Storytelling for Lawyers (14 page)

I want to begin by proposing boldly that … there is no such thing as an intuitively obvious and essential self to know, one that just sits there ready to be portrayed in words. Rather, we constantly construct and reconstruct our selves to meet the needs of the situations we encounter, and we do so with the guidance of our memories of the past and our hopes and fears for the future. Telling oneself about oneself is like making up a story about who and what we are, what's happened, and why we're doing what we're doing.
¹¹

For many recent storytellers, character is constantly in flux and seldom static or fixed. But others have gone even further, in their belief that fate is shaped by forces far beyond our comprehension or control, that our character has
little to do in determining the outcome of our stories. As the novelist Irwin Shaw observed:

It's no accident that Kafka has become so popular. He's enjoying the popularity of a prophet whose prophecies have come true. He prophesied the emergence of the Victim as the archetype of modern man—the Victim who is slowly teased and tortured and destroyed by forces that are implacable and pitiless and that cannot be understood.
¹²

However, in our legal storytelling practices, character still matters; it matters profoundly. In legal storytelling WE STILL BELIEVE IN CHARACTER, especially in the economical and persuasive depiction of sympathetic and compelling characters, clearly defined and recognizable, with coherent psychological motivation, fulfilling their purposes within a highly structured and composed plot. In this sense, creation and effective depiction of characters (characterization) is a vital tool of narrative persuasion, especially in legal storytelling. In legal storytelling practice, plots do not open outward on a postmodern confusion, nor do environments outside the intentionality of the various players in the story typically dictate the unfolding of events. We emphasize free will in legal stories; causation results from the deliberate and purposeful choices and actions of the various players in the story. Legal stories are tightly wound, compressed, and plot-based realist narratives; we invite our readers and listeners to judge actions, make inferences about causation, and assign legal responsibility all based on their understandings of a character's “character.”

Here is a brief sampling from an inventory of reasons why a character's “character” is especially important in most legal storytelling practice:

1. It is a pervasive habit of thought in society to regard people's behavior as determined by their innate character traits and propensities rather than by their situations or circumstances. When trying to understand “events”—who took what actions and why—we look for explanations in the character of the actor, that is, in the actor's
personal disposition
.
¹³
Social psychologists call this tendency “fundamental attribution error”
¹⁴
or “correspondence bias.”
¹⁵
A story may depict the character of its central player or players in a subtly nuanced way, as we will see in Jeremiah Donovan's depiction of defendant Louie Failla, or in a gross, stereotypical way. Regardless, what human being X will do is seen as a product of what
human being X is like. Therefore, to make the plot action of stories persuasive, it is crucial to create characters whom the audience will expect to act in particular ways.

2. Judges and juries in criminal cases are particularly given to seeking explanations for behavior in character. For example, judges who impose severe criminal sentences take comfort in the belief that convicted defendants are the type of people who deserve these sentences. Some judges, perhaps, become jaded and lose interest in the many-faceted, complex circumstances of individual cases and find it easier to think about individual defendants as repeat performances of stereotypical perpetrators. Judges are accustomed to administering legal rules that assign great importance to mental states in the grading and punishment of crimes—particularly serious crimes—and it is easy for them to think about particular mental states as attributes of particular types of minds.

3. In criminal trials, just as in popular stories,
motivation
is simultaneously a mainspring of action and a reflection of character. David Lodge puts it this way in discussing motivation and character in the novel:

Motivation in a [classic realist] novel is a code of
causality
. It aims to convince us that the characters act as they do not simply because it suits the interests of the plot … but because a combination of factors, some internal, some external, plausibly cause them to do so. Motivation in the realist novel tends to be, in Freudian language, “overdetermined,” that is to say, any given action is the product of several different drives or conflicts derived from more than one level of the personality.
¹⁶

In this regard, literary and popular storytelling conventions are based on the same premise as legal theory—the model of “the unique, autonomous individual responsible for his or her own acts.”
¹⁷
According to this model, motivation serves as a two-way bridge between character and action: it enables the reader-viewer-fact finder to infer what a character will do from what kind of person the character is and vice versa. Consequently, it is typically necessary to create coherent, intelligible characters to persuade our judges and juries that our plot makes sense and produces a satisfactory ending to the story of the case.

4. Finally, judges and juries, akin to movie audiences, will root for the characters in a story whom they come to like. Therefore, it often behooves legal storytellers to create sympathetic protagonists with whom the audience can at least identify. On the other hand, the audience will typically long to
witness the downfall of characters whom they come to dislike, whether or not these characters are clearly identified antagonists and often regardless of whether the legal rules governing the legal issues make the personalities or mental states of these characters relevant.

E. M. Forster famously postulated in his classic dictum in
Aspects of the Novel
that there are both flat and round characters.
¹⁸
A dictionary of narratology defines a flat character as “[a] character endowed with one or very few traits and highly predictable in behavior.”
¹⁹
As Forster puts it, a flat character is “constructed [a]round a single idea or quality.”
²⁰
He or she “can be expressed in one sentence” and “has no existence outside it, … none of the private lusts and aches that must complicate [even] the most consistent human lives.”
²¹
Simply put, flat characters are monochromatic or one-dimensional, often cast onstage to express a single idea or to serve a specific plot function—keeping the plot on track or causing an important “twist” or turn in the plot. Alternatively, this character may keep alignment within the story structure, cast onstage to push the narrative inexorably forward.

