Storytelling for Lawyers

STORYTELLING FOR LAWYERS

PHILIP N. MEYER

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For Anthony G. Amsterdam,

with gratitude and admiration.

For my family, with love.

Contents
Acknowledgment
1. Introduction
I. Lawyers Are Storytellers
II. Legal Arguments Are Stories in Disguise
III. The Parts of a Story
IV. Movies and Closing Arguments
2. Plotting I: The Basics
I. What Is Plot?
II. Plot Structure in Two Movies
3. Plotting II: Plot Structure in a Closing Argument to a Jury in a Complex Torts Case
I. The Backstory
II. Annotated Excerpts from Gerry Spences Closing Argument on Behalf of
Karen Silkwood
III. Concluding Observations
4. Character Lessons: Character, Character Development, and Characterization
I. Introduction: Why Emphasize Movie Characters in Legal Storytelling?
II. What Is Character, and Why Is It Important to Legal Storytellers?
III. Flat and Round Characters and Static and Changing CharactersHigh Noon
Revisited
IV. Techniques of Character Development and Characterization: Excerpts from Tobias
Wolffs This Boys Life
5. Characters, Character Development, and Characterization in a Closing Argument to a
Jury in a Complex Criminal Case
I. The Backstory
II. Annotated Excerpts from Jeremiah Donovans Closing Argument on Behalf of
Louis Failla
III. Concluding Observations
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
I. Backstory: Grading Law School Examinations
II. Preliminary Note: Voice and Style
III. Voice and Rhythm: Staying on the Surface
IV. The Use of Scene and Summary: Showing and Telling
V. Telling in Different Voices
VI. Perspective or Point of View
VII. Several Functions of Perspective: How Does Perspective (Point of View) Work, and
What Work Does It Do?
VIII. Concluding Observations
7. A Sense of Place: Settings, Descriptions, and Environments
I. Introduction
II. Dangerous Territory: Contrasting Settings Evoking Danger and Instability in
Joan Didions The White Album and the Judicial Opinion in a Rape Case
III. More Dangerous Places Where Bad Things Happen: Use of Physical
Descriptions and Factual Details to Create Complex Environments in W. G.
Sebalds The Emigrants and the Petitioners Briefs in Two Coerced
Confession Cases
IV. Settings and Environment as Villains and Villainy in the Mitigation Stories of
Kathryn Harrisons While They Slept and the Petitioners Brief in Eddings v.
Oklahoma
V. Concluding Observations
8. Narrative Time: A Brief Exploration
I. Introduction
II. The Ordering of Discourse Time
III. Concluding Observations
9. Final Observations: Beginnings and Endings
Notes
Index

Acknowledgment
2003 THROUGH 2008 I collaborated with Anthony G. Amsterdam preparing instructional
materials for the Narrative Persuasion Institute. In this book I draw on these materials. I am
grateful to Tony for his encouragement and support enabling me to write this book.
FROM

Storytelling for Lawyers

1
Introduction

Somewhere along the way one discovers that what one has
to tell is not nearly so telling as the telling itself.
HENRY MILLER, REFLECTIONS ON
WRITING, in THE WISDOM OF THE HEART

A good story and a well-formed argument are different

natural kinds. It has been claimed that one is a
refinement or abstraction from the other. But this must
be either false or true in only the most unenlightening
way. They function differently and the structure of a
well-formed logical argument differs radically from that of
a well-wrought story.
JEROME BRUNER, ACTUAL MINDS,
POSSIBLE WORLDS

I. Lawyers Are Storytellers

Some years ago I practiced law. Most of my time was spent telling stories. I spoke to
insurance adjusters and parole officers, to attorneys representing clients with adversarial
interests, to government bureaucrats. And of course, I told stories in court. Typically, I told
simple plot-driven, fact-based narratives. Of course, I tried to make my stories factually
meticulous and accurate. But I constantly ordered and reordered events as I reconstructed the
past to serve my clients purposes. Usually, I depicted my clients sympathetically, even when
I did not believe this was their true character. When it served my purposes, I made the plots
of my stories vivid and compelling. Sometimes, however, I flattened or obscured events, or
sped up narrative time, or softened reality with intentional shifts from one genre into another.
Other times, I slowed down time, focused on specific sequences of crucial images, or
employed forms that heightened the impact of a story.
I learned to watch and listen to how my audience listened to me, and I would respond to
their concerns, reshaping my stories to fit the shape of their imaginings. I recall the novelist

John Irving instructing students at the Iowa Writers Workshop that effective storytelling
requires ruthlessness and commitment to constructing a coherent and seamless world. It is
apparent to me that successful lawyers are at ease with their storytelling roles of depicting
The World According To in the battle of competing stories inside and outside the
courtroom. And I now believe that many of the lessons I learned from creative writers of
fiction and nonfiction are as important to successful law practice as any doctrine.
Make no mistake about itlawyers are storytellers. It is how we make our livings. In law
practice effective storytelling is often outcome-determinative; sometimes it is literally a
matter of life or death. Of course, storytelling practice in law is also unlike the work of other
popular storytellers. Lawyers are ethical and truthful storytellers; imagination is informed,
shaped, and limited by evidence. The lawyers voice and persona are different; the rules of,
and constraints upon, formal legal storytelling are explicit and unlike those of other popular
storytellers. Further, lawyers often do not tell complete stories, typically leaving it to others
(judges, juries, decision makers) to complete the tales and inscribe codas of meaning.
Nevertheless, as lawyers we have much to learn from studying the craft of storytelling and
applying these lessons to our legal practice. As professional storytellers we can do our jobs
better the more consciously we deploy the tools of the storytellers craft.

II. Legal Arguments Are Stories in Disguise

All arguments, at any level or in any type of practice, are built upon arrangements of the facts
of a particular case. These facts are shaped into stories carefully fitted with legal rules and
precedent. It is impossible to make any legal argument without telling some stories about the
facts and about the law.
Unlike an analytical argument, the structure and internal components of a story are never
pointed out or made explicit to a listener or reader. The verisimilitudeor lifelikeness
crucial to effective storytelling demands that the audience not be distracted by, or even be
aware of, the technical craft that shapes the material, lest the storyteller risk breaking the
storys spell over its audience.
Nevertheless, as storytellers have understood for millennia, there is a powerful and welldefined narrative architecture or structure in stories. There are clear principles that inform
storytelling practice. This is no less true for the types of stories that lawyers tell. As Henry
Miller observes, and as any effective litigation attorney knows, the truth of a story is in its
telling. Likewise, a storys form is inseparable from its content; the two are inextricable.
But how does a lawyer tell a goodeffective, purposeful and persuasive, compelling and
factually meticulous, and truthfulstory? What theory, techniques, and craft are helpful to
legal storytellers? What, for example, are the components of an effective plot? How does a
story turn on a narrative theme, and how does a theme inform a litigators theory of the case?
What are the commonly recurring plots (the stock stories) employed in various types of law
practice? What are relevant genres? Who are the characters in legal stories? How are these
characters cast into specific roles? And how is character best depicted and developed? What is
narrative time and how is it artfully and strategically employed and manipulated? Why does
setting matter profoundly in some types of legal storytelling and not at all in others? What

stylistic lessons might lawyers learn from other masterful popular storytellers, including
novelists, journalists, and moviemakers?
Unfortunately, the standard law school curriculum directs little, if any, systematic attention
to developing storytelling skills; indeed, doctrinal legal education devalues the complex
stories at the heart of the law and the storytelling skills crucial for practice. Perhaps, in part,
this is based on a shared misbelief that these skills are intuitive or cannot be taught. Perhaps,
in part, it is believed that lawyers learn about storytelling through their practices simply
because we do so much of it.
Strangely, in a profession where storytelling skills matter profoundly, lawyers typically do
their work without ever reflecting systematically on the nature of their craft. It is the simple
premise of this book that lawyers, law students, and academic generalists may benefit from
this exploration. This book provides a guide for the journey. It is not, however, a storytelling
cookbook; there are no easy-to-follow recipes for effective legal storytelling. Instead, the text
identifies and foregrounds the components of a story and visits principles of storytelling craft
useful to lawyers.

III. The Parts of a Story

Although there are no simple recipes or paint-by-the-numbers formulae for effective
storytelling, there are discrete elements or components of all stories. For example, journalists
learn to address the Five Ws in constructing stories: Where? Who? What? When? Why?
Narrative theorists have devoted entire academic careers to distilling and separating the
components or dimensions of a story and comprehending their interrelationshipshow these
components fit together seamlessly, and how adjusting or fine-tuning one aspect of a story
inevitably affects all other aspects as well. One of the most distinguished theorists, Kenneth
Burke, formulated the Pentada five-part analysis of the human drama as it is reconfigured
in narrative (or story). Tracking the journalists Five Ws, Burke identified Five Key Terms of
Dramatism.1
My colleague Anthony Amsterdam, in turn, reformulated Burkes Pentad as a tool relevant
to formulating and constructing legal stories, as follows:
1. Scene
2. Cast and Character
3. Plot
4. Time Frame
5. Human Plight
This roster also identifies the primary divisions of this book. Of course, these components are
twisted together and interlocking, the DNA of a story that reveals the nature of the story and of
the world itself. Nevertheless, it is useful to canvass these components individually throughout
the process of constructing a story.

