Storytelling for Lawyers (6 page)

In
Jaws
, there is a slight wisp of irony underlying the restorative ending and the innocence of the bathers returning to the waters; it is as if nothing has transpired in the plot, there are no lessons to be learned, and the past is already eliminated. The sharkfest is already banished from collective memory.

In
High Noon
the coda placed upon the transformative ending is far more complex. The town is joyful at Kane's victory as they come out of hiding. But when Kane quickly and joylessly departs he flings his star—the marshal's badge, signifying justice and law and order—down upon the ground, where he has just left the bodies of Frank Miller and the Miller gang, in disgust. He boards the buckboard with Amy and wordlessly leaves town. The audience is left to ponder the meaning of the coda's final images. Certainly, the ending signifies that a transformation has taken place and that Kane will never return to this community in the Old West ever again.

PLOT STRUCTURE IN A CLOSING ARGUMENT TO A JURY IN A COMPLEX TORTS CASE

Give me the story—please, the story. If I can finally understand
the case in simple terms, I can, in turn, tell the same
story to the jury and make them understand it as well. I go
about my life confused most of the time, but when I get
something clear I can usually communicate it. Getting it
clear is not the work of huge minds, which are often baffled
by themselves, but the labor of ordinary minds that understand
[the] simplest of stories.… [M]ost of all, lawyers
must be storytellers. That is what the art of advocacy comes
down to—the telling of the true story of one's case
.

—
GERRY SPENCE

It appears that the evidence is weighed in the context of a good
story, and not the other way around.… The evidence sends me
looking for a good story with which to support it, but the evidence
does not create the story on its own
.

—
GERRY SPENCE

LET'S USE THE
concepts underlying the plotting of movie melodramas to analyze plotting in renowned lawyer Gerry Spence's heartfelt closing argument on behalf of Karen Silkwood in
The Estate of Karen Silkwood v. Kerr-McGee
.
¹
We
will then compare the narrative structure of Spence's argument in
Silkwood
with the plots in the two movies previously analyzed.

Initially, the story told in the closing argument does not look or feel like the plotting in the two movies. Obviously, Spence's medium consists of spoken words, not film images. And unlike the unitary, linear, and highly profluent plots in
Jaws
and
High Noon
, the
Silkwood
argument encompasses analogies, aphorisms, and ministories, all knitted together with the law. The storytelling, at least when read on the page, initially appears somewhat redundant or copious at times; it lacks the sleek narrative design and constantly forward-moving profluence of the two movies. Also, like every litigation story, there is no closure or final ending; Spence leaves this figuratively in the jury's hands, employing final anecdotes to prefigure the proposed ending while empowering the jury to deliver justice. Throughout the argument, Spence shifts away (zigzags) from the story to fulfill the legal obligations of the argument (i.e., to prove his legal theory of the case). He is also limited by legal constraints (i.e., evidentiary relevance) and obligations (i.e., to include and address all crucial evidence, to respond to the defendant's theory and story, to confine his narrative to the evidence introduced at trial and inferences from this evidence in telling a meticulous and truthful story).

Structurally, Spence's closing argument is unlike
Jaws
and
High Noon
in another way. Unlike the two movies, Spence presents two discrete closing arguments—an opening and a rebuttal—each approximately two hours in length (roughly equivalent to the running time of a typical Hollywood movie). Of equal importance, there are two discrete plots intertwined within these arguments: the past-tense story of what happened to Silkwood as Spence revisits the evidence, and also Spence's retelling of the present-tense story of the trial itself. The careful layering and interconnection of these two stories—the first, a traditional Western melodrama with the added complement of a villainous corporate beast who gradually comes alive and emerges from beneath rural mud springs, the second, a mythic courtroom quest for justice in the Silkwood case—is subtle and complex.

The myth here, the Quest of the Jury for Justice, is possibly as important as the melodrama. How so? Unlike fictional movies, legal stories are calls to action, especially when told to juries by plaintiffs in torts cases and by criminal defendants. A successful Hollywood movie must draw the audience in, inducing viewers to identify with certain “sympathetic” characters, and in doing so to become what has been termed a “side participant” in the action. But the audience isn't implicitly or explicitly asked to do anything. Spence's closing argument, however, must do much more than this. A legal argument
converting evidence into story is, in the technical terms of language theory and philosophy, an “illocutionary act,” and a successful one is a “perlocutionary act.” The legal story asks the audience to do something, and if successful, persuades them to do it. Spence's closing argument in
Silkwood
is this type of story, and his storytelling requires this dual, or double-stranded, narrative (the complementary strands of melodrama and myth) to achieve its purposes.

Finally, unlike most Hollywood movies—although some fictional movies do employ the technique of limited narrative “voice-overs”—Spence repeatedly steps outside the story he is telling to provide a first-person commentary on the plots of the stories that he is telling. He describes how the events he depicts strike him morally and emotionally; in this way he steps into the jury box and becomes one of the jurors. And his commentary marks important plot points and transitions in the two two-hour closing arguments delivered without notes. It explicitly ties together various strands of the dual plots, and facilitates a clear plot structure so that neither the jury nor Spence become confused or lose their places in the plot structure of such a complex narrative; he serves as a guide so that the jury is not diverted into unintended mud springs of Spence's own making.

Nevertheless, despite these differences, the story that Spence weaves in
Silkwood
is, like
Jaws
and
High Noon
, a heroic melodrama.
Silkwood
is strongly akin thematically, in genre, and in important aspects of narrative structure to its cinematic counterparts. The plot could have been manufactured in Hollywood and, indeed, its basic structure transferred quite well to the screen when
Silkwood
, the Academy Award–winning movie, was produced.
²

Karen Silkwood worked as a lab analyst at Kerr-McGee's Cimarron plant, located near Crescent, Oklahoma.
³
Silkwood's job was to grind and polish plutonium pins used in manufacturing fuel rods for nuclear power plants. She performed her tasks in a glove box designed to seal the worker from the plutonium inside. In addition to her position as a lab analyst, Silkwood also served as a union representative. She had filed complaints on behalf of the workers with the union and the Atomic Energy Commission (AEC) pertaining to safety violations and hazards at the plant and, at the request of the AEC, had undertaken a covert investigation, accumulating records and documenting Kerr-McGee's violations of regulations and reporting of safety infractions.

On consecutive days in 1974, Silkwood was contaminated by radioactive materials at work and, after testing positive upon completing her shift at the plant, was scrubbed and decontaminated. Kerr-McGee then sent a team to test Silkwood's apartment for radioactive contamination, and high levels of contamination were discovered. Silkwood was sent to Los Alamos Scientific Laboratory, where her lungs tested positive for radioactive contamination. On the day after her return from Los Alamos, she had arranged to meet with a reporter from The
New York Times
to provide the data she had collected about the dangers of working at the Kerr-McGee plant, and about how safety and quality-control records pertaining to the manufacturing of the fuel rods had been falsified. Silkwood died in a mysterious one-car accident on the way to the meeting. The reporter and a union representative went to the car the next day, but they found no records or materials. Silkwood's apartment was quickly quarantined, and all of her personal property inside was buried in a nuclear waste site.

After Silkwood's death, Silkwood's father tried unsuccessfully to obtain $5,000 for the value of her personal property from Kerr-McGee. Kerr-McGee refused to settle. He then contacted Spence, who sued Kerr-McGee on behalf of Silkwood's children and family for $10,505,000: $500,000 for Karen's physical and mental pain and suffering as a result of the contamination, $10,000,000 in punitive damages, and $5,000 for the loss of Karen's personal property. Spence later increased the request for punitive damages to $70 million.

The trial began in March 1979. It took eleven weeks. There were no clear answers as to how Silkwood was contaminated, what materials she was going to provide regarding Kerr-McGee's falsification of documents, and the causes of Silkwood's suffering and tragedy. Nevertheless, basing its decision on a theory of strict liability, and supplementing it with an award of punitive damages, the jury returned a verdict for $10,505,000. Kerr-McGee appealed the punitive damages award of $10,000,000. The parties eventually settled punitive damages at $1.38 million.

Just as
Jaws
and
High Noon
have characteristic visual styles well suited to their subjects, themes, and narrative structures, Gerry Spence chose to deliver his
closing argument in a particular style equally well suited to the subject matter. It is instructive to listen to a tape of Spence reading the text of the closing argument as if he were acting on a stage: he speaks in a deep and resonant voice and at a much more deliberate and slower pace than normal conversational speech, allowing his words to have a luxuriousness and seeming moral authority as he moves through the peaks and valleys of evidence and imagery, gradually building to a crescendo:

Thank you, Your Honor. Well, here we are. Every good closing argument has to start with “Ladies and Gentlemen of the Jury,” so let me start that way with you. I actually thought we were going to grow old together.… We've spent a season here together. I haven't been home to Jackson for two and a half months. And, although I'm a full-fledged Oklahoman now, … I'm homesick. And I'm sure you're homesick, too. I'm sure this has been a tough one on you.… [W]e made it through this matter together, and I'm pretty proud of that.
⁴

Spence then affirms the specialness and importance of the jury in this particular case and the importance of the moment to him as well, contemplating with awe the heroic task that lies ahead of them both:

It's the longest case in Oklahoma history, they tell me. And, before the case is over, you will know, as you probably already know, that this is probably the most important case, as well.… [A]nd it's the most important case of my career. I'm standing here talking to you now about the most important things I have ever said in my life. And, I have a sense that I have spent a lifetime, fifty years, to be exact, preparing somehow for this moment with you.
⁵

This is a shrewd version of a classic lawyer's proem, a set piece, used rhetorically to “secure the good will of the audience by making the speaker appear to be a worthy person … and, at the same time, by appealing to values the audience and speaker share.”
⁶
In other arguments Spence employs similar set pieces.
⁷
It is crucial to empower and affirm the importance of the jury (especially in plaintiff's torts and criminal defense cases). Spence reestablishes his relationship with the jury after a long and grueling trial, speaking to them directly for the first time since the voir dire many weeks earlier. He speaks as if he were with them in the jury box as a witness to the making of history and as if he appreciates their struggle to make meaning out of the evidence, and
their personal sacrifice. He also presents himself as a willing guide for them on their own heroic quest toward justice and toward writing the correct ending of Silkwood's story.

Closing arguments, like popular entertainment films, often begin with a strong narrative “hook” to capture the imaginative attention of the jury. After multiple “false starts,”
⁸
Spence presents the plaintiff's legal “theory of the case”; he spins the law into a careful anecdote. The plaintiff's legal theory was strict liability, which meant that Spence had to convince the jury only that Silkwood was contaminated by the plutonium that Kerr-McGee produced. The judge has bought Spence's legal theory, and it will be presented in instructions (and a verdict form) given to the jury: legally, Karen Silkwood's estate does not have to prove how she became contaminated, only that she was contaminated by the plutonium produced by Kerr-McGee; the only “story” that will relieve the defendant of liability is if Silkwood intentionally removed the plutonium from the plant and contaminated herself (even a story of Silkwood's own negligence at the plant contaminating herself with plutonium will not suffice).

Nevertheless, it is a legal issue that is potentially complex and confusing for the jury, as the judge's jury instructions include burdens of proof, elemental statements of the law regarding strict liability, and even a multipart verdict form. But Spence's narrative “hook” translates this legal complexity into a simple anecdote, a straightforward ministory that fits neatly within the larger story of the case: