Storytelling for Lawyers (25 page)

The scene then shifts to the investigation and trial, and it is here that the story begins. It is told primarily through the competing first-person voices of Atkins and Jones. The reader is presented with selected excerpts from their testimony, and is invited to weigh the testimony and assess Atkins's ability to assist in his capital defense, despite his apparent mental retardation. The shrewder Jones seems far more capable of directing the outcome of the proceedings by casting blame and responsibility on codefendant Atkins.

The initial paragraphs provide more summary of the investigation and proceedings prior to Atkins's trial: Atkins gives a statement the day of his arrest identifying Jones as the triggerman.
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Jones, however, does not give a statement, playing his legal cards more carefully.
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Both are indicted for capital murder, but in Virginia, “only the triggerman could be convicted.”
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A year later Jones tells the authorities that he took part in the robbery and abduction but “blame(s) Atkins for the shooting.”
⁴⁴
Jones pleads guilty to first degree murder, “a plea that made him ineligible for the death penalty—with a requirement that he testify against Atkins.”
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The scene then shifts to the guilt phase of Atkins's trial. The scene is initially presented from Jones's point of view: Jones and Atkins spend the day drinking, smoking marijuana, and watching television.
⁴⁶
They go to a convenience store for beer and then to a liquor store; running low on money, Atkins panhandles.

Here, the two stories of Jones and Atkins diverge. Their voices are transposed into a purposeful sequence, which enables the reader to assess these two characters in relationship to one another. For example, first Jones asserts that Atkins had a gun in his belt.
⁴⁷
Then Atkins speaks and the reader is immediately struck by Atkins's voice; he sounds like Lenny in John Steinbeck's
Of Mice and Men:
“Me and William Jones was on the side of the 7-Eleven and we planning to rob somebody. And William Jones had the gun.”
⁴⁸

On the other hand, Jones's sentences are clear, his grammar is correct, but there seems to be a self-serving calculation and rehearsed manipulation to his responses. In Jones's version of the story, Atkins is the dominant actor and initiator, while Jones is subservient and submissive. For example, when Jones is close enough to hear what is occurring, the robbery is already well under way; and as Jones gets into the car, he realizes “at that point” that he is involved in a robbery.
⁴⁹

In contrast to Jones, Atkins's syntax is convoluted and ungrammatical. His speech draws attention to itself and he confuses the events of the story. It seems apparent that he is unable to present the events in a straight, linear, and self-serving way. Nevertheless, Atkins's version is filled with vivid details, sharp imagistic fragments that seem authentic and arrest the reader's
attention. Atkins's “voice” foregrounds the mental retardation that limits his abilities and, implicitly, proscribes his culpability.

The “Statement of the Case” walks a careful tightrope of language. The writer is careful not to appear; there is minimal authorial intrusion on the dialogue, and no judgments are made about what is being said. Strategically, the brief cannot present the competing stories in such a way that the reader speculates about why Atkins's version wasn't believed at trial. The reader should not feel manipulated or made suspicious or critical by the form of the presentation. Nor should the reader be invited to challenge implicit assertions about Atkins's character and abilities (e.g., whether Atkins is, indeed, so mentally retarded that his condition prevents him from forming the mental state required for the conviction of capital murder).

Like Capote in
In Cold Blood
, the author gets out of the way and lets the characters speak in their own words. The author carefully selects and places the quotes, building scenes into purposeful sequences. There is no commentary on these testimonial excerpts, no shifts of perspective or movements inside the consciousness or thoughts of the speaker (as there were, for example, in both Donovan's and Spence's closing arguments).

The “Statement of the Case” presents two competing versions of the initial armed robbery and the drive to the bank where the murder victim Eric Nesbitt is forced to withdraw another $200 from an ATM. The roles of Jones and Atkins are reversed in the two tellings, as to who is the dominant initiator and who is the passive accomplice.
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The two versions of the murder itself are presented dialogically, alternating the perspectives of Jones and Atkins.

The author presents Jones's version of the killing in an active voice with short, grammatically correct sentences that are readily understood by the reader: “‘Mr. Atkins got out. He directed Mr. Nesbitt out'. Atkins still had the gun. ‘As soon as Mr. Nesbitt stepped out of the vehicle and probably took two steps, the shooting started.'”
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In Jones's version, Jones even visualizes himself as Nesbitt's protector: Jones goes “around the back of the truck, aiming ‘to get the gun away from Mr. Atkins', ‘to stop him from killing Mr. Nesbitt.'”
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Jones's telling seems rehearsed, pat. Jones avoids assuming any major role in the killing, depicting himself as an unwitting accomplice.

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.”
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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.

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.”
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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.
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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.”
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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.”
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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.”
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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 of 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.