This book begins with the component of plot because it is typically the most important
component of legal stories. Legal stories, especially in litigation, are plot-driven and
protagonist-centered stories. Other aspects of the story take a backseat to plotting. The second
and third chapters of the book focus on plotting and provide close analysis of a plot-driven
legal story as a primary illustration: Gerry Spences closing argument at trial on behalf of
plaintiff Karen Silkwood. Chapters 4 and 5 are about character construction in legal
storytelling practice. The legal story analyzed as a primary example here is Jeremiah P.
Donovans remarkably engaging and theatrical character-based closing argument on behalf
of the reputed mobster Louis Louie Failla. This legal story is a complex and subtle
tragicomedy; at the core is Donovans depiction and development of Faillas complex
character. Chapter 6 addresses the importance of discrete and selected aspects of the stylistic
component of legal storytelling including voice, perspective, rhythms of language, and use of
scenes and summaries. Chapter 7 explores the creation and depiction of the settings and stages
on which legal stories unfold; it examines how the scope and boundaries of the world of the
story are, in many cases, strategically crucial to legal storytelling. Finally, chapter 8 focuses
on the topic of narrative time and how the inexorable progression of linear and forwardmoving time is inevitably reshaped and transformed in a story. Although narrative time
appears to mimic real time, it seldom, if ever, does so.

IV. Movies and Closing Arguments

Many of the popular culture examples of stories employed in this book are drawn from
movies. This may be, partially, because in my day job, in addition to teaching traditional
doctrinal subjects (criminal law and torts), I teach law and film and law and popular culture,
and have written extensively about these subjects. Consequently, I turn instinctively to popular
film for illustrations of stories relevant to lawyers, even though many of these films are not
about legal subjects.
Furthermore, in our predominantly visual popular culture, movies are typically more
familiar than literature. Teaching law students and practitioners over the past twenty years, I
have discovered a heightened visual literacy exists in our media-obsessed popular culture. But
the reasons for choosing these visual texts as primary examples in this book are deeper.
First, the stories that lawyers tell, especially trial stories, exist within a wide range of
popular storytelling practices. Advertising, popular songs, television programming, YouTube
videos, novels, memoirs, and creative nonfiction influence and, in turn are influenced by,
other popular stories and storytelling practices. The stories and storytelling practices that are
most influential upon legal storytellers are visual storytelling practices, especially those in the
cinema, and especially the linear, protagonist-centered, theme-based, hard reductionist stories
of Hollywood entertainment films. These stories influence and inform courtroom storytelling
including the substance, style, structure, and content of trial work. In many ways, the trial
practitioner intuitively draws upon the content and form of popular film to connect with his
audience, just as moviemakers draw upon the drama of the law, the theme and value of justice,
and the subject of the trial in so many recent popular movies.
Second, the work and professional role of the trial lawyer is specifically akin to that of the

movie director. Effective litigators, like Hollywood directors and screenwriters, typically
storyboard evidence into clear and purposeful plots. Experienced trial lawyers, like Gerry
Spence and Jeremiah P. Donovan, whose closing arguments are analyzed in this book, are
especially adept at converting evidence introduced at trial into well-shaped and carefully
constructed stories. The narrative story structure frames how jurors process and interpret
evidence and provides the basis for juror deliberations and verdicts. Jurors passively watch
and witness the drama of the trial as it unfolds in the courtroom theater, almost as if sitting in
the darkness at the movies; their attention, expectations, and story consciousness are often
shaped and prefigured by Hollywood cine-myths.
Finally, the nature of the trial itself is changing rapidly. Many of these changes are caused
by the use of new technologies, especially aural and visual paratexts at trials, including
computer simulations, visual aids, video and audio evidence, and other often professionally
produced storytelling enhancements and devices. The impact of this technology is profound
and often transformative. There has been a reinvention of the ways stories are told, and this
affects the stories themselves. As in Spences and Donovans closing arguments, evidence is
often presented orally or visually. These are present-tense voices and images, rather than pasttense testimonial evidence. Like a director in the movies, the artful legal storyteller weaves
together these materials; in this weaving, there is often a radical reinvention in the content and
form of trial storytelling. Additionally, lawyers work is the subject of numerous television
programs and films.
As a result of these changes in courtroom storytelling practices, and in jurors expectations
about lawyers and legal storytelling, a phenomenon has emerged: jurors seem to make sense
out of evidence in deliberations by referring to other imagistic stories, primarily drawn from
television and popular entertainment films. No longer does popular culture merely present
images of the law; popular culture embodies and creates the law.
Sophisticated and shrewd trial lawyerslike Spence and Donovanare aware of the
interpenetration of law practice and popular culture. As a result, stories told at trial and in oral
argumentlike Spences civil closing argument on behalf of Karen Silkwood, or Donovans
closing argument on behalf of the criminal defendant Louie Faillaare, curiously, a form of
entertainment. Stories are packaged in theories and imaginative forms that capture the
imagination of jurors and embody other popular stories, often borrowed from the plots of
Hollywood movies.
Storytelling for Lawyers uses movies as examples of compelling popular stories, employs
narrative theory to understand how these stories are artfully constructed, and maps insights
from analyses onto the domain of legal stories, including the masterful closing arguments by
Spence and Donovan. It is my intention that this book may provide a narrative primer and
suggest a model for strategies that will assist lawyers in developing their own legal
storytelling practices.

2
Plotting I
THE BASICS

[Plot is] the intelligible whole that governs a succession of

events in any story. A story is made out of events to the
extent that plot makes the events into a story.
PAUL RICQEUR, NARRATIVE TIME

If you listen to the way people tell stories, you will hear that
they tell them cinematically.
DAVID MAMET, ON DIRECTING FILM

If youre ever in doubt about how to end your story, think in

terms of an up ending. There are better ways to end your
screenplay than have your character caught, shot, captured,
die, or be murdered.
SYD FIELD, SCREENPLAY: THE FOUNDATIONS OF
SCREENWRITING

I. What Is Plot?
Peter Brooks, a leading American narrative theorist, tells an anecdote about a brilliant
graduate student in his advanced narrative theory seminar. According to Brooks, this young
woman was so imbued with narrative prescience that she could accurately predict the plot
trajectories of novels, anticipating the endings, by a close reading of the opening pages. That
is, she could decode the plot structure embedded within the story from the outset of the telling.
The point of the anecdote is that, as Michael Roemer suggests, stories are already over before
they begin and, especially in law, are written to justify a predetermined or desired outcome.
I have had similar experiences while teaching torts and criminal law courses. First-year law

students in torts and criminal law inevitably observe that they can predict the outcome of a
case by a close reading of the beginning of the opinion where the court tells the factual story
framing the legal analysis that follows.
Here, for example, are the opening paragraphs from Coblyn v. Kennedy,1 an intentional
torts case taught early in the first semester. There are two related legal issues in the case. The
first issue is whether, as a matter of law, the plaintiff can recover for the tort of false
imprisonment. The story the court tells, like most judicial storytelling, is designed to appear
plotless, merely a chronology or recitation of the facts determined at trial. The story is told
exclusively from the perspective of the plaintiff. The court frames the plot narrowly to fit the
legal issue: defendant contends that, as a matter of law, no unlawful restraint [was] imposed
by force or threat upon the plaintiffs freedom of movement. The court retells this portion of
the story and embeds a plot within its telling:
We state the pertinent evidence most favorable to the plaintiff. On March 5, 1965, the plaintiff went to
Kennedys, Inc. (Kennedys), a store in Boston. He was seventy years of age and about five feet four inches
in height. He was wearing a woolen shirt, which was open at the neck, a topcoat and a hat. Around his
neck he wore an ascot which he had purchased previously at Filenes. He proceeded to the second floor of
Kennedys to purchase a sport coat. He removed his hat, topcoat and ascot, putting the ascot in his pocket.
After purchasing a sport coat and leaving it for alterations, he put on his hat and coat and walked downstairs.
Just prior to exiting through the outside door of the store, he stopped, took the ascot out of his pocket, put it
around his neck, and knotted it. The knot was visible above the lapels of his shirt. The only stop that the
plaintiff made on the first floor was immediately in front of the exit in order to put on his ascot.
Just as the plaintiff stepped out of the door, the defendant Goss, an employee, loomed up in front of
him with his hand up and said: Stop. Where did you get that scarf? The plaintiff responded, Why? Goss
firmly grasped the plaintiffs arm and said: You better go back and see the manager. Another employee
was standing next to him. Eight or ten other people were standing around and were staring at the plaintiff.
The plaintiff then said, Yes, Ill go back in the store and proceeded to do so. As he and Goss went upstairs
to the second floor, the plaintiff paused twice because of chest and back pains. After reaching the second
floor, the salesman from whom he had purchased the coat recognized him and asked what the trouble was.
The plaintiff then asked: Why [did] these two gentlemen stop me? The salesman confirmed that the
plaintiff had purchased a sport coat and that the ascot belonged to him.2
The salesman became alarmed by the plaintiffs appearance and the store nurse was called. She brought
the plaintiff into the nurses room and gave him a soda mint tablet. As a direct result of the emotional upset
caused by the incident, the plaintiff was hospitalized and treated for a myocardial infarct.

