Five judges in robes.

Last year’s Bard Association show. From left to right: Judge Amy Berman Jackson, United States District Court for the District of Columbia Justice Stephen G. Breyer, Supreme Court of the United States Justice Samuel A. Alito, Jr., Supreme Court of the United States, presiding Chief Judge Merrick B. Garland, United States Court of Appeals for the District of Columbia Circuit Judge Jennifer Walker Elrod, United States Court of Appeals for the Fifth Circuit.

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Mock trial parses contract conundrum

A key concept in contracts voided by COVID-19 will be litigated online Monday in a mock trial. Well, really in appellate arguments.

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“Any lane?” I asked the lifeguard last week, as I stood before the shimmering blue pool at the North Suburban YMCA.

“Not many sign up this time of day,” she said, apologetically.

The pool was completely empty. I felt like King Farouk.

“It’s like a dream!” I gloated. “Except for the plague part.”

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It might say something about the mundane quality of my existence. But during months of lockdown, when I tried to look forward to the future, swimming laps at the Y was the first benchmark of the return of ordinary life.

I kept paying dues, through April and May, even though the Y was closed. Because a) the Y rocks; b) I want the Y to survive — not all of them did; c) the dues aren’t that much — de minimis, as lawyers say; and d) I didn’t want to be what in legal circles is called “a jerk.”

But let’s say I were a jerk. Let’s say I angrily demanded my dues back; only about 15% of members canceled, according to the Y. Would I get them? That would depend on the exact wording of the membership agreement, on what kind of force majeure clause it has.

Force ma-what?

“It’s a phrase that nobody knew about until three months ago, even among lawyers,” said Abbe Lowell, a top trial attorney in the Washington, D.C., office of Chicago’s Winston & Strawn.

Portrait of a lawyer in a suit.

Abbe Lowell is one of the top trial lawyers in the country. Before joining Winston & Strawn two years ago, he served a number of high-profile positions, including chief minority counsel of the U.S. House of Representatives during Bill Clinton’s impeach trial, as well as at the U.S. attorney general’s office and the United Nations High Commission on Human Rights.

Photo by James Kegley

We were talking because D.C.’s Shakespeare Theatre Company is hosting “A Midsummer Night’s Force Majeure” on June 22. Like the mock trials of Socrates, Helen of Troy, etc. Chicago’s Hellenic Museum puts on here, the Washington Bard Association is staging a mock trial Monday around a performance of “Pyramus and Thisbe” being canceled after the lead actor is turned into a donkey.

On the bench will be a quartet of well-respected judges, led by Merrick B. Garland. Lowell will be opposed by former White House counsel Kathryn Ruemmier.

Regular readers know that I live with one practicing lawyer and two soon-to-be attorneys—my wife is an assistant attorney general, and both my boys are displaced law students. So there may be some Stockholm Syndrome here. But I enjoyed hashing over legal fine points with Lowell.

“They’re called mock trials, but it’s mostly mock appellate arguments,” he said.

The event is based on “A Midsummer Night’s Dream.”

“In the play-within-a-play, the Duke of Athens is going to marry,” Lowell said. “He hired a group of actors to do a play for his wedding. In the play, among other mischief, Robin Goodfellow, known as Puck, plays all sorts of tricks on Nick Bottom and turns his head into a donkey head. The duke is disappointed and files a lawsuit. The question becomes whether having the lead actor’s head turned into a donkey is an act of God, a force majeure.”

That would all depend on the wording of the contract, I observed, having done my own due diligence.

“The employment contract for the performance we are talking about says ‘war, revolution, crime or an act of the gods,’” he said. “And ‘act of the gods’ includes earthquakes, epidemics, fire, floods, hurricane or volcanoes.”

But nothing about donkey heads?

“Is this an act of the gods, having a head turned into a donkey?” Lowell said. “When a contract has the word ‘including’ it’s illustrative and not exhaustive.”

Sounds fun. The event costs $50 for lawyers, $25 for educators, $10 for law clerks, and is free for students and summer associates. Learn moreat www.shakespearetheatre.org/events/virtual-mock-trial/.

While I had Lowell on the phone, I had to ask: What’s with lawyers and the theater?

“Theater and the law have always been connected,” he said. “Theater is a performance art. Trial law is a performance art. The difference is an actor memorizes a script. With a lawyer, there is no script. You have to go with whatever’s happening from the witness box.”

More like improv then. Doing this online has to be tough.

“Yes, it is very challenging,” said Lowell. “Imagine how that’s like, with multiple judges in different locations figuring out a timing mechanism, thinking about how people are going to interrupt each other to ask questions. We worked it out, a little bit of work-in-progress, a little bit of the unknown.”

Sailing off into the unknown is what life is all about right now.

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