by Philip Meyer
There was another difficulty about the subject matters and theory presented at the Lawyering Theory Colloquium: academic narrative theory often seems abstract, esoteric, and difficult to parse. Narrative theorists write primarily for other academic specialists. It is difficult to cross academic boundaries and formulate the relevant “take-aways” that might be useful to generalists, law students, and practitioners. What exactly are the lessons that might be distilled as useful and that would send us forward in further exploration and navigation of this uncharted territory? There seemed little applied theory presented in academic and clinical literature employing examples drawn from popular culture, from literature and, most important, from litigation practice.
It struck me that I could attempt to fill this gap; I might even translate some of the relevant narrative theory into conceptual vocabulary useful to litigation attorneys, law students, and academic generalists. Also, I could select sample illustrations drawn from popular culture and literature and provide several close bottom-up readings of litigation stories from law practice. I thought that an engaging narrative sampler and primer, providing a simplified distillation of the academic narrative theory presented in the colloquium, would provide a useful starting point for further explorations by intrepid lawyer-storytellers. Simply put, that is what I have attempted to do in this book.
While attending the colloquium, I was simultaneously teaching a seminar, Law and Popular Storytelling, in the evening division at the University of Connecticut School of Law and, by day, directing the Legal Writing Program. One of the students in my Law and Popular Storytelling class was an undercover police detective with the Hartford Police Department, who had been assigned to help infiltrate the Connecticut faction of the Patriarca crime family. During our semester together, he shared that he would be testifying at the upcoming federal trial of eight “made” members of the Connecticut faction of the Patriarca crime family, who stood charged with various counts of racketeering, including the execution of the Connecticut “capo” of the family, an irresistibly evil gangster, Billy “The Wild Guy” Grasso. After class one evening, as was our practice, the class adjourned to the local bar. My student suggested that I consider attending the trial. He reasoned that since I taught a course about understanding the relationship between popular storytelling and legal storytelling, I might be interested in the trial as a living illustration of narrative theory in action.
That summer I scrupulously attended the entire trial, which proved to be a thirteen-week-long storytelling spectacular. In the years following the trial, I wrote four law review articles revisiting portions of the trial—especially the closing arguments—as narrative—that is, as storytelling.2
The stories and storytelling in that trial provided a remarkably complex interweaving of plots, counterplots, and subplots. The stories assumed forms that seemed compelled by the nature of the material itself, the characters of the various defendants and witnesses, and the invention and style of the various attorneys. The stories were part drama, part tragedy, part suspense thriller, part crime story, part melodrama, and part murder mystery. The trial was a carnival of theatricality and a showcase of artful storytelling practice. Yet it was also a deadly serious business, a storytelling in a “field of pain and death.”3 The consequences of the defendants’ convictions—they stood accused of murder, conspiracy to commit murder, and a plethora of lesser racketeering offenses—were grave indeed.
Nevertheless, the storytelling at trial was often surprisingly lighthearted; the stories recounted were at times poignant and told in voices that were almost lyrical. The courtroom was often filled with the raucous humor of a comedy club, especially when FBI surveillance tapes were played, revealing the intimate details of the various mobsters’ personal lives. The defendants’ personal stories were interwoven with the multiple legal stories of conspiracy and crime that arose from their professional lives.
I knew several of the defense attorneys and prosecutors from practice, including Jeremiah P. Donovan, the former chief trial attorney in the United States Attorney’s office in Connecticut. As my analysis in this book hopefully suggests, Donovan is an inventive and analytically self-reflective trial attorney. Donovan had been assigned by the trial judge, Alan Nevas, the former U.S. Attorney in Connecticut, to represent one of the defendants, Louis Failla.
After the court adjourned each day, I went to the courthouse library to work and then headed downhill toward a construction site that doubled as a parking lot while the courthouse was undergoing renovations. As the trial progressed, I observed that there was one other car in the parking lot at this late hour: the Jeep Cherokee belonging to Donovan. Typically, Jeremiah would be sitting in his car, talking animatedly and in a highly stylized manner. There was no one else with him in the car. Initially, I thought he might be talking on his car phone, but he was not. This scene repeated itself, especially during the final stages of the trial. Only after the trial concluded did I fully realize what Donovan had been doing in his car at the end of the trial: he was working to craft the two-hour closing argument that he would deliver at the end of the defendants’ case, on behalf of his client, Failla.
Through this external storytelling process Donovan was interweaving all the emerging narrative pieces and strands of evidence. These included the damning excerpts from the FBI surveillance tapes that condemned Failla by his own words plotting the murder of Tito Morales. The evidence also included excerpts from sympathetic surveillance tapes that Donovan had introduced during the presentation of Louie’s defense, tapes in which Louie spoke of the love he felt for his own family, including Tito Morales, as well as his hatred of the quintessentially evil Grasso.
