Like Magic

If this be magic, let it be an art

Lawful as eating.

Winter’s Tale, V.3

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.  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 Richard II, 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!

Here was a flurry of signs indicating that affection for things Shakespearean still abounds.  And that sense of magical synchronicity fueled my spirit.

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 Hobbit 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, more real.  Like Helena in All’s Well That Ends Well, believing that things are written in the stars somehow instills optimism, an irrational fortress against (more sane) feelings of depression:

And ever shall

With true observance seek to eke out that

Wherein toward me my homely stars have fail'd

To equal my great fortune.

[II.5]

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.

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.”  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:  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.”

You think I exaggerate? Ha!

Moreover, in response, Lawyer No. 2 responds, “Y objects to this request as overly broad, vague, ambiguous, and unduly burdensome.  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).  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.

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.  The whole point is to minimize the ability to engage in free association, to proceed based on trust, to hope for the best.

O Henry

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. 

More specifically:

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:

RICHARD III

I have been studying how I may compare

This prison where I live unto the world:

And for because the world is populous

And here is not a creature but myself,

I cannot do it; yet I'll hammer it out.

My brain I'll prove the female to my soul,

My soul the father; and these two beget

A generation of still-breeding thoughts,

And these same thoughts people this little world,

In humours like the people of this world,

For no thought is contented.

[V.5]

So insightful now—all thanks to Henry and his machinations. 

Then, in Henry IV Parts 1 & 2, 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 Henry V.  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:

PRINCE HAL

My gracious lord! my father!

This sleep is sound indeed, this is a sleep

That from this golden rigol hath divorced

So many English kings. Thy due from me

Is tears and heavy sorrows of the blood,

Which nature, love, and filial tenderness,

Shall, O dear father, pay thee plenteously:

My due from thee is this imperial crown,

Which, as immediate as thy place and blood,

Derives itself to me. Lo, here it sits,

Which God shall guard: and put the world's whole strength

Into one giant arm, it shall not force

This lineal honour from me: this from thee

Will I to mine leave, as 'tis left to me.

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.  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.  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.

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.

 

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:

KING HENRY IV

And wherefore should this good news make me sick?

Will fortune never come with both hands full,

But write her fair words still in foulest letters?

She either gives a stomach and no food;

Such are the poor, in health; or else a feast

And takes away the stomach; such are the rich,

That have abundance and enjoy it not.

I should rejoice now at this happy news;
And now my sight fails, and my brain is giddy:
O me! come near me; now I am much ill.
[Part 2, V.4]

“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.

Lawyers’ good fortunes, like Henry’s, never come with both hands full.  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.  When you settle a big case and make a client happy, you realize you have no more work to do.  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.  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.”

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.  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.

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.

“Lies, damned lies, and statistics”

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.  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.  While studying a fairly recent statistical analysis 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 James S. Ferris on my last post, wherein he refers me to his statistical analyses of Shakespeare’s canon supporting the theory that Edward de Vere, 17^th Earl of Oxford, was a likely author of works we attribute to “Shakespeare.”

When do statistics add to rhetorical force and when are they fairly brushed aside?

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 trends. Statistics permit us to make more informed predictions; but these predictions must always be characterized as reflecting probabilistic, not apodictic, certainty.

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 particular y’s x claim on this particular occasion was unfounded.

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.

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.

So I end by quoting Harry Hotspur, aka Henry Percy, from Henry IV, Part 1.  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:

Shall it for shame be spoken in these days,

Or fill up chronicles in time to come,
That men of your nobility and power
Did gage them both in an unjust behalf,
As both of you—God pardon it!—have done,
To put down Richard, that sweet lovely rose,
And plant this thorn, this canker, Bolingbroke?
And shall it in more shame be further spoken,
That you are fool'd, discarded and shook off
By him for whom these shames ye underwent?
(I.3)

Hotspur was not surprised 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.

­Selfies

Sin of self-love possesseth all mine eye

And all my soul and all my every part;

And for this sin there is no remedy,

It is so grounded inward in my heart.

Sonnet 62

Recently, the esteemed Oxford Dictionaries raised hackles by deeming “selfie” 2013’s word of the year.  This development occurred shortly after a web project called “selfies at funerals” went viral, in turn prompting apocalyptic prognostications about the millennial generation’s unbridled narcissism, poor judgment, and loose attachment to grammar and spelling conventions.

