Storytelling for Lawyers

by Philip Meyer

  This structure is shaped to provide a seemingly objective but, nevertheless, prosecutorial condemnation of Gilmore, without ever becoming overtly judgmental. Mailer’s sympathy, in this scene, is clearly with the innocent victim Max Jensen; he is akin to an innocent member of the community attacked by the shark in Jaws or a worker afflicted with cancer by the Beast’s (Kerr-McGee’s) plutonium in Silkwood. After this scene, however, Mailer has many pages to allow the remarkably self-reflective Gilmore to reach toward the possibility of understanding his own actions and toward a desire to atone for his sins through his own execution, as a partial payment back to society for actions that are inexcusable.

  The imagery appears taken from a documentary film shot from the objective perspective of an unseen narrator who, only in the most delicate way, dips into the mind of Jensen, the victim, to observe that just before Jensen was shot “[h]e was still trying to smile.” This arrangement of description, action, and character is a carefully structured composition, however, designed to achieve a precise effect on the reader: it is similar to the effect that a skillful prosecutor would desire to achieve detailing the circumstances of a crime.

  V. Telling in Different Voices

  Often, the strongest and most persuasive legal narratives—especially compelling scenes incorporated into and alongside authorial summaries—are not the product of the voice of the legal storyteller. The advocate assembles and transforms collages of quotations into closely edited structural compositions. For example, Jeremiah Donovan develops scenes from reedited versions of the federal surveillance tapes. Likewise, Gerry Spence in his closing argument in Silkwood makes the prophet Silkwood come alive by replaying crucial and carefully edited segments from tapes introduced into evidence. In brief writing, the pieces of the brief are often reconfigured from transcripts and records and—in appellate and postconviction practice—from previous tellings and retellings in judicial opinions. The voices that speak in legal briefs are typically taken directly from other sources. The work of the legal storyteller is thus a practice of bricolage or assembly, as the author arranges which voices come to the forefront of the argument to do their work on the reader or listener. This artistry creates a sense of complete transparency and candor rather than intentional narrative strategy. But this is seldom, if ever, actually so in legal storytelling or in any creative storytelling practice. The art in narrative practice and persuasion is to affirm the appearance of artlessness and of objective transparency in the telling of the tale.

  In Cold Blood provides an illustration of meticulous investigation and purposeful assembly of voices in a classic work of creative nonfiction. Capote’s voice is that of an objective investigative journalist who relies primarily on direct quotations, transcripts of conversations, and excerpts from journals. In one sequence of scenes, for example, Capote reveals the discovery of a murder scene by employing a purportedly unedited verbatim transcript of an eyewitness who accompanies the sheriff to investigate the possibility of a crime at the Clutter family farm.32 The witness, Larry Hendricks, is a schoolteacher who had taught one of the murdered Clutter children.33 Before beginning his dark journey, Hendricks “decided I’d better keep my eyes open. Make note of every detail. In case I was ever called on to testify in court.”34 Hendricks’s story within a story begins at his own house, with a scene depicting a steady state of domestic tranquility:

  Well, the TV was on and the kids were kind of lively, but even so I could hear voices. From downstairs. Down at Mrs. Kidwell’s. But I didn’t figure it was my concern, since I was new here—only came to Holcomb when school began. But then Shirley—she’d been out hanging up some clothes—my wife, Shirley, rushed in and said, “Honey, you better go downstairs. They’re all hysterical.” The two girls [Hendricks’s children]—now they really were hysterical. Susan never has got over it. Never will, ask me.… Even Mr. Ewalt [a middle-aged farmer], he was about as worked up as a man like that ever gets. He had the sheriff’s office on the phone—the Garden City sheriff—and he was telling him that there was “something radically wrong over at the Clutter place.” The sheriff promised to come straight out, and Mr. Ewalt said fine, he’d meet him on the highway..…

  [Hendricks accompanies Ewalt to meet the sheriff on the highway.]