There is a second legal issue analyzed in the opinion: whether plaintiffs detention was
permissible under a statute that permits the store owner to detain a customer who is suspected
of shoplifting for a reasonable time, and in a reasonable manner, provided there are reasonable
grounds for the detention. The court, however, chooses strategically not to tell this part of the
story; it concludes that it does not have to do so because, based on its initial telling of the
story, there were no reasonable grounds for believing that the plaintiff was committing
larceny and, therefore, he should not have been detained at all.3 It adds that the physical
restraint in a public place imposed upon the plaintiff, an elderly man, who had exhibited no
aggressive intention to depart, could be said to constitute an unreasonable method by which to
effect a detention.4 Then the court analyzes the law of reasonable suspicion at some length
and finally, in my opinion, does the right thing by providing a just and correct legal outcome,
affirming the verdict of the trial court for the plaintiff.
My point is twofold: first, my first-semester students, not yet jaded by law school, are

correct when they say that they can predict the outcome from reading the initial summary of
the facts. Like Brookss prescient graduate student, the students intuitively realize that the
opening or beginning of the opinion determines the trajectory of the plot for both the factual
and legal stories that follow. It also anticipates the ending and outcome of the case. Second,
even where the legal storyteller is an appellate judge who is purportedly retelling a story
objectively, merely presenting the facts in a simple linear chronology, she inevitably
constructs the trajectory of a purposeful plot to reach a predetermined outcome. In doing so,
the judge affirms the value of justice, inscribing legal meaning upon the case and providing
closure to the story.
Plotting is important in all legal storytelling. It is crucial in legal advocacy that can best be
understood as the battle of competing stories in the courtroom. But what concepts or applied
narrative theory might be useful as tools for reflective lawyer-storytellers engaged in this
battle?

A. Basic Terms and Concepts

I. What Is Plot?
Law stories, like all stories, are the creations of an unseen intelligence that selects, shapes, and
transforms raw material into events and then arranges these events into the ordered sequence
of a story. This sequence of events, or plot, provides meaning to the human affairs depicted in
the story.
These events do not come ready-made like prenumbered pieces or the links to be inserted
into a preconfigured chain. The nature of the plot itself determines what kind of actions can
serve as events in the story and enter the plot itself. Events that fit one plot will not fit another
and must be excluded. This relationship creates a curious dynamicthe plot controls events
but, in turn, is shaped by the events it controls. The meaning of the whole is always a product
of the parts yet, simultaneously, the parts derive their meaning from the whole. The plot and
event create one another; there is a symbiotic interdependency between the two. This
relationship may seem circular or even obscure, and more will be said about it throughout this
book. For now, I observe that:
Only some kind of events fit into any particular type of plot; and
When the story begins, the reader must be clued into what type of story it is going to be.
2. Narrative Profluence and Causation
The king died and then the queen died is merely a chronological listing of two unrelated
occurrences. But add a mere two words: the king died and then the queen died of grief.
These two events are not yet a plot, but the events are pushed together and connected. The
reader or listener is drawn into what isapparentlythe beginning of a story. The audience
(listener or reader) attempts to put one and one together and may speculate how the king died

or whether the queens love of the king caused her to take her own life. How can a mere two
words accomplish so much? It is because these two words attach the events causally and
establish a forward movement or narrative propulsion, without providing a complete
explanation of the relationship between events. Thus, the audience must fill in the gap and
determine the causal relationship, and to do so compels asking, What happens next?
In film, and also in the artful cinematic storytelling practices of contemporary legal
storytellers, the events and the interconnections between events are often not fully described
or made explicit. Instead, events are depicted in scenes that are placed into sequences. This
montage artfully suggests the movement of a profluent plot.
Profluence is the purposeful forward movement between the events in the plot of a story.
Teachers of creative writing, including the novelist John Gardner, observe that the profluence
in a plot provides a forward narrative momentum that is much more than mere inertia.
Plots in law stories, strongly akin to popular commercial entertainment films, have clear
narrative trajectories and dynamic internal movement. The audience for legal stories
especially those told by advocates in litigation, whether to a jury or a skeptical trial or
appellate judgeis seldom an especially tolerant or patient audience. As a result, the plots of
stories told in courtrooms and in legal briefs are typically straightforward and often
compressed, more akin to the narrative structure of popular films than to that of literary
novels. Legal stories are built upon strongly profluent plots.
3. Story Logic
Peter Brooks, the narrative theorist, makes the useful observation that the dictionary
definitions of the various meanings of plot share a conceptual sense of restraint and closedended shape. Consider these definitions:
1. A small piece or measured area of land;
2. A ground plan or diagram;
3. A series of events outlining the action of a narrative or drama; and
4. A clandestine plan or scheme.
Each of these alternatives is characterized by the idea of boundedness, demarcation, the
drawing of lines to mark off and order.5 Inherently, there are parameters and constraints
shaping the plot and compelling the outcome of a complex story. One obvious constraint on
the trajectory of the plot of any well-wrought story, especially the plot of a legal story, is the
endingthe point of the storywhich gives the story closure and meaning. Story logic has to
do with the fitness of outcomes. From the very first word in a story, or image in a movie,
every movement of plot works in anticipation of its ending. This is why, as a practical matter,
storytellers are often taught to know their ending and to structure the plot by working
backward from the ending and desired outcome.
The sequence of events, especially the final ending and resolution of the plot, provides

meaning to the human affairs depicted in the story. Put another way, a plot makes the whole of
the story much greater than the sum of its parts, supplying a trajectory and implying a reason
for its telling. The plot builds upon early events and heads toward some culminationan
ending that events anticipate. In this movement, the storyteller makes an implicit promise that
the plot will reveal meaning and an understanding of the human affairs within the story.

B. An Austere Definition of Plot

From a young age, children are taught that every story needs a beginning, a middle, and an
end. David Lodge economically defines these terms: a beginning is what requires nothing to
precede it, and an end is what requires nothing to follow it, and a middle needs something both
before and after it.6 Anthony G. Amsterdam and Jerome Bruner provide a richer definition, a
unitary framework that applies to legal storytelling:
The unfolding of the plot requires (implicitly or explicitly):
1) an initial steady state grounded in the legitimate ordinariness of things,
2) that gets disrupted by a trouble consisting of circumstances attributable to human agency
or susceptible to change by human intervention,
3) in turn evoking efforts at redress or transformation, which succeed or fail,
4) so that the old steady state is restored or a new (transformed) steady state is created,
5) and the story concludes by drawing the then-and-there of the tale that has been told into
the here-and-now of the telling through some codasay, for example, Aesops
characteristic moral of the story.
That is the bare bones of it.7
Here, it is instructive to apply this definition to better understand the movement (the narrative
profluence) in the plot of a one-paragraph short story by Leonard Michaels as analyzed by
David Lodge:
The Hand
I smacked my little boy. My anger was powerful. Like justice. Then I discovered no feeling in my hand. I
said, Listen, I want to explain the complexities to you. I spoke with seriousness and care, particularly of
fathers. He asked, when I finished, if I wanted him to forgive me. I said yes. He said no. Like trumps.8

The Hand is a short and self-contained story, yet the plot is rich and complex. The Hands
power-to-weight ratio is high, and there is no excess in the story (it is a narrative koan of
sorts).
Confidently anticipating the modern readers awareness of plot structure, Michaels creates
a profluent plot; the story provides a subtle and complex meaning to the human affairs
depicted within it, and the ending is more than merely a termination point or cessation of

activities. Michaels achieves this effect by trusting that the reader will read the words slowly
and carefully, grafting them onto an internal narrative framing (along the lines of the plot
structure that Amsterdam and Bruner describe) that enables the reader to fill in any gaps in the
narrative logic with meaning.
An initial steady state grounded in the legitimate ordinariness of things.

What is the initial steady state in The Hand? It is implicit. It is in the order of a
presumed domestic tranquility that precedes the commencement of the action. It is, for this
reader, a framing image of a family where, presumably, the father has power and authority and
the atmosphere is one of domestic order. The reader constructs for herself the anterior steady
state: the calm before the storm.
That gets disrupted by trouble consisting of circumstances attributable to human agency or susceptible to
change by human intervention.

The trouble arrives in the very first sentence when the narrator smacks his little boy. The
trouble here is clearly attributable to the human agencythe actions and willof the father.
The rhetorical point of the story is to explore whether the course of events will be susceptible
to change by human intervention; that is, whether the father can do anything about it once he
has struck his little boy or whether the forces that he unleashes are beyond his control.
Trouble (or conflict) often takes many forms depending, in part, on the storys genre. The
trouble may be externalthe villain in black in a melodramaor it may be internala flaw
within the character of the protagonist that calls forth her fate from within a tragedy. In my
reading, the trouble in The Hand is both internal (within the narrator) and external (the
actions of the hand are, simultaneously, beyond the control of the narrator-protagonist). The
narrator then attempts to describe (if not understand) his emotional state and identify the
nature of the trouble: My anger was powerful. Like justice.
In turn evoking efforts at redress or transformation, which succeed or fail.

The plot moves into the second part of the story. There is a deepening conflict: the tension
between father and son intensifies within the father when he struggles with the hand. The
father now discovers that he has no feeling in his hand. Lodge observes that the hand is
both a synecdoche and metaphor for the unfeeling parent.9
Here, the first-person narrator evokes efforts at redress, struggling to return to the initial
(anterior) steady state while the son and, perhaps the autonomous hand, push the narrative
toward a transformative ending.
Listen, I want to explain the complexities to you, the father says, apparently to the son.
Lodge notes Michaelss selection of the adult word complexities and how the father speaks
with seriousness and care, particularly of fathers.10 There is an irony in the fathers choice
of adult words, especially since he has no feeling in the hand that seems to operate
independently of his own free will.

