Storytelling for Lawyers (38 page)

These stories, and the other popular and law stories excerpted in this book, are not models or recipes in a storytelling cookbook. They serve as illustrations, and suggest lessons, themes, and techniques that can be borrowed or recycled for use in future cases.

The stories that lawyers tell are like, yet unlike, the stories told by other storytellers, including journalists, creative writers, and moviemakers. Lawyers' voices are different. There are often explicit constraints on form and substance. Likewise, there are procedural and evidentiary rules that shape how law stories are told. Themes are determined by legal theories and often these theories are, in turn, shaped by the underlying stories. And, of course, the stories told by attorneys must be factually meticulous and truthful; lawyers are ethical realists. A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the
coda that gives the story its meaning, and determine the outcome. And so, in a book on legal storytelling by a lawyer, it seems fitting that there is no explicit ending or single conclusion, no final lesson or outcome or point of departure. My purpose in this primer is merely to provide a starting point for better understanding the art of legal storytelling practice. I hope that readers have found my initial exploration of this subject of some value, and that the theory and illustrations stimulate and encourage legal storytelling creativity and inform the highly ethical storytelling work lawyers do.

1
. Kenneth Burke,
A Grammar of Motives
(New York: Prentice-Hall, 1945).

1
. 359 Mass. 319, 268 N.E.2d 860 (1971).

2
. Ibid., 320–21, 268 N.E.2d at 860–61.

3
. Ibid., 323, 268 N.E.2d at 862.

4
. Ibid.

5
. Peter Brooks,
Reading for the Plot: Design and Intention in Narrative
(Cambridge, MA: Harvard University Press, 1992), 11–12.

6
. David Lodge,
The Art of Fiction: Illustrated from Classic and Modern Texts
(New York: Penguin Books, 1992), 216.

7
. Anthony G. Amsterdam and Jerome Bruner,
Minding the Law
(Cambridge, MA: Harvard University Press, 2002), 113–14.

8
. Lodge,
The Art of Fiction
, 216.

9
. Ibid., 217.

10
. Ibid.

11
. The technical term from narrative theory for such a reversal is “peripeteia.” For those interested, a dictionary of narratology defines peripety as “[t]he inversion (reversal) from one state of affairs to its opposite. For example, an action seems destined for success but suddenly moves towards failure, or vice versa. According to Aristotle, peripety (peripeteia) is, along with recognition (anagnorisis), the most potent means of ensuring the tragic effect.” Gerald Prince,
Dictionary of Narratology
, rev. ed. (Lincoln: University of Nebraska Press, 2003), 71.

12
. Amsterdam and Bruner,
Minding the Law
, 113–14.

13
. John Gardner,
The Art of Fiction: Notes on Craft for Young Writers
(New York: Vintage Books, 1985), 177.

14
.
Shorter Oxford English Dictionary
, 5th ed., s.v. “theme” (New York: Oxford University Press, 1993).

15
. Ibid. (emphasis added).

16
. Philip N. Meyer, “Why a Jury Trial Is More Like a Movie Than a Novel,”
Journal of Law and Society
28 (2001), 133.

17
. Ibid.

18
. Gardner,
Art of Fiction
, 70.

19
. Joel Seidemann,
In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years
(New York: Regan Books, 2004), 56.

20
. Northrop Frye,
Anatomy of Criticism: Four Essays
(Princeton, NJ: Princeton University Press, 1971), 47.

21
. Michael Roemer,
Telling Stories: Postmodernism and the Invalidation of Traditional Narrative
(Lanham, MD: Rowman & Littlefield, 1995), 280–81.

22
. Francois Truffaut,
Hitchcock
(New York: Simon & Schuster, 1967), 141, quoted in Roemer,
Telling Stories
, 282.