  The sheriff arrived; it was nine thirty-five—I looked down at my watch. Mr. Ewalt waved at him to follow our car, and we drove out to the Clutters’. I’d never been there before, only seen it from a distance. Of course, I knew the family. Kenyon [the Clutters’ son] was in my sophomore English class, and I’d directed Nancy [the Clutters’s daughter] in the “Tom Sawyer” play. But they were such exceptional, unassuming kids you wouldn’t have known they were rich or lived in such a big house—and the trees, the lawn, everything so tended and cared for. After we got there … [the sheriff] radioed his office and told them to send reinforcements, and an ambulance. Said, “There’s been some kind of accident.” Then we went in the house, the three of us. Went through the kitchen and saw a lady’s purse lying on the floor, and the phone where the wires had been cut. The sheriff was wearing a hip pistol and when we started up the stairs, going to Nancy’s room, I noticed he kept his hand on it, ready to draw.

  Well, it was pretty bad. That wonderful girl—but you would never have known her. She’d been shot in the back of the head with a shotgun held maybe two inches away. She was lying on her side, facing the wall, and the wall was covered with blood. The bedcovers were drawn up to her shoulders. Sheriff Robinson, he pulled them back, and we saw that she was wearing a bathrobe, pajamas, socks, and slippers—like, whenever it happened, she hadn’t gone to bed yet. Her hands were tied behind her, and her ankles were roped together with the kind of cord you see on Venetian blinds. Sheriff said, “Is this Nancy Clutter?”—he’d never seen the child before. And I said, “Yes. Yes, that’s Nancy.”35

  Notice how Hendricks’s composition (and, perhaps, how Capote shapes this testimonial evidence) is intuitively artful, with respect to each of the stylistic topics presented in this chapter. First, there are the concussive rhythms of the short sentences that convey emotion by slowing the reader down so he is encouraged to feel the emotions experienced by Hendricks. It is as if the reader is accompanying Hendricks and is simultaneously discovering the crime scene shortly after the murder. Second, these rhythms are complemented and matched by meticulous selection of descriptive details. Outside, “the trees, the lawn, everything so … cared for.” Inside the house, however, there is “a lady’s purse lying on the floor, and the phone where the wires have been cut.” It is a detail that foreshadows what Hendricks and the sheriff will discover in the next scene in the sequence. As the sheriff goes up the stairs he “kept his hand on it [a hip pistol], ready to draw” as if in anticipation of what he (and the reader) will discover next. And then the description and the scene slow down into a “stretch,” with murdered Nancy Clutter first described, the bedcovers “drawn up to her shoulders.” Then, as if in slow motion, the sheriff pulls the bedcovers back, and “we saw [what] she was wearing,” including the telling details (e.g., “her ankles were roped together with the kind of cord you see on Venetian blinds”). The brutality of the scene is tempered by a pitchperfect and understated compassion (e.g., the sheriff says he’s never seen “the child” before).

  Hendricks then describes the discoveries of the victims in the next rooms, Mrs. Clutter, Hendricks’s former student Kenyon, and then Mr. Clutter. The same stylistic techniques are employed intuitively (the rhythms, the details, the use of scene and stretch). Hendricks seems to relive the discoveries, as he describes each room filled with a horror more vivid and more frightening than the one before it. The reader experiences the horror with him; it is akin to a narrative told by a victim of posttraumatic stress who rediscovers an immutable past that he cannot let go of. And the reader is taken along with him both visually and psychologically.

  The sequence of images and scenes concludes with the arrival of other witnesses. Hendricks completes the stor
y within a story by leaving the house and the images behind him, walking home and along the way seeing Kenyon Clutter’s collie “with its tail between its legs, didn’t bark or move.” This image jolts him out of the dazed shock that has prevented him—up until that moment—from comprehending the full horror of the situation on an emotional level, but being “too dazed, too numb, to feel the full viciousness of it.”36 This paragraph provides closure to Hendricks’s testimony and this piece of the story:

