Saturday, May 31, 2014

Like to the Lark

Yet in these thoughts myself almost despising,
Haply I think on thee, and then my state,
Like to the lark at break of day arising
From sullen earth, sings hymns at heaven's gate;
Thy sweet love remembered such wealth brings
That then I scorn to change my state with kings.

Sonnet 29

This week many marked the passing of literary trailblazer, Maya Angelou. I remember being introduced to her in my early twenties through her first memoir, I Know Why the Caged Bird Sings. Her magnetic personality was irresistible and her joyous transcendence of a traumatic childhood inspiring. Her belief in the power of words was so pronounced that, as a child, she imposed a vow of silence on herself that lasted for over five years.  She had been raped by an uncle. Upon discovering the crime, her family had urged her to identify the culprit. Later, after the man had served a short prison term, he was killed by another family member as an act of retribution—and Angelou felt responsible. Through magical thinking, she believed that speaking the rapist’s name had sealed his doom, which only added to the horror. Thereafter, she denied herself speech.

But during those silent years, she immersed herself in other peoples’ words, reading every book in her local library starting with the authors whose names began with “A” and working her way through the alphabet. After being coaxed out of her silence, she eventually went on to become a person widely recognized for the unique ebullience of her voice, in both song and prose.

During this past week of tributes, I heard an excerpt from a 1986 interview Angelou gave to Fresh Air’s Terry Gross in which Angelou explained how she had decided she wanted to write. She described how moved she had been upon discovering Shakespeare.  She recited part of Sonnet 29:  “When in disgrace with fortune and men’s eyes,/ I all alone beweep my outcast state . . . .”  She explained how she had marveled over the fact that he, a middle-aged white man from another culture and century, had so perfectly captured sentiments felt by a young black girl from the American South living in the 20th century. That sense that writers have the potential to bridge seemingly disparate worlds later inspired her to find her own voice as a writer, which in turn opened a channel through which the stories of many others would flow, the intimate stories of other women of color whom the mainstream culture had not previously regarded as worthy of widespread attention (writers like Toni Morrison, Alice Walker, Ntozake Shange).

Now you understand
Just why my head's not bowed.
I don't shout or jump about
Or have to talk real loud.
When you see me passing
It ought to make you proud.
I say,
It's in the click of my heels,
The bend of my hair,
the palm of my hand,
The need of my care,
'Cause I'm a woman
Phenomenal woman,
That's me.

From “Phenomenal Woman” by Maya Angelou.

RIP, Maya.

Sunday, May 18, 2014

Missing the Metaphor

Maturity can always be depended on. Ripeness can be trusted.
Young women are green. I spoke horticulturally.
My metaphor was drawn from fruits.

The “mature” Miss Prism to Dr. Chasuble,
The Importance of Being Earnest by Oscar Wilde

My husband said, “Hey, what’s with that last blog post? I thought you’d killed the thing off.”

“What do you mean?” I replied. “I thought about killing it off, sure. But I haven’t yet satisfied the conditions precedent that would necessitate killing it off.”

Shortly after that brief conversation, I realized that he had interpreted my post about the death of memory (“Wasted”) as a poetic allusion to the blog’s demise. Upon further reflection, I could see how he, poetically minded guy that he is, had made that leap. The post was, after all, inspired by my failure to remember the famous first line of “The Waste Land,” which is about breeding lilacs out of a DEAD land; the post then segues to musing on the DEATH of Chekhov’s three sisters’ dream of getting to Moscow. And the post ends with the Sanskrit chant that T.S. Eliot translated as "The Peace which passeth understanding," which pretty much can only be interpreted as a reference to literal DEATH.

But I had not meant for that particular post to serve as the blog’s metaphoric send off. At least not consciously. Which is why I did not see anything contradictory about turning around and posting again a few days later.

Herein lies the power and danger of metaphor. Metaphors can serve as powerful shorthand; but because they are inherently elliptical, things can get lost in translation. Imagine, for instance, a non-native speaker trying to make sense out of the following “everyday” metaphoric expressions whose poetic underbelly people do not even think about when they use them because they have become so naturalized in certain quarters:

• “He’s still wet behind the ears.”
• “She lives in East Jesus.”
• “That just takes the cake.”
• “They really hit a home run.”
• “Surprisingly, that partner has a heart of gold.”
• “Thank you so very much for saving my ass.”

See George Lakoff and Mark Johnson, Metaphors We Live By for more on this fascinating topic.

Communicating through more original poetic allusions with certain native speakers can also be challenging—especially when one’s audience is comprised of lawyers. Lawyers are not a breed universally recognized for their comfort with metaphors because metaphors involve ellipses, a gap that has to be bridged through inferential thinking. To “get” a metaphor a person has to jump adroitly between levels of understanding—from the concrete to the more abstract—in a single instant. As with jokes, if the person delivering the message has to connect all the dots before the person on the receiving in can “get it,” the fundamental point—the ability to convey a complex observation efficiently—becomes pointless.

I think (some) lawyers struggle with metaphoric language because literal ellipses tend to rouse their suspicion, and with good reason. What is left unsaid can be a deal-breaker, especially when ellipses are used when quoting a statute or judicial opinion or contract provision. And because most lawyers are habituated to expect that legal discourse is better when not infused with ellipses or any other poetic device, (some) lawyers tend to miss metaphors when they are pitched to them as a means to try to elevate legal discourse.

For those of us who take special delight in conceiving and perceiving metaphoric tropes, it can be difficult to love those who routinely “miss the metaphor.” You could even say that those who live to toss out clever metaphors and those before whom such metaphors tend to fall with a dull thud are fundamentally incompatible because they really do look at the world through different lens. Metaphorically (or literally??), these two kinds of folks do not speak the same language.

Shakespeare captures this phenomenon rather delightfully in Twelfth Night. Although Sir Toby does his best to assist his drinking buddy, Sir Andrew Aguecheek, in wooing the saucy chambermaid, Maria, Sir Andrew cannot possibly succeed with someone like Maria who prizes wit above all. It does not matter that Sir Andrew is a man of fortune, and Maria is a mere servant who should, pragmatically speaking, jump at the prospect of capturing the fancy of a land-rich bachelor. But Maria only has eyes for the debauched, old, bankrupt reprobate, Sir Toby—because he is a man who, even well into his cups, can keep up with her metaphoric quips:

Sir Toby Belch! how now, Sir Toby Belch!

Sweet Sir Andrew!

Bless you, fair shrew.

And you too, sir.

SIR TOBY BELCH (aside to Aguecheek)
Accost, Sir Andrew, accost.

What's that?

My niece's chambermaid.

Good Mistress Accost, I desire better acquaintance.

My name is Mary, sir.

Good Mistress Mary Accost,—

SIR TOBY BELCH (aside to Aguecheek)
You mistake, knight; 'accost' is front her, board her, woo her, assail her.

By my troth, I would not undertake her in this company. Is that the meaning of 'accost'?

Fare you well, gentlemen.

And you part so, mistress, I would I might never draw sword again. Fair lady, do you think you have fools in hand?

Sir, I have not you by the hand.

Marry, but you shall have; and here's my hand.

Now, sir, 'thought is free:' I pray you, bring your hand to the buttery-bar and let it drink.

Wherefore, sweet-heart? what's your metaphor?

It's dry, sir.

Why, I think so: I am not such an ass but I can keep my hand dry. But what's your jest?

A dry jest, sir.

Are you full of them?

Ay, sir, I have them at my fingers' ends: marry, now I let go your hand, I am barren.

