In the Supreme Court of the Principality of Verona

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No. 2016-1 In the Supreme Court of the Principality of Verona

LORD AND LADY MONTAGUE AND LORD AND LADY CAPULET, PLAINTIFFS-APPELLEES v. FRIAR LAURENCE, DEFENDANT-APPELLANT

ON WRIT OF CERTIORARI TO THE VERONESE TRIAL COURT

BRIEF FOR FRIAR LAURENCE

ELIZABETH B. PRELOGAR Counsel of Record ICHAEL REEBEN M R. D Department of Justice for Friars Washington, D.C. 20530 [email protected] (202) 514-1763

QUESTIONS PRESENTED 1. Was Friar Laurence negligent?

2. If so, was the jury’s assessment of comparative fault supported by the evidence in the case?

(I)

In the Supreme Court of the Principality of Verona

No. 2016-1 LORD AND LADY CAPULET AND LORD AND LADY MONTAGUE, PLAINTIFFS-APPELLEES v. FRIAR LAURENCE, DEFENDANT-APPELLANT

ON WRIT OF CERTIORARI TO THE VERONESE TRIAL COURT

BRIEF FOR FRIAR LAURENCE

STATEMENT AND SUMMARY OF ARGUMENT For generations, an “ancient grudge” between two feuding families—the Montagues and the Capulets— ravaged the streets of Verona. The Most Excellent and Lamentable Tragedy of Romeo and Juliet Prologue.3 (Creede, T., publisher) (2d Quarto 1599) (“R.-”). Impassioned by the feud, individuals at every level of society were incited to violence at whim. See, e.g., id. at I.i.55-73; III.i.69-86; III.i.117-129; V.iii.70- 73. Riots repeatedly broke out on the streets. See id. at I.i.82-84 (“Three civil brawls, bred of an airy word / By thee, old Capulet, and Montague / Have thrice disturbed the quiet of our streets.”). Public discourse became coarser still. See id. at 1.1.37-38 (“I will bite my thumb at them, which is a / disgrace to them, if they bear it. (bites his thumb)”). And passion

(1) 2 repeatedly trumped reason as emotions flared. See, e.g., id. at III.i.129 (“[F]ire-eyed fury be my conduct now.”); id. at II.vi.9 (“These violent delights have violent ends”). Caught in the crosshairs of their families’ long- standing war, “[a] pair of star-crossed lovers t[ook] their life.” R.-Prologue.5. Romeo, a Montague, and Juliet, a Capulet, shared a love “as boundless as the sea * * * for both are infinite.” Id. at II.ii.133-135. But because they were born to feuding families who would never accept that love, Romeo and Juliet were driven to desperate measures, culminating in their double suicide. With their death, they “bur[ied] their parents’ strife,” id. at Prologue.7, bringing “[a] gloom- ing peace” to Verona. Id. at V.iii.305. But that recon- ciliation came too late for the couple, who served, by Lord Capulet’s own admission, as “[p]oor sacrifices of [their families’] enmity.” Id. at V.iii.304. Now that the feud is over, the Montagues and Cap- ulets have joined together to wage a legal war against a blameless clergyman who tried to help Romeo and Juliet at every turn but was thwarted by the dire circumstances produced by the families’ mutual ani- mosity. Defendant-appellant Friar Laurence repeatedly provided emotional support to the couple as they alternated between varying states of euphoria (at their love) and despair (at their families’ foreseeable disapproval of their union). When the going really got tough, and Romeo and Juliet each independently threatened suicide, Friar Laurence devised a plan intended to give the young lovers the will to live, with the overarching hope that their “alliance may so hap- py prove / To turn [their] households’ rancor to pure love.” R.-II.iii.91-92. That plan ultimately failed

