Storytelling for Lawyers

by Philip Meyer

  As a final note, let me add that the fact that both legal and popular storytelling practices are genre-bound does not diminish the power or gravity of these forms. Popular melodramas, whether in cinema or the courtroom, are also attempts to approach an understanding of important cultural values. As Peter Brooks observes about melodrama (in art and, perhaps, in life as well):

  We do not live in a world completely drained of transcendence and significance. Melodrama daily makes the abyss yield some of its content, makes us feel we inhabit amid (larger) forces, and they amidst us. A form for secularized times, it offers the nearest approach to sacred and cosmic values in a world where they no longer appear to have any certain ontology or epistemology.123

  Likewise, we employ courtroom storytelling practices, melodramas, and myths to find the truth, to do justice, and to answer profound questions about ourselves in the process. The fact that the stories told in the courtroom are often repeated, often formulaic, and often developed through conventional forms does not diminish their power or significance. Nevertheless, it is curious that to find the truth, to do justice, and to discover meaning in complex courtroom cases such as Silkwood we rely on myth and melodrama to answer riddles about a protagonist’s identity, to visualize a Beast emerging from beneath the surface of rural western mud springs, and to track the development of the forces of antagonism through a progression that often seems borrowed from a commercial Hollywood entertainment film.

  4

  Character Lessons

  CHARACTER, CHARACTER DEVELOPMENT, AND CHARACTERIZATION

  The Western conception of the person as a bounded, unique,

  more or less integrated motivational and cognitive universe,

  a dynamic center of awareness, emotion, judgment,

  and action organized into a distinctive whole and set contrastively

  against a social and natural background is, however

  incorrigible it may seem to us, a rather peculiar idea

  within the… world’s cultures.

  — CLIFFORD GEERTZ, “THE NATURE OF

  ANTHROPOLOGICAL UNDERSTANDING”

  I. Introduction: Why Emphasize Movie Characters in Legal Storytelling?

  Character has been called “arguably the most important single decision” made by practitioners of many modern storytelling forms, especially the novel.1 The novel elevates and dramatizes the art of psychological characterization, of character development, and of motivation; as a form, it squarely places the art of characterization at the forefront of storytelling practice. Indeed, theorists have observed that the primary subject of the modern novel is consciousness and that “[t]he center … of all great literature … is character.”2 In the somewhat reductionist vocabulary of more recent practitioners of visual cinematic storytelling and screenwriting, modern realist novels are typically “character driven.” Movies, however, are not; movies are typically “plot based.” The focus, especially in commercial entertainment films, is on developing a compelling plot; the characters are shaped and developed in character “arcs” constructed in relationship to, and in service of, the core narrative structure of the plot. Characters are subservient to the demands of plot. Some of the reasons for this are pragmatic: there simply isn’t the room or the time available in a commercial two-hour plot to flesh out fully developed characters and characterization. And there isn’t the need since the actors are already visible on the screen and can be seen and interpreted by the audience. The audience for a film, absorbing the story in a single viewing, typically does not have the inclination to sift through a gradual novelistic unfolding of character, especially when much of this material may be “irrelevant” or superfluous to the demands of a carefully circumscribed narrative “plot” structure.

  Additionally, there are no apparent structural mechanisms or visual techniques typically available in film that allow the story to go within or extensively explore the “consciousness” of the various characters, to radically shift perspectives from character to character, or to provide extended internal or descriptive ruminations on the “character” or internal psychology of the various players in a story; these are the strengths of the novel. In contrast to the novel, there is a certain reductionist and pragmatic approach to character development typical in popular film. It is also why novelists, including those who have also written superb screenplays, often denigrate cinematic storytelling practices. As the novelist E. L. Doctorow puts it:

  Fiction goes everywhere, inside, outside, it stops, it goes, its action can be mental. Nor is it time-driven. Film is time-driven, it never ruminates, it shows the outside of life, it shows behavior. It tends to the simplest moral reasoning. Films out of Hollywood are linear. The narrative simplification of complex morally consequential reality is always the drift of a film inspired by a book. Novels can do anything in the dark horrors of consciousness. Films can do close-ups, car drive-ups, places, chases and explosions.3

  Now here is the curious rub about legal storytelling practices: storytelling in the law is equally reductionist and plot driven, strongly akin to conventions of commercial entertainment storytelling practices. Indeed, often characters in law stories seem borrowed from a repository of “stock” film characters.

