Storytelling for Lawyers (21 page)

In
The Screenplay
, Margaret Mehring analyzes the Hollywood formula for constructing character and effective characterization, describing the “personal goals” that “drive the characters to reach their plot goals.”
⁶¹
These goals are “the voices within the character that yearn for fulfillment, that must be satisfied. They're the needs that create the energy to overcome obstacles.”
⁶²
These forces, like the characters themselves, are exaggerated and distilled, and they provide apparent motivation for the protagonist.

Hollywood screenwriters also speak of the protagonist's “inner contradiction” that accompanies the internal personal goal.
⁶³
This is the conflict within the protagonist that, according to Hollywood folk wisdom, makes the protagonist's character compelling. Usually, like the personal goal, there is one primary and identifiable inner contradiction that determines the protagonist's identity and shapes the character's cinematic destiny or fate.

Failla's personal goal is partly material and partly psychological: Failla struggles for those Hollywood staples of “fortune and fame” as well as for professional recognition, respect, and self-esteem. The inner contradiction in Failla's character, however, is more subtle. Donovan's not-so-tough guy Louie Failla tells big stories to capture and please his audience. He does so because he lacks something within himself and needs something that he is missing desperately. This psychological need interferes time and again with the achievement of his personal goal and, perhaps, contributes to his
self-destructive confessions in a car that he could have and should have anticipated was “bugged.” This missing element cannot be fully deciphered, however, until Donovan intimates it at the end of his closing argument by reading the complex progressions of cartoons and suggesting the true nature of Failla's character.

The inner contradiction within Failla's character is between Louie Failla, the purported Patriarca mafioso, with his tough guy exterior, his Runyonesque bravado, and the softer, compassionate, empathetic, and even loving aspects of his personality. This tension is revealed in Failla's confessional dialogue with Jack Farrell, and especially, in his conversations with Tito Morales about his grandson. This contradiction is most apparent in the final act or movement of the story when the audience sees Failla's character depicted as the two contradictory and conflicting halves of a personality.

When the screenwriter is constructing the dynamics of a protagonist's character, according to the Hollywood template, the audience sees the character “in action” in the struggle toward a clearly defined outer plot goal. Plot goals, like personal goals, are specific and apparent. They include “[t]hings like becoming a famous pilot, being married to a wealthy woman, capturing a notorious criminal, or earning a higher education degree.”
⁶⁴
Initially, the plot goal may appear simply as an external and visible representation of the personal goal. Tension between the protagonist's personal goal and the plot goal results in the “darkest moment” or the “final crisis” and ultimately moves the protagonist to the climax “when the protagonist
must
make a decision that will reflect a substantial change within him or her and will create a substantial change in the situation.… The moment the change manifests itself … the moment when the theme of the story becomes clear.”
⁶⁵

Failla seeks a specific external plot goal. Failla wants to become a capo of Connecticut organized crime activities. Failla, like the legendary O'Toole in Donovan's story, pretends to be who and what he is not. In the final act, he has the opportunity to achieve this external plot goal; he can ingratiate himself with and prove his loyalty to the leadership of the Patriarca crime family by completing the conspiracy to murder Tito Morales. In Donovan's version of the story, however, he does not do so, and it is at this moment that the narrative theme becomes clear.

The theme of a popular movie or an effective law story is often deeply connected to the development of the central character, typically cast as the
protagonist of the story (especially in a criminal law or torts story). This is especially so in a sophisticated law story akin to Donovan's narrative on behalf of Failla. This is a story that ultimately turns on the audience's perception and understanding of Louie Failla's character: at the start of the story, Louie is a narrative trickster, who tells his stories for effect (akin to “O'Toole” in the barroom anecdote), as compared to who he becomes at the end of the story, a character (akin to “Roosevelt”) who uses storytelling skills to save Morales's life and maintain his own integrity. That is, the theme of Failla's story concerns Failla's motives and contradictory impulses and how this internal psychological conflict is translated into action (more specifically, in Failla's case, into inaction).

It is Failla's self-defining “choice,” at the moment of crisis and climax, not to murder Morales that reveals his true identity. The jury will complete the story with a verdict; the judge with a sentence, if Failla is convicted. Failla's real family will complete the story by determining whether they believe Failla had their best interests at heart and in how they will respond to him after the argument. Likewise, Failla's adopted mob family, especially the codefendants on trial with Louie who are now charged with the murder of Billy Grasso, will complete their version of the Failla story by assessing whether they believe Donovan's story assists them in their defense to murder charges by implicating that, simply put, Grasso is truly a villain who deserved to die.

HOW TO USE VOICE, POINT OF VIEW, DETAILS AND
IMAGES, RHYTHMS OF LANGUAGE, SCENE AND
SUMMARY, AND QUOTATIONS AND TRANSCRIPTS IN
EFFECTIVE LEGAL STORYTELLING

Every sentence has a truth waiting at the end of it and the
writer learns how to know it when he finally gets there
.
—
DON DELILLO
, M
AO II

As I revise this manuscript, I am simultaneously grading blue-book examinations and ExamSoft examinations in a large doctrinal criminal law class. The process is labor intensive and often painful. One reason why grading examinations is so difficult is the importance of grades to the students. Law school examinations and law school grades provide the psychic undercurrent of law school. First-year law school grades, typically based on one end-of-semester examination, often shape law school identities and self-perceptions by determining law school honors, including law review membership. This can have long-term effects on a student's confidence, ability to create a professional persona, and perception of self-worth. Increasingly, first-year law school grades have profound practical significance as well: first-year grades affect directly how students will fare in an increasingly competitive employment market. First-year students have a great deal riding on their examination performance, and they know it, and their professors do, too.