3 based on an unfortunate and unforeseeable sequence of events. But the real tragedy at this juncture is the families’ attempt to hold Friar Laurence liable for Romeo’s and Juliet’s deaths. This Court should reverse the jury’s verdict finding that Friar Laurence was negligent and bore 70% of the responsibility for the young lovers’ suicides. Friar Laurence cannot be found negligent because he had no duty of care, contrary to plaintiffs’ misguided theory of spiritual malpractice. And even if this Court were to recognize a novel duty in this context, the Friar did not breach it. Each of his actions was rea- sonable, the resulting harm was unforeseeable, and intervening forces broke the chain of causation. Moreover, the jury erred in its analysis of comparative fault. If fingers are to be pointed (or thumbs bitten), it is the Montagues and Capulets who bear responsibility for the deaths of their children. Be- cause plaintiffs are at the very least equally at fault, they cannot recover in this civil suit. In the spiritual realm, Friar Laurence has already been “[him]self condemnéd and [him]self excused.” R.-V.iii.227. So too here, the jury’s verdict should be reversed. ARGUMENT I. “WE STILL HAVE KNOWN THEE FOR A HOLY MAN.” R.-V.III.270: THE FRIAR WAS NOT NEGLIGENT In Verona (as in Maryland, its successor province), “in order to establish a cause of action for negligence, a plaintiff must prove: a duty owed * * * ; a breach of that duty; [and] a causal relationship between the breach and the harm.” Walpert, Smullian & Blumen- thal, P.A. v. Katz, 762 A.2d 582, 655 (Md. 2000). The

Montagues and Capulets failed to carry their burden on each of those elements. A. “A greater power than we can contradict / Hath thwarted our intents.” R.-V.iii.153: Spiritual Counse- lors Are Not Subject To A Duty Of Care As A Matter Of Law “[T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another.” West Virginia Cent. & P. Ry. Co. v. State, 54 A. 669, 671 (Md. 1903). That principle resolves this case. As Romeo and Juli- et’s spiritual counselor, Friar Laurence listened to the couple’s problems with open ears and, in accordance with the teachings of the Church, offered “priestly consolation and guidance in return.” Trammel v. United States, 445 U.S. 40, 51 (1980). Secular tort courts lack authority to craft standards of care to regulate that priest-congregant relationship. See, e.g., Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Mal- practice and First Amendment Religion Clauses, 44 Akron L. Rev. 221, 250 (2011) (“Clergy malpractice actions have been rejected uniformly by state courts”). “Such a duty would necessarily be inter- twined with the religious philosophy of the particular denomination or ecclesiastical teachings of the religious entity.” Nally v. Grace Community Church of the Valley, 763 P.2d 948, 960 (Cal. 1988). Thus, any attempt to define Friar Laurence’s ministerial duties would necessarily entangle the Court in an investiga- tion and evaluation of religious tenets and doctrines, in contravention of principles of religious liberty that Verona may one day adopt committing it to “make no

5 law respecting an establishment of religion or prohib- iting the free exercise thereof.” U.S. Const. Amend. I. A contrary rule permitting a cause of action for spiritual malpractice would sanction “intrusive inquiry by the civil courts into religious matters.” Baumgart- ner v. First Church of Christ, Scientist, 490 N.E.2d 1319, 1324 (Ill. Ct. App. 1986). To establish a standard of care of an “ordinary” Franciscan friar engaged in religious counseling, the Court would have to probe whether Friar Laurence properly followed the teachings of the Church in advising Romeo and Juliet. This Court should resist plaintiffs’ request that it “judge [the] competence, training, methods and content of the pastoral function.” Hester v. Barnett, 723 S.W.2d 544, 553 (Mo. Ct. App. 1987). In short, and with all due respect, Friar Laurence should face the judgment of a higher authority—not the judgment of a tort court. B. “Hold, daughter. I do spy a kind of hope, / Which craves as desperate an execution / As that is desperate which we would prevent.” R.-IV.i.69-71: Friar Lau- rence Did Not Breach Any Duty Of Care Even if this Court could articulate a duty of care to govern ecclesiastical counseling relationships, Friar Laurence did not breach it. At trial, plaintiffs sought to premise liability on five separate acts, but none was negligent or wrongful. While plaintiffs contend that Friar Laurence should have delayed the wedding of Paris and Juliet, the record unequivocally establishes that the wedding was to occur “[o]n Thursday next” and “nothing may prorogue it.” R.-IV.1.49 (emphasis added). Indeed, Juliet pleaded with Lady Capulet to “[d]elay this marriage for a month, a week,” id. at III.v.200, and her mother sternly refused, echoing