The image of Donovan in his car struggling to transform argument into story, attempting to make it work both artistically and legally, fitting the evidence that had emerged at trial within the constraints of the law, stayed with me then as it does now. Donovan’s struggle is the struggle of all storytellers, including legal storytellers. In so many ways it was the same artistic process of vision and revision, telling the story over and over, trying to get it all just right, so that the story can fully do its work upon the listener or reader.
This book began with close readings of two illustrative legal stories—Gerry Spence’s closing argument on behalf of Karen Silkwood and Jeremiah Donovan’s closing argument on behalf of Louie Failla. I chose these two stories, embedded within the larger stories of the trials, because I thought of these arguments as discrete pieces, severable from the entirety and also representative of the stories that lawyers, especially litigation attorneys, employ as persuasive instruments. I also chose these illustrations because they were highly engaging and entertaining stories.
I hope that the closing arguments and other stories presented in this book are illustrative of the lessons that this text attempts to convey: Spence’s Silkwood argument provides the legal version of a good old-fashioned melodrama, featuring clearly defined heroes and villains. In its way, especially coming after the trial, it is a highly charged story with a well-paced plot. It borrows features from popular Westerns and monster movies, and blends in references to other important pop cultural sources and news events that are crucial for context.
For example, Spence’s “Cimarron Syndrome” cleverly cross-references the movie China Syndrome and the disaster at Three Mile Island with the story of the trial itself. The parts of the story—plot, character, setting, style, and time—all fit together in a compelling and well-balanced arrangement that Kenneth Burke and Jerome Bruner would surely appreciate. At its core it is a legal melodrama, Spence’s version of a genre typical in torts lawsuits. The story presents a moralistic tale about good defeating evil, embodied in the incorporeal corporate villain who comes alive. Spence tells an open and unfinished story; the proposed outcome is clearly signaled and predetermined by the selection of the genre. Silkwood is cast in the role of the fallen martyr and prophet, who comes on stage to save the community and townspeople. It is left to
the heroic jury to save the community and redeem the innocent townspeople, and to give Silkwood’s shortened life meaning.
Although the trial story and closing arguments are shaped into melodrama, this is neither a shallow or unfelt story. Indeed, just the opposite: it is a deeply felt story that is both truthful and factually accurate. What makes the story work upon the jury is its truthfulness: it is about corporate greed for profits, the irresponsibility of a soulless beast gone crazy on a lawless and primitive landscape, and the dangers signaled for the future if the Beast is not stopped when it finally emerges from beneath the bucolic mud springs. The story is factually meticulous yet also metaphoric; it works both levels, signaling the future while resonating in our present time.
The second example is my presentation and reading of Jeremiah Donovan’s argument told on behalf of Louie Failla. In many ways it is a smaller story, about the actions of one of the eight defendants, the lowest-ranking mobster in a complex RICO case, who is accused of plotting the murder of his grandson’s father. It is a story set within the context of a thirteen-week trial in which Louie Failla is merely a minor player who does not testify and seldom takes center stage in the trial itself. Yet it is a story told in purposeful counterpoint to the prosecution’s much larger melodramatic mob tale of unrepentant and evil gangsters chased by heroic cops protecting the public. Donovan’s retelling of the tale, primarily in his closing argument, is a character-based story that attempts to humanize Failla against the weight of the evidence and the self-incriminating tapes where Failla plots the murder of his grandson’s father and ingratiates himself with his mob family. Employing a complex sequence of visual cartoons, Donovan’s version looks beyond Failla’s words and inside Failla’s thoughts. Donovan’s story explores Failla’s consciousness in a way that is characteristic of literary and modernist stories, constructing a more complex yet unified version of Failla’s character than the evidence seems to allow. Although Failla is convicted, Donovan’s story is successful with the various audiences he seeks to reach: Failla receives leniency from the judge, who departs from the federal sentencing guidelines in sentencing Failla. Of equal importance is the way Donovan’s story redeems and explains Failla’s words and deeds in the eyes of both his real family and his adopted mob family.
These stories, and the other popular and law stories excerpted in this book, are not models or recipes in a storytelling cookbook. They serve as illustrations, and suggest lessons, themes, and techniques that can be borrowed or recycled for use in future cases.
The stories that lawyers tell are like, yet unlike, the stories told by other storytellers, including journalists, creative writers, and moviemakers. Lawyers’ voices are different. There are often explicit constraints on form and substance. Likewise, there are procedural and evidentiary rules that shape how law stories are told. Themes are determined by legal theories and often these theories are, in turn, shaped by the underlying stories. And, of course, the stories told by attorneys must be factually meticulous and truthful; lawyers are ethical realists. A final characteristic of law stories, especially the stories told in litigation practice, is that these stories are typically open or unfinished stories—their endings are strongly implied but not ordered or prescribed. It is up to a decision maker to write the ending, provide the closure and the coda that gives the story its meaning, and determine the outcome. And so, in a book on legal storytelling by a lawyer, it seems fitting that there is no explicit ending or single conclusion, no final lesson or outcome or point of departure. My purpose in this primer is merely to provide a starting point for better understanding the art of legal storytelling practice. I hope that readers have found my initial exploration of this subject of some value, and that the theory and illustrations stimulate and encourage legal storytelling creativity and inform the highly ethical storytelling work lawyers do.
Notes
CHAPTER 1
1. Kenneth Burke, A Grammar of Motives (New York: Prentice-Hall, 1945).
CHAPTER 2
1. 359 Mass. 319, 268 N.E.2d 860 (1971).
2. Ibid., 320–21, 268 N.E.2d at 860–61.
3. Ibid., 323, 268 N.E.2d at 862.
4. Ibid.
5. Peter Brooks, Reading for the Plot: Design and Intention in Narrative (Cambridge, MA: Harvard University Press, 1992), 11–12.
6. David Lodge, The Art of Fiction: Illustrated from Classic and Modern Texts (New York: Penguin Books, 1992), 216.
7. Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard University Press, 2002), 113–14.
8. Lodge, The Art of Fiction, 216.
9. Ibid., 217.
10. Ibid.
11. The technical term from narrative theory for such a reversal is “peripeteia.” For those interested, a dictionary of narratology defines peripety as “[t]he inversion (reversal) from one state of affairs to its opposite. For example, an action seems destined for success but suddenly moves towards failure, or vice versa. According to Aristotle, peripety (peripeteia) is, along with recognition (anagnorisis), the most potent means of ensuring the tragic effect.” Gerald Prince, Dictionary of Narratology, rev. ed. (Lincoln: University of Nebraska Press, 2003), 71.
12. Amsterdam and Bruner, Minding the Law, 113–14.
13. John Gardner, The Art of Fiction: Notes on Craft for Young Writers (New York: Vintage Books, 1985), 177.
14. Shorter Oxford English Dictionary, 5th ed., s.v. “theme” (New York: Oxford University Press, 1993).
15. Ibid. (emphasis added).
16. Philip N. Meyer, “Why a Jury Trial Is More Like a Movie Than a Novel,” Journal of Law and Society 28 (2001), 133.
17. Ibid.
18. Gardner, Art of Fiction, 70.
19. Joel Seidemann, In the Interest of Justice: Great Opening and Closing Arguments of the Last 100 Years (New York: Regan Books, 2004), 56.
20. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, NJ: Princeton University Press, 1971), 47.
21. Michael Roemer, Telling Stories: Postmodernism and the Invalidation of Traditional Narrative (Lanham, MD: Rowman & Littlefield, 1995), 280–81.
22. Francois Truffaut, Hitchcock (New York: Simon & Schuster, 1967), 141, quoted in Roemer, Telling Stories, 282.
23. For examples of epic tales with battles between heroes and villains, see Ananda K. Coomaraswamy and Sister Nivedita, Myths of the Hindus and Buddhists (New York: Dover, 1967), 6; Kevin Crossley-Holland, The Norse Myths (New York: Pantheon Books, 1980); William Peter Blatty, The Exorcist (New York: Harper Torch, 1994); The Exorcist, directed by William Friedkin (1973); Alien, directed by Ridley Scott (1979).
24. See George Lakoff and Mark Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980), 83–85; Amsterdam and Bruner, Minding the Law, 20–53.
25. Literary theorists and critics use the term “intertextuality” to refer to the way in which a story interacts with other stories that are familiar to the reader or audience—essentially, the resonances of other well-known tales that a story awakens and the deepening and complication of the story that results from those resonances. See Prince, Dictionary of Narratology, 46.
26. Roemer, Telling Stories, 276.
27. Ibid.
28. In narratology, the term “instantiation” captures how shared understandings of “how the world works” order events into narrative, and—like causality, story logic, and genre—serve as another constraint on a plot shaping the narrative and determining narrative outcomes. Such beliefs may include, for example, simply that “good will vanquish evil in the end” or that “no bad deed finally goes unpunished” or that “redemption is a possibility for us all in the end when we accept responsibility for what we have done and seek forgiveness with the fullness of our hearts,” etc.
29. Peter Brooks observes, “an infraction of order … [is] preeminently what it takes to incite narrative into existence.” Brooks, Reading for the Plot, 26.
CHAPTER 3
1. Michael Lief, H.
Mitchell Caldwell, and Benjamin Bycel, Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law (New York: Simon & Schuster, 1998), 127–57.
2. Silkwood, directed by Mike Nichols (1983).
3. This “backstory” in this section compresses and simplifies the explanation presented in Lief, Caldwell, and Bycel’s Ladies and Gentlemen of the Jury, 119–22. Quotations from Spence’s closing argument are taken from the text of the argument as presented by Lief, Caldwell, and Bycel, 127–57.
4. Ibid., 127–28.
5. Ibid., 128.
6. Anthony G. Amsterdam and Randy Hertz, “An Analysis of Closing Arguments to a Jury,” New York Law School Law Review 37 (1992), 55, 61.
7. Gerry Spence, Win Your Case: How to Present, Persuade, and Prevail—Every Place, Every Time (New York: St. Martin’s Griffin, 2005), 224–25.