Musings / Lawyerly Laughingstocks

There is one unprotected class of person that Dickens and Gilbert mocked and that we too can mock with impunity.

The one-act opera "Trial by Jury" is a minnow swimming in the company of such whales as "The Mikado" in the musical ocean of Gilbert & Sullivan. This half-hour-long jeu d'esprit usually serves as a light curtain-raiser for some of its weightier brethren. The entire action of the opera is given over to the trial of an action for breach of promise of marriage. While enjoying a pleasing performance of the opera given by the Jerusalem Encore Theater last month, it occurred to me that such lawsuits have vanished, unmourned victims of sex equality. We are no longer regaled with these accounts of the plight of the abandoned fiancee who, because she paid no heed to the Psalmist's warning that all men are liars, was compelled to seek satisfaction in the law courts.

Even the most hopeless nostalgist, if he retains a speck of humanity in his make-up, should not regret the passing of the breach of promise action, a humiliating reminder of the days when marriage was the only prospect open to a woman, and a broken engagement was a disaster. And indeed I do not regret its disappearance. But as a historical curiosity and as the subject of some fine 19th-century comic writing it merits a digression. After all, you could hardly accuse George Orwell of advocating murder merely because he wrote an essay on the decline of the English murder. And if, with Orwell, we are to lament a decline, how much more should we rue total extinction. Murders may lack the class they once had, which was Orwell's point, but there is an inexhaustible supply of potential assassins more than willing to keep the homicidal flame burning.

In terms of what keeps our policemen occupied, murder is up there at the top of their list of priorities, alongside double parking and French kissing. Like the poor, murder will always be with us, but the action for breach of promise of marriage has, with carbon paper and the passenger pigeon, been relegated to gather dust in the basement of history.

Rampant misogyny

But, though it no longer seems to feature as an attraction in the law courts, the breach of promise case remains alive and well for readers of Victorian literature. Considering the rampant misogyny apparent in their treatment of these lawsuits, it is surprising that the works of Charles Dickens, Rudyard Kipling and W.S. Gilbert have not been blacklisted by the militants of the women's movement. Because, without exception, these writers, in their treatment of breach of promise actions, make us - against our will - laugh at the wretchedness of the jilted woman plaintiff and empathize with the dishonorable behavior of the male defendant.

Gilbert has the ex-fiance in "Trial by Jury" glory in his caddishness ("At last, one morning, I became another's love-sick boy. Tink-a-tank! Tink-a-tank!"). By his own testimony a potential wife-beater, drunkard, smoker and womanizer, the rat gets away scot-free when, to the plaudits of all in court, the judge resolves the case by marrying the toothsome plaintiff himself.

In his poem "The Betrothed," Rudyard Kipling unabashedly sides with the heartless defendant. In a breach of promise case of 1885, Maggie, the scorned woman, has unwisely given her former suitor an ultimatum; he must choose between her and his cigar. "For Maggie has written a letter to give me my choice between / The wee little whimpering Love and the great god Nick o' Teen." Eloquently explaining why the callous man opts for his cigars - his "harem of dusky beauties, fifty tied in a string" - the poem climaxes with the deathless line: "And a woman is only a woman, but a good Cigar is a Smoke."

And then there is Charles Dickens. In what is arguably the most celebrated court case in Victorian fiction - the case of Bardell vs. Pickwick in "The Pickwick Papers" - we are left in no doubt as to whose side we must take. Misconstruing Mr. Pickwick's request for advice on whether he should employ a manservant, his landlady, Mrs. Bardell, the archetypal breach of promise plaintiff, believes he has proposed marriage and swoons in his unwilling arms just as his friends - who become reluctant witnesses for the plaintiff - enter the parlor. Judgment for the plaintiff!

The benevolent attitude toward the two-timing male evinced by these writers does not mean that breach of promise fiction lacks villains. We live in an era when satirists must go easy not only on women, but on every group - from Muslims to homosexuals - that feels itself entitled to protection from ridicule. But there is one unprotected class of person that Dickens and Gilbert mocked and that we too can mock with impunity. As consistently as the jilted woman is a figure of fun and the man a cad in literary litigation, the bad guys are always the lawyers. The heavies of Bardell vs. Pickwick are not Mrs. Bardell and her friends, but her dastardly attorneys, Dodson & Fogg, and it is his determined refusal to pay their costs that lands Mr. Pickwick in the Fleet prison. Fortunately for Mr. Pickwick, he is sprung when Mrs. Bardell too refuses to pay Dodson & Fogg.

Merciless satire

It was certainly not from ignorance of legal practice that Dickens and Gilbert satirized lawyers so mercilessly. Both writers knew the law from the inside. While in his teens, Dickens worked as a law clerk - and hated it. His books are full of references to practitioners of the law, few of them kind. "Bleak House," in my eyes the finest of all Dickens novels, is the ultimate lawyer joke, a savage satire on those that practiced in the Court of Chancery. Gilbert's legal career was likewise brief. Averaging five clients a year he was a singularly unsuccessful barrister. Generations of devotees of the operas he wrote with Sir Arthur Sullivan can be thankful that his failure at the bar compelled him to earn his living by his pen. Gilbert was kinder than Dickens to the lawyers that he lampooned, but he never ceased to find them funny. Attorneys and judges appear in at least half a dozen Gilbert & Sullivan operas.

In selecting the legal profession for their barbs, the Victorian satirists could not have found a more popular Aunt Sally. Plus ?a change! The lawyer joke is today more prevalent than ever. When you Google "lawyer jokes" you will find nearly two million entries to choose from. If you find one in that agglomerated mass that makes you laugh, please let me know because I must have missed it. I concede that, in failing to find funny wisecracks aimed at as fine a body of men and women as ever overcharged a client, I might be accused of bias. I can bear that with fortitude. But more than lack of objectivity, my fear is of being accused of lacking a sense of humor. It is as hard to admit that one lacks a sense of humor as it is to admit that one is a bad driver, but I have to confess that the evidence of my inability to laugh at what the rest of the world finds funny is mounting.

Like George Eliot's Herr Klesmer I perceive of myself as being "very sensible to wit and humor," but I was recently sharply reminded of how hopelessly deficient I must be in that department. Any movie that upsets the Anti-Defamation League of the B'nai B'rith cannot be all bad, so I was predisposed to enjoy - to give it its full snappy title - "Borat: Cultural Learnings for Make Benefit Glorious Nation of Kazakhstan." After all, what could whet one's appetite more than a movie that inspired the ADL's po-faced "Statement on the comedy of Sacha Baron Cohen, a.k.a. 'Borat'"? Even the remark that Mr. Cohen is "himself proudly Jewish" could not dull my high expectations for a film that could provoke the ADL to write that "one serious pitfall is that the audience may not always be sophisticated enough to get the joke."

And everyone seems to have loved it. I do not believe that I can match the ADL for humorlessness, but I found the movie dull. I sense that it must be a generational thing. Younger people than I certainly found Borat funny. I know, for example, that, were someone to come to the family dinner table holding a plastic bag filled with his own excrement, my 2-year-old great-nephew would subside into gales of laughter that would gladden the heart of Mr. Baron Cohen. My own feeling is that Cohen will be very funny when he gets out of the lavatory.

I suppose that I should be thankful that neither Borat not his alter ego Ali G have started on lawyers yet. You can imagine the scene: A wrestling match between two naked overweight Supreme Court judges. But maybe not. As I said earlier, lawyers simply aren't funny.