Storytelling for Lawyers (4 page)

And the story concludes by drawing the then-and-there of the tale that has been told into the here-and-now of the telling through some coda—say, for example, Aesop's characteristic moral of the story
.

The coda acknowledges the situation at the end of the story, as the father stands in a curious external relationship with his son, and in his interior struggle with “the hand” as well; both are captured in a two-word observation borrowed from a card game signifying the particular characteristics of the standoff: “like trumps.”

And, as Amsterdam and Bruner observe, “that is the bare bones of it.”
¹²

The next building block in plot construction (and, simultaneously, a primary constraint upon plot construction) is the narrative theme. Simply put, the theme is the controlling idea or core insight of a story. It is the fundamental understanding or “truth” about the meaning of the human affairs that the story's carefully sequenced events convey. As John Gardner observes, “theme … is not imposed on the story but evoked from within it—initially an intuitive but finally an intellectual act on the part of the writer.”
¹³
Plots are shaped around core narrative themes that, in turn, determine the functional choices the storyteller makes in selecting, shaping, and sequencing the events into a story.

The dictionary first defines theme as “a subject on which a person speaks, writes, or thinks; a topic of discussion or composition.”
¹⁴
It is reminiscent of the composition teacher asking her student to reduce an essay to a single clarifying phrase that articulates the subject. There is a second dictionary definition: a theme is “a subject which provokes a person to act; a cause
of
or
for
action or feeling.”
¹⁵
This gets more to the bottom of it; this definition moves toward describing the interior dimensions of a narrative
theme
and how it works on the listener or reader. The theme provides a unique and unstated quality that sparks in the audience a sense that the story will develop in a certain way. The telling confirms that the movements of plot follow a thematic spine so that the sequence of events conveys a purposeful manifestation of
this theme. May there be more than one theme in a story? Yes. How many? It depends on the genre of the story and the internal story logic. Legal stories, too, may have multiple narrative themes, though typically there are seldom more than two. And, perhaps at least in this way, compressed law stories are more akin structurally to popular entertainment films than to novels, which often develop multiple themes simultaneously.
¹⁶

Finally, there is a third dictionary definition of theme: “the principal melody or plainsong in a contrapuntal piece; a prominent or frequently recurring melody or a group of notes in a composition.”
¹⁷
That is, the story theme announces itself over and over; it is often strongly intimated, although it is seldom, if ever, explicit. In movies, the visual imagery and the music (including the lyrics within the music) suggest the theme by incorporating a “recurring melody.” Recurring visual images and shots of settings further suggest the
thematic
core of the story. Although there is seldom visual imagery or literal “music” in law stories (certainly not in legal briefs and seldom at trial or in oral trial or appellate arguments), nevertheless, effective lawyers display the theme by using certain readily identifiable recurring techniques in both their literal voice (in speech) and their stylistic voice in writing.

While the theme is seldom made explicit, and only gradually dawns on the audience over time, the effective legal storyteller is always aware of the theme. As John Gardner advises young storytellers, the (legal) storyteller “sharpens and clarifies his ideas, or finds out exactly what it is that he must say, testing his beliefs against reality as the story represents it, by examining every element of the story for its possible implications with regard to his theme.”
¹⁸

Narrative theme is distinct from, yet related to, the litigator's concept of the
theory of the case
. The core distinction is, perhaps, that in the theory of the case facts are structured to fit and match the elements of legal rules; the facts are presented in such a way that they invoke specifically (rather than evoke metaphorically) the normative principles and legal rules on which the litigator must rely to win. The issue-focused theory of the case identifies crucial and disputable factual propositions that the trier of fact must find to be true or untrue. These propositions determine whether each element of the legal rule is established, and ultimately whether the attorney's client will leave the courtroom satisfied or disappointed. To fit the legal theory of the case, the attorney whittles the facts down to essentials, pulls them apart, and makes them subservient to the overriding legal principles and explicit elements of legal rules. The theory of the case is always explicit; the narrative theme is seldom, if ever, explicit.

Take, as a brief example, Johnnie Cochran's storytelling in the O. J. Simpson closing argument. His theory of the case is simple: incompetent and corrupt police investigators botched the investigation and, perhaps, planted evidence at the crime scene to convict Simpson. The state's evidence simply does not prove Simpson's guilt beyond a reasonable doubt; thus, Simpson cannot be convicted of murder.

Cochran's successful story is, as is often the case in criminal trials and criminal appellate briefs, based on the narrative theme of betrayal by all-powerful state actors. Simpson has been betrayed by the system, by corrupt police investigators, by a “rush to judgment” as to Simpson's guilt, and by a racist police department that must be stopped by the heroic jury. Cochran's argument is ultimately about justice and injustice (e. g., betrayal and tyranny):

Things happen for a reason in your life. Maybe there is a reason why you were selected. There is something in your character that helps you understand this is wrong. Maybe you are the right people at the right time at the right place to say, “no more, we are not going to have this. [”] What they've done to our client is wrong. O. J. Simpson … is entitled to an acquittal. You can't trust the message.
¹⁹

In a pure legal argument—if, indeed, one exists, as if legal arguments are somehow akin to mathematical formulae or scientific proofs—the specific propositions that lead to a result can supposedly be independently verified, and the structure of the logic is made explicit within the argument itself.

This is not so in plotting a story. Stories do not conform to uniform and explicit externalized rules of narrative logic. But there
are
multiple models and templates of plots embedded in the expectations of the audience. Legal storytellers intuitively and, indeed, often explicitly, draw on these embedded narratives and narrative framing.

