Storytelling for Lawyers (29 page)

The various techniques employed in these illustrations and in practice are so numerous and diverse and so susceptible to invention that I will not attempt to describe or catalog them all. Briefly, they include strategic choices of: (1) whether to include or omit particular categories and groupings of things (physical objects, states of mind) and specific items in each category; (2) the level of detail and the kind of detailing selected; (3) the description of settings and what perspective to use in descriptions; (4) vocabulary, sentence structure, and paragraph structure; and (5) what information will be conveyed in direct statements versus through implication or presupposition. This is merely a general inventory of techniques that are best presented and understood in context of specific illustrations from nonlegal and legal storytelling practice.

We put “Lay Lady Lay” on the record player, and
“Suzanne.” We went down to Melrose Avenue to see the
Flying Burritos. There was a jasmine vine grown over the
verandah of the big house on Franklin Avenue, and in the
evenings the smell of jasmine came in through all the open
doors and windows. I made bouillabaisse for people who
did not eat meat. I imagined that my own life was simple
and sweet, and sometimes it was, but there were odd
things going on around town. There were rumors. There
were stories. Everything was unmentionable but nothing
was unimaginable. This mystical flirtation with the idea
of “sin”—this sense that it was possible to go “too far,” and
that many people were doing it—was very much with us
in Los Angeles in 1968 and 1969. A demented and seductive
vortical tension was building in the community. The
jitters were setting in. I recall a time when the dogs barked
every night and the moon was always full. On August 9,
1969, I was sitting in the shallow end of my sister-in-law's
swimming pool in Beverly Hills when she received a phone
call from a friend who had just heard about the murders
at Sharon Tate Polanski's house on Cielo Drive. The phone
rang many times during the next hour. These early reports
were garbled and contradictory. One caller would say
hoods, the next would say chains. There were twenty dead,
no, twelve, ten, eighteen. Black masses were imagined, and
bad trips blamed. I remember all of the day's misinformation
very clearly, and I also remember this, and wish I did
not
. I remember that no one was surprised.
¹

Joan Didion's essay “The White Album,” in her collection of essays with the same title, is partially a retelling of the story of the aftermath of the Manson cult murders in Los Angeles in the summer of 1969. It is also a story about the times in which these killings occurred, depicting a strange and unfamiliar environment, a setting in which these horrific and random acts were somehow
predictable even if not logically understandable. To make her story work and to enable the reader to better understand the tabloid-like and horrific murders committed by the Manson cult gang, Didion must evoke, if not re-create, this unstable and dangerous world and draw the reader into it. Didion must make the familiar strange, bringing the physical environment or setting to life to embody qualities that somehow almost invite the characters' horrific actions. That is, the setting calls forth the plot.

The paragraph excerpted above is written in a highly subjective first-person voice that may, initially, seem far removed from the style of the legal storytellers, but there are many lessons that legal storytellers might learn from it. In the paragraph, Didion begins to construct the cultural environment in which the Manson murders take place. The initial sentences select details to convey the crucial sense of time and place. These are not visual details or a composition built on a meticulous and complete description; rather they are a quick composition of sensate fragments lyrically or poetically presented: sounds, tastes, and smells. In contrast to the eye (a more critical and judgmental faculty), hearing and smell are less critical and more associative functions.

The specific references are to popular music of the day; this music is crucial to the theme of the story. The Manson story is about a multiple murder based upon Manson's delusional misinterpretation of prophecy contained in the lyrics of the Beatles' song “Helter Skelter” on
The White Album.
²
Didion selects her representative musical selections carefully; Bob Dylan's “Lay Lady Lay”
³
and Leonard Cohen's “Suzanne”
⁴
are disconcerting because they are romantic and intimate songs, distinct from the horrific nature of the multiple cold-blooded murders at the heart of the story. Likewise, Didion identifies the “smell of jasmine” that enters through “all the open doors and windows,” conveying a mixture of sensuality and openness.

Didion locates herself as a character who imagines that her own life is both “simple and sweet.” The counterpoint to this simplicity is an interior setting of psychic dislocation and disjunctions. There are “rumors” and “stories.” And there is a “mystical flirtation with the idea of ‘sin'—this sense that it was possible to go ‘too far,' and that many people were doing it.” The personal tone manifests aspects of a darker collective psyche: “A demented and seductive vortical dimension was building in the community. The jitters were setting in.” The interior observations color the exterior landscape as if in anticipation of what is coming: “The dogs barked every night and the moon was always full.”

Here, midparagraph, Didion shifts from describing the surfaces to intimations of dark future events that will occur; these are echoes or reverberations from events that have already taken place elsewhere in the city. These events bounce off of, or resonate from, the settings depicted earlier in the paragraph, setting up the story that will follow. First, Didion watches herself sitting passively, vulnerable, “in the shallow end of my sister-in-law's swimming pool in Beverly Hills” when the phone call comes in “about the murders at Sharon Tate Polanski's house on Cielo Drive.” More dark fragments surface in the descriptions and leak out into the world. One caller says, “hoods,” the next “chains.” One says, “twenty dead, no, twelve, ten, eighteen.” There are speculations on motives: “[b]lack masses were imagined, and bad trips blamed.” There is, however, one psychological constant about the violent events that have taken place on this strangely configured and unfamiliar landscape—“that no one was surprised.”

