Thursday, October 31, 2013

Fire Burn and Cauldron Bubble

It’s Halloween. A fine time to quote the Weird Sisters:

Round about the cauldron go,
In the poisoned entrails throw.

Act IV of Macbeth begins in a cave where a caldron smolders eerily.  The three witches concoct a mysterious potion by tossing all sorts of disgusting items into their charmed pot, e.g.: Toad, that under cold stone days and nights has thirty-one; fillet of a fenny snake; eye of newt and toe of frog; wool of bat and tongue of dog; sow's blood, that hath eaten her nine farrow; grease that's sweaten from the murderer's gibbet; and so forth.  After each witch makes her little contribution to the foul brew, they recite their famous refrain:

Double, double toil and trouble;
              Fire burn and cauldron bubble.

Shakespeare does not clarify exactly what the three witches intend to do with this brew.  But we know instinctively that it is something foul, not fair. 

In the midst of their cooking, Macbeth appears on the scene and demands some answers.  They give him some answers, but they are spectral, aphoristic, cryptic—instilling both a sense of false security and dread.  Before he has a chance to process what has been revealed to him, the witches vanish into the murky, fetid air.

Sigmund Freud famously identified a syndrome that he dubbed “the cauldron argument,” inspired, perhaps, by the Weird Sisters.  A cauldron argument goes something like this:  “I didn’t break the cookie jar.  But if I did, I didn’t eat the cookies.  I don’t like cookies; but even if I did, I wasn’t home when someone else ate the cookies—and that was probably the same person who broke the cookie jar.  But if I did eat any cookies, I didn’t leave those crumbs on the counter.”

Freud observed that cauldron arguments—which involve throwing everything into a cauldron all at once, sort of like the Weird Sisters—tend to telegraph the guilt of the person making them.  Thus moderately lucid people do not find cauldron arguments very persuasive.  That is why they are only employed by four year-olds, unthinking criminals, and lawyers.

Why do lawyers resort to cauldron arguments?  The primary reason is that they want to avoid being accused of malpractice. Since most lawyers learn at some point that they cannot simply trust their clients’ word with respect to what happened that led up to the put when a given client was mired in a legal dispute, lawyers have to try to cover all the bases.  So they plead defensively:  “X-corp did not owe a duty to Y as a matter of law; in any case, X-corp did not breach any duty as a matter of fact; and even if X-corp did breach some non-existent duty, Y has not experienced any damages as a result of that breach—or at least no damages proximately caused by X-corp’s supposed breach; and even if Y did sustain some damages they are not the damages that Y alleges—or at least most of those damages are not recoverable as a matter of law or the evidence of those damages is legally and/or factually insufficient.”

This practice of arguing-in-the-alternative is essential to preserve arguments when one is still discovering what the evidence is and what it seems to suggest about the actual facts.  But by the time one gets to the point of having to convince a jury—or even a judge—what the actual facts are, these cauldron arguments can be a real headache.  They are self-defeating.  The challenge is, as Lady Macbeth says, to “screw your courage to the sticking-place” and decide on one coherent theory, one horse to ride across the finish line.  If we insist on clinging to the smoldering cauldron through to the bitter end, we risk looking like the Weird Sisters doing everything in our power to obscure instead of illuminate the Truth.

Better to “charm the air to give a sound,/ While you perform your antic round[.]”  [Macbeth, IV.1]

Tuesday, October 29, 2013

“I Know Not ‘Seems’”

