Storytelling for Lawyers (3 page)

The salesman became alarmed by the plaintiff's appearance and the store nurse was called. She brought the plaintiff into the nurse's room and gave him a soda mint tablet. As a direct result of the emotional upset caused by the incident, the plaintiff was hospitalized and treated for a “myocardial infarct.”

There is a second legal issue analyzed in the opinion: whether plaintiff's detention was permissible under a statute that permits the store owner to detain a customer who is suspected of shoplifting for a reasonable time, and in a reasonable manner, provided there are reasonable grounds for the detention. The court, however, chooses strategically not to tell this part of the story; it concludes that it does not have to do so because, based on its initial telling of the story, there were “no reasonable grounds for believing that the plaintiff was committing larceny and, therefore, he should not have been detained at all.”
³
It adds that the “physical restraint in a public place imposed upon the plaintiff, an elderly man, who had exhibited no aggressive intention to depart, could be said to constitute an unreasonable method by which to effect a detention.”
⁴
Then the court analyzes the law of reasonable suspicion at some length and finally, in my opinion, does the right thing by providing a just and correct legal outcome, affirming the verdict of the trial court for the plaintiff.

My point is twofold: first, my first-semester students, not yet jaded by law school, are correct when they say that they can predict the outcome from reading the initial summary of the facts. Like Brooks's prescient graduate student, the students intuitively realize that the opening or beginning of the opinion determines the trajectory of the plot for both the factual and legal stories that follow. It also anticipates the ending and outcome of the case. Second, even where the legal storyteller is an appellate judge who is purportedly retelling a story “objectively,” merely presenting the facts in a simple linear chronology, she inevitably constructs the trajectory of a purposeful
plot to reach a predetermined outcome. In doing so, the judge affirms the value of justice, inscribing legal meaning upon the case and providing closure to the story.

Plotting is important in all legal storytelling. It is crucial in legal advocacy that can best be understood as the battle of competing stories in the courtroom. But what concepts or applied narrative theory might be useful as tools for reflective lawyer-storytellers engaged in this battle?

Law stories, like all stories, are the creations of an unseen intelligence that selects, shapes, and transforms raw material into
events
and then arranges these events into the ordered
sequence
of a story. This sequence of events, or plot, provides meaning to the human affairs depicted in the story.

These events do not come ready-made like prenumbered pieces or the links to be inserted into a preconfigured chain. The nature of the plot itself determines what kind of actions can serve as events in the story and enter the plot itself. Events that fit one plot will not fit another and must be excluded. This relationship creates a curious dynamic—the plot controls events but, in turn, is shaped by the events it controls. The meaning of the whole is always a product of the parts yet, simultaneously, the parts derive their meaning from the whole. The plot and event create one another; there is a symbiotic interdependency between the two. This relationship may seem circular or even obscure, and more will be said about it throughout this book. For now, I observe that:

• Only some kind of events fit into any particular type of plot; and

• When the story begins, the reader must be clued into what type of story it is going to be.

“The king died and then the queen died” is merely a chronological listing of two unrelated occurrences. But add a mere two words: “the king died and then the queen died
of grief.”
These two events are not yet a plot, but the events are pushed together and connected. The reader or listener is drawn into what is—apparently—the beginning of a story. The audience (listener or reader) attempts to put one and one together and may speculate how the king died or whether the queen's love of the king caused her to take her own
life. How can a mere two words accomplish so much? It is because these two words attach the events causally and establish a forward movement or narrative propulsion, without providing a complete explanation of the relationship between events. Thus, the audience must fill in the gap and determine the causal relationship, and to do so compels asking, “What happens next?”

In film, and also in the artful cinematic storytelling practices of contemporary legal storytellers, the events and the interconnections between events are often not fully described or made explicit. Instead, events are depicted in scenes that are placed into sequences. This montage artfully suggests the movement of a profluent plot.

Profluence
is the purposeful forward movement between the events in the plot of a story. Teachers of creative writing, including the novelist John Gardner, observe that the profluence in a plot provides a forward narrative momentum that is much more than mere inertia.

Plots in law stories, strongly akin to popular commercial entertainment films, have clear narrative trajectories and dynamic internal movement. The audience for legal stories—especially those told by advocates in litigation, whether to a jury or a skeptical trial or appellate judge—is seldom an especially tolerant or patient audience. As a result, the plots of stories told in courtrooms and in legal briefs are typically straightforward and often compressed, more akin to the narrative structure of popular films than to that of literary novels. Legal stories are built upon strongly profluent plots.

Peter Brooks, the narrative theorist, makes the useful observation that the dictionary definitions of the various meanings of “plot” share a conceptual sense of restraint and closed-ended shape. Consider these definitions:

1. A small piece or measured area of land;

2. A ground plan or diagram;

3. A series of events outlining the action of a narrative or drama; and

4. A clandestine plan or scheme.

Each of these alternatives is characterized by “the idea of boundedness, demarcation, the drawing of lines to mark off and order.”
⁵
Inherently, there are parameters and constraints shaping the plot and compelling the outcome of a complex story. One obvious constraint on the trajectory of the plot of any well-wrought story, especially the plot of a legal story, is the ending—the
point of the story—which gives the story closure and meaning.
Story logic
has to do with the fitness of outcomes. From the very first word in a story, or image in a movie, every movement of plot works in anticipation of its ending. This is why, as a practical matter, storytellers are often taught to know their ending and to structure the plot by working backward from the ending and desired outcome.

