Saturday, November 23, 2013


Sin of self-love possesseth all mine eye
And all my soul and all my every part;
And for this sin there is no remedy,
It is so grounded inward in my heart.

Sonnet 62
Recently, the esteemed Oxford Dictionaries raised hackles by deeming “selfie” 2013’s word of the year.  This development occurred shortly after a web project called “selfies at funerals” went viral, in turn prompting apocalyptic prognostications about the millennial generation’s unbridled narcissism, poor judgment, and loose attachment to grammar and spelling conventions.
I have never taken a true selfie.  But I suppose blogs are another variation on the theme.  Thus I am in no position to cast stones.  Besides, the urge to indulge in self-expression—including self-portraits of various kinds—seems fairly hard-wired.  Certainly, legitimate artists routinely devote serious attention either to literal self-portraits or to vaguely disguised ones.  I am convinced that fiction writers who make a pointed effort to avoid their own biography by writing about things that they imagine are wholly extraneous to their lives end up writing about themselves.
Shakespeare is an interesting case because of the authorship question.  We are not entirely sure who the man was; therefore, trying to spot selfies in his work is particularly challenging. The guy from Strafford had a son named “Hamnet” who died young; and “Hamnet” sure sounds a lot like “Hamlet.” So that seems to suggest a self-exploration/exploitation.  But the character of “Hamlet” and the plot of the play that bears his name parallel rather remarkably the character and childhood of Edward de Vere, Earl of Oxford (my favorite contender for “The Real Shakespeare.”)  Hamlet is, therefore, held up by Oxfordians as self-evident proof that de Vere wrote “Shakespeare’s” plays.  Likewise, some clever scholars have found that, if you study the sonnets with care, you can find places were the letters line up so as to spell out the name “De Vere.”  For instance, in Sonnet 76, between the words “my name” and “my argument,” one can find the letters D-E-V-E-R-E lining up, not once but twice, in a way that seems to defy the laws of random probability.  See, e.g., David L. Roper, “Edward de Vere’s Autograph on Shakespeare’s Sonnet 76” for a fuller explanation.  Additionally, Edward de Vere’s nickname was reputedly “Spear-shaker,” suggesting that, by recruiting bumpkin Bill Shakespeare to provide a nom de plume for him, de Vere was providing a clue, a selfie hidden in plain view.    
Lawyers, for the most part, need to avoid selfies—particularly in their writing.  This is because those who must read legal work product—other lawyers, judges, clients—do not generally want the work to reflect a distinct, idiosyncratic persona.  They don’t want to perceive a discernible style.  They expect that the author’s identity be submerged so as not to distract from the substantive legal argument or analysis.
Exceptions exist, of course.  And some special few become so successful—in part because of a distinctive writing style—that people hire them to place their distinct imprimatur on an important legal brief.  And others in the profession actually seek out briefs composed by these happy few because the readers want to revel in the author’s unique voice.  I think of appellate superstar David Gunn.  Although legal briefs are often a product of multiple cooks, when David Gunn plays a central role in the drafting, his seasoning is readily discernible. 

For instance, in a recent brief to the Supreme Court of Texas that he drafted on behalf of one of the world’s most profitable companies, Gunn decided to narrowly tailor his assault.  Focusing on a finding of “justifiable reliance” that had been central to the other side's success below, Gunn exploited language from Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913 (2010): “a person may not justifiably rely on a representation if ‘there are “red flags” indicating such reliance is unwarranted.’”  To show how this legal proposition applied to the current case, Gunn bombarded the reader with a series of “red flags.”
That is, each reason why reliance had not be justifiable was introduced by an actual red flag icon serving as a bullet.  He then concluded with distinctly Gunn panache:
The Royalty Owners had enough red flags to create a competitive half-time drill team.  The Court should hold that all these warning signs make any reliance legally unjustifiable, just as the Court held in Grant Thornton when it rendered a take-nothing judgment. 
Few brief writers would have the self-confidence and sense of style to (quite literally) adorn an appellate brief with graphic and metaphoric symbols designed to make the other side’s position seem to border on the comical.
What lesson can striving legal writers take from the selfies of Gunn and Shakespeare/de Vere?

