.  The focus on Shakespeare’s handwriting as a source of proof exposes larger problems—like some serious concern about the man’s basic literacy and his rather small-minded obsession with property rights (since all he seemed to sign were legal documents).  Having been asked to focus my attention on that specific source of proof, I suddenly felt more doubtful about a thesis than if I had been offered a common-sense story about the conventions of the day.
Weird, huh?
Well, I am thinking that my reaction may not be entirely idiosyncratic.  Others out there in the world may be similarly inclined to test the foundations of a theory that seems to have been proven up with solid, sensible building blocks rather than fanciful speculation. And my contrarian reaction to this seemingly sensible proof might also be shared. At the very least, this train of thought might lead to insights about making more effective legal arguments. 
Legal arguments are never convincing unless they are tethered to both concrete facts and acceptable legal authorities.  The most accessible legal arguments are those that involve case comparisons—showing precisely how key facts in a precedential case are like facts in a current legal matter or showing how those key facts are quite different from the present matter.  In making these comparisons/distinctions, you always have to be mindful of the ultimate result as well as the details:  Do the holdings/outcomes in the older cases that are most like yours align with the result you want?  And in reading these older cases, are you left feeling that justice was ultimately done or that the court was stretching to reach a result for reasons that are not entirely clear from the face of the decision?  How can you make sure, in offering your proof, that the decision-maker charged with considering your legal matter will not feel that they are being asking to stretch to reach a result? How can you make them feel instead that your argument fits in nicely with all known aspects of the established legal landscape?
Something about this difficult balancing act—finding a way to use proof that is both precisely and impressionistically compelling—is really tough.  Something about this business of analyzing Shakespeare’s handwriting to “prove” that he wrote some of Kyd’s poetry offers a helpful analogy—if only I could prove it! In any event, “there are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.”  [Hamlet, I.5]   

Wednesday, August 21, 2013

Let’s Just Be Friends

“This passion, and the death of a dear friend,
would go near to make a man look sad.”

Snide aside from Duke Theseus while watching the Mechanicals
do their best to put on a play in honor of his nuptials
A Midsummer Night’s Dream

“Let’s just be friends.” We all know that request is the kiss of death, best be translated as: “Please get the hell out of my life, immediately if not sooner.” Yet friendship, true friendship, is the glue that holds humanity together.
So let’s reflect a moment on “amicus curiae” aka “friend of the court” briefs.
The concept of an amicus curiae dates back to Roman times (thus the Latin). The idea was that, sometimes, a body charged with dispensing Justice can really use a friend—some entity who is not involved in the fight who can provide the Court with a bit of perspective—objective perspective, that is.
Nowadays, “amici curiae” tend to be entities who, though not parties to a particular legal dispute, nonetheless have a subjective interest in how the fight gets resolved. Their goal is to weigh in and provide the court, if it is receptive, with a sense of how resolving a particular case will have repercussions, how the outcome will affect the interests of others for whom the amicus curiae is competent to speak.  On other occasions, an amicus curiae is one who can provide a court with specialized, often technical knowledge that illuminates the legal dispute by rendering more concrete the particular technology or industry or social sphere where a seemingly abstract legal debate has arisen. Such amici curiae are essentially teachers with regard to something extra-legal. And, as we all know, most teachers do their utmost to be friendly.
My guess is this: If you were to take a stack of briefs—all of which address the same legal issues, all of which are equally competent in terms of grammar, spelling, and syntax—and the stack included an equal smattering of briefs from both sides of the “v” and amici briefs, and you gave this stack to a collection of non-lawyers, overwhelmingly, the non-layers would find the amici briefs more appealing. I admit that my proposition has not exactly been subjected to rigorous empirical testing.  BUT if I am right about this, this fact would most certainly tell us something profound about the bounds of advocacy and the degree to which lawyers are perceived as inherently unfriendly.
For a while, “think on [that,] dear friend.” Then “[a]ll losses are restor'd and sorrows end.” [Sonnet 30]

Sunday, August 11, 2013

Defending Iago

I recently received a flyer announcing a forthcoming book: How Can You Defend Those People?  It is an essay collection edited by two law professors, Abbe Smith and Monroe H. Freedman, who have extensive experience practicing criminal law. The contributors are all members of the criminal bar, including rock stars like Mike Tigar, who defended, for instance, Terry Nichols, Timothy McVeigh’s co-conspirator in bombing Oklahoma City’s Alfred P. Murrah Federal Building. (Tigar’s lawyering is often cited as a reason why Nichols, unlike McVeigh, was sentenced to life in prison instead of death.) One objective of this book appears to be the desire to educate a broader audience about the critical role in preserving our democracy played by a particular set of lawyers: those who defend folks accused, and often guilty, of perpetrating crimes.