Lord Capulet’s threat to disown Juliet if the wedding did not occur on an accelerated timeline, id. at III.v.203-204; III.v.188-196. Plaintiffs offer no reason to think that Friar Laurence could have successfully convinced Lord and Lady Capulet to alter the wedding date, given their desire to marry Juliet to a no- bleman whom they feared might be getting cold feet because the “times of woe afford[ed] no time to woo,” id. at R.-III.iv.8. Nor did Friar Laurence act negligently in provid- ing Juliet with the sleeping potion. Fake death is preferable to real death, and Juliet had just promised to kill herself if the Friar could not come up with a solution to her predicament. See R.-IV.i.51-68. Alt- hough plaintiffs contend the potion was a restricted substance, the Friar worked only with natural herbs and plants, see id. at II.iii.5-22, and had no reason to believe he was administering a controlled drug. Cf. McFadden v. United States, 135 S. Ct. 2298, 2302 (2015) (holding that the government must “establish that the defendant knew he was dealing with ‘a controlled substance’ ” to support criminal liability). And plaintiffs further err in asserting that Friar Laurence should have used a less powerful dose so Juliet would wake up before Romeo’s arrival. Juliet averred that if she woke too early and was alone in the vault she would go mad with fear and “in this rage, with some great kinsman’s bone, / As with a club, dash out [her] desperate brains.” R.-IV.iii.53-54. So that wasn’t an option. Plaintiffs’ suggestion that Friar Laurence should have used a less fallible method of telling Romeo of the plan and should have anticipated Romeo’s reaction to Juliet’s death if the potion went awry founder on

7 principles of foreseeability. Friar Laurence reasonably relied on Friar John—himself a clergyman—to deliver the message to Mantua, and could not have predicted that a quarantine would stand in the way. And any alternative method of communication would have been even more unreliable. See, e.g., Mary Blume, The Hallowed History Of The Carrier Pigeon, New York Times (Jan. 30, 2004) (observing that 409 carrier pigeons were dispatched during the Siege of Paris in 1870, but only 73 returned safely); Lisa Rein, The Mail Could Be Taking Even Longer To Be Deliv- ered Than The Postal Service Is Saying, Washington Post (Oct. 5, 2015) (“New research by Congress’ watchdog says that the post office’s tracking system for measuring on-time delivery is so unreliable that there’s no way to know how late the mail really is.”). As to Romeo’s reaction, the Friar well knew that his emotions could change on a dime. See R.-II.iii.65-68 (“Holy Saint Francis, what a change is here! / Is Rosa- line, whom thou didst love so dear, / So soon forsaken? Young men’s love then lies / Not truly in their hearts, but in their eyes.”). Friar Laurence thus could not have foreseen that Romeo—a “young waverer,” R.- II.iii.89—would get news of Juliet’s death through other means, return to Verona, and take his own life. Finally, Friar Laurence was not negligent in leaving Juliet in the vault when she refused to depart with him as the watch approached. Friar Laurence “dare[d] no longer stay,” R.-V.iii.159, because he reasonably feared that if the watch apprehended him and misunderstood his role he would be tortured, banishéd, or put to death. See id. at I.i.79 (Prince Escalus threatening “pain of torture” if fighting did not cease); id. at III.i.183 (Prince Escalus exiling

Romeo for killing Tybalt); id. at I.i.89-90 (Prince Escalus threatening a death sentence for disruption of the peace). A civil tort court cannot hold Friar Laurence liable for leaving Juliet when the alternative exposed him to such grave danger. See, e.g., Steven J. Heyman, Foundations of the Duty to Rescue, 47 Vand. L. Rev. 673, 689 n.66 (1994) (describing statutes imposing duty to aid “only when it can be performed without danger to oneself ”). C. “From forth the fatal loins of these two foes / A pair of star-crossed lovers take their life,” R.-Prologue.4-5: Friar Laurence’s Actions Did Not Cause The Suicides “It is * * * textbook tort law that an action ‘is not regarded as a cause of an event if the particular event would have occurred without it.” University of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013) (citation and internal quotation marks omitted). Here, Friar Laurence cannot be found liable for negligence because the very harm he is alleged to have caused—Romeo’s and Juliet’s suicides—would have occurred had he taken no action at all. When Romeo discovered he had been banishéd, he insisted death was a more merciful punishment and threatened to punish himself accordingly. R.- III.iii.106-109 (“In what vile part of this anatomy / Doth my name lodge? Tell me, that I may sack / The hateful mansion. (draws his dagger)”). Juliet, too, insisted she would kill herself before marrying Paris. Id. at IV.i.53-55 (“If in thy wisdom thou canst give no help / Do thou but call my resolution wise, / And with this knife I’ll help it presently. (shows him knife)”). Such dire threats would “strain[] [anyone] past the compass of [his] wits,” id. at IV.i.48, but the Friar leapt into action, devised a plan intended to prevent