What is it that lawyers may learn from reading a description or depiction of setting so personal and idiosyncratic as Didion's? Didion's poetic techniques seem far removed from the functional descriptions of settings that lawyers tend to employ. That is, rather than building up the world “slowly and completely,” Didion “lights up” the scene “by lightning flashes.”
⁵
Didion depicts her narrative landscape or environment through a composite of sometimes abrupt and unexpected sensate fragments from her personal recollections. This technique draws her reader onto a shared stage, an internal landscape or setting where the reader can more fully experience, rather than comprehend intellectually, the events taking place. This isn't a strategy that is typically attempted by lawyers in legal storytelling. Or is it?

Let's contrast Didion's first-person composite of sensate fragments evoking a dangerous landscape with the depiction of dangerous settings in legal storytelling practice. The judicial opinions excerpted in the casebook in my criminal law course provide a laboratory filled with these places, though these settings and environments are seldom intentionally foregrounded or depicted with Didion's artistic flare.

In
Rusk v. State
,
⁶
defendant Edward Salvatore Rusk successfully appealed from his trial court conviction for rape to the Maryland Court of Special Appeals. The court determined that there was insufficient evidence in the trial record to uphold Rusk's conviction for rape. The majority opinion turns on the legal issue of whether Rusk's “words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it.”
⁷
The majority's version of the story emphasizes ambiguous evidence about
whether Rusk used force or threat of force sufficient to compel the victim to have sex with him.
⁸

The dissenting opinion critiques the majority's story and presents a retelling of its own, reframing events against a different background. In this second telling, a sequence of dangerous places directly influences the plot's unfolding. Here is an excerpt from the dissenting opinion:

Upon this basis, the evidence against appellant must be considered. Judge Thompson recounts most, but not quite all, of the victim's story. The victim I'll call her Pat attended a high school reunion. She had arranged to meet her girlfriend Terry there. The reunion was over at 9:00, and Terry asked Pat to accompany her to Fell's Point. Pat had gone to Fell's Point with Terry on a few prior occasions, explaining in court: “I've never met anybody (there) I've gone out with. I met people in general, talking in conversation, most of the time people that Terry knew, not that I have gone down there, and met people as dates.” She agreed to go, but first called her mother, who was babysitting with Pat's two-year old son, to tell her that she was going with Terry to Fell's Point, and that she would not be home late. It was just after 9:00 when Pat and Terry, in their separate cars, left for Fell's Point, alone.

They went to a place called Helen's and had one drink. They stayed an hour or so and then walked down to another place (where they had another drink), stayed about a half hour there, and went to a third place. Up to this point, Pat conversed only with Terry, and did not strike up any other acquaintanceships. Pat and Terry were standing against a wall when appellant came over and said hello to Terry, who was conversing with someone else at the time. Appellant then began to talk with Pat. They were both separated, they both had young children; and they spoke about those things. Pat said that she had been ready to leave when appellant came on the scene, and that she only talked with him for five or ten minutes. It was then about midnight. Pat had to get up with her baby in the morning and did not want to stay out late.

Terry wasn't ready to leave. As Pat was preparing to go, appellant asked if she would drop him off on her way home. She agreed because she thought he was a friend of Terry's. She told him, however, as they walked to her car, “I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride.” He agreed to that condition.

Pat was completely unfamiliar with appellant's neighborhood. She had no idea where she was. When she pulled up to where appellant said he lived, she put the car in park, but left the engine running. She said to appellant, “Well, here, you know, you are home.” Appellant then asked Pat to come up with him and she refused. He persisted in his request, as did she in her refusal. She told him that even if she wanted to come up, she dared not do so. She was separated and it might cause marital problems for her. Finally, he reached over, turned off the ignition, took her keys, got out of the car, came around to her side, opened the door, and said to her, “Now, will you come up?”

It was at this point that Pat followed appellant to his apartment, and it is at this point that the majority of this Court begins to substitute its judgment for that of the trial court and jury. We know nothing about Pat and appellant. We don't know how big they are, what they look like, what their life experiences have been. We don't know if appellant is larger or smaller than she, stronger or weaker. We don't know what the inflection was in his voice as he dangled her car keys in front of her. We can't tell whether this was in a jocular vein or a truly threatening one. We have no idea what his mannerisms were. The trial judge and the jury could discern some of these things, of course, because they could observe the two people in court and could listen to what they said and how they said it. But all we know is that, between midnight and 1:00 a. m., in a neighborhood that was strange to Pat, appellant took her car keys, demanded that she accompany him, and most assuredly implied that unless she did so, at the very least, she might be stranded.

Now, let us interrupt the tale for a minute and consider the situation. Pat did not honk the horn; she did not scream; she did not try to run away. Why, she was asked. “I was scared. I didn't think at the time what to do.” Later, on cross-examination:

At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn't do any of them.

What, counsel asked, was she afraid of? “Him,” she replied. What was she scared that he was going to do? “Rape me, but I didn't say that. It was the way he looked at me, and said, ‘Come on up, come on up;'
and when he took the keys, I knew that was wrong. I just didn't say, are you going to rape me.”

So Pat accompanied appellant to his apartment. As Judge Thompson points out, appellant left her in his apartment for a few minutes. Although there was evidence of a telephone in the room, Pat said that, at the time, she didn't notice one. When appellant returned, he turned off the light and sat on the bed. Pat was in a chair. She testified: “I asked him if I could leave, that I wanted to go home, and I didn't want to come up. I said, ‘Now, I came up. Can I go?'” Appellant, who, of course, still had her keys, said that he wanted her to stay. He told her to get on the bed with him, and, in fact, took her arms and pulled her on to the bed. He then started to undress her; he removed her blouse and bra and unzipped her pants. At his direction, she removed his clothes. She then said: