Storytelling for Lawyers

by Philip Meyer

  Atkins’s ungrammatical and less coherent version seems more authentic and persuasive. Here, for example, is an illustrative paragraph from the petitioner’s brief, presenting Atkins’s version of the same events:

  Atkins’ version was that Jones stopped the truck and “told me to get out, me and Eric Nesbitt to switch places. He never said why. So I hand—he told me to hand him the gun. I hand him the gun. I got out first. Eric Nesbitt got out behind me. I got back in. Eric Nesbitt got back in. William Jones still had the gun. He put it in a holster that he had on his belt, a black nylon holster. Then he drove up the street a little more. And then I noticed it was like a fork in the road. So then he stopped and backed up, and then he backed up, parked the car, and he opened up the door.… He told Eric Nesbitt to get out.… Eric Nesbitt got out.” Atkins was in the truck, “in the middle.” “As Eric Nesbitt was getting out William Jones got out, too. So by the time Eric Nesbitt got out the vehicle, William Jones was there. He had come around the back of the truck.… He—Eric Nesbitt bend [sic] over and William Jones told him to get up. And he didn’t get up. And then the shooting started.” Jones did the shooting. Atkins was still in the truck. There were a lot of shots. After they started, Atkins’ “leg was hurting, so I reached down to look at my leg.… Then I didn’t hear no more shots. And then William Jones got inside the driver’s—he came back around, got inside the driver’s and took off.” Atkins asked Jones why Jones had shot him, and Jones tried to figure out how he shot Atkins. Atkins asked Jones to take him to the hospital “[b]ecause my leg was hurting.” Atkins also “asked … [Jones] where did he shoot him [Nesbitt] at. He said he shot him in the body.”53

  From this excerpt of the brief, it appears that Atkins is speaking for himself exclusively, with unmediated language and quotations from the transcripts. But this presentation is a composite of edited testimony, of paraphrase, and of alteration between scene and summary: it shifts perspectives, creates a rhythm, and builds scenes into a purposeful sequence. When depicting the murder itself, the writer slows the pace of the telling into a stretch, reconstructing the murder by splicing together and editing transcript into montage. Although the jury apparently disbelieved the veracity of Atkins’s testimony, and convicted him of capital murder, the reader is invited to revisit the story, assessing Atkins’s abilities to participate effectively in his own defense. The telling is a composition designed to make Atkins appear confused but truthful; it is perhaps as artful, although less dramatic and more understated, than the excerpts from Capote’s In Cold Blood. This is a clear example of how skillful use of scenes, rhythm, stretches, and detail can subtly lead the reader to view the events and characters in a way that supports the writer’s intended result.

  VI. Perspective or Point of View

  A final important topic closely related to understanding voice and the specific qualities of various voices is perspective or point of view. The novelist and writing teacher John Gardner observes that, “in contemporary writing one may do anything one pleases with point of view, as long as it works.”54 But what, exactly, is perspective or point of view? And how does it work? How do perspectives affect legal storytelling and argumentation?

  Perhaps the simplest and clearest understanding of perspective or point of view may be derived from watching movies. Perspective may be conceptualized and understood simply as: (1) where the cameras and microphones are placed to record the action, (2) who the story centers on (typically, most films track the movements of the protagonist), and (3) the stance of the moviemaker in relationship to the subject matter and theme of the story and the characters within it.

  These concerns are equally important to legal storytellers. For example, in the closing arguments of Spence and Donovan, it is the perspective or point of view that determines the appropriate voice for the speaker. Gerry Spence assumes an omniscient third-person perspective sympathetic to the protagonist Karen Silkwood; he stands outside the events and follows her actions, commenting in a godlike and often judgmental way on her activities. He observes from a distance Silkwood’s heroic and melodramatic battle against the trouble—the assembled forces of antagonism aligned in opposition to her, as she attempts to protect the innocents in the community. Silkwood is in an epic battle against The Beast, Kerr-McGee, and its many evil minions.

  In Donovan’s tragicomic Failla storytelling, Donovan assumes a different and more intimate voice embodied within a closer and more limited perspective. Donovan’s voice and perspective is cast in a limited third person, more tightly and subjectively aligned with the movements and thoughts of his defendant-protagonist, Louis Failla. From this perspective, Donovan repeatedly slips directly into the mind of Louie Failla, revealing Failla’s thought processes, assuming a first-person perspective.

  It is helpful to identify alternative perspectives or points of view that are typically employed by both legal and nonlegal storytellers, including: (1) the first-person, (2) the third-person subjective, (3) the third-person objective, (4) the authorial omniscient, and (5) the essayist omniscient.55

  The first-person perspective provides, perhaps, the most natural voice, in that it enables the writer to write as she actually thinks or talks, and to write simply and directly about how she perceives the world. It provides the most direct form of connection between speaker and reader; it allows for direct expression of the speaker’s thoughts. Examples of first-person narrators in the modern novel include, of course, the strong voices and unique interior perspectives of Huckleberry Finn or Holden Caulfield. The perspective of the narrative is fixed within the speaker; the reader perceives what the narrator perceives, and the story moves with the narrator’s movements; the camera’s lens and the recording microphones are located within the narrator. As we have already observed in the storytelling of Jeremiah Donovan in the Failla closing argument (employing edited transcripts) and in the excerpts from the audiotapes employing the recorded voice of Karen Silkwood (returned from the dead) in Spence’s closing argument, the careful use of the first-person voice is an especially powerful tool in legal argumentation. In many effective briefs, including in the “Statement of the Case” of Atkins, selective use and incorporation of first-person voices and first-person stories within stories is a powerful tool of narrative persuasion.

