Storytelling for Lawyers (2 page)

But how does a lawyer tell a “good”—effective, purposeful and persuasive, compelling and factually meticulous, and truthful—story? What theory, techniques, and craft are helpful to legal storytellers? What, for example, are the components of an effective plot? How does a story turn on a narrative theme, and how does a theme inform a litigator's theory of the case? What are the commonly recurring plots (the stock stories) employed in various types of law practice? What are relevant genres? Who are the characters in legal stories? How are these characters cast into specific roles? And how is character best depicted and developed? What is narrative time and how is it artfully and strategically employed and manipulated? Why does setting matter profoundly in some types of legal storytelling and not at all in others? What stylistic lessons might lawyers learn from other masterful popular storytellers, including novelists, journalists, and moviemakers?

Unfortunately, the standard law school curriculum directs little, if any, systematic attention to developing storytelling skills; indeed, doctrinal legal education devalues the complex stories at the heart of the law and the storytelling skills crucial for practice. Perhaps, in part, this is based on a shared misbelief that these skills are intuitive or cannot be taught. Perhaps, in part, it is believed that lawyers learn about storytelling through their practices simply because we do so much of it.

Strangely, in a profession where storytelling skills matter profoundly, lawyers typically do their work without ever reflecting systematically on the nature of their craft. It is the simple premise of this book that lawyers, law students, and academic generalists may benefit from this exploration. This book provides a guide for the journey. It is not, however, a storytelling cookbook; there are no easy-to-follow recipes for effective legal storytelling. Instead, the text identifies and foregrounds the components of a story and visits principles of storytelling craft useful to lawyers.

Although there are no simple recipes or paint-by-the-numbers formulae for effective storytelling, there are discrete elements or components of all stories. For example, journalists learn to address the Five Ws in constructing stories: Where? Who? What? When? Why?

Narrative theorists have devoted entire academic careers to distilling and separating the components or dimensions of a story and comprehending their interrelationships—how these components fit together seamlessly, and how adjusting or fine-tuning one aspect of a story inevitably affects all other aspects as well. One of the most distinguished theorists, Kenneth Burke, formulated the “Pentad”—a five-part analysis of the human drama as it is reconfigured in narrative (or story). Tracking the journalist's Five Ws, Burke identified “Five Key Terms of Dramatism.”
¹

My colleague Anthony Amsterdam, in turn, reformulated Burke's Pentad as a tool relevant to formulating and constructing legal stories, as follows:

1. Scene

2. Cast and Character

3. Plot

4. Time Frame

5. Human Plight

This roster also identifies the primary divisions of this book. Of course, these components are twisted together and interlocking, the DNA of a story that reveals the nature of the story and of the world itself. Nevertheless, it is useful to canvass these components individually throughout the process of constructing a story.

This book begins with the component of plot because it is typically the most important component of legal stories. Legal stories, especially in litigation, are plot-driven and protagonist-centered stories. Other aspects of the story take a backseat to plotting. The second and third chapters of the book focus on plotting and provide close analysis of a plot-driven legal story as a primary illustration: Gerry Spence's closing argument at trial on behalf of plaintiff Karen Silkwood.
Chapters 4
and
5
are about character construction in legal storytelling practice. The legal story analyzed as a primary example here is Jeremiah P. Donovan's remarkably engaging and theatrical “character-based” closing argument on behalf of the reputed mobster Louis “Louie” Failla. This legal story is a complex and subtle tragicomedy; at the
core is Donovan's depiction and development of Failla's complex character.
Chapter 6
addresses the importance of discrete and selected aspects of the stylistic component of legal storytelling including voice, perspective, rhythms of language, and use of scenes and summaries.
Chapter 7
explores the creation and depiction of the settings and stages on which legal stories unfold; it examines how the scope and boundaries of the “world of the story” are, in many cases, strategically crucial to legal storytelling. Finally,
chapter 8
focuses on the topic of narrative time and how the inexorable progression of linear and forward-moving time is inevitably reshaped and transformed in a story. Although narrative time appears to mimic real time, it seldom, if ever, does so.

Many of the popular culture examples of stories employed in this book are drawn from movies. This may be, partially, because in my day job, in addition to teaching traditional doctrinal subjects (criminal law and torts), I teach law and film and law and popular culture, and have written extensively about these subjects. Consequently, I turn instinctively to popular film for illustrations of stories relevant to lawyers, even though many of these films are not about legal subjects.

Furthermore, in our predominantly visual popular culture, movies are typically more familiar than literature. Teaching law students and practitioners over the past twenty years, I have discovered a heightened visual literacy exists in our media-obsessed popular culture. But the reasons for choosing these visual texts as primary examples in this book are deeper.

First, the stories that lawyers tell, especially trial stories, exist within a wide range of popular storytelling practices. Advertising, popular songs, television programming, YouTube videos, novels, memoirs, and creative nonfiction influence and, in turn are influenced by, other popular stories and storytelling practices. The stories and storytelling practices that are most influential upon legal storytellers are visual storytelling practices, especially those in the cinema, and especially the linear, protagonist-centered, theme-based, hard reductionist stories of Hollywood entertainment films. These stories influence and inform courtroom storytelling including the substance, style, structure, and content of trial work. In many ways, the trial practitioner intuitively draws upon the content and form of popular film to connect with his audience, just as moviemakers draw upon the drama of the law, the theme and value of justice, and the subject of the trial in so many recent popular movies.

