­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)