The struggles that many laypeople have seeing the value in the defense of those accused of repugnant crimes, including the self-evidently guilty, is a microcosm of a larger problem lawyers have being understood by normal people. Although many lawyers themselves struggle with the principle, lawyers are supposed to put defense of client, the zealous pursuit of all options available within the bounds of professional ethics, above abstract notions of The Good, The True, The Beautiful. Lawyers are supposed to advocate in hopes of engendering empathy with a particular point of view, of furthering specific interests by situating them in a context and buttressing them with evidence to show why a certain perspective is more reasonable than another. 
Except for a smattering of lawyers who are able to work for one client who pursues only causes that all would concur are noble—maybe lawyers who only serve as ad litem counsel for abused children—all lawyers at some point are called upon to represent unsavory characters or companies or industries. That is just part of what lawyering entails. Yet, culturally speaking, people seem to want all lawyers to be Atticus Finch—or at least our culture is reluctant to find anything worthy in what lawyers do unless it resembles Atticus’s work. 
Atticus defended an innocent man against trumped-up charges where the real ill was a societal one, the invidious legacy of American racism, and where the real adversary was a ravenous mob blinded by prejudice, ignorance, and fear. It sure would be great if all lawyers had the chance and the inclination to do a little time as Atticus during their careers. But part of being a really good lawyer involves confronting ugly truths yet not being unduly judgment; effective lawyering involves finding ways to frame arguments based on the rules of reason. These tasks require monitoring one’s internal prejudices at every turn, which is really, really hard to do. Because this work is so challenging, I suspect that, when civil lawyers routinely represent only one kind of entity on one side of one kind of legal dispute, those lawyers face special obstacles. For instance, if you only represent insurance companies who are being sued in coverage disputes and see your client as nothing but a job-creating victim of an unduly litigious society, you are probably less likely to give good advice about when the client should stand on principle, when it makes more sense to settle, when the client should rethink certain internal policies, etc.
When I was a callow law student, I definitely resisted embracing the identify of a true lawyer—someone who lives for a good, fair fight, who is simultaneously a servant of a specific client and of a particular system. Despite years spent grappling with postmodern philosophy, when I went to law school, I was still a secret Platonist. So during my first year of law school, I agonized over cases where the results seemed patently unfair on the merits, yet I was not supposed to care because principles like standing, statutes of limitation, forma non conveniens had foreclosed considering the deeper justice.
While I was trying to figure out whether I could contort my nature sufficiently to be a good lawyer, I met a really good lawyer who struck me as especially happy. He explained how much he loved the profession by saying that nothing would give him greater pleasure than defending someone like Osama Bin Laden—and this was only a few months after the Towers fell on September 11, 2001. I now smile to think how I was taken aback by his exuberance on this subject. It took a while, but I did come to appreciate this Happy Lawyer’s perspective.
Perhaps I could have achieved this appreciation much sooner if I had just thought more about Shakespeare!
One aspect of the Bard’s work that is truly distinctive—not only from an historical perspective—is his ability to craft psychologically complex characters. His most compelling heroes, like Hamlet and Lear, are both deeply flawed and dazzling. His most memorable villains, like Richard III, Macbeth, Iago, are memorable precisely because they are nuanced. Even though Shakespeare presents the horrible things that these villains do so that audiences have little trouble seeing them as vile, he also gives us insight into the bad guys’ motivations—how they have been wounded, how they deceive themselves as well as others, how they cling to self-justifications in a way that profoundly clouds their judgment, how they have to see themselves as the good guys (or at least as victims) in order to act at all.   
Othello, for instance, begins with Iago bitterly describing how he has been passed over for a promotion. General Othello has brushed off entries from those who recommended the old veteran, Iago, to serve as his Lieutenant. Instead, Othello has gone with the pretty boy Michael Cassio, who has “never set a squadron in the field,/ Nor the division of a battle knows/ More than a spinster.” In making this choice, Othello has, from Iago’s perspective, violated a fundamental rule of military culture, making a promotion based on “letter [i.e., book learning] and affection [i.e., personal preference]” instead of “by old gradation, where each second/ Stood heir to the first [i.e., seniority].” Iago’s personal outrage at this small-scale injustice does not excuse his decision to seek revenge in such a way that leads to the defamation and slaughter of innocent bystander Desdemona.  But, thanks to Shakespeare, his actions make some internal sense.
In short, the insights that Shakespeare provides into how all manner of human beings tick are useful to all manner of humanity. Precisely because the bad guys are not portrayed as inexplicable monsters—who sprang forth from some mysterious abyss to wreak incomprehensible havoc upon a wholly innocent society—these characterizations are art, not tabloid trash.
So, what do you know? It turns out that, when lawyers labor to give voice to all manner of folks who have been fairly or unfairly tarred as malefactors, they are really working in the honorable tradition of William Shakespeare.