Simply put, my job is to determine who will be the law school winners and losers. Typically, I give four-hour in-class essay examinations. Often (in
criminal law and torts courses), I give two long “issue-spotting” questions employing complex fact-based problems, sometimes derived from “real” cases, and other times fabricated based on doctrinal coverage. In my criminal law class, for example, I tell stories about murders, rapes, robberies, thefts, conspiracies, and so on. As is traditional, students must translate these narratives into doctrinal frameworks, “spotting” or identifying the relevant issues—picking them up like Easter eggs on an elaborate Easter egg hunt—articulating accurately the relevant legal rules necessary to solve these legal problems, then systematically applying these rules to resolve the issues correctly.

Generally, there are two pedagogical approaches to grading students' examinations: (1) employing an objective checklist and grading criteria
or
(2) employing a more “holistic” approach that emphasizes an individualized assessment of the quality of students' writing and analytical abilities. Like most law professors, I opt for the latter approach; it simply provides more room for my own subjective judgment and flexibility. Of course, I tell my students the rules of the game before the exam and in the written instructions to the examination.

As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether the students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem. The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.) For law school examinations, stylistic concerns are based on the limitations and constraints on possibilities, about clamping down intellectually and authoritatively on the facts. Students are evaluated on the cleanness and effectiveness of the organizational structures they select and employ, on analytical precision and accurate presentation of complex legal doctrine, and on adherence to grammatical rules and the King's English. Excellent students avoid colloquialism and humor, and avoid reading too deeply between the lines of the story, getting lost in the story. Students must present normative analysis cleanly, developing a legal voice that appears neutral and does not call attention to itself but conveys simultaneously an underlying authority and confidence, transforming the narrative into legal analysis. The story is made
subservient to the rules, and the events depicted in a law school examination hypothetical case are, as one of my students observed, merely the “floating factoids” that drift atop the law. The shrewd and adept student employs the facts to reveal the law, speaking with a lawyer-like authority and precision, manifesting knowledge of doctrinal law and a newfound forensic confidence and authority that borders on arrogance.

But what has all this to do with the subject matter of this chapter? Simply put, voice and style are profoundly important in oral and written legal storytelling practice. But style and voice in storytelling practice are not the same as the stylistic concerns and disciplines developed in law school. Indeed, style in legal storytelling is liberating; the facts at trial are typically indeterminate, and the choices and possibilities available to legal storytellers are different and far more complex than those exposed or developed in the normative analytical practice successful students employ in law school. This chapter focuses on some of the stylistic concepts and techniques that are often crucial to effective legal storytelling, in both written and oral argumentation at trial and on appeal. This chapter presents a compressed and representative selection of topics from a far more extensive narrative menu. It merely provides a starting point, an introduction, rather than a comprehensive exploration of this complex subject. Unfortunately, these topics are seldom, if ever, foregrounded systematically in law school, even in legal writing or clinical and advocacy courses. Nevertheless, effective law students intuitively understand the importance of style and voice in determining examination grades. More importantly, techniques of style and the power of voice are often at the core of narrative persuasion and legal storytelling practice, and employing technique effectively is often crucial to determining the outcome of many cases.

As Henry Miller observed, what one has to tell may not ultimately be as important as the telling itself. The two are clearly intertwined in all types of storytelling practice, including legal storytelling. The telling itself is embodied in the “style” or “voice” of the storyteller.

To illustrate, in an oral trial or appellate argument, the audience typically listens closely to, and is persuaded by, the literal voice or persona of the attorney-storyteller; it is profoundly important, yet seldom discussed or analyzed as a persuasive tool. Here, however, when analyzing voice I refer to something more than just the “sound” of the voice; legal storytelling voice is composed of instrumental stylistic choices, carefully selected in relation
to the material of the story, fitted to the narrative's plot and characters. In many ways it is akin to the voice of a popular singer interpreting a song, the lyrics and melody shaping inflection, modulation, and phrasing. Likewise, the legal story affects voice, influencing choices made from a repertoire of alternative stylistic possibilities. This is true in both oral and written storytelling practices; the qualities of voice are deeply related to other aspects of the narrative.

For example, the audience for Spence's closing argument in
Silkwood
is captured by the power and confidence of Spence's literal voice; there is deliberateness, pacing, and confidence in his rhythmic yet theatrical delivery. It is through Spence's voice and presentational style that Spence elevates a simple and not atypical torts melodrama (the story of the heroic “prophet” sacrificed to the greedy corporate Beast's hunger for profits). Spence employs his voice and presentation, reshaping the material into a story with almost biblical dimensions. Spence's closing argument in
Silkwood
presents a homiletic or teaching story with a moral message about what happens when corporate greed and hunger (The Beast in the free market) goes unchecked and unregulated and devours and destroys a rural community as well as the young workers and innocents within it. Spence's voice and his presentational style are intentionally magisterial, signaling carefully that this is an important story capturing a crucial historical moment.