Hamlet berates his Mama with the line quoted above after she has the audacity to suggest that he seems to be having a particularly hard time accepting his father’s death.  At this point, she doesn’t quite know the truth about that death.  Nor does Hamlet.  He just knows that his mother’s wedding to his uncle followed rather quickly on the heels of his father’s funeral:  “Thrift, thrift, Horatio! the funeral baked meats/ Did coldly furnish forth the marriage tables.”  And Hamlet is annoyed at the very insinuation that there is a distinction between what “seems” and what “is.”  He suggests that, at least as far as he is concerned, he does not know the difference between these two states; his “customary suits of solemn black” are not just “trappings of woe” but a perfect reflection of what is within him.
Lawyers, however, know all about the elusive line between what “seems” and what “is.” Or at least they should.
Lawyers spend their days trying to “seem” to know what they are talking about.  They need to “seem” utterly confident to instill confidence in others—such as clients, opposing counsel, co-counsel, judges, jurors.  And if they are good lawyers, they do their utmost to project the image of seeming to know what they are talking about based on incredible preparation.  But at the same time, if they are really smart, they also recognize that they can never fully know what “is” when it comes to the law.  The law isn’t susceptible to that state of being.  The law is forever changing; and the facts to which even seemingly settled law must be applied are so infinitely variable that conflicting interpretations are always possible.
This is why the very best lawyers are like Socrates and accept that they know nothing.
You may think that lawyers are supposed to be professional know-it-alls.  For lawyers seem to know all kinds of things.  And in fact, lawyers tend to be relatively well-educated.  But they do not really go to law school to amass knowledge in the form of information.  And, alas, the traditional law school curriculum does not permit students to gain much knowledge through practical experience.  Instead, students come to know little more than a process—an analytical way of probing seemingly intractable problems.  Knowing how to do that is certainly not “nothing,” but it is not what must people think of as knowledge-acquisition.  And because of what goes on in law school, most practicing lawyers agree that recent law grads know nothing—at least they know nothing practical and, even worse, they may not even know how little they know despite what “seems.”
I remember vividly during one of my first summer jobs as a law student being struck by how little the seasoned trial lawyers for whom I was working seemed to know.  Why are they asking me to research whether a company’s press release is admissible under the Federal Rules of Evidence?  I thought.  Don’t they have all that stuff down by now?  It took me a while to realize that lawyers could not possibly carry around a body of knowledge in their heads to scan internally each time they were confronted with a new legal issue.  Sure, they certainly know that the Federal Rules of Evidence exist and that those rules include stuff about hearsay and exceptions thereto.  But how these rules have actually played out in trials where judges were required to making admissibility determinations in the face of objections—these things do not come up every day, especially since so few legal matters ever make it to trial; and only a tiny fraction of cases that result in a final judgment ever lead to appeals, let alone appeals involving the precise evidentiary issue that you suddenly have to worry about right NOW.  Besides, the variations with respect to how any given legal rule might get applied in a particular venue, given the particular human players involved, can change in an instant everything one thinks one knows about how a certain matter should be resolved. 
So lawyers really can’t expect to “know” much.  They are supposed to seem to know, while knowing that one can never really know.  Because whatever Hamlet may think, most of the time there is no is there to know.  And thus there are only “forms, moods, shapes” to denote what is true, mere “actions that a man might play” to serve a momentary purpose.  [Hamlet, I.2]

Saturday, October 12, 2013

The Danger

We have scotch’d the snake, not kill’d it:
She’ll close and be herself, whilst our poor malice
Remains in danger of her former tooth.

