Storytelling for Lawyers

by Philip Meyer

  It is Failla’s self-defining “choice,” at the moment of crisis and climax, not to murder Morales that reveals his true identity. The jury will complete the story with a verdict; the judge with a sentence, if Failla is convicted. Failla’s real family will complete the story by determining whether they believe Failla had their best interests at heart and in how they will respond to him after the argument. Likewise, Failla’s adopted mob family, especially the codefendants on trial with Louie who are now charged with the murder of Billy Grasso, will complete their version of the Failla story by assessing whether they believe Donovan’s story assists them in their defense to murder charges by implicating that, simply put, Grasso is truly a villain who deserved to die.

  6

  Style Matters

  HOW TO USE VOICE, POINT OF VIEW, DETAILS AND

  IMAGES, RHYTHMS OF LANGUAGE, SCENE AND

  SUMMARY, AND QUOTATIONS AND TRANSCRIPTS IN

  EFFECTIVE LEGAL STORYTELLING

  Every sentence has a truth waiting at the end of it and the

  writer learns how to know it when he finally gets there.

  — DON DELILLO, MAO II

  I. Backstory: Grading Law School Examinations

  As I revise this manuscript, I am simultaneously grading blue-book examinations and ExamSoft examinations in a large doctrinal criminal law class. The process is labor intensive and often painful. One reason why grading examinations is so difficult is the importance of grades to the students. Law school examinations and law school grades provide the psychic undercurrent of law school. First-year law school grades, typically based on one end-of-semester examination, often shape law school identities and self-perceptions by determining law school honors, including law review membership. This can have long-term effects on a student’s confidence, ability to create a professional persona, and perception of self-worth. Increasingly, first-year law school grades have profound practical significance as well: first-year grades affect directly how students will fare in an increasingly competitive employment market. First-year students have a great deal riding on their examination performance, and they know it, and their professors do, too.

  Simply put, my job is to determine who will be the law school winners and losers. Typically, I give four-hour in-class essay examinations. Often (in criminal law and torts courses), I give two long “issue-spotting” questions employing complex fact-based problems, sometimes derived from “real” cases, and other times fabricated based on doctrinal coverage. In my criminal law class, for example, I tell stories about murders, rapes, robberies, thefts, conspiracies, and so on. As is traditional, students must translate these narratives into doctrinal frameworks, “spotting” or identifying the relevant issues—picking them up like Easter eggs on an elaborate Easter egg hunt—articulating accurately the relevant legal rules necessary to solve these legal problems, then systematically applying these rules to resolve the issues correctly.

  Generally, there are two pedagogical approaches to grading students’ examinations: (1) employing an objective checklist and grading criteria or (2) employing a more “holistic” approach that emphasizes an individualized assessment of the quality of students’ writing and analytical abilities. Like most law professors, I opt for the latter approach; it simply provides more room for my own subjective judgment and flexibility. Of course, I tell my students the rules of the game before the exam and in the written instructions to the examination.

  As I grade these examinations, as best I can articulate it, the singular difference between the mediocre examination answers (C and below) and the middling to good examination answers (B-range grade) is primarily in the “substance”—whether the students can identify the relevant issues and accurately articulate the relevant legal rules necessary to analyze the problem. The distinction between the B exams and the A exams is, however, primarily in the “voice” and “style” of presentation. Voice and style, however, mean something much different in the context of law school examination taking than in the artful trial and appellate narratives that litigation attorneys construct in a factually far more complex and indeterminate world. (This, I think, speaks to why excellent litigation attorneys were often poor law school test takers.) For law school examinations, stylistic concerns are based on the limitations and constraints on possibilities, about clamping down intellectually and authoritatively on the facts. Students are evaluated on the cleanness and effectiveness of the organizational structures they select and employ, on analytical precision and accurate presentation of complex legal doctrine, and on adherence to grammatical rules and the King’s English. Excellent students avoid colloquialism and humor, and avoid reading too deeply between the lines of the story, getting lost in the story. Students must present normative analysis cleanly, developing a legal voice that appears neutral and does not call attention to itself but conveys simultaneously an underlying authority and confidence, transforming the narrative into legal analysis. The story is made subservient to the rules, and the events depicted in a law school examination hypothetical case are, as one of my students observed, merely the “floating factoids” that drift atop the law. The shrewd and adept student employs the facts to reveal the law, speaking with a lawyer-like authority and precision, manifesting knowledge of doctrinal law and a newfound forensic confidence and authority that borders on arrogance.