[Act I, scene 3]

And so the girl gets away. . . . But to his credit, Sir Andrew is not so obtuse that he fails to see the nature of the barrier between him and Maria. He even has a theory about why he keeps missing her metaphors: “Methinks sometimes I have no more wit than a Christian or an ordinary man has: but I am a great eater of beef and I believe that does harm to my wit.”

Maybe some lawyers too could afford to ease up on the beef.

Just sayin’.

Saturday, May 10, 2014

Strong Woman Number

The title of this post comes from a song featured in a one-woman, quasi-autobiographical musical by another Gretchen (I'm Getting My Act Together and Taking It on the Road c.1978 by Gretchen Cryer and Nancy Ford). The show is not a work of artistic genius. But it made an impression on me during my impressionable teen years when I saw a production in Houston featuring an actress whom I admired and, shortly thereafter, got to work with in what I, at age sixteen, saw as my “big break.”

Coincidentally, some years later, when I moved to Dallas to pursue my acting career primarily in small venues in sketchy neighborhoods while waiting tables at the Deep Ellum CafĂ©, I met another strong woman named “Gretchen.” Her name was really Margaret, but she had always gone by “Gretchen” thanks to the early intervention of a German nanny. Aside from the fact that Gretchen was reading Flannery O’Connor’s Collected Short Stories when I first encountered here, I was favorably disposed toward her because her name, “Gretchen Dyer,” reminded me of songwriter “Gretchen Cryer” and thus of this actress whom I had looked up to as a youth. I was predisposed to like Gretchen Dyer even though she gave me the cold-shoulder at first. She was irritated that the restaurant where we met had had the audacity to hire another “Gretchen”—and one who also fashioned herself an artist. Worse still, the kitchen staff had immediately taken to calling us “Big Gretchen” and “Little Gretchen,” respectively. The nickname “Big Gretchen” did not exactly suit her, a statuesque, Bohemian beauty. She was “big” only in the sense that she was considerably taller than I was—and possessed an oversized brain, drive, and heart.

I am thinking about Gretchen Dyer today for several reasons.

First, this is the time of year when thinking of her, who is no longer with us, is inevitable. We are at the midpoint between her birthday in late April and the anniversary of her death in early June. And because it is also graduation season, I am reminded of how she and her sister Julia came to Austin to represent the Dallas, artistic-fringe contingent of my life when I graduated from law school. And then how, after I was living and practicing law in Austin, she and Julia again came to visit at this same time of year for what proved to be the last time. Shortly thereafter, her body, ravaged by years of fighting a congenital heart condition, gave out. But during that last visit Gretchen was not to be deterred by physical constraints. She took care of business, making the rounds to nurture key relationships and to ensure that her numerous artistic and social-justice projects would live on in her absence.

Second, I am thinking of Gretchen Dyer now because I was recently prompted to do so by a terrific initiative launched by yet another admirably strong woman, Linda Chanow of the Center for Women in Law. To celebrate its fifth anniversary, the Center is inviting supporters to make a contribution in honor of a woman who has made a difference in their legal career. See When I learned of his project, I knew I had to honor Gretchen Dyer. She wasn’t a lawyer, though she certainly had all the makings of a talented lawyer. Instead of opting to follow the impressive trajectory of her father, an international law specialist, she had made other, less conventional choices—but not because she viewed a legal career as promising a prosaic grind. She always expressed tremendous respect for her father’s career and took a keen interest in reading the briefs he filed in key cases. Likewise, she did not see my decision to make a mid-life career correction as “selling out.” Instead she cheered me on during every phase of my unlikely leap from non-profit theater to commercial litigation.

Third, I am thinking of Gretchen Dyer because I am about to attend a production of a Shakespeare play whose central character is more than a bit like her: strong, tall, relentlessly articulate, uncompromising, irresistible. That character is “Beatrice” of Much Ado about Nothing. Beatrice, a decidedly clever gal, boasts “I had rather hear my dog bark at a crow than a man swear he loves me.” She then banters her way to romantic happiness with Benedick, a man who can (almost) keep up with her in a battle of wits. Beatrice knows how to sell the strong woman number.

Perhaps, as Mother’s Day approaches, you will consider joining me (and the Center for Women in Law) in cheering for some strong woman who has made a difference in your life. Perhaps one such woman is your very own mother, so you are already prepared to do so. In any event, it shouldn’t be hard to think of a contender, someone performing her own “strong woman number,” day in, day out, for the good of some larger sphere, writ large or small. Examples abound.

Sunday, April 27, 2014


I wasted time, and now doth time waste me.
Richard II, Act V, scene 5

Do you ever get the urge in the middle of the night to dig up a copy of T.S. Eliot’s The Waste Land because you are haunted by a phrase that you just can’t quite remember?

No, not really?

Okay. Maybe you can’t understand why, at 3:00 a.m., I suddenly woke up and felt compelled to know what the rest of the opening line of that poem is—a line that, not long ago, I could not imagine not knowing. Surely, you don’t care that this urgency seemed to have something to do with this being the month of April and that famous first line notes that “April is the cruellest month, breeding lilacs out of a dead land.” Indisputably, you are indifferent to my realization that this line had probably leapt to the forefront of my consciousness as I slept because, the night before, I had watched a DVR-ed segment of the terrific remake of Carl Sagan’s Cosmos, starting Neil deGrasse Tyson, which included a scene depicting a boy picking lilacs. Despite this indifference I share with you the line that I could not conjure up on my own last night:

April is the cruellest month, breeding
Lilacs out of the dead land, mixing
Memory and desire, stirring
Dull roots with spring rain.

Specifically, it was that bit about “stirring dull roots with spring rain” that I could not remember. Ugh.

Interestingly—at least to me—this memory failure (with respect to a line about memory) reminded me of yet another famous literary line. In Chekhov’s The Three Sisters, “Irina,” the youngest of the three Sergeyevich-Prozorov sisters, weeps over her inability to remember “the Italian word for window or ceiling.” This failure symbolizes how time is slipping away from these gals who have spent much of their days convinced that life will really get started for them once they finally relocate to Moscow.

This panic over losing trivial bits of knowledge is a proxy for the much bigger things we lose—our youth, our optimism, our sense that we have time-a-plenty to accomplish all that we hoped to accomplish in this life. You’d think that all lawyers of a certain age could relate to that phenomenon if not to its specific manifestation in my lost grip on the opening line of The Waste Land or how my panic was underscored by how aptly it resonated with Irina’s panic in The Three Sisters. But perhaps all of those years I squandered reading things like Modernist Poetry and acting in plays like The Three Sisters are worth something after all. Because, unlike those type-A, straight-A folks who muscled there way straight from pre-K through law school and right into law practice without ever pausing to catch their breath, I at least still command a decent arsenal of literary allusions to lend color and context to moments of existential despair. “Here’s my comfort,” as Stephano in Shakespeare’s The Tempest would say. The “comfort” to which he refers is actually a sack of wine but nevertheless. . . . Having once known stuff that allows a person to know that her angst over what she no longer knows or has failed yet to do is at least a reminder that all is never lost; we are connected to a larger narrative involving rather “old verities” that at least feel less common when rendered in evocative, poetic language. “These fragments I have shored against my ruins,” as Mr. Eliot concluded.

I fear that I have come to see this blog as one of those things that keeps me from writing other things that I have long intended to write. Then again, the writer-qua-lawyer’s life is a constant struggle to make time for writing (or other pleasures) above and beyond the writing (and other work) that a law job demands. Learning to persevere in the face of this persistent anxiety may be a blog’s principal value. In any case, I again thank Mr. Andy for his lyrical, cyber suggestion that all is not wasted. Shantih shantih shantih.

