by Philip Meyer
As a result of these changes in courtroom storytelling practices, and in jurors’ expectations about lawyers and legal storytelling, a phenomenon has emerged: jurors seem to make sense out of evidence in deliberations by referring to other imagistic stories, primarily drawn from television and popular entertainment films. No longer does popular culture merely present images of the law; popular culture embodies and creates the law.
Sophisticated and shrewd trial lawyers—like Spence and Donovan—are aware of the interpenetration of law practice and popular culture. As a result, stories told at trial and in oral argument—like Spence’s civil closing argument on behalf of Karen Silkwood, or Donovan’s closing argument on behalf of the criminal defendant Louie Failla—are, curiously, a form of entertainment. Stories are packaged in theories and imaginative forms that capture the imagination of jurors and embody other popular stories, often borrowed from the plots of Hollywood movies.
Storytelling for Lawyers uses movies as examples of compelling popular stories, employs narrative theory to understand how these stories are artfully constructed, and maps insights from analyses onto the domain of legal stories, including the masterful closing arguments by Spence and Donovan. It is my intention that this book may provide a narrative primer and suggest a model for strategies that will assist lawyers in developing their own legal storytelling practices.
2
Plotting I
THE BASICS
[Plot is] the intelligible whole that governs a succession of
events in any story.… A story is made out of events to the
extent that plot makes the events into a story.
— PAUL RICQEUR, “NARRATIVE TIME”
If you listen to the way people tell stories, you will hear that
they tell them cinematically.
— DAVID MAMET, ON DIRECTING FILM
If you’re ever in doubt about how to end your story, think in
terms of an “up” ending. There are better ways to end your
screenplay than have your character caught, shot, captured,
die, or be murdered.
—SYD FIELD, SCREENPLAY: THE FOUNDATIONS OF
SCREENWRITING
I. What Is Plot?
Peter Brooks, a leading American narrative theorist, tells an anecdote about a brilliant graduate student in his advanced narrative theory seminar. According to Brooks, this young woman was so imbued with narrative prescience that she could accurately predict the plot trajectories of novels, anticipating the endings, by a close reading of the opening pages. That is, she could decode the plot structure embedded within the story from the outset of the telling. The point of the anecdote is that, as Michael Roemer suggests, stories are already over before they begin and, especially in law, are written to justify a predetermined or desired outcome.
I have had similar experiences while teaching torts and criminal law courses. First-year law students in torts and criminal law inevitably observe that they can predict the outcome of a case by a close reading of the beginning of the opinion where the court tells the factual story framing the legal analysis that follows.
Here, for example, are the opening paragraphs from Coblyn v. Kennedy,1 an intentional torts case taught early in the first semester. There are two related legal issues in the case. The first issue is whether, as a matter of law, the plaintiff can recover for the tort of false imprisonment. The story the court tells, like most judicial storytelling, is designed to appear plotless, merely a chronology or recitation of the facts determined at trial. The story is told exclusively from the perspective of the plaintiff. The court frames the plot narrowly to fit the legal issue: defendant contends that, as a matter of law, “no unlawful restraint [was] imposed by force or threat upon the plaintiff’s freedom of movement.” The court retells this portion of the story and embeds a plot within its telling:
We state the pertinent evidence most favorable to the plaintiff. On March 5, 1965, the plaintiff went to Kennedy’s, Inc. (Kennedy’s), a store in Boston. He was seventy years of age and about five feet four inches in height. He was wearing a woolen shirt, which was “open at the neck,” a topcoat and a hat. “Around his neck” he wore an ascot which he had “purchased previously at Filenes.” He proceeded to the second floor of Kennedy’s to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket. After purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs. Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it around his neck, and knotted it. The knot was visible “above the lapels of his shirt.” The only stop that the plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.
Just as the plaintiff stepped out of the door, the defendant Goss, an employee, “loomed up” in front of him with his hand up and said: “Stop. Where did you get that scarf?” The plaintiff responded, “Why?” Goss firmly grasped the plaintiff’s arm and said: “You better go back and see the manager.” Another employee was standing next to him. Eight or ten other people were standing around and were staring at the plaintiff. The plaintiff then said, “Yes, I’ll go back in the store” and proceeded to do so. As he and Goss went upstairs to the second floor, the plaintiff paused twice because of chest and back pains. After reaching the second floor, the salesman from whom he had purchased the coat recognized him and asked what the trouble was. The plaintiff then asked: “Why [did] these two gentlemen stop me?” The salesman confirmed that the plaintiff had purchased a sport coat and that the ascot belonged to him.2
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?
A. Basic
Terms and Concepts
I. What Is Plot?
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.
2. Narrative Profluence and Causation
“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.
3. Story Logic
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.
B. An “Austere” Definition of Plot
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.
