tag:blogger.com,1999:blog-77105790589470012162024-03-13T21:31:45.739-05:00True Complaint--Shakespeare, Law, and Other WhimsiesGretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.comBlogger170125tag:blogger.com,1999:blog-7710579058947001216.post-52437153904222226302014-05-31T12:39:00.002-05:002014-05-31T12:39:54.122-05:00Like to the Lark<div class="MsoNormal">
<br /></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
Yet in these thoughts myself almost
despising,<o:p></o:p></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
Haply I think on thee, and then my state,<o:p></o:p></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
Like to the lark at break of day arising<o:p></o:p></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
From sullen earth, sings hymns at
heaven's gate;</div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
Thy sweet love remembered such wealth
brings</div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
That then I scorn to change my state with
kings.<o:p></o:p></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
<br /></div>
<div align="center" class="MsoNormal" style="margin-bottom: 0.0001pt; text-align: center;">
Sonnet 29</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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>I Know Why the Caged
Bird Sings</i>. 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. </div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
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.</div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
During this past week of tributes, I heard an excerpt from a
1986 interview Angelou gave to <i>Fresh Air</i>’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 20<sup>th</sup> 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).</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Now you understand<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Just why my head's not bowed.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
I don't shout or jump about<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Or have to talk real loud.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
When you see me passing<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
It ought to make you proud.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
I say,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
It's in the click of my heels,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
The bend of my hair,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
the palm of my hand,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
The need of my care,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
'Cause I'm a woman<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Phenomenally.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Phenomenal woman,<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
That's me.</div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal">
From “Phenomenal Woman” by Maya Angelou.</div>
<br />
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
RIP, Maya.</div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-12635651406819396312014-05-18T11:18:00.000-05:002014-05-18T11:18:40.188-05:00Missing the Metaphor<div style="text-align: center;">
Maturity can always be depended on. Ripeness can be trusted.</div>
<div style="text-align: center;">
Young women are green. I spoke horticulturally.</div>
<div style="text-align: center;">
My metaphor was drawn from fruits.</div>
<div style="text-align: center;">
<br /></div>
<div style="text-align: center;">
The “mature” Miss Prism to Dr. Chasuble, </div>
<div style="text-align: center;">
<em>The Importance of Being Earnest</em> by Oscar Wilde</div>
<br />
My husband said, “Hey, what’s with that last blog post? I thought you’d killed the thing off.”<br />
<br />
“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.”<br />
<br />
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.<br />
<br />
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.<br />
<br />
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:<br />
<br />
• “He’s still wet behind the ears.”<br />
• “She lives in East Jesus.”<br />
• “That just takes the cake.”<br />
• “They really hit a home run.”<br />
• “Surprisingly, that partner has a heart of gold.”<br />
• “Thank you so very much for saving my ass.”<br />
<br />
<em>See</em> George Lakoff and Mark Johnson, <em>Metaphors We Live By </em>for more on this fascinating topic.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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. <br />
<br />
Shakespeare captures this phenomenon rather delightfully in <em>Twelfth Night</em>. 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:<br />
<br />
SIR ANDREW AGUECHEEK (entering)<br />
Sir Toby Belch! how now, Sir Toby Belch! <br />
<br />
SIR TOBY BELCH <br />
Sweet Sir Andrew! <br />
<br />
SIR ANDREW AGUECHEEK (to Maria)<br />
Bless you, fair shrew. <br />
<br />
MARIA <br />
And you too, sir.<br />
<br />
SIR TOBY BELCH (aside to Aguecheek)<br />
Accost, Sir Andrew, accost. <br />
<br />
SIR ANDREW AGUECHEEK <br />
What's that? <br />
<br />
SIR TOBY BELCH <br />
My niece's chambermaid. <br />
<br />
SIR ANDREW AGUECHEEK <br />
Good Mistress Accost, I desire better acquaintance. <br />
<br />
MARIA <br />
My name is Mary, sir. <br />
<br />
SIR ANDREW AGUECHEEK <br />
Good Mistress Mary Accost,— <br />
<br />
SIR TOBY BELCH (aside to Aguecheek)<br />
You mistake, knight; 'accost' is front her, board her, woo her, assail her. <br />
<br />
SIR ANDREW AGUECHEEK <br />
By my troth, I would not undertake her in this company. Is that the meaning of 'accost'?<br />
<br />
MARIA <br />
Fare you well, gentlemen.<br />
<br />
SIR ANDREW AGUECHEEK <br />
And you part so, mistress, I would I might never draw sword again. Fair lady, do you think you have fools in hand? <br />
<br />
MARIA<br />
Sir, I have not you by the hand. <br />
<br />
SIR ANDREW AGUECHEEK <br />
Marry, but you shall have; and here's my hand. <br />
<br />
MARIA <br />
Now, sir, 'thought is free:' I pray you, bring your hand to the buttery-bar and let it drink. <br />
<br />
SIR ANDREW AGUECHEEK<br />
Wherefore, sweet-heart? what's your metaphor? <br />
<br />
MARIA <br />
It's dry, sir. <br />
<br />
SIR ANDREW AGUECHEEK <br />
Why, I think so: I am not such an ass but I can keep my hand dry. But what's your jest? <br />
<br />
MARIA <br />
A dry jest, sir. <br />
<br />
SIR ANDREW AGUECHEEK <br />
Are you full of them? <br />
<br />
MARIA <br />
Ay, sir, I have them at my fingers' ends: marry, now I let go your hand, I am barren.<br />
<br />
[Act I, scene 3]<br />
<br />
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.”<br />
<br />
Maybe some lawyers too could afford to ease up on the beef. <br />
<br />
Just sayin’.Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com2tag:blogger.com,1999:blog-7710579058947001216.post-73065915410276618992014-05-10T20:02:00.000-05:002014-05-10T20:04:45.945-05:00Strong Woman NumberThe title of this post comes from a song featured in a one-woman, quasi-autobiographical musical by another Gretchen (<i>I'm Getting My Act Together and Taking It on the Road</i> 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.” <br />
<br />
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 Café, 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.<br />
<br />
I am thinking about Gretchen Dyer today for several reasons.<br />
<br />
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.<br />
<br />
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. <i>See</i> http://www.utexas.edu/law/centers/cwil/make-a-gift-to-the-center/thanks/. 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.<br />
<br />
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 <i>Much Ado about Nothing</i>. 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. <br />
<br />
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.<br />
<br />
<br />
<br />
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-60081276671522179432014-04-27T17:57:00.002-05:002014-04-27T18:01:38.461-05:00Wasted<blockquote>
I wasted time, and now doth time waste me.<br />
<i>Richard II</i>, Act V, scene 5</blockquote>
<br />
Do you ever get the urge in the middle of the night to dig up a copy of T.S. Eliot’s <i>The Waste Land</i> because you are haunted by a phrase that you just can’t quite remember?<br />
<br />
No, not really?<br />
<br />
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 <i>Cosmos</i>, 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:<br />
<br />
<blockquote>
April is the cruellest month, breeding <br />
Lilacs out of the dead land, mixing <br />
Memory and desire, stirring <br />
Dull roots with spring rain.<br />
<br /></blockquote>
Specifically, it was that bit about “stirring dull roots with spring rain” that I could not remember. Ugh. <br />
<br />
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 <i>The Three Sisters</i>, “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. <br />
<br />
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 <i>The Waste Land </i>or how my panic was underscored by how aptly it resonated with Irina’s panic in <i>The Three Sisters</i>. 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 <i>The Tempest</i> 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.<br />
<br />
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. <i>Shantih shantih shantih.</i>Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-60913225469402032452014-04-25T18:19:00.001-05:002014-04-26T07:23:04.368-05:00“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!<br />
<br />
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 <a href="http://www.thestranger.com/seattle/ten-things-theaters-need-to-do-right-now-to-save-themselves/Content?oid=691862">Ten Things Theaters Need to Do Right Now to Save Themselves In No Particular Order </a>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. <br />
<br />
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.<br />
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.<br />
<br />
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. <br />
<br />
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.<br />
<br />
Let me hear from you--but not all five of you at the same time.Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-29784103147382419932014-04-07T14:24:00.003-05:002014-04-07T14:24:16.882-05:00Make ‘Em LaughThe 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 <a href="https://www.youtube.com/watch?v=SND3v0i9uhE">Singing in the Rain</a>. Go on: I dare you to clink on the hyperlink and go one full minute without smiling. <br />
<br />
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.<br />
<br />
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.<br />
<br />
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 . . .<br />
<br />
. . . must observe their mood on whom he jests,<br />
The quality of persons, and the time,<br />
And, like the haggard, cheque at every feather<br />
That comes before his eye. This is a practise<br />
As full of labour as a wise man's art<br />
For folly that he wisely shows is fit;<br />
But wise men, folly-fall'n, quite taint their wit.<br />
<br />
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 <a href="http://claudeducloux.com/">Claude Ducloux</a>. 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.<br />
<br />
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.<br />
<br />
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 <i><a href="http://www.davebarry.com/misccol/misccol.htm">that </a></i>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., <a href="https://www.youtube.com/watch?v=7Zp8w9-BTCo">https://www.youtube.com/watch?v=7Zp8w9-BTCo</a>. <br />
<br />
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. <br />
<br />
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.<br />
<br />Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-8871692631835057222014-03-28T14:20:00.000-05:002014-03-28T14:20:15.111-05:00Shakespeare as a WeaponThe croaking raven doth bellow for revenge.<br />
Hamlet (III.2.250)<br />
<br />
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.<br />
<br />
Poetic justice, indeed.<br />
<br />
Of course, Shakespeare himself had plenty to say about revenge. <i>Hamlet</i>, <i>Othello</i>, <i>Merchant of Venice</i>, <i>Titus Andronicus</i> 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 (<i>Hamlet</i>) and illegitimate ones (<i>Othello</i>)—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. <i>See The Tempest</i>.<br />
<br />
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.<br />
<br />
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.<br />
<br />
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.) <br />
<br />
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:<br />
<br />
. . .you unnatural hags,<br />
I will have such revenges on you both,<br />
That all the world shall--I will do such things,-- <br />
What they are, yet I know not: but they shall be <br />
The terrors of the earth. <br />
<br />
<i>King Lear </i>(II.4.305-9)Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-26781637531515395872014-03-09T15:46:00.001-05:002014-03-09T15:46:17.488-05:00Winning Arguments
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">Hamlet</i>, 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.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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?<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Seriously, lawyers are supposed to try to win arguments.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">he</i> can escape
the guilty conscience that surely must be plaguing him and redeem his sorry excuse
for a life is for <i style="mso-bidi-font-style: normal;">him </i>“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 <i style="mso-bidi-font-style: normal;">Oklahoma!</i> 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.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">See</i> “</span><a href="http://www.youtube.com/watch?v=YmLw4Q4KaFI"><span style="color: blue; font-family: Calibri;">Pore Jud Is Daid</span></a><span style="font-family: Calibri;">” 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.”<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">What evidence does Alex have to support the contention that
Hamlet:Claudius::Curly:Jud?</span><o:p><span style="font-family: Calibri;"> </span></o:p></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Alex says “Hamlet doesn’t use the first-person singular in the entire
speech.”</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Okay. Certainly another interesting observation. For this fact does
distinguish this soliloquy from, say, the “O, what a rogue and peasant slave am
<b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">I</i></b>!”
