Storytelling for Lawyers

by Philip Meyer

  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.”

  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.

  The coda acknowledges the situation at the end of the story, as the father stands in a curious external relationship with his son, and in his interior struggle with “the hand” as well; both are captured in a two-word observation borrowed from a card game signifying the particular characteristics of the standoff: “like trumps.”

  And, as Amsterdam and Bruner observe, “that is the bare bones of it.”12

  C. Theme and Theory of the Case

  The next building block in plot construction (and, simultaneously, a primary constraint upon plot construction) is the narrative theme. Simply put, the theme is the controlling idea or core insight of a story. It is the fundamental understanding or “truth” about the meaning of the human affairs that the story’s carefully sequenced events convey. As John Gardner observes, “theme … is not imposed on the story but evoked from within it—initially an intuitive but finally an intellectual act on the part of the writer.”13 Plots are shaped around core narrative themes that, in turn, determine the functional choices the storyteller makes in selecting, shaping, and sequencing the events into a story.

  The dictionary first defines theme as “a subject on which a person speaks, writes, or thinks; a topic of discussion or composition.”14 It is reminiscent of the composition teacher asking her student to reduce an essay to a single clarifying phrase that articulates the subject. There is a second dictionary definition: a theme is “a subject which provokes a person to act; a cause of or for action or feeling.”15 This gets more to the bottom of it; this definition moves toward describing the interior dimensions of a narrative theme and how it works on the listener or reader. The theme provides a unique and unstated quality that sparks in the audience a sense that the story will develop in a certain way. The telling confirms that the movements of plot follow a thematic spine so that the sequence of events conveys a purposeful manifestation of this theme. May there be more than one theme in a story? Yes. How many? It depends on the genre of the story and the internal story logic. Legal stories, too, may have multiple narrative themes, though typically there are seldom more than two. And, perhaps at least in this way, compressed law stories are more akin structurally to popular entertainment films than to novels, which often develop multiple themes simultaneously.16

  Finally, there is a third dictionary definition of theme: “the principal melody or plainsong in a contrapuntal piece; a prominent or frequently recurring melody or a group of notes in a composition.”17 That is, the story theme announces itself over and over; it is often strongly intimated, although it is seldom, if ever, explicit. In movies, the visual imagery and the music (including the lyrics within the music) suggest the theme by incorporating a “recurring melody.” Recurring visual images and shots of settings further suggest the thematic core of the story. Although there is seldom visual imagery or literal “music” in law stories (certainly not in legal briefs and seldom at trial or in oral trial or appellate arguments), nevertheless, effective lawyers display the theme by using certain readily identifiable recurring techniques in both their literal voice (in speech) and their stylistic voice in writing.

  While the theme is seldom made explicit, and only gradually dawns on the audience over time, the effective legal storyteller is always aware of the theme. As John Gardner advises young storytellers, the (legal) storyteller “sharpens and clarifies his ideas, or finds out exactly what it is that he must say, testing his beliefs against reality as the story represents it, by examining every element of the story for its possible implications with regard to his theme.”18

  Narrative theme is distinct from, yet related to, the litigator’s concept of the theory of the case. The core distinction is, perhaps, that in the theory of the case facts are structured to fit and match the elements of legal rules; the facts are presented in such a way that they invoke specifically (rather than evoke metaphorically) the normative principles and legal rules on which the litigator must rely to win. The issue-focused theory of the case identifies crucial and disputable factual propositions that the trier of fact must find to be true or untrue. These propositions determine whether each element of the legal rule is established, and ultimately whether the attorney’s client will leave the courtroom satisfied or disappointed. To fit the legal theory of the case, the attorney whittles the facts down to essentials, pulls them apart, and makes them subservient to the overriding legal principles and explicit elements of legal rules. The theory of the case is always explicit; the narrative theme is seldom, if ever, explicit.

  Take, as a brief example, Johnnie Cochran’s storytelling in the O. J. Simpson closing argument. His theory of the case is simple: incompetent and corrupt police investigators botched the investigation and, perhaps, planted evidence at the crime scene to convict Simpson. The state’s evidence simply does not prove Simpson’s guilt beyond a reasonable doubt; thus, Simpson cannot be convicted of murder.

