Storytelling for Lawyers

by Philip Meyer

  The great one is, I think, on August 28th, and they’re talking about Jason [Morales’s son, Louie’s grandson]. [Donovan assumes Failla’s gravelly mobster voice.] “You should see their fucking tape. They took him to Lake Compounce yesterday, and they made a videotape of him, and he gets up and he starts playing fucking good times, singing and dancing. That was, [the] whole fucking thing. You should see this fucking tape. He should send it to Hollywood. That was, this kid did everything. He looked at the audience and people and give him a fucking scowl like this [Donovan imitates Failla imitating his grandson’s scowl] with his face.” Morales laughed. “I got to show you.”48

  Donovan briefly frames the scenes and marks the end of the sequence describing the relationship between Failla and Morales: “There’s a tenderness between them. I said tenderness is too strong. There’s a mutual respect and affection between them. Louie has been placed in a terribly, terribly difficult position. His life is in danger if he does not carry out the order, and he’s the father of his grandchild.”49 This sequence leads to a turning point and the climax of the “third act” of Donovan’s three-part narrative structure. First, Donovan observes Louie’s paralysis and inaction:

  So what does Louie do? Louie does nothing. Nothing happens.… [N]othing happened in April, nothing happened in May, nothing happened in June, July, August, or September. Nothing at all happened … [b]ecause Louie Failla didn’t do what Billy Grasso said.…

  … Tito Morales is alive and happy in prison because of Louis Failla … [who] disobeyed an order from Grasso at peril to his own life. “You yellow motherfucker.” Because of the affection that he had for Tito Morales.50

  Finally, Donovan ties the story into the legal issue of intent—what did Louie Failla intend to do; what did he mean to do? Donovan instructs the jury that “to figure out his [Failla’s] intent, you got to think what he was thinking … you got to see this.”51

  Donovan playfully uncovers a larger-than-life cartoon depicting an image of Louie Failla, one of many sequential cartoons in a thick pad of exhibits. “There’s Louie,” Donovan speaks to the picture and then confides intimately to the jury, “I tell you, you got to convict a guy on a look, Louie would spend the rest of his life in jail.”52 Donovan looks at the exhibit, with the “real” Louie Failla carefully positioned behind the pad in the unobstructed sight line of the jury. The jury and spectators chortle. Donovan continues, “Two things you got to do. What did Louie say, or what was Louie thinking when he said it.”53

  Donovan sets up the tension, filling in the spaces between what Louie says and what Louie intends—the distance between the explicit text of his spoken words and the unspoken and interpretive “subtext” of the scene, that is, “what happens below the surface of a scene; thoughts, feelings, judgments—what is unsaid rather than said.”54 Donovan’s technique enables him to go within the mind and thoughts of the “complex” character of Louie Failla. Although Failla has never taken the stand to testify at trial, Donovan effectively testifies on Louie’s behalf and articulates his thought processes and motives in an easy-to-visualize linear text encapsulated into cartoon “thought bubbles.” Donovan’s storytelling strategy is so engaging and seamless that it is not broken by the prosecution’s objection that there is no evidence to substantiate Donovan’s assertions about Failla’s thought processes.

  Donovan proceeds through the many seemingly incriminating conversations recorded on the FBI surveillance tapes. Employing his theatrical version of Louie Failla’s mob voice, Donovan speaks Failla’s words and then articulates and clarifies Failla’s purported thought processes. As he speaks the words he provides the larger-than-life illustration of Louie Failla facing right in profile with a “hard” solid-line cartoon bubble of Failla’s recorded words emerging from Failla’s mouth. Then Donovan provides the subtext of Failla’s purported thoughts, a counterstory, atop a chain of smaller “thought bubbles” emerging as if from inside Failla’s head from a parallel left-facing side profile. The bubbles of testimony capturing Louie’s thoughts establish the subtext underlying the meaning of his spoken words and reveal Failla’s true motivations—to stall the mobsters and save Tito Morales’s life. This newly redefined version of the story eclipses the prosecution’s literal interpretation of Failla’s words, which implicate him in the murder conspiracy.55 These same words now suggest that Failla’s own complicity in the murder conspiracy were efforts to stall the mobsters by inaction and vindicate him of the most serious charge against him.

