Storytelling for Lawyers (26 page)

The third perspective that Gardner identifies is the third-person
objective
, which is “identical to the third-person subjective except that the narrator not only never comments himself but also refrains from entering any character's mind. The result is an ice-cold camera's eye recording. We see events, hear dialogue, observe the setting, and make guesses about what the characters are thinking.”
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An example of this limited third-person perspective is in the portions of the
Riggins
brief cited previously in this chapter, where the reader sits as if a spectator in the jury box observing the image of the zombie-like defendant Riggins. The reader never enters the mind and thoughts of the defendant, who has been incapacitated by the forced ingestion of the drug Mellaril. Likewise, in the initial excerpt from Ellroy's
My Dark Places
, the voice shifts from a first-person perspective (and a rarely employed and compellingly intimate second-person voice that speaks directly to his dead mother) to a cold camera's eye third-person “objective” recording of the events, including the discovery of the corpse of his mother. This shift of perspective from the intimacy of the first-person voice to a cold and limited third-person objective detective's voice is striking and initially disconcerting. It is a dramatic movement emphasized with the framing devices of headings and subheadings structurally akin to a technique that skilled writers of legal briefs also employ. In all of these illustrations, the aesthetic relationship between voice and perspective is apparent and functionally correct for effective storytelling. The choice of perspective implicates the voice and, in turn, the voice controls and suggests the appropriate perspective. Although perspective and voice are fused into one, these are two discrete and complementary stylistic components of the story.

David Lodge observes that “the choice of the point(s) of view from which the story is told is arguably the most important single decision that the [storyteller] has to make, for it fundamentally affects the way readers will respond, emotionally and morally” to the story.
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Is this so? How does perspective
shape or control the narrative? What are the functions and limitations of various perspectives or points of view?

The choice of perspective shapes and predetermines the narrative logic of the story. It is akin to the way the rules of evidence in a courtroom regulate storytelling practice, by predetermining what information comes in and how it may be presented in relationship to and connected with other evidence presented at trial. That is, perspective affects the narrative logic of the story.

For example, an omniscient third-person narrator can reveal information that no person in the story possibly knows—events that occur outside the presence of any individual who might serve as a first-person narrator or beyond the scope of the third-person limited observer. Thus, an omniscient narrator in the excerpt from Norman Mailer's
Executioner's Song
dips into Max Jensen's consciousness and delicately reveals the meaning of the gas station attendant's smile. This is so because an omniscient narrator can describe the thoughts and feelings of everyone in the tale, and can provide insights about an individual's character that the individual may lack the capacity to express. An omniscient narrator can also generalize about the meaning and implications of various events and connect these events to other events or to theory. For example, in the legal argument section of the petitioner's brief in
Atkins
, the voice shifts from a limited to an omniscient third-person perspective, revisiting the story told initially in the “Statement of the Case”; this enables the narrator to generalize about the abilities of mentally retarded individuals to participate effectively in their own defense. The argument describes several cases where an innocent defendant's mental retardation resulted in his wrongful conviction.
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Likewise, an omniscient Gerry Spence looks into the future and previsions the cancer that will befall the young workingmen continuing at Kerr-McGee, fulfilling the dark prophecy of Karen Silkwood. His omniscient perspective enables him to articulate the historical significance of this trial and to call on the jury's heroism to prevent the Cimarron Syndrome, stopping the Beast Kerr-McGee and its voracious appetite for profits and prophets. Spence even previsions that the jurists can change the course of history through their heroic intervention.

The strength of the omniscient perspective is not only to expand upon and explain; it can equally summarize, compact, edit, reconfigure, and reorganize information in a purposeful way that a first-person or third-person limited
narrator can seldom do. For example, it can convey the most content in the fewest words. An omniscient narrator can move in a godlike way that ranges freely across time. For example, Spence moves over time and across space, from the origins of the law of strict liability in England to the popular culture events of the present day in a greedy and corrupt post-Watergate America, and on into a cinematic dream-like vision prefiguring a dark future that will emerge unless the jury can heroically intervene. Neither a first-person nor a limited third-person narrator could make these leaps in time, for the rules of perspective wed these types of narrators to events in a way that compels a different type of systematic unfolding.

On the other hand, the use of a first-person narrator or a third-person limited narrator allows the writer to withhold information or delay its disclosure strategically. This allows for creating the suspense or tension crucial to the construction and propulsion of detective mysteries (which are typically told from first-person or third-person limited perspectives).

Different perspectives endow the reader with different levels of responsibility for making sense of the events of the story and—perhaps of more importance in legal storytelling—for deriving the point of the story; the audience becomes responsible for determining what the outcome of the story should and will be. Especially since law stories are unfinished stories, with an active decision maker charged with writing the ending of the tale, the choice of perspective implicitly entails different roles or responsibilities for the listener or reader in determining the ending of the story and for imposing meaning upon it.

Specifically, an omniscient narrator who speaks with the authority of God can be quite explicit in telling the reader or listener what happened and what to make of the events that occurred and in specifying the desired outcome or judgment. At other times, an omniscient narrator can strongly direct the reader's moral response to a scene and the characters within it by selecting and depicting details and ordering the presentation of information. For example, Mailer observes Gilmore's angry asides as he pulls the trigger of the automatic leveled against Jensen's head. “This one's for me,” Gilmore says, and then again, “this one's for Nicole.” Likewise, instead of generalizing about the helpless and vulnerable attendant, Mailer observes that the attendant is “still trying to smile” as Gilmore orders him to the floor. That is, Mailer carefully
selects and tightly arranges details from an omniscient perspective in such a way as to evoke a specific emotional response in the reader, one that creates no sympathy for Gilmore. Mailer's depiction of the crime is similar to the narrative strategy of many prosecutors; it is designed to viscerally and powerfully reenact the horror of the crime and to point the reader toward a particular ending: one in which Gilmore deservingly faces conviction and the death penalty.

A possible disadvantage of employing an omniscient voice is that it is often too strongly directive. It may disempower listeners-readers and deprive the audience of the excitement and stimulus necessary to figure out what is going on, determine how to interpret events, and, in legal stories, decide how to write the ending that provides closure to the tale. Employing an omniscient perspective may also unintentionally evoke reader or listener skepticism or create unintended effects. Consequently, for example, in his closing argument on behalf of Karen Silkwood, Gerry Spence seems intuitively conscious of the potential for being perceived as overly directive and manipulative. Thus, he shifts from his omniscient perspective, emphasizing that his vision of the future is his own personal dream of what the future will look like if the heroic jury fails to intervene on behalf of Silkwood.

In contrast, first-person and third-person limited narrators typically appear to provide the empirical data from which readers or listeners can determine for themselves the meaning of events and conclude whether X is true or Y is the point. For example, in a story told by a third-person limited narrator (e.g., in portions of Ellroy's
My Dark Places
or in defendant Riggins's brief) the reader is compelled to make sense of and construct the story from the limited and restricted viewpoint (perspective) of the narrator.

The first-person perspective also typically allows the teller to introduce additional evidence and personal information that might otherwise appear extraneous. The reader or listener is thus encouraged to develop a closer personal relationship with the storyteller and is empowered to sort through this information as a collaborator with the narrator. This allows the reader to better understand why the information is included in the story.

Here, for example, is the opening narrative hook from Frank McCourt's memoir,
Angela's Ashes
.
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An intimate voice speaks from the narrator's point of view directly to the reader. The prose has an immediacy; the richness of evocative details fits the style and resonates with readers; there is a deep emotional
attachment between the writer and his material, as pervasive in the prose as the “Irish” sadness that soaks the images like seawater. McCourt begins:

My father and mother should have stayed in New York where they met and married and where I was born. Instead, they returned to Ireland when I was four, my brother, Malachy, three, the twins, Oliver and Eugene, barely one, and my sister, Margaret, dead and gone.

When I look back on my childhood I wonder how I survived at all. It was, of course, a miserable childhood: the happy childhood is hardly worth your while. Worse than the ordinary miserable childhood is the miserable Irish childhood, and worse yet is the miserable Irish Catholic childhood.

People everywhere brag and whimper about the woes of their early years, but nothing can compare with the Irish version: the poverty; the shiftless loquacious alcoholic father; the pious defeated mother moaning by the fire; pompous priests; bullying schoolmasters; the English and the terrible things they did to us for eight hundred long years.

Above all—we were wet.
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McCourt's voice is cast in a first-person perspective that invites the reader to sort through the past with the narrator as a collaborator to determine the meanings of the images and to travel with him on an evocative journey. This is akin to the strategy Jeremiah Donovan employs when he shifts from a third-person limited perspective directly into the first-person consciousness of Louie Failla, where we are invited to share emotionally in Louie's dilemma. Also similar is Truman Capote's shift to a first-person perspective by employing the recollections of the schoolteacher who travels with the sheriff to discover the bodies of the Clutter family. Through these recollections the schoolteacher returns via the narrative as if attempting to retrieve the emotional meaning of the ministory, telling the story for himself as well as for the reader.

But aren't first-person voices and the first-person perspective disfavored in formal legal storytelling? When a first-year law student prefaces an answer to a question with “I think” or “I believe,” isn't the characteristic response of law professors, “Who cares what you believe Mr./Ms.——?” Isn't it part of the imperative of becoming a lawyer to eliminate reliance on the first-person voice? Yes and no. Legal storytellers often purport or appear to assume a neutral third-person voice, an objective, dispassionate, and emotionless stance.
As I have analyzed in the trial arguments of Spence and Donovan and in the dialogue in the petitioner's “Statement of the Case” in the successful
Atkins
brief, however, attorneys often incorporate intentionally strong first-person voices into their arguments.

For a final legal example, the petitioner's brief in [Terry]
Williams v. Taylor
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argues that defendant's trial counsel provided ineffective assistance in failing to investigate and present evidence of defendant's childhood environment. As a result of the failure to introduce relevant mitigation evidence at sentencing, defendant Terry Williams was sentenced to death. Initially, the petitioner's brief speaks of this omitted evidence abstractly, of Williams's “traumatic childhood,” and a mother who “drank herself into a stupor almost daily while pregnant with him.”
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By themselves, these abstractions have little impact on the reader. However, there is additional evidence included in Terry Williams's “uncontroverted juvenile records.”
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Rather than merely providing a summary or paraphrase of these records, the author excerpts evidence in the form of first-person notes and the firsthand observations of a social worker who had visited the defendant's family home many years earlier, and who was charged with protecting the children on behalf of the state. The social worker's report of the conditions of Williams's family home is framed in a double-indented block quotation. The social worker's testimonial account vividly captures the quality of Terry Williams's childhood, bringing to life “the sordid conditions of Williams' home” for the reader.
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