Storytelling for Lawyers

by Philip Meyer

  Why then is there such an apparent emphasis on chronology in legal storytelling? There are several possible reasons. Perhaps there is a strong presumption that chronology embodies how events transpire in real time, and it certainly arouses the least suspicion, especially from highly skeptical judicial readers and listeners. The legal storyteller must not lose credibility and must signal to her audience that she is depicting events candidly and “objectively.” The legal storyteller typically employs simple chronology to persuade the listener or reader that she is subordinating narrative to legal argumentation, merely presenting rather than manipulating the facts to suit her purposes.

  Beneath all these reasons is a narrative conceit, a shared misconception about the relationship between causality and chronology. That is, storytellers often rely on strict chronology based on the presumption that chronological and causal connections are always interrelated; that earlier events presented in a narrative sequence cause the later events. This fallacy is defined by Gerald Prince in his dictionary of narratology:

  Post hoc ergo propter hoc fallacy: A confusion, denounced by scholasticism, between consecutiveness and consequence. According to Barthes (following Aristotle), the mainspring of narrativity is related to an exploitation of this confusion, what-comes-after-X in a narrative being processed as what-is-caused-by-X: given “It started to rain, and Mary became nostalgic,” for example, Mary’s nostalgia tends to be understood as caused by the weather conditions.4

  Nevertheless, even the most seemingly linear, straightforward, and chronological stories, when examined closely, are seldom presented in a strict chronology. Stories are inevitably filled with departures from a literal chronology, taking off at one point in time, landing at another. Like Billy Pilgrim in his spaceship time travels, storytellers frequently move about in time within narrative, although seldom with the obvious extremity of Vonnegut’s reverse causality as presented in the excerpt from Slaughterhouse Five. Nevertheless, there is seldom a standardized one-size-fits-all, strict and truly linear chronology available for telling legal stories. Unlike Billy Pilgrim, who is involuntarily committed to a mental hospital for attempting to explain to his listeners how he has become unstuck in time, the legal storyteller typically does not want to emphasize her departures from chronology. But there are techniques that all storytellers inevitably employ to move about in time, departing from chronology, either purposefully, intuitively, or inadvertently. This chapter identifies and foregrounds some of these narrative techniques.

  C. Variations on Chronology

  Billy couldn’t read Tralfamadorian, of course, but he could

  see how the books were laid out in brief clumps of symbols

  separated by stars. Billy commented that the clumps might

  be telegrams.

  “Exactly,” said the voice.

  “They are telegrams?”

  “There are no telegrams on Tralfamadore. But you’re

  right: each clump of symbols is a brief, urgent message—

  describing a situation, a scene. We Tralfamadorians read

  them all at once, not one after the other. There isn’t any particular

  relationship between the messages, except that the

  author has chosen carefully, so that, when seen all at once,

  they produce an image of life that is beautiful, surprising

  and deep. There is no beginning, no middle, no end, no suspense,

  no moral, no causes, no effects. What we love in our

  books are the depths of the many marvelous moments seen

  at one time.”5

  Unlike Tralfamadorians, we do not read all of our moments at one time, together. We move in sequence from one moment in discourse time to the next in understanding the events within the story. In a story, however, these moments in time seldom proceed in rigid lockstep with the ticking of a clock. There are, of course, a few notable exceptions. For example, in the film High Noon, one minute of screen time for the audience equals approximately one minute of “real time” replicating the two hours before the arrival of Frank Miller on the noon train. The film proceeds to provide a purportedly strict chronology of events occurring during this time. This is an effect, however, that can only be achieved in film. Unlike movies (and perhaps this is one of the reasons films seem so “real” to us and are a dominant mode of storytelling in our time), other forms of storytelling cannot effectively capture and embody “real” time. Nevertheless, the arrangement of moments must appear to present a natural and sequential unfolding of the events in story. However, a pure and rigid chronology is seldom the most effective way to capture narrative time in story; indeed, the grammar of sentences often departs from chronology even when the storyteller attempts to sequence events into a linear and chronological discourse time that mirrors the unfolding of events within the story itself. A storyteller can seldom match the depiction and unfolding of events with the ticking of a clock; the narrative presentation of a story distorts the shape of the events depicted within it.

  There are techniques and narrative devices that storytellers employ intuitively to depart from chronology, to tell stories effectively in a discourse time that intentionally rearranges the sequencing of events, establishing a different order than the sequence in which these events purportedly occur within the story itself (“story time”). In narratology, there is a specific name for this departure or separation: anachrony. Prince’s dictionary of narratology provides this definition:

  Anachrony: A discordance between the order in which events (are said to) occur and the order in which they are recounted: a beginning in media res followed by a return to earlier events constitutes a typical anachrony. In relation to the “present” moment, the moment when chronological recounting of a sequence of events is interrupted to make room for them, anachronies can go back into the past (retrospection, analepsis, flashback) or forward to the future (anticipation, prolepsis, flashforward). They have a certain extent or amplitude (they cover a certain amount of story time) as well as a certain reach (the story time they cover is at a certain temporal distance from the “present” moment): in “Mary sat down. Four years later she would have the very same impression and her excitement would last for a whole month,” the anachrony has the extent of one month and a reach of four years.6

  Let’s now return, briefly, to several law stories analyzed in the first three chapters of this book and to several supplemental literary examples illustrating various departures from or variations on a linear chronology. These illustrations will show the techniques storytellers employ to structure discourse time within a narrative framework, separating the order in which events are said to occur in the story from the order in which they are actually recounted. The storyteller uses these techniques to present the story in the most effective and compelling way.

  D. “Analepsis” or “Flashback”

  Prince defines analepsis as “[a]n anachrony going back to the past with respect to the ‘present’ moment; an evocation of one or more events that occurred before the ‘present’ moment (or moment when the chronological recounting of a sequence of events is interrupted to make room for the analepsis) a retrospection; a flashback,”7 Analepsis can be, characteristically, of two types: “Completing analepses, or returns, fill in earlier gaps resulting from ellipses in the narrative. Repeating analepses, or recalls, tell anew already mentioned past events.”8

  The analysis of the opening paragraphs of Emma in chapter 3 provided a brief illustration from literature, when in the second paragraph the story shifts and returns in time to provide the backstory of Emma’s past. In Hollywood films and television “flashbacks” are a staple of the cinematic storytelling vocabulary: for example, the story cuts dramatically to a scene from the character’s past that reveals crucial backstory explaining pieces of the plot or some crucial aspect of a particular character’s motivations. Other complex characters may reveal pieces of their crucial backstories presented in summary as the action slows down, momentarily m
aking room for dialogue. For example, in High Noon we learn of the death of Amy’s father and brother in a gunfight in a brief summary when she explains the origins of her Quaker and pacifist beliefs; likewise, crucial backstory about Helen Ramirez’s relationship with Frank Miller and Kane is also revealed in summary form within careful snippets of dialogue.

  Analepses are also used, and often used extensively, in legal storytelling practices. For example, the petitioner’s brief in Eddings responds to the Oklahoma courts’ refusal to consider Eddings’s childhood history in mitigation of his murder sentence. The brief relies extensively on flashbacks to incidents from Eddings’s childhood that were not considered at sentencing.

  Another legal example employing strategic disjunctions in narrative time is Jeremiah Donovan’s clever, darkly comedic, and meticulously constructed closing argument on behalf of Louie Failla. Recall, for example, how Donovan starts off the argument theatrically “in media res” within the present tense of the trial itself. The newspaper reporters covering the trial specifically emphasize the appearance of the seemingly already-defeated Donovan as he initially approaches the jury “his head bowed, his voice exhausted” after listening to other closing arguments of the other defendants attacking the credibility of his client Failla, since it was Failla’s voice on the surveillance tapes that was the crucial linchpin in the prosecutor’s case against them for the murder of Billy Grasso. He begins with references to the trial and to the complexity of the judge’s charge. Then Donovan sets these present-tense events aside as if he can go no farther and tells his story of “the legendary O’Toole” presented in an Irish barroom brogue. This initial story sets the comedic tone of the narrative that follows and establishes his baseline depiction of Failla’s character. After the story within a story Donovan cuts intertextually like a movie director, providing a flashback that moves back into the past, where the jury is reintroduced to Louis Failla who is living in a “rented duplex out in East Hartford” that “hasn’t been painted for eighteen years.… He is living essentially in poverty.… Why is he living in poverty?”9 Donovan then answers his own rhetorical question by moving even further back into the past, inserting a visual scene developing the backstory of the relationship between Failla and the murderous mobster William Grasso.

  Donovan continues: “A made member of the Patriarca crime family, how could he be living in poverty? Because something has happened, and William Grasso has essentially shunned Louie Failla.… They keep him out of all activities. Grasso has done that.… [He] wouldn’t let Louie be involved in anything.”10

  Donovan, in other important places, doesn’t merely rely on snippets or quotations from dialogue as interlineations to provide backstory in summary form. Instead, he often fills in spaces, what narratologists define as “ellipses” or omissions in time, by slowing down the storytelling and inserting fully developed and “time-consuming” scenes.

  Donovan’s argument on behalf of Failla, like the examples from literature and movies, and like the petitioner’s brief in Eddings, departs effortlessly and intentionally from the rigid and linear chronology typically suggested in legal writing texts and clinical literature. In doing so, Donovan matches discourse time to the coherent and purposeful depiction of the events within the story. The narrative logic shapes the order and sequence of the events; Donovan does not need to point out exactly when these events are taking place in real time, or emphasize the disjunctions or departures from a strict chronology, as long as the sequence in discourse time is well coordinated with the story time. Indeed, in his closing argument, Donovan as storyteller has the confidence not to identify precisely the timing of the various occurrences depicted in his story. Donovan avoids breaking the “spell” of the story by revealing the strategic default codes underlying the timing of the events depicted in the narrative.