The sequence of events, especially the final ending and resolution of the plot, provides
meaning to the human affairs
depicted in the story. Put another way, a plot makes the whole of the story much greater than the sum of its parts, supplying a trajectory and implying a reason for its telling. The plot builds upon early events and heads toward some culmination—an ending that events anticipate. In this movement, the storyteller makes an implicit promise that the plot will reveal meaning and an understanding of the human affairs within the story.

From a young age, children are taught that every story needs a beginning, a middle, and an end. David Lodge economically defines these terms: “a beginning is what requires nothing to precede it, and an end is what requires nothing to follow it, and a middle needs something both before and after it.”
⁶
Anthony G. Amsterdam and Jerome Bruner provide a richer definition, a unitary framework that applies to legal storytelling:

The unfolding of the plot requires (implicitly or explicitly):

1) an initial
steady state
grounded in the legitimate ordinariness of things,

2) that gets disrupted by a
trouble
consisting of circumstances attributable to human agency or susceptible to change by human intervention,

3) in turn evoking
efforts
at redress or transformation, which succeed or fail,

4) so that the old steady state is
restored
or a new (
transformed
) steady state is created,

5) and the story concludes by drawing the then-and-there of the tale that has been told into the here-and-now of the telling through some
coda
—say, for example, Aesop's characteristic
moral of the story
.

That is the bare bones of it.
⁷

Here, it is instructive to apply this definition to better understand the movement (the narrative “profluence”) in the plot of a one-paragraph short story by Leonard Michaels as analyzed by David Lodge:

The Hand

I smacked my little boy. My anger was powerful. Like justice. Then I discovered no feeling in my hand. I said, “Listen, I want to explain the complexities to you.” I spoke with seriousness and care, particularly of fathers. He asked, when I finished, if I wanted him to forgive me. I said yes. He said no. Like trumps.
⁸

“The Hand” is a short and self-contained story, yet the plot is rich and complex.
The Hand
's “power-to-weight ratio” is high, and there is no excess in the story (it is a narrative koan of sorts).

Confidently anticipating the modern reader's awareness of plot structure, Michaels creates a profluent plot; the story provides a subtle and complex meaning to the human affairs depicted within it, and the ending is more than merely a termination point or cessation of activities. Michaels achieves this effect by trusting that the reader will read the words slowly and carefully, grafting them onto an internal narrative framing (along the lines of the plot structure that Amsterdam and Bruner describe) that enables the reader to fill in any gaps in the narrative logic with meaning.

An initial steady state grounded in the legitimate ordinariness of things
.

What is the
initial steady state
in “The Hand?” It is implicit. It is in the order of a presumed domestic tranquility that precedes the commencement of the action. It is, for this reader, a framing image of a family where, presumably, the father has power and authority and the atmosphere is one of domestic order. The reader constructs for herself the
anterior steady state:
the “calm before the storm.”

That gets disrupted by trouble consisting of circumstances attributable to human agency or susceptible to change by human intervention
.

The
trouble
arrives in the very first sentence when the narrator smacks his little boy. The trouble here is clearly attributable to the
human agency
—the actions and will—of the father. The rhetorical point of the story is to
explore whether the course of
events
will be
susceptible to change by human intervention;
that is, whether the father can do anything about it once he has struck his little boy or whether the forces that he unleashes are beyond his control.

Trouble
(or
conflict
) often takes many forms depending, in part, on the story's
genre
. The trouble may be external—the villain in black in a melodrama—or it may be internal—a flaw within the character of the protagonist that calls forth her fate from within a tragedy. In my reading, the trouble in “The Hand” is both internal (within the narrator) and external (the actions of “the hand” are, simultaneously, beyond the control of the narrator-protagonist). The narrator then attempts to describe (if not understand) his emotional state and identify the nature of the trouble: “My anger was powerful. Like justice.”

In turn evoking efforts at redress or transformation, which succeed or fail
.

The plot moves into the second part of the story. There is a deepening
conflict:
the tension between father and son intensifies within the father when he struggles with “the hand.” The father now discovers that he has “no feeling” in his hand. Lodge observes that the hand is “both a synecdoche and metaphor for the ‘unfeeling' parent.”
⁹

Here, the first-person narrator
evokes efforts at redress
, struggling to return to the initial (anterior)
steady state
while the son and, perhaps the autonomous “hand,” push the narrative toward a transformative ending.

“Listen, I want to explain the complexities to you,” the father says, apparently to the son. Lodge notes Michaels's selection of the adult word “complexities” and how the father speaks with “seriousness and care, particularly of fathers.”
¹⁰
There is an irony in the father's choice of adult words, especially since he has “no feeling” in the hand that seems to operate independently of his own free will.

But it is the son, seemingly, who better grasps the situation and asks, after the father finishes speaking, “if I wanted him to forgive me.” Thus, the son attempts a reversal,
¹¹
struggling to establish a
transformed steady state
embodied in a redistribution of power between the father and son.

So that the old steady state is restored or a new (transformed) steady state is created
.

And then there is the
climax:
“I said yes. He said no.” There is no clear return to the “anterior” steady state of the prior relationship between father
and son. Nor is there progression toward a new (
transformed
) steady state. Instead, there is an uncomfortable disequilibrium. Michaels plays against the reader's expectations of how the climax typically resolves narrative movement in a profluent plot: the situation is left “up in the air.”