Storytelling for Lawyers

by Philip Meyer

  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.

  II. Annotated Excerpts from Gerry Spence’s Closing Argument on Behalf of Karen Silkwood

  A. Setting the Stage

  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.

  B. Theory of the Case and Narrative Theme

  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:

  Well, we talked about “strict liability” at the outset, and you’ll hear the court tell you about “strict liability,” and it simply means: “If the lion got away, Kerr-McGee has to pay.” It’s that simple—that’s the law. You remember what I told you in the opening statement about strict liability? It came out of the Old English common law. Some guy brought an old lion on his ground, and he put it in a cage—and lions are dangerous—and through no negligence of his own—through no fault of his own, the lion got away. Nobody knew how—like in this case, “nobody knew how.” And, the lion went out and he ate up some people—and they sued the man. And they said, you know: “Pay. It was your lion, and he got away.” And the man says: “But I did everything in my power—I had a good cage—had a good lock on the door—I did everything that I could—I had security—I had trained people watching the lion—and it isn’t my fault that he got away.” Why should you punish him? They said: “We have to punish him—we have to punish you—you have to pay.” You have to pay because it was your lion—unless the person who was hurt let the lion out himself. That’s the only defense in this case: unless in this case Karen Silkwood was the one who intentionally took the plutonium out, and “let the lion out,” that is the only defense, and that is why we have heard so much about it.

  Strict liability: “If the lion gets away, Kerr-McGee has to pay,” unless Karen Silkwood let the lion loose. What do we have to prove? Strict liability. Now, can you see what that is? The lion gets away. We have to do that. It’s already admitted. It’s admitted in the evidence. They admit it was their plutonium. They admit it’s in Karen Silkwood’s apartment. It got away. And, we have to prove Karen Silkwood was damaged. That’s all we have to prove.9

  In contrast, the defendant must provide an affirmative defense and prove by a preponderance of the evidence that Karen Silkwood intentionally took the plutonium from the plant to her home and poisoned herself. Rather than front-loading the legal explanation or filling the space with an abstract argument explaining how Kerr-McGee has failed to meet its burden, Spence employs a second parallel ministory to characterize the evidence presented by defendant’s attorneys at trial and, more important, to provide a narrative framework for the defendant’s theory of the case: he employs the fitting and bucolic analogy of “the mud springs.” First, Spence reminds jurors that Kerr-McGee has only one legal defense, that Karen Silkwood took the plutonium from the plant and poisoned herself; this is “the only possible defense that Kerr-McGee has.”10 Spence then warns the jurors that the defendant will attempt to lure them into the “mud springs” and admonishes them not to be deceived:

  [I]f you want to clear up the water, you’ve got to get the hogs out of the spring. And, if you can’t get the hogs out of the spring, I guarantee you can’t clear up the water.… And the thing that I say to you is “keep out of the mud springs�
� in your deliberations. You are not scientists—I’m not a scientist—my only power is my common sense. Keep out of the mud springs. You’ll be invited there [by the defendant, in closing argument]. Use your common sense. You’ll be invited to do number-crunching of your own [by the defendant]. You’ll be invited to play word games [by the defendant]. You’ll be invited to get into all kinds of irrelevancies. And I only say to you that you have one hope—don’t get into mud springs—keep your common sense, and take it with you into the jury room.11

  Throughout his closing argument Spence refers numerous times to these two ministories as a legal shorthand: the anecdote of the lion who got away (embodying Spence’s legal theory of strict liability) and the analogy of the mud springs (a reference to the defendant’s strategy of obfuscation). Spence reflects upon this strategy: “In preparing the Silkwood case I outlined the story, but on the opposite page in the notebook I wrote out a few words, a slogan of sorts, that stood for my entire argument, my [legal] theme: ‘If the lion gets away, Kerr-McGee has to pay’. I played and replayed that [legal] theme like the recurring refrain in a song.”12

  This shorthand provides a rhyming aphorism that sticks in the mind like Johnny Cochran’s equally melodic hook, “If the glove doesn’t fit, you must acquit.” It enables Spence to dispense quickly with the issue of liability and focus primarily on the issue of punitive damages: how Kerr-McGee should be punished for allowing the “lion to get away.” In doing so, Spence strategically claims melodrama as the proper genre for the competing storytelling, challenging the defense to the difficult task of reversing the polarities of the story and convincing the jury that Karen Silkwood is the deceitful antagonist who poisoned herself, while Kerr-McGee is the virtuous protagonist. That is, if melodrama is the only way to understand what happened, then either Silkwood is the hero and Kerr-McGee is the villain, or it’s the other way around. And if it’s the former, then Silkwood wins on liability and the only question that remains is how much to punish Kerr-McGee for its actions so that it will change its evil ways. Thus, Spence’s task is not only to tell the story persuasively as melodrama but to tell it so persuasively that melodrama becomes the only way to think about the case. Otherwise, Spence could construct his melodrama and Kerr-McGee could tell a competing story in another genre or simply attempt to disrupt the mapping of melodrama onto the facts by making the characters and actions more ambiguous. Hence, Spence’s careful admonition to the jurors to beware of the mud springs.

  Spence’s core narrative is a simple and traditional Western melodrama. In this story, Karen Silkwood possesses the internal psychology characteristic of hero-protagonists in prototypical Westerns: she is a loner-outsider, possesses impressive integrity, and sacrifices self-interest and autonomy for the greater community. According to the screenwriting guru Syd Field, the archetypal Western hero is portrayed as “fighting against the injustices of the system; he is a true individual, true to himself and his ideals, unbending in spirit, unyielding in the belief of spirit.”13 These heroes, because of their strength, individuality, and spirituality, are readily misunderstood by the community.