  After a bit, the house began to fill up. Ambulances arrived, and the coroner, and the Methodist minister, a police photographer, state troopers, fellows from the radio and the newspaper. Oh, a bunch. Most of them had been called out of church, and acted as though they were still there. Very quiet. Whispery. It was like nobody could believe it. A state trooper asked me did I have any official business there, and said if not, then I’d better leave.… I started walking home, and on the way, about half way down the lane, I saw Kenyon’s old collie and that dog was scared. Stood there with its tail between its legs, didn’t bark or move. And seeing the dog—somehow that made me feel again. I’d been too dazed, too numb, to feel the viciousness of it. The suffering. The horror. They were dead. A whole family. Gentle, kindly people, people I knew—murdered. You had to believe it, because it was really true.37

  Capote steps out of the way and allows other voices to speak; he frames this testimony, assembling the pieces. This composition is a meticulous assembly of edited scenes and images connected with understated authorial summary, and presented in a rhythm that captures and holds the attention of the reader. Capote is masterful as interviewer and investigator, extracting the material and unearthing images and scenes and emotion from his subjects; his is a telling presented in large measure through unmediated voices edited into story.

  Proper use of these skills can be very powerful in legal storytelling. Effective advocates, in building their arguments, use different voices to tell strategic narratives, and they do so at all stages from trial to appeal to postconviction relief. Here, for example, is a scene created by composition of transcripts and testimony from a well-crafted, effective, and successful death penalty brief.

  The legal issue presented in Atkins v. Virginia38 is whether executing a mentally retarded adult violates the Eight Amendment’s prohibition of cruel and unusual punishment. The core of the theoretical argument is simple: a mentally retarded defendant is inherently disadvantaged in litigation, and his condition makes it inherently difficult to participate effectively in his own defense. Especially when there are multiple codefendants, it is more likely that the mentally retarded defendant will be convicted of a capital offense and sentenced to death, because he is the least able to protect his own interests and will likely become the fall guy in the litigation, regardless of his actual role in the killing. The defendant’s condition makes it difficult for him to effectively tell his story. This allows another version of events to be privileged over his less-coherent story. Moreover, his mental retardation prevents him from possessing the requisite culpability to be sentenced to death and it is therefore cruel and unusual punishment to sentence him to die.

  This legal argument is built on an effective story: Daryl Atkins clearly participated in the crime that resulted in the killing of an innocent victim. The question is about Atkins’s role in the killing. A second codefendant, the clever and more capable twenty-six-year-old William Jones, escaped the death penalty by testifying against the eighteen-year-old and mentally retarded Atkins, who was convicted of capital murder and sentenced to death.

  The brief presents testimonial excerpts as dialogue to illustrate how the mentally retarded defendant is disadvantaged in litigation. The defense attorney presents the story like a radio play, carefully editing testimonial excerpts and arranging them “dialogically”39 to reenact selected portions of the trial proceedings.

  The first section of the “Statement of the Case,” subtitled “The Evidence Concerning the Crime,” locates the crime itself in the backstory—the narrative time before the presentation of evidence. The first paragraph only briefly references the robbery and murder of the victim, Eric Nesbitt, in a summary: “He was robbed of the money in his wallet, driven in his own truck to an ATM and required to withdraw more money, then driven eighteen miles to York County, where he was shot eight times and killed with a semi-automatic handgun.”40 Although the brief does not minimize the horrific circumstances of the crime, it does not indicate who does the shooting or depict the precise circumstances of the killing. After the body is discovered, a videotape from the ATM transactions reveals Nesbitt sitting between two African American men, later identified as William Jones and Daryl Atkins.

  The scene then shifts to the investigation and trial, and it is here that the story begins. It is told primarily through the competing first-person voices of Atkins and Jones. The reader is presented with selected excerpts from their testimony, and is invited to weigh the testimony and assess Atkins’s ability to assist in his capital defense, despite his apparent mental retardation. The shrewder Jones seems far more capable of directing the outcome of the proceedings by casting blame and responsibility on codefendant Atkins.

