Storytelling for Lawyers

by Philip Meyer

  With agitated, outstretched hands, Leventhal asked the jury: “Why? Why should this defendant lie in wait for an unsuspecting and innocent victim? A man, I will prove to you, he didn’t even personally know. Why would he lie in wait with evil in his heart?”

  Leventhal answered the question:

  Because he was hired to do it. He was paid to do it. He’s an assassin. A paid assassin. An executioner. A hit man. For who? Who would hire this man, this defendant to murder in cold blood an innocent victim in the presence of his own daughter? Who could have such strong feelings towards Daniel Malakov that they would hire an assassin to end his life? Who?

  Leventhal walked toward the defense table and again lifted his arm and pointed—this time at Borokhova [the codefendant]. “Her,” Leventhal said, his voice rising to its highest pitch. “The defendant Mazoltuv Borokhova, Daniel Malakov’s estranged wife. The woman with whom he had been engaged in an ongoing and heated, contentious, acrimonious divorce for years.”78

  It is the prosecutor’s use of an omniscient perspective that dictates the way in which the jury will respond emotionally and morally to the characters. The listeners’ moral outrage at the actions of the defendant is a result of the prosecutor’s use of perspective.

  D. Perspective Directly Affects the Reader’s or Listener’s Perception of Events, Determining Whether the Reader or Listener Believes the Storyteller’s Depiction of What Truly Happened

  The prosecutor in a contest of competing stories (in trial, on appeal, or in a postconviction brief) strategically employs an omniscient perspective affirming an apparent and undisputable “objective” truth. Often the story is told in an unembellished “just the facts, ma’am,” no nonsense rhythm and style: the narrator employs short and straightforward declarative sentences. This clarity is to be equated with candor and absence of narrative manipulation. Prosecutors typically tell their stories in straightforward and linear past-tense constructions. Often the details and specifics are muted, as if the voice does not need to prove itself to the reader or call attention to itself, and the details are distractions that might be misread.

  This strategy often works best in legal storytelling—just as it does in nonlegal storytelling—when the omniscient narrator comes across as well informed, unbiased, and trustworthy; this alone will tend to make his version of the story believable. A measured tone, together with the absence of any discrepancy between the narrator’s version of events and whatever information is available from independent sources about those events, will invest the story with believability. Conversely, if an omniscient narrator comes across as unreliable at all, it completely destabilizes the entire reality of the telling. The reader or listener is left not knowing what to believe. Especially in the context of litigation, if the omniscient narrator is unreliable the reader or listener will usually believe the converse of what the narrator says. In legal storytelling, the use of an omniscient narrator implies the storyteller can always be trusted to tell an absolute truth. Furthermore, the use of an omniscient narrator in legal storytelling also implies that there is a single and absolute “objective” truth that can be readily captured and depicted in the narrative; it need not be unpacked and discovered by the listener or reader.

  If a first-person or a third-person limited narrator comes across as reliable, however, the story gains the type of truth that comes from an eyewitness account. The world is perceived in subjective pieces and then assembled from these pieces. If, on the other hand, a first-person narrator or a third-person limited narrator appears unreliable, there are two possible effects. First, the reader or listener may believe that all the events are misrepresented and the truth is best ascertained by detecting the distortions that result from the narrator’s deceitful motivations or judgmental impairments. Thus, for example, in the Atkins brief, once the reader determines that the prosecution’s witness Jones is an unreliable narrator who has cast the blame on Atkins to avoid the possibility of a death penalty, the reader reinterprets the seeming coherence of Jones’s version of the story and Atkins’s role within it.

  Second, the reader or listener may believe that the same motivations or judgmental impairments affect the behavior of the first-person narrator (or third-person limited narrator) as an actor within the story. Thus, for example, the unreliability of Jones as narrator not only affects his credibility but also transforms him into a villain within the story and causes the reader to reinterpret the events of the story with Atkins recast as the victim of Jones’s villainy.

  VIII. Concluding Observations

  I began this chapter with an anecdote about grading law school examinations, explaining how style and voice are profoundly important in determining outcomes on these examinations. Specifically, like most law professors, I look for writing that is clearheaded, grammatically precise, and aggressively purposeful. The A student’s “voice” is careful, meticulous, and constrained. Beneath it there is an understated confidence and authority, indeed, often a borderline arrogance and analytical certainty, mimetic of the judicial voices excerpted in the law school casebooks. The successful law student internalizes certain repetitive and preconfigured analytical forms to display doctrinal knowledge. The student learns how to analyze, synthesize, and analogize cases, and is able to apply doctrinal analysis to “the facts” within these tightly prescribed and highly organized analytical structures. The successful law student does not immerse herself in the facts to tell a persuasive story; instead, she employs facts as “floating factoids” to display doctrinal knowledge. Stories are subservient to legal analysis, colonized by analytical structure. This mode of presentation, important to law school success, rightfully becomes part of the successful practitioner’s tool kit.

  Unfortunately, to create problems that permit law students to develop this structured analytical precision and lawyer’s voice, something important is typically sacrificed: “the facts”—the multidimensional, complex, ambiguous, and particularistic stories at the heart of legal problems. The practitioner’s factually indeterminate world is tipped upside down in law school, so that the facts do not subsume doctrinal and legal analysis. Similarly, in heavily edited law school casebooks, complex and ambiguous stories are reduced and transformed into narratologies that seldom breathe, often have little inner life to them, and are typically merely excuses for exploring fine gradations and distinctions in doctrinal law.

  In law practice, however, outcomes turn on storytelling skills and qualities of different storytelling voices. Lawyers intuitively develop new stylistic techniques crucial to their roles as legal storytellers. In this chapter I presented a limited selection from a large menu of relevant stylistic concerns and techniques that suggest a more expansive tool kit relevant to legal storytelling practice. I have used examples to illustrate how these techniques are applied and are relevant in effective legal and literary storytelling. The particular form of legal storytelling, whether a closing argument at trial or an appellate or postconviction brief, will present the storyteller with a large number of stylistic choices. These choices are nearly always determinative of the success of the legal argument and are an important tool of legal persuasion. In short, it is clear from a look at any effective storytelling that style matters.

  7

  A Sense of Place

  SETTINGS, DESCRIPTIONS, AND ENVIRONMENTS

  Beyond the lines of printed words in my books are the settings

  in which the books were imagined and without which

  the books could not exist.… I am a writer absolutely mesmerized

  by places;… and the settings my characters inhabit

  are as crucial … as the characters themselves.

  —JOYCE CAROL OATES, “TO INVIGORATE LITERARY

  MIND, START MOVING LITERARY FEET”

  Setting is … a powerful vehicle of thematic concerns; in

  fact, it’s one of the most powerful.

  —JOHN GARDNER, INTERVIEW IN PARIS REVIEW

  Description … is never just
description.

  —DAVID LODGE, THE ART OF FICTION

  I. Introduction

  This chapter explores the significance of settings, descriptions, and the creation of complete environments in storytelling practice. These are closely related aspects of all stories, instigating the events of the story, compelling the shape of the world in which the events can happen, and in some circumstances even determining the outcome of the narrative itself.

  The events of stories must fit in the worlds (the settings, the descriptions, and the complete narrative environments) shaped around them and, in turn, these environments are developed only in tandem with the telling of the tale itself. As we will explore, the settings, descriptions, and environments that work well in one story (whether legal or nonlegal) will clearly not fit in another. Indeed, the failure to develop an effective setting and environment can diminish or destroy the persuasive power of the story.

  In many stories the settings, descriptions, and environments are crucial to the theme and the plot; the setting allows the events of the story to happen. For example, Spielberg’s Jaws could obviously only take place in a summer beachfront community on the ocean where innocent summer bathers are naively enjoying the water unaware of the shark lurking beneath. Likewise, Foreman’s allegorical High Noon fits the Western frontier town where order has yet to be imposed upon anarchy and justice is still meted out in a violent story-ending gun battle between the clearly marked forces of good and evil. The story fits the place or setting and the settings, in turn, suggest or create a complete narrative environment where the story can unfold.

  But it is more complex than this: the settings, descriptions, or narrative environments are not merely containers shaped to fit the plots of the stories told within them. Settings and environments are developed and are often strategically affirmed or shaped throughout the story in tandem with the development of the narrative. Think, for example, of the images of the train tracks coming out of the distance that signal the arrival of Frank Miller in High Noon, or of the ticking of the clocks as Miller’s arrival looms more immediate, or of the desperate marshal pacing relentlessly from place to place in his chaotic search for assistance from the townspeople who refuse to aid him in the battle to preserve their community. This imagery, these places and settings, embody the themes of the story and alert the viewer subtly to the complex and allegorical nature of the plot. In contrast, think of Jaws. The settings and shots are technically more elaborate and meticulously constructed, providing complex scenery for the shark attacks on the swimmers and the ultimate and prolonged final battle sequence between the three nautical heroes and the shark. The settings in Jaws are stages on which the action takes place, conveying to the viewer that all that matters is what is depicted on the screen; the viewer does not have to go any deeper to comprehend the meaning of this story. The viewer is thus encouraged to enjoy the movie. The settings and environment in Jaws provide a simple cartoon realism that integrates with and affirms the theme of this movie. The ending in Jaws is an appropriately shallow restorative ending; the town returns to exactly what it once was: a place where innocent swimmers guiltlessly enjoy the pleasures of a summer day in the waters off the Amity Island beach.

  Thus setting or environment is developed and operates in tandem with the other narrative components of the story; the setting is aligned with the way in which this particular world works. The same is true in legal storytelling practices; the settings, descriptions, and environments are constructed to fit the story and, simultaneously, to suggest or create the type of world in which the events of this particular story can take place. Further, the type of world that fits one type of story will not typically fit another type of story.

