Storytelling for Lawyers (28 page)

Janet Malcolm describes Leventhal's gestures and physicality:

When Leventhal uttered the words “this defendant,” he theatrically extended his arm and pointed across the room to a thickset man in his fifties with a gray beard and heavy dark eyebrows, wearing wire-rimmed eyeglasses and a yarmulke, who sat impassively at the defense table. Leventhal went on to describe how Mallayev shot Malakov in the chest and in the back, and, as the orthodontist lay on the ground dying, his blood pouring from his wounds, saturating his clothing and seeping into the cement, this man, the defendant, who ended his life, calmly and coolly took his gun, put it into his jacket, turned away and headed up 64th Road towards 102nd Street and fled the scene.

With agitated, outstretched hands, Leventhal asked the jury: “Why? Why should this defendant lie in wait for an unsuspecting and innocent victim? A man, I will prove to you, he didn't even personally know. Why would he lie in wait with evil in his heart?”

Leventhal answered the question:

Because he was hired to do it. He was paid to do it. He's an assassin. A paid assassin. An executioner. A hit man. For who? Who would hire this man, this defendant to murder in cold blood an innocent victim in the presence of his own daughter? Who could have such strong feelings towards Daniel Malakov that they would hire an assassin to end his life? Who?

Leventhal walked toward the defense table and again lifted his arm and pointed—this time at Borokhova [the codefendant]. “Her,” Leventhal said, his voice rising to its highest pitch. “The defendant Mazoltuv Borokhova, Daniel Malakov's estranged wife. The woman
with whom he had been engaged in an ongoing and heated, contentious, acrimonious divorce for years.”
⁷⁸

It is the prosecutor's use of an omniscient perspective that dictates the way in which the jury will respond emotionally and morally to the characters. The listeners' moral outrage at the actions of the defendant is a result of the prosecutor's use of perspective.

The prosecutor in a contest of competing stories (in trial, on appeal, or in a postconviction brief) strategically employs an omniscient perspective affirming an apparent and undisputable “objective” truth. Often the story is told in an unembellished “just the facts, ma'am,” no nonsense rhythm and style: the narrator employs short and straightforward declarative sentences. This clarity is to be equated with candor and absence of narrative manipulation. Prosecutors typically tell their stories in straightforward and linear past-tense constructions. Often the details and specifics are muted, as if the voice does not need to prove itself to the reader or call attention to itself, and the details are distractions that might be misread.

This strategy often works best in legal storytelling—just as it does in nonlegal storytelling—when the omniscient narrator comes across as well informed, unbiased, and trustworthy; this alone will tend to make his version of the story believable. A measured tone, together with the absence of any discrepancy between the narrator's version of events and whatever information is available from independent sources about those events, will invest the story with believability. Conversely, if an omniscient narrator comes across as unreliable at all, it completely destabilizes the entire reality of the telling. The reader or listener is left not knowing what to believe. Especially in the context of litigation, if the omniscient narrator is unreliable the reader or listener will usually believe the converse of what the narrator says. In legal storytelling, the use of an omniscient narrator implies the storyteller can always be trusted to tell an absolute truth. Furthermore, the use of an omniscient narrator in legal storytelling also implies that there is a single and absolute “objective” truth that can be readily captured and depicted in the narrative; it need not be unpacked and discovered by the listener or reader.

If a first-person or a third-person limited narrator comes across as reliable, however, the story gains the type of truth that comes from an eyewitness account. The world is perceived in subjective pieces and then assembled from these pieces. If, on the other hand, a first-person narrator or a third-person limited narrator appears unreliable, there are two possible effects. First, the reader or listener may believe that all the events are misrepresented and the truth is best ascertained by detecting the distortions that result from the narrator's deceitful motivations or judgmental impairments. Thus, for example, in the
Atkins
brief, once the reader determines that the prosecution's witness Jones is an unreliable narrator who has cast the blame on Atkins to avoid the possibility of a death penalty, the reader reinterprets the seeming coherence of Jones's version of the story and Atkins's role within it.

Second, the reader or listener may believe that the same motivations or judgmental impairments affect the behavior of the first-person narrator (or third-person limited narrator) as an actor within the story. Thus, for example, the unreliability of Jones as narrator not only affects his credibility but also transforms him into a villain within the story and causes the reader to reinterpret the events of the story with Atkins recast as the victim of Jones's villainy.

I began this chapter with an anecdote about grading law school examinations, explaining how style and voice are profoundly important in determining outcomes on these examinations. Specifically, like most law professors, I look for writing that is clearheaded, grammatically precise, and aggressively purposeful. The A student's “voice” is careful, meticulous, and constrained. Beneath it there is an understated confidence and authority, indeed, often a borderline arrogance and analytical certainty, mimetic of the judicial voices excerpted in the law school casebooks. The successful law student internalizes certain repetitive and preconfigured analytical forms to display doctrinal knowledge. The student learns how to analyze, synthesize, and analogize cases, and is able to apply doctrinal analysis to “the facts” within these tightly prescribed and highly organized analytical structures. The successful law student does not immerse herself in the facts to tell a persuasive story; instead, she employs facts as “floating factoids” to display doctrinal knowledge. Stories are subservient to legal analysis, colonized by analytical structure. This mode of presentation, important to law school success, rightfully becomes part of the successful practitioner's tool kit.