But it is the son, seemingly, who better grasps the situation and asks, after the father
finishes speaking, if I wanted him to forgive me. Thus, the son attempts a reversal,11
struggling to establish a transformed steady state embodied in a redistribution of power
between the father and son.
So that the old steady state is restored or a new (transformed) steady state is created.

And then there is the climax: I said yes. He said no. There is no clear return to the
anterior steady state of the prior relationship between father and son. Nor is there
progression toward a new (transformed) steady state. Instead, there is an uncomfortable
disequilibrium. Michaels plays against the readers expectations of how the climax typically
resolves narrative movement in a profluent plot: the situation is left up in the air.
And the story concludes by drawing the then-and-there of the tale that has been told into the here-and-now
of the telling through some codasay, for example, Aesops characteristic moral of the story.

The coda acknowledges the situation at the end of the story, as the father stands in a curious
external relationship with his son, and in his interior struggle with the hand as well; both are
captured in a two-word observation borrowed from a card game signifying the particular
characteristics of the standoff: like trumps.
And, as Amsterdam and Bruner observe, that is the bare bones of it.12

C. Theme and Theory of the Case

The next building block in plot construction (and, simultaneously, a primary constraint upon
plot construction) is the narrative theme. Simply put, the theme is the controlling idea or core
insight of a story. It is the fundamental understanding or truth about the meaning of the
human affairs that the storys carefully sequenced events convey. As John Gardner observes,
theme is not imposed on the story but evoked from within itinitially an intuitive but
finally an intellectual act on the part of the writer.13 Plots are shaped around core narrative
themes that, in turn, determine the functional choices the storyteller makes in selecting,
shaping, and sequencing the events into a story.
The dictionary first defines theme as a subject on which a person speaks, writes, or thinks;
a topic of discussion or composition.14 It is reminiscent of the composition teacher asking
her student to reduce an essay to a single clarifying phrase that articulates the subject. There is
a second dictionary definition: a theme is a subject which provokes a person to act; a cause of
or for action or feeling.15 This gets more to the bottom of it; this definition moves toward
describing the interior dimensions of a narrative theme and how it works on the listener or
reader. The theme provides a unique and unstated quality that sparks in the audience a sense
that the story will develop in a certain way. The telling confirms that the movements of plot
follow a thematic spine so that the sequence of events conveys a purposeful manifestation of
this theme. May there be more than one theme in a story? Yes. How many? It depends on the

genre of the story and the internal story logic. Legal stories, too, may have multiple narrative
themes, though typically there are seldom more than two. And, perhaps at least in this way,
compressed law stories are more akin structurally to popular entertainment films than to
novels, which often develop multiple themes simultaneously.16
Finally, there is a third dictionary definition of theme: the principal melody or plainsong
in a contrapuntal piece; a prominent or frequently recurring melody or a group of notes in a
composition.17 That is, the story theme announces itself over and over; it is often strongly
intimated, although it is seldom, if ever, explicit. In movies, the visual imagery and the music
(including the lyrics within the music) suggest the theme by incorporating a recurring
melody. Recurring visual images and shots of settings further suggest the thematic core of
the story. Although there is seldom visual imagery or literal music in law stories (certainly
not in legal briefs and seldom at trial or in oral trial or appellate arguments), nevertheless,
effective lawyers display the theme by using certain readily identifiable recurring techniques
in both their literal voice (in speech) and their stylistic voice in writing.
While the theme is seldom made explicit, and only gradually dawns on the audience over
time, the effective legal storyteller is always aware of the theme. As John Gardner advises
young storytellers, the (legal) storyteller sharpens and clarifies his ideas, or finds out exactly
what it is that he must say, testing his beliefs against reality as the story represents it, by
examining every element of the story for its possible implications with regard to his theme.18
Narrative theme is distinct from, yet related to, the litigators concept of the theory of the
case. The core distinction is, perhaps, that in the theory of the case facts are structured to fit
and match the elements of legal rules; the facts are presented in such a way that they invoke
specifically (rather than evoke metaphorically) the normative principles and legal rules on
which the litigator must rely to win. The issue-focused theory of the case identifies crucial and
disputable factual propositions that the trier of fact must find to be true or untrue. These
propositions determine whether each element of the legal rule is established, and ultimately
whether the attorneys client will leave the courtroom satisfied or disappointed. To fit the
legal theory of the case, the attorney whittles the facts down to essentials, pulls them apart,
and makes them subservient to the overriding legal principles and explicit elements of legal
rules. The theory of the case is always explicit; the narrative theme is seldom, if ever, explicit.
Take, as a brief example, Johnnie Cochrans storytelling in the O. J. Simpson closing
argument. His theory of the case is simple: incompetent and corrupt police investigators
botched the investigation and, perhaps, planted evidence at the crime scene to convict
Simpson. The states evidence simply does not prove Simpsons guilt beyond a reasonable
doubt; thus, Simpson cannot be convicted of murder.
Cochrans successful story is, as is often the case in criminal trials and criminal appellate
briefs, based on the narrative theme of betrayal by all-powerful state actors. Simpson has been
betrayed by the system, by corrupt police investigators, by a rush to judgment as to
Simpsons guilt, and by a racist police department that must be stopped by the heroic jury.
Cochrans argument is ultimately about justice and injustice (e. g., betrayal and tyranny):
Things happen for a reason in your life. Maybe there is a reason why you were selected. There is something
in your character that helps you understand this is wrong. Maybe you are the right people at the right time at

the right place to say, no more, we are not going to have this. [] What theyve done to our client is wrong.
O. J. Simpson is entitled to an acquittal. You cant trust the message.19

D. Genre and Melodrama

In a pure legal argumentif, indeed, one exists, as if legal arguments are somehow akin to
mathematical formulae or scientific proofsthe specific propositions that lead to a result can
supposedly be independently verified, and the structure of the logic is made explicit within the
argument itself.
This is not so in plotting a story. Stories do not conform to uniform and explicit
externalized rules of narrative logic. But there are multiple models and templates of plots
embedded in the expectations of the audience. Legal storytellers intuitively and, indeed, often
explicitly, draw on these embedded narratives and narrative framing.
For example, the readers or listeners expectations about what is a proper outcome from
action constrain or shape the story. These narrative expectations may, in turn, vary according
to the genre of the story, establishing certain expectations that the storyteller then typically
may not transgress.
One genre of storytelling that often predominates in litigation is melodrama. Melodrama,
as explained by narrative theorists, is not limited to the exaggerations of character and
situations depicted in afternoon soap operas or in middle-brow cinematic tearjerkers. It is
more broadly yet, simultaneously, more precisely defined by narrative theorists. The
influential literary scholar Northrop Frye observes:
In melodrama two themes are important: the triumph of moral virtue over villainy, and the consequent
idealizing of the moral views assumed to be held by the audience. In the melodrama of the brutal thriller we
come as close as it is normally possible for art to come to the pure self-righteousness of the lynching mob.20

The genre of melodrama presents the battle between good and evil reduced to its simplest
form, where the hero-protagonist battles to the death against the swarthy, evil, black-caped
villain, the antagonistic force against whom the heros worth is measured. The pleasures of
pure melodrama are equally straightforward: we root for the hero to triumph in the end against
the evil villain. But the protagonist-hero must go through much trouble and conflict (against
internal and external forces antagonistic to his will) in order to prevail if his victory is to have
meaning, and for the story to be compelling to its audience. Melodrama is a particularly
effective genre for certain types of combative legal storytelling.
For example, plaintiffs torts cases are typically tried and argued as melodrama; the jury is
implored to conceptualize the plaintiff as the hero struggling to overcome the forces of
antagonism overwhelmingly aligned against her. Alternatively, the storyteller portrays the
plaintiff as the victim who must be redeemed (in a wrongful death case) or rescued (in a
personal injury case) by the heroic jury in its verdict against the defendant, sometimes
punishing the wrongdoer (with punitive damages) and enabling justice to prevail. Curiously,
the most critical character in the melodrama may not always be the hero-protagonist, but

rather the villain-antagonist, because it is only against the antagonistic force of the villain that
the worth of the hero (both the plaintiff and the jury) is truly measured.
Michael Roemer observes that melodrama shows us as we are supposed to be and wish to
see ourselves; it permits us at once to believe in evil and to exorcise it by projecting it onto
anotherone who is unlike us: the outsider or stranger.21 Thus, as Alfred Hitchcock
observes, The more successful the villain, the more powerful the story.22 Of course, there is
much more to it than this, as we will see as we explore this genre.

II. Plot Structure in Two Movies

Now lets apply some of this basic vocabulary to analyzing the plot structure of two popular
movies: the classic 1952 Western High Noon and a box office blockbuster of the 1970s,
Spielbergs Jaws. I choose these movies for several reasons: first, I assume that readers are
already familiar with these plots, especially the more recent Jawsboth are part of our
common cultural heritage. Both are melodramas of different sorts that fit under the rubric of
this genre. Both plots emphasize the external conflict and the battle between the virtuous and
heroic protagonist against an apparent and well-defined villain; we know what the outcome of
the battle will be from the beginning, although we do not know, exactly, how the heroic
protagonist will accomplish the task, or the strength of the forces of opposition that the hero
will encounter and must overcome along the way. Second, these movies are narrative
templates in theme and genre for the complex closing arguments by Gerry Spence and
Jeremiah Donovan analyzed in subsequent chapters of this book.
Spence converts evidence into a story that is, by design, part monster thriller and part
classical Western with a primary theme of heroic salvation of a community in a wild and still
lawless western territory on the edge of civilization. Donovans closing argument is a complex
character-based betrayal story, akin to High Noons secondary theme, about an ambivalent
protagonist who struggles against inner demons and internal conflicts, as well as against the
will of a powerful and vicious villain.

A. Genre and Theme

Lets begin with Jaws. There is nothing subtle or complex about this movie. The genre is pure
melodrama. The structural form is provided by a linear, forward-moving narrative that
conforms to the viewers expectations. The antagonist is a readily identifiable and fearful
otherworldly force that grows progressively more destructive as it tests the mettle of the
heroes strengths, talents, and abilities. Just as in any Marvel Comics fable, epic tale,23 or
legend, the heroes are tested as they take their brave stands to prove themselves, save the
community, and show that goodness triumphs over evil. In the struggle of a melodrama like
Jaws, the heroes are stand-ins for our better selves, and they prove their merit and embody our
virtues of strength, courage, honor, and self-sacrifice, put on display in combat.24
Jaws also works intertextually:25 its theme interacts with, and is evocative of, other stories

in a subgenre already familiar to the viewer: Anglo-American epic sea stories. As Michael
Roemer observes, Jaws is a positivist retelling of Moby Dick with its problem of Ahab and
the whale (the idea of an indifferent and malevolent universe).26 Spielbergs Jaws pares the
literary elements (including any thematic complexity and internal conflict within characters)
down to the external bones of melodramatic plotting, providing characters with just enough
whispers of individuation in the backstory to allow the audience to identify with the
dedicated and rational scientist, the family man and former tough-guy New York cop, and the
mythic seafaring captain borrowed from another time. The plot is constructed so that the
evil here is entirely in the monster, and the valiant captain saves his community without
having to sacrifice himself.27
The theme in Jaws is remarkably straightforward. It is about the battle of good against evil,
with good ultimately winning out over evil just when the world seems on the edge of
destruction. The plot affirms our notions of how the world works,28 with a proper balance
restored by the timely intervention of three self-sacrificing heroes who overcome differences
of background and strategy to prevail in the end.
The genre of High Noon is the familiar Western, with its characteristic theme being the
ravaging of a vulnerable community by evil antagonists. In the Westerns familiar stock story,
the heroic protagonist, who is also often an outsider and drifter himself, comes into the
community to stand up against the outlaw bad guys, save the town from anarchy and
destruction, and teach the townsfolk the crucial lesson that courage and self-sacrifice are the
costs of survival in this dangerous and lawless territory. Screenwriter Carl Foreman and
director Fred Zinnemann retain many of the conventions of this Western melodrama genre in
High Noon, but they intentionally deepen the stock story in many ways, transforming the
theme and implicating other genres.
The plot of High Noon, like Jaws, can be readily boiled down into a few sentences: Marshal
Will Kane is retiring and hanging up his guns after marrying his beautiful, young Quaker
bride, Amy. He receives word that the villainous outlaw Frank Miller, whom Kane sent away
for murder, has been released from prison and is returning on the noon train. Despite the
admonitions of the townspeople and the pleas of Amy, Kane decides not to flee but to stand up
to Miller and his outlaw band. He is, seemingly, abandoned by all and must stand up against
the outlaws alone.
Of course, this plot summary doesnt do justice to the movie. High Noon is a subtle and
complex story. Unlike Jaws, High Noon emphasizes character and character development in
the complex psychological relationships and struggles of the various characters in anticipation
of Frank Millers arrival. There is the internal psychological struggle within the protagonist,
Will Kane, who must choose between fulfilling his manly destiny and duty as gunfightermarshal and respecting the deeply held pacifist beliefs of his Quaker bride. Kanes internal
struggle is further complicated by the intimation that there are nonheroic reasons for fighting
Millers gang: jealousy over the Latina temptress who was the lover of both Kane and Miller,
competition between the middle-aged Kane with the younger former deputy to protect his
former paramour, and desire to prove his mettle (a mans gotta do what a mans gotta do).
The other primary characters are equally complex. Kanes pacifist Quaker wife, Amy, and
his former mistress are all multilayered, intensely individualized characters, compounded of

desires, ideals, loyalties, aspirations, and loathings. The townspeople and other secondary
characters (such as the mayor and the young deputy) are vividly portrayed and distinct as well.
Only the villainous outlaws have the characteristic simplicity of the melodrama genre. Unlike
Jaws, where the story is about how the heroes battle against the shark, the plot in High Noon
focuses on how the complex characters respond internally, and with each other, to the forces
of antagonism bearing down upon them.
Thus, the primary themes of High Noon are loyalty and betrayal. Under the pressure
imposed by the impending arrival of the outlaw gang, characters reveal themselves, are
betrayed by one another and the community, and in turn betray themselves. Only at the climax
do the principals (Kane, Amy, and Helen Ramirez) seem to redeem their integrityKane and
Amy by standing up to the outlaw gang to save the community that refuses to save itself, and
the Latina temptress by finally leaving Kane and the corrupt town to save herself, not because
she is afraid but because she no longer belongs in the community, just as she no longer
belongs to Kane.
In High Noon, the plot assumes a tragic dimension when, at the coda revealing the meaning
of the tale, the hero-protagonist throws down his badge at the feet of the townspeople who
have betrayed him, signaling the loss of the value of community and the meaning of law. Kane
and Amy leave in disgust, with scorn for the townspeople. Fortunately for the viewer, Kane
still has the solace of Amy and maintains his own integrity, as well as the sympathy of the
audience.

B. Basic Plot Structure in High Noon and Jaws (Applying the AmsterdamBruner Model)
An initial steady state grounded in the legitimate ordinariness of things.

Both movies begin with the anticipatory calm before the storm: the normative steady
state. Jaws opens with images of the carefree vacationers frolicking innocently (and
vulnerably) at a firelit beach party; it is a luminous, moonlit summer evening on Amity Island,
a vacationers paradise. In High Noon the steady state is equally idyllic. The older, beloved,
and heroic marshal is finally receiving his just deserts and moral reward; having driven the
evil outlaws from the community, he is marrying the incandescently gorgeous Amy. Amid the
well-wishes of the community, the marshal hangs up his guns, retires his badge in anticipation
of the arrival of his replacement, and prepares to depart on his honeymoon.
That gets disrupted by a trouble consisting of circumstances attributable to human agency or susceptible to
change by human intervention.

The trouble in both movies arrives early, the initiating action (the inciting incident)
launching the trajectory of the plot.29 In Jaws, it takes the form of a man-eating rogue shark.
In High Noon, trouble arrives with the announcement that members of the Miller gang are
gathering and that Frank Miller, the villain, has been released from prison. This is a somewhat

more sophisticated introduction of the trouble. The arrival is signaled through action (the
members of the gang gather on the outskirts of town), revisited through imagery (train tracks,
clocks ticking down to Frank Millers arrival at high noon), and even signaled through an
explicit musical presentation and foregrounding of the theme (the core story-song), all
maintaining the tension of the conflict between the outlaw gang (the villain) and Marshal
Kane (the protagonist) throughout the progressive movements and the internal psychological
complications of the narrative.
Whether nonhuman or human, the trouble must be susceptible to change by human
intervention, creating the struggle with the malevolent forces of antagonism and evil in such a
way that the audience can side with the protagonist and participate in the deepening conflict.
In the moviesjust as we will see in legal storytellingit is important to make the first act
short, clarifying the theme and clearly breaking the anterior steady state to reveal the nature of
the trouble and the identity of the antagonist.
In turn evoking efforts at redress or transformation, which [lead to a struggle, in which the efforts] succeed
or fail.

In theater, it is commonly observed that the middle of the story is the most difficult part to
construct. The progressive complications caused by the antagonist (or forces of antagonism)
intensify while the protagonist attempts to reestablish the stability of the anterior steady state
or press on toward a new and redefined narrative order. The two movements can be separate:
for example, the trouble gets progressively uglier, deeper, or harder to overcome or builds to a
cataclysmic climax before the hero finally intervenes. There are other possible patterns: for
example, the hero (or other forces) can appear to intervene and superficially and momentarily
still the trouble. This, however, is merely a false and premature ending; the victories are
illusory, often part of the villains plan until the villain arises renewed, reinvigorated for
battle. At this point the true confrontation or struggle between good and evil begins.
In Jaws the sequence of events after the arrival of the trouble is extremely purposeful,
linear, and forward moving. There are few of the stops and starts characteristic of other
genres, other than slowing the pace down momentarily to allow the viewer to catch a breath
before the next attack, the next battle, all building toward the final confrontation. Battles
between the fishermen and the shark are punctuated by shark attacks and superficial
psychological adjustments between the various players along the way. There are, as is typical
in melodrama, false and premature endings (when, for example, another shark is captured
and mistaken as the evil culprit). But these digressions are merely preparatory interlineations,
biding time, allowing for the tension to build before returning to the waters for the next round
of action scenes that are at the core of the film.
The shark becomes progressively bolder and more relentless, demonstrating the enormity
of its evil, and adhering to Hitchcocks maxim. The villainous sharkJawsinvades a
sheltered beach pond and seizes a helpless swimmer; it destroys a boat and kills another
victim. It embodies the forcefulness of unstoppable natural forces of disaster packaged into
the form of an archetypal villain. As the community veers psychologically from denial to
panic, all that is apparent is that the community cannot protect itself; it is up to the heroes to