  The second often-adopted narrative perspective is the third-person subjective, a point of view in which “all the ‘I’s are changed to ‘he’s or ‘she’s and emphasis is placed on the character’s thoughts.”56 The objective here is to indirectly embody or convey the consciousness of a clearly identified actor, often the protagonist in the story: “this point of view (style in a sense) goes for deep consciousness, in the hope that the thoughts and feelings of the character will become the immediate (unmediated) thoughts and feelings of the reader.”57 Gardner notes, however, that this perspective also has severe limitations. For example, it “locks the reader inside the character’s mind, however limited that mind might be, so that when the character’s judgments are mistaken or inadequate, the reader’s more correct judgments must come from a cool withdrawal.”58

  This perspective clearly has utility in different types of legal arguments, and lawyers selectively employ it to explain and capture the consciousness of a central character. For example, Spence shifts strategically from an omniscient third-person narration into a more limited and subjective third-person voice to convey Silkwood’s motivations and show how she overcame her own fears and self-interest through courageous action on behalf of the innocent workers at the plant. Likewise, Donovan’s narrative shift into a sly, darkly comical, and ironic third-person perspective reveals intimately the complex psychological intentionality that undergirds Louie Failla’s inaction, and his seeming complicity in the plot to murder Tito Morales. Louie attempts to preserve the appearance of his loyalty to the Patriarca family and, simultaneously, his loyalty to his real family as well; he cleverly deceives the Patriarca family, deceives his real family, and, perhaps, deceives himself too. Only at the end o
f his two-hour performance does Donovan shift from a limited third-person into a first-person narration, directly voicing Failla’s unexpressed thoughts by translating them into a clearheaded, internal, first-person monologue.

  The third perspective that Gardner identifies is the third-person objective, which is “identical to the third-person subjective except that the narrator not only never comments himself but also refrains from entering any character’s mind. The result is an ice-cold camera’s eye recording. We see events, hear dialogue, observe the setting, and make guesses about what the characters are thinking.”59 An example of this limited third-person perspective is in the portions of the Riggins brief cited previously in this chapter, where the reader sits as if a spectator in the jury box observing the image of the zombie-like defendant Riggins. The reader never enters the mind and thoughts of the defendant, who has been incapacitated by the forced ingestion of the drug Mellaril. Likewise, in the initial excerpt from Ellroy’s My Dark Places, the voice shifts from a first-person perspective (and a rarely employed and compellingly intimate second-person voice that speaks directly to his dead mother) to a cold camera’s eye third-person “objective” recording of the events, including the discovery of the corpse of his mother. This shift of perspective from the intimacy of the first-person voice to a cold and limited third-person objective detective’s voice is striking and initially disconcerting. It is a dramatic movement emphasized with the framing devices of headings and subheadings structurally akin to a technique that skilled writers of legal briefs also employ. In all of these illustrations, the aesthetic relationship between voice and perspective is apparent and functionally correct for effective storytelling. The choice of perspective implicates the voice and, in turn, the voice controls and suggests the appropriate perspective. Although perspective and voice are fused into one, these are two discrete and complementary stylistic components of the story.

  VII. Several Functions of Perspective: How Does Perspective (Point of View) Work, and What Work Does It Do?

  David Lodge observes that “the choice of the point(s) of view from which the story is told is arguably the most important single decision that the [storyteller] has to make, for it fundamentally affects the way readers will respond, emotionally and morally” to the story.60 Is this so? How does perspective shape or control the narrative? What are the functions and limitations of various perspectives or points of view?

  A. Perspective Controls the Flow of Information

  The choice of perspective shapes and predetermines the narrative logic of the story. It is akin to the way the rules of evidence in a courtroom regulate storytelling practice, by predetermining what information comes in and how it may be presented in relationship to and connected with other evidence presented at trial. That is, perspective affects the narrative logic of the story.

