Sea Change

Those are pearls that were his eyes:

Nothing of him that doth fade

But doth suffer a sea-change

Into something rich and strange.

“Ariel,” The Tempest, I.2

It must be unusual for a culture in the midst of a sea change to see the palpable signs of that change unfold in real-time as we are now. But, as evidenced by the build-up surrounding the Prop 8 and DOMA oral arguments  before the Supreme Court this week, that is precisely what is happening now with attitudes toward homosexuality and the right of LGBT folks to be treated as equal under the law. The times they are a’changin’—rapidly, unmistakably.

I remember sitting in a law firm conference room only a few years ago while some lawyers made overtly homophobic remarks. Meanwhile, I knew that one of our other colleagues in the room at the time was gay, though in the closet. Thinking about the agony he must have been feeling at that moment—and in so many similar moments—made me see red. But all I did was start waxing lyrical about the then-recent film Brokeback Mountain. My comments only succeeded in getting the trash-talkers more fired up. Later, I thought about how progress comes in fits and starts: I believed that these same lawyers would not have dared make similar racist remarks in a law firm conference room; but there did not seem to be any self-consciousness about making homophobic and sexist remarks in such quarters at that time. I wondered then how long it would be before being openly gay was as acceptable in a law firm as it was in the theater world in which I had spent about three decades before heading to law school.

Now it really does seem that things are different. It’s not that racism, homophobia, and sexism are vanishing from the earth—or even from the hearts of most people. But a sufficient mass of people are not comfortable with the animus—the “moral opprobrium”—that fueled the passage of the “Defense of Marriage Act” in 1996; therefore, the feeble rationale for discriminating against legally married same-sex couples is easier to spot. That is, attempts to justify the distinction are more obviously difficult to make—at least in terms of the traditional methods of persuasion associated with legal analysis. The vector of change is also now obvious to most. (Even Chief Justice Roberts commented on the “sea change” from the bench during the DOMA argument yesterday, though he suggested that it might be attributable merely to the “political force and effectiveness” of the gay rights movement: “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” he said to Roberta Kaplan, arguing for the Respondent.)

Political developments often reflect or try to capitalize on the winds of change—which can be quite ephemeral and whimsical. But political sea changes that result in greater inclusivity are generally grounded in the triumph of both reason and empathy over reactionary thinking and fear of The Other. And although sea changes can seem abrupt, they are really the result of a long, dynamic process that involves many fits and starts, not a linear trajectory. Shakespeare, for instance, might have found the whole tempest over gay marriage confusing since he did not hesitate to write love poems to both a young boy and an older married woman—all while he himself was married to an even older woman whom he had knocked up and then virtually abandoned when he was really still a teenager. That is, the utopic notion of marriage as a sacred bond between one man and one woman only that exists principally for the purpose of begetting legitimate children, Shakespeare would not have recognized. After all, in his day, marriage was really about the exchange of property—with the woman being the main item of property involved in the transaction as a matter of law. And in plenty of places in the world at that time, the Biblical standard of polygamy was still the preferred form of marriage for those men who could afford it. So each time I hear someone defending DOMA based on the premise that marriage has “always” been about a certain type of relationship between one man and one woman, I wonder how carefully they have read their Bible. If the Bible is the touchstone for contemporary arguments about how homosexuality is a scourge and so homosexual people cannot be allowed to marry or at least how this minority group cannot be permitted this option, despite the 14^th Amendment’s Equal Protection Clause, unless and until the majority in every state decides to permit it, then it is hard to see how the cultural sea change that led to rejecting Biblical notions of polygamy as the gold standard for marriage can be justified. Constitutional interpretation should not be a matter of political whim, personal preference, or religious creed; but constitutional interpretation shouldn’t be oblivious to coherent political sea changes that resonate with fundamental democratic principles either.

Gone to Tuscany

I regret failing to blawg upon the 50^th anniversary of the landmark decision Gideon v. Wainwright, in which the Supreme Court recognized that the Constitution requires that an indigent person charged with a criminal defense has the right to the assistance of counsel. I was busy preparing for an event meant to educate people that, although Gideon is indeed something to be proud of, the United States still has a ways to go in terms of its criminal justice system. Suffice it to say that my contribution to this particular event involved drawing a contrast between Tuscany and Texas. The former has an annual event—La Festa della Toscana—devoted to promoting the concepts of “international peace, justice and liberty.” The day chosen for the initial festival, November 30, was the same date as the day in 1786 when a law, promulgated by Tuscany’s Grand Duke, Peter Leopold, abolished the death penalty in Tuscany with a mere stroke of his autocratic pen. The law also banned torture and mutilation, which Leopold saw as being of a piece with the death penalty, all instruments of “barbaric people.” Peter Leopold’s legislative decree made Tuscany the first state in the world to take this bold step—for good. By contrast, try imagining Texas, which continues to execute more people than virtually all other U.S. states[1] combined, hosting a similar festival: “Join us for Fiesta Tejas—beer and barbeque will abound as the state celebrates Attorney General Greg Abbott’s leadership in pursuing a legislative repeal of the death penalty. Everyone welcome!”