  According to Field, the character of the Western hero in the classical Western melodrama is defined by two specific challenges:

  One is the physical challenge, which requires the hero to perform a courageous act during battle, like saving a life, or an entire village.… The other heroic challenge is the spiritual challenge, an adventure during which the hero experiences the transformation of consciousness and becomes “realized,” then returns with the ancient and profound message that has echoes through time, like “see God in each other.”14

  These are the precise challenges that Silkwood meets in Spence’s closing argument. First, there is the physical challenge of her battle with Kerr-McGee to save the community (even if it ultimately results in her own self-sacrifice and death). Second, Spence’s Silkwood undergoes a transformation of consciousness in herself and returns to reveal to the community her message of discovery. In answer to one of the riddles he poses about Silkwood for the jury to solve, “Who was she?,” Spence suggests this answer: “I say she was a prophet.”15

  Perhaps the greatest narrative and structural challenge for Spence, however, is to make Kerr-McGee—the corporation—into the all-powerful villain demanded by melodrama. Remember that in melodrama, the virtue of the hero—and the effectiveness of the story—can be measured only against the strength of the antagonistic force. So to elevate to heroic status not only Silkwood but also the jury (who must write the final chapter and ending to the story) and Spence himself (possibly akin to the three nautical heroes in Jaws), Kerr-McGee must come alive as an effective and singular melodramatic villain. Spence must coalesce all of the forces of antagonism aligned against Silkwood into an organic and clearly visualized entity. Kerr-McGee must become The Beast, and The Beast must come alive to enlist the empathy of the jury, inspiring a desire to complete the story with a powerful and transformative ending, and to provide a meaningful coda to the tale. The genre of melodrama demands villainy, and Spence’s initial task is to fashion the defendant into this role.

  C. The Steady State and the Arrival of the Trouble

  Spence finally opens his story with a depiction of an anterior steady state that is unlike the anterior steady state depicted in Jaws (the summer on the idyllic Amity with the swimmers at play) or in High Noon (the wedding ceremony of Amy and Kane after Kane has cleaned up the town, with the grateful townspeople in attendance). Spence’s storytelling anticipates narrative expectations of the juror audience in the late 1970s. His opening subtly references two compelling and profoundly relevant cultural events that took place during the second and third weeks of the Silkwood trial and that had been covered extensively in the news and popular media: the release of the movie The China Syndrome, about a devastating nuclear power accident, and the real-world accident at Three Mile Island that the movie seemed to presciently anticipate.

  The setting of the core past-tense story is Crescent, Oklahoma. When the story begins the trouble has already arrived. Spence could have begun differently, but instead he opens his story at a moment when the powerful villain already holds the upper hand and the innocent community is in its vice-like grip:

  It was a time of infamy, and a time of deceit, corporate dishonesty. A time when men used men like disposable commodities—like so much expendable property. It was a time when corporations fooled the public, were more concerned with public image than with the truth.

  It was a time when the government held hands with these giants, and played footsie with their greatest scientists. At the disposal of the corporation, to testify, to strike down the claims of people, and it was too late. It was a sad time, the era between ’70 and ’79—they called it the Cimarron Syndrome.16

  The form or genre of the story is prefigured in this darkly atmospheric and self-consciously literary opening: the opening suggests that this story is about good versus evil, about the monstrous corporation working against the community. The evil corporation will call forth the arrival of a heroic individual (Silkwood) who is willing to stand up to corporate greed and institutional corruption and ultimately sacrifice herself for the good of her community. This opening is also literary in that it locates the case in a specific historic context and claims a profound importance for the case and the argument. That is, this case is not a torts lawsuit about the wrongful death of an individual plaintiff; it is about a crucial historical moment that might mark the transition from one dark period to the hopeful possibility of something else. Spence’s opening anticipates the narrative expectations of his juror audience in the late 1970s, after the deceits of the Vietnam War, after the corruptions of Watergate, and amid the greedy abuses of corporate and institutional power of the private sector of the day (the “Cimarron Syndrome”).

  This opening is a narrative “marker” defining a steady state. And it is a clear marker to which Spence will return at the close, emphasizing it in his dark vision of what
the future narrative landscape might look like if the jury fails to act heroically and hold Kerr-McGee accountable. This dark noir-like opening is self-consciously literary and dramatic. Spence’s challenge is not just to the jury: his closing argument must now live up to this opening; he is obliged to deliver a story with a worthy hero and a villain to match, and he must now connect the personal story of Karen Silkwood with corruption on a historical stage that, perhaps, the narrowness of the legal issues at trial may not suggest and the rules of evidence may not allow.

  Although there are other places where Spence could begin his story, he chooses this one. He observes in his advice to advocates, “A story may start anywhere—each story has an infinite number of possible beginnings.”17 To this he adds, “Each of these beginnings can lead to a finite number of middles, but each of these middles must lead to one, and only one, end.”18 Spence ends his rebuttal argument, his portion of the storytelling, eventually winding his way back to this dark place, the anterior steady state, foreshadowing in a dream what the future might look like if the jury does not act heroically and provide a transformative ending, by inscribing a new meaning and coda on the tale. It suggests an outcome if the jury, instead of following the jurors’ oath to the grail of justice, becomes “lost in the mud springs” along the way: stuck, unable to move, like cows sinking into traps, manipulated and led away from his truthful story by defendant’s arguments and innuendo (a talking Beast who only has learned to speak the language of money).