Friday, April 25, 2014

“Enough with the g-d Shakespeare already”

April 23, 2014 was the 450th birthday of William Shakespeare, the man who may well be responsible for Shakespeare’s incomparable oeuvre of plays, sonnets, and narrative poems. It was also the second anniversary of this blawg. I failed to mark the occasion because I was busy doing things of no particular importance to the world at large. But the good news is that Will’s celebration is going to continue for some time. The Globe Theatre, for instance, will be engaged in a year-long audacious tribute that will involve performing Hamlet in every country!

Meanwhile, a Seattle-based theater critic recently garnered considerable attention with an article that argues, among other things, that undue reverence for/reliance on The Bard is one of the things killing theater itself. See Ten Things Theaters Need to Do Right Now to Save Themselves In No Particular Order by Brendan Kiley. Kiley’s ten recommendations start with the entreaty that gives this post its name: “Enough with the goddamned Shakespeare already.” While Kiley accepts that Shakespeare was indeed the greatest playwright ever, he argues that Shakespeare’s work has become a crutch, something theater companies turn to when they have no fresh ideas. He insists that a five-year ban on “high schoolers pecking at Romeo and Juliet,” “NEA funding for Shakespeare in the heartland,” and “fringe companies trying to ennoble themselves with Hamlet” would do the entire art form a world of good.

I tend to agree that Shakespeare often seems to be a “crutch” for theaters—a means to ensure that at least one show in their season will result in substantial ticket sales because educators and parents can be counted on to step up and bus in the kids for the latter’s edification. Shakespeare in such instances is often served up like over-cooked collard greens or dry bran muffins. Which is probably not the most effective means to transform picky eaters into adventurous, passionate gourmands. . . . But there you have it. Theater is, as Kiley notes, on life support.
Among Kiley’s other recommendations, however, lies a hint about how a Shakespearean approach, at its best, could enliven a languishing medium. Kiley suggests that theaters should offer “Boors' night out”—at least one performance of each run when the audience is encouraged to participate on its own terms. This practice was routine in Elizabethan theater—where groundlings drank, heckled, hurled vegetables, barked directives and encouragement to the actors, sang along, and otherwise insisted on being a dynamic part of the action. A work of theater cannot feel like an ossified museum piece when the atmosphere is more like a day at Woodstock then a night at The Metropolitan Opera.

As originally realized, productions of Shakespeare’s plays involved vivid, immediate feedback and audiences entirely invested in the unfolding drama. Now? Much of the audience goes primarily for the picnic in the park beforehand and then the nice snooze that follows.

And maybe that is the problem with this blawg. Maybe I have been relying on Shakespeare as a “crutch” when Shakespeare per se just does not resonate with my intended readership (whoever that might be). Maybe my efforts to build bridges between Shakespearean themes and contemporary law practice smacks of esoteria. Good blogs, including the blawgs, which garner a loyal readership seem (1) to feature a compelling or at least accessible and trustworthy voice and (2) to provide either (a) really helpful information on a discrete topic or (b) solid entertainment. Putting aside the first prong, which no writers can fairly judge for themselves, I feel concerned that my efforts have not consistently satisfied either of the prong-two alternatives. To elevate my game, perhaps I need to commit fully to (2a) or (2b). Doing so may mean adopting a far more flexible approach so as to invite the kind of invigorating dialogue on display during “Boors’ Night Out” at Shakespeare-in-the-Elizabethan-Park instead of “Bores’ Night In” with three members of Academe.

Let me hear from you--but not all five of you at the same time.

Monday, April 7, 2014

Make ‘Em Laugh

The one show tune guaranteed to make even the most recalcitrant cynic crack a non-sneering smile is Donald O’Connor’s comedic tour de force in Singing in the Rain. Go on: I dare you to clink on the hyperlink and go one full minute without smiling.

And no one could possibly disagree with the song’s thesis: the most reliable way to win people over is by making them laugh. Accomplishing this feat, however, is no joke.

Sure, there are some who sound so funny that it hardly matters what they’re saying. I am thinking of Gilbert Gottfried reading a certain trashy bestseller (to which I dare not provide a link lest I risk losing this blog’s PG rating.) But when it comes to comedic writing, that is serious business.

As Shakespeare well knew, writing in an authentically funny voice requires special skill. To be “wise enough to play the fool”—“to do that well”—“craves a kind of wit,” as Viola notes in Twelfth Night, III.1. To be seriously funny, a person . . .

. . . 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.

There is a lawyer here in Austin, a core member of the local bar, who manages routinely to be wise enough to play the fool while writing about law practice. His name is Claude Ducloux. He doesn’t know it yet, but I recently decided to claim him as a kindred spirit in hopes that his ability to grind out seemingly effortless sallies of wit about lawyering will somehow rub off on me.

I have not yet plummeted Claude’s secret. Maybe it has something to do with laboring as a lawyer in Central Texas while bearing a super fancy-sounding Gallic name. Certainly, the man does not shy away from his French roots; the column of his that I admire is called “Entre Nous.” Who knows? Perhaps one key to being funny is being burdened from birth—and then refusing to be broken by that condition. I, for instance, was given a name that suggests a German milkmaid although I am neither German nor fond of milk. But it is what people do with these burdens that decide whether they will be Fate’s hostage or turn their bondage into daisy chains.

As I said, I have not yet ascertained the source of Claude’s comedic power, but I have eked out an admission that resonates with the theme of this post. Claude agrees: “It’s hard to be funny on purpose." Each of his columns goes through at least 8 drafts—all to ensure a voice that sounds entirely spontaneous. Claude also admits that he took comfort recently when his hero, comedic writer Dave Barry, made a certain confession during an NPR interview with respect to the arduous nature of producing breezy prose. When Barry was asked why he had abandoned a weekly humor column that he had kept going for nearly 25 years, Claude says that Barry said: "because my accountant said I don't have to anymore.” In other words, being consistently funny on command was really hard—even for that guy. And that is why so many must rely on cats to do their funny business for them (and skip the writing part altogether). See, e.g.,

It might be tempting to conclude that this is good news for lawyers, because no one really expects legal writers to be all that funny—at least not when they are producing actual legal writing. Indeed, some lawyers find the very notion of “humor” and “law” incompatible. And that is a shame. Humor does not suggest a lack of respect for the subject matter or context. Au contraire! It only seems that way to the chronically humorless. Most truly effective humor has an edge to it because the subject matter is so serious—and then the form succeeds in transcending unbridled irreverence, disdain, or resentment. (See last post on “Shakespeare as a Weapon.”) Humor is a way of letting light into the darkness; for light is the only way darkness itself becomes something a person can see.

Because most judges are people too, I suspect they prefer a dash of levity instead of relentlessly angry screeds about the opposing party’s boneheaded arguments or opposing counsel’s unprincipled behavior—no matter how poorly reasoned or badly behaved the other side/lawyer has been. Judges, as smart people, value wit; therefore, when wielded appropriately, wit can be among the most valuable persuasive tools around. Just ask the fans of Claude, Shakespeare, or Donald O’Connor.

Friday, March 28, 2014

Shakespeare as a Weapon

The croaking raven doth bellow for revenge.
Hamlet (III.2.250)

Recently, a guy made international news after pursuing some rather creative revenge. Apparently, he had ordered a used gaming device on line via a British version of Craig’s List. After his bank account had been debited, he learned that he had been scammed. He didn’t despair, though. He sent a little gift to the offender’s cell phone: virtually all of Shakespeare’s canon, which arrived through an avalanche of text messages. The scammer was exposed, the victim was affirmed, and no blood was shed.