Okay, some things defy imagination.

Yet imagining reasons to enjoy a visit to Tuscany are not so hard. If you need further assistance, I suggest hunkering down to watch the 1993 film version of Shakespeare’s Much Ado About Nothing, starring Emma Thompsons and Kenneth Branagh. The film was shot entirely in a Tuscan villa: http://www.vignamaggio.it/index-english.html Although marred somewhat by Branagh’s decision to cast certain American stars who couldn’t quite handle the Bard’s poetry, the film is still a delight—particularly because most everyone involved seemed to be having such a grand time. And who wouldn’t have fun romping in the hills of Tuscany? As Roger Ebert’s review stated at the time: “In the opening scene of Much Ado About Nothing, Kenneth Branagh insists on the tone the movie will take: These are healthy, joyful young people whose high spirits will survive anything, even the dark double-crosses of Shakespeare's plot.” Treating yourself to a vicarious trip to Tuscany through that version of Much Ado would be a fantastic way to celebrate the arrival of spring and to commemorate the unfulfilled promises of Gideon. Much Ado teaches that human beings, in their dealings with their fellows, are capable of grave injustices, bumbling incompetence, and hopeful leaps of faith. This complexity is hardly “nothing” about which “much ado” should not be made. But among other things, old WS was a master of irony.

Come you, sir: if justice cannot tame you, she

shall ne'er weigh more reasons in her balance: nay,

an you be a cursing hypocrite once, you must be looked to.

“Officer Dogberry,” Much Ado About Nothing, V.1

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[1] The United States is the only Western democracy that retains the death penalty, which places it in the same club as countries like China, Iran, Saudia Arabia, and Somalia. See http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries.

It Is Too Long

 I have tried to comfort my students with anecdotes about how I still get my papers graded ruthlessly by even the most benign supervisors. This kind of intervention is just fundamental to law practice, which, at its best, is always cooperative. Any written work prepared for public consumption by someone working in a law office will get edited. Sometimes the editing suggestions other lawyers provide are simply akin to what dogs do when out for a stroll. But often, having another smart person review one’s work saves the primary author from profound embarrassment or at least pushes a person to drill deep or to seek out a more graceful formulation—all of which is “devoutly to be wish’d.” (Hamlet, III.1)

So why do students and young associates seem peculiarly prickly about getting feedback on their writing these days? Is it more evidence of this generation’s “entitlement” issues? Or of a jarring generational gap between Millennials and their bosses that is creating all kinds of problematic workplace dynamics, but especially in law firms? Is it just that I am tired and thus resent being made to feel like the bad guy when I have taken a 75% pay cut to assume a service function vis-à-vis journeymen who do not yet have a clue about what is good for them?

Is it all of the above?

Who can say.

What I can say is that even William Shakespeare could have used a good editor. That’s right. Numerous passages from any given play can readily be discarded—not just to accommodate minuscule, modern attention spans, but because the material is not that great and weighs down the action. Here’s a “for instance” from the best-play-ever:

First Player

'Anon he finds him
Striking too short at Greeks; his antique sword,
Rebellious to his arm, lies where it falls,
Repugnant to command: unequal match'd,
Pyrrhus at Priam drives; in rage strikes wide;
But with the whiff and wind of his fell sword
The unnerved father falls. Then senseless Ilium,
Seeming to feel this blow, with flaming top
Stoops to his base, and with a hideous crash
Takes prisoner Pyrrhus' ear: for, lo! his sword,
Which was declining on the milky head
Of reverend Priam, seem'd i' the air to stick:
So, as a painted tyrant, Pyrrhus stood,
And like a neutral to his will and matter,
Did nothing.
But, as we often see, against some storm,
A silence in the heavens, the rack stand still,
The bold winds speechless and the orb below
As hush as death, anon the dreadful thunder
Doth rend the region, so, after Pyrrhus' pause,
Aroused vengeance sets him new a-work;
And never did the Cyclops' hammers fall
On Mars's armour forged for proof eterne
With less remorse than Pyrrhus' bleeding sword
Now falls on Priam.
Out, out, thou strumpet, Fortune! All you gods,
In general synod 'take away her power;
Break all the spokes and fellies from her wheel,
And bowl the round nave down the hill of heaven,
As low as to the fiends!'

