Shakespeare on Law, Ethics, and Advocacy

Episode Notes

Transcript

Michal Rogson:
Hello everyone, and welcome to Litigation Radio. I’m your host, Mic Rogson. I’m an expert in litigation and fiduciary bonds with a background in insurance litigation. I’ve been in-house for over 15 years, and I’m currently vice president at Skyward Specialty Insurance Company, where I manage their national court bond practice. On this show, we talk to the country’s top litigators, judges, and in-house counsel, academics, and anyone else we can find to discover best practices for developing our careers, winning cases, attracting clients, and building a sustainable practice, all while staying well and happy. Make sure to subscribe to the podcast on your favorite podcasting app so you never miss an episode. Litigation Radio is brought to you by the litigation section of the American Bar Association, which is where I make my home in the ABA. Not only is the litigation section the most welcoming community of highly talented litigators I’ve had the privilege to meet, it also provides litigators of all practice areas the resources we need to be successful advocates for our clients.
Learn more and join the community at ambar.org/litigation. Today, we’re talking about a subject that sits right at the intersection of two things people love to complain about, law school and Shakespeare. My guest has spent decades thinking about both, and he’s written a book suggesting the two aren’t as disparate as you might expect. Len Niehoff teaches at the University of Michigan Law School where his classes range from civil procedure and evidence to, depending on the semester, First Amendment, media law, or a seminar that once combined law and theology. He is also the author of Meeting Shakespeare at the Bar. Len, welcome to the show.

Len Niehoff:
Happy to be here. Thanks for having me.

Michal Rogson:
Why don’t we start with the origin story because you’ve said that this project didn’t start out with some grand theory of jurisprudence and literature. You said it began with burnout?

Len Niehoff:
Yeah. So I teach a first year, first term course in civil procedure and have taught it for many years. And one of the things that I discovered is that at some point toward the end of October, a sort of Paul would settle in over the classroom. The initial terror of the first days of law school and those first cold calls will have passed. The fear that goes with the imminence of final examinations is not yet set in. And so somewhere toward the end of October, the students just seemed to have lost a lot of their energy. So I was trying to figure out how to help them along with that. So I came up with a few ideas and one of them was on October 31st, on the day that class fell, to throw a little Halloween party and to invite the students to come, relax a little bit, and dress up either as a legal principal or as a party or a player from a famous case.

Michal Rogson:
I have to ask, were there any standout costumes that stick out in your memory to this day?

Len Niehoff:
Oh my gosh. We only have an hour. I could go on and on and on about all the creative, wonderful costumes that I’ve seen over the years. I’ll give you a couple favorites. We read a case called Tanner versus United States. It’s a stunning case. If you’re not familiar with it, it’s worth going back and rereading just for the sheer amusement value of it. It involves a guy who is convicted of a crime. And toward the end of the trial and after the trial, his lawyer comes into information that the jurors, while the trial was going on, were routinely getting drunk, doing drugs, even selling drugs – That’s insane. Behind the scenes. Yeah. It’s a crazy case. The Supreme Court issues this sort of stunning ruling saying that none of that evidence is admissible for purposes of revisiting the verdict. The students really love the case.
They warm to the case. They see all the practical problems that it presents. So every year I get some collection of students who are dressed up as the Tanner jurors. And I can tell the minute they come in because they’re carrying beer cans or empty whiskey bottles or they have powder on their nose or something else, but it’s always great fun. And in fact, last year, one of those images went sort of quasi-viral on social media. And I actually heard from the lawyer who had litigated the Tanner case telling me how delighted he was to see my students dressing

Michal Rogson:
Up

Len Niehoff:
In memory of this piece of litigation.

Michal Rogson:
Well, and they must really enjoy the prep that they need to do in order to create their costumes.

Len Niehoff:
Oh yeah. And we send a photographer in and photographer takes pictures of them. It’s really wonderful. We also every year read a case that involves a cow that is struck by a train on a railroad track. So as you might imagine, it’s a horrible case in some ways, but as you might imagine, every year I get students dressed as cows, as train engineers, even as railroad tracks. And a few years I’ve had students reenact the death of the poor cow, the fatal encounter in class. So not only are people dressing up, but there’s a performative element to it as well.