I have never taken a true selfie.  But I suppose blogs are another variation on the theme.  Thus I am in no position to cast stones.  Besides, the urge to indulge in self-expression—including self-portraits of various kinds—seems fairly hard-wired.  Certainly, legitimate artists routinely devote serious attention either to literal self-portraits or to vaguely disguised ones.  I am convinced that fiction writers who make a pointed effort to avoid their own biography by writing about things that they imagine are wholly extraneous to their lives end up writing about themselves.

Shakespeare is an interesting case because of the authorship question.  We are not entirely sure who the man was; therefore, trying to spot selfies in his work is particularly challenging. The guy from Strafford had a son named “Hamnet” who died young; and “Hamnet” sure sounds a lot like “Hamlet.” So that seems to suggest a self-exploration/exploitation.  But the character of “Hamlet” and the plot of the play that bears his name parallel rather remarkably the character and childhood of Edward de Vere, Earl of Oxford (my favorite contender for “The Real Shakespeare.”)  Hamlet is, therefore, held up by Oxfordians as self-evident proof that de Vere wrote “Shakespeare’s” plays.  Likewise, some clever scholars have found that, if you study the sonnets with care, you can find places were the letters line up so as to spell out the name “De Vere.”  For instance, in Sonnet 76, between the words “my name” and “my argument,” one can find the letters D-E-V-E-R-E lining up, not once but twice, in a way that seems to defy the laws of random probability.  See, e.g., David L. Roper, “Edward de Vere’s Autograph on Shakespeare’s Sonnet 76” for a fuller explanation.  Additionally, Edward de Vere’s nickname was reputedly “Spear-shaker,” suggesting that, by recruiting bumpkin Bill Shakespeare to provide a nom de plume for him, de Vere was providing a clue, a selfie hidden in plain view.    

Lawyers, for the most part, need to avoid selfies—particularly in their writing.  This is because those who must read legal work product—other lawyers, judges, clients—do not generally want the work to reflect a distinct, idiosyncratic persona.  They don’t want to perceive a discernible style.  They expect that the author’s identity be submerged so as not to distract from the substantive legal argument or analysis.

Exceptions exist, of course.  And some special few become so successful—in part because of a distinctive writing style—that people hire them to place their distinct imprimatur on an important legal brief.  And others in the profession actually seek out briefs composed by these happy few because the readers want to revel in the author’s unique voice.  I think of appellate superstar David Gunn.  Although legal briefs are often a product of multiple cooks, when David Gunn plays a central role in the drafting, his seasoning is readily discernible. 

For instance, in a recent brief to the Supreme Court of Texas that he drafted on behalf of one of the world’s most profitable companies, Gunn decided to narrowly tailor his assault.  Focusing on a finding of “justifiable reliance” that had been central to the other side's success below, Gunn exploited language from Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913 (2010): “a person may not justifiably rely on a representation if ‘there are “red flags” indicating such reliance is unwarranted.’”  To show how this legal proposition applied to the current case, Gunn bombarded the reader with a series of “red flags.”

That is, each reason why reliance had not be justifiable was introduced by an actual red flag icon serving as a bullet.  He then concluded with distinctly Gunn panache:

The Royalty Owners had enough red flags to create a competitive half-time drill team.  The Court should hold that all these warning signs make any reliance legally unjustifiable, just as the Court held in Grant Thornton when it rendered a take-nothing judgment. 

Few brief writers would have the self-confidence and sense of style to (quite literally) adorn an appellate brief with graphic and metaphoric symbols designed to make the other side’s position seem to border on the comical.

What lesson can striving legal writers take from the selfies of Gunn and Shakespeare/de Vere?

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

Learning to Fear a Fragmentary Record

So should my shame still rest upon record,

And never be forgot in mighty Rome

Rape of Lucrece

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

I am reminded with some pain of an early lesson I had about the challenges that can arise in the arena of record preservation.  I showed up to fight the venue of a declaratory judgment action that had been filed against my big city client in a remote, sparsely populated county after I had sent a demand letter to an insurer on the client’s behalf.  I had case law directly on point showing that venue was not proper where the case had been filed.  So I filed a motion seeking a transfer of the case elsewhere and set that motion for a hearing. 