Does Hamlet really require that we sit back while the First Player yammers on like this—just so Polonius can then comment “It is too long”? The joke is not worth the build-up.  Indeed, the whole scene (which I will not reproduce) exists only as a vehicle for Hamlet to deliver the wonderful “Hecuba” soliloquy. But all that soliloquy needs is one fleeting, prefatory moment, a mere glimpse of a rehearsal to establish the idea that actors are amazing in the way they can conjure up believable fake emotions better than normal people can express real emotions. Then Hamlet can say:

Hamlet

O, what a rogue and peasant slave am I!

Is it not monstrous that this player here,

But in a fiction, in a dream of passion,

Could force his soul so to his own conceit

That from her working all his visage wann'd,

Tears in his eyes, distraction in's aspect,

A broken voice, and his whole function suiting

With forms to his conceit? and all for nothing!

For Hecuba!

What's Hecuba to him, or he to Hecuba,

That he should weep for her? What would he do,

Had he the motive and the cue for passion

That I have? He would drown the stage with tears

And cleave the general ear with horrid speech,

Make mad the guilty and appal the free,

Confound the ignorant, and amaze indeed

The very faculties of eyes and ears. Yet I,

A dull and muddy-mettled rascal, peak,

Like John-a-dreams, unpregnant of my cause,

And can say nothing; no, not for a king,

Upon whose property and most dear life

A damn'd defeat was made. Am I a coward?

Who calls me villain? breaks my pate across?

Plucks off my beard, and blows it in my face?

Tweaks me by the nose? gives me the lie i' the throat,

As deep as to the lungs? who does me this?

Ha!

'Swounds, I should take it: for it cannot be

But I am pigeon-liver'd and lack gall

To make oppression bitter, or ere this

I should have fatted all the region kites

With this slave's offal: bloody, bawdy villain!

Remorseless, treacherous, lecherous, kindless villain!

O, vengeance!

Why, what an ass am I! This is most brave,

That I, the son of a dear father murder'd,

Prompted to my revenge by heaven and hell,

Must, like a whore, unpack my heart with words,

And fall a-cursing, like a very drab,

A scullion!

Fie upon't! foh! About, my brain! I have heard

That guilty creatures sitting at a play

Have by the very cunning of the scene

Been struck so to the soul that presently

They have proclaim'd their malefactions;

For murder, though it have no tongue, will speak

With most miraculous organ. I'll have these players

Play something like the murder of my father

Before mine uncle: I'll observe his looks;

I'll tent him to the quick: if he but blench,

I know my course. The spirit that I have seen

May be the devil: and the devil hath power

To assume a pleasing shape; yea, and perhaps

Out of my weakness and my melancholy,

As he is very potent with such spirits,

Abuses me to damn me: I'll have grounds

More relative than this: the play 's the thing

Wherein I'll catch the conscience of the king.

And truly, the “Hecuba” soliloquy itself goes on too long. Without a moment’s hesitation I would, for starters, cut this silly excess:

Who calls me villain? breaks my pate across?

Plucks off my beard, and blows it in my face?

Tweaks me by the nose? gives me the lie i' the throat,

As deep as to the lungs? who does me this?

Ha!

'Swounds, I should take it: for it cannot be

But I am pigeon-liver'd and lack gall

To make oppression bitter, or ere this

I should have fatted all the region kites

With this slave's offal: bloody, bawdy villain!

Remorseless, treacherous, lecherous, kindless villain!

Go back and read the speech without it and see if I do not speak true. . . .

Beware the Ides of March

 As the ides of March approaches, I have been working with my daughter to memorize that great bit of rhetoric, Marc Antony’s “Friends, Romans, Countrymen” speech. That is one of those texts that suffers from being too familiar: everyone thinks they know it, so we forget to notice just how good it is. In this, it is like The Great Gatsby, “A Road Not Taken,” and so many other literary classics wasted on us in our youth.

Part of why English teachers make kids learn Antony’s speech is that it employs numerous classical rhetorical devices. I will spare you the Latinate nomenclature. But really, legal writers can benefit from a close look at the devices that make Antony’s speech so effective because these same tricks can be utilized to make any kind of persuasive writing sing.

For instance, the speech begins with a three-item list (“Friends, Romans, Countrymen). Lists of three tend to please; they strike just the right balance. And how the ear receives them can be controlled by whether and to what extend one includes conjunctions (like “and” or “or”) to link the items in the list. Here, Antony leaves out the conjunction because his list is a set of synonyms—three different ways to refer to the crowd he addresses, not three different groups. In terms of content, the list conveys that the speaker sees the audience in complex and favorable terms, a fraternal community of compatriots, which makes them feel implicitly affirmed.

