Storytelling for Lawyers (23 page)

For example, here is how some of these same techniques are employed in a postconviction defense brief in
Riggins v. Nevada
.
¹⁷
The story in the “Statement of the Case” begins with the visual depiction of the defendant, heavily drugged and unable to participate effectively in his own defense at trial. The legal issue turns on whether the defendant was denied due process when he was placed on trial only after being “forced to ingest high dosages of the antipsychotic drug Mellaril”
¹⁸
over the objections of his attorney. The images and concrete details are embodied in a strong and hard-boiled detective voice, akin to Ellroy's, that stays primarily on the surface of events. Although it is hard-edged and coldly objective, the voice conveys a strong sense of emotional involvement with the material, so that the reader perceives and responds with a shared yet unstated moral outrage about the injustice of the defendant's legal predicament. How does the defendant's brief accomplish its purpose? The stylistic voice matches the narrative and circles repetitively back to a crucial core image (“The Zombie” in the petitioner's brief is akin to “The Redhead”) that is the emotional pivot of the story.

The evocative “Statement of the Case” begins:

Petitioner David E. Riggins is presently under sentence of death after he was so heavily drugged by the State of Nevada that he appeared like a zombie throughout his trial. Despite Riggins' objection while competent to receiving medication during his trial, and despite substantial evidence that Riggins would have been competent to stand trial without medication, the State of Nevada forced Riggins to ingest extremely high dosages of the antipsychotic drug Mellaril each day of his trial. The medication sedated Riggins; it made him appear apathetic, uncaring, and without remorse. Riggins was therefore prevented from presenting the best evidence he had—his unmedicated demeanor—to support his only defense—that he was legally insane at the time of his crime.
¹⁹

After compressing the legal particulars of the case, and providing the backstory of Riggins's illness with a vivid and straightforward explanation of the psychiatric diagnosis, the writer presents an equally brief and clear description
of the effects of the antipsychotic drug Mellaril. The writer then returns to the image of “The Zombie”; the repetition of the image does not appear calculated and the voice does not call attention to itself, or explicitly reveal the writer's beliefs. Instead the voice stays on the surface of events, emphasizing repetitively the images of Riggins after he had been force-fed Mellaril, and the voice presents the responses of various actors in a style similar to the hardboiled voice of a Raymond Chandler novel:

Accordingly, Riggins was forced to ingest 800 milligrams of Mellaril each day of his trial, a dosage every psychiatrist considered excessive. Dr. Jurasky … described this dosage as enough to “tranquilize an elephant.”… It was no surprise, therefore, that Riggins was seen closing his eyes during his hearing on a motion to terminate the medication and had a zombie-like appearance throughout his trial.

Riggins' sole defense was insanity, and he took the stand to prove this. [The writer then presents a vivid selection of Riggins's delusions from his testimony that allegedly provided the reasons why he was compelled to kill the victim.] The state exploited Riggins' drug-induced demeanor during his trial, and in doing so directly contradicted its pre-trial representations to the court.
²⁰

The writer explains how the state's expert witnesses and closing argument focused on Riggins's demeanor at trial, a condition the state had authorized, although it had promised not to do so, by quoting from the prosecutor's closing argument: “Does Riggins express sorrow, no. Does he express remorse, ‘no'.”
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And then the brief returns to the image of the zombie, observing how Riggins's Mellaril-induced demeanor undermined mitigation arguments based on “extreme emotional disturbance” and “remorse” at sentencing. Although the voice stays on the surface of images, it dips momentarily, effectively, and almost unnoticeably into the consciousness of Riggins to observe that he wanted to express grief and sorrow, but was prevented by the drug from doing so:

Rather than looking like the emotionally disturbed individual that he is, the heavily sedated Riggins sat calmly and impassively through the sentencing hearing. Although he wanted to express the grief and sorrow he felt for killing Wade [the victim], the medication prevented him from doing so, and, in fact, prevented him from reading a statement he had prepared expressing these sentiments.
²²

The brief initially describes the various ways the state may permissibly “advance a compelling interest to restrict a defendant's fundamental right to testify” by the “least restrictive [alternative] available,” including the least acceptable alternative, “binding and gagging the witness.”
²³
And then, in the body of the argument, the brief compares the zombie-like Riggins to the witness “bound and shackled” by the forced ingestion of Mellaril and made to “effectively present evidence against himself by compelling him to appear unremorseful, apathetic and sane.”
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Stylistically, this story is translated into a legal argument that is equally hard-boiled, flat, and coldly objective.