  But what has all this to do with the subject matter of this chapter? Simply put, voice and style are profoundly important in oral and written legal storytelling practice. But style and voice in storytelling practice are not the same as the stylistic concerns and disciplines developed in law school. Indeed, style in legal storytelling is liberating; the facts at trial are typically indeterminate, and the choices and possibilities available to legal storytellers are different and far more complex than those exposed or developed in the normative analytical practice successful students employ in law school. This chapter focuses on some of the stylistic concepts and techniques that are often crucial to effective legal storytelling, in both written and oral argumentation at trial and on appeal. This chapter presents a compressed and representative selection of topics from a far more extensive narrative menu. It merely provides a starting point, an introduction, rather than a comprehensive exploration of this complex subject. Unfortunately, these topics are seldom, if ever, foregrounded systematically in law school, even in legal writing or clinical and advocacy courses. Nevertheless, effective law students intuitively understand the importance of style and voice in determining examination grades. More importantly, techniques of style and the power of voice are often at the core of narrative persuasion and legal storytelling practice, and employing technique effectively is often crucial to determining the outcome of many cases.

  II. Preliminary Note: “Voice” and “Style”

  As Henry Miller observed, what one has to tell may not ultimately be as important as the telling itself. The two are clearly intertwined in all types of storytelling practice, including legal storytelling. The telling itself is embodied in the “style” or “voice” of the storyteller.

  To illustrate, in an oral trial or appellate argument, the audience typically listens closely to, and is persuaded by, the literal voice or persona of the attorney-storyteller; it is profoundly important, yet seldom discussed or analyzed as a persuasive tool. Here, however, when analyzing voice I refer to something more than just the “sound” of the voice; legal storytelling voice is composed of instrumental stylistic choices, carefully selected in relation to the material of the story, fitted to the narrative’s plot and characters. In many ways it is akin to the voice of a popular singer interpreting a song, the lyrics and melody shaping inflection, modulation, and phrasing. Likewise, the legal story affects voice, influencing choices made from a repertoire of alternative stylistic possibilities. This is true in both oral and written storytelling practices; the qualities of voice are deeply related to other aspects of the narrative.

  For example, the audience for Spence’s closing argumen
t in Silkwood is captured by the power and confidence of Spence’s literal voice; there is deliberateness, pacing, and confidence in his rhythmic yet theatrical delivery. It is through Spence’s voice and presentational style that Spence elevates a simple and not atypical torts melodrama (the story of the heroic “prophet” sacrificed to the greedy corporate Beast’s hunger for profits). Spence employs his voice and presentation, reshaping the material into a story with almost biblical dimensions. Spence’s closing argument in Silkwood presents a homiletic or teaching story with a moral message about what happens when corporate greed and hunger (The Beast in the free market) goes unchecked and unregulated and devours and destroys a rural community as well as the young workers and innocents within it. Spence’s voice and his presentational style are intentionally magisterial, signaling carefully that this is an important story capturing a crucial historical moment.

  Spence’s story, like most torts stories, is fundamentally a simple melodrama. And Spence’s Silkwood character is a simple hero without the depth of character of, for example, a complex tragic hero. Indeed, attempting to transform Silkwood’s story into the genre of tragedy by adding another dimension to Karen Silkwood as protagonist would diminish the story’s persuasive power. There are, nevertheless, clearly tragic victims in Spence’s story: the young workers who, Spence argues, will suffer horrible struggles with cancer if the jury does not intervene heroically to give Silkwood’s life meaning by speaking the only language the Beast corporation understands, the language of money.

  It is a presentational style and voice that Spence marries intentionally to his theme and story. Spence’s voice is appropriately respectful, reverential, and lawyer-like. Spence chooses a third-person omniscient perspective for telling most of his story. Spence strategically employs edited audiotapes, however, to shift purposefully from the third-person omniscient voice into Silkwood’s own first-person voice and perspective, and, likewise, incorporates vignettes or stories within stories to strategically readjust his narrative frame. Spence purposefully and effectively varies the rhythm and cadence of his speech on various levels, from the rhythms and word choice within sentences to the modulated, shifting use of scene and summary throughout the story.

  The selection of details and images for story elaboration is an equally strategic part of a presentational style. Thus, for example, Spence contrasts rural and bucolic details that characterize the innocent townspeople with the details that mark and signify the big city corporation and its evil minions. These are all shrewd stylistic choices.

  This chapter attempts to provide an understanding of these alternative stylistic possibilities through analysis of short literary illustrations and also excerpts from selected legal stories. I choose as narrative illustrations examples primarily taken from creative nonfiction and from criminal appellate and postconviction briefs. Although a primary focus here is on writing, these examples could have been drawn equally from oral stories and oral arguments and from other areas of practice. The nonlaw examples include analysis of excerpts from James Ellroy’s autobiography My Dark Places,1 Norman Mailer’s Executioner’s Song,2 Truman Capote’s In Cold Blood,3 and Frank McCourt’s Angela’s Ashes.4 The choice of examples from creative nonfiction is purposeful: legal storytelling often seems stylistically akin to the practices of creative nonfiction storytellers. The journalism of Mailer and Capote and Ellroy’s and McCourt’s memoirs are all presumably bound by the constraints of evidence and memory. Although all are truthful and factual storytellers, akin to legal advocates, all are also situated storytellers, purposely telling their stories to persuade and move their readers emotionally; none purport to be telling purely “objective” stories.