Antony follows his list with a catchy double metaphor (“lend me your ears”). This opening line—“Friends, Romans, countrymen, lend me your ears”—does not follow a regular meter but is instead broken to create emphasis. The audience is thereby induced to do exactly what it is being asked to do: sit up and take notice.

The irregular opening line is followed up by a few patterned lines of classic iambic pentameter—

I come to bury Caesar, not to praise him.

The evil that men do lives after them;

The good is oft interred with their bones;

—followed by another line where the meter broken, this time mid-stream:

So let it be with Caesar.

The iambic pentameter is soothing, in stark contrast to the bitter cynicism of the lines’ content. The lyricism allows the speaker to slip in his harsh rebuke without beating anyone over the head just yet. But the broken line creates a pause to give the audience a bit of breathing space, a moment to reflect.

Then Antony introduces his theme, an ironic one, that is conveyed through insidious repetition. He refers repeatedly to “the noble Brutus” and the other “honorable men” who have just killed Antony’s benefactor, Caesar. And as long as the delivery of the actor playing Antony isn’t too snarky, the repetition of these phrases will do the character’s heavy lifting, making the point that Brutus’s nobility and the Senators’ honor are entirely suspect without the speaker having to come out and say so.

The speech also includes concrete examples that support Antony’s thesis—that Caesar was killed not because he was ambitious—which allows the audience to visualize the rebuttal point he is making:

·         He was Marc Antony’s friend “faithful and just to [him]”

·         “He hath brought many captives home to Rome/ Whose ransoms did the general coffers fill”

·         “When that the poor have cried, Caesar hath wept”

·         “You all did see that on the Lupercal/ I thrice presented him a kingly crown,/ Which he did thrice refuse”

All of this creates doubt about what the other guy has been saying without having to say “Brutus is full of it; he’s the ambitious mo-fo who needs to be cut down to size.”

Moreover, the speech is peppered with rhetorical questions, e.g., “In this did Caesar seem ambitious?” Such tropes are, of course, implicitly answered by the question itself.

Finally, Antony manages to appeal to his audience’s sense of justice without directly calling them out for being an ignorant, whimsical bunch of sheep:

I speak not to disprove what Brutus spoke,

But here I am to speak what I do know.

You all did love him once, not without cause:

What cause withholds you then, to mourn for him?

O judgment! thou art fled to brutish beasts,

And men have lost their reason.

Up to this point, Antony has remained in total control of his rhetoric and thus of his audience. Only after this measured build-up does he finally permit himself an emotional indulgence:

. . . . Bear with me;

My heart is in the coffin there with Caesar,

And I must pause till it come back to me.

And of course this emotional hiccup is itself artful. Yet if a person recites the speech as it is designed to be recited—as Shakespeare’s musical patterns practically force a person to recite it—the speech will induce real emotion. The speaker will choke up at just the right place, which, in turn, will unsettle/move the audience in just the way the speaker intends, but without seeming overtly manipulative.

I suggest you go try to falsify my theory. Spend enough time with the speech such that you won’t trip over your tongue. Then read it just as the meter and phrasing and repetition directs you to do. You will feel the magic. Then think about how you might steal some of these same devices in crafting your next piece of legal writing. By doing so, perhaps you will make that brief or client pitch sing such that you need not fear the ides of March—or whenever that next deadline of yours happens to fall.

Yah, Baby, the Course of True Love Never Did Run Smooth

. . . for aught that I could ever read,

Could ever hear by tale or history,

The course of true love never did run smooth[.]

A Midsummer Night’s Dream (I.1)

I have been harping on a certain 5^th-grade production of A Midsummer Night’s Dream. Now that the production has come to fruition (a sheer triumph, I might add), I note that a particular casting device employed in said production might be an apt metaphor for something legal writers should keep in mind: your audience is easily confused; so cut them some slack.

Shakespeare’s bucolic comedy is set in motion by a domestic crisis: Hermia’s father wants her to marry Demetrius; but Hermia is in love with Lysander. Meanwhile, Hermia’s childhood chum, Helena, is in love with Demetrius who wants to marry Hermia. When Hermia confides in her pal Helena that Hermia and Lysander plan to flee Athens and head for “the woods” towards some dowager aunt’s home where they plan to marry in secret, Helena decides to tell Demetrius about the plot in hopes of currying his favor. That plan, however, backfires; Demetrius spurns Helena yet more heartlessly and chases after Hermia leaving Helena to follow like a spurned “spaniel.” Deep in the woods, even stranger things occur. The lovers unwittingly cross paths with the spritely fairy, Puck, who adds to the havoc by casting a spell on Lysander’s eyes such that he suddenly ditches Hermia for Helena and then similarly enchants Demetrius, so that he too spits on Hermia and turns the charm on the previously despised Helena—much to the chagrin of both maids.

