The Bard Could Improve Lawyer Behavior

Alexandre Cabanel, "Portia"

Alexandre Cabanel, “Merchant of Venice”

Yesterday I reported on how a Georgia Federal Court judge, Thomas W. Thrash, regularly turns to Shakespeare to guide him in his judgments. Judge Thrash has graciously allowed me to share a speech he gave to George’s State Bar last year on “Shakespeare and Professionalism.” Apparently many in the legal profession are worried that law firms have become too competitive, territorial, and greedy. Shakespeare provides a healthy counter perspective.

I particularly enjoy the relish with which Judge Thrash quotes his Shakespeare. The Bard provides a model of living for us all, not just lawyers. The talk is presented here with minor emendations to fit a written format.

By U. S. District Judge Thomas W. Thrash, Jr.

 …Upon first glance, [a talk on Shakespeare’s lessons of professionalism for lawyers] may seem to be an odd choice of material. After all Shakespeare was not a lawyer. To the best of my knowledge, he never used the word professionalism. With only a couple of exceptions, lawyers and judges do not play large roles in his major plays.

But there is much to be learned from him…, and not just because of his grand and beautiful use of the English language. Many of his plays address the basic and fundamental questions of why people do bad things and why bad things happen to good people.

Let me start with the most famous statement by Shakespeare about lawyers, from Henry the VI, Part II:

First thing, let’s kill all the lawyers.

This is often quoted as a Dan Quayle-like statement that there are too many lawyers, or that life would be better without lawyers, or that lawyers are bad people. In context, however, exactly the opposite is true.

The statement is made by Dick the Butcher, the leader of a mob of anarchists that seek to overthrow all of England’s governmental institutions. Dick recognizes that in order to do this, he and his followers will have to get rid of the lawyers because lawyers are the defenders of the rule of law. Lawyers are defenders of a system of justice that curtails the arbitrary use of force. I will talk more about the pursuit of justice as an aspect of professionalism in a moment.

Although only two of Shakespeare’s major plays have lawyers and judges as their central characters, he talks a lot about lawyers and judges and trials. One Shakespearian scholar has suggested that before his father’s financial problems arose, Shakespeare was a pupil at one of the Inns of Court. He poses the hypothesis that Shakespeare got his first taste of the theater by staging plays there.

Whether that is true or not, there is no doubt that Shakespeare knew a lot about lawyers and the courts of justice. It is well documented that his plays were regularly performed at the Inns of Court. I suspect that there were more than a few law students drinking in the taverns – I won’t say brothels – that surrounded the Globe Theatre on the south side of the Thames River across from the City of London proper and outside of the jurisdiction of its authorities.

In The Taming of the Shrew, Shakespeare has one character say: “And do as adversaries do in law–Strive mightily but eat and drink as friends.” This addresses one of the core concepts of professionalism: civility. The Lawyer’s Creed includes this promise: “To the opposing parties and their counsel, I offer fairness, integrity, and civility.”

Unfortunately, lack of civility–particularly in the litigation context–is one of the major problems that we have as a profession in 2013. With the win-at-all-costs mentality that exists, particularly in high stakes civil litigation, lawyers are too quick to demonize their adversaries and too quick to accuse opposing lawyers of unethical and dishonest misbehavior. After that, it is hard to imagine eating and drinking as friends.

As often as not, this scorched earth approach to litigation backfires. Even when it succeeds in the short term, it makes it impossible to develop the professional relationships and friendships with opposing counsel that so enrich the practice of law. It also contributes to a decline in the public perception of lawyers as ethical practitioners in an honorable profession.

Let me repeat the Lawyer’s Creed that I mentioned just a moment ago: “To the opposing parties and their counsel, I offer fairness, integrity, and civility.” The concept of fairness includes not overreaching–not taking unfair advantage of an adversary. The most famous example in all of literature of overreaching or taking unfair advantage occurs in Shakespeare’s Merchant of Venice.

The merchant Antonio has borrowed three thousand ducats from a local moneylender, Shylock. Shylock hates Antonio and, as collateral for a loan, Antonio must sign a bond in which he promises to allow Shylock to cut out a pound of his flesh if he does not repay the loan on time.

