Storytelling for Lawyers (36 page)

One factor that establishes the pacing of the plot is whether a particular passage is—employing terminology presented in
chapter 6
, on style—presented as
scene
or
summary
or even, occasionally, in a
stretch
. In a scene the discourse time is roughly equivalent to story time. The style chapter presents illustrations of scenes from nonfiction and legal stories. For example, Norman Mailer's depiction of Gary Gilmore's murder of Max Jensen is a scene. Likewise, Jeremiah Donovan's recounting of the dialogue between Louie Failla and Tito Morales in Failla's car is another. In the Petitioner's brief in
Atkins
the pacing deliberatively slows down as Atkins attempts to visualize images and recounts in twisted dialogue the voices of the various participants in a murder.

In summary, however, the passage of time is compressed; story time significantly exceeds discourse time and events are often glossed over. That is, summary unfolds quickly, diminishing the importance of events within the narrative. For example, the initial paragraphs of the “Statement of the Case” in the petitioner's brief in
Atkins
provides a summary of the robbery of and
murder of Eric Nesbitt by Atkins and Jones: “He was robbed of the money in his wallet, driven in his own truck to an ATM and required to withdraw more money, then driven eighteen miles to York County, where he was shot eight times and killed with a semi-automatic handgun.” The particularities of the events in time are swallowed in a quick gulp of time, although the story later returns to alternative versions of these events revisited in scenes.

Likewise, in Donovan's closing argument on behalf of Louie Failla, Donovan speeds up narrative time in summaries that gloss over many months of time, while at other points he slows down time to meticulously reconstruct specific dialogue between Failla and various mobsters plotting the murder of Tito Morales in fully developed scenes.

Finally, in stretch the storytelling is slowed down in time further so that discourse time significantly exceeds story time. Again, Donovan makes good use of stretch when depicting crucial conversations between Failla and the mobsters plotting the murder of Tito Morales. He employs visual cartoons to detail the dialogue and then provides a second set of cartoons that reveal and explore Failla's internal thought processes and complex unspoken motivations; translating Failla's thoughts, and the subtext of the scenes, into supplementary dialogue.

Often the line between stretch, scene, and summary is not entirely clear. For example, in the excerpt from Capote's
In Cold Blood
, Hendricks, the schoolteacher-witness, slows down his recounting of scenes so that he, and the reader, can begin to more fully experience the emotional complexity of his own reactions to the images that are uncovered as he moves room to room in his memory. Thus the pacing of interconnected scenes is gradually slowed from summary to scene and into stretch as Hendricks moves through the rooms of the Clutter farm, and discovers the victims in this Gothic horror story. The important point here is to understand that there is a clear distinction between scene, summary, and stretch, and establishing a purposeful rhythm between these three discrete modes is a concern of narrative time, just as it is a concern of style.

A closely related concept from narratology is rhythm. The concept, according to Bal, is as striking as it is elusive. There can be stylistic rhythms created in the construction of sentences in writing, or in the use of recurring patterns in speech. Likewise, there can be more encompassing structural rhythms suggested by intentional patterns in the construction and placement of scenes, summaries, and ellipses in narrative time. Filmmakers, for example, often refer to rhythm or tempo, analyzing the cinematic beats of images, which are built into scenes, and then into sequences of scenes. Rhythm is equally relevant for creating underlying patterns in written and spoken stories. Prince defines
rhythm as “[a] recurrent pattern in narrative
speed
and, more generally, any pattern, of repetition with variations. The most common rhythm in classical narrative results from the alteration of scene and summary.” In legal storytelling, the classical rhythm is also between the alteration of scene and summary; unlike literary storytelling the emphasis typically is not on the presentation of scenes, but rather on the use of summaries. This does not diminish the importance of scenes employed. Indeed, as we have explored in my analysis of legal examples in previous chapters, the reverse is typically true: because there are fewer scenes employed in legal storytelling practices, they are often of crucial importance.

People aren't supposed to look back. I'm certainly not going
to do it anymore
.

I've finished my war book now. The next one I write is going
to be fun
.

This one is a failure, and had to be, since it was written by
a pillar of salt. It begins like this:

Listen:
Billy Pilgrim has come unstuck in time.
It ends like this:
Poo-tee-wee?
²⁰

The first chapter on plotting identified two crucial points set “in time” establishing the narrative framework of the story—the beginning and the ending. Beginnings and endings are interconnected. The choice of the opening typically anticipates the ending of the story. So much so that the novelist and writing teacher John Gardner, as noted there, advises aspiring novelists and creative writers to construct their stories backward from their endings to determine what their beginnings should be. Likewise, the clinician's admonition to the legal storyteller is to always know where the narrative is headed before the journey of the story begins, always keeping in mind the point and purpose of the story in addition to the narrative destination that is desired as the outcome of the tale. This goal, however, is difficult for many legal storytellers to achieve because the story is typically incomplete. While the creative writer or popular storyteller is in control of the story, and writes her ending, the legal storyteller typically does not. It is up to another, a jury or a judge in
litigation, to write the ending of the tale. Nevertheless, legal storytellers, such as Jeremiah Donovan or Gerry Spence, or the authors of the various briefs identified in this book, all tell their stories in ways that strongly anticipate, even when not explicitly providing, proposed endings. Further, these endings are implicit from the beginning.

