To Plea or Not to Plea

Mark Twain once said, “Shakespeare is dead, and I’m not feeling so good myself.” But to borrow another line from Twain, it appears that the reports of William Shakespeare’s death are highly exaggerated. In fact, William Shakespeare is alive and well, and while he is not living in Memphis, he’s at least appearing in court there.

I know this for a fact, because I recently saw William Shakespeare in a jury trial in a courtroom at the University of Memphis Law School. In fact, I served as an alternate juror in his trial.

On May 24, the Bard of Avon went on trial in Memphis in the case of The Earl of Oxford v. William Shakespeare, and trust me, it was not much ado about nothing. The Earl of Oxford (who by the way did not go to school at Ole Miss) was represented by my friend Donald Capparella of the Nashville bar.

It was a civil case in which the Earl sued the Bard for the tort of plagiarism, claiming that he, not Shakespeare, was the author of the many great plays that have both inspired scholars and actors and tormented high school English students over the years.

The Earl not only sought money damages against Shakespeare. He also named as a defendant the Nashville Shakespeare Festival, seeking to enjoin the production of Much Ado About Nothing, scheduled for Aug. 15 through Sept. 16, unless he was given proper credit for authoring the play.

Defendant Shakespeare was represented by Joseph “Woody” Woodruff, also of the Nashville bar.

The trial was presided over by Memphis Judge Phyllis Gardner. When the court opened and Judge Gardner took the bench, defendant Shakespeare was overcome with emotion. He leapt to his feet and cried, “What light through yonder courthouse window breaks? It is the east, and Judge Phyllis is the sun!”

The Earl shouted, “I wrote that line!” He immediately had to be restrained by his counsel, Mr. Capparella.

For a moment, it appeared that even before a jury could be impaneled, the case had become a comedy of errors.

But it was a labor of love for attorneys Capparella and Woodruff, and it was not love’s labour’s lost.

A jury was impaneled after Judge Gardner assured us prospective jurors during voir dire that the case could be completed in just a few days, and would not extend to a Twelfth Night.

After the jury was sworn in, Judge Gardner allowed opening statements, beginning with Donald Capparella on behalf of the Earl. Measure for measure, Capparella gave a fine opening, assuring the jury that the Earl’s case would not be a winter’s tale told by an idiot, full of sound and fury, signifying nothing.

In his opening statement for defendant Shakespeare, Woody Woodruff told the jury that the whole case was just a classic example of a tempest in a teapot.

After opening, Capparella began to put on the plaintiff’s proof, calling two witnesses who bore a remarkable resemblance to the two gentlemen of Verona. The first was the Earl, who earnestly testified in his own behalf that he wrote Shakespeare’s plays, saying, in effect, that the fault, dear Shakespeare, was not in the stars, but in Shakespeare himself.

Woodruff then did a very effective cross-examination, hoisting the Earl on his own petard.

Capparella then attempted to present his second witness, a linguistics expert, who had compared actual known writings of Shakespeare with his purported plays, and sought to testify that the words could not have come from the same writer. From defendant Shakespeare’s perspective, it was the unkindest cut of all. Shakespeare was heard to mumble, “Et tu, Brute?”

But Woodruff quickly jumped to his feet and argued that the proposed expert testimony should be rejected under Tennessee Rule of Evidence 703 as the underlying facts indicated a lack of trustworthiness. Judge Gardner said she was inclined to agree with Woodruff, and Capparella responded, “What, my dear Lady Disdain! Are you yet living?” He then mumbled something about the taming of the shrew, and this almost landed him in contempt.

Judge Gardner granted the defense motion, excluding the proposed testimony under rule 703.

Capparella then requested an immediate extraordinary appeal under Tennessee Rule of Appellate Procedure 10 to review this interlocutory order. Judge Gardner granted the motion, and then, believe it or not, so help me, Tennessee Supreme Court Justice Janice Holder and Court of Criminal Appeals Judge Camille McMullen both appeared in the courtroom, like the merry wives of Windsor.

This had to be the fastest interlocutory appeal in history, and the first time such an appeal was heard jointly by the Tennessee Supreme Court and the Tennessee Court of Criminal Appeals. The appellate court heard an unbriefed argument and then spent five minutes in an intense review of the matter, before affirming Judge Gardner’s decision excluding the proffered expert testimony.

Judge Gardner then returned to the bench, and the trial resumed. Capparella was forced to rest the plaintiff’s case without expert testimony, and Woodruff proceeded to present the defense case, consisting of the testimony of defendant Shakespeare on his own behalf, as well as the testimony of a lay witness, Will Kempe. Defendant Shakespeare’s testimony went exactly as planned, but Woodruff ran into problems with the second witness, Mr. Kempe. Unexpectedly, Kempe claimed that he actually wrote some of Shakespeare’s most important lines, including “To be or not to be,” and “Parting is such sweet sorrow.”

Woodruff was required to ask Judge Gardner for permission to treat Mr. Kempe as a hostile witness, and he did the best he could under the circumstances.

After the defense rested, there was a brief closing argument, and the case was then submitted to the jury. After deliberations that lasted approximately 10 seconds, the jury announced that it found for defendant Shakespeare.

In accepting the verdict, Judge Gardner inexplicably stated, “As you like it!”

At the end of the trial, I found out it was all an act, a sort of midsummer (actually late spring) night’s dream — performed for continuing legal education. Judge Gardner and attorneys Capparella and Woodruff announced that the Earl of Oxford, Shakespeare, and the witnesses were all actually actors from the Nashville Shakespeare Festival.

As it turned out, Shakespeare is, in fact, dead. Given the fact that I am from Memphis, a town where Elvis is still seen almost every night either at Graceland or on Beale Street, I was surprised and disappointed that Shakespeare, so wise, so young, would never live long.

But as I left the courtroom at the University of Memphis Law School that day, I reminded myself that all the world’s a stage, and all of us are merely players.

All’s well that ends well.


Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.