Michal Rogson:
Well, that certainly I’m sure livens things up. How did that lead to Shakespeare?

Len Niehoff:
Yeah. It’s a long story. I’ll try to make it a short one. So I wanted the students mostly to relax during that class, but I also felt like they should be reading something. That is after all the nature of law professors is we have to give you something to read. So I thought, well, what about if for Halloween they read the play The Crucible by Arthur Miller, which is of course a play, famous play about the Salem witch trials. My assumption was that most of them would probably have read the play before, but now I wanted them to read it differently. I wanted them to read it as lawyers. And I wanted them to see that with only a few months of legal education, they were now going to find things in the play, notice things in the play that they hadn’t noticed before. Issues about evidence, issues about due process, issues about the separation of church and state, issues about notice and an opportunity to be heard.
And to realize that looking at this play through the lens of the law really helped them find things in the play that they probably hadn’t noticed before and also deepen their understanding of why these legal principles matter.

Michal Rogson:
That’s interesting. I’d actually, I was talking with Jim about this in a previous episode. I’d had a senior seminar when I went to law school that asked me to do the same thing with film, not necessarily with literature. And it was fascinating to take the lawyer glasses and apply it to something that you might already be familiar with and just how it changes it. But I’m curious, okay, so you did The Crucible. Shakespeare, what’s the connection? How’d you get to Shakespeare?

Len Niehoff:
So the transition was actually a sort of a natural one. I’m a lifelong student of Shakespeare and lover of Shakespeare. Many, many years ago, I had a very, very brief and inglorious career as a player in a Shakespeare repertory company. Trying to figure out whether something similar could be done with Shakespeare was sort of a natural next step. And so I started moving that idea toward a two session mini seminar and then toward a more fully fleshed out seminar. And it turned out to be a really easy transition. Shakespeare is interested in a lot of the same things that lawyers are interested in. Issues like what counts as proof of a fact? What makes an argument persuasive and compelling and what fails to do so? Why does the rule of law matter? What might put the rule of law at risk? Under what circumstances are we responsible for the harm that comes to others?
How do we think about laws that have laid dormant and unenforced for a long time? Is it possible to so strictly enforce the law that it starts to border on something like the unlawful? These are questions that were really important to Shakespeare and they show up in a lot of his plays. And so it was kind of a natural transition to turn to Shakespeare and to start reading Shakespeare as lawyers, hence the subtitle for the book, Reading the Bard Through the Lens of the Law.

Michal Rogson:
It’s funny because I’m sure a lot of my fellow English majors out there listening to this are going, “Huh. I think of Shakespeare and I don’t necessarily instinctively think of the law. I think of the characters. I think of the human conflicts that he plays with, both in his comedies and in the dramas and tragedies. What did you do to structure this seminar? What does a seminar look like?

Len Niehoff:
Sure. So the basic structure is we start with some biographical information. I have them read one of the shorter biographies of Shakespeare just to help them get a sense of historical context, biographical background, and in part to help them understand how little we really know about Shakespeare. It’s a very natural thing when you’re doing this kind of analysis to start talking about what Shakespeare thought, what Shakespeare meant. And we would really have to know a lot more about Shakespeare than we do to make a lot of those estimates. So I want them to have some, I want us to all sort of have some shared background to start things off. And then we read a play a week. The class goes over 12 weeks, so that amounts to 12 plays. And some of them are obvious choices. They’re plays that have a trial right at the heart of the action.
So those are plays like Measure for Measure and the Merchant of Venice. Kind of hard to imagine teaching a Shakespeare in the law class where you didn’t do those two plays. And then there are other plays where they might not necessarily jump out at you as being about the law, but you don’t have to think terribly hard to see how there’s connection with legal questions. Examples of that might be Julius Caesar and Othello. And I’m not the only person to teach a Shakespeare in the law class. If you went around and looked at other Shakespeare in the Law courses or Shakespeare in the Law books, you’d probably find the four plays I’ve just mentioned are discussed in all of them. They’re pretty common. But then there were some less obvious choices that I decided to go with as well. Macbeth, King Lear, Hamlet, and a play that’s a bit less known than the ones I’ve mentioned.
Coriolinas, Shakespeare’s Last Tragedy, and one that is one of the plays that is set in Rome. So that’s the general outline of the class. And students do short papers along the way, five page reflection papers based on the play that we’ve read up to that point or the plays we’ve read up to that point. And the students are endlessly creative in the ways that they come to think about things.

Michal Rogson:
So you develop this seminar and at some point you say, “Okay, this is great.” And presumably your thoughts have evolved also in reading the endlessly creative work of your students. And at some point you decide you’re going to write a book. Now, I’m fascinated about the conceit of the book and the fact that you have it opening in a bar. I’m sensing a theme, Len. I mean, everyone’s coming as the drunk jurors and now you’ve got Shakespeare in a bar.

Len Niehoff:
Well, let me say first of all, that I’ve written a few other books. And as a general proposition, I hate writing books. Writing a book is like having a needy friend who greets you every morning and says, “What are you going to do for me today?” So I’m not a great fan of writing books. But when I turned to this one, the enthusiasm was there right away. In part, I think because of the same reason the students are enthusiastic about the course, which is that it’s an opportunity to think about things that relate to the love, but to do it in such a different context and do it in the context or in the aura of these magnificent works of literature. So I’d been teaching the subject for a little bit and I was driving one day trying to figure out, and as I was driving along, I was trying to figure out whether there was a book in here somewhere and what it would be about and what it would look like.
And I happened to be listening to the Shakespeare Unlimited Podcast, which is the podcast of the Folger Shakespeare Library. And they told a story about how in 2012, a history professor by the name of Martha Carlin found this obscure collection of notes in the Edinburgh University Library. And it turned out that it included a note about how Shakespeare and some of his buddies, including Ben Johnson, used to meet and talk at the Tabard Inn. This is of course a very important discovery because we know so little about Shakespeare. And so anything that gives us a contemporary insight into what his life was like is a gem. And this was a particularly shiny gem because the Tabert Inn is a sort of historical cred and literary cred all on its own. It’s the inn that was the setting that’s made famous by Chaucer’s Canterbury tales. It’s the inn from which the pilgrims sort of set out.
And so the idea of Shakespeare sitting around in this inn, talking literature with his buddies and carving, vandalizing little carvings into the wall, which he apparently did also, was kind of irresistible. And then I learned that the Tabert Inn was also right across the street from a court and that lawyers almost certainly would have been going to the Tabert Inn at the same time. And this gave me this idea of lawyers doing what they do, litigators especially, right? What do we do? We go to some local watering hole after our hearing and we sit around and we tell stories. We talk about our great triumphs. We talk about our embarrassing moments. We recount our magnificent cross-examinations. And that’s what we do. We all sit around and tell war stories.
And the idea that Shakespeare’s sitting in one corner talking about his stories and the lawyers are sitting in other corners talking about theirs is just kind of irresistible to me. So I thought, what if the idea for the book was just meeting Shakespeare at the bar? That we’re going to go and sit with him and we’re going to talk about all sorts of things that were interesting to Shakespeare and that are interesting to us and explore them in the ways that he helps us to explore. So that’s the theme of the book. The book goes through 12 plays, mostly the same plays we talk about in the

Michal Rogson:
Class that I teach. I was

Len Niehoff:
Going to ask. Yeah. Yeah. It’s pretty much the same. And we do them and the book addresses them in roughly the order that we think that Shakespeare wrote them. And then as to each play, there are two issues that I sort of tease out for us to look at and to ponder. So just to give you one example, the first play that I talk about in the book is a play called Titus Andronicus that probably not many people have read and for pretty good reasons. It’s an early work and it is unspeakably violent. As critics have compared it to sort of a Shakespearean Quentin Tarantino movie. And that’s understatement. It’s just unspeakably violent. And it’s a classic revenge drama in a lot of ways. And so we look at two questions in that chapter about that play. One is to take a close look at the idea of revenge and try and figure out how revenge and law are different if in fact they are.
And the second thing we look at is the problem of using extraordinary violence, especially sexual violence because some of the violence in Titus Andronica’s is sexual violence. Using that kind of violence as a source of entertainment and how we think about that, how courts have thought about that, and perhaps how Shakespeare thought about that. So that’s the general structure and the general approach of the book.

Michal Rogson:
Well, a lot of it sounds like the intersection of morality and the law. But what I’m curious about is you said that you went in order of chronology. Do you feel like Shakespeare’s understanding and engagement with the law evolved throughout the course of his writing or was that just, it was a simpler way of organizing it?

Len Niehoff:
I think that we see Shakespeare evolve in all sorts of ways. If you go chronologically, for example, a number of scholars have pointed out, and I would concur in this judgment, that when we get to Richard II, we start to see a whole new understanding on Shakespeare’s part of the interior life of human beings. How do human beings think when they’re by themselves? How do human beings experience things? What are the psychodynamics of human existence? And there are interesting characters in the earlier plays, but it’s sort of when we get to Richard II, we really start to see an evolution in Shakespeare’s thinking around that. His attitude toward law is a little bit trickier to trace because how he talks about law depends on what’s going on in the particular play. Got it. So evolution is a little harder to sense.

Michal Rogson:
I was just curious if using the chronology, he’s exploring simpler ideas initially and then they get more involved as his sophistication with both writing and potentially with the topics of the law grow. So I didn’t know if that was a factor or not.

Len Niehoff:
It’s a great question. And I think in a way the answer is, I think the answer probably sounds something like this. Shakespeare may grow more sophisticated and there may be more complexity around legal issues as the plays go on. But what’s stunning is how incredibly sophisticated he is about them even from the beginning. So Henry VI part two, which is one of the plays I write about in the book, is a very early play. It’s one of the early history plays, really the plays that Shakespeare cut his teeth on and that initially made him famous. They’re not much read these days or as much read these days, but in Shakespeare’s time, this was his entry into playwriting. And it is a play, Henry VI part two is a play that has so much to do with the law. And Shakespeare’s understanding of the way in which people use the law, abuse the law, invoke the law as if it had some sort of magical talismanic meaning.
The way in which law becomes cover for hypocrisy, cover for violence. It’s just a stunning achievement to think of this very young playwright sitting, I’m sure, in a pretty crummy room in a pretty bad part of London, trying to figure out how to write something meaningful. It’s just really, I think, a remarkable accomplishment to have that kind of understanding of the law so early in his career.

Michal Rogson:
Well, and I think part of this conversation begs the question, do readers need to have previously read these plays in order to be able to appreciate what the book has to offer? Because I’ve read a lot of Shakespeare. I may have read Henry the 6th, but I don’t recall if I did.

Len Niehoff:
Yeah. No, not at all. One of the things about my seminar that makes teaching it both challenging and wonderful is the student on my right may have maybe very familiar with The Canon, may have read all the plays that we’re going to read before and may know them pretty well. I’ve had that experience. And then the student on my left may have read Romeo and Juliet in high school and nothing Shakespearean since then. So I’m accustomed to having a room full of people with very, very different levels of understanding about the play. I didn’t want people to have to read the play before they read every chapter because part of my audience is busy litigators. I know people wouldn’t necessarily have the time to do that. So I really wrote the book so that if you haven’t read the play, you can still read the chapter and understand exactly what my argument is, understand exactly what the plot line is, understand exactly who the players are.
Now, I think that some people will want to read or reread the play before they tackle a chapter. I’m hopeful that, for example, there’s a pretty good film version of Coriolanis. I would never assume that most people have read Coriolanis before they get to my book. I’m hopeful that after they’ve read the chapter on Coriolanis, they say, “I’d like to see that because there’s so much going on that I think is interesting.”

Michal Rogson:
I will say that reading Shakespeare and watching Shakespeare are two different experiences. Very different. Yeah. And I do recommend watch. I actually personally recommend watching before reading because I think it gives you a much better sort of understanding of what it is that you’re reading and allows you to really enjoy the richness of the language instead of struggling with it.