The impulse to make selfies, however natural, does not an artist make.  One has to earn the right to assume that one’s selfies are fit for public consumption—and the likelihood of that occurring in the inherently conservative legal profession is slim.  Therefore, most lawyers are better off seeking to strip their legal writing of the badges of idiosyncratic self-expression.  But if one achieves a certain stature within the profession, one’s selfies can be palpable assets, a means to persuade through form as well as substance. Then, and only then, can a legal writer fully embrace Polonius’s must tritely profound advice: “to thine own self be true[.]” (Hamlet, I.3)

Saturday, November 16, 2013

Learning to Fear a Fragmentary Record

So should my shame still rest upon record,
And never be forgot in mighty Rome

Rape of Lucrece

How difficult it is for law students, even 3Ls who see themselves as jaded and worldly wise, to anticipate some of the shockers that await them upon entering practice.  For instance, in learning the basics of appellate brief writing, they learn that the ability to appeal in the first place depends on “preserving the record” in the trial court; but most law students have no idea how challenging that process can be. Law students may get it that preservation requires making proper objections and getting specific rulings from the trial judge.  But outside the comforting confines of federal court, preserving a full record can be far more arduous.  You have to make sure that court reporters are on hand when you need them to be, that they are typing when you needed them to be typing, that a judge’s oral orders that can actually be vague or contradicted by other events in a single hearing are captured in written form, and that written orders actually get signed and then filed in the clerk’s office.  If the full story isn’t there, and you were counting on being able to fight at the next level before an appellate court that might be more amenable to purely legal arguments, you—i.e., the lawyer and client—may be in for a rude awakening. Whatever patent injustices you thought transpired, if they aren’t evidenced by the fragments ultimately manifest in the public record, they cannot be addressed.  An appellate court will deem any objections to errors that are not clear in the record waived.

I am reminded with some pain of an early lesson I had about the challenges that can arise in the arena of record preservation.  I showed up to fight the venue of a declaratory judgment action that had been filed against my big city client in a remote, sparsely populated county after I had sent a demand letter to an insurer on the client’s behalf.  I had case law directly on point showing that venue was not proper where the case had been filed.  So I filed a motion seeking a transfer of the case elsewhere and set that motion for a hearing. 
When I walked into the courthouse for the hearing, I saw a group of men huddling up with the judge at the far end of the room.  As I walked in, they all started.  The judge, identifiable because he had on his robe, dashed back behind the bench as the others scurried to take places on one side of the courtroom, some of them standing behind one of the two counsel tables and some standing in the rows of seats behind that table.  As I approached the front of the courtroom, and before I could even put down my trial bag, the man in the black robe called out, “Are you hear on that venue motion?” 
I said, “Yes, Your Honor, I am,” thinking isn’t the bailiff supposed to say “All rise” and then the judge comes in?  This hearing wasn’t even supposed to start for another 20 minutes, so why are they already—

But before I could collect my thoughts, the judge turned to the court reporter and held up a hand to make a gesture universally understood to mean “don’t do a thing until I say so.” The judge then turned back to me.  “Just so you know, among the gentlemen here representing [X,] is [Y].  He is my campaign chair.  And [X] himself works for my wife. I hope you don’t have any problem with that.” He then turned back to the court reporter, gestured for her to begin, and called the case.  “Counsel,” the judge said turning back to me, “you may begin.”

“May it please the court,” I said as I tried to figure out why the other side had seen fit to bring 3 or 4 lawyers plus the client and some random bystanders to this little hearing.  Meanwhile, I was all alone—except I had both statutory and case authority on my side.   When I asked to approach the bench with copies of the cases I had brought along to support my position, he looked at me as if I were from Mars, but let me approach.  I could see him toss the cases to one side, but I valiantly continued to refer to the flagged and highlighted passages that showed precisely why venue in Yayhoo County was improper.

Mr. Y then stood up to argue for the other side. “Now, Judge, there’s gist no need to look at those cases she’s brought in.  The motion itself just isn’t proper.  That’s not how we do things here.  In Texas state court you can’t call for a case to be dismissed just because you think the venue’s wrong.  There’s gist no such animal and maybe she should have thought of that before putting us all through this exercise.”

When my chance came to rebut, I argued that the law was clear that the case couldn’t proceed here and so should be transferred or dismissed, suggesting that maybe they should have thought about that before popping off and suing my client without even responding to my letter with a phone call.

The judge signaled again to the court reporter, which made me realize I was not sure what she had or had not been doing during the oral arguments such that he was now giving her a signal.  “Motion denied.”

“Here judge,” one of Mr. Y’s colleagues said.  “Here’s an order for you to sign.”

The judge signed the order—before I got a chance to see it.  He then quickly left the bench and existed for chambers, followed in short order by the court reporter—before I could ask about getting a copy of the hearing transcript.

When I finally did get a copy of that transcript, I saw, as I anticipated, that there was nothing in the record about the judge’s being closely aligned with both X and Y.  But there were other interesting gaps too.  Even more surprising was how unsurprised other lawyers and my seasoned secretary was when I described this whole experience.

“Looks like you got home-towned, Gretchen.”


Despite the ignominy, I lived to fight another day. And although that first elliptical record did not tell the full story and thus would not have helped me much at all had there ever been an appeal, in the end, I bested those home-town boys. More importantly, the lesson I learned from what was both there and not there in the record was a profound one. While it may be enough for Henry IV in Richard II to let “heaven be the record to my speech,” [I.1] it is not enough for those who wage battles in courts of law.