All is set “right” in the end. But the audience is supposed to keep things straight through the following permutations spanning a single, crazy night romping in the woods:

·         Hermia, who loves Lysander, is beloved by Demetrius who is loved by Helena; then

·         Helena is loved by Lysander and Demetrius, both of who formerly loved Hermia; then

·         Hermia loves Lysander who loves her back; and Helena loves Demetrius who loves her back.

Shakespeare adds to the dizzying effect by giving his two female lovers rather similar names. He only eases the audience’s burden by making it clear that Hermia is supposed to be “little but fierce” while Helena is a “tall personage.” Lysander and Demetrius have distinguishable names but indistinguishable personalities and verbal ticks.

In said fifth-grade production, the roles of Hermia, Helena, Lysander, and Demetrius were all “double cast”—meaning: two different actors played each role. Why? So everybody in the class would have a meaningful role. But the effect?

Perhaps more confusion than Will Shakespeare had in mind.

Although the directorial motive in this particular production was admirable, the additional layer of complexity serves as an object lesson for lawyers.

Ensuring that one’s audience can keep straight the characters in cases that one wants to describe to third parties--be they judges or juries—is rather like trying to untangle the web of romantic attachments in Midsummer. Shakespeare, clever dude that he was, built confusion into his work product as a means to further his theme while simultaneously taking pains to avert a descent into absolute chaos. In briefs and memos, even if your case is about some dizzying array of credit default swaps or other business machinations gone awry involving vast numbers of bad actors, the legal writer really needs to work overtime to render the confusion accessible. Doing that requires a difficult balancing act, assessing just how much concrete detail will help make the underlying narrative palpable without overwhelming the audience such that it is lost in the weeds of irrelevant minutiae.

Good luck with that—for it is a course that never did run smooth. . . .

Accidental Alliteration

Years ago, a professor made a comment on a paper of mine that has stayed with me through the years. He circled a phrase (the precise contours of which I cannot remember) and warned me to “watch out for accidental alliteration.” At the time, I was surprised by the comment; mostly, I was surprised that the comment made perfect sense. The reader had noted something that had simply eluded me, the writer—a mindless use of language that had resulted in a formulation that was a tad distracting, if not downright comical (when I did not intend to be either distracting or comical).

In case anyone needs a refresher course: alliteration is a poetic device that involves capitalizing on music created by repeating the initial sound in a series of words. An example of an effective alliteration is: “I watched the bare brown back of the prisoner marching in front of me.” George Orwell, “A Hanging” (an essay); or even more artful: “The wind had blown off, leaving a loud, bright night, with wings beating in the trees and a persistent organ sound as the full bellows of the earth blew the frogs full of life." F. Scott Fitzgerald, The Great Gatsby.

Shakespeare consciously produced both lovely, lyric alliterations and instances of comical (quasi-accidental) alliteration. First, consider this from the Prologue to R & J:

From forth the fatal loins of these two foes;

A pair of star-cross’d lovers take their life.

And compare that with Bottom’s speech as the distraught “Pyramus” in Midsummer’s hilarious play-within-the-play:

Sweet Moon, I thank thee for thy sunny beams;

I thank thee, Moon, for shining now so bright;

For, by thy gracious, golden, glittering gleams,

I trust to take of truest Thisby sight.

But stay, O spite!

But mark, poor knight,

What dreadful dole is here!

Eyes, do you see?

How can it be?

O dainty duck! O dear!

Thy mantle good,

What, stain'd with blood!

Approach, ye Furies fell!

O Fates, come, come,

Cut thread and thrum;

Quail, crush, conclude, and quell!

(Midsummer, V.1)

In other words, Shakespeare knew a thing or two about alliteration and was well aware of the treacherously fine line between poetic trope and bloviated bluster and knew how to exploit both sides of that line.

Legal writers can learn from this luminous line. Composing without listening for accidental alliteration or clunky word repetitions can mean work product burdened with distracting or, worse, downright comical formulations, e.g.: “The statute’s speech restrictions restrict speech unrelated to the government’s asserted interest” and “The Court could contort to conclude the clause is unconstitutional only by concluding it is content-based.”

So I proffer: prepare to perceive your own non-purposeful­ purple prose and purge before going public­.