Poetic justice, indeed.

Of course, Shakespeare himself had plenty to say about revenge. Hamlet, Othello, Merchant of Venice, Titus Andronicus for starters. Taken together, one can intuit that Shakespeare believed that the quest for vengeance would likely result in a person’s undoing. He depicts quests for revenge—both those that follow legitimate wrongs (Hamlet) and illegitimate ones (Othello)—as the product of ugly, if entirely natural, emotional impulses. To free oneself from “this thing of darkness,” a person has to acknowledge the feeling in oneself and then consciously decide to forego acting on it. See The Tempest.

But maybe the ability to exact revenge through comic means is a way to outsmart the system, a way to have one’s decadent cake, eat it, and lose weight too! Sure, some humor can be cruel; it can sting those who are the butt of it. But I am not talking about mean-spirited humor that is no more than thinly veiled denigration. I am talking about revenge-through-humor that is clever and more than a bit self-deprecating. That kind of humor only embarrasses the bad guy; it doesn’t brutalize the way shaming someone does. Also, revenge-through-humor can empower the victim by infusing a bad situation with a bit of light. By contrast, conventional revenge tends to turn a person into a gnarled, brooding figure who ultimately starts to resemble the person who did him wrong. We can’t all be saintly, especially when our jobs involve exposing others’ bad behavior or flawed thinking. So revenge-through-humor allows a person to sublimate and channel intense emotions so as to avoid bloodshed while still empowering a person who has been legitimately wronged.

I admit that I have on occasion used Shakespeare as an instrument of revenge. And I admit that I have enjoyed doing so. For instance, when writing a brief in response to some other lawyer’s work product that featured an unfair request, tortured logic, or the distorted use of legal authorities, I have sometimes found that Shakespeare (or some other literary icon) provided the most apt way to expose the problem. For instance, I recently took a cue from Marc Antony’s speech at Caesar’s funeral to make a legal point. I used the same rhetorical device Antony employs when he punctuates each sentence with the phrase “but Brutus is an honorable man” to drive home to his audience that he thinks Brutus has behaved anything BUT honorably (at least in terms of assassinating Caesar). I did something similar to illustrate a fatal pleading flaw in a plaintiff’s Complaint. I made sure to highlight the parallel in a footnote in hopes of making the judge and his law clerks smile. Too cute by half, perhaps. But what’s the point of practicing law if no one ever gets to have any fun? I think using Shakespeare to help beat up the other side in a dispute over legal issues is not just a gratuitous exercise. It is akin to arguing by analogy, the most helpful way to clarify abstract points. It also lightens up the act of intellectual evisceration that is intended to compel the court to do something really powerful—like throw the case against your client out of court.

In truth, when I write briefs for other lawyers, my little Shakespearean barbs are often cut from the final draft. Maybe because they just don't love Shakespeare the way I do. Or maybe they fear the judge doesn't. Or maybe they just fear anything unconventional. This does not deter me, though. Even if I only succeed in bringing a more literary (and thus more expansive) perspective to one reader—the person who decides to cut these contributions—I can still imagine that I am doing a bit of good in the world by expanding that one person’s cultural horizon (and by entertaining myself during the lonely writing process.)

Or maybe this habit of mine is not so admirable. Maybe it is just my way of pursuing revenge against the universe for requiring that I become an attorney in order to qualify as a professional writer. In this, I suppose, I am a bit like the sputtering, exasperated Lear who declares he’ll get revenge against the two daughters who have outsmarted him after he has screwed over the one daughter who was actually committed to his well-being:

. . .you unnatural hags,
I will have such revenges on you both,
That all the world shall--I will do such things,--
What they are, yet I know not: but they shall be
The terrors of the earth.

King Lear (II.4.305-9)

Sunday, March 9, 2014

Winning Arguments

Much to my daughter’s chagrin, the other night over dinner my husband and I got into a little argument. The argument was about when, in Act III, scene 1 of Hamlet, does Hamlet realize that people are spying on him. If you look at the text, the playwright does not include a stage direction anywhere that says “Hamlet realizes Polonius and Claudius are hiding behind a curtain.” (In fact, Shakespeare’s plays are virtually devoid of stage directions.) But, conventionally, those directing the play accept that they must pinpoint a moment in that scene when Hamlet realizes that something is afoot—which in turn explains why he suddenly starts screaming at Ophelia to get herself to a nunnery.

My husband and I have different views about when this moment occurs. But because this is my blog, I get to convince you that I’m the one with the superior explanation. I can only hope to do so, however, if I act like a lawyer, always a winning strategy when it comes to arguments with a spouse, don’t you think? 

Seriously, lawyers are supposed to try to win arguments.  And they are supposed to endeavor to do so by marshaling sufficiently convincing evidence to support their position while also acknowledging and rebutting any reasonable counter evidence, which almost always exists.

So let me start by explaining the husband’s (aka Alex’s) hypothesis. Alex contends that Hamlet’s epiphany has already happened by the time he starts speaking in this particular scene. This is a pretty interesting proposition since what Hamlet has to say upon entering this scene is that most-famous “to be or not to be” soliloquy. For the Alex Hypothesis to fly, however, it would first need to explain why Hamlet was contemplating suicide in front of an audience. Alex’s explanation is that the soliloquy should be understood as a coded message to Claudius—the uncle whom Hamlet believes murdered his father and then married his mother so swiftly that “the funeral baked meats/Did coldly furnish forth the marriage tables.” [I.2] In other words, according to Alex, the existential issue captured in the speech is not Hamlet’s own despair but a suggestion to Claudius that the way he can escape the guilty conscience that surely must be plaguing him and redeem his sorry excuse for a life is for him “to take arms against a sea of troubles,/ And by opposing end them.” In other words, Alex suggests that what Hamlet is doing with this speech is a version of what Curly tries in Oklahoma! when he goes into the old smokehouse where the grimy hired-hand Jud Fry lives on Aunt Eller’s farm and seeks to convince him that the best way to take charge of his unsatisfying existence is to hang himself.  SeePore Jud Is Daid” by Rogers & Hammerstein. Curly’s point is that, in death at least, Jud will finally get himself cleaned up and then get some attention as “friends’ll weep and wail for miles around.” 

What evidence does Alex have to support the contention that Hamlet:Claudius::Curly:Jud? 

Alex says “Hamlet doesn’t use the first-person singular in the entire speech.”

Okay. Certainly another interesting observation. For this fact does distinguish this soliloquy from, say, the “O, what a rogue and peasant slave am I!” soliloquy, in which Hamlet compares himself (unfavorably) to an actor delivering “Aeneas’ tale to Dido.” That soliloquy is replete with the word “I,” e.g.:

  • What would he do,/ Had he the motive and the cue for passion/ That I have?
  • Yet I,/ A dull and muddy-mettled rascal, peak,/ Like John-a-dreams, unpregnant of my cause,/ And can say nothing;
  • Am I a coward?
  • 'Swounds, I should take it: for it cannot be/ But I am pigeon-liver'd and lack gall/ To make oppression bitter, or ere this/ I should have fatted all the region kites/ With this slave's offal: bloody, bawdy villain!
  • Why, what an ass am I! This is most brave,/ That I, the son of a dear father murder'd,/ Prompted to my revenge by heaven and hell,/ Must, like a whore, unpack my heart with words,/ And fall a-cursing, like a very drab,/ A scullion!
And so forth.

What’s wrong with the Alex Hypothesis?

Let me count the ways!