For example, the reader's or listener's expectations about what is a proper outcome from action constrain or shape the story. These narrative expectations may, in turn, vary according to the genre of the story, establishing certain expectations that the storyteller then typically may not transgress.

One genre of storytelling that often predominates in litigation is melodrama. Melodrama, as explained by narrative theorists, is not limited to the
exaggerations of character and situations depicted in afternoon soap operas or in middle-brow cinematic tearjerkers. It is more broadly yet, simultaneously, more precisely defined by narrative theorists. The influential literary scholar Northrop Frye observes:

In melodrama two themes are important: the triumph of moral virtue over villainy, and the consequent idealizing of the moral views assumed to be held by the audience. In the melodrama of the brutal thriller we come as close as it is normally possible for art to come to the pure self-righteousness of the lynching mob.
²⁰

The genre of melodrama presents the battle between good and evil reduced to its simplest form, where the hero-protagonist battles to the death against the swarthy, evil, black-caped villain, the antagonistic force against whom the hero's worth is measured. The pleasures of pure melodrama are equally straightforward: we root for the hero to triumph in the end against the evil villain. But the protagonist-hero must go through much “trouble” and conflict (against internal and external forces antagonistic to his will) in order to prevail if his victory is to have meaning, and for the story to be compelling to its audience. Melodrama is a particularly effective genre for certain types of combative legal storytelling.

For example, plaintiffs' torts cases are typically tried and argued as melodrama; the jury is implored to conceptualize the plaintiff as the hero struggling to overcome the forces of antagonism overwhelmingly aligned against her. Alternatively, the storyteller portrays the plaintiff as the victim who must be redeemed (in a wrongful death case) or rescued (in a personal injury case) by the heroic jury in its verdict against the defendant, sometimes punishing the wrongdoer (with punitive damages) and enabling justice to prevail. Curiously, the most critical character in the melodrama may not always be the hero-protagonist, but rather the villain-antagonist, because it is only against the antagonistic force of the villain that the worth of the hero (both the plaintiff and the jury) is truly measured.

Michael Roemer observes that melodrama “shows us as we are supposed to be and wish to see ourselves”; it “permits us at once to believe in evil and to exorcise it by projecting it onto another—one who is
un
like us: the outsider or stranger.”
²¹
Thus, as Alfred Hitchcock observes, “The more successful the villain, the more powerful the story.”
²²
Of course, there is much more to it than this, as we will see as we explore this genre.

Now let's apply some of this basic vocabulary to analyzing the plot structure of two popular movies: the classic 1952 Western
High Noon
and a box office blockbuster of the 1970s, Spielberg's
Jaws
. I choose these movies for several reasons: first, I assume that readers are already familiar with these plots, especially the more recent
Jaws
—both are part of our common cultural heritage. Both are melodramas of different sorts that fit under the rubric of this genre. Both plots emphasize the external conflict and the battle between the virtuous and heroic protagonist against an apparent and well-defined villain; we know what the outcome of the battle will be from the beginning, although we do not know, exactly, how the heroic protagonist will accomplish the task, or the strength of the forces of opposition that the hero will encounter and must overcome along the way. Second, these movies are narrative templates in theme and genre for the complex closing arguments by Gerry Spence and Jeremiah Donovan analyzed in subsequent chapters of this book.

Spence converts evidence into a story that is, by design, part monster thriller and part classical Western with a primary theme of heroic salvation of a community in a wild and still lawless western territory on the edge of civilization. Donovan's closing argument is a complex character-based betrayal story, akin to
High Noon
's secondary theme, about an ambivalent protagonist who struggles against inner demons and internal conflicts, as well as against the will of a powerful and vicious villain.

Let's begin with
Jaws
. There is nothing subtle or complex about this movie. The genre is pure melodrama. The structural form is provided by a linear, forward-moving narrative that conforms to the viewer's expectations. The antagonist is a readily identifiable and fearful “otherworldly” force that grows progressively more destructive as it tests the mettle of the heroes' strengths, talents, and abilities. Just as in any Marvel Comics fable, epic tale,
²³
or legend, the heroes are tested as they take their brave stands to prove themselves, save the community, and show that goodness triumphs over evil. In the struggle of a melodrama like
Jaws
, the heroes are stand-ins for our better selves, and they prove their merit and embody our virtues of strength, courage, honor, and self-sacrifice, put on display in combat.
²⁴

Jaws
also works
intertextually
:
²⁵
its theme interacts with, and is evocative of, other stories in a subgenre already familiar to the viewer: Anglo-American epic sea stories. As Michael Roemer observes,
Jaws
is a “positivist retelling of
Moby Dick”
with its “problem of Ahab and the whale (the idea of an indifferent and malevolent universe).”
²⁶
Spielberg's
Jaws
pares the literary elements (including any thematic complexity and internal conflict within characters) down to the external bones of melodramatic plotting, providing characters with just enough whispers of individuation in the “backstory” to allow the audience to identify with the dedicated and rational scientist, the family man and former tough-guy New York cop, and the “mythic” seafaring captain borrowed from another time. The plot is constructed so that “the evil here is entirely in the monster, and the valiant captain saves his community without having to sacrifice himself.”
²⁷

The theme in
Jaws
is remarkably straightforward. It is about the battle of good against evil, with good ultimately winning out over evil just when the world seems on the edge of destruction. The plot affirms our notions of how the world works,
²⁸
with a proper balance restored by the timely intervention of three self-sacrificing heroes who overcome differences of background and strategy to prevail in the end.