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Shakespeare for Lawyers More Heat Than Light

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his installment of "Shakespeare for Lawyers" returns to Hamlet,1 for a catch phrase describing legal arguments containing more passion than persuasiveness. Hamlet is a tragedy, meaning that its body count rivals that of Dirty Harry and Pulp Fiction. Nine characters are dispatched by stabbing, poisoning, stabbing with poisoned swords, drowning and execution. This does not include the invasion of Poland, which takes place off-stage.

The violent action and plethora of familiar phrases may account for the play’s recent popularity. Kenneth Branagh recently proved that audiences would sit still for a four-hour full-length version of the drama. Shakespeare’s melancholy prince of Denmark also has provided the inspiration for The Lion King,2 Green Eggs and Hamlet,3 The Skinhead Hamlet4 and the Prince Charles version of Hamlet.5

The phrase "more heat than light" is spoken by Polonius, one of the more ambiguous characters in the play. Polonius is the father of Laertes, Hamlet’s best friend, and Ophelia, his love interest. However, he is also the chief advisor to Hamlet’s uncle Claudius, who murdered Hamlet’s father and married his mother. While Hamlet is known for his poetic soliloquies,6 double entendres7 and measured madness, Polonius is characterized by his long-winded speeches. In Act I, Scene III, Polonius gives fatherly advice to his two children. Although Shakespeare gives Polonius some well known lines, such as "the apparel oft proclaims the man," "neither a borrower nor a lender be," and "to thine ownself be true,"8 he is still a pretentious, prattling bore. When he is killed in a case of mistaken (perhaps?)9 identity in Act III, Scene IV, it is almost a relief that his pontificating is brought to an end. This column’s expression arises in Polonius’s advice to his daughter Ophelia. He warns her against romantic liaisons with Hamlet, stating:


When the blood burns, how prodigal the soul
Lend the tongue vows; these blazes, daughter,
Giving more light than heat,—extinct in both,
Even in their promise, as it is a-making,—
You must not take for fire."10

Polonius’s motives for discouraging the budding romance are unclear. As a cagey politician, he has every reason to advance his daughter (and himself) into the royal family. He could be legitimately concerned that Hamlet will toy with his daughter’s affections and then discard her in favor of a more royal bride. On the other hand, he may have other plans.11

In Polonius’ speech, fire and heat are associated with true passion and sincerity; light, on the other hand, seems insubstantial. In law, the meanings have become reversed, so that heat refers to impassioned but unenlightening rhetoric, and light refers to substantive legal argument. The reversal in usage is perhaps appropriate. Polonius is a mixed-up character who cannot even get killed without confusing things. Therefore, his words may mean the opposite of what he thinks.


...it seems that many lawyers have caught their own madness, gravitating toward heated rhetoric rather than words that enlighten.

Judges utilize "more heat than light" in several contexts. In some cases, it serves as a signal that an argument has been less than successful. You know you’re in trouble when the court refers to your argument as a "polemic that sheds far more heat than light,"12 complains that "Appellant’s animadversions anent appellee’s discovery practices generate far more heat than light"13 or remarks that "Petitioner’s confusing arguments shed more heat than light on the subject."14 You can tell that the lawyers need to switch to decaf when the court writes: "The intensity of involvement in these cases generated more heat than light; administration of the cases has been plagued from the beginning by anxiety, confusion, misunderstanding, acrimony and vilification."15 In a surprising display of candor, one justice noted that his exchanges with a dissenting colleague were "dangerously approaching the point of shedding more heat than light."16 Judges also refer to particularly obnoxious parties as shedding more heat than light.17

Misleading arguments are a good way to earn the Shakespearean reference. In one case, the court felt that the party’s attempt to tie her father’s disappearance to the assassination of John F. Kennedy was a bit of a stretch. "In a peroration that sheds considerably more heat than light, appellant insinuates that her father’s disappearance might be tied in some undefined way to President Kennedy’s assassination and implores that we order the district court to review her information request under the new law’s disclosure provisions."18 In another case, the court found that arguing the First Amendment "emotes more heat than light, as there is no state actor involved in this case against whom the First Amendment could be invoked."19 Several courts have complained that citing inapplicable precedent generated more heat than light.20

As lawyers, words (and occasionally pictures) are all that we have to work with. Ineffective words sometimes shed more heat than light. A Ninth Circuit panel recently simplified a legal test, noting that, "We have not added a requirement that the conscience of the federal judiciary be shocked by deliberate indifference, because the use of such subjective epithets as ‘gross,’ ‘reckless’ and ‘shocking’ sheds more heat than light on the thought processes courts must undertake in cases of this kind."21 In a suit involving the Cult Awareness Network and the Church

of Scientology International, the court offered a few suggestions on how to write a discovery request. "The church might generate more light than heat by sharpening its terms, speaking in terms of practices better defined than deprogramming. Instead of asking Dr. West whether he knows any deprogrammers, the church might ask, for example, whether he knows anyone who uses imprisonment or forced isolation to cause or promote the disaffection of individual cult members from their cults and whether he has ever done this."22

Polonius warned Ophelia against words shedding more light than heat. This advice wasn’t much help for Ophelia, who ended up going mad and drowning herself. Judging from the number of cases reviewed in this article, it seems that many lawyers have caught their own madness, gravitating toward heated rhetoric rather than words that enlighten. Since this is precisely what Polonius prescribed, he would be pleased.