Is this the only voice available or employed in criminal defense brief writing? Of course not. It is but one of a wide range of possible styles available to legal storytellers; but it is certainly one that fits well with the subject matter and with the legal argument.

Stories, whether in law or creative nonfiction, are constructed through a rhythmic alternation and carefully structured interplay between “scenes” and “summaries.” Just as in commercial films, scenes are constructed by employing visual details (images), dialogue (quotations), and depiction of events (action).
²⁵
Indeed, the fundamental building block in film is the scene; scenes are constructed from shots that then, in turn, are built into compositions or sequences of scenes and then into acts. There is, obviously, little if any authorial summary in a movie. In this way, film is a pure form of “showing.”

Summary, however, is different; language summarizes and encapsulates events, compressing images. Consequently, events are typically compressed as well, and specific scenes are not called forth readily in the mind of the listener or reader.

Another way of distinguishing between scenes and summaries is in terms of narrative time (a separate chapter in this book). In a scene the discourse time is roughly equivalent to story time—whether the scene is presented in dialogue or as a straightforward account of moment-to-moment visual action. In contrast, in a summary, the story time significantly exceeds the discourse time; that is, the pacing of events is compressed, and images and individual events are seldom evoked with particularity.
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In a scene, events are typically clearly displayed, formed into visual images. In summary, however, particularity is lost or blurred as the events are sped up over time.

Thus, for example, in his closing argument on behalf of Louis Failla, Jeremiah Donovan often speeds up narrative time in summaries that gloss over many months of time, while at other points he meticulously reconstructs specific conversations between Failla and various mobsters while plotting the murder of Tito Morales. These conversations between Failla and Morales fit into carefully constructed sequences of scenes that focus the listener's attention on crucial evidence presented in the trial, providing an alternative interpretation of the meaning of Louie's spoken words in the context of a cinematic and visual narrative landscape.

There is also a third type of movement in written and oral storytelling that narrative theorists call
stretch
. Here, the storytelling is typically slowed down so that the discourse time significantly exceeds story time. The meticulous
showing
or the extended
telling
accompanying this movement exaggerates the importance of this piece of the story; the pace of the telling clues the reader into the relative importance of specific sections of the story. The slow motion of a stretch is not frequently employed in legal storytelling, except on occasion to revisit a crucial event and dissect and elaborate on the moments within it. One famous and illustrative use of stretch within a legal story was the slow-motion replay of the videotape in the Rodney King trial,
²⁷
supported with explanation and commentary on the individual frames of the sequence. Another illustration of the use of stretch is, of course, Jeremiah Donovan's extended revisitation of portions from the transcripts of Louie Failla's audiotaped conversations plotting the murder of Tito Morales; Donovan carefully supplements the dialogue with strategic first-person commentary, revealing Louie's internal thought processes.

