Storytelling for Lawyers

by Philip Meyer

  My father and mother should have stayed in New York where they met and married and where I was born. Instead, they returned to Ireland when I was four, my brother, Malachy, three, the twins, Oliver and Eugene, barely one, and my sister, Margaret, dead and gone.

  When I look back on my childhood I wonder how I survived at all. It was, of course, a miserable childhood: the happy childhood is hardly worth your while. Worse than the ordinary miserable childhood is the miserable Irish childhood, and worse yet is the miserable Irish Catholic childhood.

  People everywhere brag and whimper about the woes of their early years, but nothing can compare with the Irish version: the poverty; the shiftless loquacious alcoholic father; the pious defeated mother moaning by the fire; pompous priests; bullying schoolmasters; the English and the terrible things they did to us for eight hundred long years.

  Above all—we were wet.63

  McCourt’s voice is cast in a first-person perspective that invites the reader to sort through the past with the narrator as a collaborator to determine the meanings of the images and to travel with him on an evocative journey. This is akin to the strategy Jeremiah Donovan employs when he shifts from a third-person limited perspective directly into the first-person consciousness of Louie Failla, where we are invited to share emotionally in Louie’s dilemma. Also similar is Truman Capote’s shift to a first-person perspective by employing the recollections of the schoolteacher who travels with the sheriff to discover the bodies of the Clutter family. Through these recollections the schoolteacher returns via the narrative as if attempting to retrieve the emotional meaning of the ministory, telling the story for himself as well as for the reader.

  But aren’t first-person voices and the first-person perspective disfavored in formal legal storytelling? When a first-year law student prefaces an answer to a question with “I think” or “I believe,” isn’t the characteristic response of law professors, “Who cares what you believe Mr./Ms.——?” Isn’t it part of the imperative of becoming a lawyer to eliminate reliance on the first-person voice? Yes and no. Legal storytellers often purport or appear to assume a neutral third-person voice, an objective, dispassionate, and emotionless stance. As I have analyzed in the trial arguments of Spence and Donovan and in the dialogue in the petitioner’s “Statement of the Case” in the successful Atkins brief, however, attorneys often incorporate intentionally strong first-person voices into their arguments.

  For a final legal example, the petitioner’s brief in [Terry] Williams v. Taylor64 argues that defendant’s trial counsel provided ineffective assistance in failing to investigate and present evidence of defendant’s childhood environment. As a result of the failure to introduce relevant mitigation evidence at sentencing, defendant Terry Williams was sentenced to death. Initially, the petitioner’s brief speaks of this omitted evidence abstractly, of Williams’s “traumatic childhood,” and a mother who “drank herself into a stupor almost daily while pregnant with him.”65 By themselves, these abstractions have little impact on the reader. However, there is additional evidence included in Terry Williams’s “uncontroverted juvenile records.”66 Rather than merely providing a summary or paraphrase of these records, the author excerpts evidence in the form of first-person notes and the firsthand observations of a social worker who had visited the defendant’s family home many years earlier, and who was charged with protecting the children on behalf of the state. The social worker’s report of the conditions of Williams’s family home is framed in a double-indented block quotation. The social worker’s testimonial account vividly captures the quality of Terry Williams’s childhood, bringing to life “the sordid conditions of Williams’ home” for the reader.67

  At the hearing, records and testimony were introduced showing that Williams had a traumatic childhood but was able to function well in structured settings and establish positive relationships. He was the sixth of eleven children, and Williams’ mother testified that she drank herself into a stupor almost daily while pregnant with him. Uncontroverted juvenile records showed that his parents were alcoholics who supplemented their meager income by selling bootleg whiskey. The records described [from the perspective of the social worker] the sordid conditions of Williams’ home:

  [Here, the brief shifts to the voice of the social worker.]