Len Niehoff:
I completely agree. I think that, and particularly plays where there’s a lot of plot complexity. In Henry VI part two, it’s really, really difficult to keep track of who the characters are and who’s doing what to whom. And if you’re watching it, it’s just much easier to sort of follow the narrative. Some of those early history plays, there have been some productions that have collapsed the history plays into one play so that it’s easier to follow the argument and the plot outline. I love the fact that there’s one production where there’s a character who is explaining why he’s entitled to the crown rather than the current king. And he’s got this elaborate argument about who descended from whom and this elaborate genealogical explanation. And in that production, they have him presented as a PowerPoint.

Michal Rogson:
That’s fantastic.

Len Niehoff:
Yeah.

Michal Rogson:
And very clever.

Len Niehoff:
But I agree with you. I think reading them is a very different experience. But again, I wanted people, if they wanted to throw this in their briefcase or their backpack and take it on a plane with them or be reading it in hotel rooms while they’re traveling for business, I didn’t want them to have to feel like they had to constantly be going and looking at a play. So you can read it from beginning to end without reading any of the plays.

Michal Rogson:
And then if you want, you can try to find it on Netflix or whatever app you’ve got with you at the hotel and watch it. And you can do it afterwards too. Absolutely. I mean, you don’t have to do it before. To me, it would be interesting to read your chapter and then watch it and correlate and see what I think.

Len Niehoff:
And there are so many good film versions. And there are a lot of film versions of Macbeth, some better than others, but some quite good. There are multiple versions of Hamlet.

Michal Rogson:
Well, since you brought it up, I think you’re going to have to give us your favorites.

Len Niehoff:
Oh gosh. Well, I really love the Kenneth Brana Hamlet. One of the things I love about it is that usually they cut Hamlet because Hamlet is so long,
But Brenna does pretty much the whole play. And I think some of the scenes are quite stunning and beautifully done. I think the interactions between Hamlet and Ophelia in that play are amazing or in that film are amazing. So that’s a big favorite of mine. But I tell my students, if you’re going to watch that version of Hamlet, you got to do a little training beforehand. Eat your weedies and do some pushups because it is a long movie. But I think a very good one. And there are multiple versions of Macbeth that I’ve seen that I think are really terrific films and are worth taking the time to explore.

Michal Rogson:
My favorite happens to also be Brenna, but it is much ado about nothing.

Len Niehoff:
Yeah,

Michal Rogson:
That’s a

Len Niehoff:
Great film.

Michal Rogson:
I enjoyed the play. I didn’t fall in love with it until I saw the film and it brought it to life.

Len Niehoff:
I think a great gateway drug into Shakespeare might be Brenna’s Henry V. It’s a great historical play. There’s a lot of action. The St. Crispin’s Day speech is really done so –

Michal Rogson:
I haven’t seen it. I’m going to have to go watch it.

Len Niehoff:
Yeah. I think you’d love it. It’s a terrific piece of film.

Michal Rogson:
Well, and I just want our audience to know that Kenneth Brenna has not in any way sponsored or. Well, speaking of sponsors, coming up, we will take a deeper dive into some of the plays and get a sneak peek into how they read differently through the lens of the law. But first, a quick word from our actual sponsors. We’re back and I’m excited to get a little into the nitty gritty. So let’s talk about the plays themselves. Starting with the one that you say the whole idea of really tested itself on. Let’s talk about Othello.