Principally, there’s the problem with the basic theme of the “to be or not to be” soliloquy. After rattling off all the good reasons a person might have for wanting to end it all—“the whips and scorns of time,/ The oppressor's wrong, the proud man's contumely,” etc., etc.—most of the speech is about the ambivalence that thoughts of suicide engender. Why? Because, according to Hamlet, a person cannot quite be sure about what comes after death, “the undiscovered country.” If Hamlet were giving this speech to try to convince Claudius to kill himself, why would Hamlet devote much of the speech to acknowledging how the will to live has a way of trumping the impulse to end it all even when life really, really sucks? Why would Hamlet end the speech bemoaning that thinking hard about how little we know about death causes us to lose our resolve—“the native hue of resolution/ Is sicklied o'er with the pale cast of thought”? Why would he admit that thinking this way causes a person to “lose the name of action” if what Hamlet wants is to induce Claudius to take a specific (suicidal) action?

In short, I do not feel that my husband’s creative suggestion accounts for the textual evidence very well.

Of course, there is some evidence to support the otherwise unconvincing Alex Hypothesis (aside from that no-I contention, which only gets a person so far). By this point in the play, we know that Claudius is preoccupied with Hamlet’s every move. For instance, the scene in question begins with Claudius interrogating Hamlet’s old school chums, Rosencrantz and Guildenstern, whom Claudius commissioned earlier in the play to “get from [Hamlet] why he puts on this confusion,/ Grating so harshly all his days of quiet/ With turbulent and dangerous lunacy[.]” In other words, Claudius has already enlisted people to spy on Hamlet, and a previous scene with R & G suggests that Hamlet sniffed out that plan pretty easily—which is why he keeps ducking these gents whom he initially greeted as “my excellent good friends!” Therefore, one could speculate that Hamlet, smart guy that he is, understands by Act III, scene 1 that spies lurk everywhere. Also, in this scene, right after Rosencrantz and Guildenstern admit they haven’t yet been able to get much of anything out of Hamlet, Claudius sends them off and then asks his “Sweet Gertrude” to “leave us too” because he and Polonius plan to do some spying of their own, using Ophelia as a prop. Claudius admits that they “have closely sent for Hamlet hither,/ That he, as 'twere by accident, may here/ Affront Ophelia. . .”—all so Claudius and Polonius can see if Hamlet is suffering “the affliction” of unrequited love, as Polonius believes, or something else entirely. In short, everyone in the Danish court seems to be in on the plot to spy on poor Hamlet; so Hamlet has every reason to suspect that whenever he roams freely about the castle, there are spies in his midst.

But if one believes that Hamlet suspects he is being spied upon as he delivers the “to be or not to be” speech, the Alex Hypothesis has another problem in addition to failing to account for the speech’s theme. The problem is that it also doesn’t account for another development slightly later in the scene. And this is where it is my turn to marshal evidence to support my own argument.

In my view, Hamlet realizes that he is being set up and likely spied upon a few lines into his exchange with Ophelia a few moments after his private “to be or not to be” moment. After a perfunctory greeting, Ophelia does as her father has instructed her and says: “My lord, I have remembrances of yours,/ That I have longed long to re-deliver;/ I pray you, now receive them.” My hypothesis is that Hamlet recognizes that she is lying as she makes this assertion. He knows that she hasn’t “longed long” to give him back all of his love letters and such. He knows that she continues to pine for him like the lovesick teen that she is. He also knows that she is usually more articulate than this statement suggests. If she were speaking from the heart, she would never say something as awkward as “I have longed long to re-deliver” this stuff. As she trips over that “longed long to” formulation, Hamlet realizes what is going on. And with a quick glance around, he intuits that her intermeddling, blowhard father is probably lurking nearby—if not Claudius too.

Do I have any more proof than this “longed long to” bit?

But of course!

After the highly rational, completely coherent “to be or not to be” speech, and then right after a polite, if stiff, exchange of pleasantries with Ophelia, Hamlet starts assaulting her with a series of highly sexual and degrading comments. After she presses him to take back the tokens of his love, he first responds “I never gave you aught.” Clearly, he is not being literal. He is saying “I never gave you jack shit. That stuff is worthless”—which is like saying “It was all a charade. You are not who I thought you were so what I thought I loved does not exist.” Ophelia has no trouble understanding the hostility of his message, even if she does not understand why he has turned on her this way. So she responds form the heart, making it clear that what he calls “aught” she valued as “rich gifts” until, suddenly, he proved to be “unkind” to her:

     My honour'd lord, you know right well you did;
     And, with them, words of so sweet breath composed
     As made the things more rich: their perfume lost,
    Take these again; for to the noble mind
     Rich gifts wax poor when givers prove unkind.
     There, my lord.

 But that is more than enough for Hamlet. With this pretty speech she essentially confirms that she is not acting naturally; she is someone else’s pawn. Instead of feeling sorry for her, he goes for the jugular. He attacks her “honesty”—in a single word challenging both her truthfulness and her chastity, knowing full well that he is hitting below the belt, so to speak:

That if you be honest and fair, your honesty should
admit no discourse to your beauty.

Could beauty, my lord, have better commerce than
with honesty?

Ay, truly; for the power of beauty will sooner
transform honesty from what it is to a bawd than the
force of honesty can translate beauty into his
likeness: this was sometime a paradox, but now the
time gives it proof.

After this insulting exchange, Hamlet ups the intensity still further—admitting one moment that he did love her once and then immediately thereafter contradicting himself:

. . . . I did love you once.

Indeed, my lord, you made me believe so.

You should not have believed me; for virtue cannot
so inoculate our old stock but we shall relish of
it: I loved you not.

I was the more deceived.

Right after that, Hamlet starts urging Ophelia to get herself to a nunnery. His rant against marriage and procreation is so over the top that she is forced to conclude “O, what a noble mind is here o'erthrown!” 

The raving-lunatic bit is, in part, a performance for Ophelia and any other spies that might be at hand. But Hamlet gets so absorbed in his ravings—venting real emotions in his effort to portray himself as unhinged—that he ultimately exposes his true feelings.  In particular, Hamlet telegraphs exactly what he thinks about the marriage between his Uncle Claudius and his Mother Gertrude: “we will have no more marriages:/ those that are married already, all but one, shall/ live the rest shall keep as they are.” That is why, after Hamlet storms off and Claudius and Polonius emerge from their hiding place, Claudius recognizes uneasily “what he spake, though it lack'd form a little,/ Was not like madness.”

In short, it is true that, during Act III, scene 1, Hamlet sends a message to Claudius, as Mr. Alex believes. But the textual evidence does not quite support the Alex Hypothesis regarding what that message is and when it was sent. I believe the evidence instead shows that Hamlet ends up sending a message to Claudius that is not quite what he intended; and he does so only after he obtains evidence that Ophelia is part of the wide-ranging scheme to manipulate him. Because the line between performed madness and real outrage becomes blurred, Hamlet lets slip exactly what he thinks of Claudius and his marriage to Hamlet’s mother—that it is so offensive that they are the one married couple in all the world who should not be permitted to live. In this moment, Hamlet reveals to Claudius that Hamlet’s opinion of his uncle is far worse than can be explained by Gertrude’s hypothesis: that it is just a product of “[h]is father's death, and our o'erhasty marriage.” As a result, Claudius ends up with evidence that Hamlet suspects that Claudius is a murderer, not just an adulterer.  Claudius will get further evidence confirming just how much Hamlet knows in the very next scene, in the very moment when Hamlet gets evidence that Claudius really did murder Hamlet Sr. in the manner described by the Ghost back in Act I. Once the two men are armed with this evidence, they can then make a reasoned choice among the competing hypotheses swirling about in their heads. But, too bad for them, having evidence that they are indeed right doesn’t prove to be good for their longevity. . . .