Second, the work and professional role of the trial lawyer is specifically akin to that of the movie director. Effective litigators, like Hollywood directors and screenwriters, typically storyboard evidence into clear and purposeful plots. Experienced trial lawyers, like Gerry Spence and Jeremiah P. Donovan, whose closing arguments are analyzed in this book, are especially adept at converting evidence introduced at trial into well-shaped and carefully constructed stories. The narrative story structure frames how jurors process and interpret evidence and provides the basis for juror deliberations and verdicts. Jurors passively watch and witness the drama of the trial as it unfolds in the courtroom theater, almost as if sitting in the darkness at the movies; their attention, expectations, and story consciousness are often shaped and prefigured by Hollywood cine-myths.

Finally, the nature of the trial itself is changing rapidly. Many of these changes are caused by the use of new technologies, especially aural and visual “paratexts” at trials, including computer simulations, visual aids, video and audio evidence, and other often professionally produced storytelling enhancements and devices. The impact of this technology is profound and often transformative. There has been a reinvention of the ways stories are told, and this affects the stories themselves. As in Spence's and Donovan's closing arguments, evidence is often presented orally or visually. These are present-tense voices and images, rather than past-tense testimonial evidence. Like a director in the movies, the artful legal storyteller weaves together these materials; in this weaving, there is often a radical reinvention in the content and form of trial storytelling. Additionally, lawyers' work is the subject of numerous television programs and films.

As a result of these changes in courtroom storytelling practices, and in jurors' expectations about lawyers and legal storytelling, a phenomenon has emerged: jurors seem to make sense out of evidence in deliberations by referring to other imagistic stories, primarily drawn from television and popular entertainment films. No longer does popular culture merely present images of the law; popular culture embodies and creates the law.

Sophisticated and shrewd trial lawyers—like Spence and Donovan—are aware of the interpenetration of law practice and popular culture. As a result, stories told at trial and in oral argument—like Spence's civil closing argument on behalf of Karen Silkwood, or Donovan's closing argument on behalf of the criminal defendant Louie Failla—are, curiously, a form of entertainment. Stories are packaged in theories and imaginative forms that capture the imagination of jurors and embody other popular stories, often borrowed from the plots of Hollywood movies.

Storytelling for Lawyers
uses movies as examples of compelling popular stories, employs narrative theory to understand how these stories are artfully constructed, and maps insights from analyses onto the domain of legal stories, including the masterful closing arguments by Spence and Donovan. It is my intention that this book may provide a narrative primer and suggest a model for strategies that will assist lawyers in developing their own legal storytelling practices.

THE BASICS

[Plot is] the intelligible whole that governs a succession of
events in any story.… A story is made out of events to the
extent that plot makes the events into a story
.

—
PAUL RICQEUR
, “N
ARRATIVE
T
IME
”

If you listen to the way people tell stories, you will hear that
they tell them cinematically
.

—
DAVID MAMET
, O
N
D
IRECTING
F
ILM

If you're ever in doubt about how to end your story, think in
terms of an “up” ending. There are better ways to end your
screenplay than have your character caught, shot, captured,
die, or be murdered
.

—
SYD FIELD
, S
CREENPLAY
: T
HE FOUNDATIONS
O
F
S
CREENWRITING

Peter Brooks, a leading American narrative theorist, tells an anecdote about a brilliant graduate student in his advanced narrative theory seminar. According to Brooks, this young woman was so imbued with narrative prescience that she could accurately predict the plot trajectories of novels, anticipating the endings, by a close reading of the opening pages. That is, she could decode the
plot structure embedded within the story from the outset of the telling. The point of the anecdote is that, as Michael Roemer suggests, stories are already over before they begin and, especially in law, are written to justify a predetermined or desired outcome.

I have had similar experiences while teaching torts and criminal law courses. First-year law students in torts and criminal law inevitably observe that they can predict the outcome of a case by a close reading of the beginning of the opinion where the court tells the factual story framing the legal analysis that follows.

Here, for example, are the opening paragraphs from
Coblyn v. Kennedy
,
¹
an intentional torts case taught early in the first semester. There are two related legal issues in the case. The first issue is whether, as a matter of law, the plaintiff can recover for the tort of false imprisonment. The story the court tells, like most judicial storytelling, is designed to appear plotless, merely a chronology or recitation of the facts determined at trial. The story is told exclusively from the perspective of the plaintiff. The court frames the plot narrowly to fit the legal issue: defendant contends that, as a matter of law, “no unlawful restraint [was] imposed by force or threat upon the plaintiff's freedom of movement.” The court retells this portion of the story and embeds a plot within its telling:

We state the pertinent evidence most favorable to the plaintiff. On March 5, 1965, the plaintiff went to Kennedy's, Inc. (Kennedy's), a store in Boston. He was seventy years of age and about five feet four inches in height. He was wearing a woolen shirt, which was “open at the neck,” a topcoat and a hat. “Around his neck” he wore an ascot which he had “purchased previously at Filenes.” He proceeded to the second floor of Kennedy's to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket. After purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs. Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it around his neck, and knotted it. The knot was visible “above the lapels of his shirt.” The only stop that the plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.

Just as the plaintiff stepped out of the door, the defendant Goss, an employee, “loomed up” in front of him with his hand up and said: “Stop. Where did you get that scarf?” The plaintiff responded, “Why?” Goss firmly grasped the plaintiff's arm and said: “You better go back and see the manager.” Another employee was standing next to
him. Eight or ten other people were standing around and were staring at the plaintiff. The plaintiff then said, “Yes, I'll go back in the store” and proceeded to do so. As he and Goss went upstairs to the second floor, the plaintiff paused twice because of chest and back pains. After reaching the second floor, the salesman from whom he had purchased the coat recognized him and asked what the trouble was. The plaintiff then asked: “Why [did] these two gentlemen stop me?” The salesman confirmed that the plaintiff had purchased a sport coat and that the ascot belonged to him.
²