  The initial paragraphs provide more summary of the investigation and proceedings prior to Atkins’s trial: Atkins gives a statement the day of his arrest identifying Jones as the triggerman.41 Jones, however, does not give a statement, playing his legal cards more carefully.42 Both are indicted for capital murder, but in Virginia, “only the triggerman could be convicted.”43 A year later Jones tells the authorities that he took part in the robbery and abduction but “blame(s) Atkins for the shooting.”44 Jones pleads guilty to first degree murder, “a plea that made him ineligible for the death penalty—with a requirement that he testify against Atkins.”45 The scene then shifts to the guilt phase of Atkins’s trial. The scene is initially presented from Jones’s point of view: Jones and Atkins spend the day drinking, smoking marijuana, and watching television.46 They go to a convenience store for beer and then to a liquor store; running low on money, Atkins panhandles.

  Here, the two stories of Jones and Atkins diverge. Their voices are transposed into a purposeful sequence, which enables the reader to assess these two characters in relationship to one another. For example, first Jones asserts that Atkins had a gun in his belt.47 Then Atkins speaks and the reader is immediately struck by Atkins’s voice; he sounds like Lenny in John Steinbeck’s Of Mice and Men: “Me and William Jones was on the side of the 7-Eleven and we planning to rob somebody. And William Jones had the gun.”48

  On the other hand, Jones’s sentences are clear, his grammar is correct, but there seems to be a self-serving calculation and rehearsed manipulation to his responses. In Jones’s version of the story, Atkins is the dominant actor and initiator, while Jones is subservient and submissive. For example, when Jones is close enough to hear what is occurring, the robbery is already well under way; and as Jones gets into the car, he realizes “at that point” that he is involved in a robbery.49

  In contrast to Jones, Atkins’s syntax is convoluted and ungrammatical. His speech draws attention to itself and he confuses the events of the story. It seems apparent that he is unable to present the events in a straight, linear, and self-serving way. Nevertheless, Atkins’s version is filled with vivid details, sharp imagistic fragments that seem authentic and arrest the reader’s attention. Atkins’s “voice” foregrounds the mental retardation that limits his abilities and, implicitly, proscribes his culpability.

  The “Statement of the Case” walks a careful tightrope of language. The writer is careful not to appear; there is minimal authorial intrusion on the dialogue, and no judgments are made about what is being said. Strategically, the brief cannot present the competing stories in such a way that the reader speculates about why Atkins’s version wasn’t believed at trial. The reader should not feel manipulated or made suspicious or critical by the form of the presentation. Nor should the reader be invited to challenge implicit assertion
s about Atkins’s character and abilities (e.g., whether Atkins is, indeed, so mentally retarded that his condition prevents him from forming the mental state required for the conviction of capital murder).

  Like Capote in In Cold Blood, the author gets out of the way and lets the characters speak in their own words. The author carefully selects and places the quotes, building scenes into purposeful sequences. There is no commentary on these testimonial excerpts, no shifts of perspective or movements inside the consciousness or thoughts of the speaker (as there were, for example, in both Donovan’s and Spence’s closing arguments).

  The “Statement of the Case” presents two competing versions of the initial armed robbery and the drive to the bank where the murder victim Eric Nesbitt is forced to withdraw another $200 from an ATM. The roles of Jones and Atkins are reversed in the two tellings, as to who is the dominant initiator and who is the passive accomplice.50 The two versions of the murder itself are presented dialogically, alternating the perspectives of Jones and Atkins.

  The author presents Jones’s version of the killing in an active voice with short, grammatically correct sentences that are readily understood by the reader: “‘Mr. Atkins got out. He directed Mr. Nesbitt out’. Atkins still had the gun. ‘As soon as Mr. Nesbitt stepped out of the vehicle and probably took two steps, the shooting started.’”51 In Jones’s version, Jones even visualizes himself as Nesbitt’s protector: Jones goes “around the back of the truck, aiming ‘to get the gun away from Mr. Atkins’, ‘to stop him from killing Mr. Nesbitt.’”52 Jones’s telling seems rehearsed, pat. Jones avoids assuming any major role in the killing, depicting himself as an unwitting accomplice.