  This chapter analyzes discrete settings and environments depicted in creative nonfiction and fiction. The literary examples are provided by: (1) one paragraph from a Joan Didion essay about the Manson murders and Los Angeles in the summer of 1969; (2) a section from a travel story by the writer W. G. Sebald in which the narrator travels from Europe to America retracing the path of the journey taken by members of his family; and (3) an excerpt from a real-life crime story told by Kathryn Harrison about a boy who murders his mother, father, and younger sister. The legal examples include the depiction of settings and environments in a judicial opinion, two briefs from coerced confession cases, and the brief from a death penalty case. The chapter illustrates how some of the same techniques and concepts relevant to the development of settings in literature are applicable to effective brief writing and legal storytelling practice.

  The various techniques employed in these illustrations and in practice are so numerous and diverse and so susceptible to invention that I will not attempt to describe or catalog them all. Briefly, they include strategic choices of: (1) whether to include or omit particular categories and groupings of things (physical objects, states of mind) and specific items in each category; (2) the level of detail and the kind of detailing selected; (3) the description of settings and what perspective to use in descriptions; (4) vocabulary, sentence structure, and paragraph structure; and (5) what information will be conveyed in direct statements versus through implication or presupposition. This is merely a general inventory of techniques that are best presented and understood in context of specific illustrations from nonlegal and legal storytelling practice.

  II. Dangerous Territory: Contrasting Settings Evoking Danger and Instability in Joan Didion’s “The White Album” and the Judicial Opinion in a Rape Case

  We put “Lay Lady Lay” on the record player, and

  “Suzanne.” We went down to Melrose Avenue to see the

  Flying Burritos. There was a jasmine vine grown over the

  verandah of the big house on Franklin Avenue, and in the

  evenings the smell of jasmine came in through all the open

  doors and windows. I made bouillabaisse for people who

  did not eat meat. I imagined that my own life was simple

  and sweet, and sometimes it was, but there were odd

  things going on around town. There were rumors. There

  were stories. Everything was unmentionable but nothing

  was unimaginable. This mystical flirtation with the idea

  of “sin”—this sense that it was possible to go “too far,” and

  that many people were doing it—was very much with us

  in Los Angeles in 1968 and 1969. A demented and seductive

  vortical tension was building in the community. The

  jitters were setting in. I recall a time when the dogs barked

  every night and the moon was always full. On August 9,

  1969, I was sitting in the shallow end of my sister-in-law’s

  swimming pool in Beverly Hills when she received a phone

  call from a friend who had just heard about the murders

  at Sharon Tate Polanski’s house on Cielo Drive. The phone

  rang many times during the next hour. These early reports

  were garbled and contradictory. One caller would say

  hoods, the next would say chains. There were twenty dead,

  no, twelve, ten, eighteen. Black masses were imagined, and

  bad trips blamed. I remember all of the day’s misinformation

  very clearly, and I also remember this, and wish I did

  not. I remember that no one was surprised.1

  Joan Didion’s essay “The White Album,” in her collection of essays with the same title, is partially a retelling of the story of the aftermath of the Manson cult murders in Los Angeles in the summer of 1969. It is also a story about the times in which these killings occurred, depicting a strange and unfamiliar environment, a setting in which these horrific and random acts were somehow predictable even if not logically understandable. To make her story work and to enable the reader to better understand the tabloid-like and horrific murders committed by the Manson cult gang, Didion must evoke, if not re-create, this unstable and dangerous world and draw the reade
r into it. Didion must make the familiar strange, bringing the physical environment or setting to life to embody qualities that somehow almost invite the characters’ horrific actions. That is, the setting calls forth the plot.

  The paragraph excerpted above is written in a highly subjective first-person voice that may, initially, seem far removed from the style of the legal storytellers, but there are many lessons that legal storytellers might learn from it. In the paragraph, Didion begins to construct the cultural environment in which the Manson murders take place. The initial sentences select details to convey the crucial sense of time and place. These are not visual details or a composition built on a meticulous and complete description; rather they are a quick composition of sensate fragments lyrically or poetically presented: sounds, tastes, and smells. In contrast to the eye (a more critical and judgmental faculty), hearing and smell are less critical and more associative functions.

  The specific references are to popular music of the day; this music is crucial to the theme of the story. The Manson story is about a multiple murder based upon Manson’s delusional misinterpretation of prophecy contained in the lyrics of the Beatles’ song “Helter Skelter” on The White Album.2 Didion selects her representative musical selections carefully; Bob Dylan’s “Lay Lady Lay”3 and Leonard Cohen’s “Suzanne”4 are disconcerting because they are romantic and intimate songs, distinct from the horrific nature of the multiple cold-blooded murders at the heart of the story. Likewise, Didion identifies the “smell of jasmine” that enters through “all the open doors and windows,” conveying a mixture of sensuality and openness.