Len Niehoff:
Yeah. So this is a play that I’ll confess I had never really liked too much, in part because I just didn’t like the character of Othello very much. He reminded me too much of clients I’ve known who couldn’t keep themselves from making bad decisions. And whenever I would watch the play, I’d be sitting there face palming myself saying, “Why don’t you just go ask Des Demono what happened?” It’s very frustrating. But then when I started looking at it sort of through the lens of the law, looking at it as a lawyer, I saw things I hadn’t seen in it before that really have caused me to love the play and value it in a very different way. I think that Othello is a play very much about evidence and specifically about what counts as proof of a fact. A whole variety of evidence is brought to Othello largely by Iago and presented to him as evidence of Des Demona’s disloyalty.
And I think trying to figure out whether any of that evidence is in fact evidence of anything is a really interesting way to think about the play. In the book, I even think about those evidence questions through the lens of a civil procedure concept. Everyone who’s taken civil procedure will remember that there are these important cases, Twombly and ICWA, that are about pleading standards and about what you have to include in a complaint in order to make out a case. And what those cases stand for in large measure is that if a fact is equally supportive of both liability and the absence of liability,
Then it doesn’t count toward the proof of the case because there’s a benign explanation for why things look that way. Well, it turns out to be true that an awful lot of the evidence that comes to Othello is supportive of the idea in some sense that Desdimona may have been unfaithful, but it’s equally supportive of the opposite conclusion. Take a really obvious example. There’s a point at which Desdemona and her alleged lover part in the. It said Othello sees them do it and Diago sort of makes some sinister comment about the fact that they were together and now are parting. Well, that doesn’t prove anything. It isn’t even suggestive of unfaithfulness. And in fact, if Desdemona was trying to get away with something, she did a very bad job of it because she goes right up to Othello and says, “I was just talking to him.” And a lot of the evidence sort of fits that.
Description. So I think looking at Othello through the lens of the law, sort of trying to figure out what counts as evidence, really is very powerful. And it also, I think, leads us to sort of a bigger life question, which is don’t we owe those who we say we love at least as much fairness as our law says we owe the average civil defendant?
And that’s, I think, a fair demand to make of Othello. Why don’t you owe Des Dimona at least that much benefit of the doubt? So Othello has gone from being one of my least favorite plays to one of my favorite plays and one of my favorite plays to teach, and the students get it instantly and are all over the evidence questions.

Michal Rogson:
So if Othello is your favorite to teach, what is your favorite to watch?

Len Niehoff:
Well, I’m a complete sucker for Macbeth. I just absolutely love the play. I suppose I should call it the Scottish play to keep this podcast safe, but it’s my favorite for all sorts of reasons.

Michal Rogson:
What is the law that you find in it? Because I actually literally just read Macbeth with my daughter. First, she needed to read it for school. And it’s been a minute, right? I hadn’t read it in quite some time. But I will say that I did not read it, notwithstanding the fact that I have my lawyer glasses on all the time, but I wasn’t thinking about it. The minute you and I started talking, I went back and started thinking about it. But I’m curious, what do you teach about Macbeth? What do you note?

Len Niehoff:
So I think, again, every chapter, every play, we look at sort of two ideas. And I’ll tell you the two that I like to talk about in Macbeth. One has to do with the stability, or if you will, the fragility of legal and political structures and of our ability to hold onto the rule of law as those structures change. When all of us read Macbeth or see Macbeth now, we all come to it sort of knowing what’s going to happen.
The basic outline is familiar to us. So at the very beginning of the play, we know that there’s trouble ahead and it’s coming relatively quickly. But I think it’s helpful to back up and watch what Shakespeare does structurally here. If you think about where the play is at the beginning, Macbeth is a hero. He has vanquished multiple enemies who have attacked Scotland. Scotland must be just covered with the bodies of Scotland’s enemies. And should any further enemies come along, they have the consolation of knowing that Macbeth, fearsome Macbeth, noble Macbeth stands there ready to protect them. So if we think about what the Scottish people must have been experiencing at the very beginning of the play, it must have been a feeling of great relief. And I think Duncan sort of going to the party and partying up and all the things that are going on, everyone’s sort of celebrating.
There’s sort of a celebratory mood. And what’s fascinating to me is how quickly that stable political structure disappears. Macbeth moves at a ferocious pace. And by the second act, everything has changed. And I think the play calls some very serious and interesting questions about how we lose political and legal stability, about how fragile our institutions, which we tend to think of as being very sturdy and maybe even indestructible, how fragile they really are, how quickly things can change just based on a change of personnel, not based on this radical change of structure. I mean,