Footnotes

1The original installment of this series, titled "Hoisting the Petard," 13 Am. Bankr. Inst. J. 1 (Oct. 1994) also was taken from Hamlet. Return to Text

2I read this in The Definitive Hamlet Page, a web site maintained by Kevin Clark, a 17-year-old high school senior from Sugar Land, Texas. http://uts.cc.utexas.edu/~kevclark/hamlet.html. For this column I have moved beyond my standard references to sample the Internet. Return to Text

3Green Eggs & Hamlet Homepage, home.earthlink.net/~miiike/geah.html. Return to Text

4The Skinhead Hamlet, www.joensuu.fi/fld/english/meaney/skin-hamlet.html. The editors claim that their "hope was to achieve something like the effect of the New English Bible." This version reduces Hamlet to three pages of purple prose, most of which cannot be reprinted in this journal. Return to Text

5"Well, frankly, the problem as I see it/ At this moment in time is whether I/ Should just lie down under all this hassle/ And let them walk all over me,/ Or, whether I should just say, ‘OK,/ I get the message,’ and do myself in./ I mean, let’s face it, I’m in a no-win/ Situation, and quite honestly,/ I’m so stuffed up to here with the whole/ Stupid mess that, I can tell you, I’ve just/ Got a good mind to take the quick way out./ That’s the bottom line. The only problem is:/ What happens if I find out that when I’ve bumped/ Myself off, there’s some kind of a, you know,/ All that mystical stuff about when you die,/ You might find you’re still—know what I mean?" Charles, Prince of Wales translating the "To be or not to be" soliloquy, quoted in Norrie Epstein, The Friendly Shakespeare (Penguin Books 1993), p. 347. Return to Text

6"To be or not to be, that is the question..." Act III, Scene I. Return to Text

7"Get thee to a nunnery," spoken to Ophelia, can be interpreted as referring to a convent or brothel in Elizabethan slang. Epstein, at 353. Return to Text

8Act I, Scene III. Return to Text

9In one of his few silent moments, Polonius hides behind a curtain to spy on Hamlet and Hamlet’s mother, Queen Gertrude. Hamlet, apparently belies that the interloper is his evil stepfather/uncle, the king, and runs him through with a sword. After that, Hamlet hides the body, so that after a few days, "something is rotten in Denmark." Although Polonius is frequently portrayed as a harmless buffoon, some commentators have questioned this. Norrie Epstein points out that, "If (Polonius) is portrayed as a well meaning bumbler, whose garrulousness is comic, then his murder is shockingly wanton; if as a sinister old man, we applaud his end and Hamlet’s action. Hamlet says he mistook Polonius for Claudius, but this is impossible, since he left Claudius only a few seconds before." Epstein at 330. The fact is that Polonius served Hamlet, Senior, the murdered king, and now serves the new king, Claudius. Even if Polonius did not participate in the plot to murder the king, his willingness to serve the true king’s executioner shows him to be a bit too opportunistic. Thus, Hamlet may have been indifferent as to whether his sword ran through Claudius or Polonius. Return to Text

10 Act I, Scene III. Return to Text

11 Michael Ellis, in an English composition essay which he posted on the Internet, suggests that Polonius seeks to place his own son, Laertes, on the throne. "Polonius: The Rot of Denmark," Internet posting originally made to www.hamlet.edmonton.ab.ca/discussions/characters/index.html. The article is no longer available on the Internet, but it is contained in this author’s personal files. Since Mr. Ellis doesn’t say what grade he received on his paper, it is hard to know how much weight to place on this thesis. Return to Text

12 United States v. Tardiff, 969 F.2d 1283 (1st Cir. 1992). Return to Text

13 Freeman v. Package Machinery Company, 865 F.2d 1331, 1340 (1st Cir. 1988). Return to Text

14 Umstead v. Commissioner, T.C. Memo 1982-573, 44 T.C.M. (CCH) 1294. The petitioner claimed that gambling winnings were not income and that he was thus an "UNincome" taxpayer. Return to Text

15 In re Republic Financial Corp., 128 B.R. 793, 796 (Bankr. N.D. Okla. 1991). Return to Text

16 United States v. Moore, 110 F.3d 99 (D.C. Cir. 1997). Return to Text

17 Great Lakes Screw Corp. v. National Labor Relations Board, 409 F.2d 375 (7th Cir. 1969) (tactics of both lawyers and hearings examiner shed more light than heat); Black v. First National Bank, 255 F.2d 373 (5th Cir. 1958) (attack on opposing counsel generated more light than heat); Unity Real Estate Co. v. Hudson, 889 F.Supp. 818 (W.D.Pa. 1995) (belittling the Magistrate sheds more light than heat); United States v. Parr, 17 F.R.D. 512 (S.D. Tex. 1955) (two factions engendered "more light than heat."). Return to Text

18Sullivan v. Central Intelligence Agency, 992 F.2d 1249 (1st Cir. 1993). This argument might have been more successful with Oliver Stone as the judge. Clearly it would have been more effective to subpoena "X-Files" agents Mulder and Scully to testify about the Roswell cover-up. Return to Text

19 Finch v. Hercules Inc., 1995 WL 785100 (D. Del. 1995). Return to Text

20 Equal Employment Opportunity Commission v. Steamship Clerks Union, Local 1066, 48 F.3d 594 (1st Cir. 1995) (Is there a pattern here? The First Circuit must really like this expression); Bergman v. New England Life Insurance Company, 872 F.2nd 672 (5th Cir. 1989). Return to Text

21 L.W. v. Grubbs, 92 F.3d 894 (9th Cir. 1996). Return to Text

22 Kisser v. Coalition for Religious Freedom, 1995 WL 495949 (N.D. Ill. 1995). It makes you wonder why West Group didn’t publish this case. It’s always helpful to have a good definition of deprogramming. Return to Text

Journal Date: 
Sunday, March 1, 1998

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