intervene. The two heroes in Jaws, an intellectual oceanographer (played with self-deprecating
humor by Richard Dreyfuss) and a former New York City cop (Roy Scheider) enlist the aid of
a mythic ancient mariner (portrayed with a mock Shakespearean theatricality by Robert
Shaw). The three head out fully loaded with mythic and modern weapons to take on their
superhuman prey, to meet on the ocean, a setting far beyond the zone of human habitation. It
is a primal scene, in a liminal space, beyond the realm of civilization. The ensuing battle to
the death (the climax) takes up the last third of the movie. The outcome of the battle, which is
never in doubt, enables the audience to vicariously participate in the ultimate combat, with the
shared understanding that such guiltless enjoyment is the pleasure of the genre where the
characters (like the villains) are not all quite human.
In High Noon, the breaking of the steady state, initiated by the arrival of the Miller gang,
creates a different and more complex narrative structure, progressively introducing new
dimensions to the basic problem that needs resolution before the story can end. The plot
focuses on the interplay between the various complex characters, positioning these
characters in relation to the hero and the villain and in relation to one another.
The progressive complications of the plot emerge as the clock ticks down toward noon. It is
just after 10:30 when the film begins; Miller will arrive at 12:00 to exact his revenge on Kane
and, perhaps, the town as well. The film is cleverly shot in a real narrative time, with one
minute of screen time equaling one minute of story time. As Millers arrival looms, Marshal
Kane first thinks about leaving with his new Quaker bride, adhering to his promise to her to
give up the gun. He cant betray himself, however; he returns to town. The story is about the
meaning of loyalty and an exploration of the psychology of betrayal. Within this unifying
theme the various subplots fit together:
1. Kanes new Quaker bride, Amy, is torn between her love for her new husband and her
loyalty to her Quaker pacifist beliefs grounded in her experience of the death of her father
and brother in a gunfight years ago.
2. Kanes young deputy, Harvey, betrays Kane and refuses to join him in the fight against the
Miller gang, not because he is afraid, but because Kane has betrayed him professionally by
refusing to appoint him as the new marshal because he is young and inexperienced.
3. Kanes former mistress has taken up with Harvey, her new protector against her former
lover Miller. Perhaps this is more an act of revenge against Kane, whom she still loves, but
who betrayed her when he chose his new, very blond, and upper-class Quaker wife (the
incongruously East Coast ingnue Grace Kelly), who is less than half his age.
Each of these complex subplots resolves neatly with these important secondary characters
making a fateful decision at the moment of crisis: Amy forsakes her pacifist beliefs and
chooses to stay loyally by Kanes side, taking up the gun and killing one of the gang herself.
Helen Ramirez chooses to be loyal to herself. No longer Kanes lover and no longer in need of
a protector from Miller, she recognizes that she no longer has a stake in the community and
willfully departs on the same train that brings Miller. Harvey, for his part, tries unsuccessfully
to obtain Kanes position as the sheriff and Helens protector. Equally unable to compel Kane
to leave town, Harvey ultimately sells out Kane, refusing to risk his life and join in the battle

against the Miller gang.

Meanwhile, the townspeople, one by one and group by group, betray Kane and themselves,
refusing to come to his aid to save the community from the ravages of the antagonist. Their
abandonment of Kane anticipates the climax of the film by leaving Kane to face the Miller
gang single-handedly. This theme of betrayal fits well within the form of the melodrama; it
explores the capitulation of good to evil. It is self-betrayal on a grander scale; the community
compromises integrity in the face of evil based on self-deception repackaged as rationality.
So that the old steady state is restored or a new (transformed) steady state is created.

In Jaws the climax is dramatic, but purely physical. The characters remain static and
unchanged, and the anterior steady state of calm on the island is restored. Transcendent evil
has been defeated by goodness and virtue. The dawn breaks on Amity Island, and crowds of
bathers will soon be returning to the waters.
In High Noon the outcome is much different. The plot pushes forward to a new and
transformed steady state. The bad guys have been defeated in the climax; good is victorious
over evil. Kane enjoys the sweet reward of Amys love and his own honor reclaimed. Kane has
saved the community and will ride off into the sunset, just as Western heroes traditionally do.
But there is no simple resolution. Kane cannot go back into the past; he cannot ignore the
hypocrisy and cowardice of the townspeople. The ending is transformative.
And the story concludes by drawing the then-and-there of the tale that has been told into the here-and-now
of the telling through some codasay, for example, Aesops characteristic moral of the story.

In Jaws, there is a slight wisp of irony underlying the restorative ending and the innocence
of the bathers returning to the waters; it is as if nothing has transpired in the plot, there are no
lessons to be learned, and the past is already eliminated. The sharkfest is already banished
from collective memory.
In High Noon the coda placed upon the transformative ending is far more complex. The
town is joyful at Kanes victory as they come out of hiding. But when Kane quickly and
joylessly departs he flings his starthe marshals badge, signifying justice and law and order
down upon the ground, where he has just left the bodies of Frank Miller and the Miller
gang, in disgust. He boards the buckboard with Amy and wordlessly leaves town. The audience
is left to ponder the meaning of the codas final images. Certainly, the ending signifies that a
transformation has taken place and that Kane will never return to this community in the Old
West ever again.

3
Plotting II
PLOT STRUCTURE IN A CLOSING ARGUMENT TO A JURY IN A COMPLEX TORTS
CASE

Give me the storyplease, the story. If I can finally understand

the case in simple terms, I can, in turn, tell the same
story to the jury and make them understand it as well. I go
about my life confused most of the time, but when I get
something clear I can usually communicate it. Getting it
clear is not the work of huge minds, which are often baffled
by themselves, but the labor of ordinary minds that understand
[the] simplest of stories. [M]ost of all, lawyers
must be storytellers. That is what the art of advocacy comes
down tothe telling of the true story of ones case.
GERRY SPENCE

It appears that the evidence is weighed in the context of a good

story, and not the other way around. The evidence sends me
looking for a good story with which to support it, but the evidence
does not create the story on its own.
GERRY SPENCE

concepts underlying the plotting of movie melodramas to analyze plotting in

renowned lawyer Gerry Spences heartfelt closing argument on behalf of Karen Silkwood in
The Estate of Karen Silkwood v. Kerr-McGee.1 We will then compare the narrative structure
of Spences argument in Silkwood with the plots in the two movies previously analyzed.
Initially, the story told in the closing argument does not look or feel like the plotting in the
two movies. Obviously, Spences medium consists of spoken words, not film images. And
unlike the unitary, linear, and highly profluent plots in Jaws and High Noon, the Silkwood
argument encompasses analogies, aphorisms, and ministories, all knitted together with the
law. The storytelling, at least when read on the page, initially appears somewhat redundant or
LETS USE THE

copious at times; it lacks the sleek narrative design and constantly forward-moving profluence
of the two movies. Also, like every litigation story, there is no closure or final ending; Spence
leaves this figuratively in the jurys hands, employing final anecdotes to prefigure the
proposed ending while empowering the jury to deliver justice. Throughout the argument,
Spence shifts away (zigzags) from the story to fulfill the legal obligations of the argument
(i.e., to prove his legal theory of the case). He is also limited by legal constraints (i.e.,
evidentiary relevance) and obligations (i.e., to include and address all crucial evidence, to
respond to the defendants theory and story, to confine his narrative to the evidence introduced
at trial and inferences from this evidence in telling a meticulous and truthful story).
Structurally, Spences closing argument is unlike Jaws and High Noon in another way.
Unlike the two movies, Spence presents two discrete closing argumentsan opening and a
rebuttaleach approximately two hours in length (roughly equivalent to the running time of a
typical Hollywood movie). Of equal importance, there are two discrete plots intertwined
within these arguments: the past-tense story of what happened to Silkwood as Spence revisits
the evidence, and also Spences retelling of the present-tense story of the trial itself. The
careful layering and interconnection of these two storiesthe first, a traditional Western
melodrama with the added complement of a villainous corporate beast who gradually comes
alive and emerges from beneath rural mud springs, the second, a mythic courtroom quest for
justice in the Silkwood caseis subtle and complex.
The myth here, the Quest of the Jury for Justice, is possibly as important as the melodrama.
How so? Unlike fictional movies, legal stories are calls to action, especially when told to
juries by plaintiffs in torts cases and by criminal defendants. A successful Hollywood movie
must draw the audience in, inducing viewers to identify with certain sympathetic characters,
and in doing so to become what has been termed a side participant in the action. But the
audience isnt implicitly or explicitly asked to do anything. Spences closing argument,
however, must do much more than this. A legal argument converting evidence into story is, in
the technical terms of language theory and philosophy, an illocutionary act, and a successful
one is a perlocutionary act. The legal story asks the audience to do something, and if
successful, persuades them to do it. Spences closing argument in Silkwood is this type of
story, and his storytelling requires this dual, or double-stranded, narrative (the complementary
strands of melodrama and myth) to achieve its purposes.
Finally, unlike most Hollywood moviesalthough some fictional movies do employ the
technique of limited narrative voice-oversSpence repeatedly steps outside the story he is
telling to provide a first-person commentary on the plots of the stories that he is telling. He
describes how the events he depicts strike him morally and emotionally; in this way he steps
into the jury box and becomes one of the jurors. And his commentary marks important plot
points and transitions in the two two-hour closing arguments delivered without notes. It
explicitly ties together various strands of the dual plots, and facilitates a clear plot structure so
that neither the jury nor Spence become confused or lose their places in the plot structure of
such a complex narrative; he serves as a guide so that the jury is not diverted into unintended
mud springs of Spences own making.
Nevertheless, despite these differences, the story that Spence weaves in Silkwood is, like
Jaws and High Noon, a heroic melodrama. Silkwood is strongly akin thematically, in genre,

and in important aspects of narrative structure to its cinematic counterparts. The plot could
have been manufactured in Hollywood and, indeed, its basic structure transferred quite well to
the screen when Silkwood, the Academy Awardwinning movie, was produced.2