P.S. Special thanks to Husband Alex for being such a good sport about things generally.

Sunday, March 2, 2014

You Say “Viola” I say “Viola”

While studying Shakespeare years ago with an Oxfordian polymath, I was surprised to learn that those Brits had a different way of pronouncing the name of the female lead in Twelfth Night. They call her “VI-o-la” whereas we Yanks tend to say “Vee-OH-la.” And they do the same thing with Winter’s Tale’s “Perdita,” by pronouncing it “PER-di-tah.”  Of course the Brits and Yanks have all sorts of words that they insist on pronouncing differently, not just the names of Shakespearean heroines. But some variants are more likely to strike the ear of one set of speakers as just being off. That is, saying certain words “the wrong way” in certain circles can be a symbol of pitiable ignorance.
An example of this phenomenon in legal circles has to do with the “proper” way to say “voir dire.”[1] In Texas, as I have heard state trial judges explain to panels of potential jurors, we are closer to Paris, Texas than to Paris, France; therefore, the voir dire process is referred to as “vor DIE er.” By contrast, anyone vaguely conversant with French would say something more like “voi DEAR.” If you use the Francophile pronunciation in Texas legal circles, though, people will look at you like you are some pretentious prig who couldn’t find your ass with two hands and a compass. Similarly, if you go up East to some Yankee courtroom and refer to “vor DIE or,” people will look around for the turnip truck that suddenly deposited you in their midst after you obtained a law license fthrough an on-line correspondence course.
I bet all of us have experienced pronunciation variations that rub us the wrong way. But it seems that certain variations that are just a matter of different regional conventions tend to grate on people more than if someone simply mispronounces a word. (I may be wrong about this, actually, because it really bugs me when lawyers say “condition preh-CEE-dent” instead of “condition PREH-ce-dent” since those same lawyers would never say “I really need to find a Texas Supreme Court preh-CEE-dent to support this proposition.”) But let’s nonetheless assume I’m right about this—the proof being that the Gershwins’ “Let’s Call the Whole Thing Off” is a timeless standard.  Some differences in pronunciation, though not inherently wrong, offend so much as to risk condemnation as a “No Nothing.”
Why is this? Why do certain variations in convention trigger such deeply visceral responses even when a person knows quite well that the “correct” pronunciation is wholly a matter of convention? Do these tendencies reflect some primal fear of being misunderstood that makes us cling to arbitrary wisdom? Or do they symbolize some need to keep the outer boundaries of certain circles clear because of lingering fear that the barbarians are poised to break through the barricades? Is it a territorial issue that arises only after one has fought to be seen as someone “in the know” so that disdain of those on the outside is a kind of badge honoring your own passage to safety?
Beats me.

But, undoubtedly, using what is perceived as an “incorrect” pronunciation convention is serious business, a proxy for judgments regarding another’s deeper inadequacy.

As Hamlet suggests, one way “to put an antic disposition on”—that is, one way to seem insane—is “by pronouncing of some doubtful phrase.” [I.4] So when in Texas, we have to say “vor-DIE-er,” even when we know quite well that the French (and most others) say “voi DEAR.” Otherwise, we risk being dismissed for an antic disposition. 

[1] Voir dire is the process of asking potential jurors an array of questions in hopes of rooting out bias and prejudice and thus ensuring one’s client a fair trial.

Tuesday, February 25, 2014

Navel Gazing

“Anonymous” left a disconcerting comment on this blawg in response to a post commemorating my attachment to the late Pete Seeger. The disconcerting part had to do with my belly button, allegedly observed by a person who claims to have once studied philosophy with me. 
I did in fact teach introductory philosophy courses at several community colleges in the Dallas Metroplex from 1989 to 1999. However, in those classes I never once showed my belly button.  Upon reflection, I recall that I did expose said belly button twice on stage during that same period.
One production was a compendium of original shorts by Dallas-area playwrights called Local Eccentricities. The night before we opened, a member of the cast of “Three Graces” walked out on us for reasons that remain shrouded in mystery. I don’t know, but I suspect that she, whose day job involved teaching high school English at a prestigious private school, suddenly balked at the idea of a student spying her, quite literally, in her underwear—because these three graces' costumes consisted of nothing more than dainty bra and panties enhanced with symbolic accoutrement. After her sudden departure, I, as the director, had to act. The only “act” that seemed possible at that late date involved me stepping in, learning her lines, and donning her green bra and panty set.  For “the show must go on,” and all that. Therefore, if any of my philosophy students before or at that time happened to see that production during its month-long run, they would indeed have seen my belly button.
The second production is a more likely contender as it was produced at one of the colleges where I was then teaching philosophy and theater classes.  It was a production of Euripides’ The Bacchae of which I remain quite proud. Unfortunately, well into rehearsals, and after a great deal of elaborate choreography had been learned, one member of the female Chorus of Maenads dropped out.  (Perhaps she too balked at the eleventh hour at the idea of being observed on stage scantily clad—in bits of fur, leather, and leaves. But I, the director, was not afforded an explanation on that occasion either.) So once again, the only available option involved me stepping in. I did so under the guise of a pseudonym, imagining that only those who knew me best would recognize me among the Wild Women of Thebes, bewitched by the god, Dionysus.  Perhaps, though, one of my more perspicacious philosophy students recognized me there among the mass of Maenads, and thus connected me with a certain exposed belly button.
You can see why this comment by Anonymous was disconcerting—forcing me to revisit these scenes-from-a-former-life in conjunction with a blawg devoted to sophisticated musing about law and literature. In a few sentences, Anonymous had laid things bare, at once applauding and embarrassing me. But, ultimately, I was impressed by the poetry of Anonymous’s comment, how he journeyed in short order from a literal reference to a belly button to a figurative reference to a heart. I was also encouraged, perhaps naively, by the notion that a cerebral philosophy professor, by her willingness to expose herself for the sake of art, had made a favorable impression on some student long ago in a way that had withstood the test of time.
Having been forced to process these unbidden memories, it occurred to me that these productions, though separated by a span of years and other variables, shared a theme. Both were, in a way, about how women simultaneously wield and shed power when they shed their clothes. This simultaneously liberating and self-defeating power is what Shakespeare’s Titania and Cleopatra embody. It is a power grounded in nature—that is, in our evolutionary past—but also fraught with stultifying cultural baggage. It is a power that permits winning when the fight isn’t fair but then losing before the curtain falls. It is a power that women invent and that is also always already there to be exploited. “We are their parents and original.”  [Midsummer, II.1]
Then it occurred to me that this whole blogging business, too, is all about exposing oneself. Even the stodgiest blawgs, to which some of my more practical, buttoned-up colleagues are devoted, inevitably reveal something about their authors that those authors generally keep covered up. And the prospect of an occasional navel sighting, not the promise of objective reporting, explains why people revisit most blogs. Certainly, the truly popular blawgs are all about exposing that which others would prefer to keep covered up. See Above the Law. 
By contrast, much of law practice is about advising others how to keep their vulnerabilities properly covered or how to defend against assaults upon that which one had intended to keep covered up.  Occasionally, though, navels are exposed by lawyers themselves—as a matter of necessity. And this is really stressful stuff. For instance, if personal injury plaintiffs have any hope of prevailing, their lawyers will tell them that they are going to have to reveal all manner of personal information found in medical records, tax returns, even diaries that they had long conceived up as safe from prying eyes. Similarly, when clients turn on their lawyers, lawyers, in defending themselves, often have to disclose what had long been conceived as confidential—client communications and privileged attorney work-product—thereby turning the sacred core of the attorney-client relationship inside out.
This ever-present potentiality does (or should) bred special caution on lawyers’ part about how certain things, like their advice, are formulated. One could say that best practice is to assume that one’s navel is always vulnerable to exposure no matter what conventions exist to protect against unwanted disclosure.  Both lawyers and the clients they advise have to consider the prospect that, one day, to carry a burden or to defend against an attack, the duty to conceal may be trumped by the duty to disclose. In any case, these contrary duties always exist in an uneasy tension in the simultaneously public and private legal arena. 
Both concealing and disclosing are acts that can be mindlessly impulsive or require special fortitude. The kind requiring fortitude involve calibrations designed to avoid regret.  Or, as the pickpocket Autolycus explains in Shakespeare’s Winter’s Tale, to have integrity, the decision to conceal or to disclose should resonate with one’s professional affiliation:
The prince himself is about a piece of
iniquity, stealing away from his father with his
clog at his heels: if I thought it were a piece of
honesty to acquaint the king withal, I would not
do't: I hold it the more knavery to conceal it;
and therein am I constant to my profession.