All of Antonio’s ventures fail and he defaults on the loan. Shylock then demands a judgment awarding him a pound of Antonio’s flesh. When Antonio’s friends offer to pay double the principal of the loan, Shylock refuses them and says: “I would have my bond.” When the Duke of Venice pleads for mercy, Shylock replies,

The pound of flesh, which I demand of him,
Is dearly bought; ’tis mine and I will have it.
If you deny me, fie upon your law!
There is no force in the decrees of Venice.
I stand for judgment: answer; shall I have it?

Then Portia the heroine, disguised as a young Doctor of Laws, enters the court to advise the Duke. She makes the most eloquent plea for mercy ever heard in a court of law:

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blessed:
It blesseth him that gives and him that takes.
‘Tis mightiest in the mightiest. It becomes
The thronèd monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty
Wherein doth sit the dread and fear of kings,
But mercy is above this sceptered sway.
It is enthronèd in the hearts of kings.
It is an attribute to God himself.
And earthly power doth then show likest God’s
When mercy seasons justice. 

After Shylock refuses–“I crave the law, the penalty and forfeit of my bond”– Portia advises the Duke that Shylock is entitled to claim his pound of flesh under the law.

As Shylock summons Antonio to cut out his pound of flesh, however, Portia shocks and amazes everyone in the court when she says:

Tarry a little; there is something else.
This bond doth give thee here no jot of blood;
The words expressly are ‘a pound of flesh:’
Take then thy bond, take thou thy pound of flesh;
But, in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are, by the laws of Venice, confiscate
Unto the state of Venice.

Shylock demurs and asks for the return of his three thousand ducats. But Portia says that he can have nothing but his pound of flesh. Portia then advises the Duke that all of Shylock’s goods and lands are forfeited to the state because he – an alien – has sought to take the life of a citizen.

In other words, Shakespeare counsels us against overreaching and making unfair demands of our adversaries. I often think of Shylock demanding his pound of flesh when I am hearing a particularly nasty discovery dispute.

The Merchant of Venice is actually about two legal cases. One–the more famous–is this breach of contract suit. The other is a trust and estates case involving the will of Portia’s father. To those of you who know the story, this will seem to be an odd topic for discussion in a talk on professionalism. But bear with me: there is method in my madness.

Portia has inherited great wealth from her father. In his will, Portia’s father has set up a kind of lottery to determine who will marry her. He has left three chests: one of gold, one of silver and one of lead. In one of them is a portrait of Portia. A suitor must pick one of the chests. If he picks the one with the portrait of Portia, she must marry him. If he picks the wrong chest, he must leave immediately and promise never to ask another woman to marry him.

Each chest has an inscription. The chest of gold says, “Who chooseth me shall gain what many men desire.” The silver chest says, “Who chooseth me shall get as much as he deserves.” The chest of lead says, “Who chooseth me must give and hazard all he hath.”

Portia’s first suitor, the Prince of Morocco, chooses the chest of gold. When he opens it, he says: “O hell! what have we here?” Inside, instead of a portrait of Portia is a note that says:

All that glisters is not gold
Often have you heard that told.
Many a man his life hath sold
But my outside to behold.”

So he loses.

Portia’s second suitor, the Prince of Aragon, thinks that he deserves much in the way of estates, degrees and offices and chooses the silver chest. Inside is the portrait of a blinking idiot. So he loses.

Then Portia’s third suitor, Bassanio, who is in love with Portia and whom Portia loves, chooses the chest of lead. Inside, he finds the portrait of Portia, and they immediately leave for church to be married.

On the surface, this tale of Portia and her suitors would not appear to have much relevance to the subject of professionalism. But I think that it does have something to say about how the choices that we make can have a profound affect upon our professional lives. The chest of gold represents the desire for wealth–“what many men desire.” I submit to you that those for whom the practice of law is solely a quest for money and wealth will find, as did the Prince of Morocco, that all that glisters is not gold.

The choice of the silver chest–“what he deserves”–is the other side of the wealth coin: that is, the pursuit of material possessions and the status that money can buy. Bassanio’s choice–the chest of lead–I suggest to you is the correct one.