Unfortunately, to create problems that permit law students to develop this structured analytical precision and lawyer's voice, something important is typically sacrificed: “the facts”—the multidimensional, complex, ambiguous, and particularistic stories at the heart of legal problems. The practitioner's factually indeterminate world is tipped upside down in law school, so that the facts do not subsume doctrinal and legal analysis. Similarly, in heavily edited law school casebooks, complex and ambiguous stories are reduced and transformed into narratologies that seldom breathe, often have little inner life to them, and are typically merely excuses for exploring fine gradations and distinctions in doctrinal law.

In law practice, however, outcomes turn on storytelling skills and qualities of different storytelling voices. Lawyers intuitively develop new stylistic techniques crucial to their roles as legal storytellers. In this chapter I presented a limited selection from a large menu of relevant stylistic concerns and techniques that suggest a more expansive tool kit relevant to legal storytelling practice. I have used examples to illustrate how these techniques are applied and are relevant in effective legal and literary storytelling. The particular form of legal storytelling, whether a closing argument at trial or an appellate or postconviction brief, will present the storyteller with a large number of stylistic choices. These choices are nearly always determinative of the success of the legal argument and are an important tool of legal persuasion. In short, it is clear from a look at any effective storytelling that
style matters
.

SETTINGS, DESCRIPTIONS, AND ENVIRONMENTS

Beyond the lines of printed words in my books are the settings
in which the books were imagined and without which
the books could not exist.… I am a writer absolutely mesmerized
by places;… and the settings my characters inhabit
are as crucial … as the characters themselves
.

—
JOYCE CAROL OATES
, “T
O
I
NVIGORATE
L
ITERARY
M
IND
, S
TART
M
OVING
L
ITERARY
F
EET
”

Setting is … a powerful vehicle of thematic concerns; in
fact, it's one of the most powerful
.

—
JOHN GARDNER
, I
NTERVIEW IN
P
ARIS
R
EVIEW

Description … is never just description.
—
DAVID LODGE
, T
HE
A
RT OF
F
ICTION

This chapter explores the significance of settings, descriptions, and the creation of complete environments in storytelling practice. These are closely related aspects of all stories, instigating the events of the story, compelling the shape of the world in which the events can happen, and in some circumstances even determining the outcome of the narrative itself.

The events of stories must fit in the worlds (the settings, the descriptions, and the complete narrative environments) shaped around them and, in turn, these environments are developed only in tandem with the telling of the tale itself. As we will explore, the settings, descriptions, and environments that work well in one story (whether legal or nonlegal) will clearly not fit in another. Indeed, the failure to develop an effective setting and environment can diminish or destroy the persuasive power of the story.

In many stories the settings, descriptions, and environments are crucial to the theme and the plot; the setting allows the events of the story to happen. For example, Spielberg's
Jaws
could obviously only take place in a summer beachfront community on the ocean where innocent summer bathers are naively enjoying the water unaware of the shark lurking beneath. Likewise, Foreman's allegorical
High Noon
fits the Western frontier town where order has yet to be imposed upon anarchy and justice is still meted out in a violent story-ending gun battle between the clearly marked forces of good and evil. The story fits the place or setting and the settings, in turn, suggest or create a complete narrative environment where the story can unfold.

But it is more complex than this: the settings, descriptions, or narrative environments are not merely containers shaped to fit the plots of the stories told within them. Settings and environments are developed and are often strategically affirmed or shaped throughout the story in tandem with the development of the narrative. Think, for example, of the images of the train tracks coming out of the distance that signal the arrival of Frank Miller in
High Noon
, or of the ticking of the clocks as Miller's arrival looms more immediate, or of the desperate marshal pacing relentlessly from place to place in his chaotic search for assistance from the townspeople who refuse to aid him in the battle to preserve their community. This imagery, these places and settings, embody the themes of the story and alert the viewer subtly to the complex and allegorical nature of the plot. In contrast, think of
Jaws
. The settings and shots are technically more elaborate and meticulously constructed, providing complex scenery for the shark attacks on the swimmers and the ultimate and prolonged final battle sequence between the three nautical heroes and the shark. The settings in
Jaws
are stages on which the action takes place, conveying to the viewer that all that matters is what is depicted on the screen; the viewer does not have to go any deeper to comprehend the meaning of this story. The viewer is thus encouraged to enjoy the movie. The settings and
environment in
Jaws
provide a simple cartoon realism that integrates with and affirms the theme of this movie. The ending in
Jaws
is an appropriately shallow restorative ending; the town returns to exactly what it once was: a place where innocent swimmers guiltlessly enjoy the pleasures of a summer day in the waters off the Amity Island beach.

Thus setting or environment is developed and operates in tandem with the other narrative components of the story; the setting is aligned with the way in which this particular world works. The same is true in legal storytelling practices; the settings, descriptions, and environments are constructed to fit the story and, simultaneously, to suggest or create the type of world in which the events of this particular story can take place. Further, the type of world that fits one type of story will not typically fit another type of story.

This chapter analyzes discrete settings and environments depicted in creative nonfiction and fiction. The literary examples are provided by: (1) one paragraph from a Joan Didion essay about the Manson murders and Los Angeles in the summer of 1969; (2) a section from a travel story by the writer W. G. Sebald in which the narrator travels from Europe to America retracing the path of the journey taken by members of his family; and (3) an excerpt from a real-life crime story told by Kathryn Harrison about a boy who murders his mother, father, and younger sister. The legal examples include the depiction of settings and environments in a judicial opinion, two briefs from coerced confession cases, and the brief from a death penalty case. The chapter illustrates how some of the same techniques and concepts relevant to the development of settings in literature are applicable to effective brief writing and legal storytelling practice.