Wednesday, February 19, 2014

Wanton Sentences

She puts the period often from his place;
And midst the sentence so her accent breaks,
That twice she doth begin ere once she speaks.

The Rape of Lucrece, Stanza 81 

The “PrawfsBlawg” is currently hosting a contest. It seeks nominations for “the worst sentence in the history of American judicial opinions.” Sadly, viable contenders abound. The Prawfs provide this example from the Supreme Court’s 1851 decision in Cooley v. Board of Wardens:
This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the states, in conformity with the circumstances of the ports within their limits.
Cooley is routinely taught as a seminal case about the relationship between the states’ police power and the federal government’s power under the Constitution’s Commerce Clause.  In the case, the Court held that a Pennsylvania law, which required that all ships entering or leaving Philadelphia hire a local pilot, did not offend the Constitution.
Okay, so what? The point of this post is offensive sentences, not offenses to the Constitution.
This 91-word monstrosity from Cooley is indeed offensive; it offends the senses because its sense is so hard to ascertain. No wonder so few law school graduates know how to write when this is what is offered up as an exemplar of judicial analytical prose.
To be fair, texts, in the form of case law, are not selected for inclusion in law course curricula because they exemplify scintillating (or even workmanlike) prose.  Generally, judicial opinions are selected as vehicles for teaching law students because they show the emergence of some legal proposition deemed important for understanding how some doctrinal area of the law has evolved. The writing is just what one has to slog through to ferret out the all-important proposition.
There is a painful irony in this, of course. For let’s be frank: even mathematicians care a great deal about values like “elegance” and “simplicity” and “accessibility” when it comes to solving elusive theorems. Yet The Law, where the medium is, ineluctably, language itself, readers are often subjected to language devoid of craft—or at least composed with little regard for the aesthetic values that guide many others who write for a living.
I admit that I continue to struggle with offensive sentences, constructions bloated beyond measure. I attribute this tendency to a childhood spent reading 19th century novels instead of doing my homework. Early on, I developed a pronounced attraction to esoteric and convoluted word play. The Faulkernian, Proustian, Dickensian, Bronte-an, Dostoyevsky-an, compound-complex convolution continues to hold secret sway over my instinctual pleasure centers. Yet I have learned to resist the impulse to subject the readers of my (legal) writing to these highly subjective preferences. At the very least, I have learned to make a habit of rooting out the results of these deep-seated impulses while reviewing and revising my legal work.  Because, ultimately, I’ve accepted that the impulse runs counter to the goal of effective communication.
Alas, what may appeal to some small contingent of eccentrics does not tend to work for a general readership. And although most legal writing will be consumed by a minuscule rather than a general audience, legal writing today is supposed to aim for accessibility above all. For easing others’ pain. For cutting through the mire. Because all that law stuff is difficult and dense and incomprehensible enough as it is. See excerpt, supra, Cooley v. Board of Wardens, 53 U.S. 299 (1851).
Some readers (should such readers exist) might find it odd that I am urging legal writers to strive for simple sentence structures. This blawg is, after all, devoted to holding the flame aloft for William S.  But that guy really did know his way around a sentence. His form demanded certain contortions and permitted other indulgences. But when it comes to crafting a succinct zinger, the man knew how to deliver. Moreover, he recognized that having fun with sentences was among the few activities separating us from other beasts. As Feste, the Clown in Twelfth Night, says:  “A sentence is but a cheveril glove to a good wit: how quickly the wrong side may be turned outward!” [III.1] And as Viola says, prettily in response: “ Nay, that's certain; they that dally nicely with words may quickly make them wanton.”
So let’s have no wanton dallying with words such that our sentences disgrace us.
P.S. Special thanks to Kasia for the inspiration.

Thursday, January 30, 2014

Goodnight, My Pete, Goodnight

The remembrance of her father never approaches
her heart but the tyranny of her sorrows takes all
livelihood from her cheek.

All’s Well That Ends Well, I.1

This week we lost one of humanity’s best. Not just an impressive figure, but a deeply good person who brought that goodness to bear on so many righteous causes and infused so many little lives (like mine) with a hunger for purpose that it is not hyperbole to say his “worth’s unknown although [his] height be taken.” [Sonnet 116]
Waking up to the news the other day that Pete had died in the night left me feeling that a considerable quantum of light had abandoned the world, irrevocably. For most of my life, he has been more than a distant icon. To speak quite candidly, he was the first of a very select group that I chose to be my father.
I chose Pete to play this part when I was four and the post had suddenly been left vacant. I’d met him thanks to the very first album to come into my possession: Pete Seeger Sings to Children in Town’s Hall. The girl on the cover, perched next to him on a stool and looking up to him with rhapsodic interest—well, she, seemed like a proxy for me at the time. And Pete’s utterly authentic voice—wailing with the banjo or telling a rambling story tale continuing to strum nimbly on his 12-string guitar—spoke to me from the start—and reliably thereafter.
During the years while that daddy position on the home-front remained vacate, I collected a few other contenders for the role. Most notably, Atticus of To Kill a Mockingbird. But first and foremost among the Ideal Daddy Pantheon was and remained Pete. To this day, I keep a framed picture of him on my desk at home along with other family photos, the earnest, lovable standard by which all others were measured.
I did see him in person a few times--in concert, peak experiences to be sure. Especially memorable was the time when I was 7 or 8 when my mother took me to see him at the University of Houston where she was then a hippie graduate student. At the intermission, I was able to slip away while Mama was engrossed in conversation with friends. I ducked passed the security guard, ran back stage, and found Pete chatting with a group of African musicians who had joined him for part of the performance. Before the guard could catch up to me, I was able to secure an autograph on a napkin replete with his signature sketch of a banjo, a relic I carried around for years along with my Pete-heavy record collection—until the lot was destroyed in the flooded basement of my college boyfriend’s rental house.
Not long after the autograph-seeking episode, I decided to take action. I wrote Pete a long, gushy letter, taking care to remind him about our recent encounter. I sent it care of PBS headquarters in New York City since he had recently made a cameo appearance on Sesame Street (one of the first vehicles whereby he made it back on the air after years on the blacklist). I did my best to convey my eternal devotion to him. And he actually wrote me back! His tone, however, was all-business—for there was serious business to be done. He explained about the project they were undertaking up north called “Clearwater” to clean up the Hudson River that was then full of “garbage, garbage, garbage” just like the lyrics to one of my favorite songs of his from that period. In a postscript to his letter, he observed that in Houston, where he saw that I lived, there was a bayou running through the very heart of town that, as he understood it, could use some attention too. So he had included some pamphlets with his letter that explained all about how I might start organizing folks in the community to take action, see if Buffalo Bayou could become something other than a vile cesspool.
Since I was only 7 or 8 at the time, I didn’t get very far with that initiative. Or at least the fact of being 7 or 8 is my convenient excuse. Because I don’t think folks like Pete ever thought of anything—age, income, stature—as an insurmountable obstacle, as an excuse for inaction.
I thought about his refusal to accept any obstacle as immovable tonight while driving home from work. My job as a commercial litigator is not one that Pete would have disdained, because he was not the sort of person to have those kinds of petty emotions; but I suspect it is a job that he would have found a bit perplexing. But maybe it would have cheered him to know that a person engaged in such an unlikely pursuit can and often does easily conjure up his voice inside her head.
Without any concerted effort, tonight I heard him singing a verse that he had written as an addendum to Joni Mitchell’s “Both Sides Now.” According to his intro on whatever album it was (I once, but no longer, had most of them), he said that he had written the verse on the occasion of his 50th birthday. How apropos that that is precisely the age that I have achieved this year when he has left us. That synchronicity, as well as the verse’s content, made it a perfect choice for the occasion. The verse was dedicated to his biological daughter.  As I remember it, it went like this:
Daughter, daughter, don’t you know,
You’re not the first to feel just so.
Ah, let me say before I go,
It’s worth it anyway.
Someday we may all be surprise;
We’ll wake and open up our eyes.
Then we all will realize
The whole world feels this way.
We’ve all been living upside down and turned around with love unbound--
Until we turn and face the sun,
Yes, all of us, every one.


I see it now. That is what he was always trying to get us to do: turn and face the sun.

So I hope anyone who stumbles upon this post in search of some pithy (if occasionally strained) analogy between Shakespearean text and the practice of law will forgive this diversion. The impulse to make this confession and to pay tribute was just too strong, and I fear I had no other readily available outlet. Although I can think of some stirring father-daughter relationships in Shakespeare’s plays and an occasional father-daughter team in the law that I could have tried to pull together to make sense out of this post, the effort would have cheapened the moment. Besides, when a person has lost one of the only remaining ones whom she has loved the longest, complete coherence can hardly be expected.
What can be expected is an effort to heed Pete’s legacy of dogged optimism. As the NYTimes quoted him in its own tribute: “The key to the future of the world is finding the optimistic stories and letting them be known.”

Sunday, January 26, 2014


Usage expert Bryan Garner recently republished an article whose thesis can be summed up this way:  Lawyers have a hard time letting go of stylistic preferences even when evidence abounds that these preferences are wrong-headed or even counter-productive. Garner describes this syndrome as “mumpsimism.”

The OED defines “mumpsimism” as “an obstinate adherent of old ways, in spite of clear evidence of their error,” and suggests that the term comes from a story of an illiterate priest who, when told that the Latin term in the Eucharist that he was looking for was sumpsimus not mumpsimus, the priest replied in a huff, ‘I will not change my old mumpsimus for your new sumpsimus.”  
As an example of lawyers’ modern-day refusal to abandon mumpsimus for sumpsimus, Garner tells a story that features himself in the role of the illiterate priest. He describes how he had once dogmatically insisted on two spaces after every period; he then explains his painful conversion to the preferable one-space approach; and he finally concludes that: “Today I feel a very mild revulsion at seeing two spaces after a period. And slight pity. But I understand the strong feelings of those who persist.”
This story made me smile with the kind of pained recognition that can only come from looking too closely in the mirror.
When I started teaching legal writing, I announced to my students at some point that, although there were barbarians out there who were content with but one space between sentences, I was no such barbarian. Therefore, if they did not wish to make my skin crawl as I reviewed their research memos, they should commit themselves to ensuring that two spaces appeared after each and every period. I was not sure exactly why I felt so strongly about this convention. After all, I never took typing in high school. Indeed, I never really learned how to type—the proper way.  Gaining access to a computer at the dawn of the word-processing age, I’d never looked back; I’d simply become very adept at my own idiosyncratic approach (and exceedingly grateful for the “Backspace” key). But somewhere along the way, I got it into my head that two spaces after a period was de rigueur. So much so that, upon reviewing a document in which an author had “slipped up” and placed but one space between sentences, my eye would twitch and my lower track rumble.
Fast forward a few years. Thanks to a student here and a colleague there, I read articles about this typographic controversy and learned that the “two spaces” approach was totally Old School, and not in a good way. The convention had been called into question by those with more refined aesthetic sensibilities as a mere relic of the typewriter era, which, as I noted above, I’d never even occupied in the first place. Soon I was convinced that the Old-School approach really did impinge on a text’s readability. And with great pains to my kinesthetic memory, I made the adjustment, vowing thenceforth to use but one space after each period (and after each colon too, for good measure). I then humbly shared with my students my dawning awareness of the two camps, their conflicting, fiercely held convictions with respect to the RIGHT way to deal with this matter, and my own recent ideological conversion. I concluded by giving them the freedom to decide which camp with which to align themselves—with impunity—so long as they were consistent in implementing their choice because inconsistency was a thing that I most certainly could not tolerate.
Not long after making this humbling confession/concession, I returned to practicing law full-time. The very first feedback I received on a brief I wrote for another lawyer did not address the substance of my arguments, the resonance of my case illustrations, or the elegance of my rhetorical flourishes.  Oh no. The sole feedback I received was: “Please be sure to include two spaces after every period. Just one of those things that makes the practice of law go round.”
As I read this email, my eye twitched and my lower track rumbled.
The same day that I was revisiting these happy memories thanks to Garner’s article, I happened to hear a segment called “Two Guys on Your Head” on KUT radio.  In this piece, “Debunking Myths Behind Different Learning Styles,”  the two guys, professors Dr. Art Markman and Dr. Bob Duke, explain how the theory that people can be classified by learning style—visual learner, auditory learner, and what not—is a vast oversimplification.  Yet pedagogues and social scientists continue to insist on the idea’s validity. This seemed like another example of “mumpsimism” that I was being asked to confront!?
Yes, although the example is a tad more subtle.
It is true that there are different ways to go about learning something. And many of us may have ways we prefer to learn. I, for instance, have a much tougher time processing information conveyed aurally and vastly prefer seeing stuff spelled out for me in text.  But these two guys say that the misconception is not that different learning modes exist but in believing that a person can be classified as a type of learner. For in fact, we can all learn through different modalities. And the likelihood of learning something—anything—improves for most folks if we are exposed to concepts through more than one modality at a time. It is mumpsimism to continue to try to place individuals in boxes defined by a single learning modality because vast evidence shows that learning is almost always a multivalent phenomenon. Yet if one is a school administrator or a person seeking a Masters degree in Education, a really effective way to shake up some grant money might be a promise to explore “lesson plans tailored to distinct learning modalities to increase student success.”
All this talk of mumpsimism reminds me of a certain passage from Henry VI, Part 1, when Basset (of the House of Lancaster) and Talbot (of the House of York) “upbraid” each other “about the rose [they] wear” and then beg for permission to defend the honor of their respective houses by invoking “the benefit of law of arms.” King Henry, rather sanely, responds to these contentions thus: “Good Lord, what madness rules in brainsick men,/ When for so slight and frivolous a cause/ Such factious emulations shall arise! [IV.1.1876+]. Yet these "slight and frivolous" causes are the things that often seem most likely to make our eyes twitch, our lower tracks rumble, and our racing pulses demand vindication through the "law of arms." Why might that be?