Storytelling for Lawyers (10 page)

Her sister said: “There is something wrong. Karen wouldn't tell me over the phone. She wanted me to come so I could talk to her. She was afraid to talk to me on the phone. There was something that she knew besides the fact that she was contaminated.”
⁵⁸

Well, the key question is: “Did she know too much?” “Who contaminated her?” “Did she
know too much?” “How much did she know?” She knew enough to bring this whole mess to an end—the whole Kerr-McGee plant to an end.
⁵⁹

The transition to the final section of the argument is again marked by the use of rhetorical questions. The answers are all the same: “she knew enough to bring this whole mess to an end.” Spence does not provide the full answer here; he saves this for his rebuttal closing argument. At that time, his “conspiracy” theory is unmistakable, providing the countermotive for the villainous and evil Kerr-McGee, the devouring monster whose lust for profits cannot be sated, to finally rise up from beneath the mud springs, causing Silkwood's death
because
she knew too much. Spence makes this argument by intimation, walking a careful tightrope of evidence, never explicitly accusing Kerr-McGee of authorizing, allowing, or encouraging Silkwood's death; he leaves this for the jury to surmise in deliberations.

Although Spence doesn't pull the pieces together, he leaves the jury to ponder the questions during the defendant's closing argument. Perhaps he chooses this strategy to provide the big ending and dramatic closure to his portion of the tale later. Perhaps his strategy is not to fully play his narrative hand: the defendant will not have an opportunity to respond to Spence's rebuttal argument and cannot then accuse Spence of doing precisely the same thing as Spence now accuses the defendant—that is, of Spence then placing the blame directly on Kerr-McGee with speculation and innuendo.

Nevertheless, Spence systematically identifies the evidence from which the jury might construct this counterstory: Silkwood's reports of doctored defective fuel rods; Kerr-McGee's desperation to obtain the reports that Silkwood planned to turn over to a reporter from The
New York Times;
the search for the never-found documents; forty pounds of plutonium missing from the plant and still unaccounted for; and Kerr-McGee's taking everything in Silkwood's residence “down to the Durkee's dressing”
⁶⁰
and burying it. Spence does not connect the narrative dots.

Still, Spence can't resist observing, “[t]he cause of [Silkwood's] death isn't an issue, but fifteen minutes after she left” a nighttime union meeting for a meeting with the investigative reporter from The
New York Times
, allegedly carrying evidence of Kerr-McGee's nefarious practices, “she was dead.”
⁶¹
Although the direct cause of Silkwood's death in the car accident is not an issue in the trial, it
is
potentially important to the narrative logic of Spence's counterstory. The narrative subtext is unmistakable: Kerr-McGee clearly had a motive to do whatever was necessary to stop Silkwood. This certainly provides a stronger and more satisfying story logic than Kerr-McGee's defensive
speculations that Silkwood poisoned herself to discredit Kerr-McGee. (“Did she know too much? … She knew enough to bring this whole mess to an end.”)
⁶²

I, during the recess, wondered about whether there is enough in all of us to do what we have to do. I'm afraid—I'm afraid of two things: I'm afraid that you have been worn out, and that there may not be enough left in you to hear, even if you try, and I know you will try, but I know you are exhausted; and I've been afraid there isn't enough left in me, that my mind isn't clear and sharp now, and that I can't say the things that I need to say, and yet it has to be done, and it has to be done well.… And it is the last time that anybody will speak for Karen Silkwood. And when your verdict comes out, it will be the last time that anybody will have the opportunity that you have, and so it is important that we have the strength and power to do what we need to do
.
⁶³