soliloquy, in which Hamlet compares himself (unfavorably) to an actor
delivering “Aeneas’ tale to Dido.” That soliloquy is replete with the word “I,”
<i style="mso-bidi-font-style: normal;">e.g.</i>:</span></div>
<br />
<ul style="margin-top: 0in;" type="disc">
<li class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-list: l0 level1 lfo1;"><span style="font-family: Calibri;">What would he do,/ Had he the motive and
the cue for passion/ That <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b> have? </span></li>
<li class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-list: l0 level1 lfo1;"><span style="font-family: Calibri;">Yet <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b>,/ A dull and
muddy-mettled rascal, peak,/ Like John-a-dreams, unpregnant of my cause,/ And
can say nothing; </span></li>
<li class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-list: l0 level1 lfo1;"><span style="font-family: Calibri;">Am <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b> a coward?</span></li>
<li class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-list: l0 level1 lfo1;"><span style="font-family: Calibri;">'Swounds, <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b> should take
it: for it cannot be/ But <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b> am pigeon-liver'd and
lack gall/ To make oppression bitter, or ere this/ <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b> should have
fatted all the region kites/ With this slave's offal: bloody, bawdy
villain!</span></li>
<li class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; mso-list: l0 level1 lfo1;"><span style="font-family: Calibri;">Why, what an ass am <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b>! This is
most brave,/ That <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;"><u>I</u></i></b>, 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!</span></li>
</ul>
<span style="font-family: Calibri;">And so forth.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">What’s wrong with the Alex Hypothesis?</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Let me count the ways!</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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?</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In short, I do not feel that my husband’s creative suggestion accounts
for the textual evidence very well.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Of course, there is <i style="mso-bidi-font-style: normal;">some</i>
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.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">But if one believes that Hamlet suspects he is being spied upon <i style="mso-bidi-font-style: normal;">as</i> 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.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">after </i>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. </span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Do I have any more proof than this “longed long to” bit?</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">But of course!</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><span style="mso-tab-count: 1;"> </span>My
honour'd lord, you know right well you did;</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>And,
with them, words of so sweet breath composed</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"> As made the things more rich: their perfume lost,</span></div>
<span style="font-family: Calibri;"><span style="font-family: Times New Roman;"> </span>Take these again; for to the noble mind</span><br />
<span style="font-family: Calibri;"> Rich gifts wax poor when givers prove unkind.</span><br />
<span style="font-family: Calibri;"> There,
my lord.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<o:p><span style="font-family: Calibri;"> </span></o:p><span style="font-family: Calibri;">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:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<span style="font-family: Calibri;">That if you be honest and fair, your honesty should</span><br />
<span style="font-family: Calibri;">admit no discourse to your
beauty.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<span style="font-family: Calibri;">Could beauty, my lord, have better commerce than</span><br />
<span style="font-family: Calibri;">with honesty?</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<span style="font-family: Calibri;">Ay, truly; for the power of beauty will sooner</span><br />
<span style="font-family: Calibri;">transform honesty from what it
is to a bawd than the</span><br />
<span style="font-family: Calibri;">force of honesty can translate
beauty into his</span><br />
<span style="font-family: Calibri;">likeness: this was sometime a
paradox, but now the</span><br />
<span style="font-family: Calibri;">time gives it proof. </span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET</span></div>
<span style="font-family: Calibri;">. . . . I did love you once.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<span style="font-family: Calibri;">Indeed, my lord, you made me believe so.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<span style="font-family: Calibri;">You should not have believed me; for virtue cannot</span><br />
<span style="font-family: Calibri;">so inoculate our old stock but
we shall relish of</span><br />
<span style="font-family: Calibri;">it: I loved you not.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<span style="font-family: Calibri;">I was the more deceived.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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!”</span><o:p><span style="font-family: Calibri;"> </span></o:p></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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.”</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">what</i>
that message is and <i style="mso-bidi-font-style: normal;">when</i> 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.<span style="mso-spacerun: yes;"> </span>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. . . . </span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">P.S. Special thanks to Husband Alex for being such a good sport about
things generally.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-11384110925900589692014-03-02T20:39:00.003-06:002014-03-04T15:13:00.365-06:00You Say “Viola” I say “Viola”<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">Twelfth
Night</i>. They call her “VI-o-la” whereas we Yanks tend to say “Vee-OH-la.” And
they do the same thing with <i style="mso-bidi-font-style: normal;">Winter’s Tale’s</i>
“Perdita,” by pronouncing it “PER-di-tah.”<span style="mso-spacerun: yes;">
</span>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
<i style="mso-bidi-font-style: normal;">off</i>. That is, saying certain words “the
wrong way” in certain circles can be a symbol of pitiable ignorance.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">An example of this phenomenon in legal circles has to do
with the “proper” way to say “<i style="mso-bidi-font-style: normal;">voir dire</i>.”</span><a href="https://www.blogger.com/editor/static_files/blank_quirks.html#_ftn1" name="_ftnref1" style="mso-footnote-id: ftn1;" title=""><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="font-family: "Calibri","sans-serif"; font-size: 11pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="color: blue;">[1]</span></span></span></span></span></a><span style="font-family: Calibri;">
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 <i style="mso-bidi-font-style: normal;">voir dire</i> 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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">conventions </i>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’ “</span><a href="http://www.youtube.com/watch?v=J2oEmPP5dTM"><span style="color: blue; font-family: Calibri;">Let’s Call the Whole Thing Off</span></a><span style="font-family: Calibri;">”
is a timeless standard. <span style="mso-spacerun: yes;"> </span>Some differences
in pronunciation, though not inherently wrong, offend so much as to risk condemnation
as a “No Nothing.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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? </span></div>
<span style="font-family: Calibri;">Beats me.</span><br />
<br />
<span style="font-family: Calibri;">But, undoubtedly, using what is perceived as an “incorrect”
pronunciation convention is serious business, a proxy for judgments regarding
another’s deeper inadequacy.</span><br />
<span style="font-family: Calibri;"></span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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. </span></div>
<br />
<div style="mso-element: footnote-list;">
<br />
<hr align="left" size="1" width="33%" />
<div id="ftn1" style="mso-element: footnote;">
<div class="MsoFootnoteText" style="margin: 0in 0in 10pt;">
<a href="https://www.blogger.com/editor/static_files/blank_quirks.html#_ftnref1" name="_ftn1" style="mso-footnote-id: ftn1;" title=""><span class="MsoFootnoteReference"><span style="mso-special-character: footnote;"><span class="MsoFootnoteReference"><span style="font-family: "Calibri","sans-serif"; font-size: 10pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><span style="color: blue;">[1]</span></span></span></span></span></a><span style="font-family: Calibri; font-size: x-small;"> <i style="mso-bidi-font-style: normal;">Voir dire</i> 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.</span></div>
</div>
</div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-88981486929202099942014-02-25T22:02:00.002-06:002014-02-26T06:25:20.676-06:00Navel Gazing<span style="font-family: "Calibri","sans-serif"; font-size: 11pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;"><span style="font-family: Times New Roman; font-size: small;">
</span>“Anonymous” left a disconcerting comment on this blawg in
response to a post commemorating my attachment to the late <a href="http://truecomplaintshakespearelaw.blogspot.com/2014/01/goodnight-my-pete-goodnight.html"><span style="color: blue;">Pete
Seeger</span></a>. The disconcerting part had to do with my belly button, allegedly
observed by a person who claims to have once studied philosophy with me.<span style="mso-spacerun: yes;"> </span></span><br />
<span style="font-family: "Calibri","sans-serif"; font-size: 11pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;"><span style="mso-spacerun: yes;"></span> </span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.<span style="mso-spacerun: yes;"> Upon reflection, I recall that I did </span>expose said belly button twice
on stage during that same period. </div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
One production was a compendium of original shorts by Dallas-area
playwrights called <i style="mso-bidi-font-style: normal;">Local Eccentricities</i>.
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.<span style="mso-spacerun: yes;"> </span>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.</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.<span style="mso-spacerun: yes;"> </span>It was a production of
Euripides’ <i style="mso-bidi-font-style: normal;">The Bacchae</i> 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.<span style="mso-spacerun: yes;"> </span>(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.<span style="mso-spacerun: yes;"> </span>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.</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.”<span style="mso-spacerun: yes;"> </span>[<i style="mso-bidi-font-style: normal;">Midsummer</i>, II.1]</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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 <i style="mso-bidi-font-style: normal;">prefer</i>
to keep covered up. <i style="mso-bidi-font-style: normal;">See </i><a href="http://abovethelaw.com/"><span style="color: blue;">Above the Law</span></a>.<span style="mso-spacerun: yes;"> </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.<span style="mso-spacerun: yes;"> </span>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. </div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
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.<span style="mso-spacerun: yes;"> </span>Or,
as the pickpocket Autolycus explains in Shakespeare’s <i style="mso-bidi-font-style: normal;">Winter’s Tale</i>, to have integrity, the decision to conceal or to disclose should resonate with one’s professional affiliation:</div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
The prince himself is about a piece of </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
iniquity, stealing away from his father with his </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
clog at his heels: if I thought it were a piece of </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
honesty to acquaint the king withal, I would not </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
do't: I hold it the more knavery to conceal it; </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
and therein am I constant to my profession.</div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
[IV.4]</div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-76624913621802054752014-02-19T21:29:00.005-06:002014-02-19T21:29:58.559-06:00Wanton Sentences<div style="text-align: center;">
<span style="font-family: Calibri;">She puts the period often from his place;</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">And midst the sentence so her accent
breaks,</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">That twice she doth begin ere once she
speaks.</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">The
Rape of Lucrece</i>, Stanza 81</span><o:p><span style="font-family: Calibri;"> </span></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">The “PrawfsBlawg” is currently hosting a </span><a href="http://prawfsblawg.blogs.com/prawfsblawg/2014/02/on-the-lighter-side-diagram-this.html"><span style="color: blue; font-family: Calibri;">contest</span></a><span style="font-family: Calibri;">.
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 <i style="mso-bidi-font-style: normal;">Cooley v. Board of Wardens</i>:</span></div>
<div class="MsoNormal" style="margin: 0in 0.5in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">Cooley </i>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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Okay, so what? The point of this post is offensive sentences,
not offenses to the Constitution.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">This 91-word monstrosity from <i style="mso-bidi-font-style: normal;">Cooley</i> 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.</span></div>
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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. </span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">I admit that I continue to struggle with offensive
sentences, constructions bloated beyond measure. I attribute this tendency to a
childhood spent reading 19<sup><span style="font-size: x-small;">th</span></sup> 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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">results</i></b> of these
deep-seated impulses while reviewing and revising my legal work.<span style="mso-spacerun: yes;"> </span>Because, ultimately, I’ve accepted that the
impulse runs counter to the goal of effective communication.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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. <i style="mso-bidi-font-style: normal;">See </i>excerpt,
<i style="mso-bidi-font-style: normal;">supra</i>, <i style="mso-bidi-font-style: normal;">Cooley v. Board of Wardens</i>, 53 U.S. 299 (1851).</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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 <i style="mso-bidi-font-style: normal;">Twelfth Night</i>, says:<span style="mso-spacerun: yes;"> </span>“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.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">So let’s have no wanton dallying with words such that our
sentences disgrace us.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">P.S. Special thanks
to Kasia for the inspiration.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-8110556689091989572014-01-30T23:41:00.002-06:002014-01-30T23:41:40.970-06:00Goodnight, My Pete, Goodnight<div style="text-align: center;">
<span style="font-family: Calibri;">The remembrance of her father never
approaches</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">her heart but the tyranny of her sorrows
takes all</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">livelihood from her cheek.</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">All’s
Well That Ends Well</i>, I.1</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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] </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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: <i style="mso-bidi-font-style: normal;">Pete Seeger
Sings to Children in Town’s Hall</i>. 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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">To Kill a Mockingbird</i>. 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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">Sesame
Street</i> (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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 50<sup><span style="font-size: x-small;">th</span></sup>
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.<span style="mso-spacerun: yes;"> </span>As I remember it, it went like
this:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Daughter, daughter, don’t you know,</span></div>
<span style="font-family: Calibri;">You’re not the first to feel just so.</span><br />
<span style="font-family: Calibri;">Ah, let me say before I go,</span><br />
<span style="font-family: Calibri;">It’s worth it anyway.</span><br />
<span style="font-family: Calibri;">Someday we may all be surprise;</span><br />
<span style="font-family: Calibri;">We’ll wake and open up our eyes.</span><br />
<span style="font-family: Calibri;">Then we all will realize</span><br />
<span style="font-family: Calibri;">The whole world feels this way.</span><br />
<span style="font-family: Calibri;">We’ve all been living upside down and turned around with love unbound--</span><br />
<span style="font-family: Calibri;">Until we turn and face the sun,</span><br />
<span style="font-family: Calibri;">Yes, all of us, every one.</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Sigh.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">I see it now. That is what he was always trying to get us to do: turn
and face the sun.</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">What can be expected is an effort to heed Pete’s legacy of dogged
optimism. As the <i style="mso-bidi-font-style: normal;"><a href="http://www.nytimes.com/2014/01/29/arts/music/pete-seeger-songwriter-and-champion-of-folk-music-dies-at-94.html?_r=0"><span style="color: blue;">NYTimes</span></a></i>
quoted him in its own tribute:<span style="mso-ansi-language: EN;"> <span lang="EN">“The key to the future of the world is finding the optimistic stories
and letting them be known.”</span></span></span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-42093975646733179972014-01-26T21:25:00.000-06:002014-01-26T21:25:01.147-06:00Mumpsimism
<span style="font-family: Calibri;"><span style="font-family: Times New Roman;">U</span>sage expert Bryan Garner recently republished </span><a href="http://www.abajournal.com/magazine/article/4_vignettes_lead_to_a_single_moral_about_writing_better_briefs?utm_source=maestro&sc_cid=140122BD&utm_campaign=default_email&utm_medium=email"><span style="color: blue; font-family: Calibri;">an
article</span></a><span style="font-family: Calibri;"> whose thesis can be summed up this way: <span style="mso-spacerun: yes;"> </span>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.” </span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">sumpsimus</i> not <i style="mso-bidi-font-style: normal;">mumpsimus</i>, the
priest replied in a huff, ‘I will not change my old mumpsimus for your new
sumpsimus.” <span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">As an example of lawyers’ modern-day refusal to abandon <i style="mso-bidi-font-style: normal;">mumpsimus </i>for <i style="mso-bidi-font-style: normal;">sumpsimus</i>, 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.” </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">This story made me smile with the kind of pained recognition
that can only come from looking too closely in the mirror.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;">
</span>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 <i style="mso-bidi-font-style: normal;">de rigueur</i>. 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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">consistent</i></b> in implementing their choice because inconsistency was
a thing that I most certainly could not tolerate.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">As I read this email, my eye twitched and my lower track rumbled.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>In this piece, “</span><a href="http://kut.org/term/two-guys-your-head"><span style="color: blue; font-family: Calibri;">Debunking Myths Behind Different
Learning Styles</span></a><span style="font-family: Calibri;">,”<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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!?</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Yes, although the example is a tad more subtle.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">a </i></b>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.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">All this talk of mumpsimism reminds me of a certain passage
from <i style="mso-bidi-font-style: normal;">Henry VI</i>, <i style="mso-bidi-font-style: normal;">Part 1</i>, 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?</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com2tag:blogger.com,1999:blog-7710579058947001216.post-86600992834855516102014-01-23T18:28:00.000-06:002014-01-23T18:28:08.806-06:00Gallop apace<span style="font-family: Calibri;">Recently, I was watching a bit of the BBC’s heroic, if rather
dated, 15-part production of Shakespeare’s history plays—available on Netflix
for all those anxious to devote the better part of a decade to watching. It was
originally broadcast in 1960, back when Judi Dench, one of the series’ many
stars, was a mere lass. I was watching snippets of this production as a
consolation prize. Sadly, at present I am unable to pop over to
Stratford-upon-Avon to see staged productions of the history plays that
commenced during the Winter 2013 season with a new production of <i style="mso-bidi-font-style: normal;">Richard II</i>.<span style="mso-spacerun: yes;"> </span>Also, I have not yet seen the new BBC film
adaptations of some of these same plays—<i style="mso-bidi-font-style: normal;">Richard
II</i>, <i style="mso-bidi-font-style: normal;">Henry IV, Part 1</i>, <i style="mso-bidi-font-style: normal;">Henry IV, Part 2</i>, and <i style="mso-bidi-font-style: normal;">Henry V</i>—being aired as part of PBS’s
“Great Performances” series under the title of <i style="mso-bidi-font-style: normal;">The Hollow Crown</i>.<span style="mso-spacerun: yes;"> </span>(Some I
missed; some haven’t even aired yet.) </span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">I know, I know: this intro does no more than establish that
I am a Super Nerd, and an antiquated one at that. But here is what struck me as
I was watching the quaint, black-and-white, video-taped stage productions: I
was reminded why the Brits do such a better job with the Bard than Amuricans
do. The reason is two-fold: diction and pace.<span style="mso-spacerun: yes;">
</span>Perhaps this seems obvious, but I will explain myself anyway.</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Diction—as in: clear enunciation of one’s words—helps
animate Shakespearean text because, after all, the text is rather dense. Lots
and lots of words involved. If you cannot make out what the actors are saying,
you have little hope of understanding them. And most of what makes the plays
beautiful is a function of the language itself; plot and character are
compelling, but really only play a supporting role.<span style="mso-spacerun: yes;"> </span>When it comes to diction, most British actors
start out way ahead of their American counterparts. Let’s face it, unless they
begin life in some god-forsaken place like Lancashire or London’s East End,
they sound prettier than we do on this side of the pond without any training
whatsoever. Those who want to be actors then devote a lot more time working on
their speech than American actors do.<span style="mso-spacerun: yes;">
</span>They train their voices as intently as professional musicians train on their
instruments and athletes train their bodies. By contrast, most American actors
focus on the mere surface itself (appearance) and/or the deep psyche, ignoring
the middle ground that involves drilling things like diction.</span></div>
<span style="font-family: Calibri;">Pace—as in: going fast—also helps animate Shakespearean text
by making it approachable, if not exactly naturalistic. If a person takes too
long to get through a sentence, the listener is more likely to get lost—even if
one’s diction is superb.<span style="mso-spacerun: yes;"> </span>That is, even
if one speaks slowly out of reverence for the poetry, the language seems
ponderous and inordinately theatrical.<span style="mso-spacerun: yes;">
</span>The poetic form is theatrical enough as it is.<span style="mso-spacerun: yes;"> </span>So a good actor “plays the opposite,” working
to make the unnatural seem as natural as possible by allowing the words to flow
trippingly off the tongue.<span style="mso-spacerun: yes;"> </span>As with
diction, being able to speak “apace” requires physical dexterity.<span style="mso-spacerun: yes;"> </span>But this skill also requires mental
dexterity, knowing what you are saying so well—not just the words but what they
mean—so that you don’t have to take time to think through lines as they are
uttered. For as we all know, in the real world, much of human speech comes
right out of people’s mouths without much of a filter.<span style="mso-spacerun: yes;"> </span>If you can “see” an actor thinking through
his lines, he is not entirely “in the moment.”<span style="mso-spacerun: yes;">
</span>Working really hard on pace allows actors to give the impression that
they aren’t working at speaking at all—which makes for a more convincing
performance.</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">I am not suggesting that performing Shakespearean text
effectively can be reduced to a mere formula:<span style="mso-spacerun: yes;">
</span>just enunciate well while racing through all of your lines at a
breakneck pace, then you’ll be great.<span style="mso-spacerun: yes;">
</span>But as a mechanical starting point, excellent diction and the capacity
to speak the lines as fast as one would “ordinary speech,” in my view, are two
phenomena that explain why British actors are more likely to perform
Shakespeare effectively than even some of the very best American actors.<span style="mso-spacerun: yes;"> </span>The latter tend to be simultaneously too
sloppy and too reverential with the words.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">Compare</i> John Stewart
as John of Gaunt: </span><a href="http://www.youtube.com/watch?v=KuOvKOIGC0w"><span style="color: blue; font-family: Calibri;">http://www.youtube.com/watch?v=KuOvKOIGC0w</span></a></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">to </i>Al Pacino as
Shylock: </span><a href="http://www.youtube.com/watch?v=T_5adzpdkdw"><span style="color: blue; font-family: Calibri;">http://www.youtube.com/watch?v=T_5adzpdkdw</span></a><span style="font-family: Calibri;">
</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Sorry, Al. I love ya but. . . . Although both of these
performances are fraught with passion, I suggest that the first is far more
masterful because the passion is supported by both beautiful diction <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">and</i></b>
a brisk pace.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">So, okay, like, uhm, lawyers do a lot of speaking too. They
speak to clients, co-counsel, opposing counsel; occasionally, they speak in
court to judges or jurors. And, I suspect, most lawyers—even those lucky few
who spend a great deal of time speaking in public, as opposed to private,
arenas—spend little or no time thinking about their diction or pace. Arguably,
paying attention to such things would be really useful to those folks because,
on the most basic level, lawyers, like actors, are in the communication
business.<span style="mso-spacerun: yes;"> </span>But even if we treat diction
and pace as metaphors, not just as descriptions relevant solely to the act of
speaking, it should be obvious that lawyers can benefit from giving them some
attention.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">“Good Diction” could mean committing to precision when articulating
an argument, describing a legal proposition, telling a client’s story, giving
advice, setting up client expectations.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">“Good Pacing” could mean being as efficient as possible when
preparing a legal strategy, conducting legal research, drafting legal briefs,
shifting through a sea of largely irrelevant documents,<span style="mso-spacerun: yes;"> </span>responding to professional emails about the
status of things that are making others anxious.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">At the same time, just as lawyers can’t do any of the things
that lawyers are hired to do well if their diction is sloppy and their pace is
sluggish, they also can’t thrive when their diction is too precious and their
pace too frenzied.<span style="mso-spacerun: yes;"> </span>But we can take this
hint from the Brits when performing the Bard: doing the underlying work that
makes clear diction and effective pacing possible may mean better results than
worrying only about surfaces and/or deep truths. </span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-44429235886792485832013-12-30T18:01:00.002-06:002013-12-30T18:01:35.475-06:00Like Magic<div style="text-align: center;">
<span style="font-family: Calibri;">If this be magic, let it be an art</span></div>
<div style="text-align: center;">
<span style="font-family: Calibri;">Lawful as eating.</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;"><i style="mso-bidi-font-style: normal;">Winter’s
Tale</i>, V.3</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">There I was, Prospero like, threatening to “break my staff,
bury it certain fathoms in the earth, and deeper than did ever plummet sound … drown
my book” and thereby abandon blogging.<span style="mso-spacerun: yes;">
</span>Then, two kind souls immediately stepped up to give me solace. That same
day, quite by accident, I found out that a theater in town was offering a
one-time screening of the current Royal Shakespeare Production of <i style="mso-bidi-font-style: normal;">Richard II</i>, the very play that was among
the subjects of my last, somewhat despondent post. But when I tried to buy
tickets to the screening, I found that it was sold out—which I saw as even
better news than that of the screening itself! </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Here was a flurry of signs indicating that affection for
things Shakespearean still abounds.<span style="mso-spacerun: yes;"> </span>And
that sense of magical synchronicity fueled my spirit.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Seeing “signs” and synchronicities in things is a
recalcitrant human instinct, even in the most stalwartly skeptical rationalist.
We just can’t help ourselves. Because magic feels good. We flock to see the
latest <i style="mso-bidi-font-style: normal;">Hobbit</i> movie to revel in the
fanciful. We seek out coincidences that inject some enchantment into the humdrum.
We impose patterns on random events and, in doing so, make the random seem more
vital and, paradoxically, <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">more real</i></b>.<span style="mso-spacerun: yes;"> </span>Like Helena in <i style="mso-bidi-font-style: normal;">All’s Well That Ends Well</i>, believing that things are written in the
stars somehow instills optimism, an irrational fortress against (more sane) feelings
of depression:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And ever shall </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">With true observance seek to eke out that </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Wherein toward me my homely stars have fail'd </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">To equal my great fortune.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">[II.5]</span></div>
<br />
<span style="font-family: Calibri;">Lawyers, by contrast, abjure magic. They do not believe in trusting
much of anything to the hands of fate. Every statement is laden with definitions,
qualifiers, and seemingly gratuitous synonyms so that no nuance is left to the
imagination.</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">For instance, Lawyer No. 1 says, “Y, please produce any and
all documents in your possession, custody, and/or control related to or
regarding x, including but not limited to, all documents than mention a,b,c.”<span style="mso-spacerun: yes;"> </span>Then, to be sure that nothing is left to the
imagination, Lawyer No. 1 notes that “the word ‘document(s)’ means any matter
described in Federal Rule of Civil Procedure 34(a) and is used in its customary
broad sense and includes all written, typed, printed, recorded or graphic
statements, communications or other matter, however produced or reproduced, and
whether or not now in existence, in your possession, custody or control,
including without limitation:<span style="mso-spacerun: yes;"> </span>all
writings; emails; studies; analyses, tabulations; evaluations; reports;
reviews; agreements; contracts; communications; including intra-company
communications; letters or other correspondence; messages; telegrams; telexes;
cables; memoranda; records; notes; reports; summaries; sound recordings or
transcripts of personal or telephone conversations; meetings; conferences or
interviews; telephone toll records; diaries; desk calendars; appointment books;
forecasts; accountants' work papers; drawings; graphs; charts; maps; diagrams;
blueprints; tables; indices; pictures; photographs; films; phonograph records;
tapes; microfilm; microfiche; charges; ledgers; accounts; cost sheets;
financial statements or reports; statistical or analytical records; minutes or
records of board of directors, committee or other meetings or conferences;
reports or summaries of investigations; opinions or reports or summaries of
investigations; opinions or reports of consultants; appraisals; reports or
summaries of negotiations; books; brochures; pamphlets; circulars; trade
letters; press releases; newspaper and magazine clippings; stenographic,
handwritten or any other notes; notebooks; projections; working papers; checks,
front and back; check stubs or receipts; invoice vouchers; tape data sheets or
data processing cards and discs or any other written, recorded, transcribed,
punched, taped, filed or graphic matter, however produced or reproduced; and
any other document, writing or other data compilation of whatever description,
including but not limited to any information contained in any computer although
not yet printed out or the memory units containing such data from which
information can be obtained or translated into reasonable usable form, and all
drafts and non-identical copies of the foregoing.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">You think I exaggerate? Ha!</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Moreover, in response, Lawyer No. 2 responds, “Y objects to this request as
overly broad, vague, ambiguous, and unduly burdensome.<span style="mso-spacerun: yes;"> </span>Y further objects that, in any event, the
request is duplicative of documents that must be produced pursuant to Federal
Rule of Civil Procedure 26(a).<span style="mso-spacerun: yes;"> </span>Y further
objects to the extent that this request seeks any documents protected by any
applicable privilege, including, but not necessarily limited to, the attorney-client
privilege, attorney work-product privilege, the trade secret privilege--” and
so forth.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">There is no magic whatsoever in drafting either requests for
or responses to formal document requests made by one lawyer to another in a
lawsuit.<span style="mso-spacerun: yes;"> </span>The whole point is to minimize
the ability to engage in free association, to proceed based on trust, to hope
for the best.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-72941611739899429022013-12-24T15:05:00.001-06:002013-12-24T15:05:41.457-06:00O Henry
<span style="font-family: Calibri;">Henry Bolinbroke, who becomes Henry IV, is featured in three of
Shakespeare’s plays, two of which even bear his name. But Henry isn’t the main
character in any of these plays. He seems more an instrument of others’ fates—first
the fate of Richard II, then of his son, the future Henry V.<span style="mso-spacerun: yes;"> </span></span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">More specifically:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">As Henry orchestrates a plan to overthrow the ineffectual, foppish King
Richard, Henry is a foil for Richard’s transformation into an eloquent, tragic
hero finally capable of keen insights. Only after Henry has laid low the
slightly contemptible Richard and he is confined to a prison cell does the
latter become a philosopher:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">RICHARD III</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">I have been studying how I may compare</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">This prison where I live unto the world:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And for because the world is populous</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And here is not a creature but myself,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">I cannot do it; yet I'll hammer it out.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">My brain I'll prove the female to my soul,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">My soul the father; and these two beget</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">A generation of still-breeding thoughts,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And these same thoughts people this little world,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In humours like the people of this world,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">For no thought is contented.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">[V.5]</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">So insightful now—all thanks to Henry and his machinations.</span><o:p><span style="font-family: Calibri;"> </span></o:p></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Then, in <i style="mso-bidi-font-style: normal;">Henry IV Parts 1 & 2</i>,
Henry exists to play counterpoint to his son, Prince Hal, whose journey through
these two plays is a classic coming-of-age story, which culminates in his
super-rousing ascendency in <i style="mso-bidi-font-style: normal;">Henry V</i>.<span style="mso-spacerun: yes;"> </span>In the plays named after Henry IV, the
dad/king spends most of his time on stage anguishing over two distinct forces:
the various rebels trying to take the crown away from him and the profligate
passions that possess his son and incline young Hal to disdain all that his
father believes he is fighting for. When Henry IV finally seems to be getting
the upper hand over the rebel forces at least, he falls ill. Then, as he languishes
in limbo between life and death, he is affronted by his son who, having had the
decency to come home in time to pay his last respects, ends up offending dear
old dad by playing dress-up with dad’s crown when Hal thinks dad has drifted
off—to sleep or to something more permanent:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">PRINCE HAL</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">My gracious lord! my father!</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">This sleep is sound indeed, this is a sleep</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">That from this golden rigol hath divorced</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">So many English kings. Thy due from me</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Is tears and heavy sorrows of the blood,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Which nature, love, and filial tenderness,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Shall, O dear father, pay thee plenteously:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">My due from thee is this imperial crown,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Which, as immediate as thy place and blood,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Derives itself to me. Lo, here it sits,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Which God shall guard: and put the world's whole strength</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Into one giant arm, it shall not force</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">This lineal honour from me: this from thee</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Will I to mine leave, as 'tis left to me.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">After this pretty speech, Hal exits with the crown. And while the
speech is pretty and certainly shows some affection for the dying dad, Henry
does not hear it.<span style="mso-spacerun: yes;"> </span>All he knows is that,
when he, who is not dead yet, wakes up, his crown is missing. After he learns that
Hal is the one who took it, Henry spends some of his last moments chastising
his boy for being in too great a hurry to assume power.<span style="mso-spacerun: yes;"> </span>In short, Henry can’t even feel good about
the fact that his son may have abandoned his shameful ways at last because the
boy also seems a bit too keen to claim the crown that he had, hithertofore,
shown so little interest in earning.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Poor Henry. He never catches a break: he overthrows a king only to
become the target of others’ plots; he vanquishes his competitors only to fall fatally
ill; his prodigal son comes home, only to raid the family jewels. And he feels
every irony to the core. In this, he stands for one really profound phenomenon:
the elusive nature of pure joy. </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"></span> </div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Henry gives voice to this profundity just after he learns that the last
rebels have finally been overthrown, knowing that his own body is now failing
him:</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">KING HENRY IV </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And wherefore should this good news make me sick?</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Will fortune never come with both hands full,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">But write her fair words still in foulest letters?</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">She either gives a stomach and no food;</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Such are the poor, in health; or else a feast</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">And takes away the stomach; such are the rich,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">That have abundance and enjoy it not.<o:p></o:p></span></div>
<span style="font-family: Calibri;">I should rejoice now at this happy news;<o:p></o:p></span><br />
<span style="font-family: Calibri;">And now my sight fails, and my brain is giddy:<o:p></o:p></span><br />
<span style="font-family: Calibri;">O me! come near me; now I am much ill.</span><br />
<span style="font-family: Calibri;">[<i style="mso-bidi-font-style: normal;">Part 2</i>, V.4]</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">“Will Fortune never come with both hands full?!”—with that line, Henry
captures something truly poignant about the human condition. How often, just as
you attain something for which you have long striven, do you find that you are
not quite in a position to enjoy it? That challenge is one reason why the
holidays can be peculiarly taxing for grown-ups. Life does not readily permit a
person to experience a whole season of unmitigated glee. And the more living
one has under one’s belt the harder it is to cabin off the sad stuff just
because Santa may be on his way. Henry the foil is the one who gives voice to
this terribly real existential frustration: the difficulty of pure, sustained
happiness.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Lawyers’ good fortunes, like Henry’s, never come with both hands full.<span style="mso-spacerun: yes;"> </span>If you win a big plaintiff’s verdict, you
know you will soon be fighting tooth and nail to hang on to some of it as
judgment is entered and then as the case is appealed.<span style="mso-spacerun: yes;"> </span>When you settle a big case and make a client
happy, you realize you have no more work to do.<span style="mso-spacerun: yes;">
</span>When you get a new matter in, you realize you will have to cancel the
plans you had to take a vacation at long last.<span style="mso-spacerun: yes;">
</span>When you finally get the other side to turn over that trove of documents
they had been withholding, you then realize you have to dig through thousands
or millions of pages of what may prove to be utterly worthless crap. And so
forth. It is hard to think of any “happy turn” in litigation that does not have
a very palpable down side. For this reason, some might say of lawyers, as
Clarence says of Henry: “The incessant care and labour of his mind/ Hath
wrought the mure that should confine it in/ So thin that life looks through and
will break out.”</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">That gloomy thought also compels me to acknowledge something. The darkness
that has, of late, befallen this blawg has been a source of some distress.<span style="mso-spacerun: yes;"> </span>The blessing of ample work has meant very
little time to work on this blawg. Therefore, despite an abundance of ideas, I feel
I must accept my limitations and make a new new-year’s res simply to post once
a month or so—or else let it go.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Meanwhile, I hope that anyone who happens upon this blawg manages a
moment or two in the coming year to experience something that always eluded
Henry Bolinbroke: unadulterated joy.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com2tag:blogger.com,1999:blog-7710579058947001216.post-59427046423349147122013-12-01T16:46:00.004-06:002013-12-01T16:46:30.666-06:00“Lies, damned lies, and statistics”
<span style="font-family: Calibri;">The popular expression I employ as a title for this post is
often invoked to criticize the use and abuse of arguments supported by
statistics. The quote has been attributed to various characters, including Mark
Twain and Benjamin Disraeli. I do not intend to wade into that debate. I feel
confident, however, that Shakespeare is not responsible for the utterance.<span style="mso-spacerun: yes;"> </span>I am, however, prompted to say a word about
statistics on this blog about Shakespeare and law because of a statistically
significant confluence of events in the last 24 hours.<span style="mso-spacerun: yes;"> </span>While studying a fairly recent </span><a href="http://www.houstonlawreview.org/2012/04/05/475reasons-for-reversal-in-the-texas-courts-of-appeals/"><span style="color: blue; font-family: Calibri;">statistical
analysis</span></a><span style="font-family: Calibri;"> of reversal rates and reasons for those reversals in appeals to
the Texas intermediate appellate courts, I was thinking about how my own recent
attempt to rely on statistics failed to find a receptive ear. Then I received
an informative comment from </span><a href="http://drferris68.wordpress.com/sonnet-17-the-number-17/"><span style="color: blue; font-family: Calibri;">James S. Ferris</span></a><span style="font-family: Calibri;">
on my last post, wherein he refers me to his statistical analyses of
Shakespeare’s canon supporting the theory that Edward de Vere, 17<sup><span style="font-size: x-small;">th</span></sup>
Earl of Oxford, was a likely author of works we attribute to “Shakespeare.”</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">When do statistics add to rhetorical force and when are they
fairly brushed aside?</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Among serious-minded people, the value of empirical data is not
really subject to debate. Empiricism is the foundation of science; it is an
essential tool for helping us break out of our narcissistic bubbles made of
mere anecdotal “evidence,” hunches, coincidence, prejudice, and superstition.
Statistics—the medium whereby empirical data is rendered accessible—reflect both
hard and soft knowledge. Statistics involve hard numbers and yet presume to do
no more than capture <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">trends</i></b>. Statistics permit us to make
more informed predictions; but these predictions must always be characterized
as reflecting probabilistic, not apodictic, certainty. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Because of the inherent modesty of statistics, someone can
always decide to reject even the most damning statistics by concluding that the
current situation constitutes an exception to a given statistical trend. And such
a decision does not necessarily constitute intellectual dishonesty or cowardice—because
part of what makes the science of statistics sound is that statistics do not
presume to speak to individual instances. Just because a decision-maker has
rejected x claim by y kind of person each and every time x has been presented
to him over a multi-year period, that does not mean that the decision to reject
this <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">particular</i></b>
y’s x claim on this <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">particular</i></b> occasion was unfounded.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">But if the proffered reasons given for rejecting a
particular y’s x claim are not supported by legitimate evidence, then the
statistics showing that z routinely rejects x claims from the likes of y should
take on heightened significance. That is when statistics should resonate as
authoritative.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Therefore, when someone presented with that situation
decides to reject y’s x claim and the statistical argument showing that it was
not given fair consideration that decision can seem like an exercise of raw power
or the product of political preference. And that is certainly a circumstance
that Shakespeare understood. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">So I end by quoting Harry Hotspur, aka Henry Percy, from <i style="mso-bidi-font-style: normal;">Henry IV, Part </i>1.<span style="mso-spacerun: yes;"> </span>Hotspur chides his kinsman, the Earls of
Worcester and Northumberland, who, after having played an instrumental role in
furthering a political plot, are upset that the man whose ascension they
enabled seems to have forgotten to elevate them too now that he holds the reins
of power:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Shall it for shame be spoken in these days,</span></div>
<span style="font-family: Calibri;">Or fill up chronicles in time to come, <o:p></o:p></span><br />
<span style="font-family: Calibri;">That men of your nobility and power <o:p></o:p></span><br />
<span style="font-family: Calibri;">Did gage them both in an unjust behalf, <o:p></o:p></span><br />
<span style="font-family: Calibri;">As both of you—God pardon it!—have done, <o:p></o:p></span><br />
<span style="font-family: Calibri;">To put down Richard, that sweet lovely rose, <o:p></o:p></span><br />
<span style="font-family: Calibri;">And plant this thorn, this canker, Bolingbroke? <o:p></o:p></span><br />
<span style="font-family: Calibri;">And shall it in more shame be further spoken, <o:p></o:p></span><br />
<span style="font-family: Calibri;">That you are fool'd, discarded and shook off <o:p></o:p></span><br />
<span style="font-family: Calibri;">By him for whom these shames ye underwent?</span><br />
<span style="font-family: Calibri;">(I.3)</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Hotspur was not <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">surprised</i></b> by abuses of power or that
those who had obtained power unjustly would wield it in unjust ways; but that lack
of surprise did not prevent him from railing against it nevertheless. </span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-72877161142852453162013-11-23T17:07:00.004-06:002013-11-24T10:13:47.441-06:00Selfies<div style="text-align: center;">
<span style="font-family: Calibri;">Sin of self-love possesseth all mine eye </span></div>
<div style="text-align: center;">
<span style="font-family: Calibri;">And all my soul and all my every part; </span></div>
<div style="text-align: center;">
<span style="font-family: Calibri;">And for this sin there is no remedy,</span></div>
<div style="text-align: center;">
<span style="font-family: Calibri;">It is so grounded inward in my heart.</span></div>
<br />
<div align="center" class="MsoNormal" style="margin: 0in 0in 10pt; text-align: center;">
<span style="font-family: Calibri;">Sonnet 62</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Recently, the esteemed <i style="mso-bidi-font-style: normal;">Oxford
Dictionaries</i> raised hackles by deeming “selfie” 2013’s word of the
year.<span style="mso-spacerun: yes;"> </span>This development occurred shortly
after a web project called “</span><a href="http://selfiesatfunerals.tumblr.com/"><span style="color: blue; font-family: Calibri;">selfies
at funerals</span></a><span style="font-family: Calibri;">” went viral, in turn prompting apocalyptic prognostications
about the millennial generation’s unbridled narcissism, poor judgment, and loose
attachment to grammar and spelling conventions. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">I have never taken a true selfie.<span style="mso-spacerun: yes;"> </span>But I suppose blogs are another variation on
the theme.<span style="mso-spacerun: yes;"> </span>Thus I am in no position to
cast stones.<span style="mso-spacerun: yes;"> </span>Besides, the urge to
indulge in self-expression—including self-portraits of various kinds—seems
fairly hard-wired.<span style="mso-spacerun: yes;"> </span>Certainly, legitimate
artists routinely devote serious attention either to literal self-portraits or
to vaguely disguised ones.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Shakespeare is an interesting case because of the authorship
question.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.”)<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Hamlet</i> is, therefore, held up by Oxfordians as self-evident proof that
de Vere wrote “Shakespeare’s” plays.<span style="mso-spacerun: yes;"> </span>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.”<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">See,
e.g.</i>, David L. Roper, “Edward de Vere’s Autograph on Shakespeare’s Sonnet
76” for a fuller explanation.<span style="mso-spacerun: yes;"> </span>Additionally,
Edward de Vere’s nickname was reputedly “Spear-shaker,” suggesting that, by
recruiting bumpkin Bill Shakespeare to provide a <i style="mso-bidi-font-style: normal;">nom de plume</i> for him, de Vere was providing a clue, a selfie hidden
in plain view. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Lawyers, for the most part, need to avoid selfies—particularly
in their writing.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>They don’t want to perceive a discernible
style.<span style="mso-spacerun: yes;"> </span>They expect that the author’s
identity be submerged so as not to distract from the substantive legal argument
or analysis.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Exceptions exist, of course.<span style="mso-spacerun: yes;">
</span>And some special few become so successful—in part <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">because of</i></b> a distinctive
writing style—that people hire them to place their distinct imprimatur on an
important legal brief.<span style="mso-spacerun: yes;"> </span>And others in the
profession actually seek out briefs composed by these happy few <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">because
</i></b>the readers want to revel in the author’s unique voice.<span style="mso-spacerun: yes;"> </span>I think of appellate superstar </span><a href="http://beckredden.com/bios/gunn-davidbio-page"><span style="color: blue; font-family: Calibri;">David Gunn</span></a><span style="font-family: Calibri;">.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>Focusing on
a finding of “justifiable reliance” that had been central to the other side's success below, Gunn exploited language from <i style="mso-bidi-font-style: normal;">Grant
Thornton LLP v. Prospect High Income Fund</i>, 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.’”<span style="mso-spacerun: yes;">
</span>To show how this legal proposition applied to the current case, Gunn
bombarded the reader with a series of “red flags.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<v:shapetype coordsize="21600,21600" filled="f" id="_x0000_t75" o:preferrelative="t" o:spt="75" path="m@4@5l@4@11@9@11@9@5xe" stroked="f"><span style="font-family: Calibri;">
<v:stroke joinstyle="miter">
<v:formulas>
<v:f eqn="if lineDrawn pixelLineWidth 0">
<v:f eqn="sum @0 1 0">
<v:f eqn="sum 0 0 @1">
<v:f eqn="prod @2 1 2">
<v:f eqn="prod @3 21600 pixelWidth">
<v:f eqn="prod @3 21600 pixelHeight">
<v:f eqn="sum @0 0 1">
<v:f eqn="prod @6 1 2">
<v:f eqn="prod @7 21600 pixelWidth">
<v:f eqn="sum @8 21600 0">
<v:f eqn="prod @7 21600 pixelHeight">
<v:f eqn="sum @10 21600 0">
</v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:formulas>
<v:path gradientshapeok="t" o:connecttype="rect" o:extrusionok="f">
<o:lock aspectratio="t" v:ext="edit">
<span style="font-family: "Calibri","sans-serif"; font-size: 11pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><v:shapetype coordsize="21600,21600" filled="f" id="_x0000_t75" o:preferrelative="t" o:spt="75" path="m@4@5l@4@11@9@11@9@5xe" stroked="f">
<v:stroke joinstyle="miter">
<v:formulas>
<v:f eqn="if lineDrawn pixelLineWidth 0">
<v:f eqn="sum @0 1 0">
<v:f eqn="sum 0 0 @1">
<v:f eqn="prod @2 1 2">
<v:f eqn="prod @3 21600 pixelWidth">
</v:f></v:f></v:f></v:f></v:f></v:formulas><span style="font-family: "Calibri","sans-serif"; font-size: 11pt; line-height: 115%; mso-ansi-language: EN-US; mso-ascii-theme-font: minor-latin; mso-bidi-font-family: "Times New Roman"; mso-bidi-language: AR-SA; mso-bidi-theme-font: minor-bidi; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US; mso-fareast-theme-font: minor-latin; mso-hansi-theme-font: minor-latin;"><v:shapetype coordsize="21600,21600" filled="f" id="_x0000_t75" o:preferrelative="t" o:spt="75" path="m@4@5l@4@11@9@11@9@5xe" stroked="f">
<v:stroke joinstyle="miter">
<v:formulas>
<v:f eqn="if lineDrawn pixelLineWidth 0">
<v:f eqn="sum @0 1 0">
<v:f eqn="sum 0 0 @1">
<v:f eqn="prod @2 1 2">
<v:f eqn="prod @3 21600 pixelWidth">
<v:f eqn="prod @3 21600 pixelHeight">
<v:f eqn="sum @0 0 1">
<v:f eqn="prod @6 1 2">
<v:f eqn="prod @7 21600 pixelWidth">
<v:f eqn="sum @8 21600 0">
<v:f eqn="prod @7 21600 pixelHeight">
<v:f eqn="sum @10 21600 0">
</v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:f></v:formulas>
<v:path gradientshapeok="t" o:connecttype="rect" o:extrusionok="f">
</v:path></v:stroke></v:shapetype></span>
</v:stroke></v:shapetype></span></o:lock></v:path></v:stroke></span></v:shapetype><span style="font-family: Calibri;">That is, each reason why reliance had not be justifiable was
introduced by an <strong><span style="color: red;">actual red flag</span></strong> icon serving as a bullet.<span style="mso-spacerun: yes;"> </span>He then concluded with distinctly Gunn
panache:</span></div>
<div class="MsoNormal" style="margin: 0in 0.5in 10pt;">
<span style="font-family: Calibri;">The Royalty Owners had enough red flags to create a
competitive half-time drill team.<span style="mso-spacerun: yes;"> </span>The
Court should hold that all these warning signs make any reliance legally
unjustifiable, just as the Court held in <i style="mso-bidi-font-style: normal;">Grant
Thornton</i> when it rendered a take-nothing judgment.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0.5in 10pt 0in;">
<span style="font-family: Calibri;">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. </span></div>
</div>
<span style="font-family: Calibri;">What lesson can striving legal writers take from the selfies
of Gunn and Shakespeare/de Vere?</span><br />
<span style="font-family: Calibri;"></span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">The impulse to make selfies, however natural, does not an
artist make.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Therefore, most lawyers are better off seeking
to strip their legal writing of the badges of idiosyncratic self-expression.<span style="mso-spacerun: yes;"> </span>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[.]”