  E. “Prolepsis” or “Flash-forward”

  In legal storytelling, the use of prolepsis (flash-forward) is less common, but it is still employed, especially in trial storytelling. Prince defines prolepsis as “[a]n anachrony going forward with respect to the ‘present’ moment; an evocation of one or more events that will occur after the ‘present’ moment (or moment when the chronological recounting of a sequence of events is interrupted to make room for a prolepsis); an anticipation, a flashforward, a prospection.”11 As with analapses, there are technically two types of prolepses, completing and repeating prolepses.12

  Here, from Gerry Spence’s closing argument on behalf of Karen Silkwood, is an illustration of a “completing” prolepsis or flash-forward. Spence moves rapidly across time and anticipates the future twenty years after the completion of the trial. He visualizes what will happen to the community and workers at the Kerr-McGee plant if the jury fails to fulfill its heroic oath by stopping Kerr-McGee through speaking the only language the Beast understands, the language of money, and awarding compensatory and punitive damages for Silkwood’s death:

  Now I have a vision. It is not a dream—it’s a nightmare. It came to me in the middle of the night, and I got up and wrote it down, and I want you to hear it.… Twenty years from now—the men are not old, some say they’re just in their prime, they’re looking forward to some good things. The men that worked at that plant are good men with families who love them. They are good men, but they are dying—not all of them, but they are dying like men in a plague. Cancer they say, probably from the plutonium plant.13

  Then he moves backward in time:

  He worked there as a young man. They didn’t know much about it in those days.… Nobody in top management seemed to care. Those were the days when nobody in management in the plutonium plant could be found, even by the AEC, who knew or cared. They worked the men in respirators. The pipes leaked. The paint dropped from the walls. The stuff was everywhere.14

  Use of prolepses (and analapses) is not limited to oral storytelling. There are numerous examples in legal briefs. In legal briefs these time shifts are often marked by the formalities of captions or headers that signal to the reader the shift in time that is taking place. In written legal briefs, the direction of time can and often does turn on a dime; there are subtle movements and adjustments from sentence to sentence, and often even within sentences. That is, temporal moves are made on a “micro” or grammatical level as well as on the “macro” level in the strategic shifting and placement of scenes and summaries within the arrangement of a carefully structured plot.

  Prince illustrates this quick movement (a prolepsis) in time in a sequence of two sentences: “John became furious. A few days later, he would come to regret this attitude, but now, he did not think of the consequences and he began to scream.”15 Similarly, legal storytellers are constantly marking and adjusting time within their stories; although we purport to emphasize chronology as the primary mode of legal storytelling, it is inevitable that stories depart from a chronology, calibrating and coordinating “discourse time” with the most effective presentation of the events of the plot in story time.

  F. “Ellipsis”

  “When there is no part of the narrative (no words or sentences, for example) corresponding to (representing) narratively pertinent situations and events that took time, ellipsis pertain.”16 Simply put, an ellipse is an open space in story time not yet filled in by events. It is an “omission of an element within a series” of events set in story time. The ellipse can either be explicit and identified by the narrator or it can be implicit, “inferable from a break in the sequence of events recounted.”17 It is the story time that remains to be filled in; the removed and typically unstated past after a flashback returns to the present moment. There is, for example, an ellipse when Jeremiah Donovan moves from the present tense of the trial and returns into the past:

  First of all let’s talk about chronology here. With respect to Louie Failla, this case begins in about February of 1989. What do we know about Louis Failla at that point? Well, he’s living in a rented … [a rented duplex] out in East Hartford. Hasn’t been painted in eig
hteen years.… He is living in poverty.18

  Then Donovan asks rhetorically, “Why is he living in poverty? A made member of the Patriarca crime family, how could he be living in poverty? Because something has happened.”19

  The flashback (analepsis) creates a gap in the story events, and Donovan goes about filling in the space (an ellipse) with other events set in time. Likewise, there are structured ellipses breaking the chronology in the presentation of story events in the various legal stories and briefs that I have analyzed. For example, in his Silkwood argument Gerry Spence jumps from the present to imagine a time twenty years in the future and, likewise, jumps forward over time from his initial statement of the law of strict liability set in old England, anticipating the jury charge on strict liability for Kerr-McGee.

  Mieke Bal, a respected narrative theorist on the subject of narrative time, identifies the popular movie Back to the Future as a movie that, just as its title suggests, is built on the clever device of gradually filling in “ellipses” in the present by vacillating between the past and the future to retrieve events and information crucial to completing the story. Just as Billy Pilgrim does in Slaughterhouse Five, the protagonist of Back to the Future becomes unstuck in time and fills in the ellipsis in the present by alternative time travels into past and future. The vehicle for his journey is a Delorean automobile modified for time travel by a mad scientist (alternative to the flying saucer outfitted on Tralfamadore for Pilgrim).

  An “ellipse” in narrative time in a story is equivalent to the grammatical marking “.…” An ellipse may be filled in implicitly by the imagination of the reader-listener. Alternatively, it may be completed explicitly and purposefully by the narrator. Often the purpose of the ellipse is to powerfully emphasize, rather than to deemphasize, the omitted event as the reader is left to wonder what happened next, until the reader’s anticipation and expectation are fulfilled later in the discourse time of the story.