Storytelling for Lawyers

by Philip Meyer

  In High Noon, the plot assumes a tragic dimension when, at the coda revealing the meaning of the tale, the hero-protagonist throws down his badge at the feet of the townspeople who have betrayed him, signaling the loss of the value of community and the meaning of law. Kane and Amy leave in disgust, with scorn for the townspeople. Fortunately for the viewer, Kane still has the solace of Amy and maintains his own integrity, as well as the sympathy of the audience.

  B. Basic Plot Structure in High Noon and Jaws (Applying the Amsterdam-Bruner Model)

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

  Both movies begin with the anticipatory “calm before the storm”: the normative “steady state.” Jaws opens with images of the carefree vacationers frolicking innocently (and vulnerably) at a firelit beach party; it is a luminous, moonlit summer evening on Amity Island, a vacationer’s paradise. In High Noon the steady state is equally idyllic. The older, beloved, and heroic marshal is finally receiving his just deserts and moral reward; having driven the evil outlaws from the community, he is marrying the incandescently gorgeous Amy. Amid the well-wishes of the community, the marshal hangs up his guns, retires his badge in anticipation of the arrival of his replacement, and prepares to depart on his honeymoon.

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

  The trouble in both movies arrives early, the initiating action (the inciting incident) launching the trajectory of the plot.29 In Jaws, it takes the form of a man-eating rogue shark. In High Noon, trouble arrives with the announcement that members of the Miller gang are gathering and that Frank Miller, the villain, has been released from prison. This is a somewhat more sophisticated introduction of the trouble. The arrival is signaled through action (the members of the gang gather on the outskirts of town), revisited through imagery (train tracks, clocks ticking down to Frank Miller’s arrival at high noon), and even signaled through an explicit musical presentation and foregrounding of the theme (the core story-song), all maintaining the tension of the conflict between the outlaw gang (the villain) and Marshal Kane (the protagonist) throughout the progressive movements and the internal psychological complications of the narrative.

  Whether nonhuman or human, the trouble must be susceptible to change by human intervention, creating the struggle with the malevolent forces of antagonism and evil in such a way that the audience can side with the protagonist and participate in the deepening conflict. In the movies—just as we will see in legal storytelling—it is important to make the first act short, clarifying the theme and clearly breaking the anterior steady state to reveal the nature of the trouble and the identity of the antagonist.

  In turn evoking efforts at redress or transformation, which [lead to a struggle, in which the efforts] succeed or fail.

  In theater, it is commonly observed that the middle of the story is the most difficult part to construct. The progressive complications caused by the antagonist (or forces of antagonism) intensify while the protagonist attempts to reestablish the stability of the anterior steady state or press on toward a new and redefined narrative order. The two movements can be separate: for example, the trouble gets progressively uglier, deeper, or harder to overcome or builds to a cataclysmic climax before the hero finally intervenes. There are other possible patterns: for example, the hero (or other forces) can appear to intervene and superficially and momentarily still the trouble. This, however, is merely a false and premature ending; the victories are illusory, often part of the villain’s plan until the villain arises renewed, reinvigorated for battle. At this point the “true” confrontation or struggle between good and evil begins.

  In Jaws the sequence of events after the arrival of the trouble is extremely purposeful, linear, and forward moving. There are few of the stops and starts characteristic of other genres, other than slowing the pace down momentarily to allow the viewer to catch a breath before the next attack, the next battle, all building toward the final confrontation. Battles between the fishermen and the shark are punctuated by shark attacks and superficial psychological adjustments between the various players along the way. There are, as is typical in melodrama, false and “premature” endings (when, for example, another shark is captured and mistaken as the evil culprit). But these digressions are merely preparatory interlineations, biding time, allowing for the tension to build before returning to the waters for the next round of action scenes that are at the core of the film.