Macbeth to Lady Macbeth, III.2

This post assumes consensus about one of the best moments in the baddest TV show around—a series that may be over but is hardly finished.  The moment in question features meth-manufacturer Walter White receiving a lecture from his agitated wife about their dangerous fiscal situation; wife Skyler warns that, if they make one misstep, the IRS will surely come knocking and their entire world will unravel.  An exasperated Walt cuts her off, retorting:  “I am not in danger, Skyler.  I am the danger.  I am the one who knocks.”
The moment is simultaneously chilling and exhilarating, like so much of Breaking Bad.  A truly Shakespearean moment. 
Part of what makes the moment Shakespearean is that, unbeknownst to Walt, his statement is fraught with tragic irony.  When Walt says “I am the danger” he is utterly convinced that he is in charge.  By contrast, if the audience pauses to reflect for a moment, it can see that, despite what Walt may feel, he is hardly The Man.  He is not the master of his own fate, let alone that of others.  His life is careening out of control.  He is being engulfed by danger—not just courtesy of drug lords and law enforcement of various shapes, sizes, and ethnicities, but also thanks to his cancer-ridden body.  Walt, like Oedipus, is blind to the truth about his condition even as he sees himself as unusually self-aware; and Walt—like Macbeth, Othello, Richard III—makes increasingly dark, self-serving choices in part because he labors under the misguided assumption that he is in full command of each choice and its attendant consequences.   But whatever Walt may believe when he says “I am the danger,” he is not simply the purveyor of The Danger who knocks on others’ doors; he is being knocked around in some much larger pinball game that he does not and cannot fully comprehend.
This parallel between Walter White and Macbeth, et al got me to thinking about Rule 801(d)(2) and Rule 804(b)(3) of the Federal Rules of Evidence.
Hearsay, as defined by the Rules, is an out-of-court statement offered into evidence “to prove the truth of the matter asserted in the statement.”  Fed. R. Evid. 801(c).  But in a move worthy of the most postmodern deconstructionist, Rule 801, right after defining hearsay, expressly defines certain hearsay statements as “not hearsay.”  See Fed. R. Evid. 801(d).   Subpart 801(d)(2) includes among the hearsay statements that are “not hearsay” out-of-court admissions by an opposing party as well as evidence that the opposing party adopted out-of-court statements made by others.  Generally, these adoptions happened long before any lawsuit was filed.  So, the logic goes, when the opposing party adopted some other person’s statement, the adopter was not then worried about the legal implications of embracing a certain belief; and that is why the framers of the Rules of Evidence think that these adoptions should not count as hearsay.  If the adopter really had a problem when someone sent him an email that said “Wow, it’s great how you decided to take it to that Mexican drug cartel,” the person would have taken pains to correct the statement at the time if he did not believe it really reflected The Truth.  So later, when a lawsuit arises, the adopter’s opponent ought to be able to seize on the adopter’s silence in the wake of that email; and so this adoption (and the statement being adopted) is considered hearsay-that-is-not-hearsay that can be admitted into the record as proof of the matter asserted in the out-of-court statement.  In short, the Rules presuppose that, when someone adopts some other person’s statement as his or her own—or at least did not bother to correct the statement when it was made although it would have made sense to do so—that must mean that the person is okay with the statement.  And the presumption underlying that presupposition is that being okay with a statement means that the statement reflects The Truth.
Even easier to follow is the logic underscoring out-of-court statements covered by Rule 804.  These include out-of-court statements that are “admissions against interest” made by any witness—whether or not the witness is “available” to testify at trial.  We are talking about statements made by a person that reveal something incriminating, embarrassing, or otherwise damaging to the maker of the statement, i.e., a statement that, “when uttered, [was] against the party's pecuniary, proprietary, or penal interest.”  Fed. R. Evid. 804(b)(3)(A).  Walt’s “I am the danger” utterance fits nicely into this category.  And if he had made this statement to someone other than Skyler (his wife such that the comment is protected by the “spousal privilege”) or Saul Goodman (his lawyer such that the comment is protected by the “attorney-client privilege”), then the statement could be admitted into evidence against him even though it was not made under oath as “an admission against interest.”
What is interesting is that the Rules of Evidence presume that Walt’s admission-against-interest should be admissible because being “against his interest” means that it is more likely to be true.  But if we look at the statement through a Shakespearean lens, we see that the admission-against-interest is not so much one that reflects The Truth as one that indicates what the speaker thinks is true, which is a far more complicated phenomenon.  Walt’s admission (assertion, really) that he is “The Danger” is not really accurate—at least not in the way he means it.  But the “admission” is not untrue because he is lying; it is untrue because he does not have a sufficiently omniscient perspective with respect to his own existence.  Therefore, the admission is only true as a barometer of what he feels is true at the time.  In other words, the admission reveals his intent: his willingness to embrace the identity of a bad-ass maker of illicit substances who sees himself as beyond good and evil, beyond fear, beyond repercussions—however delusional this self-image might be.  And since intent is one of the trickiest things to prove in a lawsuit—civil or criminal—admissions against interest, if one can convince a fact-finder that they were indeed uttered, are pure gold from an adversary’s perspective.
Consider, for instance, Macbeth’s “Is this a dagger which I see before me” speech.  If caught on tape thanks to a duly issued search warrant, that speech would be a clear admission against interest that could be deemed “not hearsay” under Rule 804(b)(3)(A) and thus would be admissible into evidence to prove the truth regarding Macbeth’s guilt:
Is this a dagger which I see before me,
The handle toward my hand? Come, let me clutch thee.
I have thee not, and yet I see thee still.
Art thou not, fatal vision, sensible
To feeling as to sight? or art thou but
A dagger of the mind, a false creation,
Proceeding from the heat-oppressed brain?
I see thee yet, in form as palpable
As this which now I draw.
Thou marshall’st me the way that I was going;
And such an instrument I was to use.
With this out-of-court statement, Macbeth is unmistakably  confessing his willingness to move from (a) dreaming of a bloodied dagger and the destiny symbolized by such an instrument to (b) drawing a real dragger that he might murder King Duncan who sleeps obliviously in the Macbeths’ guest room at that very moment.  But the true import of this admission is not that it proves what he did.  More than proving that he took a certain action, the admission proves Macbeth’s mental state at the time of the utterance, his mens rea, as they say in the crim law biz.  His statement shows that he knows, on some level, that what he intends to do is wrong—the product of a “heat-oppressed brain” intoxicated with the idea of becoming The Danger.  But even as part of him recognizes that he may be suffering from delusions of grandeur, he proceeds because he can’t tolerate seeing himself as anything but the master of his own (and others’) fate: 

I go, and it is done; the bell invites me.
Hear it not, Duncan; for it is a knell
That summons thee to heaven or to hell.
Tragically, irrevocably, ironically, as Macbeth sets off to murder Duncan, he thinks he is The One Who Knocks; but, in truth, he is just responding to a bell rung by another—someone, some force that he cannot see or refuses to see.  Why?  Because no one likes to admit to being destiny’s pawn.  That would, after all, be the ultimate “admission against interest.”