All stories, including legal stories, establish rhythmic interplay or pacing by alternating scene and summary. Legal briefs and written legal stories typically emphasize summaries over scenes. This is because there is often a great deal of information to convey to the reader and, although much of this information is important, it is not sufficiently important to warrant an entire scene. Also, of course, there are limitations on space, time, and the willingness of the audience to engage with the story. Nevertheless, scenes are extremely significant in all legal storytelling practices, just as they are crucial in fiction and creative nonfiction: we are drawn into the story not through flat, abstract summaries but rather through the detailed depiction of events. Thus, David Lodge admonishes young writers that overuse of authorial summary is not only deadening, it may also be “unreadable.”
²⁸
Nevertheless, summary is important structurally because “it can, for instance, accelerate the tempo of
a narrative, hurrying us through events which would be uninteresting, or
too
interesting—therefore distracting, if lingered over.”
²⁹

As a teacher of legal writing and a clinical supervisor, I have observed that many legal briefs (written both by students and experienced practitioners) are often unreadable because the writer simply does not know how to construct or employ appropriate and strategic
scenes
to supplement
summaries;
that is, the legal writer does not know when it is appropriate to use “showing” instead of “telling.” It is as if the legal storyteller is often afraid of constructing scenes or of crossing over intentionally into purely narrative territory. Of course, summary has its uses, and it is important structurally; no brief or even a statement of a case is ever exclusively a composition of scenes, akin to a movie. Typically, because of page constraints and the average attention span of a judicial reader, the balance in written legal storytelling tips toward using more summary and less construction of scenes.

Norman Mailer is masterful in striking a balance between
showing
and
telling;
he knows how to develop a scene, where to begin it and how to end it while working within a carefully structured narrative framework. In Mailer's
Executioner's Song
we find a brief, understated, and self-contained scene describing the murder of Max Jensen by Gary Gilmore.
³⁰

Gary walked around the corner from where the truck was parked and went into a Sinclair service station. It was now deserted. There was only one man present, the attendant. He was a pleasant-looking serious young man with broad jaws and broad shoulders. He had a clean straight part in his hair. His jawbones were slightly farther apart than his ears. On the chest of his overalls was pinned a name-plate, MAX JENSEN. He asked, “Can I help you?”

Gilmore brought out the .22 Browning Automatic and told Jensen to empty his pockets. So soon as Gilmore had pocketed the cash, he picked up the coin changer in his free hand and said, “Go to the bathroom.” Right after they passed through the bathroom door, Gilmore said, “Get down.” The floor was clean. Jensen must have cleaned it in the last fifteen minutes. He was trying to smile as he lay down on the floor. Gilmore said, “Put your arms under your body.” Jensen got into position with his hands under his stomach. He was still trying to smile.

It was a bathroom with green tiles that came to the height of your chest, and tan-painted walls. The floor, six feet by eight feet, was laid in dull gray tiles. A rack for paper towels on the wall had Towl Saver printed on it. The toilet had a split seat. An overhead light was in the wall.

Gilmore brought the automatic to Jensen's head. “This one is for me,” he said, and fired.

“This one is for Nicole,” he said, and fired again. The body reacted each time.

He stood up. There was a lot of blood. It spread across the floor at a surprising rate. Some of it got onto the bottom of his pants.

He walked out of the rest room with the bills in his pocket, and the coin changer in his hand, walked by the big Coke machine and the phone on the wall, walked out of this real clean gas station.
³¹

Mailer takes great pains to show the murder rather than tell about it; likewise, he avoids “fancy” language that would diminish the impact of the images and the understated scene on the reader. He allows his readers to form their own judgments. But there are apparent narrative strategies in Mailer's use of a minimalist description that captures the action as if through the coldly objective eye of a camera.

In the first paragraph Mailer sets the stage for his movie-like scene: Gary Gilmore comes on stage and meets “the attendant” who is described initially with neutral adjectives as an everyman (as a “pleasant-looking serious young man”). Then the somewhat blurry description emphasizes selected particularized physical details of the attendant's appearance (e.g., the “clean straight part in his hair,” the “jawbones … slightly farther apart than his ears,” even his nameplate—“MAX JENSEN”). Max Jensen innocently offers to assist Gilmore. Abruptly, the robbery begins; Gilmore orders Jensen into the bathroom. Mailer emphasizes the cleanliness and order of the bathroom. This description, in turn, provides the setup for the ending of the scene, and Jensen is ordered to “get down” on the floor; all the while Jensen is “trying to smile.”