  Cochran’s successful story is, as is often the case in criminal trials and criminal appellate briefs, based on the narrative theme of betrayal by all-powerful state actors. Simpson has been betrayed by the system, by corrupt police investigators, by a “rush to judgment” as to Simpson’s guilt, and by a racist police department that must be stopped by the heroic jury. Cochran’s argument is ultimately about justice and injustice (e. g., betrayal and tyranny):

  Things happen for a reason in your life. Maybe there is a reason why you were selected. There is something in your character that helps you understand this is wrong. Maybe you are the right people at the right time at the right place to say, “no more, we are not going to have this. [”] What they’ve done to our client is wrong. O. J. Simpson … is entitled to an acquittal. You can’t trust the message.19

  D. Genre and Melodrama

  In a pure legal argument—if, indeed, one exists, as if legal arguments are somehow akin to mathematical formulae or scientific proofs—the specific propositions that lead to a result can supposedly be independently verified, and the structure of the logic is made explicit within the argument itself.

  This is not so in
plotting a story. Stories do not conform to uniform and explicit externalized rules of narrative logic. But there are multiple models and templates of plots embedded in the expectations of the audience. Legal storytellers intuitively and, indeed, often explicitly, draw on these embedded narratives and narrative framing.

  For example, the reader’s or listener’s expectations about what is a proper outcome from action constrain or shape the story. These narrative expectations may, in turn, vary according to the genre of the story, establishing certain expectations that the storyteller then typically may not transgress.

  One genre of storytelling that often predominates in litigation is melodrama. Melodrama, as explained by narrative theorists, is not limited to the exaggerations of character and situations depicted in afternoon soap operas or in middle-brow cinematic tearjerkers. It is more broadly yet, simultaneously, more precisely defined by narrative theorists. The influential literary scholar Northrop Frye observes:

  In melodrama two themes are important: the triumph of moral virtue over villainy, and the consequent idealizing of the moral views assumed to be held by the audience. In the melodrama of the brutal thriller we come as close as it is normally possible for art to come to the pure self-righteousness of the lynching mob.20

  The genre of melodrama presents the battle between good and evil reduced to its simplest form, where the hero-protagonist battles to the death against the swarthy, evil, black-caped villain, the antagonistic force against whom the hero’s worth is measured. The pleasures of pure melodrama are equally straightforward: we root for the hero to triumph in the end against the evil villain. But the protagonist-hero must go through much “trouble” and conflict (against internal and external forces antagonistic to his will) in order to prevail if his victory is to have meaning, and for the story to be compelling to its audience. Melodrama is a particularly effective genre for certain types of combative legal storytelling.

  For example, plaintiffs’ torts cases are typically tried and argued as melodrama; the jury is implored to conceptualize the plaintiff as the hero struggling to overcome the forces of antagonism overwhelmingly aligned against her. Alternatively, the storyteller portrays the plaintiff as the victim who must be redeemed (in a wrongful death case) or rescued (in a personal injury case) by the heroic jury in its verdict against the defendant, sometimes punishing the wrongdoer (with punitive damages) and enabling justice to prevail. Curiously, the most critical character in the melodrama may not always be the hero-protagonist, but rather the villain-antagonist, because it is only against the antagonistic force of the villain that the worth of the hero (both the plaintiff and the jury) is truly measured.

  Michael Roemer observes that melodrama “shows us as we are supposed to be and wish to see ourselves”; it “permits us at once to believe in evil and to exorcise it by projecting it onto another—one who is unlike us: the outsider or stranger.”21 Thus, as Alfred Hitchcock observes, “The more successful the villain, the more powerful the story.”22 Of course, there is much more to it than this, as we will see as we explore this genre.

  II. Plot Structure in Two Movies

  Now let’s apply some of this basic vocabulary to analyzing the plot structure of two popular movies: the classic 1952 Western High Noon and a box office blockbuster of the 1970s, Spielberg’s Jaws. I choose these movies for several reasons: first, I assume that readers are already familiar with these plots, especially the more recent Jaws—both are part of our common cultural heritage. Both are melodramas of different sorts that fit under the rubric of this genre. Both plots emphasize the external conflict and the battle between the virtuous and heroic protagonist against an apparent and well-defined villain; we know what the outcome of the battle will be from the beginning, although we do not know, exactly, how the heroic protagonist will accomplish the task, or the strength of the forces of opposition that the hero will encounter and must overcome along the way. Second, these movies are narrative templates in theme and genre for the complex closing arguments by Gerry Spence and Jeremiah Donovan analyzed in subsequent chapters of this book.

  Spence converts evidence into a story that is, by design, part monster thriller and part classical Western with a primary theme of heroic salvation of a community in a wild and still lawless western territory on the edge of civilization. Donovan’s closing argument is a complex character-based betrayal story, akin to High Noon’s secondary theme, about an ambivalent protagonist who struggles against inner demons and internal conflicts, as well as against the will of a powerful and vicious villain.

