Storytelling for Lawyers (8 page)

And so Spence evokes the mythic “call to the hero” in his argument: “What is the $70 million claim about? … I don't want to see workers in America cheated out of their lives. I'm going to talk to you about that a lot. It hurts me. It hurts me. I don't want to see people deprived of the truth—the cover-ups. It's ugly. I want to stop it.”
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This begins the jury's quest for justice, commanding jurors to solve the puzzle of the case and to prevent the villain from prevailing in the end. Spence breaks from his story to explain:

What is this case not about? The case is not about being against the nuclear industry.… But it is about the power of truth, that you have to use in this case somehow, because it has been revealed to you now—you know it—and if there is only one thing that can come from this case … and that if this case makes it so expensive to lie, and to cover up, and to cheat, and to not tell the truth, and to play numbers games, that it makes it so expensive for industry—this industry—to do that, that the biggest bargain in life, the biggest bargain for those companies is the truth.
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Spence then cleverly interweaves these two discrete narratives: the presenttense mythic story of the trial with the past-tense melodramatic story about what happened to Karen Silkwood. Again, there is an artful zigzagging pattern established between past and present (akin to his zigzagging between theme and theory of the case). Structurally, Spence somehow must move smoothly in time, transitioning between past- and present-tense events as he revisits evidence at trial, without confusing the jury and, simultaneously, he must allow sufficient space and room to empower the jury to do its narrative task. This is a difficult feat; Spence must not confuse the jury as to which narrative he is referring to, or have gaps of narrative “holes” in his story logic,
or otherwise cause the jurors to lose their place in the story. Simultaneously, Spence cannot foreground or reveal explicitly his narrative design.

In commenting on plot structure at the core of legal argumentation and suggesting how to convert argument into story, Spence observes that “a story is more magnetizing to the listener who feels his/her active participation will be necessary for the story to achieve its proper ending”; he notes that “[a]nywhere along the way, however, it is possible to lose even the most sympathetic listener if the teller veers off the course of beginning/middle/end.”
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Of course, this storytelling must also be truthful and meticulous in that it is: (1) consistent with the evidence and without internal contradictions (internal narrative logic); (2) plausible in terms of the jurors' experience and how it fits with jurors' knowledge about what happens in the “real world” (“instantiation”); and (3) comprehensive, matching to and fitting with the evidence and the law.
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But it must also, paraphrasing Jerome Bruner, facilitate and compel jurors to go “beyond the information given,”
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suggesting to the jurors (or decision makers) how to retrieve a deeper meaning to the human affairs depicted in the story while avoiding confusion and creating a “mud springs” of its own along the way, so that the singular powerful and transformative ending to Silkwood's story is apparent to the jury in their deliberations.

Specifically, to do this, at the end of his rebuttal closing argument, Spence will ask the jurors to assume the heroic mantle of their oath by contemplating and solving three essential riddles necessary to discover the truth of what happened to Silkwood and then to determine what the proper ending of the story should be. Finally, employing a familiar set piece that he has used in other arguments, Spence will implore the jury to write the ending and take the action necessary to complete the story. It is too late to save Silkwood's life, but it is not too late to give her life meaning, and it is not too late to rescue the young and innocent workers at the plant and save the community still held hostage by the evil Kerr-McGee. Although the ending is left up to the jury, at the finale of his rebuttal closing argument Spence suggests the answers to these riddles of how the jury must act to fulfill their heroic oath.

