Storytelling for Lawyers (12 page)

In contrast to Austen's cool elegance, Lodge observes, “Ford Madox Ford's famous opening sentence [in
The Good Soldier]
is a blatant ploy to secure the reader's attention, virtually dragging us over the threshold by the collar.”
¹⁰¹
Unlike
Emma
, this opening is somewhat mysterious with a “characteristically modern obscurity and indirection” and an “anxiety about the possibility of discovering any truth” that “infect[s] the narrative.”
¹⁰²
There is, as in
Emma
, an emphasis on “the disparity between appearance and reality in English middle-class behaviour; so this beginning strikes a similar thematic note to
Emma
's”; however, it is “tragic rather than comic in its premonitory undertones. The word ‘sad' is repeated towards the end of the paragraph, and another keyword, ‘heart' (two of the characters have supposed heart-conditions, all
of them have disordered emotional lives), is dropped into the penultimate sentence.”
¹⁰³
Both
Emma
and
The Good Soldier
, as novels, focus more on the internal consciousness of the protagonist than on external actions, as in melodrama, and anticipate changes within the consciousness of various actors.

Citing an example perhaps more closely akin to Spence's genre-based beginning, Anthony Amsterdam identifies the
cinema noir
opening of the masterful film
Double Indemnity
.
¹⁰⁴
Walter Neff, insurance salesman (according to the sign on his office door), staggers into the office with a gunshot wound in his upper chest, loads a spool into his dictating machine, and dictates this:

[Walter Neff (dictating into machine)]

Office memorandum. Walter Neff to Barton Keyes, Claims manager. Los Angeles, July 16, 1938.

Dear Keyes. I suppose you'll call this a confession when you hear it. Well, I don't like the word confession. I just want to set you right about something you couldn't see because it was smack up against your nose.

You think you're such a hot potato as a claims manager, such a wolf on a phony claim. Maybe you are, but let's take a look at the Dietrichson claim. Accident and double indemnity.

You were pretty good in there for a while, Keyes. You said it wasn't an accident. Check.

You said it wasn't suicide. Check.

You said it was murder. Check.

You thought you had it cold, didn't you? All wrapped up in tissue paper with a pink ribbon around it. It was perfect. Except it wasn't, because you made one mistake, just one little mistake. When it came to the killer, you picked the wrong guy.

You want to know who killed Dietrichson? Hold tight to that cheap cigar of yours, Keyes. I killed Dietrichson. Me, Walter Neff, insurance salesman. Thirty-five years old, unmarried, no visible scars—[glancing down at his chest]—until a while ago, that is.

Yes. I killed him. I killed him for money. And for a woman.

And I didn't get the money, and I didn't get the woman. Pretty, isn't it?
¹⁰⁵

This opening is the most compressed and complete of all the examples. It has none of Austen's sly subtlety or Ford's suggestive ambiguity. Yet it is extremely
forceful and straightforward, employing the clipped speech and hard-boiled style characteristic of Raymond Chandler and similar detective fiction. Like
Silkwood
, it immediately and unmistakably clues the viewer in to the genre of the story, providing a strong narrative framing and a clear set of anticipatory expectations in the viewer. But it also resembles
Emma
and
The Good Soldier
, as well as
Silkwood
, in several important and relevant aspects.

First, like the other beginnings, it develops an initial situation of instability; there is the arrival of a “trouble” that cannot be easily resolved by the protagonist who is placed strategically at the center of the situation. In both
Double Indemnity
and
Silkwood
, this trouble is established external to the narrator. In
The Good Soldier
and
Emma
, similar to many classical modern novels, the trouble is more complex and also internal, within the consciousness of the protagonist who is or is not affected and transformed by the gradually unfolding events. That is, the subject of the novel and the movement of the narrative take place within the consciousness of the narrator and the true subject of the novel (unlike
Silkwood
or
Double Indemnity);
they are consciousness itself.

The Russian folklorist and narrative theorist Vladimir Propp famously distinguishes two alternative versions of the trouble by which the movement of a story is launched—“Villainy” and “Lack.”
¹⁰⁶
The beginnings of the novels
Emma
and
The Good Soldier
signal stories that are about a “lack” within the character of the protagonist, while the beginning of
Silkwood
is clearly a story about villainy.

The point is that all these beginnings now demand narrative propulsion or movement and change to push the plot forward through the progressive complications of the middle toward resolution. In all these beginnings, the audience (whether a reader, a viewer, or a juror) is led to ponder the precise directions that the movement will take. Enough is said about the situation and characters so that certain lines of movement are foreclosed; the audience speculates as to what specific trajectory the plot will take (“what happens next”). After the story is over, it is apparent that the ending is clearly embedded and prefigured in the beginning.

All these storytellers (Austen, Ford, Billy Wilder, Chandler, and, of course, Spence) are adept, within the constraints of their various storytelling forms and the unstated expectations of their diverse audiences, at teasing out and maintaining narrative tension in the pacing and trajectory of the respective plots. They ultimately satisfy the expectations established by the initial setup with aesthetically satisfying endings and compelling narrative payoffs. And the final payoff to Spence's story is literal; it must be translated into and spoken in the only language the villain understands, the language of money.

Earlier I presented the concept of narrative movement or
profluence
in plotting, characterized by a forward narrative momentum that is more than inertia. The concept of purposeful motion is crucial in all storytelling: the narrative must be directed toward a culmination—some ending or termination (either restorative or transformative) that the sequence of events anticipates. But unlike the moviemaker or novelist, the legal storyteller faces constraints (ethical and strategic) and must fulfill obligations. For example, the story is systematically anchored in the theory of the case in addition to an aesthetically satisfying narrative theme. These two must be fitted and complementary; the narrative must satisfy the legal elements presented in the theory of the case.

Often, the legal storyteller will stop the narrative and step outside the story, purposefully zigzagging from the story to the theory of the case to reveal specifically how a particular sequence of the narrative events satisfies specific elements of legal theory of the case. Spence, for example, is extremely adept at moving from his narrative to his theory of the case, repeating a shorthand phrase or referencing how a piece of the story connects with or fulfills a crucial component of his legal theory, and then returning to the story. He internalizes a psychological awareness of his audience's imaginative attention and artfully maintains his place in the progress of the plot, maintaining his listener's attention and avoiding gaps in the narrative logic of the story. He walks tightropes of language and imagery and emotion; nevertheless, it is the profluence of the plot of a well-shaped and carefully preestablished story structure that ultimately determines the success of his closing argument.

Spence's plot is shaped on a careful yet readily identifiable and predetermined trajectory. This is especially so because the genre of the story is a familiar melodrama, and the plot of such a story is, by its very nature, highly formulaic and predictable. In this sense, the ending of a successful melodrama is clearly predetermined—the black-caped villain must lose the final and climactic battle to the death, the community must likewise be saved (in a heroic “rescue” narrative), and the voice of the wise prophet finally heeded and her memory redeemed—she must be vindicated and her sacrifice must not be in vain (perhaps Spence's three-word “telegram” about the theme might be “prophets over profits”).

How does Spence make the narrative move in a satisfying (yet predictable) way within a complex framework of legal and aesthetic constraints? Let's look
briefly at the development of one of the characters, the villain, Kerr-McGee, within the plot and how it shapes the plot and determines the success of the story.