  Lula and Noah [the parents] were sitting on the front porch and were in such a drunken state, it was almost impossible for them to get up. They staggered into the house to where the children were asleep. Terry, age 1, and Noah Jr., age 3, were asleep on the sofa. There was an odor of alcohol on the breath of Noah Jr.… Oliver [Olivia] had just awakened and was very sick. She said she was hungry and had been drinking whiskey. Ohair was completely passed out and never could be awakened. He did not have on any clothes.…

  The home was a complete wreck.… There were several places on the floor where some one had had a bowel movement. Urine was standing in several places in the bedrooms. There were dirty dishes scattered over the kitchen, and it was impossible to step any place on the kitchen floor where there was no trash.… The children were all dirty and none of them had on any under-pants. Noah and Lula were so intoxicated, they could not find any clothes for the children, nor were they able to put the clothes on them. There was stuffed pickle scattered on the floor in the front bedroom.

  Noah and Lulu were put in jail, each having five charges of neglect placed against them. The children had to be put in Winslow Hospital, as four of them, by that time, were definitely under the influence of whiskey. When Dr. Harvey examined them, he found that they had all been drinking bootleg whiskey. They were all hungry and very happy to be given milk, even the baby [Terry] drank a pint of milk before stopping. Oliver [Olivia] said that they had not had any food all day. Ohair was still so drunk he could not talk.68

  Williams’ parents were jailed for criminal neglect, and the children were placed in a foster home where they were badly treated before being returned to their parents three years later.

  Even then, the “parents show[ed] no interest in … the children”; “the children are without food or proper clothes often,” and “[t]here are many home problems.” The family was so poor that Williams’ mother could not afford surgery to remove a tumor.69

  The social worker’s narration introduces mitigation evidence omitted at trial more effectively than a summary, a paraphrase, or an omniscient third-person narrator interpreting the images and making explicit the effects of the petitioner’s chaotic childhood home life. Instead, the brief simply provides a frame for this mitigation evidence, and presents it in a straightforward way. Nor does the writer comment on the meaning of the ministory in the context of the legal story (e.g., that defendant’s counsel was ineffective because he failed to introduce mitigation evidence based on defendant’s past). The understated mode of presentation without editorial comment or narrative intervention serves the vivid imagery well; the reader readily comprehends that the fate of the defendant is at least a partial product of his bleak and dysfunctional social history. The imagery conveyed through the observations of the social worker invites, but does not force or compel, the reader to reenter the horrific home life of the defendant as a small boy, alongside the social worker.

  C. Perspective Affects the Degree of the Reader’s or Listener’s Engagement in the Story and Suggests the Degree of Empathy the Reader or Listener Should Hold for Various Characters within a Story

  Omniscient narrators can be coolly dispassionate and encourage listeners and readers to exercise a logical judgment; an omniscient perspective often avoids intimacy and emotional involvement in the story. Because there is an emotional remove, an omniscient perspective can encourage the listener or reader to make judgments about the conduct of the various actors in the story. For example, in Mailer’s depiction of the murder of Max Jensen, there is no sympathy created for the character of Gary Gilmore. The reader is clearly invited to judge Gilmore’s actions harshly, and reach the determination that Gilmore has acted brutally and coldh
eartedly.

  Gary Gilmore in Executioner’s Song appears gradually as a more deeply layered and nuanced character as Mailer incorporates directly Gilmore’s first-person letters and observations, and shifts perspectives. For example, Gilmore introspectively seeks to understand the horror of his actions, acknowledging both society’s need for retribution as well as his moral responsibility to pay society for the crimes that he has committed. Thus he writes eloquently in a letter to his girlfriend, Nicole, as he awaits execution on Utah’s death row:

  Recently, it has begun to make a little sense. I owe a debt, from a long time ago.… I’m on the verge of knowing something very personal, something about myself. Something that somehow wasn’t completed and made me different. Something I owe. I guess. Wish I knew.