  A. Genre and Theme

  Let’s begin with Jaws. There is nothing subtle or complex about this movie. The genre is pure melodrama. The structural form is provided by a linear, forward-moving narrative that conforms to the viewer’s expectations. The antagonist is a readily identifiable and fearful “otherworldly” force that grows progressively more destructive as it tests the mettle of the heroes’ strengths, talents, and abilities. Just as in any Marvel Comics fable, epic tale,23 or legend, the heroes are tested as they take their brave stands to prove themselves, save the community, and show that goodness triumphs over evil. In the struggle of a melodrama like Jaws, the heroes are stand-ins for our better selves, and they prove their merit and embody our virtues of strength, courage, honor, and self-sacrifice, put on display in combat.24

  Jaws also works intertextually:25 its theme interacts with, and is evocative of, other stories in a subgenre already familiar to the viewer: Anglo-American epic sea stories. As Michael Roemer observes, Jaws is a “positivist retelling of Moby Dick” with its “problem of Ahab and the whale (the idea of an indifferent and malevolent universe).”26 Spielberg’s Jaws pares the literary elements (including any thematic complexity and internal conflict within characters) down to the external bones of melodramatic plotting, providing characters with just enough whispers of individuation in the “backstory” to allow the audience to identify with the dedicated and rational scientist, the family man and former tough-guy New York cop, and the “mythic” seafaring captain borrowed from another time. The plot is constructed so that “the evil here is entirely in the monster, and the valiant captain saves his community without having to sacrifice himself.”27

  The theme in Jaws is remarkably straightforward. It is about the battle of good against evil, with good ultimately winning out over evil just when the world seems on the edge of destruction. The plot affirms our notions of how the world works,28 with a proper balance restored by the timely intervention of three self-sacrificing heroes who overcome differences of background and strategy to prevail in the end.

  The genre of High Noon is the familiar Western, with its characteristic theme being the ravaging of a vulnerable community by evil antagonists. In the Western’s familiar stock story, the heroic protagonist, who is also often an outsider and drifter himself, comes into the community to stand up against the outlaw bad guys, save the town from anarchy and destruction, and teach the townsfolk the crucial lesson that courage and self-sacrifice are the costs of survival in this dangerous and lawless territory. Screenwriter Carl Foreman and director Fred Zinnemann retain many of the conventions of this Western melodrama genre in High Noon, but they intentionally deepen the stock story in many ways, transforming the theme and implicating other genres.

  The plot of High Noon, like Jaws, can be readily boiled down into a few sentences: Marshal Will Kane is retiring and hanging up his guns after marrying his beautiful, young Quaker bride, Amy. He receives word that the villainous outlaw Frank Miller, whom Kane sent away for murder, has been released from prison and is returning on the noon train. Despite the admonitions of the townspeople and the pleas of Amy, Kane decides not to flee but to stand up to Miller and his outlaw band. He is, seemingly, abandoned by all and must stand up against the outlaws alone.

  Of course, this plot summary doesn’t do justice to the movie. High Noon is a subtle and complex story. Unlike Jaws, High Noon emphasizes character and character development in the complex psyc
hological relationships and struggles of the various characters in anticipation of Frank Miller’s arrival. There is the internal psychological struggle within the protagonist, Will Kane, who must choose between fulfilling his manly destiny and duty as gunfighter-marshal and respecting the deeply held pacifist beliefs of his Quaker bride. Kane’s internal struggle is further complicated by the intimation that there are nonheroic reasons for fighting Miller’s gang: jealousy over the Latina temptress who was the lover of both Kane and Miller, competition between the middle-aged Kane with the younger former deputy to protect his former paramour, and desire to prove his mettle (“a man’s gotta do what a man’s gotta do”).

  The other primary characters are equally complex. Kane’s pacifist Quaker wife, Amy, and his former mistress are all multilayered, intensely individualized characters, compounded of desires, ideals, loyalties, aspirations, and loathings. The townspeople and other secondary characters (such as the mayor and the young deputy) are vividly portrayed and distinct as well. Only the villainous outlaws have the characteristic simplicity of the melodrama genre. Unlike Jaws, where the story is about how the heroes battle against the shark, the plot in High Noon focuses on how the complex characters respond internally, and with each other, to the forces of antagonism bearing down upon them.

  Thus, the primary themes of High Noon are loyalty and betrayal. Under the pressure imposed by the impending arrival of the outlaw gang, characters reveal themselves, are betrayed by one another and the community, and in turn betray themselves. Only at the climax do the principals (Kane, Amy, and Helen Ramirez) seem to redeem their integrity—Kane and Amy by standing up to the outlaw gang to save the community that refuses to save itself, and the Latina temptress by finally leaving Kane and the corrupt town to save herself, not because she is afraid but because she no longer belongs in the community, just as she no longer belongs to Kane.