  III. Voice and Rhythm: “Staying on the Surface”

  There are many different styles and voices manifest in effective legal storytelling, although we do not typically label or deconstruct these styles as such. The legal stories told in criminal cases are often presented as detective mysteries. One of the characteristic voices is that of the hard-boiled detective. This is a voice that creates a distinctive rhythm and, as David Lodge puts it, typically “stays on the surface” of events.5 It is a style that “focuses obsessively on the surface of things.… The dialogue is presented flatly, objectively, without introspective interpretation by the characters, without authorial commentary, without any variation on the simple, adverb-less speech tags he/she asks/says.”6 The effect, as Lodge observes, is often “at once comic and chilling.”7 It is a style that, as Anthony Amsterdam observes, “hustles the reader rapidly across a catwalk above a pit, giving him or her no pause to look down.”8 The style conveys a sense of a dangerous world out of balance; it is simultaneously riveting and disturbing.

  It is not coincidental that lawyers purposefully embody the voice, rhythms, and stylistic conventions of the “hard-boiled” detective mystery story in many criminal appellate briefs. Indeed, the very purpose of these stories is to draw the reader into a mystery that activates the imagination; they are successful when they compel the reader to, as Jerome Bruner puts it, go “beyond the information given.”9 This style invites readers to dig beneath the surface of the language and solve the unsolved or wrongfully solved puzzles of meaning.

  What does this style look like? I take, as an initial example, a brief excerpt from James Ellroy’s autobiographical memoir My Dark Places. Like many criminal defense attorneys, Ellroy uses a style or voice akin to that employed in detective fiction, albeit for a different purpose: Ellroy uses this voice to tell his deeply personal story, a memoir. Initially, the plot of the story appears to match that of a typical genre “whodunnit”: James Ellroy’s mother was murdered, and the murderer was never apprehended. Many years later, Ellroy, the narrator-detective, must return to the past and attempt to retrace the steps of the criminal to rediscover the story of what happened to her. In retelling the story, Ellroy hopes to reassemble the clues and evidence in a way that points to the murderer. Ellroy’s story operates on a second level crucial to the memoir (akin to Tobias Wolff’s story in chapter 4): the purpose of Ellroy’s narrative quest is to understand who his mother was and, in doing so, to navigate his own artistic identity, and understand how his own voice and vision were shaped by these long-ago events.

  Stylistically, Ellroy’s autobiography initially assumes its power through the authority of the voice. My Dark Places begins with the subtitle “The Redhead” and the disturbing and graphic crime photo of Ellroy’s murdered mother, lying facedown in the brush, her dress partially undone, the ligature marks from the strangulation around her neck.10 The use of the subtitle from detective fiction supplemented by an actual image of Ellroy’s deceased mother is a striking choice for framing the story.

  Ellroy begins by speaking directly to his mother, seemingly bypassing the reader, employing a second-person voice. It is a voice that delivers a cry of anguish that also frames the story that he will tell. He puts these paragraphs into italics to differentiate this voice from that of the third-person detective story that follows:

  A cheap Saturday night took you down. You died stupidly and harshly and without the means to hold your own life dear.

  FIGURE 6.1 Credit: James Ellroy, My Dark Places (New York: Vintage Books, 1997).

  Your run to safety was a brief reprieve. You brought me into hiding as your good-luck charm. I failed you as a talisman—so I stand now as your witness.

  Your death defines my life. I want to find the love we never had and explicate it in your name.

  I want to take your secrets public. I want to burn down the distance between us.

  I want to give you breath.11

  Although it is only the second page, Ellroy has made several bold stylistic moves: First, Ellroy has used significant “white space” on the page to focus on the horrific visual image of his mother. He has framed the image with an attention-gathering, tabloid-like header. He then employs short sentences and short paragraphs containing one, two, or no more than three sentences. He arrests the reader
’s attention with the plea of the son for the mother whose “death defines my life” who “want[s] to find the love we never had and explicate it in your name.” Yet even here, the hard-boiled style “stays on the surface” of the images, with the beat of short rhythmic sentences pushing the reader compulsively forward over the chasm below: “A cheap Saturday night took you down. You died stupidly and harshly and without the means to hold your … life dear.”12

  Next, the narrative voice shifts abruptly from the first to the third person. Hard-edged visual details pile one atop another as if in a montage of photographs or a sequence of cinematic images:

  Some kids found her.

  They were Babe Ruth League players, out to hit a few shag balls. Three adult coaches were walking behind them.

  The boys saw a shape in the ivy strip just off the curb. The men saw loose pearls on the pavement. A little telepathic jolt went around.

  Clyde Warner and Dick Ginnold shooed the kids back a ways—to keep them from looking too close. Kendall Nungesser ran across Tyler and spotted a pay phone by the dairy stand.