When I walked into the courthouse for the hearing, I saw a group of men huddling up with the judge at the far end of the room.  As I walked in, they all started.  The judge, identifiable because he had on his robe, dashed back behind the bench as the others scurried to take places on one side of the courtroom, some of them standing behind one of the two counsel tables and some standing in the rows of seats behind that table.  As I approached the front of the courtroom, and before I could even put down my trial bag, the man in the black robe called out, “Are you hear on that venue motion?” 

I said, “Yes, Your Honor, I am,” thinking isn’t the bailiff supposed to say “All rise” and then the judge comes in?  This hearing wasn’t even supposed to start for another 20 minutes, so why are they already—

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

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

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

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

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

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

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

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

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

Indeed.

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

Fire Burn and Cauldron Bubble

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

Round about the cauldron go,

In the poisoned entrails throw.

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

Double, double toil and trouble;

              Fire burn and cauldron bubble.

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

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

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

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

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

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

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

“I Know Not ‘Seems’”

Hamlet berates his Mama with the line quoted above after she has the audacity to suggest that he seems to be having a particularly hard time accepting his father’s death.  At this point, she doesn’t quite know the truth about that death.  Nor does Hamlet.  He just knows that his mother’s wedding to his uncle followed rather quickly on the heels of his father’s funeral:  “Thrift, thrift, Horatio! the funeral baked meats/ Did coldly furnish forth the marriage tables.”  And Hamlet is annoyed at the very insinuation that there is a distinction between what “seems” and what “is.”  He suggests that, at least as far as he is concerned, he does not know the difference between these two states; his “customary suits of solemn black” are not just “trappings of woe” but a perfect reflection of what is within him.

Lawyers, however, know all about the elusive line between what “seems” and what “is.” Or at least they should.

Lawyers spend their days trying to “seem” to know what they are talking about.  They need to “seem” utterly confident to instill confidence in others—such as clients, opposing counsel, co-counsel, judges, jurors.  And if they are good lawyers, they do their utmost to project the image of seeming to know what they are talking about based on incredible preparation.  But at the same time, if they are really smart, they also recognize that they can never fully know what “is” when it comes to the law.  The law isn’t susceptible to that state of being.  The law is forever changing; and the facts to which even seemingly settled law must be applied are so infinitely variable that conflicting interpretations are always possible.

This is why the very best lawyers are like Socrates and accept that they know nothing.

You may think that lawyers are supposed to be professional know-it-alls.  For lawyers seem to know all kinds of things.  And in fact, lawyers tend to be relatively well-educated.  But they do not really go to law school to amass knowledge in the form of information.  And, alas, the traditional law school curriculum does not permit students to gain much knowledge through practical experience.  Instead, students come to know little more than a process—an analytical way of probing seemingly intractable problems.  Knowing how to do that is certainly not “nothing,” but it is not what must people think of as knowledge-acquisition.  And because of what goes on in law school, most practicing lawyers agree that recent law grads know nothing—at least they know nothing practical and, even worse, they may not even know how little they know despite what “seems.”

I remember vividly during one of my first summer jobs as a law student being struck by how little the seasoned trial lawyers for whom I was working seemed to know.  Why are they asking me to research whether a company’s press release is admissible under the Federal Rules of Evidence?  I thought.  Don’t they have all that stuff down by now?  It took me a while to realize that lawyers could not possibly carry around a body of knowledge in their heads to scan internally each time they were confronted with a new legal issue.  Sure, they certainly know that the Federal Rules of Evidence exist and that those rules include stuff about hearsay and exceptions thereto.  But how these rules have actually played out in trials where judges were required to making admissibility determinations in the face of objections—these things do not come up every day, especially since so few legal matters ever make it to trial; and only a tiny fraction of cases that result in a final judgment ever lead to appeals, let alone appeals involving the precise evidentiary issue that you suddenly have to worry about right NOW.  Besides, the variations with respect to how any given legal rule might get applied in a particular venue, given the particular human players involved, can change in an instant everything one thinks one knows about how a certain matter should be resolved. 