  This relationship between character in popular film and legal storytelling practice is not coincidental: as in commercial Hollywood films, characters in legal stories are developed in close relationship to plot. There is simply insufficient room, and typically few literary techniques available, for developing fully formed characters (at least, fully formed within the tradition of the realist novel). Indeed, characters in law stories are subservient in their actions to the demands of the plot. Typically, characters presented in law stories simply lack the psychological complexity and the interior life of characters depicted in the novel. The primary concern in legal storytelling is how the story will end, often embodied in the decision or verdict of a jury at trial, or announced in the words “it is so ordered” in an appellate opinion. Consequently, the focus is not on creating interesting characters who will compel the imaginative attention of the audience; rather the emphasis is on characters and characterization as means to a particular plot outcome. Does this mean that character development in legal storytelling practice does not matter? Of course not. As we explore in this chapter, especially in a close reading of a carefully constructed closing argument in a criminal case, the effective creation, depiction, and casting of characters is profoundly important and often outcome determinative.

  II. What Is Character, and Why Is It Important to Legal Storytellers?

  In the movie The Maltese Falcon, Sydney Greenstreet observes to the detective-protagonist portrayed by Humphrey Bogart, “My word, you certainly are a character, aren’t you?”4 The audience knows intuitively that he is referring to some intrinsic quality within the detective that makes him compelling and provides a core psychological identity to him as a player in the drama. But what exactly is character? Is it a composition or cluster of various “characteristic” psychological traits and attributes? Is it the shell of appearance or physical description? Is it some controlling myth that dominates us, inhabits our soul, and compels us mysteriously in our conduct and our behavior? Or is it somehow the distillation and transposition of “real life” onto the page or screen or into the courtroom? Perhaps character is primarily a function of storytelling practice itself. Let me begin by observing that “character” has multiple, disparate and, often, conflicting meanings. Heraclitus observed that “[c]haracter is fate for a man.”5 At that time, the gods were thought to be in control of the fates and, consequently, of character. Any individuality was stolen at the expense of the gods. Sophisticated and literary notions of complex psychological characterization, motivation, and individuated personality were simply not an order available on the narrative menu of the day.

  Character is no longer controlled by the gods. In modern storytelling forms, complex psychological notions of character became most pronounced in the moder
n novel. As Edith Wharton famously pronounced, character has been the “main concern … of the novel” for the past two centuries; “the test of the novel is that its people should be alive,” and “[n]o subject in itself, however fruitful, appears to be able to keep a novel alive; only the characters in it can.”6 According to David Lodge (and the illustrations are endless) the high-water mark for “character” was the “European” novel of the seventeenth through nineteenth centuries: “nothing can equal the great tradition of the European novel in richness, variety and psychological depth of its portrayal of human nature.”7 In more recent days, and in more recent storytelling practices, including the literary novel in the twentieth century, character was often streamlined, as if in anticipation of the form of the movie, compelling F. Scott Fitzgerald to observe that “[a]ction is character.”8 Most recently, in many popular storytelling practices, including in literary fiction, the importance and relevance of character and characterization is in decline. Characters are often reduced in complexity or presented in shorthand forms. It may be that there is no longer a shared cultural belief in the power of the individual to shape or control narrative outcomes. As Bob Dylan celebrated ironically in song, “Take what you have gathered from coincidence.”9 That is, implicitly, character and the actions that appear to reflect a person’s character are more a function of circumstance and environment. As the filmmaker and postmodern literary theorist Michael Roemer claims, “WE NO LONGER BELIEVE IN CHARACTER.”10 Put another way, our characters no longer control their own fate or destiny. Here is how Jerome Bruner states the proposition in expository form:

  I want to begin by proposing boldly that … there is no such thing as an intuitively obvious and essential self to know, one that just sits there ready to be portrayed in words. Rather, we constantly construct and reconstruct our selves to meet the needs of the situations we encounter, and we do so with the guidance of our memories of the past and our hopes and fears for the future. Telling oneself about oneself is like making up a story about who and what we are, what’s happened, and why we’re doing what we’re doing.11

  For many recent storytellers, character is constantly in flux and seldom static or fixed. But others have gone even further, in their belief that fate is shaped by forces far beyond our comprehension or control, that our character has little to do in determining the outcome of our stories. As the novelist Irwin Shaw observed:

  It’s no accident that Kafka has become so popular. He’s enjoying the popularity of a prophet whose prophecies have come true. He prophesied the emergence of the Victim as the archetype of modern man—the Victim who is slowly teased and tortured and destroyed by forces that are implacable and pitiless and that cannot be understood.12

  However, in our legal storytelling practices, character still matters; it matters profoundly. In legal storytelling WE STILL BELIEVE IN CHARACTER, especially in the economical and persuasive depiction of sympathetic and compelling characters, clearly defined and recognizable, with coherent psychological motivation, fulfilling their purposes within a highly structured and composed plot. In this sense, creation and effective depiction of characters (characterization) is a vital tool of narrative persuasion, especially in legal storytelling. In legal storytelling practice, plots do not open outward on a postmodern confusion, nor do environments outside the intentionality of the various players in the story typically dictate the unfolding of events. We emphasize free will in legal stories; causation results from the deliberate and purposeful choices and actions of the various players in the story. Legal stories are tightly wound, compressed, and plot-based realist narratives; we invite our readers and listeners to judge actions, make inferences about causation, and assign legal responsibility all based on their understandings of a character’s “character.”