  Once you asked me if I was the devil, remember? I’m not. The devil would be far more clever than I, would operate on a much larger scale and of course would feel no remorse.… And I know the devil can’t feel love. But I might be further from God than I am from the devil. Which is not a good thing. It seems that I know evil more intimately than I know goodness and that’s not a good thing either. I want to get even, to be made even, whole, my debts paid (whatever it may take!) to have no blemish, no reason to feel guilt or fears. I hope this ain’t corny, but I’d like to stand in the sight of God. To know that I’m just and right and clean.70

  Likewise, Donovan brings jurors directly inside Failla’s thoughts through a first-person perspective supplemented with an extended commentary on Failla’s words. In this stretch, Donovan employs Louie’s first-person voice and slows down the action to incorporate additional narration from a limited third-person perspective. Donovan makes jurors feel Louie’s predicament, as if they exist inside Louie’s skin. Similarly, the use of a close third-person narrator who follows the central character can also make us care about the fate of the character as we witness the unfolding events that affect his life, even if the voice seems objective. For example, in Riggins we watch the plight of the defendant Riggins from the limited third-person perspective of a person sitting in the jury, realizing that his zombie-like appearance does not reflect his competence to stand trial, but is rather an effect of the forced ingestion of the drug Mellaril. We also have knowledge of what will happen to him: he will be condemned to death because of this zombie-like appearance. This use of a limited third-person perspective enables the reader to grasp Riggins’s plight, and intuitively understand that his trial violates due process and his conviction and sentencing are unfairly predestined.

  Closely related to this point, the use of perspective enables the storyteller to purposefully regulate the degree of empathy for various characters. For example, a first-person narrator can explain and express the narrator’s experience of the world in the narrator’s own terms, giving readers a sense that they understand the narrator’s character and plight intimately.71 This can create feelings for, and empathy with, a character who may initially appear otherwise unsympathetic when her actions are viewed from another perspective.

  On the other hand, an omniscient narrator, who readily slips in and out of the minds of various characters, typically limits the ability of the reader or listener to identify with individual characters (and may intentionally keep the reader-listener from knowing where to fully place her loyalties). Thus, a voice cast in an omniscient perspective can be employed to create emotional distance or detachment from the events of the story and the characters within it. In many cases prosecutors intuitively tell their stories through a voice speaking from an objective and omniscient perspective, as the jury watches the events from this distance. The omniscient prosecutorial narrator may slip into and out of the minds of various characters, or, conversely, refuse to slip into any one character’s mind, seeming to apply the same narrative rules fairly to the depiction of all events and all characters. The result is, typically, that the audience does not place loyalty with or identify strongly with any one character.

  Here, for example, is the opening of the prosecutor’s closing argument against Louie Failla (and seven other reputed Patriarca crime family members) as he frames his complex five-hour story summarizing the evidence. Before beginning, the prosecutor thanks the jurors for their attention to the evidence, admonishes the jury not to be deceived by the stories presented by the attorneys in the closing arguments, and emphasizes that the job of the jurors is simply to determine what happened, what really happened: “If what the lawyers say … differs from your recollection of the evidence, it’s your recollection that controls. The most important job that you have in this case is to find the facts, to decide what really happened.”72

  After referring to the judge’s charge, the prosecutor describes the dramatic and dark initiation rituals of the Patriarca crime family (captured on surveillance tapes) as a compelling opening hook. The prosecutor establishes a third-person omniscient perspective for the entire closing argument that looks down at the past events placed into evidence through testimony and in the crucial FBI surveillance tapes. Before examining the specific activities of each of the defendants, the prosecutor addresses the cruelty of the criminal activities of all eight codefendants as members of a shared criminal enterprise:

  And all of these activities, all of them, are laced one way or another with their undercurrent of violence that affects everything these guys do, and it spills out from time to time, and we saw it here, too. It spills out when they’re burying bodies in a garage. It spills out when people put guns to the back of people’s heads and shoot them like they did with William Grasso. It spills out when people plot in cars to kill human beings like they did with respect to Tito Morales.73