Michal Rogson:
This

Len Niehoff:
Is after all a story about going from one monarchy to another monarchy, but that things can change quite literally in a heartbeat. So that’s one of the issues that we explore. One of the other issues has to do with conscience. Macbeth is very much a play about conscience, about how conscience works, about what it might be, about the ways in which it can pursue us and dog us. And as the play at the beginning of the play, ironically, Macbeth is the person who seems to have the most acute conscience about what they’re going to do. He’s the greatest concerns. Lady Macbeth is sort of goading him into committing these crimes. So we would think that the trajectory of the play is going to be Macbeth is the person tortured by conscience and Lady Macbeth is not. But of course those roles reverse. And we find Macbeth toward the end of the play being this remorseless soul who’s just charging on this path that he set for himself.
And Lady Macbeth is the one who is frantically washing her hands, trying to rid herself of the horrible guilt that she feels over what’s happened. So Macbeth is very much about conscience and the law is very interested in conscience. Supreme Court has said that conscience is the only right that is an absolute right. The rights that are listed in the First Amendment to the Constitution have one thing in common, which is they all relate to expressions of conscience, how we express our conscience through religion, how we express our conscience through speech, how we express our conscience by assembling with other people who feel the same way that we do. So Macbeth turns out to be a great vehicle to think about all of the mysteries of conscience that lawyers and courts have struggled with over the years as well.

Michal Rogson:
It’s fascinating because I mean, I literally read this four months ago and did not think about any of these things. Well, so what about Hamlet? I mean, Hamlet is probably the most famous drama, right? And you’ve got murder most foul and a heartbreaking suicide and even a mistaken identity murder that we really want to feel bad about, but I never did. Polonius was a little bit of a sanctimonious old cajure, if you will. But where’s the law? Where’s the law in Hamlet?

Len Niehoff:
Hamlet is, you could probably teach a Shakespeare in the law class and just assign Hamlet. There are so many wonderful questions going on in it. But I think there are two that are particularly interesting. One relates to this idea of responsibility. We have all these bodies that pile up in the course of the play. And in one sense or another, Hamlet has some responsibility in connection with all of them, or at least he might have some responsibility. And it’s almost as if Shakespeare set out to write a play that was an exploration of all the different ways in which we might think about responsibility for someone’s death. Even starting in ways that we are looking at ways that might not be obvious to us. For example, I’m interested in the fact that the first death we don’t see. It’s the death of Hamlet’s father. And that has occurred really before the play starts.
And you might say, well, what does that have to do with Hamlet? I mean, Hamlet obviously didn’t have anything to do with his father’s death. And that’s true in a literal sense, but talk to anyone who has been away at college when they had a parent die and talk to them about their feelings. And I think you’ll find that many people come home carrying a sense of guilt that they were away at college and here their parent was lost. And what if they would’ve been home and is there something they could have done? And Hamlet is such a self-torturing figure anyway. The idea that he wouldn’t entertain those kind of ideas is just unthinkable to me. So the play in a sense starts with an imagined responsibility for death, I think. And then the first real death we get is the death of Polonius. And here Hamlet is directly responsible for the death.
He’s with Gertrude, the curtain russells. He thinks it’s Claudius. He stabs through the curtain and it turns out to be Polonius. Well, that raises all sorts of interesting questions about responsibility. He didn’t think he was killing Polonius. He thought he was killing Claudius. Under traditional notions of justifiable revenge, he might’ve had a reason to kill Claudius, even though he didn’t have a reason to kill Polonius. And as the play goes on, Shakespeare just plays with more and more and more of these ideas about responsibility. Is Hamlet responsible for the death of Ophelia? Is Hamlet responsible for the death of Rosenkratz and Gildenstern in that famous final scene where the bodies are dropping like crazy? Who’s he responsible for and in what way? I think Shakespeare does an absolutely magnificent job prompting us to think about those issues. And there’s one other issue too, I’ll just sneak this in because I think it’s so rich.
Everybody says about Hamlet, he couldn’t make up his mind. I think he could make up his mind. He made up his mind the minute he stabbed through the curtain to try and kill Claudius. I think Hamlet’s problem is that he doesn’t know who he is. And that gets you into all sorts of trouble when you can’t sort of go back to an understanding of who you are because that’s going to help you make decisions. And I think that’s such an important lesson for lawyers, remembering who we are.

Michal Rogson:
So there’s one thing I have to ask before we end. The one Shakespeare quote, “Every lawyer is likely to know. First, let’s kill all the lawyers.” Was it tongue in cheek?