9 the suicides, and ably executed each aspect of the plan that was within his control. Although an unforeseeable string of unfortunate events ultimately thwarted the plan’s success, no greater harm came to Romeo and Juliet than would have occurred had the Friar done nothing at all. Blame fate. See id. at III.i.131 (“O, I am fortune’s fool!”); id. at V.i.24 (“Then I defy you, stars.”). Blame the parents. See pp. 9-14, infra. But don’t blame Friar Laurence. II. “A PLAGUE O’ BOTH [THEIR] HOUSES!” R.-III.i.87, III.i.96, III.i.102: PLAINTIFFS ARE AT LEAST EQUALLY AT FAULT AND SO CANNOT RECOVER Even if the Court were to conclude that Friar Lau- rence was negligent, the jury’s erroneous assessment of comparative fault—which far understates plaintiffs’ responsibility for the deaths of Romeo and Juliet— independently requires reversal. A. “O Romeo, Romeo! Wherefore art thou Romeo? / Deny thy father and refuse they name.” R.-II.ii.33-34: Plaintiffs’ Family Feud Intensified Romeo and Juliet’s Love When two families wage war against each other, a number of inevitable and unpalatable consequences will result. Chief among those is the likelihood that their children will fall in love. Whether viewed as a sui generis category of forbidden romance, or as a run-of-the-mill manifestation of the reality that teenagers do precisely the opposite of what their parents want them to do, history is replete with examples of couples who come together not in spite of but because of their feuding families. See, e.g., Ovid, Metamor- phoses IV.59-64 (“[Pyramus and Thisbe] wanted to be wed, / but marriage was forbidden by their parents; /

10 yet there’s one thing that parents can’t prevent: / the flame of love that burned in both of them. * * * [W]hen covered, fire acquires still more force.”) (emphasis added); Norma Lugar, Hatfields & McCoys: Roseanna, Don’t You Cry (chronicling the ill-fated love affair between Johnse Hatfield and Roseanna McCoy), available at http://blueridgecountry.com/ archive/favorites/hatfields-mccoys-feud/. Indeed, the phenomenon that parental interference fosters romantic love is so well established it has a name: The Romeo and Juliet Effect. See Richard Driscoll et al., Parental Interference and Romantic Love: The Romeo and Juliet Effect, 24 J. of Personali- ty and Social Psychology 1 (1972). “Since parental interference in a love relationship is a direct threat to the couple’s freedom to act on feelings of love for each other, reactance theory predicts an intensification of feelings of love between the couple and behavioral resistance to the threat.” Id. at 2. Or in the words of Taylor Swift: “’Cause you were Romeo, I was a scarlet letter / And my daddy said ‘Stay away from Juliet’ / But you were everything to me, I was begging you, please don’t go.” Taylor Swift, Love Story. Plaintiffs were accordingly at fault in creating a climate of parental opposition that intensified their children’s love. B. “See what a scourge is laid upon your hate,” R.- V.iii.292: Plaintiffs’ Rivalry And Poor Parenting Choices Contributed Significantly To Their Children’s Deaths After fostering a family rivalry that virtually as- sured their star-crossed children would fall in love, plaintiffs repeatedly committed intentional and negligent acts that drove Romeo and Juliet to desperate measures, ultimately resulting in their suicides. The

11 record leaves no doubt that the Montagues and Cap- ulets did not parent “by th’ book,” R.-I.v.108, as demonstrated by the following examples: • Because Romeo and Juliet did not feel comfortable talking to their parents about their woes, channels of communication were shut and the couple could not confide in their family members. See Adele Faber et al., How to Talk So Teens Will Listen & Listen So Teens Will Talk 10 (2005) (cautioning that parents should not “dismiss[] [their children’s’] feelings, ridicule[] [their] thoughts, criti- cize[] [their] judgment, and g[i]ve unsolicited ad- vice” in efforts to “impose * * * adult logic”); Lucie Hemmen, Parenting a Teen Girl 52 (2012) (“Here’s the major ‘do’ when conversing with your teen: empty your mind of your parenting opinions, judgments, fears, and agendas”). • The Montagues knew that Romeo was seriously depressed, but they did not seek professional help or limit his access to dangerous daggers. See Frances E. Jensen, The Teenage Brain 170-171, 182 (2015) (“During adolescence, more than at any other time, emotions rule our lives. * * * As parents we sometimes experience our teenagers’ emotional highs and lows as frighteningly out of control, and because our teenagers are as yet unable to smooth things out using their frontal lobes, it’s up to us to be the filter, the regulator, to provide the sense of calm their brains can’t yet provide.”). • Although initially recognizing that Juliet at age 13 was far too young to get married, Lord Capulet reversed course and promised to marry her to Paris, even though “too soon marred are those so early made,” R.-I.ii.13. See Jensen, supra, at 7 (“Part of