For example, in Donovan's closing argument on behalf of Louie Failla, the proposed resolution is a return to the anterior steady state where Failla's motives are finally understood and he is reunited with his real family (his wife, daughter, grandchild, and even Tito Morales, who now awaits Louie in prison) and, perhaps, with his adopted mob family as well (who now understand the reason for his storytelling, to avoid the commands of the mob boss Billy Grasso). Spence's closing argument in
Silkwood
anticipates a transformed steady state—the ending foresees a moment when the jury punishes the Beast Kerr-McGee and compels it to rectify its corporate behavior and heed the warning of the prophet Karen Silkwood. By imposing this ending onto the tale the jury prevents an impending environmental disaster that looms ahead.

Simply put, in legal storytelling just as in literary and popular storytelling, it is important to find a way to tell stories in an order that will make the story most persuasive and effective. As Anthony Amsterdam observes when teaching capital defenders the art of narrative persuasion, the story must develop narrative “clout” often without regard to chronology of the events depicted within the story. But unlike Vonnegut's Billy Pilgrim in
Slaughterhouse Five
, the story and the storyteller cannot draw attention to these intentional departures from chronology. Recall that Billy Pilgrim was institutionalized for calling direct attention to what he was doing in his departures from chronology and travels in time. Likewise, in legal storytelling, there are grave dangers in obvious manipulations of time as it is twisted into story. Artfulness and effectiveness is typically in understatement, in employing time-travel devices that conceal, rather than reveal, the underlying movements made within time, the intentionality of the storyteller, and the purpose of the narrative. All decision makers, especially skeptical judges, may well perceive any obvious departures from the supposed realism implicit in a pure linear chronology as subterfuge, as covering holes in the plot of the story, or as simply the gimmicks of a narrative trickster who cannot be trusted.

Nevertheless, it is also true that
all
stories depart from chronology, and reshape narrative time in service of the plot regardless of whether the
storyteller is aware of these maneuverings. Occasionally movies, such as
High Noon
, may attempt to employ real time as an explicit time framework for narrative. This is, of course, the exception to the rule. And, even here, there are backstories, and ministories, and artful time shifts embedded in the narrative. Legal stories, whether written or oral, can never match against, or be truly set in, real time. The stories that lawyers tell are told within the artifice of story time. And so it is vital to propel intentional narrative time travel, although such flights may often seem dangerous and unconventional. Why do effective legal storytellers so often risk the departure from linearity and simple and rigid chronology? Here is a partial preflight checklist of strategic reasons for time travel in legal storytelling practice:
²¹

• to create the kind of world in which your plot action will seem plausible,
before
you relate any pieces of the plot action that may be received skeptically;

• to depict features of that world that will drive your plot action or mold one of your characters,
before
you show their effects;

• to provide whatever framing your story needs before it gets going;

• to provide whatever foreshadowing your story needs, at appropriate junctures;

• to create and maintain suspense;

• to implement the basic narrative structure underlying your story;

• to effectuate the particular sequence that your plot requires;

• to provide information about your players that will build up a portrait of their characters,
before
they act in ways that you want interpreted in light of their character;

• to reinforce your plot or your players' characters or the ordering principles of the world of your story with ministories at appropriate junctures;

• to keep any ministories or subparts of the story properly subordinated to the larger story; and

• to serve any other function that your particular story may require.

In this chapter, I have identified several of the narrative techniques and devices artful advocates employ to move about purposefully in time within a story, and provided illustrations of the theory in action from legal and literary examples presented in earlier chapters of this book. These brief illustrations provide merely the starting places for deeper explorations of narrative time travel in legal storytelling practice.

BEGINNINGS AND ENDINGS

To avoid all display of art itself requires consummate art
.

—QUINTILIAN, I
NSTTTUTIO
O
RATIO

The F.B.I. intercepted a mob initiation ceremony.… It was
responsorial, much like the old Latin mass, “io voglio… io
voglio… entrare… entrare… in questo orginazione… in
questo orginazione.” It sounded like a Latin prayer. When
they burned the picture of the saint you could hear the
crackling of the fire on tape. I mean, this ceremony had been
handed down from sixteenth century Sicily so you expect it
to be dramatic. However, what was equally dramatic was
all the activity surrounding it. Afterwards, after all the
cleaning up and goodbyes, you hear the steps of the final
participant going to the door, the door squeaks open, and
then, to the empty room, you hear someone say, “No one
will ever know what went on here today—except for us and
the fucking Holy Ghost.”

—JEREMIAH P. DONOVAN, “R
EMARKS
A
BOUT
L
AWYERS AS
S
TORYTELLERS
,”

LET ME END
this book at the beginning: more than twenty years ago, I accepted an invitation from Anthony G. Amsterdam, my former boss and then the clinical director at New York University School of Law, to attend and participate in the recently convened Lawyering Theory Colloquium. The
colloquium was composed of upper-level students, clinical practitioners, lawyering skills teachers, and visiting academics. We met weekly to explore narrative theory, metaphor, language theory, and rhetoric, and to better understand how these often highly theoretical academic concerns might contribute to teaching the work that lawyers do. Indeed, there was a shared belief that these interdisciplinary academic subjects might enliven and transform law school pedagogy. The colloquium was presided over by Tony Amsterdam, Jerome Bruner, and Peggy Cooper Davis. Amsterdam is an inspirational teacher, the father of clinical legal education, a recipient of a MacArthur Foundation genius grant, and the almost-mythical attorney who argued
Furman
successfully before the U.S. Supreme Court. Bruner is the pioneering educational psychologist and a towering intellectual figure of the twentieth century in several disciplines, including educational psychology and narrative studies. Recently, the School of Education at Oxford University was named in his honor. And Peggy Cooper Davis is a highly regarded clinician, a former judge, a nationally recognized legal historian, and a first-rate narrative theorist. Of course, their respective intellectual contributions and stature cannot be reduced to a few simple sentences.