It is the choice to find something that you love in the practice of law and devote yourself wholeheartedly to it, although without sacrificing other important relationships with family and friends. That choice may be becoming an equity partner in a big Atlanta law firm and making a gazillion dollars. But it may also be setting up a solo practice in a smaller city or town, or becoming a prosecutor or a public defender or a legal aid lawyer, or entering public service as a government lawyer or a judge. The important lesson from the tale of Portia’s suitors is that success in the practice of law is not measured by how much money you make or by the possessions that you accumulate.

I do not mean to minimize the importance of making a decent living by the practice of law. But the unrestrained desire to make more money and to acquire or retain a rich and extravagant lifestyle are for some the cause of unprofessional behavior.

To me as a lawyer and now a judge, one of the great things about Shakespeare is his insight into why people behave badly. Some of his most vivid characters are simply amoral. They have no moral sense of what is right and wrong. For whatever reason, whether ego, envy, or ambition, they will do anything to get what they want. Iago in Othello and Edmund in King Lear are characters such as this. The tragedy of Othello is that he does not recognize Iago for what he is. Thus, over the course of the play, Othello is transformed from a respected and heroic general into a homicidal maniac by the lies and machinations of Iago. Beware the Iagos of this world.

There are other characters who know that what they are doing is wrong but do it anyway because of greed, ambition, or sheer folly. King Claudius in Hamlet, Macbeth and Lear are characters like this. King Claudius, who has murdered his brother to become king and then married the brother’s widow, is particularly eloquent in describing the struggle between his conscience and the desire to keep what he has attained through his evil deeds. After the play within the play, he tries to pray but has trouble:

O, my offence is rank it smells to heaven;
It hath the primal eldest curse upon’t,
A brother’s murder. Pray can I not…
 My fault is past. But, O, what form of prayer
Can serve my turn? ‘Forgive me my foul murder’?
That cannot be; since I am still possess’d
Of those effects for which I did the murder,
My crown, mine own ambition and my queen.
May one be pardon’d and retain the offence?…
My words fly up, my thoughts remain below.
Words without thoughts never to heaven go.

Others like Othello and Antony in Antony and Cleopatra do not intend to do evil but are destroyed by their own passions and lack of self awareness.

Shakespeare also knows that bad behavior usually begets more bad behavior. Macbeth, who has murdered King Duncan and his attendants while the King was an overnight guest in Macbeth’s castle and who has caused the murder of his comrade Banquo, says to Lady Macbeth:

For mine own good,
All causes shall give way. I am in blood
Stepped in so far that, should I wade no more,
Returning were as tedious as go o’er.

He goes on to cause the slaughter of Macduff’s wife and children before he himself is killed in battle.

Almost like Macbeth, every lawyer that I have sent to prison for stealing from his clients has started out stealing just a little to support a declining law practice or an unaffordable standard of living. He sincerely intends to pay it back. Then he steals a little more from another client to pay off the first. He then steals more from another client to pay off the second and so on. He tells a little lie, and then a bigger one to cover up the first lie, and then a bigger one, and so on. He then ends up sitting in a federal prison after his law license has been revoked thinking to himself, “How the hell did I get here?”

Always remember that it is easier to tell you wife, “Honey, we can’t afford the country club or we have to take Johnny out of private school or we can’t take that ski vacation this year” than it is to explain why the FBI is knocking on your door at 6 a.m. with a warrant for your arrest.

But back to Shakespeare. As I said earlier, Shakespeare does not talk about professionalism as such. Two things that he does talk about a lot – and that are relevant to us today as members of the legal profession – are reputation and honor. Going back to Iago, the terrifying thing about him is that he starts out telling Othello the truth. He tells Othello that he should not be jealous. But that plants the seed that maybe he has something to be jealous about. When Othello demands to know what he thinks about his lieutenant Cassio and his wife Desdemona, Iago says:

Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash. ‘Tis something, nothing:
‘Twas mine, ’tis his, and has been slave to thousands.
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.

Iago uses his reputation for honesty to destroy those he envies, as he in turn is destroyed in the end.

It is in the history plays that Shakespeare talks the most about what it means to be an honorable–or a dishonorable–man. In Act 1 of Richard II, Henry Bolingbroke accuses the Duke of Norfolk of being a traitor. They each challenge the other to a duel: trial by combat. King Richard wants to prevent a quarrel which will reflect badly upon him regardless of the outcome. He tells Norfolk to forget the insult to his honor. Norfolk responds:

Myself I throw, dread sovereign, at thy foot.
My life thou shalt command, but not my shame…
My dear dear lord,
The purest treasure mortal times afford
Is spotless reputation: that away,
Men are but gilded loam or painted clay…
Mine honor is my life; both grow in one:
Take honor from me, and my life is done:
Then, dear my liege, mine honor let me try;
In that I live and for that will I die.