  For example, an omniscient third-person narrator can reveal information that no person in the story possibly knows—events that occur outside the presence of any individual who might serve as a first-person narrator or beyond the scope of the third-person limited observer. Thus, an omniscient narrator in the excerpt from Norman Mailer’s Executioner’s Song dips into Max Jensen’s consciousness and delicately reveals the meaning of the gas station attendant’s smile. This is so because an omniscient narrator can describe the thoughts and feelings of everyone in the tale, and can provide insights about an individual’s character that the individual may lack the capacity to express. An omniscient narrator can also generalize about the meaning and implications of various events and connect these events to other events or to theory. For example, in the legal argument section of the petitioner’s brief in Atkins, the voice shifts from a limited to an omniscient third-person perspective, revisiting the story told initially in the “Statement of the Case”; this enables the narrator to generalize about the abilities of mentally retarded individuals to participate effectively in their own defense. The argument describes several cases where an innocent defendant’s mental retardation resulted in his wrongful conviction.61 Likewise, an omniscient Gerry Spence looks into the future and previsions the cancer that will befall the young workingmen continuing at Kerr-McGee, fulfilling the dark prophecy of Karen Silkwood. His omniscient perspective enables him to articulate the historical significance of this trial and to call on the jury’s heroism to prevent the Cimarron Syndrome, stopping the Beast Kerr-McGee and its voracious appetite for profits and prophets. Spence even previsions that the jurists can change the course of history through their heroic intervention.

  The strength of the omniscient perspective is not only to expand upon and explain; it can equally summarize, compact, edit, reconfigure, and reorganize information in a purposeful way that a first-person or third-person limited narrator can seldom do. For example, it can convey the most content in the fewest words. An omniscient narrator can move in a godlike way that ranges freely across time. For example, Spence moves over time and across space, from the origins of the law of strict liability in England to the popular culture events of the present day in a greedy and corrupt post-Watergate America, and on into a cinematic dream-like vision prefiguring a dark future that will emerge unless the jury can heroically intervene. Neither a first-person nor a limited third-person narrator could make these leaps in time, for the rules of perspective wed these types of narrators to events in a way that compels a different type of systematic unfolding.

  On the other hand, the use of a first-person narrator or a third-person limited narrator allows the writer to withhold information or delay its disclosure strategically. This allows for creating the suspense or tension crucial to the construction and propulsion of detective mysteries (which are typically told from first-person or third-person limited perspectives).

  B. Perspectives Can Suggest Outcome and Endow the Reader with Responsibility for Determining Meanings

  Different perspectives endow the reader with different levels of responsibility for making sense of the events of the story and—perhaps of more importance in legal storytelling—for deriving the point of the story; the audience becomes responsible for determining what the outcome of the story should and will be. Especially since law stories are unfinished stories, with an active decision maker charged with writing the ending of the tale, the choice of perspective implicitly entails different roles or responsibilities for the listener or reader in determining the ending of the story and for imposing meaning upon it.

  Specifically, an omniscient narrator who speaks with the authority of God can be quite explicit in telling the reader or listener what happened and what to make of the events that occurred and in specifying the desired outcome or judgment. At other times, an omniscient narrator can strongly direct the reader’s moral response to a scene and the characters within it by selecting and depicting details and ordering the presentation of information. For example, Mailer observes Gilmore’s angry asides as he pulls the trigger of the automatic leveled against Jensen’s head. “This one’s for me,” Gilmore says, and then again, “this one’s for Nicole.” Likewise, instead of generalizing about the helpless and vulnerable attendant, Mailer observes that the attendant is “still trying to smile” as Gilmore orders him to the floor. That is, Mailer carefully selects and tightly arranges details from an omniscient perspective in such a way as to evoke a specific emotional response in the reader, one that creates no sympathy for Gilmore. Mailer’s depiction of the crime is similar to the narrative strategy of many prosecutors; it is designed to viscerally and powerfully reenact the horror of the crime and to point the reader toward a particular ending: one in which Gilmore deservingly faces conviction and the death penalty.

  A possible disadvantage of employing an omniscient voice is that it is often too strongly directive. It may disempower listeners-readers and deprive the audience of the excitement and stimulus necessary to figure out what is going on, determine how to interpret events, and, in legal stories, decide how to write the ending that provides closure to the tale. Employing an omniscient persp
ective may also unintentionally evoke reader or listener skepticism or create unintended effects. Consequently, for example, in his closing argument on behalf of Karen Silkwood, Gerry Spence seems intuitively conscious of the potential for being perceived as overly directive and manipulative. Thus, he shifts from his omniscient perspective, emphasizing that his vision of the future is his own personal dream of what the future will look like if the heroic jury fails to intervene on behalf of Silkwood.

  In contrast, first-person and third-person limited narrators typically appear to provide the empirical data from which readers or listeners can determine for themselves the meaning of events and conclude whether X is true or Y is the point. For example, in a story told by a third-person limited narrator (e.g., in portions of Ellroy’s My Dark Places or in defendant Riggins’s brief) the reader is compelled to make sense of and construct the story from the limited and restricted viewpoint (perspective) of the narrator.

  The first-person perspective also typically allows the teller to introduce additional evidence and personal information that might otherwise appear extraneous. The reader or listener is thus encouraged to develop a closer personal relationship with the storyteller and is empowered to sort through this information as a collaborator with the narrator. This allows the reader to better understand why the information is included in the story.

  Here, for example, is the opening narrative hook from Frank McCourt’s memoir, Angela’s Ashes.62 An intimate voice speaks from the narrator’s point of view directly to the reader. The prose has an immediacy; the richness of evocative details fits the style and resonates with readers; there is a deep emotional attachment between the writer and his material, as pervasive in the prose as the “Irish” sadness that soaks the images like seawater. McCourt begins: