Storytelling for Lawyers (7 page)

Well, we talked about “strict liability” at the outset, and you'll hear the court tell you about “strict liability,” and it simply means: “If the lion got away, Kerr-McGee has to pay.” It's that simple—that's the law. You remember what I told you in the opening statement about strict liability? It came out of the Old English common law. Some guy brought an old lion on his ground, and he put it in a cage—and lions are dangerous—and through no negligence of his own—through no fault of his own, the lion got away. Nobody knew how—like in this case, “nobody knew how.” And, the lion went out and he ate up some people—and they sued the man. And they said, you know: “Pay. It was your lion, and he got away.” And the man says: “But I did everything in my power—I had a good cage—had a good lock on the door—I did everything that
I could—I had security—I had trained people watching the lion—and it isn't my fault that he got away.” Why should you punish him? They said: “We have to punish him—we have to punish you—you have to pay.” You have to pay because it was your lion—unless the person who was hurt let the lion out himself. That's the only defense in this case: unless in this case Karen Silkwood was the one who intentionally took the plutonium out, and “let the lion out,” that is the only defense, and that is why we have heard so much about it.

Strict liability: “If the lion gets away, Kerr-McGee has to pay,” unless Karen Silkwood let the lion loose. What do we have to prove? Strict liability. Now, can you see what that is? The lion gets away. We have to do that. It's already admitted. It's admitted in the evidence. They admit it was their plutonium. They admit it's in Karen Silkwood's apartment. It got away. And, we have to prove Karen Silkwood was damaged. That's all we have to prove.
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In contrast, the defendant must provide an affirmative defense and prove by a preponderance of the evidence that Karen Silkwood intentionally took the plutonium from the plant to her home and poisoned herself. Rather than front-loading the legal explanation or filling the space with an abstract argument explaining how Kerr-McGee has failed to meet its burden, Spence employs a second parallel ministory to characterize the evidence presented by defendant's attorneys at trial and, more important, to provide a narrative framework for the defendant's theory of the case: he employs the fitting and bucolic analogy of “the mud springs.” First, Spence reminds jurors that Kerr-McGee has only one legal defense, that Karen Silkwood took the plutonium from the plant and poisoned herself; this is “the only possible defense that Kerr-McGee has.”
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Spence then warns the jurors that the defendant will attempt to lure them into the “mud springs” and admonishes them not to be deceived:

[I]f you want to clear up the water, you've got to get the hogs out of the spring. And, if you can't get the hogs out of the spring, I guarantee you can't clear up the water.… And the thing that I say to you is “keep out of the mud springs” in your deliberations. You are not scientists—I'm not a scientist—my only power is my common sense. Keep out of the mud springs. You'll be invited there [by the defendant, in closing argument]. Use your common sense. You'll be invited to do number-crunching of your own [by the defendant]. You'll be invited
to play word games [by the defendant]. You'll be invited to get into all kinds of irrelevancies. And I only say to you that you have one hope—don't get into mud springs—keep your common sense, and take it with you into the jury room.
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Throughout his closing argument Spence refers numerous times to these two ministories as a legal shorthand: the anecdote of the lion who got away (embodying Spence's legal theory of strict liability) and the analogy of the mud springs (a reference to the defendant's strategy of obfuscation). Spence reflects upon this strategy: “In preparing the Silkwood case I outlined the story, but on the opposite page in the notebook I wrote out a few words, a slogan of sorts, that stood for my entire argument, my [legal]
theme: ‘If the lion gets away, Kerr-McGee has to pay
'. I played and replayed that [legal] theme like the recurring refrain in a song.”
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This shorthand provides a rhyming aphorism that sticks in the mind like Johnny Cochran's equally melodic hook, “If the glove doesn't fit, you must acquit.” It enables Spence to dispense quickly with the issue of liability and focus primarily on the issue of punitive damages: how Kerr-McGee should be punished for allowing the “lion to get away.” In doing so, Spence strategically claims melodrama as the proper genre for the competing storytelling, challenging the defense to the difficult task of reversing the polarities of the story and convincing the jury that Karen Silkwood is the deceitful antagonist who poisoned herself, while Kerr-McGee is the virtuous protagonist. That is, if melodrama is the only way to understand what happened, then either Silkwood is the hero and Kerr-McGee is the villain, or it's the other way around. And if it's the former, then Silkwood wins on liability and the only question that remains is how much to punish Kerr-McGee for its actions so that it will change its evil ways. Thus, Spence's task is not only to tell the story persuasively as melodrama but to tell it so persuasively that melodrama becomes the only way to think about the case. Otherwise, Spence could construct his melodrama and Kerr-McGee could tell a competing story in another genre or simply attempt to disrupt the mapping of melodrama onto the facts by making the characters and actions more ambiguous. Hence, Spence's careful admonition to the jurors to beware of the mud springs.

Spence's core narrative is a simple and traditional Western melodrama. In this story, Karen Silkwood possesses the internal psychology characteristic of hero-protagonists in prototypical Westerns: she is a loner-outsider, possesses impressive integrity, and sacrifices self-interest and autonomy for
the greater community. According to the screenwriting guru Syd Field, the archetypal Western hero is portrayed as “fighting against the injustices of the system; he is a true individual, true to himself and his ideals, unbending in spirit, unyielding in the belief of spirit.”
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These heroes, because of their strength, individuality, and spirituality, are readily misunderstood by the community.

According to Field, the character of the Western hero in the classical Western melodrama is defined by two specific challenges:

One is the physical challenge, which requires the hero to perform a courageous act during battle, like saving a life, or an entire village.… The other heroic challenge is the spiritual challenge, an adventure during which the hero experiences the transformation of consciousness and becomes “realized,” then returns with the ancient and profound message that has echoes through time, like “see God in each other.”
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These are the precise challenges that Silkwood meets in Spence's closing argument. First, there is the physical challenge of her battle with Kerr-McGee to save the community (even if it ultimately results in her own self-sacrifice and death). Second, Spence's Silkwood undergoes a transformation of consciousness in herself and returns to reveal to the community her message of discovery. In answer to one of the riddles he poses about Silkwood for the jury to solve, “Who was she?,” Spence suggests this answer: “I say she was a prophet.”
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Perhaps the greatest narrative and structural challenge for Spence, however, is to make Kerr-McGee—the corporation—into the all-powerful villain demanded by melodrama. Remember that in melodrama, the virtue of the hero—and the effectiveness of the story—can be measured only against the strength of the antagonistic force. So to elevate to heroic status not only Silkwood but also the jury (who must write the final chapter and ending to the story) and Spence himself (possibly akin to the three nautical heroes in
Jaws
), Kerr-McGee must come alive as an effective and singular melodramatic villain. Spence must coalesce all of the forces of antagonism aligned against Silkwood into an organic and clearly visualized entity. Kerr-McGee must become The Beast, and The Beast must come alive to enlist the empathy of the jury, inspiring a desire to complete the story with a powerful and transformative ending, and to provide a meaningful coda to the tale. The genre of melodrama demands villainy, and Spence's initial task is to fashion the defendant into this role.

Spence finally opens his story with a depiction of an anterior steady state that is unlike the anterior steady state depicted in
Jaws
(the summer on the idyllic Amity with the swimmers at play) or in
High Noon
(the wedding ceremony of Amy and Kane after Kane has cleaned up the town, with the grateful townspeople in attendance). Spence's storytelling anticipates narrative expectations of the juror audience in the late 1970s. His opening subtly references two compelling and profoundly relevant cultural events that took place during the second and third weeks of the Silkwood trial and that had been covered extensively in the news and popular media: the release of the movie
The China Syndrome
, about a devastating nuclear power accident, and the real-world accident at Three Mile Island that the movie seemed to presciently anticipate.

The setting of the core past-tense story is Crescent, Oklahoma. When the story begins the trouble has already arrived. Spence could have begun differently, but instead he opens his story at a moment when the powerful villain already holds the upper hand and the innocent community is in its vice-like grip:

It was a time of infamy, and a time of deceit, corporate dishonesty. A time when men used men like disposable commodities—like so much expendable property. It was a time when corporations fooled the public, were more concerned with public image than with the truth.

It was a time when the government held hands with these giants, and played footsie with their greatest scientists. At the disposal of the corporation, to testify, to strike down the claims of people, and it was too late. It was a sad time, the era between '70 and '79—they called it the Cimarron Syndrome.
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The form or genre of the story is prefigured in this darkly atmospheric and self-consciously literary opening: the opening suggests that this story is about good versus evil, about the monstrous corporation working against the community. The evil corporation will call forth the arrival of a heroic individual (Silkwood) who is willing to stand up to corporate greed and institutional corruption and ultimately sacrifice herself for the good of her community. This opening is also literary in that it locates the case in a specific historic context and claims a profound importance for the case and the argument. That is, this case is not a torts lawsuit about the wrongful death of an individual plaintiff; it is about a crucial historical moment that might mark the
transition from one dark period to the hopeful possibility of something else. Spence's opening anticipates the narrative expectations of his juror audience in the late 1970s, after the deceits of the Vietnam War, after the corruptions of Watergate, and amid the greedy abuses of corporate and institutional power of the private sector of the day (the “Cimarron Syndrome”).

This opening is a narrative “marker” defining a steady state. And it is a clear marker to which Spence will return at the close, emphasizing it in his dark vision of what the future narrative landscape might look like if the jury fails to act heroically and hold Kerr-McGee accountable. This dark noir-like opening is self-consciously literary and dramatic. Spence's challenge is not just to the jury: his closing argument must now live up to this opening; he is obliged to deliver a story with a worthy hero and a villain to match, and he must now connect the personal story of Karen Silkwood with corruption on a historical stage that, perhaps, the narrowness of the legal issues at trial may not suggest and the rules of evidence may not allow.

Although there are other places where Spence could begin his story, he chooses this one. He observes in his advice to advocates, “A story may start anywhere—each story has an infinite number of possible beginnings.”
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To this he adds, “Each of these beginnings can lead to a finite number of middles, but each of these middles must lead to one, and only one, end.”
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Spence ends his rebuttal argument, his portion of the storytelling, eventually winding his way back to this dark place, the anterior steady state, foreshadowing in a dream what the future might look like if the jury does not act heroically and provide a transformative ending, by inscribing a new meaning and coda on the tale. It suggests an outcome if the jury, instead of following the jurors' oath to the grail of justice, becomes “lost in the mud springs” along the way: stuck, unable to move, like cows sinking into traps, manipulated and led away from his truthful story by defendant's arguments and innuendo (a talking Beast who only has learned to speak the language of money).

As I observed earlier, there is a second crucial story, and another narrative axis, embedded within Spence's closing argument, typical of plaintiffs' closing arguments in torts cases (and also of many defendants' closing arguments in criminal cases).
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That is, the story is not just a past-tense melodrama
about what happened to Karen Silkwood; it is simultaneously a present-tense story about the trial itself, the quest for truth, culminating in an affirmation of the value of justice at stake in the case. The trial leading up to the jury deliberations provides an incomplete narrative, a work-in-progress: a story told without an ending. At the core of this story is the decision makers' heroic quest for justice. It will be for the jury to discover truth, complete the story, and inscribe meaning on the tale. To discover this meaning and to do what is right, and to fulfill the commands of their heroic oath, the jurors must go out in search of the truth. Spence explicitly recognizes this mythic and heroic quest and suggests that the jury must solve three compelling and difficult riddles and return from the darkness and confusion of the evidence with the grail of justice.