1. “[W]hat is this case about?”
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Spence's suggested answer: “[I]t is about the power of truth, that you have to use in this case somehow, because it has been revealed to you now—you know it.”
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2. “Who is Karen Silkwood?”
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and “What was she trying to tell the world?”
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Spence's suggested answer: “[A] brave, ordinary woman who did care. And she risked her life, and she lost it. And she had something to tell the world, and she tried to tell the world. What was it that Karen Silkwood had to tell
the world? That has been left to us to say now. It is for you, the jury, to say it for her.”
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3. “How does this all tie in?” Rephrased more concretely: “Did she know too much? … Who contaminated her? … How much did she know?”
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Spence's suggested answer: “She knew enough to bring this whole mess to an end.”
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Prior to casting the heroine, Silkwood, onstage, Spence revisits patiently the evidence introduced at trial presented, primarily, by the various employees of defendant Kerr-McGee. He divides these witnesses into two discrete and identifiable groups: the members of the villainous outlaw band (representatives or “agents” of the archenemy Kerr-McGee) and the often sympathetic yet confused “townspeople” (the workers at the plant; members of a disempowered community of victims who will, like Silkwood, soon become the victims of the predatory and evil corporation).

First, however, Spence must give life to the villainous corporate defendant and make it into a singular and powerful entity, the initiator of the melodrama, seemingly in control of all that takes place afterward. As Hitchcock suggests, the effective depiction of the villain is crucial to the success of a melodrama. That is, “the more successful the villain, the more powerful the story.”
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And yet this strategy poses a narrative problem for Spence. The corporation Kerr-McGee is not only nonhuman, it is not “alive”; it is, in Spence's own words, like “some weird invisible extraterrestrial lifeless glob.”
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Nevertheless, this problem also provides an imaginative opportunity for Spence, who observes, “Although corporations are not alive, they [nevertheless] possess a life of their own.”
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Like Spielberg in
Jaws
, Spence must successfully provide a character-based identity to the defendant through careful attribution of the human qualities of motivation, intentionality, and an increasing purposefulness. Spence's version of Kerr-McGee is of a rapaciously greedy and devouring entity that values money and profits far more than it does the lives of its workers. In suggesting how to develop arguments against corporations, Spence cites Charles Reich's description of a corporation: “The corporation is an immensely powerful machine, ordered, legalistic, rational, yet utterly out of human control, wholly and perfectly indifferent to any human value.”
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Like the shark in
Jaws
, whose appetite is whetted initially by the taste of blood, Spence's Kerr-McGee grows
ever bolder and darker and more powerful as his story progresses: the corporation becomes progressively more venal, greedy, and devouring, preferring these profits over the lives of its workers and then finally, Spence intimates, intentionally undertaking or at least encouraging the murder of Silkwood (although Spence tells the jury that he is not allowed to speculate on this matter).

At the end of his rebuttal argument, Spence suggests that allowing Kerr-McGee to go unpunished and unrepentant will result in far more than simply unfairness and injustice to Silkwood. If Kerr-McGee is not stopped, Spence visualizes in his final dream sequence a dark vision of corporatist tyranny throughout the land and the destruction of endless young lives by plutonium poisoning and cancer. The filmmaker and literary theorist Michael Roemer observes:

Popular story shows us as we are supposed to be and wish to see ourselves. Like the community itself, it represses what tragedy includes. By projecting evil onto the other, it purges us of our dark and dirty secrets, frees us up from self-division, and fosters
communitas
by giving us someone to hate and fear. Yet
unlike
Positivism, it retains its belief in the power of evil. Indeed, without a destructive threat—whether it be divine or human—there is no story.
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Here, for example, is how Spence initially attributes the ability to “speak the language of money” to the corporate defendant Kerr-McGee in his closing argument:

You know, I was amazed to hear that Kerr-McGee has eleven thousand employees—eleven thousand employees. That's more than most of the towns in the state that I live in—that it is in thirty-five states—well, I guarantee that corporation does not speak “South,” it doesn't speak “Okie,” it doesn't speak “Western,” it doesn't speak “New York.” And it is in five states—or in five countries. It doesn't speak any foreign language. It speaks one language universally. It speaks the language of money. That is the only language that it speaks—the only language that it understands—and that is why the case becomes what it is. That's why we have to talk back to that corporation in money.
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Of course, it is then crucial for the jury to speak in the language that the defendant understands, and in such a forceful way that the corporation will
change its behavior. Subsequently, Spence zigzags back to his legal theory of punitive damages, as if a law professor speaking to first-year students, providing a simplified understanding of utilitarian and retributionist rationales for such punishment:

