December 2015 Bar Bulletin
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Great Lines: Law and Literature

By John N. Rupp

 

Two recent incidents set me to thinking about the great value that an apt quotation can have in a lawyer’s brief or oral argument, and to wonder why one sees so little of it nowadays. This is not to say that we should embrace the florid oratorical style of our forebears or change the limpid clarity of our lean and lucid writing style. It is just that I think that a good point illustrated by an appropriate anecdote or quotation has more effect with any audience, be it jurors or judges or legislators or administrators, than simply a flat statement of the point. In the words of William Alexander Percy, it is more likely “to hang in your heart like a star.”

The first incident was my reading of an article in the winter 1989 number of “Columbia,” the magazine of the Washington State Historical Society. In John Fahey’s article about Patrick Henry Winston, the State’s Attorney General in 1897-1901, Fahey tells us that Winston was admitted to the Bar in 1866 and that,In those times, attorneys considered themselves the intellectual mentors of their communities and cited the Bible and classical literature in their arguments to a jury.

People would come from considerable distances to hear a favorite lawyer argue a case. When Daniel Webster argued the Dartmouth College Case, Washington society crowded the Supreme Court for two days. Do folks, even your friends, come to court these days just to hear you speak? Do you give them any reason to realize that you are an intellectual mentor of the community?

The second incident came the other day while I was writing a brief in a case about the proper construction of a charitable trust created by a Will. The Will directs the trustees to hold the assets in perpetuity and to pay the net income periodically to eleven charitable beneficiaries, 30% to one, 20% to one, 10% to one and 5% to each of the other eight. The 20% beneficiary was also given the privilege of withdrawing for its own use up to 5% of the trust assets.The basic question was whether, after such a withdrawal, that beneficiary’s share of net income should continue to be 20%, as it contended, or whether its withdrawal of principal should result in a corresponding reduction in its percentage share of future net income, as the other ten beneficiaries contended.

The Will was completely silent on that point. The 20% beneficiary said, in effect, “Well, if the testatrix had meant that our percentage share of income would be reduced, she would have said so. She said nothing about it, so she must have meant it wouldn’t be reduced.”The other ten beneficiaries said, “You can’t eat your cake and have it too. If you take out principal, you reduce income, and the income reduction should be at your charge alone because the principal withdrawal benefits you alone. Your contention would deprive the rest of us of income without our receiving any benefit in exchange. The testatrix’s silence cannot mean that she intended any such unreasonable and unfair result.”

So, on behalf of five of the ten beneficiaries I wrote what I think is a pretty good brief. But how to end it? Suddenly I thought of Shylock, and so I concluded thus:As we reflect further on this whole matter, we are struck with the parallel between [the 20% beneficiary’s] contention and that of Shylock in “The Merchant of Venice,” Act IV, Scene 1. After Portia, as the young judge, has ruled that Antonio’s bond is indeed forfeited and that Shylock is entitled to the pound of flesh, Shylock readies his knife.

Whereupon this colloquy takes place:

Portia: Have by some surgeon, Shylock, upon your charge, To stop his wounds, lest he do bleed to death.

Shylock: Is it so nominated in the bond?

Portia: It is not so express’d, but what of that?

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