  Subsequently, after Donovan’s compelling narrative closing argument employing first-person and limited third-person voices and perspective, a different prosecutor in the rebuttal closing argument attempts to reestablish the jurors’ perspective as objective fact finders, their role limited to reviewing the evidence regarding the charge that Failla conspired to murder Tito Morales. He directly refers to the narrative deceits implicit in Donovan’s storytelling and, specifically, Donovan’s use of the first-person perspective to step inside Failla’s mind and articulate his thoughts. He admonishes the jurors not to be deceived by this trickery, but to limit their deliberations to the evidence:

  With respect to Failla, and I will turn to the murder now, with respect to Mr. Failla and Tito Morales, Mr. Donovan is an excellent lawyer. And Mr. Donovan’s final argument in my view was outstanding. But when Mr. Donovan stands here in front of you with cartoons and suggests to you what Louie Failla was thinking I suggest to you that that’s [going] too far. Because there is no evidence in this case about what Louie Failla was thinking or saying other than the tape recordings which were admitted into evidence in this case.

  That’s the evidence in the case.… [A]nd when you listen to those tapes, listen to those tapes and what was said. Is there any doubt in your mind that these people were serious? Mr. Donovan wants to suggest to you that well, what Louie Failla was doing was he was just putting off Castagna and Johns because they were killers.

  In another breath he says they can go do whatever they wanted, but that’s not the evidence, and you know that’s not the evidence. That’s lawyers’ games. Lawyers’ games.74

  Similarly, in a recent New York murder case, analyzed by Janet Malcolm in a magazine article,75 an omniscient prosecutor-narrator presents a story in a voice filled with the judgmental and moral outrage of a retributive and vengeful Old Testament God. There is none of the subtlety, understatement, or irony in Mailer’s artistic depiction of the murder of Max Jensen by Gary Gilmore. Likewise, there is none of the prosecutor’s calm or dispassion, the purported objectivity, and his measured words, as presented in the closing argument and rebuttal closing arguments in Failla. Instead, the prosecutor is consumed by moral outrage and makes the judgments of his omniscient narrator explicit. There is no doubt about where the jurists are commanded to place their sympathies; the jury is adm
onished that there is no choice but to share the prosecutor’s narrative perspective and to entrust itself to his narrative vision.

  Thus, the prosecutor Brad Leventhal begins his opening statement and sets the stage for his depiction of the murder with the initial appearance of the victim:

  It was a bright, sunny, clear, brisk fall morning, and on that brisk fall morning a young man, a young orthodontist by the name of Daniel Malakov, was walking down 64th Road in the Forest Hills section of Queens county just a few miles from where we are right now. With him was his little girl, his four-year-old daughter, Michelle.76

  Just as in Failla, there is more to the theatricality of the prosecutor’s voice and style than merely the recitation of the words. Janet Malcolm, the reporter, describes the composition of words, gestures, and sounds. Leventhal continues: “[A]s Daniel stood outside the entrance to Annandale Playground, just feet from the entrance to that park, just feet from where his little girl stood, this defendant Mikhail Mallayev stepped out as if from nowhere. In his hand he had a loaded and operable pistol.”77

  Janet Malcolm describes Leventhal’s gestures and physicality:

  When Leventhal uttered the words “this defendant,” he theatrically extended his arm and pointed across the room to a thickset man in his fifties with a gray beard and heavy dark eyebrows, wearing wire-rimmed eyeglasses and a yarmulke, who sat impassively at the defense table. Leventhal went on to describe how Mallayev shot Malakov in the chest and in the back, and, as the orthodontist lay on the ground dying, his blood pouring from his wounds, saturating his clothing and seeping into the cement, this man, the defendant, who ended his life, calmly and coolly took his gun, put it into his jacket, turned away and headed up 64th Road towards 102nd Street and fled the scene.