So lawyers really can’t expect to “know” much.  They are supposed to seem to know, while knowing that one can never really know.  Because whatever Hamlet may think, most of the time there is no is there to know.  And thus there are only “forms, moods, shapes” to denote what is true, mere “actions that a man might play” to serve a momentary purpose.  [Hamlet, I.2]

The Danger

We have scotch’d the snake, not kill’d it:

She’ll close and be herself, whilst our poor malice

Remains in danger of her former tooth.

Macbeth to Lady Macbeth, III.2

This post assumes consensus about one of the best moments in the baddest TV show around—a series that may be over but is hardly finished.  The moment in question features meth-manufacturer Walter White receiving a lecture from his agitated wife about their dangerous fiscal situation; wife Skyler warns that, if they make one misstep, the IRS will surely come knocking and their entire world will unravel.  An exasperated Walt cuts her off, retorting:  “I am not in danger, Skyler.  I am the danger.  I am the one who knocks.”

The moment is simultaneously chilling and exhilarating, like so much of Breaking Bad.  A truly Shakespearean moment. 

Part of what makes the moment Shakespearean is that, unbeknownst to Walt, his statement is fraught with tragic irony.  When Walt says “I am the danger” he is utterly convinced that he is in charge.  By contrast, if the audience pauses to reflect for a moment, it can see that, despite what Walt may feel, he is hardly The Man.  He is not the master of his own fate, let alone that of others.  His life is careening out of control.  He is being engulfed by danger—not just courtesy of drug lords and law enforcement of various shapes, sizes, and ethnicities, but also thanks to his cancer-ridden body.  Walt, like Oedipus, is blind to the truth about his condition even as he sees himself as unusually self-aware; and Walt—like Macbeth, Othello, Richard III—makes increasingly dark, self-serving choices in part because he labors under the misguided assumption that he is in full command of each choice and its attendant consequences.   But whatever Walt may believe when he says “I am the danger,” he is not simply the purveyor of The Danger who knocks on others’ doors; he is being knocked around in some much larger pinball game that he does not and cannot fully comprehend.

This parallel between Walter White and Macbeth, et al got me to thinking about Rule 801(d)(2) and Rule 804(b)(3) of the Federal Rules of Evidence.

Hearsay, as defined by the Rules, is an out-of-court statement offered into evidence “to prove the truth of the matter asserted in the statement.”  Fed. R. Evid. 801(c).  But in a move worthy of the most postmodern deconstructionist, Rule 801, right after defining hearsay, expressly defines certain hearsay statements as “not hearsay.”  See Fed. R. Evid. 801(d).   Subpart 801(d)(2) includes among the hearsay statements that are “not hearsay” out-of-court admissions by an opposing party as well as evidence that the opposing party adopted out-of-court statements made by others.  Generally, these adoptions happened long before any lawsuit was filed.  So, the logic goes, when the opposing party adopted some other person’s statement, the adopter was not then worried about the legal implications of embracing a certain belief; and that is why the framers of the Rules of Evidence think that these adoptions should not count as hearsay.  If the adopter really had a problem when someone sent him an email that said “Wow, it’s great how you decided to take it to that Mexican drug cartel,” the person would have taken pains to correct the statement at the time if he did not believe it really reflected The Truth.  So later, when a lawsuit arises, the adopter’s opponent ought to be able to seize on the adopter’s silence in the wake of that email; and so this adoption (and the statement being adopted) is considered hearsay-that-is-not-hearsay that can be admitted into the record as proof of the matter asserted in the out-of-court statement.  In short, the Rules presuppose that, when someone adopts some other person’s statement as his or her own—or at least did not bother to correct the statement when it was made although it would have made sense to do so—that must mean that the person is okay with the statement.  And the presumption underlying that presupposition is that being okay with a statement means that the statement reflects The Truth.

Even easier to follow is the logic underscoring out-of-court statements covered by Rule 804.  These include out-of-court statements that are “admissions against interest” made by any witness—whether or not the witness is “available” to testify at trial.  We are talking about statements made by a person that reveal something incriminating, embarrassing, or otherwise damaging to the maker of the statement, i.e., a statement that, “when uttered, [was] against the party's pecuniary, proprietary, or penal interest.”  Fed. R. Evid. 804(b)(3)(A).  Walt’s “I am the danger” utterance fits nicely into this category.  And if he had made this statement to someone other than Skyler (his wife such that the comment is protected by the “spousal privilege”) or Saul Goodman (his lawyer such that the comment is protected by the “attorney-client privilege”), then the statement could be admitted into evidence against him even though it was not made under oath as “an admission against interest.”