  Here is a brief sampling from an inventory of reasons why a character’s “character” is especially important in most legal storytelling practice:

  1. It is a pervasive habit of thought in society to regard people’s behavior as determined by their innate character traits and propensities rather than by their situations or circumstances. When trying to understand “events”—who took what actions and why—we look for explanations in the character of the actor, that is, in the actor’s personal disposition.13 Social psychologists call this tendency “fundamental attribution error”14 or “correspondence bias.”15 A story may depict the character of its central player or players in a subtly nuanced way, as we will see in Jeremiah Donovan’s depiction of defendant Louie Failla, or in a gross, stereotypical way. Regardless, what human being X will do is seen as a product of what human being X is like. Therefore, to make the plot action of stories persuasive, it is crucial to create characters whom the audience will expect to act in particular ways.

  2. Judges and juries in criminal cases are particularly given to seeking explanations for behavior in character. For example, judges who impose severe criminal sentences take comfort in the belief that convicted defendants are the type of people who deserve these sentences. Some judges, perhaps, become jaded and lose interest in the many-faceted, complex circumstances of individual cases and find it easier to think about individual defendants as repeat performances of stereotypical perpetrators. Judges are accustomed to administering legal rules that assign great importance to mental states in the grading and punishment of crimes—particularly serious crimes—and it is easy for them to think about particular mental states as attributes of particular types of minds.

  3. In criminal trials, just as in popular stories, motivation is simultaneously a mainspring of action and a reflection of character. David Lodge puts it this way in discussing motivation and character in the novel:

  Motivation in a [classic realist] novel is a code of causality. It aims to convince us that the characters act as they do not simply because it suits the interests of the plot … but because a combination of factors, some internal, some external, plausibly cause them to do so. Motivation in the realist novel tends to be, in Freudian language, “overdetermined,” that is to say, any given action is the product of several different drives or conflicts derived from more than one level of the personality.16

  In this regard, literary and popular storytelling conventions are based on the same premise as legal theory—the model of “the unique, autonomous individual responsible for his or her own acts.”17 According to this model, motivation serves as a two-way bridge between character and action: it enables the reader-viewer-fact finder to infer what a character will do from what kind of person the character is and vice versa. Consequently, it is typically necessary to create coherent, intelligible characters to persuade our judges and juries that our plot makes sense and produces a satisfactory ending to the story of the case.

  4. Finally, judges and juries, akin to movie audiences, will root for the characters in a story whom they come to like. Therefore, it often behooves legal storytellers to create sympathetic protagonists with whom the audience can at least identify. On the other hand, the audience will typically long to witness the downfall of characters whom they come to dislike, whether or not these characters are clearly identified antagonists and often regardless of whether the legal rules governing the legal issues make the personalities or mental states of these characters relevant.

  III. Flat and Round Characters and Static and Changing Characters—High Noon Revisited

  A. Flat and Round Characters, Static and Changing Characters

  E. M. Forster famously postulated in his classic dictum in Aspects of the Novel that there are both flat and round characters.18 A dictionary of narratology defines a flat character as “[a] character endowed with one or very few traits and highly predictable in behavior.”19 As Forster puts it, a flat character is “constructed [a]round a single idea or quality.”20 He or she “can be expressed in one sentence” and “has no existence outside it, … none of the private lusts and aches that must complicate [even] the most consistent human lives.”21 Simply put, flat characters are monochromatic or o
ne-dimensional, often cast onstage to express a single idea or to serve a specific plot function—keeping the plot on track or causing an important “twist” or turn in the plot. Alternatively, this character may keep alignment within the story structure, cast onstage to push the narrative inexorably forward.

  The townspeople in High Noon are all clearly flat characters, each expressing one idea reducible to a single sentence. They push the protagonist Will Kane ever forward in his failed quest for allies so that he must, ultimately, face the villain Frank Miller and the Miller gang alone. Take, for example, the hotel clerk; his single line might be: “The town was better off when Frank Miller was in charge, before Will Kane sent him to prison; I can’t wait until he returns and finishes off Kane, and we get back to business once again.” Another flat character is Kane’s young former deputy sheriff, Harvey. Harvey is cast onstage repeatedly to serve plot functions, reveal crucial backstory, and keep the plot moving forward. His more complex sentence, depicting the source of all his motivations and actions, might read: “I’m as good a man as Kane; either I’m given or I take what was his (and what is now rightfully mine)—both his mistress and his job—or I am out of here.”