King Richard foolishly forbids the trial by combat and banishes Norfolk from England for life. By the end of the play, Bolingbroke has usurped Richard’s crown.

A discussion of the concept of honor in Shakespeare would not be complete without mention of the prince of dishonor, Sir John Falstaff, the fat old knight who eats, drinks, cheats, lies, and fornicates his way through life. Prince Hal–the heir to the King of England–much to his father’s dismay has fallen in with Falstaff and his crowd of riotous brigands at the Boar’s Heads Inn.

A side note: Falstaff claims that he is a professional. When Prince Hal berates Falstaff for making a living by highway robbery, Falstaff responds:

Why, Hal, ’tis my vocation, Hal.
 ‘Tis no sin for a man to labor in his vocation.

As members of an honorable profession we must appreciate that professionalism means more than just technical competence.

Falstaff is not motivated by honor. He is a loveable old rogue. When just before the battle of Shrewsbury Prince Hal reminds Falstaff that “thou owest god a death,” Falstaff in a soliloquy says:

‘Tis not due yet. I would be loath to pay Him before His day. What need I be so forward with Him that calls not on me? Well, ’tis no matter. Honour pricks me on. Yea, but how if honor prick me off when I come on? How then? Can honor set to a leg? no. Or an arm? no. Or take away the grief of a wound? No. Honor hath no skill in surgery, then? No. What is honor? A word. What is in that word “honor”? What is that “honor”? Air. A trim reckoning. Who hath it? He that died o’ Wednesday. Doth he feel it? No. Doth he hear it? No. ‘Tis insensible, then? Yea, to the dead. But will it not live with the living? No. Why? Detraction will not suffer it. Therefore, I’ll none of it. Honor is a mere scutcheon. And so ends my catechism.

And true to form, when the crisis comes in the battle, Falstaff flops down on the ground and pretends to be dead in order to save himself. I could go on for hours about Falstaff’s topsy-turvy ethical world. But enough. We love Falstaff because he is witty, irreverent, a teller of a tall tales. He is a great drinking buddy. He is just fun to be around. But when Hal becomes King, he knows that he must leave Falstaff and turn to more honorable advisors such as the Lord Chief Justice. The life of Falstaff is a great lesson to those who would be tempted to sacrifice honor and reputation for immediate gain or pleasure.

Another aside: When Prince Hal becomes King, Falstaff expects to be the first man in England. But Prince Hal knows that a good ruler must possess and exercise virtues and values that are the opposite of Falstaff’s. The good ruler must be patriotic, diligent and devoted to duty, loyal, trustworthy and brave. Hal knows that he must abandon Falstaff and the dissolute crew from the Boar’s Head Inn. Thus, in the coronation procession, when Falstaff says: “God save thee, my sweet boy!” the King responds:

I know thee not, old man: fall to thy prayers;
How ill white hairs become a fool and jester!
I have long dream’d of such a kind of man,
So surfeit-swell’d, so old and so profane
But, being awaked, I do despise my dream
Presume not that I am the thing I was;
For God doth know, so shall the world perceive,
That I have turn’d away my former self;
So will I those that kept me company.
When thou dost hear I am as I have been,
Approach me, and thou shalt be as thou wast,
The tutor and the feeder of my riots:
Till then, I banish thee, on pain of death,
As I have done the rest of my misleaders,
Not to come near our person by ten mile.

Prince Hal and Falstaff are lessons in professionalism.

Good ol’ Will Shakespeare has much to teach us even now 400 years after he wrote his last play. That is why the plays are still read and performed. Certainly he has enriched my life, particularly in the last few years. I hope that this presentation has been of some value to you and not much ado about nothing.

And I hope that you are not recalling what Macbeth says as his faces his ultimate calamity:

Life’s but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

Rather, I hope that you are thinking of Hamlet:

What a piece of work is a man! How noble in reason, how infinite in faculty! In form and moving how express and admirable! In action how like an angel, in apprehension how like a god!

Thank you.

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