(<i style="mso-bidi-font-style: normal;">Hamlet</i>, I.3)</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-52474533737065487902013-11-16T12:17:00.000-06:002013-11-16T12:17:08.919-06:00Learning to Fear a Fragmentary Record<div style="text-align: center;">
<span style="font-family: Calibri;">So should my shame still rest upon
record,</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">And never be forgot in mighty Rome</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<i style="mso-bidi-font-style: normal;"><span style="font-family: Calibri;">Rape
of Lucrece<o:p></o:p></span></i></div>
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>But outside the comforting confines of
federal court, preserving a full record can be far more arduous.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>An appellate court will deem any objections
to errors that are not clear in the record waived.</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">I am reminded with some pain of an early lesson I had about the
challenges that can arise in the arena of record preservation.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>I had
case law directly on point showing that venue was not proper where the case had
been filed.<span style="mso-spacerun: yes;"> </span>So I filed a motion seeking
a transfer of the case elsewhere and set that motion for a hearing.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>As I walked in, they all started.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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?”<span style="mso-spacerun: yes;"> </span></span></div>
<span style="font-family: Calibri;">I said, “Yes, Your Honor, I am,”
thinking <i style="mso-bidi-font-style: normal;">isn’t the bailiff supposed to
say “All rise” and <b style="mso-bidi-font-weight: normal;">then</b> the judge
comes in?<span style="mso-spacerun: yes;"> </span>This hearing wasn’t even
supposed to start for another 20 minutes, so why are they already—</i></span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>“Just so
you know, among the gentlemen here representing [X,] is [Y].<span style="mso-spacerun: yes;"> </span>He is my campaign chair.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>“Counsel,”
the judge said turning back to me, “you may begin.”</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">“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.<span style="mso-spacerun: yes;"> </span>Meanwhile, I was all alone—except I had both
statutory and case authority on my side. <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;">
</span>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.</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>The motion itself just isn’t
proper.<span style="mso-spacerun: yes;"> </span>That’s not how we do things here.<span style="mso-spacerun: yes;"> </span>In Texas state court you can’t call for a
case to be dismissed just because you think the venue’s wrong.<span style="mso-spacerun: yes;"> </span>There’s gist no such animal and maybe she
should have thought of that before putting us all through this exercise.”</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">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.</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>“Motion denied.”</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">“Here judge,” one of Mr. Y’s
colleagues said.<span style="mso-spacerun: yes;"> </span>“Here’s an order for
you to sign.”</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">The judge signed the order—before I
got a chance to see it.<span style="mso-spacerun: yes;"> </span>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.</span><br />
<br />
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>But there were other interesting gaps too.<span style="mso-spacerun: yes;"> </span>Even more surprising was how unsurprised
other lawyers and my seasoned secretary was when I described this whole experience.
</span><br />
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">“Looks like you got home-towned,
Gretchen.”</span><br />
<br />
<span style="font-family: Calibri;">Indeed.</span><br />
<span style="font-family: Calibri;"></span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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 <i style="mso-bidi-font-style: normal;">Richard II</i> to let “heaven be the record
to my speech,” [I.1] it is not enough for those who wage battles in courts of
law.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-56964530227972088142013-10-31T08:07:00.003-05:002013-10-31T08:07:28.538-05:00Fire Burn and Cauldron Bubble
<span style="font-family: Calibri;">It’s Halloween. A fine time to quote the Weird Sisters:</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Round about the cauldron go,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">In the poisoned entrails throw.</span></div>
<br />
<span style="font-family: Calibri;">Act IV of <i style="mso-bidi-font-style: normal;">Macbeth</i> begins in a
cave where a caldron smolders eerily.<span style="mso-spacerun: yes;">
</span>The three witches concoct a mysterious potion by tossing all sorts of disgusting
items into their charmed pot, <i style="mso-bidi-font-style: normal;">e.g.</i>: 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.<span style="mso-spacerun: yes;"> </span>After each witch makes her
little contribution to the foul brew, they recite their famous refrain:</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Double, double toil and trouble;</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><span style="mso-tab-count: 1;"> </span>Fire
burn and cauldron bubble.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Shakespeare does not clarify exactly what the three witches intend to
do with this brew.<span style="mso-spacerun: yes;"> </span>But we know
instinctively that it is something foul, not fair.<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">In the midst of their cooking, Macbeth appears on the scene and demands
some answers.<span style="mso-spacerun: yes;"> </span>They give him some
answers, but they are spectral, aphoristic, cryptic—instilling both a sense of
false security and dread.<span style="mso-spacerun: yes;"> </span>Before he has
a chance to process what has been revealed to him, the witches vanish into the
murky, fetid air.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Sigmund Freud famously identified a syndrome that he dubbed “the cauldron
argument,” inspired, perhaps, by the Weird Sisters.<span style="mso-spacerun: yes;"> </span>A cauldron argument goes something like this:<span style="mso-spacerun: yes;"> </span>“I didn’t break the cookie jar.<span style="mso-spacerun: yes;"> </span>But if I did, I didn’t eat the cookies.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>But if
I did eat any cookies, I didn’t leave those crumbs on the counter.”</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>Thus
moderately lucid people do not find cauldron arguments very persuasive.<span style="mso-spacerun: yes;"> </span>That is why they are only employed by four
year-olds, unthinking criminals, and lawyers.</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Why do lawyers resort to cauldron arguments?<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>So they
plead defensively:<span style="mso-spacerun: yes;"> </span>“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.”</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>They are self-defeating.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">obscure</i></b>
instead of <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">illuminate</i></b> the Truth.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Better to “charm the air to give a sound,/ While you perform your antic
round[.]”<span style="mso-spacerun: yes;"> </span>[<i style="mso-bidi-font-style: normal;">Macbeth</i>, IV.1]</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-51653122024475850112013-10-29T16:04:00.003-05:002013-10-29T16:04:43.409-05:00“I Know Not ‘Seems’”
<span style="font-family: Calibri;">Hamlet berates his Mama with the line quoted above after she
has the audacity to suggest that he <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">seems</i></b> to be having a particularly
hard time accepting his father’s death.<span style="mso-spacerun: yes;">
</span>At this point, she doesn’t quite know the truth about that death.<span style="mso-spacerun: yes;"> </span>Nor does Hamlet.<span style="mso-spacerun: yes;"> </span>He just knows that his mother’s wedding to
his uncle followed rather quickly on the heels of his father’s funeral:<span style="mso-spacerun: yes;"> </span>“Thrift, thrift, Horatio! the funeral baked
meats/ Did coldly furnish forth the marriage tables.”<span style="mso-spacerun: yes;"> </span>And Hamlet is annoyed at the very insinuation
that there is a distinction between what “seems” and what “is.”<span style="mso-spacerun: yes;"> </span>He suggests that, at least as far as he is
concerned, he does not <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">know</i></b> the difference between these
two states; his “customary suits of solemn black” are not just “trappings of
woe” but a perfect reflection of what <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">is</i></b> within him.</span><br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Lawyers, however, know all about the elusive line between
what “seems” and what “is.” Or at least they should. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Lawyers spend their days trying to “seem” to know what they
are talking about.<span style="mso-spacerun: yes;"> </span>They need to “seem”
utterly confident to instill confidence in others—such as clients, opposing
counsel, co-counsel, judges, jurors.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>The law isn’t susceptible to that
state of being.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">This is why the very best lawyers are like Socrates and
accept that they know nothing.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">You may think that lawyers are supposed to be professional
know-it-alls.<span style="mso-spacerun: yes;"> </span>For lawyers <i style="mso-bidi-font-style: normal;">seem</i> to know all kinds of things.<span style="mso-spacerun: yes;"> </span>And in fact, lawyers tend to be relatively
well-educated.<span style="mso-spacerun: yes;"> </span>But they do not really go
to law school to amass knowledge in the form of information.<span style="mso-spacerun: yes;"> </span>And, alas, the traditional law school curriculum
does not permit students to gain much knowledge through practical experience.<span style="mso-spacerun: yes;"> </span>Instead, students come to know little more
than a process—an analytical way of probing seemingly intractable
problems.<span style="mso-spacerun: yes;"> </span>Knowing how to do that is
certainly not “nothing,” but it is not what must people think of as
knowledge-acquisition.<span style="mso-spacerun: yes;"> </span>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.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Why are they asking me to research whether a
company’s press release is admissible under the Federal Rules of Evidence?</i><span style="mso-spacerun: yes;"> </span>I thought.<span style="mso-spacerun: yes;">
</span><i style="mso-bidi-font-style: normal;">Don’t they have all that stuff
down by now?</i><span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Sure, they certainly know that
the Federal Rules of Evidence exist and that those rules include stuff about
hearsay and exceptions thereto.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;">NOW</b>.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">should</i></b> be resolved.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">So lawyers really can’t expect to “know” much.<span style="mso-spacerun: yes;"> </span>They are supposed to <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">seem</i></b> to know, while
knowing that one can never really know.<span style="mso-spacerun: yes;">
</span>Because whatever Hamlet may think, most of the time there is no <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">is </i></b>there
to know.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>[<i style="mso-bidi-font-style: normal;">Hamlet</i>, I.2]</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com1tag:blogger.com,1999:blog-7710579058947001216.post-22845475003533892562013-10-12T12:14:00.001-05:002013-10-12T12:14:45.694-05:00The Danger<div style="text-align: center;">
<span style="font-family: Calibri;">We have scotch’d the snake, not kill’d
it:</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">She’ll close and be herself, whilst our
poor malice</span></div>
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">Remains in danger of her former tooth.</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">Macbeth to Lady Macbeth, III.2</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>An exasperated Walt cuts her off, retorting:<span style="mso-spacerun: yes;"> </span>“I am not in danger, Skyler.<span style="mso-spacerun: yes;"> </span>I am the danger.<span style="mso-spacerun: yes;"> </span>I am the one who knocks.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">The moment is simultaneously chilling and exhilarating, like
so much of <i style="mso-bidi-font-style: normal;">Breaking Bad</i>.<span style="mso-spacerun: yes;"> </span>A truly Shakespearean moment.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Part of what makes the moment Shakespearean is that,
unbeknownst to Walt, his statement is fraught with tragic irony.<span style="mso-spacerun: yes;"> </span>When Walt says “I am the danger” he is
utterly convinced that he is in charge.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>He is not the master of his own fate, let
alone that of others.<span style="mso-spacerun: yes;"> </span>His life is
careening out of control.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>But
whatever Walt may <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">believe </i></b>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.”<span style="mso-spacerun: yes;"> </span>Fed. R. Evid. 801(c).<span style="mso-spacerun: yes;"> </span>But in a move worthy of the most postmodern
deconstructionist, Rule 801, right after defining hearsay, expressly defines
certain hearsay statements as “not hearsay.”<span style="mso-spacerun: yes;">
</span><i style="mso-bidi-font-style: normal;">See </i>Fed. R. Evid. 801(d).<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>Generally, these adoptions
happened long before any lawsuit was filed.<span style="mso-spacerun: yes;">
</span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>And the
presumption underlying that presupposition is that being okay with a statement
means that the statement reflects The Truth.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Even easier to follow is the logic underscoring out-of-court
statements covered by Rule 804.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>We are talking about statements made by a
person that reveal something incriminating, embarrassing, or otherwise damaging
to the maker of the statement, <i style="mso-bidi-font-style: normal;">i.e.</i>,
a statement that, “when uttered, [was] against the party's pecuniary,
proprietary, or penal interest.”<span style="mso-spacerun: yes;"> </span>Fed. R.