I. The Backstory
Karen Silkwood worked as a lab analyst at Kerr-McGees Cimarron plant, located near
Crescent, Oklahoma.3 Silkwoods job was to grind and polish plutonium pins used in
manufacturing fuel rods for nuclear power plants. She performed her tasks in a glove box
designed to seal the worker from the plutonium inside. In addition to her position as a lab
analyst, Silkwood also served as a union representative. She had filed complaints on behalf of
the workers with the union and the Atomic Energy Commission (AEC) pertaining to safety
violations and hazards at the plant and, at the request of the AEC, had undertaken a covert
investigation, accumulating records and documenting Kerr-McGees violations of regulations
and reporting of safety infractions.
On consecutive days in 1974, Silkwood was contaminated by radioactive materials at work
and, after testing positive upon completing her shift at the plant, was scrubbed and
decontaminated. Kerr-McGee then sent a team to test Silkwoods apartment for radioactive
contamination, and high levels of contamination were discovered. Silkwood was sent to Los
Alamos Scientific Laboratory, where her lungs tested positive for radioactive contamination.
On the day after her return from Los Alamos, she had arranged to meet with a reporter from
The New York Times to provide the data she had collected about the dangers of working at the
Kerr-McGee plant, and about how safety and quality-control records pertaining to the
manufacturing of the fuel rods had been falsified. Silkwood died in a mysterious one-car
accident on the way to the meeting. The reporter and a union representative went to the car the
next day, but they found no records or materials. Silkwoods apartment was quickly
quarantined, and all of her personal property inside was buried in a nuclear waste site.
After Silkwoods death, Silkwoods father tried unsuccessfully to obtain $5,000 for the
value of her personal property from Kerr-McGee. Kerr-McGee refused to settle. He then
contacted Spence, who sued Kerr-McGee on behalf of Silkwoods children and family for
$10,505,000: $500,000 for Karens physical and mental pain and suffering as a result of the
contamination, $10,000,000 in punitive damages, and $5,000 for the loss of Karens personal
property. Spence later increased the request for punitive damages to $70 million.
The trial began in March 1979. It took eleven weeks. There were no clear answers as to how
Silkwood was contaminated, what materials she was going to provide regarding Kerr-McGees
falsification of documents, and the causes of Silkwoods suffering and tragedy. Nevertheless,
basing its decision on a theory of strict liability, and supplementing it with an award of
punitive damages, the jury returned a verdict for $10,505,000. Kerr-McGee appealed the
punitive damages award of $10,000,000. The parties eventually settled punitive damages at
$1.38 million.

II. Annotated Excerpts from Gerry Spences Closing Argument on Behalf of

Karen Silkwood
A. Setting the Stage
Just as Jaws and High Noon have characteristic visual styles well suited to their subjects,
themes, and narrative structures, Gerry Spence chose to deliver his closing argument in a
particular style equally well suited to the subject matter. It is instructive to listen to a tape of
Spence reading the text of the closing argument as if he were acting on a stage: he speaks in a
deep and resonant voice and at a much more deliberate and slower pace than normal
conversational speech, allowing his words to have a luxuriousness and seeming moral
authority as he moves through the peaks and valleys of evidence and imagery, gradually
building to a crescendo:
Thank you, Your Honor. Well, here we are. Every good closing argument has to start with Ladies and
Gentlemen of the Jury, so let me start that way with you. I actually thought we were going to grow old
together. Weve spent a season here together. I havent been home to Jackson for two and a half months.
And, although Im a full-fledged Oklahoman now, Im homesick. And Im sure youre homesick, too.
Im sure this has been a tough one on you. [W]e made it through this matter together, and Im pretty proud
of that.4

Spence then affirms the specialness and importance of the jury in this particular case and the
importance of the moment to him as well, contemplating with awe the heroic task that lies
ahead of them both:
Its the longest case in Oklahoma history, they tell me. And, before the case is over, you will know, as you
probably already know, that this is probably the most important case, as well. [A]nd its the most
important case of my career. Im standing here talking to you now about the most important things I have
ever said in my life. And, I have a sense that I have spent a lifetime, fifty years, to be exact, preparing
somehow for this moment with you.5

This is a shrewd version of a classic lawyers proem, a set piece, used rhetorically to secure
the good will of the audience by making the speaker appear to be a worthy person and, at
the same time, by appealing to values the audience and speaker share.6 In other arguments
Spence employs similar set pieces.7 It is crucial to empower and affirm the importance of the
jury (especially in plaintiffs torts and criminal defense cases). Spence reestablishes his
relationship with the jury after a long and grueling trial, speaking to them directly for the first
time since the voir dire many weeks earlier. He speaks as if he were with them in the jury box
as a witness to the making of history and as if he appreciates their struggle to make meaning
out of the evidence, and their personal sacrifice. He also presents himself as a willing guide
for them on their own heroic quest toward justice and toward writing the correct ending of
Silkwoods story.

B. Theory of the Case and Narrative Theme

Closing arguments, like popular entertainment films, often begin with a strong narrative
hook to capture the imaginative attention of the jury. After multiple false starts,8 Spence
presents the plaintiffs legal theory of the case; he spins the law into a careful anecdote. The
plaintiffs legal theory was strict liability, which meant that Spence had to convince the jury
only that Silkwood was contaminated by the plutonium that Kerr-McGee produced. The judge
has bought Spences legal theory, and it will be presented in instructions (and a verdict form)
given to the jury: legally, Karen Silkwoods estate does not have to prove how she became
contaminated, only that she was contaminated by the plutonium produced by Kerr-McGee; the
only story that will relieve the defendant of liability is if Silkwood intentionally removed
the plutonium from the plant and contaminated herself (even a story of Silkwoods own
negligence at the plant contaminating herself with plutonium will not suffice).
Nevertheless, it is a legal issue that is potentially complex and confusing for the jury, as the
judges jury instructions include burdens of proof, elemental statements of the law regarding
strict liability, and even a multipart verdict form. But Spences narrative hook translates this
legal complexity into a simple anecdote, a straightforward ministory that fits neatly within the
larger story of the case:
Well, we talked about strict liability at the outset, and youll hear the court tell you about strict liability,
and it simply means: If the lion got away, Kerr-McGee has to pay. Its that simplethats 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 cageand lions are dangerous
and through no negligence of his ownthrough no fault of his own, the lion got away. Nobody knew
howlike in this case, nobody knew how. And, the lion went out and he ate up some peopleand 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 powerI had a good cagehad a good lock on the doorI did everything that I
couldI had securityI had trained people watching the lionand it isnt my fault that he got away. Why
should you punish him? They said: We have to punish himwe have to punish youyou have to pay.
You have to pay because it was your lionunless the person who was hurt let the lion out himself. Thats
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. Its already admitted. Its admitted in the evidence. They admit it was their plutonium. They admit its in
Karen Silkwoods apartment. It got away. And, we have to prove Karen Silkwood was damaged. Thats all
we have to prove.9

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 defendants
attorneys at trial and, more important, to provide a narrative framework for the defendants
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 KerrMcGee has.10 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, youve got to get the hogs out of the spring. And, if you cant get the
hogs out of the spring, I guarantee you cant 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 scientistsIm not a scientistmy only power is
my common sense. Keep out of the mud springs. Youll be invited there [by the defendant, in closing
argument]. Use your common sense. Youll be invited to do number-crunching of your own [by the
defendant]. Youll be invited to play word games [by the defendant]. Youll be invited to get into all kinds of
irrelevancies. And I only say to you that you have one hopedont get into mud springskeep your
common sense, and take it with you into the jury room.11

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 Spences legal theory of
strict liability) and the analogy of the mud springs (a reference to the defendants 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.12
This shorthand provides a rhyming aphorism that sticks in the mind like Johnny Cochrans
equally melodic hook, If the glove doesnt 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
its the other way around. And if its 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, Spences 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, Spences careful admonition to
the jurors to beware of the mud springs.
Spences 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.13 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.14

These are the precise challenges that Silkwood meets in Spences 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, Spences 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.15
Perhaps the greatest narrative and structural challenge for Spence, however, is to make
Kerr-McGeethe corporationinto the all-powerful villain demanded by melodrama.
Remember that in melodrama, the virtue of the heroand the effectiveness of the storycan
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
Spences initial task is to fashion the defendant into this role.

C. The Steady State and the Arrival of the Trouble

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). Spences 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 commoditieslike 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 79they called it the Cimarron Syndrome.16

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.
Spences 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. Spences
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 anywhereeach story has an infinite
number of possible beginnings.17 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.18
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 defendants arguments and innuendo (a talking Beast who only has learned to
speak the language of money).