What is interesting is that the Rules of Evidence presume that Walt’s admission-against-interest should be admissible because being “against his interest” means that it is more likely to be true.  But if we look at the statement through a Shakespearean lens, we see that the admission-against-interest is not so much one that reflects The Truth as one that indicates what the speaker thinks is true, which is a far more complicated phenomenon.  Walt’s admission (assertion, really) that he is “The Danger” is not really accurate—at least not in the way he means it.  But the “admission” is not untrue because he is lying; it is untrue because he does not have a sufficiently omniscient perspective with respect to his own existence.  Therefore, the admission is only true as a barometer of what he feels is true at the time.  In other words, the admission reveals his intent: his willingness to embrace the identity of a bad-ass maker of illicit substances who sees himself as beyond good and evil, beyond fear, beyond repercussions—however delusional this self-image might be.  And since intent is one of the trickiest things to prove in a lawsuit—civil or criminal—admissions against interest, if one can convince a fact-finder that they were indeed uttered, are pure gold from an adversary’s perspective.

Consider, for instance, Macbeth’s “Is this a dagger which I see before me” speech.  If caught on tape thanks to a duly issued search warrant, that speech would be a clear admission against interest that could be deemed “not hearsay” under Rule 804(b)(3)(A) and thus would be admissible into evidence to prove the truth regarding Macbeth’s guilt:

Is this a dagger which I see before me,

The handle toward my hand? Come, let me clutch thee.

I have thee not, and yet I see thee still.

Art thou not, fatal vision, sensible

To feeling as to sight? or art thou but

A dagger of the mind, a false creation,

Proceeding from the heat-oppressed brain?

I see thee yet, in form as palpable

As this which now I draw.

Thou marshall’st me the way that I was going;

And such an instrument I was to use.

II.1

 

With this out-of-court statement, Macbeth is unmistakably  confessing his willingness to move from (a) dreaming of a bloodied dagger and the destiny symbolized by such an instrument to (b) drawing a real dragger that he might murder King Duncan who sleeps obliviously in the Macbeths’ guest room at that very moment.  But the true import of this admission is not that it proves what he did.  More than proving that he took a certain action, the admission proves Macbeth’s mental state at the time of the utterance, his mens rea, as they say in the crim law biz.  His statement shows that he knows, on some level, that what he intends to do is wrong—the product of a “heat-oppressed brain” intoxicated with the idea of becoming The Danger.  But even as part of him recognizes that he may be suffering from delusions of grandeur, he proceeds because he can’t tolerate seeing himself as anything but the master of his own (and others’) fate: 

I go, and it is done; the bell invites me.

Hear it not, Duncan; for it is a knell

That summons thee to heaven or to hell.

 

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

The Google

What is it ye would see?

If aught of woe or wonder, cease your search.

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

Google recently celebrated its 15^th birthday.  To honor the occasion, Peter Sagal, host of NPR’s Wait, Wait Don’t Tell Me!, quoted a survey finding that something like 46% of Americans admit to having Googled themselves; in response to this factoid, Sagal quipped, “That means the other 64% are lying!”

I admit to having Googled myself, sometimes with embarrassing frequency.  This started a few years back after I attended a rather alarming CLE (continuing legal education) program about all the horrors that can befall lawyers in the social-media age.  The CLE presenter suggested that all lawyers make a habit of Googling themselves to see what kind of oddities surface that could prove detrimental to one’s professional reputation.  Upon Googling myself, I get hits that suggest I am still employed by certain institutions, although that is no longer the case.  A Google search will also suggest that I have a Facebook page (which I don’t) and a LinkedIn Profile (never got around to finishing it).  Worse still, a Google search continues to produce evidence of some rather embarrassing relics from my professional past.  A search will reveal, for instance, that, years ago, when I was young person who fashioned herself a writer, I wrote a couple of books for a chunk of change to help put myself through graduate school.  These books were reputedly “co-authored” by a fictitious Belgian—because the real Belgian who hired me to write these books thought a co-author would make them “more marketable.”  The subject matter of these books is embarrassing enough.  Additionally, it is embarrassing that a person can now buy these books for about $.15 through Internet merchants.  Yet more embarrassing still is that a publisher did indeed buy these books from the enterprising Belgian, and they remained in print for years, yet I have no idea who got all the royalties, as I had agreed to write them for a flat fee, fearing that my Belgian friend’s get-rich-quick scheme would never amount to anything.  In short: every time I Google myself, I am humiliated anew—because Googling unearths some accurate, some stale, and some decidedly embarrassing material about which I can do nothing.