Evid. 804(b)(3)(A). <span style="mso-spacerun: yes;"> </span>Walt’s “I am the danger”
utterance fits nicely into this category.<span style="mso-spacerun: yes;">
</span>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.”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">thinks</i></b>
is true, which is a far more complicated phenomenon.<span style="mso-spacerun: yes;"> </span>Walt’s admission (assertion, really) that he is
“The Danger” is not really accurate—at least not in the way he means it.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>Therefore, the admission is only true as a
barometer of what he <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">feels</i></b> is true at the time.<span style="mso-spacerun: yes;"> </span>In other words, the admission reveals his <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">intent</i></b>:
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.<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Consider, for instance, Macbeth’s “Is this a dagger which I
see before me” speech.<span style="mso-spacerun: yes;"> </span>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:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Is this a dagger which I see before me,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">The handle toward my hand? Come, let me clutch thee.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">I have thee not, and yet I see thee still.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Art thou not, fatal vision, sensible</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">To feeling as to sight? or art thou but</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">A dagger of the mind, a false creation,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Proceeding from the heat-oppressed brain?</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">I see thee yet, in form as palpable</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">As this which now I draw.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Thou marshall’st me the way that I was going;</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">And such an instrument I was to use.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">II.1</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<o:p><span style="font-family: Calibri;"> </span></o:p></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">With this out-of-court statement, Macbeth is unmistakably <span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>But the true import of this admission is not that
it proves what he <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">did</i></b>.<span style="mso-spacerun: yes;"> </span>More than proving
that he took a certain action, the admission proves Macbeth’s mental state at
the time of the utterance, his <i style="mso-bidi-font-style: normal;">mens rea</i>,
as they say in the crim law biz.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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:<span style="mso-spacerun: yes;"> </span></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">I go, and it is done; the bell invites me.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">Hear it not, Duncan; for it is a knell</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-indent: 0.5in;">
<span style="font-family: Calibri;">That summons thee to heaven or to hell.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<o:p><span style="font-family: Calibri;"> </span></o:p></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>Why?<span style="mso-spacerun: yes;"> </span>Because no one likes to admit to being
destiny’s pawn.<span style="mso-spacerun: yes;"> </span>That would, after all,
be the ultimate “admission against interest.”</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-62800638802943363802013-10-05T21:31:00.004-05:002013-10-05T21:31:53.727-05:00The Google<div style="text-align: center;">
<span style="font-family: Calibri;">What is it ye would see?<o:p></o:p></span></div>
<div style="text-align: center;">
<span style="font-family: Calibri;">If aught of woe or wonder, cease your
search.</span></div>
<br />
<div align="center" class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt; text-align: center;">
<span style="font-family: Calibri;">Horatio to the conquering Prince
Fortinbras, <i style="mso-bidi-font-style: normal;">Hamlet</i>, V.2</span><o:p><span style="font-family: Calibri;"> </span></o:p></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Google recently celebrated its 15<sup><span style="font-size: x-small;">th</span></sup>
birthday.<span style="mso-spacerun: yes;"> </span>To honor the occasion, Peter
Sagal, host of NPR’s <i style="mso-bidi-font-style: normal;">Wait, Wait Don’t
Tell Me!</i>,<i style="mso-bidi-font-style: normal;"> </i>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!”</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">I admit to having Googled myself, sometimes with
embarrassing frequency.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>Upon Googling myself, I get hits that suggest
I am still employed by certain institutions, although that is no longer the
case.<span style="mso-spacerun: yes;"> </span>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).<span style="mso-spacerun: yes;"> </span>Worse still, a
Google search continues to produce evidence of some rather embarrassing relics
from my professional past.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span>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.”<span style="mso-spacerun: yes;"> </span>The subject matter of these
books is embarrassing enough.<span style="mso-spacerun: yes;">
</span>Additionally, it is embarrassing that a person can now buy these books for
about $.15 through Internet merchants.<span style="mso-spacerun: yes;">
</span>Yet more embarrassing still is that a publisher did indeed buy these
books from the enterprising Belgian, and they remained in print <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">for
years</i></b>, 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.<span style="mso-spacerun: yes;"> </span>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. </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">These results are fairly analogous to what happens when one
Googles “Shakespeare.”<span style="mso-spacerun: yes;"> </span>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.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">This is also the problem with using Google as a means to conduct
legal research.<span style="mso-spacerun: yes;"> </span>Yet I admit to using
Google on a daily basis as a point of departure for legal research.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Why?</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Because it is the sensible, not just the senseless, think to
do.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">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.<span style="mso-spacerun: yes;"> </span>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 <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">then</i></b> turn to the pricey,
law-specific, proprietary databases upon which most American lawyers rely.<span style="mso-spacerun: yes;"> </span>By turning to those pricey, proprietary
databases only <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">after </i></b>you have educated yourself a bit using free source
materials improves the odds <span style="mso-spacerun: yes;"> </span>that you
will frame better searches in those fancy databases instead of floundering
around while the meter is running.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Perhaps a specific example might “turn them to shapes, and
give to airy nothing/ A local habitation and a name.”<span style="mso-spacerun: yes;"> </span>[<i style="mso-bidi-font-style: normal;">A
Midsummer Night’s Dream</i>, V.1]<span style="mso-spacerun: yes;"> </span>Let’s
say you need to research what kinds of circumstances permit a person to rescind
a contract under Texas law.<span style="mso-spacerun: yes;"> </span>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. <span style="mso-spacerun: yes;"> </span>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.”<span style="mso-spacerun: yes;"> </span>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).
<span style="mso-spacerun: yes;"> </span>You are more likely to get useful hits
than if you type “Is rescission a cause of action or remedy?”<span style="mso-spacerun: yes;"> </span>While the latter exemplifies better grammar
and may better approximate what you want to ask of the world, it is just too broad.<span style="mso-spacerun: yes;"> </span>Worse still would be simply typing “rescission”
or “rescind a contract.” </span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Nowadays, using Google (and other Internet search engines) is a fact
of daily life for virtually everyone.<span style="mso-spacerun: yes;">
</span>But using Google as an <em><strong>effective</strong></em> tool to conduct <em><strong>professional</strong></em> research
requires employing artful and slightly unnatural constructions.<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"></span>Which seems to define what a lot of people
think of as “Shakespearean.”<span style="mso-spacerun: yes;"> </span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Which means that an obsession with Shakespeare is indeed the
secret to professional success.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">“The ‘why’ is plain as way to parish church.”<span style="mso-spacerun: yes;"> </span>(<i style="mso-bidi-font-style: normal;">As You
Like It</i>, II.7).</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-12917573296443091052013-09-28T15:41:00.001-05:002013-09-28T15:41:09.006-05:00Ready for Some Football
<span style="font-family: Calibri;">"That time of year thou mayest … me behold” [Sonnet 73] spending
an inordinate number of hours on the couch yelling intermittingly at the TV.<span style="mso-spacerun: yes;"> </span>My illicit affection for a particularly
gladiatorial sport that now practically defines what fall means in America dates
back to childhood when, during tomboy years, I loved few things more than rushing
quarterbacks in a pick-up game of tackle football at the daycare center or the
courtyard of some kid’s apartment complex; I cherished the bruises and grass stains
and rips in my jeans that I acquired as little badges of courage.<span style="mso-spacerun: yes;"> </span></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Some who know me well have trouble seeing how this secret predilection
of mine fits with other things they know about me, such as the more cerebral
preferences suggested by this blawg and political sensibilities that tend
thematically toward peace, love, and understanding.<span style="mso-spacerun: yes;"> </span>After all, football is a (barely) sublimated
glorification of war.<span style="mso-spacerun: yes;"> </span>All sports are
really.<span style="mso-spacerun: yes;"> </span>But football makes the metaphor
impossible to miss.<span style="mso-spacerun: yes;"> </span>It is, after all, about
conquering territory by overcoming a defensive line while brutes threaten to
drag the standard bearer down to the field with bone-rattling blows, virtually
guaranteed to cause injury, so that, despite the vigilance of bulky guards, simply
crossing the line of scrimmage is a struggle.</span></div>
<span style="font-family: Calibri;">But unlike war, with football and other sports, there are
clear rules and referees.<span style="mso-spacerun: yes;"> </span>There are
predictable ways to assess winners and losers.<span style="mso-spacerun: yes;">
</span>And while casualties certainly occur with every play in football, they are
not the principal objective (unless you play defense for the New Orleans
Saints).</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Litigation is more like football than war in that
adversaries engage in combat but are tethered by rules and refs.<span style="mso-spacerun: yes;"> </span>Litigation is more like war than football in
that what it means to “win” can be rather ambiguous and fluid.<span style="mso-spacerun: yes;"> </span>With legal disputes that turn into litigation
and make it all the way to trial, winning can sometimes feel like
losing—because the victory may ultimately be outweighed by the opportunity
costs (not to mention the actual costs).<span style="mso-spacerun: yes;">
</span>Likewise, losing can sometimes feel like winning because, over the
course of a hard-fought legal battle, having that elusive day in court and then
getting some finality can be enough to prompt the healing process at last.<span style="mso-spacerun: yes;"> </span>Weirder still, the aspects of litigation that
are more like football than war—the rules and the refs—are precisely the part of
the process that laypeople can find exasperating.<span style="mso-spacerun: yes;"> </span>This is probably because, unlike the rules of
football, most Americans are not weaned on the rules of procedure and the rules
of evidence and so do not understand the massive amounts of discretion that the
refs (aka trial judges) have in overseeing how the game is played.<span style="mso-spacerun: yes;"> </span>In other words, the aspects of litigation
that <i style="mso-bidi-font-style: normal;">seem</i> more like football are actually
far more complex and nuanced than those governing football.<span style="mso-spacerun: yes;"> </span>And when something we don’t understand <i style="mso-bidi-font-style: normal;">seems </i>superficially analogous to
something familiar and then the analogy breaks down, this can, perhaps, breed
more consternation than feelings of total incomprehension.<span style="mso-spacerun: yes;"> </span>A paradox, indeed.</span></div>
<span style="font-family: Calibri;">Shakespeare, of course, had nothing to say about
football.<span style="mso-spacerun: yes;"> </span>And I do not see much in his
work to suggest that he was much of a sports fan.<span style="mso-spacerun: yes;"> </span>He used “sport” as a pejorative term to refer
to something pleasurable but mildly sadistic.<span style="mso-spacerun: yes;">
</span><i style="mso-bidi-font-style: normal;">See, e.g.</i>:<span style="mso-spacerun: yes;"> </span>“As flies to wanton boys are we to the gods;
they kill us for their sport.”<span style="mso-spacerun: yes;"> </span>[<i style="mso-bidi-font-style: normal;">King Lear</i>, IV.1]; or this from the
Princess in <i style="mso-bidi-font-style: normal;">Love’s Labour’s Lost</i>, as
she embraces a plan whereby the girls intend to humiliate the boys, who have
shunned the girls’ company: <span style="mso-spacerun: yes;"> </span></span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">There's no such sport as sport by sport o'erthrown,</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">To make theirs ours and ours
none but our own:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">So shall we stay, mocking
intended game,<o:p></o:p></span></div>
<span style="font-family: Calibri;">And they, well mock'd, depart
away with shame.</span><br />
<span style="font-family: Calibri;">[V.2]</span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<o:p><span style="font-family: Calibri;"> </span></o:p><span style="font-family: Calibri;">Yet Shakespeare’s Globe Theater, like all Elizabethan theaters,
was not just a venue for theatrical productions.<span style="mso-spacerun: yes;"> </span>These venues housed bear-baiting competitions
and other decidedly visceral sporting events on alternate days with productions
of <i style="mso-bidi-font-style: normal;">Hamlet</i>, sort of like the Erwin Center
in Austin houses both UT basketball games and Lady Gaga concerts.<span style="mso-spacerun: yes;"> </span>So you would think that WS would have seen
sports fanaticism as symbiotic with theater patronage and thus a good
thing.<span style="mso-spacerun: yes;"> </span></span></div>
<span style="font-family: Calibri;"></span><br />
<span style="font-family: Calibri;">But maybe there was resentment, a sense that hosting these
more primal diversions was a necessary evil to help underwrite more lofty recreation,
but not something worth celebrating in and of itself.</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">In any case, based on the scant evidence, I conclude that
Shakespeare may <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">not</i></b> have shared my affection for football—or for the game of
litigation.<span style="mso-spacerun: yes;"> </span>He would, however, have understood
my ambivalence about these things because of their similarity with warfare, a
phenomenon that he occasionally celebrated (<i style="mso-bidi-font-style: normal;">Henry
V</i>) but more often exposed as a highly destructive impulse and breeding
ground for unhealthy ambitions (<i style="mso-bidi-font-style: normal;">Hamlet</i>,
<i style="mso-bidi-font-style: normal;">Macbeth</i>, <i style="mso-bidi-font-style: normal;">Othello</i>, <i style="mso-bidi-font-style: normal;">Julius Caesar</i>, <i style="mso-bidi-font-style: normal;">Titus Andronicus</i>, etc., etc., etc.).<span style="mso-spacerun: yes;"> </span>Then again, maybe he could have been
convinced that both football and litigation are actually good things precisely
because they are substitutes for war and thus earmarks of civilization. . . .</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0tag:blogger.com,1999:blog-7710579058947001216.post-54130342361432296922013-09-17T04:43:00.000-05:002013-09-17T04:43:28.578-05:00Take a Seat<span style="font-family: Calibri;">In 1957 Thorton Wilder, Pulitzer prize-winning novelist <b style="mso-bidi-font-weight: normal;"><i style="mso-bidi-font-style: normal;">and</i></b>
playwright, wrote a preface for a collection of the three most famous plays we
had authored twenty years earlier.<span style="mso-spacerun: yes;"> </span>In
this preface, he explains how he went from despairing about the theater’s irrelevance
to feeling that it still had the potential to be humanity’s highest art
form.<span style="mso-spacerun: yes;"> </span>One reason he offered for his
sense that theater had become an “inconsequential diversion” was the way it had
been crammed into a gilded box—where the main attraction was the sets,
costumes, and special effects (not to mention the fashions of the bourgeois
patrons sitting silently back in the dark).<span style="mso-spacerun: yes;">
</span>He opted to strip all of that away, starting with the furniture.<span style="mso-spacerun: yes;"> </span>No sets for him—except for a few non-descript
chairs.<span style="mso-spacerun: yes;"> </span>After all, he explains, “Have
you ever noticed that in the plays of Shakespeare no one—except occasionally a
ruler—ever sits down?”</span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">That got me thinking.<span style="mso-spacerun: yes;">
</span>Elizabethan theater, like Greek theater, certainly did not involve much
in the way of set pieces. <span style="mso-spacerun: yes;"> </span>And
Shakespeare does seem to have been quite aware of how much you can say simply by
having someone sit or even lie down while others stand.<span style="mso-spacerun: yes;"> </span>For instance, one of his funniest “low”
scenes begins with the low-life Caliban (of <i style="mso-bidi-font-style: normal;">The
Tempest</i>) throwing himself on the ground at the approach of a shipwrecked sailor,
Trinculo, whom Caliban mistakenly thinks is a spirit conjured up by his angry
boss, Prospero:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">CALIBAN</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Lo, now, lo! Here comes a spirit of his, to torment me</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">For bringing wood in slowly. <b style="mso-bidi-font-weight: normal;">I'll
fall flat</b>;</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Perchance he will not mind me.</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<o:p><span style="font-family: Calibri;"> </span></o:p></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Stumbling upon the prostrate Caliban, Trinculo marvels at
the strange specimen’s stinkiness.<span style="mso-spacerun: yes;"> </span>But
when a storm suddenly appears, Trinculo decides his best bet is to creep under
the stinky creature’s garments down there on the ground, thereby giving birth
to one of the English language’s great metaphoric expressions:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">TRINCULO</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Alas, the storm is come again! my best way is to creep under his
gaberdine; there is no other shelter hereabouts: <b style="mso-bidi-font-weight: normal;">misery acquaints a man with strange bed-fellows</b>. I will here shroud
till the dregs of the storm be past.</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Then I thought about the pivotal scene in <em>Hamlet</em> involving the play-within-a-play.<span style="mso-spacerun: yes;"> </span>For that
event, the fake royals—the actors playing a king and a queen—are elevated on a platform; the
real royals are seated so that they can see and be seen; and Hamlet plops down on the ground, in a
manner that simulataneously succeeds in insulting both his mother, Queen
Gertrude, and his girlfriend Ophelia:</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">QUEEN GERTRUDE </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Come hither, my dear Hamlet, sit by me.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">No, good mother, here's metal more attractive.<o:p></o:p></span></div>
<br />
<span style="font-family: Calibri;">LORD POLONIUS </span><br />
<span style="font-family: Calibri;">[To KING CLAUDIUS] O, ho! do you mark that?<o:p></o:p></span><br />
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<span style="font-family: Calibri;">HAMLET </span><br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Lady, shall I lie in your lap?<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">[Lying down at OPHELIA's feet]</span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">No, my lord.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">I mean, my head upon your lap?<o:p></o:p></span></div>
<br />
<span style="font-family: Calibri;">OPHELIA </span><br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Ay, my lord.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Do you think I meant country matters?<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">I think nothing, my lord.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">That's a fair thought to lie between maids' legs.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">What is, my lord?</span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;"><span style="mso-spacerun: yes;"></span></span><br /></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET <o:p></o:p></span></div>
<span style="font-family: Calibri;">Nothing.<o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA <o:p></o:p></span></div>
<span style="font-family: Calibri;">You are merry, my lord.<o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">Who, I?<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">OPHELIA <o:p></o:p></span></div>
<span style="font-family: Calibri;">Ay, my lord.<o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">HAMLET </span></div>
<div class="MsoNormal" style="line-height: normal; margin: 0in 0in 0pt;">
<span style="font-family: Calibri;">O God, your only jig-maker. What should a man do but be merry? for,
look you, how cheerfully my mother looks, and my father died within these two
hours.</span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Hamlet is “merry,” in an unhinged way. Because he is the one
orchestrating the evening’s entertainment, whereby he hopes to expose the King, his uncle, as a murdering
bastard.<span style="mso-spacerun: yes;"> </span>To underscore just how upside
down Hamlet’s world has become, how precarious his mental state is, Shakespeare
puts the high-born Hamlet down on the ground.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">That observation got me thinking about how seating arrangements
convey information in a different theatrical arena: in the courtroom.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">When judges or justices enter, everyone stands up.<span style="mso-spacerun: yes;"> </span>When the people in black robes sit, they are
stationed at the highest level up there on "the bench."</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">The next level down is the witness "box."<span style="mso-spacerun: yes;"> </span>When it is occupied, all eyes are fixed
there, working to ferret out the truth.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Slightly lower down but near all the action sits the court reporter, charged with the crucial task of capturing the official version of what transpires.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Then one finds the jurors in their "box," which is off to one side but usually raised slightly off the floor.<span style="mso-spacerun: yes;"> </span>The
jurors may not be as high as the judge, but when they make their entrances and
exits, everyone stands.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Meanwhile, the stiff, pew-like rows in the back are reserved
for the public.<span style="mso-spacerun: yes;"> </span>Their configuration
suggests the role those occupying these seats are supposed to play; they are
there to take notice while remaining as somber as folks at a funeral service.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Standing somewhere near the bench, where he or she can see everything,
but without stealing focus, is the bailiff, whose job is defined by the constant
state of attention that goes along with standing upright.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">Lowest of all are the chairs at counsel table.<span style="mso-spacerun: yes;"> </span>The implication cannot be lost on
anyone.<span style="mso-spacerun: yes;"> </span>The only means those seated
there have to elevate themselves is when they are questioning a witness or
answering a judge’s questions.<span style="mso-spacerun: yes;"> </span>Some
courts require that the lawyers remain seated when examining witnesses, and all
require that they remain standing behind a podium for the latter activity.<span style="mso-spacerun: yes;"> </span>Only some trial courts permit lawyers to roam
freely while examining witnesses.<span style="mso-spacerun: yes;"> </span>And lawyers have to ask permission if they want to approach a witness or
the bench.<span style="mso-spacerun: yes;"> </span>They almost never get to
approach the jury box—except during closing arguments.<span style="mso-spacerun: yes;"> </span>But even when standing they are spacially below
the seated people whom the lawyers address.<span style="mso-spacerun: yes;">
</span></span></div>
<div class="MsoNormal" style="margin: 0in 0in 10pt;">
<span style="font-family: Calibri;">All of this stagecraft is built into the ritual form.<span style="mso-spacerun: yes;"> </span>Who must stand, who takes a seat, and where
and when these actions take place--all of it says a great deal about the
perceived natural order.<span style="mso-spacerun: yes;"> </span>And those looking
on get it without requiring a word of explanation.</span></div>
Gretchen Sweenhttp://www.blogger.com/profile/05623987678999643283noreply@blogger.com0