  FIGURE 5.1 “What did Louie Say? What Did Louie Think?” Illustration a courtroom exhibit. N.p. in transcript.

  F. Failla’s Character Arc Is Not Completed

  The cartoon bubbles, together with Donovan’s reenactments of Failla responding to the murderous mobsters time and again, provide the denouement to the carefully scripted two-hour performance. Donovan has redefined crucial elements of the plot of evil mobsters (flat monochromatic characters) whose words mean precisely what they say, conspiring to execute Morales in a plot that fortuitously never reaches resolution. While in the prosecution’s version of the story the characters of the various mobsters are psychologically undifferentiated in their dark motivations, Donovan’s story provides an alternative rendering of these characters, especially Louie Failla.

  At the end, Donovan does not take the final step and resolve the drama by providing closure to the “character arc” of Louie Failla, completing the plot and inscribing a meaningful coda on the tale. Instead, Donovan leaves it for the jury and judge to resolve the issue of Failla’s identity: in a final visual cartoon the two divided halves of Louie Failla’s profile are posed in opposition while, just behind the exhibit stand, the “real” Louie Failla sits at the defense table studied by the judge and jury in a carefully crafted visual montage of the simulation set atop courtroom “reality.”

  FIGURE 5.2 “What Did Louie Do?” Illustration a courtroom exhibit. Quotation, transcript, 75–76.

  In a voice-over, Donovan concludes his portion of the storytelling dramatically:

  What did Louie do? Nothing. No evidence of going out and buying a gun. No evidence of a real plan that would bring Tito out at this time to this place.… No evidence of any of the kind of actions that one would expect that Louie should have been engaging in if he had really conspired to kill Tito Morales. He talked, and by talking he saved Tito Morales’s life. By making Johns and Castagna think that he was going along with the plan, he got Tito Morales that one more month he needed.…56

  Donovan refers only briefly to the legal implications of his story, leaving it largely to the jury’s charge.57 Likewise, Donovan only briefly emphasizes the standard of reasonable doubt.58 It is up to the jury first to determine who Louie Failla is at the end of the story and then to provide narrative closure by formulating their own ending to the Louie Failla story.

  III. Concluding Observations

  A. Louie Failla’s Character and the Movies

  Cinematic characters seldom display the depth of literary characters. They are reduced in psychological complexity, exaggerated, and shot out across hard plot lines. The protagonists, especially in contemporary plot-driven Hollywood films, are possessed by simple univocal forces that respond to external pressure through action. This tension, between the internal force that motivates the protagonist and an external oppositional force, generates the simple conflict that shapes the formulaic narrative structure at the heart of popular film. These internal forces, like the characters, are readily identified. The resulting narrative exploits are compressed and carefully configured to fit and surprise (yet never defy) the audience’s expectations as the protagonist struggles to resolve external conflict. The storyteller’s point of view is almost always that of the protagonist with whom the audience is implored to identify. For example, in High Noon the story is told primarily from the perspective of Will Kane, although there are some shifts to scenes between Amy and Helen where Kane is not present on the screen. Likewise, in Jaws the perspective of the fi
lm is that of the heroic human protagonists attempting to stop the shark, although the film shifts to the underwater perspective of the shark where the audience vicariously and guiltlessly enjoys the shark’s attacks on the naïve and innocent bathers in the world above.

  The dominant and almost exclusive perspective in Donovan’s closing argument (in contrast to the prosecution’s story) is that of Louie Failla. The jurors observe and then inhabit Failla’s thoughts and character, although Donovan effortlessly slides out into several important sequences of scenes “shot” from the perspective of mob henchmen Jackie Johns and Sonny Castagna. (For example, the two mobsters consult with Billy Grasso and then watch Tito Morales going into the federal building fearing that he is about to “roll over” on them, establishing their “motivation” to execute Morales.)