These results are fairly analogous to what happens when one Googles “Shakespeare.”  If the search is not tailored narrowly enough—and even if it is—you will get many hits that include a great deal of rubbish.

This is also the problem with using Google as a means to conduct legal research.  Yet I admit to using Google on a daily basis as a point of departure for legal research. 

Why?

Because it is the sensible, not just the senseless, think to do. 

The trick is to frame one’s searches in Boolean terms, without the connectors, to improve the odds that the first two pages of hits will produce something relevant, recent, and reliable; and if the Google search does that, then you will have saved your client a pot of money.  Because after doing such a search and arming yourself with a hook—some relevant, recent, reliable legal authorities that you can use to get yourself oriented—you can then turn to the pricey, law-specific, proprietary databases upon which most American lawyers rely.  By turning to those pricey, proprietary databases only after you have educated yourself a bit using free source materials improves the odds  that you will frame better searches in those fancy databases instead of floundering around while the meter is running.  In other words, using Google for initial legal research is a swell idea—as long as you resist the urge to search in a Googley kind of way.  

Perhaps a specific example might “turn them to shapes, and give to airy nothing/ A local habitation and a name.”  [A Midsummer Night’s Dream, V.1]  Let’s say you need to research what kinds of circumstances permit a person to rescind a contract under Texas law.  But you have never really dealt with a situation where someone is trying to undo a contract; you are more accustomed to fights where the allegedly injured party wants to recover its benefit-of-the-bargain damages, including lost profits—which are generally much greater than the sum associated with just unwinding the clock and putting the unhappy litigant back at square one.  To find stuff that is useful from a legal perspective, you have to craft a search that reads something like this: “Texas law rescission remedy available.”  Even without knowing much, if you know to frame the search in this way you are more likely to capture the answer to a question that someone—a legal scholar or a court—might have addressed in a useful, thoughtfully developed text (as opposed to some blawg post generated by someone rambling on at odd hours of the night).  You are more likely to get useful hits than if you type “Is rescission a cause of action or remedy?”  While the latter exemplifies better grammar and may better approximate what you want to ask of the world, it is just too broad.  Worse still would be simply typing “rescission” or “rescind a contract.”

Nowadays, using Google (and other Internet search engines) is a fact of daily life for virtually everyone.  But using Google as an effective tool to conduct professional research requires employing artful and slightly unnatural constructions. 

Which seems to define what a lot of people think of as “Shakespearean.” 

Which means that an obsession with Shakespeare is indeed the secret to professional success.

“The ‘why’ is plain as way to parish church.”  (As You Like It, II.7).

Ready for Some Football

"That time of year thou mayest … me behold” [Sonnet 73] spending an inordinate number of hours on the couch yelling intermittingly at the TV.  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. 

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.  After all, football is a (barely) sublimated glorification of war.  All sports are really.  But football makes the metaphor impossible to miss.  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.

But unlike war, with football and other sports, there are clear rules and referees.  There are predictable ways to assess winners and losers.  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).

Litigation is more like football than war in that adversaries engage in combat but are tethered by rules and refs.  Litigation is more like war than football in that what it means to “win” can be rather ambiguous and fluid.  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).  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.  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.  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.  In other words, the aspects of litigation that seem more like football are actually far more complex and nuanced than those governing football.  And when something we don’t understand seems superficially analogous to something familiar and then the analogy breaks down, this can, perhaps, breed more consternation than feelings of total incomprehension.  A paradox, indeed.