Spence begins his rebuttal with a rhetorical framework identical to the initial argument. First, he reestablishes his dialogic relationship to the jury. Then he reaffirms the historical singularity of the
Silkwood
case: “You know, history has always at crucial times reached down into the masses and picked ordinary people and gave ordinary people extraordinary power.”
⁶⁴
There are retellings of the legal anecdotes (“the lion gets away”—plaintiff's theory of strict liability—and “the mud springs”—defendant's theory of obfuscation and slander). This time, Spence tactically adds an admonition: “I don't want you jumping in mud springs.… [I]t is unnecessary for you to decide how plutonium escaped from the plant, how it entered her apartment, or how it caused her contamination, since it is a stipulated fact that the plutonium in Karen Silkwood's apartment was from the defendant's plant.”
⁶⁵
Although the defendant has the burden of proving how “the lion got away,” and it is unnecessary for the jury to decide how the plutonium escaped from the plant, Spence argues that he has a moral responsibility to respond to the attacks and speculations by the defendant's attorney, unsupported by the evidence: “Mr. Paul … stood up here and pointed his finger toward Karen Silkwood Mr.… Paul doesn't have the right to come into a court and say: ‘I think this happened.' And: ‘I think
that
happened.' … And to take a whole series of unrelated events and put them together … and to mislead you.”
⁶⁶
Spence is “angry about
that
,” that the corporation “shouldn't hide behind little people.”
⁶⁷
But “[i]f we want to play guess-um—that is, point the finger … I'm willing to play that game. But, when I do it, I want you to know it isn't right, because I can't prove
that
any more than they can prove it.”
⁶⁸
Spence does not explain what
“that”
is; he leaves it to the imagination and speculation of the jury: “What was the motive for them to do
that?
‘She was a troublemaker. She was doing union negotiations. She was on her way—she was gathering documents—every day in that union, everybody in that company, everybody in management knew that.' Nobody would admit it, but they knew it.”
⁶⁹
Spence contrasts the motive for Silkwood contaminating herself suggested by the defendant (“[S]he was furious. We found out that she wasn't furious.”)
⁷⁰
with the motive that Spence suggests for the evil Kerr-McGee: “Compare that motive with the motive of people to stop her. ‘She knew too much.'”
⁷¹
And then Spence develops his counterstory: who most likely contaminated Silkwood and why.

First, Spence develops Kerr-McGee's motive to stop Silkwood (“What would she [Silkwood] do had she gotten to The
New York Times
?”).
⁷²
He then connects this with Silkwood's discovery, and ability to prove, that Kerr-McGee was producing defective and dangerous fuel rods, and her documentation of “leaks,” “spills,” and “incidents.” Silkwood possessed proof that Kerr-McGee was doctoring the x-rays and shipping defective fuel rods. Silkwood was properly fearful for her life because of her knowledge. Spence's intimation is clear: if the jury chooses to enter “the mud springs” of speculation and blame, it is far more plausible that Kerr-McGee caused Silkwood's death to prevent her from revealing what she knew to The
New York Times
' reporter and bringing this whole mess to an end.

Spence intrudes on the narrative, making his point explicit: “You tell me there isn't a hide-up, a cover-up.”
⁷³
His comments are overcome by emotion, the force of his own words deeply affecting him emotionally, both as a speaker-narrator of the story and as a virtual member of the jury; he is an observer as well as a participant, and a guide for the jurors on the last leg of their own heroic journey, suggesting his answer to one of the three riddles: “I think she was a heroine. I think her name will be one of the names that go down in history, along with the great names of women heroines. I think she will be the woman who speaks through you, and may save this industry and this progress and may save, out of that industry, hundreds of thousands of lives.”
⁷⁴
Spence redelivers the call to the hero:

Now let me ask you this question: When we walk out of here I ain't going to be able to say another word, and you're going to have to make
some decisions, and they are going to be made not just about Karen Silkwood, and not just about those people at the plant, but people involved in this industry and the public that is exposed to this industry. That is a frightening obligation.… Can you do it? Do you have the power? Are you afraid? If you are, I don't blame you, because I'm afraid, too. I'm afraid that I haven't the power for you to hear me. I'm afraid that somehow I can't explain my knowledge and my feelings that are in my guts to you. I wish I had the magic to put what I feel in my gut and stomach into the pit of every one of you.
⁷⁵