23
. For examples of epic tales with battles between heroes and villains, see Ananda K. Coomaraswamy and Sister Nivedita,
Myths of the Hindus and Buddhists
(New York: Dover, 1967), 6; Kevin Crossley-Holland,
The Norse Myths
(New York: Pantheon Books, 1980); William Peter Blatty,
The Exorcist
(New York: Harper Torch, 1994);
The Exorcist
, directed by William Friedkin (1973);
Alien
, directed by Ridley Scott (1979).

24
. See George Lakoff and Mark Johnson,
Metaphors We Live By
(Chicago: University of Chicago Press, 1980), 83–85; Amsterdam and Bruner,
Minding the Law
, 20–53.

25
. Literary theorists and critics use the term “intertextuality” to refer to the way in which a story interacts with other stories that are familiar to the reader or audience—essentially, the resonances of other well-known tales that a story awakens and the deepening and complication of the story that results from those resonances. See Prince,
Dictionary of Narratology
, 46.

26
. Roemer,
Telling Stories
, 276.

27
. Ibid.

28
. In narratology, the term “instantiation” captures how shared understandings of “how the world works” order events into narrative, and—like
causality, story logic
, and
genre
—serve as another constraint on a plot shaping the narrative and determining narrative outcomes. Such beliefs may include, for example, simply that “good will vanquish evil in the end” or that “no bad deed finally goes unpunished” or that “redemption is a possibility for us all in the end when we accept responsibility for what we have done and seek forgiveness with the fullness of our hearts,” etc.

29
. Peter Brooks observes, “an infraction of order … [is] preeminently what it takes to incite narrative into existence.” Brooks,
Reading for the Plot
, 26.

1
. Michael Lief, H. Mitchell Caldwell, and Benjamin Bycel,
Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law
(New York: Simon & Schuster, 1998), 127–57.

2
.
Silkwood
, directed by Mike Nichols (1983).

3
. This “backstory” in this section compresses and simplifies the explanation presented in Lief, Caldwell, and Bycel's
Ladies and Gentlemen of the Jury
, 119–22. Quotations from Spence's closing argument are taken from the text of the argument as presented by Lief, Caldwell, and Bycel, 127–57.

4
. Ibid., 127–28.

5
. Ibid., 128.

6
. Anthony G. Amsterdam and Randy Hertz, “An Analysis of Closing Arguments to a Jury,”
New York Law School Law Review
37 (1992), 55, 61.

7
. Gerry Spence,
Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time
(New York: St. Martin's Griffin, 2005), 224–25.

8
. See Peter C. Lagarias,
Effective Closing Argument
(Newark, NJ: Lexis, 1999), 362.

9
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 129.

10
. Ibid., 144.

11
. Ibid., 130.

12
. Gerry Spence,
How to Argue and Win Every Time
(New York: St. Martin's Press, 1995), 126.

13
. Syd Field,
Four Screenplays: Studies in the American Screenplay
(New York: St. Martin's Press, 1995), 126.

14
. Ibid., 240–41.

15
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 140.

16
. Ibid., 156.

17
. Gerry Spence, remarks, NACDL Conference on “Lawyering on the Edge” (Chicago, November 3–6, 1999). See also Gerry L. Spence, “How to Make a Complex Case Come Alive for a Jury,”
ABA Journal
, April 1986, 65.

18
. Spence, “Lawyer on the Edge.”

19
. Amsterdam and Hertz, “Analysis of Closing Arguments,” 64–75.

20
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 130.

21
. Ibid., 131.

22
. Spence, “Lawyering on the Edge.”

23
. John H. Blume, Sheri L. Johnson, and Emily C. Paavola, “Every Juror Wants a Story: Narrative Relevance, Third Party Guilt and the Right to Present a Defense,”
American Criminal Law Review
44 (2007), 1090.

24
. Jemme Bruner,
Beyond the Information Given: Studies in the Psychology of Knowing
(New York: Norton, 1973).

25
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 130.

26
. Ibid., 131.

27
. Ibid., 138.

28
. Ibid., 156.

29
. Ibid.

30
. Ibid., 142.

31
. Ibid.

32
. Truffaut,
Hitchcock
, 141.

33
. Spence,
How to Argue
, 269.

34
. Ibid.

35
. Ibid., 271.

36
. Michael Roemer,
Telling Stories: Postmodernism and the Invalidation of Traditional Narrative
(Lanham, MD: Rowman & Littlefield, 1995), 282–83.

37
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 131.

38
. Ibid., 137.

39
. Letter of defense counsel William Paul to Peter Langarias in Langarias,
Effective Closing Argument
, 466.

40
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 131–32 (bracketed term in original).

41
. Ibid., 132–33 (bracketed term in original).

42
. Ibid., 133, 135.

43
. Ibid., 135.

44
. Ibid., 135–36.

45
. Ibid., 137.

46
. Ibid., 138–39 (bracketed terms in original).

47
. Ibid., 139.

48
. Ibid., 139–40.

49
. Ibid., 140.

50
. Ibid.

51
. Ibid. (bracketed term in original).

52
. Ibid., 140–41.

53
. Ibid.

54
. Ibid., 141.

55
. Ibid.

56
. Ibid.,

57
. Ibid., 141–42.

58
. Ibid., 142.

59
. Ibid.

60
. Ibid., 143.

61
. Ibid.

62
. Ibid., 142.

63
. Ibid., 143.

64
. Ibid., 144.

65
. Ibid.

66
. Ibid., 145 (emphasis added).

67
. Ibid. (emphasis added).

68
. Ibid. (emphasis added).

69
. Ibid. (emphasis added).

70
. Ibid., 145–46.

71
. Ibid., 146.

72
. Ibid.

73
. Ibid., 149.

74
. Ibid., 150.

75
. Ibid., 152–53.

76
. Ibid., 153.

77
. Ibid.

78
. Ibid., 154.

79
. Ibid., 154–55.

80
. Ibid., 156.

81
. Ibid.

82
. Ibid.

83
. Ibid.

84
. Ibid.

85
. Ibid.

86
. Ibid.

87
. Ibid., 156–57.

88
. Quotation in section head from Roemer,
Telling Stories
, 3.

89
. See Peter Brooks and Paul Gewirtz,
Law's Stories: Narrative and Rhetoric in the Law
(New Haven, CT: Yale University Press, 1996), 103; see also John Gardner,
The Art of Fiction: Notes on Craft for Young Writers
(New York: Vintage Books, 1985), 165.

90
. Lief, Caldwell, and Bycel,
Ladies and Gentlemen
, 128.

91
. Ibid., 156.

92
. Ibid., 131.

93
. Ibid., 138, 140.

94
. David Lodge,
The Art of Fiction: Illustrated from Classic and Modern Texts
(New York: Penguin Books, 1992), 3–4. An immaterial portion of Lodge's quote from Austen is omitted.

95
. Jane Austen,
Emma
, quoted in Lodge,
Art of Fiction
, 3–4.

96
. Ford Madox Ford,
The Good Soldier
, quoted in Lodge,
Art of Fiction
, 5.

97
. Lodge,
Art of Fiction
, 5.

98
. See Ronald B. Tobias,
20 Master Plots and How to Build Them
(Cincinnati: F&W Publications, 2003), 161.

99
. Robert McKee,
Story: Substance, Structure, Style, and the Principles of Screenwriting
(New York: Harper Collins, 1997), 81.

100
. Lodge,
Art of Fiction
, 5.

101
. Ibid.

102
. Ibid.

103
. Ibid.

104
. Anthony G. Amsterdam and Philip N. Meyer, “Making Our Clients' Stories Heard: A Guide to Narrative Strategies for Appellate and Postconviction Lawyers” (Administrative Office, U.S. Courts, 2008), 3.71.

105
.
Double Indemnity
, directed by Billy Wilder (1944).

106
. Vladimir Propp,
Morphology of the Folktale
(Austin: University of Texas Press, 2005), 30–36.