Len Niehoff:
Oh, it was a laugh line then. I’m sure that all the lawyers in the theater laughed. It’s a laugh line now, but it has very sinister implications. It comes in Henry VI, part two. Jack Cade has his revolution underway. One of his allies, Dick the Butcher, who is a heartless, murderous figure, makes the statement. And basically they’re trying to put a new king in place in the person of Jack Cade. And Dick the Butcher understands if you want to overthrow the government, you have to kill the law. And if you want to kill the law, you have to kill all the lawyers. So if anybody throws that line your way, it’s a kind of backhanded compliment. First thing we do, we kill all the lawyers. Thank you very much. That’s exactly right. That’s the way to make sure that we achieve political and legal instability is to take care of the people who know how it works.

Michal Rogson:
Well, I had the idea that I should create a piece of art around that sentence. Let’s kill all the lawyers. And if law firms are interested in putting it up in their foyers, if any of our lawyer listeners want to purchase that piece of art to help support the podcast, I would do it. So if you’re interested, let me know. All right. So let’s get to the final question that I know our practical-minded listeners are likely asking. Is there a real world practical value to this book or is it simply a delightful excuse to read Shakespeare in a new and different way?

Len Niehoff:
Well, look, I don’t just teach at law school. I’ve practiced law for more than 40 years. I’ve been a practicing litigator. So I’m really interested in all the practical applications of what this book has to say. I think that so many issues that we struggle with in practice are the same kinds of issues that Shakespeare struggled with. I think he can make us a better thinker, a better reader, and a better strategist on all sorts of fronts from figuring out how to present evidence in a way that will remain with people and stick with people, to figuring out how to frame an argument that is interesting and attention grabbing and will move people in the direction that we want to move them. So I think there are all sorts of practical lessons that can be taken from the book. But look, the worst thing that can possibly happen to you is you read the book and you come to know 12 plays better that were written by the best author in the history of the English language.
So the downside is a pretty good upside.

Michal Rogson:
Well, and anything that makes your motion sound less like it was written by AI is a good thing nowadays, right?

Len Niehoff:
Absolutely.

Michal Rogson:
Well, Len, thank you so much for joining us today. I definitely want to go back and watch and perhaps read some more Shakespeare and then take a look at your book. Now that we’ve heard all about the book, let’s get to our final question. If any of our listeners are interested in obtaining a copy of meeting Shakespeare at the bar, this is the critical question, right? Where would they find it?

Len Niehoff:
They should immediately go to the ABA website. It’s also available through Amazon and elsewhere. And there is a very affordable e-version of the book, if that’s of more interest to people. I’m a person who likes to have the book in their hands, but it’s easily found and I hope people will check it out.

Michal Rogson:
I like to crinkle the pages.

Len Niehoff:
Me too.

Michal Rogson:
Well, thank you again for joining us and taking us on this fascinating journey.

Len Niehoff:
Thank you so much for having me. I think Shakespeare says it in best in 12th night. I can no answer make, but thanks and thanks and ever thanks.

Michal Rogson:
And that’s a wrap on this episode. Thanks to the litigation section premier sponsor, BRG, for sponsoring this podcast. BRG is an award-winning global consulting firm composed of world-class experts in accounting, damages analysis, economics, finance, intellectual property valuation, data analytics, and statistics. And they work across industries, disciplines, and jurisdictions delivering clear perspectives that you can count on. Their guiding principle is intelligence that works. Learn more at www.thinkbrg.com. I’d love to hear your thoughts about today’s topic, and if you have comments or questions you’d like for me to answer on an upcoming show, you can contact me at [email protected] or connect with me on LinkedIn. You can also connect with the ABA litigation section on those platforms as well. If you like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the community.
If you want to leave a review over an Apple Podcast or a quick rating at Spotify, that’s incredibly helpful as well. And finally, I want to quickly thank some folks who make this show possible. Thanks to Michelle Oberts, who’s on staff for the litigation section. Thanks also goes out to the co-chairs of the litigation section’s audio contact committee, Haley Maple and Michael Stager. Thank you to the audio professionals from Legal Talk Network. And of course, thank you for listening. See you next time.