Initially, it is difficult to contemplate how Spence will move the narrative forward into the final stage of the battle between good and evil; nor is it clear how he will connect the past-tense melodrama about Silkwood with the mythic present-tense story of the trial itself and the heroic quest of the jury to preserve the value of justice itself. Spence solves this creative and aesthetic problem by finally removing the covers from The Beast. Like the shark in the final battle-to-the-death confrontation in
Jaws
, The Beast emerges visible from beneath the mud springs (just as the identity of Karen Silkwood is revealed, and just as Spence has revealed his own vulnerability and fearfulness). In his final revelation appears Kerr-McGee, the antagonistic force, embodied, venal, devouring, and naked at last, dripping radioactive plutonium from the bodies of young and innocent workers, future victims of death by cancer, trapped in its grasp, victims of its insatiable appetite for profits.

In his transition to completing the second act or movement of the narrative—his portion of the telling of the tale and the completion of the past-tense melodrama—Spence identifies Kerr-McGee as the cause of “the immense tragedy in this case that most of us haven't thought about verbally.”
⁷⁶
It is not just Silkwood's tragedy, but a tragedy for the workers still alive. “[T]hese young men may very well die. That is a horrid secret that nobody has told us.”
⁷⁷
The accidents have unleashed plutonium and cancer that will cause even more death if the jury does not listen to Silkwood's prophetic warnings and stop Kerr-McGee.

In this representative excerpt, Spence intersects two discrete parts of the story (the past-tense melodrama about Silkwood and the present-tense story of the trial itself and the jury's heroic quest for justice). The Beast arises from beneath the mud springs, just as Karen Silkwood predicted prophetically:

And I can hear them [agents of Kerr-McGee] saying to you and to those boys and girls that “there has never been a cancer caused by
plutonium, that we know of.” … I've prosecuted murderers—eight years I was a prosecutor—and I prosecuted murderers and thieves, and drunk and crazy people, and I've sued careless corporations in my life, and I want to tell you that I have never seen a company who misrepresented to the workers that the workers were cheated out of their lives. These people that were in charge knew of plutonium. They knew what alpha particles did. They hid the facts, and they confused the facts, and they tried to confuse you, and they tried to cover it, and they tried to get you in the mud springs. You know and I know what it was all about. It was about a lousy $3.50 an hour job. And if those people knew they were going to die from cancer twenty or forty years later, would they have gone to work? The misrepresentations stole their lives. It's sickening. It's willful, it's callous.…

… Karen Silkwood, before she died, before this case was thought of, said that “these young men don't know.” You heard her voice: “These young men, eighteen, nineteen, twenty, twenty-one years old don't understand.”
⁷⁸

Spence leaves it to the jury to do what Karen Silkwood could not do. He resounds her prophetic warning: what will happen in the future if the jury does not stop Kerr-McGee. But he is not quite done: Spence returns to his opening, offering his own dark vision of “the Cimarron Syndrome” before the arrival of “the prophet.” Here, his nightmare foreshadows the future, flash-forwarding twenty years to what will be if the jury does not stop Kerr-McGee here and now:

Now I have a vision. It is not a dream—it's a nightmare. It came to me in the middle of the night, and I got up and wrote it down, and I want you to hear it.… Twenty years from now—the men are not old, some say they're just in their prime, they're looking forward to some good things. The men that worked at that plant are good men with families who love them. They are good men, but they are dying—not all of them but they are dying like men die in a plague. Cancer they say, probably from the plutonium plant. He worked there as a young man. They didn't know much about it in those days.… Nobody in top
management seemed to care. Those were the days when nobody in management in the plutonium plant could be found, even by the AEC, who knew or cared. They worked the men in respirators. The pipes leaked. The paint dropped from the walls. The stuff was everywhere.…

… Some read about plutonium and cancer in the paper for the first time during a trial—the trial called “The Silkwood Case”—but it was too late for them. Karen Silkwood was dead, the company was trying to convince an Oklahoma jury that she contaminated herself. They took two and a half months for trial. The company had an excuse for everything. Blamed it all on the union. Blamed it all on everybody else—on Karen Silkwood, on the workers, on sabotage, on the AEC. It was a sad time in the history of our country.
⁷⁹