I want to quote an instruction that you will hear. It is the basis of punitive damages—that's the $70 million to punish. Punitive. To exemplify. Exemplary. So that the rest of the uranium plutonium, and the nuclear industries in this country, will have to tell the truth. The basis of punitive and exemplary damages rests on the principle that they are allowed as punishment of the offender for the general benefit of society, both as a restraint upon the transgressor—restraint upon the transgressor—that is, against Kerr-McGee, so they won't do it anymore, and a meaningful warning and example—to deter the commission of like offenses in the future.
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Spence carefully, but selectively, revisits crucial excerpts of the testimony of the various witnesses. The witnesses are divided into two oppositional groups: there are the defendant's witnesses—agents of the evil corporation, subsumed by the will of the greedy and devouring corporate monolith, hungry only for money, who devalue the lives of the workers, leaving a wake of destruction by plutonium and the cancers that will follow. And there are also the defendant's experts, also paid employees, testifying to draw the jurors into the mud springs. On the other side are the plaintiff's witnesses: innocents, victims, members of a community without a voice or purpose. And these witnesses are complemented by the chorus of plaintiff's experts, wise old men and helpers, who explain what the outcome will be for the community.

In revisiting the testimony, the order of the voices within the closing argument is not in the sequence of the chronology of presentation at trial. Rather, the voices are cast in counterpoint to one another. Further, in terms of evidentiary rules and legal relevance, it is interesting that many of these witnesses were even allowed to testify since the issues at trial were extremely limited and narrowed by the plaintiff's own legal theory (product liability and strict liability) and the judge's own charge: Kerr-McGee had to prove by a preponderance of the evidence (as an affirmative defense) that Karen Silkwood intentionally removed the plutonium from the Kerr-McGee plant
that caused her contamination. Therefore, the legal issues pertained to the events that occurred during the nine days Silkwood was contaminated and, most simply put, how she was contaminated. Nevertheless, over the objection of counsel, the judge admitted evidence pertaining to operations at the Kerr-McGee plant over a six-year period, although Silkwood only worked at the plant for two years, and about events occurring in areas of the plant where Silkwood never worked and did not have access to.
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It is almost as if expansive principles of narrative logic and Spence's narrative theme trumped the plaintiff's own theory of the case and somehow compelled the trial court judge to afford Spence wide latitude in introducing evidence to shape and frame his story on a grander stage than the rules of evidence would seemingly allow.

Here, for example, is how Spence revisits the testimony and juxtaposes contrasting depictions of the testimony of several witnesses. First, Mr. Utnage (outlaw villain), then “Young Apperson” (community member):

Mr. Utnage

I want to talk about the design of that plant very quickly. It was designed by Mr. Utnage. He never designed any kind of a plant.… And I confronted him with scores of problems—you remember those 574 reports of contaminations—they were that thick
[indicating]
, in two volumes.… I asked him about a leak detection system. “We do not need a leak detection system,” he said. “What do we need a leak detection system for? We can see it. We can see it.” Here is the man who told you that as long as you can't see it, you're safe. And we know that the amount of plutonium, a half a gram of plutonium, will contaminate the whole state of Oklahoma, and you can't see it. They let it flop down into the rooms, and Jim Smith said one time it was in the room a foot thick on the floor. Do you remember the testimony? He said he designed a safe plant. And he believed the company lie that plutonium does not cause cancer. He sat there on that stand under his oath and looked at every one of you under his oath, and he said that plutonium has never been known to cause cancer. Well, now, either he lied, or he bought the company lie and didn't know. But he was the man who designed the plant. You wouldn't have to design a very good plant if you didn't think plutonium caused cancer, it wouldn't bother you. You wouldn't work very hard. There wouldn't be much to worry about. Like mayonnaise.
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