The townspeople in
High Noon
are all clearly flat characters, each expressing one idea reducible to a single sentence. They push the protagonist Will Kane ever forward in his failed quest for allies so that he must, ultimately, face the villain Frank Miller and the Miller gang alone. Take, for example, the hotel clerk; his single line might be: “The town was better off when Frank Miller was in charge, before Will Kane sent him to prison; I can't wait until he returns and finishes off Kane, and we get back to business once again.” Another flat character is Kane's young former deputy sheriff, Harvey. Harvey is cast onstage repeatedly to serve plot functions, reveal crucial backstory, and keep the plot moving forward. His more complex sentence, depicting the source of all his motivations and actions, might read: “I'm as good a man as Kane; either I'm given or I take what was his (and what is now rightfully mine)—both his mistress and his job—or I am out of here.”

“Flat” characters may have some aspect or trait that makes (and keeps) them interesting or compelling, but what they lack, typically, is psychological
complexity or the ability to change; they are fixed entities and typically do not develop or change in the course of the plot. Flat characters display no distracting internal conflicts; their actions embody and manifest the single-sentence idea that makes them come alive and gives them purpose. Often, the character is brought onstage, especially in film, to advance a crucial sequence of the narrative design. Afterward, this flat character may simply disappear. This does not mean that flat characters are intrinsically uninteresting as characters. Indeed, just the opposite may be the case; there may be some compelling aspect to a flat character that makes him come alive momentarily, or allows the image and identity of the character to linger in the mind of the audience long after the character fulfills her purpose and departs from the story. Further, flat characters often have great utility within the story; the books of some classical novelists (e.g., Charles Dickens) and that of many effective legal storytellers are populated with vivid flat characters cast into crucial secondary roles within the story.

Forster observed subtly about flat characters in the novel:

One great advantage of flat characters is that they are easily recognized whenever they come in—recognized by the reader's emotional eye, not by the visual eye, which merely notes the recurrence of a proper name.… It is a convenience for an author when he can strike with his full force at once, and flat characters are very useful to him [in doing this], since they never need reintroducing … and provide their own atmosphere.…

A second advantage is that they are easily remembered by the reader afterwards. They remain in his mind as unalterable.… We all want books to endure, to be refuges, and their inhabitants to be always the same, and flat characters tend to justify themselves on this account.
²²

These observations are, in large measure, also applicable to flat characters in legal storytelling practices, making the use of well-formed flat characters invaluable.

Forster also speaks of “round” characters.
²³
Typically, round characters are located at the core of the story; they are more fully developed than flat characters and reveal different aspects or facets as the story develops. The narrative logic and the constellation of secondary flat characters circulate around these core round or complex characters. The story is, in large measure, often—but not necessarily—“their” story. A round character is “[a] complex, multidimensional, unpredictable character.”
²⁴
Forster observes that “[t]he test of a
round character is whether it is capable of surprising in a convincing way.”
²⁵
To create convincing round characters and to make them come alive, it is necessary to provide sufficient information about the character's internal tensions, contradictions, and complications so that the audience will understand the character's actions as “the product of several different drives or conflicts derived from more than one level of the personality.”
²⁶

There is a second important aspect about understanding and depicting round characters. In addition to their psychological complexity, these characters are typically not static within the structure of the plot; they tend to move or evolve or change internally just as the plot develops. As Hemingway observed, when asked about characters and characterization in his novels, “Everything changes as it moves.… Sometimes the movement is so slow it does not seem to be moving. But there is always change and always movement.”
²⁷
The change in characters in most legal storytelling, akin to the trajectory of character arcs of many round characters in films, is more scripted and predictable than in the classic novels that are more about character development than plot.

Nevertheless, complex characters may change during the course of a legal story or even the typical commercial popular entertainment film. They mature or degenerate, they have an epiphany or at least an attitudinal shift, or they gain control or lose control of their actions. Regardless, their actions and choices affect their worlds causally and, more important, determine the movement of the plot and the outcome of the story. This is especially so in law stories that, like the popular entertainment film, employ the model of “the unique, autonomous individual responsible for his or her own acts.”
²⁸

The transformation or character shift in law stories typically occurs on a clearly identified and circumscribed trajectory, in Hollywood screenwriting terminology a “character arc.”
²⁹
This shift or clear and apparent movement signifies more than the fact that the audience simply knows more about who the character is at the end of the story than at the beginning. Rather, the plot works internally on the character, compelling the character to make crucial choices or take actions that, in turn, shape the plot and the outcome of the story. In doing so, the story compels important internal changes or personal transformation within the character's psychology so that the character is not the same person at the end of the story as at the beginning, as is apparent, for example, in the transformation of the “complex” characters of Helen Ramirez and Amy Kane in
High Noon
. The story inevitably works upon the character's character, and the audience observes and perceives the “reverberations”
³⁰
of the plot within the story.

Other characters are static. They remain frozen in the same mold from start to finish. There is some apparent relationship between the flat-character–round-character taxonomy and the static-character–evolving-character taxonomy. Flat characters
must
also be static. Round characters can be either static or evolving. And especially in legal stories, the character arc of a round character, especially the protagonist, is often left intentionally incomplete.