  The formulaic conventions for defining character and establishing motivation in popular films provide a template for better understanding the dynamics of Donovan’s Louie Failla and, more generally, the dynamics of character construction in legal storytelling. Donovan employs a familiar and viewer-friendly compositional structure in his depiction and representation of Louie’s character. Although Louie Failla is a simple man, he is a “complex” character. Nevertheless, he is a readily recognizable archetype already familiar to this audience from the movies.

  His character is initially presented and then refined in the progressive stories within stories that serve as place markers for each of the three discrete and purposeful acts of Donovan’s story. Failla’s motivations are, likewise, carefully scripted, and internally consistent: he is a comic protagonist, an exaggerator, a fabulist. His stories are big Mafia dreams, filled with chronic self-distortion and self-deception. When Louie attempts to execute a scheme, however, his actions seldom achieve the consequences that he anticipates. He is not a brutal man or an effective Mafia tough guy. He is an inept and comic character, easily differentiated from the villainous “flat” characters, the henchmen Jackie Johns and Sonny Castagna and, especially, the evil and powerful Patriarca mob capo, Billy “The Wild Guy” Grasso. Unlike Grasso, Failla is a conflicted character; he is ineffective because he is neither venal nor cruel. Louie drives around in his big Cadillac, telling big stories, while engaging in small scams to survive, keeping out of the way of Billy Grasso and operating outside of, and ostracized from, the power of the Patriarca crime family.

  During the “third act”—the climax and resolution—of Donovan’s clearly marked three-part narrative structure, Louie Failla appears initially as a two-dimensional visual cartoon, supplemented by Donovan theatrically delivering his lines edited from the FBI surveillance tape transcripts in a gravelly and stereotypical mob voice. Here, another strand of Failla’s character emerges in the subtext from beneath Failla’s words; Donovan makes Failla’s thoughts explicit in the cartoon bubbles that emerge from Louie’s mind in contrast to the words that come from his mouth. Akin to Will Kane in High Noon, Failla’s character undergoes a subtle reversal at the moment of crisis; he must make a choice that redefines his character.

  The multiple and discrete audiences (e.g., the jury, the judge, Failla’s “real” family and his “adopted” mob family, and the other codefendants at the trial who are accused of murdering Billy Grasso) are left to interpret and fully understand his motivations and actions as a component of a carefully constructed and dramatic story. At the moment of deepest crisis and climax, it is apparent that Donovan’s Failla makes the crucial choice to save Morales’s life. He engages in doing so by not doing anything beyond pretending to go along with the order. As Donovan proceeds through the extensive surveillance tapes, he contrasts Louie’s thoughts with his words; he emphasizes Louie’s strategic failure to follow through with the plan to execute Morales, despite the pressure from the mob. In doing so, Failla saves Morales’s life just as he intends to do. In the end, Donovan’s version of Failla transcends the cartoon and becomes almost heroic, choosing to protect the life of his grandson’s father by stalling the mobsters (Johns, Castagna, and Grasso) by using his storytelling skills and abilities. Just as in the movies, Donovan’s Failla chooses his real family over the orders of the villainous faction of his mob family led by Billy Grasso. It is at this moment that the audience sees who the “real” Louie Failla is.

  Of course, Donovan’s version of Failla is not a “real” person. He is an artistic creation existing in a narrated dream state framed by popular cinematic representations of Mafia archetypes and the codefendants in the trial. Screenwriting texts and Hollywood practices provide a theoretical framework for better understanding Donovan’s work. In popular films that adhere to the Hollywood formula, characters, including complex protagonists like Louie, must be centered, and their motivations must be apparent and consistent. The plot must be kept on track by the protagonist’s pursuit of the object of his univocal narrative desire. Screenwriting manuals suggest that this outer goal—the plot goal—must be clarified by an internal goal—the personal goal.59 That is, “[a] good [effective] character has compelling personal goals. These personal goals spring from very deep emotional needs, deprivations, and scars. The need for self-respect; for self-actualization. The need to be loved; to be respected.”60

  In The Screenplay, Margaret Mehring analyzes the Hollywood formula for constructing character and effective characterization, describing the “personal goals” that “drive the characters to reach their plot goals.”61 These goals are “the voices within the character that yearn for fulfillment, that must be satisfied. They’re the needs that create the energy to overcome obstacles.”62 These forces, like the characters themselves, are exaggerated and distilled, and they provide apparent motivation for the protagonist.

  Hollywood screenwriters also speak of the protagonist’s “inner contradiction” that accompanies the internal personal goal.63 This is the conflict within the protagonist that, according to Hollywood folk wisdom, makes the protagonist’s character compelling. Usually, like the personal goal, there is one primary and identifiable inner contradiction that determines the protagonist’s identity and shapes the character’s cinematic destiny or fate.

  Failla’s personal goal is partly material and partly psychological: Failla struggles for those Hollywood staples of “fortune and fame” as well as for professional recognition, respect, and self-esteem. The inner contradiction in Failla’s character, however, is more subtle. Donovan’s not-so-tough guy Louie Failla tells big stories to capture and please his audience. He does so because he lacks something within himself and needs something that he is missing desperately. This psychological need interferes time and again with the achievement of his personal goal and, perhaps, contributes to his self-destructive confessions in a car that he could have and should have anticipated was “bugged.” This missing element cannot be fully deciphered, however, until Donovan intimates it at the end of his closing argument by reading the complex progressions of cartoons and suggesting the true nature of Failla’s character.

  The inner contradiction within Failla’s character is between Louie Failla, the purported Patriarca mafioso, with his tough guy exterior, his Runyonesque bravado, and the softer, compassionate, empathetic, and even loving aspects of his personality. This tension is revealed in Failla’s confessional dialogue with Jack Farrell, and especially, in his conversations with Tito Morales about his grandson. This contradiction is most apparent in the final act or movement of the story when the audience sees Failla’s character depicted as the two contradictory and conflicting halves of a personality.

  When the screenwriter is constructing the dynamics of a protagonist’s character, according to the Hollywood template, the audience sees the character “in action” in the struggle toward a clearly defined outer plot goal. Plot goals, like personal goals, are specific and apparent. They include “[t]hings like becoming a famous pilot, being married to a wealthy woman, capturing a notorious criminal, or earning a higher education degree.”64 Initially, the plot goal may appear simply as an external and visi
ble representation of the personal goal. Tension between the protagonist’s personal goal and the plot goal results in the “darkest moment” or the “final crisis” and ultimately moves the protagonist to the climax “when the protagonist must make a decision that will reflect a substantial change within him or her and will create a substantial change in the situation.… The moment the change manifests itself … the moment when the theme of the story becomes clear.”65

  Failla seeks a specific external plot goal. Failla wants to become a capo of Connecticut organized crime activities. Failla, like the legendary O’Toole in Donovan’s story, pretends to be who and what he is not. In the final act, he has the opportunity to achieve this external plot goal; he can ingratiate himself with and prove his loyalty to the leadership of the Patriarca crime family by completing the conspiracy to murder Tito Morales. In Donovan’s version of the story, however, he does not do so, and it is at this moment that the narrative theme becomes clear.

  B. Character and Theme

  The theme of a popular movie or an effective law story is often deeply connected to the development of the central character, typically cast as the protagonist of the story (especially in a criminal law or torts story). This is especially so in a sophisticated law story akin to Donovan’s narrative on behalf of Failla. This is a story that ultimately turns on the audience’s perception and understanding of Louie Failla’s character: at the start of the story, Louie is a narrative trickster, who tells his stories for effect (akin to “O’Toole” in the barroom anecdote), as compared to who he becomes at the end of the story, a character (akin to “Roosevelt”) who uses storytelling skills to save Morales’s life and maintain his own integrity. That is, the theme of Failla’s story concerns Failla’s motives and contradictory impulses and how this internal psychological conflict is translated into action (more specifically, in Failla’s case, into inaction).