Saturday, October 5, 2013

The Google

What is it ye would see?
If aught of woe or wonder, cease your search.

Horatio to the conquering Prince Fortinbras, Hamlet, V.2 

Google recently celebrated its 15th birthday.  To honor the occasion, Peter Sagal, host of NPR’s Wait, Wait Don’t Tell Me!, quoted a survey finding that something like 46% of Americans admit to having Googled themselves; in response to this factoid, Sagal quipped, “That means the other 64% are lying!”
I admit to having Googled myself, sometimes with embarrassing frequency.  This started a few years back after I attended a rather alarming CLE (continuing legal education) program about all the horrors that can befall lawyers in the social-media age.  The CLE presenter suggested that all lawyers make a habit of Googling themselves to see what kind of oddities surface that could prove detrimental to one’s professional reputation.  Upon Googling myself, I get hits that suggest I am still employed by certain institutions, although that is no longer the case.  A Google search will also suggest that I have a Facebook page (which I don’t) and a LinkedIn Profile (never got around to finishing it).  Worse still, a Google search continues to produce evidence of some rather embarrassing relics from my professional past.  A search will reveal, for instance, that, years ago, when I was young person who fashioned herself a writer, I wrote a couple of books for a chunk of change to help put myself through graduate school.  These books were reputedly “co-authored” by a fictitious Belgian—because the real Belgian who hired me to write these books thought a co-author would make them “more marketable.”  The subject matter of these books is embarrassing enough.  Additionally, it is embarrassing that a person can now buy these books for about $.15 through Internet merchants.  Yet more embarrassing still is that a publisher did indeed buy these books from the enterprising Belgian, and they remained in print for years, yet I have no idea who got all the royalties, as I had agreed to write them for a flat fee, fearing that my Belgian friend’s get-rich-quick scheme would never amount to anything.  In short: every time I Google myself, I am humiliated anew—because Googling unearths some accurate, some stale, and some decidedly embarrassing material about which I can do nothing.
These results are fairly analogous to what happens when one Googles “Shakespeare.”  If the search is not tailored narrowly enough—and even if it is—you will get many hits that include a great deal of rubbish.
This is also the problem with using Google as a means to conduct legal research.  Yet I admit to using Google on a daily basis as a point of departure for legal research. 
Because it is the sensible, not just the senseless, think to do. 
The trick is to frame one’s searches in Boolean terms, without the connectors, to improve the odds that the first two pages of hits will produce something relevant, recent, and reliable; and if the Google search does that, then you will have saved your client a pot of money.  Because after doing such a search and arming yourself with a hook—some relevant, recent, reliable legal authorities that you can use to get yourself oriented—you can then turn to the pricey, law-specific, proprietary databases upon which most American lawyers rely.  By turning to those pricey, proprietary databases only after you have educated yourself a bit using free source materials improves the odds  that you will frame better searches in those fancy databases instead of floundering around while the meter is running.  In other words, using Google for initial legal research is a swell idea—as long as you resist the urge to search in a Googley kind of way.  
Perhaps a specific example might “turn them to shapes, and give to airy nothing/ A local habitation and a name.”  [A Midsummer Night’s Dream, V.1]  Let’s say you need to research what kinds of circumstances permit a person to rescind a contract under Texas law.  But you have never really dealt with a situation where someone is trying to undo a contract; you are more accustomed to fights where the allegedly injured party wants to recover its benefit-of-the-bargain damages, including lost profits—which are generally much greater than the sum associated with just unwinding the clock and putting the unhappy litigant back at square one.  To find stuff that is useful from a legal perspective, you have to craft a search that reads something like this: “Texas law rescission remedy available.”  Even without knowing much, if you know to frame the search in this way you are more likely to capture the answer to a question that someone—a legal scholar or a court—might have addressed in a useful, thoughtfully developed text (as opposed to some blawg post generated by someone rambling on at odd hours of the night).  You are more likely to get useful hits than if you type “Is rescission a cause of action or remedy?”  While the latter exemplifies better grammar and may better approximate what you want to ask of the world, it is just too broad.  Worse still would be simply typing “rescission” or “rescind a contract.”
Nowadays, using Google (and other Internet search engines) is a fact of daily life for virtually everyone.  But using Google as an effective tool to conduct professional research requires employing artful and slightly unnatural constructions. 
Which seems to define what a lot of people think of as “Shakespearean.” 
Which means that an obsession with Shakespeare is indeed the secret to professional success.
“The ‘why’ is plain as way to parish church.”  (As You Like It, II.7).