Monday, August 5, 2013

Pounds of Flesh

According to Texas Rule of Professional Conduct 3.08, lawyers for a party to a lawsuit are not competent witnesses on contested issues and facts. In other words, if you are pursuing or defending against a lawsuit, you can’t rely on your lawyer to swear that certain things are true and then expect to carry the day; and so, as a matter of professional ethics, lawyers are not even supposed to try to attest to issues or facts that are critical to resolving disputes in which they represent one of the parties.
Because this rule is not unique to Texas, I imagine most practicing lawyers would recognize a problem with Al Pacino’s fantastic performance as “Arthur Kirkland” in the movie And Justice for All.  When Kirkland turns on his own scumbag client during closing arguments, the scene may seem like righteous poetry; but from a professional standpoint, Kirkland is committing a grotesque ethical breach. So what if his client has admitted to the rape for which he is being prosecuted? When Kirkland tells the jury, "My client, the honorable Henry T. Fleming, should go right to f-ing jail! The son of a bitch is guilty!"—this action is a professional breach not only because lawyers are not supposed to serve as witnesses to “contested issues and facts” when they are busy representing someone in that same case as per the rule cited above; it is also a breach because Kirkland is attesting in a manner directly adverse to the client for whom he is professionally bound to serve as a zealous advocate. Most people would consider this a fairly obvious “conflict of interest.”
Why might it be that, in art, lawyers often look their best (or at least more interesting) when they are busy breaking fundamental rules of profession conduct?
Shakespeare gives us some clues. What drives people nuts about lawyers is the profession’s obsession with precise application of rules, which, from a distance, can look like strained formalism, mere tricks intended to “undo a man.” [Henry VI, Pt 2, IV.2] This obsession with the letter of the law is what undoes Shylock in The Merchant of Venice. Even when he is offered a settlement worth three times the price of the bond that Antonio has been unable to pay, Shylock insists that a court of law authorize him to extract “the pound of flesh” that was the precise penalty promised for forfeiture of the bond in the contract that he and Antonio forged.  Portia, while impersonating an officer of the court (another violation of professional rules), presides over the dispute between Shylock and Antonio. She first urges Shylock to show a little mercy.  But when he refuses, she turns his insistence on the letter of the law on him:
This bond doth give thee here no jot of blood;
The words expressly are 'a pound of flesh:'
             Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
             One drop of Christian blood, thy lands and goods
             Are, by the laws of Venice, confiscate
             Unto the state of Venice.

This is a cruel trick indeed. But the audience is definitely induced to cheer, not for Shylock—the victim of gross breaches of professional responsibility—but for those who make him suffer for insisting on technical adherence to rules, promises, and the like. “Therefore prepare thee to cut off the flesh,” Portia says, tauntingly.  “But just a pound of flesh: if thou cut'st more/ Or less than a just pound, be it but so much/ As makes it light or heavy in the substance,/ Or the division of the twentieth part/ Of one poor scruple, nay, if the scale do turn/ But in the estimation of a hair—” Well, if he can’t do that, they’ll kill him and seize everything he has.
Talk about lawless. Portia’s way of handling Shylock’s insistence that words in a contract should be construed to mean what they say is a “what’s good for the goose, is good for the gander” fairness argument. And, luckily, the law actually has ways to handle contract disputes where the precise letter would result in unduly harsh remedies or the contract itself was unconscionable or forged under duress.  In fact, the law is full of rules that permit or even require taking equity and mitigating circumstances into account so that judges and juries may craft relief that accommodates specific facts and circumstances.  But then that discretion that the law gives to judges and juries can produce results that leave outsiders decrying the arbitrary and capricious nature of the process. . . .
In short, the law can’t win for losing.
No wonder artists, like our man Shakespeare, have long portrayed Justice as something that is generally separate and apart from the law. And perhaps the law is best understand as a shadowy approximation of Justice. Even so, it is the best we humans have to offer at the moment to preent us from settling al disputes by exacting pounds of flesh.