  The shark becomes progressively bolder and more relentless, demonstrating the enormity of its evil, and adhering to Hitchcock’s maxim. The villainous shark—Jaws—invades a sheltered beach pond and seizes a helpless swimmer; it destroys a boat and kills another victim. It embodies the forcefulness of unstoppable natural forces of disaster packaged into the form of an archetypal villain. As the community veers psychologically from denial to panic, all that is apparent is that the community cannot protect itself; it is up to the heroes to intervene. The two heroes in Jaws, an intellectual oceanographer (played with self-deprecating humor by Richard Dreyfuss) and a former New York City cop (Roy Scheider) enlist the aid of a mythic ancient mariner (portrayed with a mock Shakespearean theatricality by Robert Shaw). The three head out fully loaded with mythic and modern weapons to take on their superhuman prey, to meet on the ocean, a setting far beyond the zone of human habitation. It is a primal scene, in a liminal space, beyond the realm of civilization. The ensuing battle to the death (the climax) takes up the last third of the movie. The outcome of the battle, which is never in doubt, enables the audience to vicariously participate in the ultimate combat, with the shared understanding that such guiltless enjoyment is the pleasure of the genre where the characters (like the villains) are not all quite human.

  In High Noon, the breaking of the steady state, initiated by the arrival of the Miller gang, creates a different and more complex narrative structure, progressively introducing new dimensions to the basic problem that needs resolution before the story can end. The plot focuses on the interplay between the various “complex” characters, positioning these characters in relation to the hero and the villain and in relation to one another.

  The progressive complications of the plot emerge as the clock ticks down toward noon. It is just after 10:30 when the film begins; Miller will arrive at 12:00 to exact his revenge on Kane and, perhaps, the town as well. The film is cleverly shot in a “real” narrative time, with one minute of screen time equaling one minute of story time. As Miller’s arrival looms, Marshal Kane first thinks about leaving with his new Quaker bride, adhering to his promise to her to give up the gun. He can’t betray himself, however; he returns to town. The story is about the meaning of loyalty and an exploration of the psychology of betrayal. Within this unifying theme the various subplots fit together:

  1. Kane’s new Quaker bride, Amy, is torn between her love for her new husband and her loyalty to her Quaker pacifist beliefs grounded in her experience of the death of her father and brother in a gunfight years ago.

  2. Kane’s young deputy, Harvey, betrays Kane and refuses to join him in the fight against the Miller gang, not because he is afraid, but because Kane has betrayed him professionally by refusing to appoint him as the new marshal because he is young and inexperienced.

  3. Kane’s former mistress has taken up with Harvey, her new protector against her former lover Miller. Perhaps this is more an act of revenge against Kane, whom she still loves, but who betrayed her when he chose his new, very blond, and upper-class Quaker wife (the incongruously East Coast ingénue Grace Kelly), who is less than half his age.

  Each of these complex subplots resolves neatly with these important secondary characters making a fateful decision at the moment of crisis: Amy forsakes her pacifist beliefs and chooses to stay loyally by Kane’s side, taking up the gun and killing one of the gang herself. Helen Ramirez chooses to be loyal to herself. No longer Kane’s lover and no longer in ne
ed of a protector from Miller, she recognizes that she no longer has a stake in the community and willfully departs on the same train that brings Miller. Harvey, for his part, tries unsuccessfully to obtain Kane’s position as the sheriff and Helen’s protector. Equally unable to compel Kane to leave town, Harvey ultimately sells out Kane, refusing to risk his life and join in the battle against the Miller gang.

  Meanwhile, the townspeople, one by one and group by group, betray Kane and themselves, refusing to come to his aid to save the community from the ravages of the antagonist. Their abandonment of Kane anticipates the climax of the film by leaving Kane to face the Miller gang single-handedly. This theme of betrayal fits well within the form of the melodrama; it explores the capitulation of good to evil. It is self-betrayal on a grander scale; the community compromises integrity in the face of evil based on self-deception repackaged as rationality.

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

  In Jaws the climax is dramatic, but purely physical. The characters remain static and unchanged, and the anterior steady state of calm on the island is restored. Transcendent evil has been defeated by goodness and virtue. The dawn breaks on Amity Island, and crowds of bathers will soon be returning to the waters.

  In High Noon the outcome is much different. The plot pushes forward to a new and transformed steady state. The bad guys have been defeated in the climax; good is victorious over evil. Kane enjoys the sweet reward of Amy’s love and his own honor reclaimed. Kane has saved the community and will ride off into the sunset, just as Western heroes traditionally do. But there is no simple resolution. Kane cannot go back into the past; he cannot ignore the hypocrisy and cowardice of the townspeople. The ending is transformative.

  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.

  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.

  3

  Plotting II

  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 com
plex 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

  I. The “Backstory”

  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.