the problem in truly understanding our teenagers lies with us, the adults. * * * We assume that when our kid begins to physically look like an adult * * * then our teenager should act like, and be treated as, an adult with all the adult responsibili- ties we assign to our own peers.”). • The Capulets lowered Juliet’s self-esteem by telling her she was “[u]nworthy” of Paris’s love and had a “tallow face,” R.-III.v.144, 157. Cf. Amy Chua, Battle Hymn of the Tiger Mother 28 (2011) (“According to Sophia, * * * I actually said to her at the piano as I supervised her practicing * * * Oh my God, you’re just getting worse and worse.”). • The Capulets prioritized Juliet’s social advance- ment—“[t]he most [they] sought was her promo- tion,” R.-IV.v.71—over her happiness. Cf. Chua, supra, at 144-145 (“After all those excruciating hours preparing for the Julliard audition, and then the food poisoning and the rejection letter, you’d think that I would have given Lulu a break. * * * Instead, I jacked up the pressure even more.”). • The Capulets forcefully attempted to override Juliet’s free will by insisting that she marry Paris against her wishes. See Joani Geltman, A Survival Guide to Parenting Teens 36 (2014) (“[T]eens * * * come to understand that parents really can’t make them do whatever they want them to do anymore. * * * A ‘Just do it” no longer works, and there are no more ‘time-outs.’ ”); Madeline Levine, Teach Your Children Well 139 (2012) (“The quickest way to lose ground with your child is with pronouncements. * * * This is a message no one is likely to cozy up to, least of all a young

teen who desperately needs to feel that he has some control over the way things turn out in his life.”). • The Capulets threatened to disown Juliet if she did not obey their command to marry Paris. Geltman, supra, at 36 (“When a teen digs his heels in, watch out! You can’t talk him out of it and you can’t punish or threaten him out of it either. Whatever is behind these powerful feelings, teens will fight back, feeling that the alternative (what their parents want them to do) is way worse than whatever punishment the parents may choose to dole out.”). • The Montagues and Capulets failed to anticipate that the extreme pressure they placed on their children could cause Romeo and Juliet to make im- pulsive and poor decisions. See Jensen, supra, at 7 (2015) (“[T]he way that the adolescent brain re- sponds to the world has a lot to do with the impul- sive, irrational, and wrongheaded decisions teens seem to make so frequently.”). In light of the record as a whole, plaintiffs were at least equally responsible for Romeo’s and Juliet’s deaths. Indeed, plaintiffs are far more blameworthy: Their feud set the whole play in motion, they missed all opportunities to relieve the pressure on their children, and they ignored the warning signs of despair and desperation that ultimately led to a tragic end. See, e.g., Piche v. Nugent, 436 F. Supp. 2d 193, 203 (D. Maine 2005) (“[F]ault is not merely a question of the relative degree to which each party’s conduct works to bring about the damage, but also the relative degree of blameworthiness that attaches to each party’s conduct.”). As Lord Capulet admitted, the children were “[p]oor sacrifices of [the Montagues’

14 and Capulets’] enmity.” R.-V.iii.304. Prince Escalus agreed that the families’ rivalry had caused their children’s deaths. Id. at V.iii.291-293 (“Where be these enemies?—Capulet! Montague! / See what a scourge is laid upon your hate, / That heaven finds means to kill your joys with love!”). The jury could not reasonably have reached a different conclusion. Its verdict must therefore be reversed. CONCLUSION The judgment of the Veronese trial court should be reversed. Respectfully submitted.

ELIZABETH B. PRELOGAR Counsel of Record MICHAEL R. DREEBEN Department of Justice for Friars Washington, D.C. 20530 elizabeth.prelogar@usdoj,gov (202) 514-1763 NOVEMBER 2016