Let's begin with an observation about the nature of character suggested by Michael Roemer, the postmodernist notion that “we no longer believe in character.”
¹⁰⁷
Our recent neurology and behavioral psychology may suggest that in “real life” actions are often largely determined and shaped by external forces and environments rather than by the internal attributes of the actors, and that the choices are compelled by circumstances and not made exclusively by autonomous actors who must assume complete personal responsibility for their actions. This is a type of narrative framing that some attorneys may occasionally employ to persuade judges and juries. For example, in death penalty mitigation arguments, attorneys often employ stories explaining how a convicted defendant was a victim himself of “environmental” causes or human “ecology” (e.g., a backstory of horrific childhood psychological abuse, a distressing and inescapable personal situation, etc.) that helps explain, but never justifies, the acts committed by the convicted defendant. Consequently, the audience is urged to have some sympathy for the convicted at sentencing; the punishment should be mitigated and the defendant spared the death penalty. This story is connected to specific elements of the applicable legal rules, typically statutorily identified mitigating factors or circumstances.

Melodrama, however, provides a different type of framing story: characters are cast into the roles of autonomous actors and held personally accountable for their actions and choices. The trajectory of the plot then centers on the battle between the monolithic forces of good and evil embodied in clearly presented heroes and villains who are held personally responsible for the consequences of their actions. This is why torts attorneys, like Spence, typically employ the hard trajectory of the plot of a melodrama; in doing so, they attribute actions to the free will of powerful and antagonistic actors. The story eventually turns on the outcome of the battle between the hero and the villain; the conflict is between good and evil, and, in the well-framed torts law story, the value at stake in the battle to the death is typically justice itself.

In effective melodrama, the villain and the villainy are crucial to fashioning the trajectory of an effective plot. Thus, Spence patiently and purposefully transforms the corporation into the unitary and readily recognizable villain long before Silkwood is brought onstage. Systematically, the corporation is personified and given free will. Kerr-McGee is also given the power of language and, implicitly, with it comes the power of thought and intentionality (and with it the jury is charged with speaking the only language Kerr-McGee
understands, the language of money). This is all in accordance with the demands of melodrama, and Spence confines his telling to the genre conventions of this highly circumscribed form.

But there is more to it than this. For the story to work fully, there must be narrative movement within the story itself, and this calls for a carefully structured but symbiotic relationship between hero and villain. As Ernest Hemingway observes about characterization in well-constructed plots, “Everything changes as it moves.”
¹⁰⁸
In courtroom melodrama, this motion requires typically that the villainy becomes ever more sinister as the plot progresses and the sum of the forces opposing the will of the heroic protagonist become more powerful so that it is imperative and urgent that the villainy be ended. Thus Spence implores his jury at the end of his closing argument (as he does in many of his cases): “Friends, it has to stop here today, here in Oklahoma City today.”
¹⁰⁹
Of course, this villainy must be built exclusively on a true depiction of the evidence and plausible inferences from that evidence.

As the screenwriting guru Robert McKee observes, in melodrama especially, the conflict must “provide progressively building pressures that force characters into more and more difficult risk-taking choices and actions, gradually revealing their true natures.”
¹¹⁰
McKee identifies the specific “steps” in the trajectory of the plot of a compelling melodrama. According to McKee, for the story to be compelling, the conflict must be about more than merely a battle between good and evil; there must be the battle over a specific and readily identifiable value that is at stake in the story.
¹¹¹
The protagonist represents the positive charge of this value, and the “forces of antagonism” (the sum of all the forces opposing the will of the protagonist, including, but not limited to, a specific antagonist or victim) represent the negative charge of this value.
¹¹²
In
Silkwood
, Spence specifically identifies the value at stake: it is justice itself. McKee observes accurately that the “stock” narrative progression in the plot of a melodrama about “justice” “moves” from the positive identification of this value (the steady state of justice) through an intermediary depiction of the corruption of this value (unfairness) toward the contrary value—the direct opposite of the positive value (injustice).
¹¹³
Finally, the story heads toward “the end of the line” where there is “a force of antagonism that's doubly negative … at the limit of the dark powers of human nature.”
¹¹⁴
Specifically, the “negation of the negation” for the value of justice, according to both McKee and to Spence, is a vision of “tyranny.”
¹¹⁵