Shakespeare, of course, had nothing to say about football.  And I do not see much in his work to suggest that he was much of a sports fan.  He used “sport” as a pejorative term to refer to something pleasurable but mildly sadistic.  See, e.g.:  “As flies to wanton boys are we to the gods; they kill us for their sport.”  [King Lear, IV.1]; or this from the Princess in Love’s Labour’s Lost, as she embraces a plan whereby the girls intend to humiliate the boys, who have shunned the girls’ company:  

There's no such sport as sport by sport o'erthrown,

To make theirs ours and ours none but our own:

So shall we stay, mocking intended game,

And they, well mock'd, depart away with shame.
[V.2]

 Yet Shakespeare’s Globe Theater, like all Elizabethan theaters, was not just a venue for theatrical productions.  These venues housed bear-baiting competitions and other decidedly visceral sporting events on alternate days with productions of Hamlet, sort of like the Erwin Center in Austin houses both UT basketball games and Lady Gaga concerts.  So you would think that WS would have seen sports fanaticism as symbiotic with theater patronage and thus a good thing. 

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.

In any case, based on the scant evidence, I conclude that Shakespeare may not have shared my affection for football—or for the game of litigation.  He would, however, have understood my ambivalence about these things because of their similarity with warfare, a phenomenon that he occasionally celebrated (Henry V) but more often exposed as a highly destructive impulse and breeding ground for unhealthy ambitions (Hamlet, Macbeth, Othello, Julius Caesar, Titus Andronicus, etc., etc., etc.).  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. . . .

Take a Seat

In 1957 Thorton Wilder, Pulitzer prize-winning novelist and playwright, wrote a preface for a collection of the three most famous plays we had authored twenty years earlier.  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.  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).  He opted to strip all of that away, starting with the furniture.  No sets for him—except for a few non-descript chairs.  After all, he explains, “Have you ever noticed that in the plays of Shakespeare no one—except occasionally a ruler—ever sits down?”

That got me thinking.  Elizabethan theater, like Greek theater, certainly did not involve much in the way of set pieces.  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.  For instance, one of his funniest “low” scenes begins with the low-life Caliban (of The Tempest) 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:

CALIBAN

Lo, now, lo! Here comes a spirit of his, to torment me

For bringing wood in slowly. I'll fall flat;

Perchance he will not mind me.

 

Stumbling upon the prostrate Caliban, Trinculo marvels at the strange specimen’s stinkiness.  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:

TRINCULO

Alas, the storm is come again! my best way is to creep under his gaberdine; there is no other shelter hereabouts: misery acquaints a man with strange bed-fellows. I will here shroud till the dregs of the storm be past.

Then I thought about the pivotal scene in Hamlet involving the play-within-a-play.  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:

QUEEN GERTRUDE

Come hither, my dear Hamlet, sit by me.

HAMLET

No, good mother, here's metal more attractive.

LORD POLONIUS
[To KING CLAUDIUS] O, ho! do you mark that?
 
HAMLET

Lady, shall I lie in your lap?

[Lying down at OPHELIA's feet]

OPHELIA

No, my lord.

HAMLET

I mean, my head upon your lap?

OPHELIA

Ay, my lord.

HAMLET

Do you think I meant country matters?

OPHELIA

I think nothing, my lord.

HAMLET

That's a fair thought to lie between maids' legs.

OPHELIA

What is, my lord?

HAMLET

Nothing.

OPHELIA

You are merry, my lord.

HAMLET

Who, I?

OPHELIA

Ay, my lord.

HAMLET

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.

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.  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.

That observation got me thinking about how seating arrangements convey information in a different theatrical arena: in the courtroom.

When judges or justices enter, everyone stands up.  When the people in black robes sit, they are stationed at the highest level up there on "the bench."

The next level down is the witness "box."  When it is occupied, all eyes are fixed there, working to ferret out the truth.

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.

Then one finds the jurors in their "box," which is off to one side but usually raised slightly off the floor.  The jurors may not be as high as the judge, but when they make their entrances and exits, everyone stands.

Meanwhile, the stiff, pew-like rows in the back are reserved for the public.  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.

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.

Lowest of all are the chairs at counsel table.  The implication cannot be lost on anyone.  The only means those seated there have to elevate themselves is when they are questioning a witness or answering a judge’s questions.  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.  Only some trial courts permit lawyers to roam freely while examining witnesses.  And lawyers have to ask permission if they want to approach a witness or the bench.  They almost never get to approach the jury box—except during closing arguments.  But even when standing they are spacially below the seated people whom the lawyers address. 

All of this stagecraft is built into the ritual form.  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.  And those looking on get it without requiring a word of explanation.