D. Another Story within a Story: The Jury and The Quest of the Hero
As I observed earlier, there is a second crucial story, and another narrative axis, embedded
within Spences closing argument, typical of plaintiffs closing arguments in torts cases (and

also of many defendants closing arguments in criminal cases).19 That is, the story is not just a
past-tense melodrama about what happened to Karen Silkwood; it is simultaneously a presenttense 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.
And so Spence evokes the mythic call to the hero in his argument: What is the $70
million claim about? I dont want to see workers in America cheated out of their lives. Im
going to talk to you about that a lot. It hurts me. It hurts me. I dont want to see people
deprived of the truththe cover-ups. Its ugly. I want to stop it.20 This begins the jurys
quest for justice, commanding jurors to solve the puzzle of the case and to prevent the villain
from prevailing in the end. Spence breaks from his story to explain:
What is this case not about? The case is not about being against the nuclear industry. But it is about the
power of truth, that you have to use in this case somehow, because it has been revealed to you nowyou
know itand if there is only one thing that can come from this case and that if this case makes it so
expensive to lie, and to cover up, and to cheat, and to not tell the truth, and to play numbers games, that it
makes it so expensive for industrythis industryto do that, that the biggest bargain in life, the biggest
bargain for those companies is the truth.21

Spence then cleverly interweaves these two discrete narratives: the presenttense mythic story
of the trial with the past-tense melodramatic story about what happened to Karen Silkwood.
Again, there is an artful zigzagging pattern established between past and present (akin to his
zigzagging between theme and theory of the case). Structurally, Spence somehow must move
smoothly in time, transitioning between past- and present-tense events as he revisits evidence
at trial, without confusing the jury and, simultaneously, he must allow sufficient space and
room to empower the jury to do its narrative task. This is a difficult feat; Spence must not
confuse the jury as to which narrative he is referring to, or have gaps of narrative holes in
his story logic, or otherwise cause the jurors to lose their place in the story. Simultaneously,
Spence cannot foreground or reveal explicitly his narrative design.
In commenting on plot structure at the core of legal argumentation and suggesting how to
convert argument into story, Spence observes that a story is more magnetizing to the listener
who feels his/her active participation will be necessary for the story to achieve its proper
ending; he notes that [a]nywhere along the way, however, it is possible to lose even the most
sympathetic listener if the teller veers off the course of beginning/middle/end.22 Of course,
this storytelling must also be truthful and meticulous in that it is: (1) consistent with the
evidence and without internal contradictions (internal narrative logic); (2) plausible in terms
of the jurors experience and how it fits with jurors knowledge about what happens in the
real world (instantiation); and (3) comprehensive, matching to and fitting with the

evidence and the law.23 But it must also, paraphrasing Jerome Bruner, facilitate and compel
jurors to go beyond the information given,24 suggesting to the jurors (or decision makers)
how to retrieve a deeper meaning to the human affairs depicted in the story while avoiding
confusion and creating a mud springs of its own along the way, so that the singular powerful
and transformative ending to Silkwoods story is apparent to the jury in their deliberations.
Specifically, to do this, at the end of his rebuttal closing argument, Spence will ask the
jurors to assume the heroic mantle of their oath by contemplating and solving three essential
riddles necessary to discover the truth of what happened to Silkwood and then to determine
what the proper ending of the story should be. Finally, employing a familiar set piece that he
has used in other arguments, Spence will implore the jury to write the ending and take the
action necessary to complete the story. It is too late to save Silkwoods life, but it is not too
late to give her life meaning, and it is not too late to rescue the young and innocent workers at
the plant and save the community still held hostage by the evil Kerr-McGee. Although the
ending is left up to the jury, at the finale of his rebuttal closing argument Spence suggests the
answers to these riddles of how the jury must act to fulfill their heroic oath.
1. [W]hat is this case about?25 Spences suggested answer: [I]t is about the power of truth,
that you have to use in this case somehow, because it has been revealed to you nowyou
know it.26
2. Who is Karen Silkwood?27 and What was she trying to tell the world?28 Spences
suggested answer: [A] brave, ordinary woman who did care. And she risked her life, and
she lost it. And she had something to tell the world, and she tried to tell the world. What
was it that Karen Silkwood had to tell the world? That has been left to us to say now. It is
for you, the jury, to say it for her.29
3. How does this all tie in? Rephrased more concretely: Did she know too much? Who
contaminated her? How much did she know?30 Spences suggested answer: She knew
enough to bring this whole mess to an end.31

E. Progressive Complications: The Nature of the Trouble

Prior to casting the heroine, Silkwood, onstage, Spence revisits patiently the evidence
introduced at trial presented, primarily, by the various employees of defendant Kerr-McGee.
He divides these witnesses into two discrete and identifiable groups: the members of the
villainous outlaw band (representatives or agents of the archenemy Kerr-McGee) and the
often sympathetic yet confused townspeople (the workers at the plant; members of a
disempowered community of victims who will, like Silkwood, soon become the victims of the
predatory and evil corporation).
First, however, Spence must give life to the villainous corporate defendant and make it into
a singular and powerful entity, the initiator of the melodrama, seemingly in control of all that
takes place afterward. As Hitchcock suggests, the effective depiction of the villain is crucial to
the success of a melodrama. That is, the more successful the villain, the more powerful the

story.32 And yet this strategy poses a narrative problem for Spence. The corporation KerrMcGee is not only nonhuman, it is not alive; it is, in Spences own words, like some weird
invisible extraterrestrial lifeless glob.33 Nevertheless, this problem also provides an
imaginative opportunity for Spence, who observes, Although corporations are not alive, they
[nevertheless] possess a life of their own.34
Like Spielberg in Jaws, Spence must successfully provide a character-based identity to the
defendant through careful attribution of the human qualities of motivation, intentionality, and
an increasing purposefulness. Spences version of Kerr-McGee is of a rapaciously greedy and
devouring entity that values money and profits far more than it does the lives of its workers. In
suggesting how to develop arguments against corporations, Spence cites Charles Reichs
description of a corporation: The corporation is an immensely powerful machine, ordered,
legalistic, rational, yet utterly out of human control, wholly and perfectly indifferent to any
human value.35 Like the shark in Jaws, whose appetite is whetted initially by the taste of
blood, Spences Kerr-McGee grows ever bolder and darker and more powerful as his story
progresses: the corporation becomes progressively more venal, greedy, and devouring,
preferring these profits over the lives of its workers and then finally, Spence intimates,
intentionally undertaking or at least encouraging the murder of Silkwood (although Spence
tells the jury that he is not allowed to speculate on this matter).
At the end of his rebuttal argument, Spence suggests that allowing Kerr-McGee to go
unpunished and unrepentant will result in far more than simply unfairness and injustice to
Silkwood. If Kerr-McGee is not stopped, Spence visualizes in his final dream sequence a dark
vision of corporatist tyranny throughout the land and the destruction of endless young lives by
plutonium poisoning and cancer. The filmmaker and literary theorist Michael Roemer
observes:
Popular story shows us as we are supposed to be and wish to see ourselves. Like the community itself, it
represses what tragedy includes. By projecting evil onto the other, it purges us of our dark and dirty secrets,
frees us up from self-division, and fosters communitas by giving us someone to hate and fear. Yet unlike
Positivism, it retains its belief in the power of evil. Indeed, without a destructive threatwhether it be divine
or humanthere is no story.36

Here, for example, is how Spence initially attributes the ability to speak the language of
money to the corporate defendant Kerr-McGee in his closing argument:
You know, I was amazed to hear that Kerr-McGee has eleven thousand employeeseleven thousand
employees. Thats more than most of the towns in the state that I live inthat it is in thirty-five stateswell,
I guarantee that corporation does not speak South, it doesnt speak Okie, it doesnt speak Western, it
doesnt speak New York. And it is in five statesor in five countries. It doesnt speak any foreign
language. It speaks one language universally. It speaks the language of money. That is the only language
that it speaksthe only language that it understandsand that is why the case becomes what it is. Thats
why we have to talk back to that corporation in money.37

Of course, it is then crucial for the jury to speak in the language that the defendant
understands, and in such a forceful way that the corporation will change its behavior.
Subsequently, Spence zigzags back to his legal theory of punitive damages, as if a law

professor speaking to first-year students, providing a simplified understanding of utilitarian

and retributionist rationales for such punishment:
I want to quote an instruction that you will hear. It is the basis of punitive damagesthats the $70 million to
punish. Punitive. To exemplify. Exemplary. So that the rest of the uranium plutonium, and the nuclear
industries in this country, will have to tell the truth. The basis of punitive and exemplary damages rests on
the principle that they are allowed as punishment of the offender for the general benefit of society, both as a
restraint upon the transgressorrestraint upon the transgressorthat is, against Kerr-McGee, so they wont
do it anymore, and a meaningful warning and exampleto deter the commission of like offenses in the
future.38

F. The Setup: The Villainous Outlaw Gang versus the Townspeople

Spence carefully, but selectively, revisits crucial excerpts of the testimony of the various
witnesses. The witnesses are divided into two oppositional groups: there are the defendants
witnessesagents of the evil corporation, subsumed by the will of the greedy and devouring
corporate monolith, hungry only for money, who devalue the lives of the workers, leaving a
wake of destruction by plutonium and the cancers that will follow. And there are also the
defendants experts, also paid employees, testifying to draw the jurors into the mud springs.
On the other side are the plaintiffs witnesses: innocents, victims, members of a community
without a voice or purpose. And these witnesses are complemented by the chorus of plaintiffs
experts, wise old men and helpers, who explain what the outcome will be for the community.
In revisiting the testimony, the order of the voices within the closing argument is not in the
sequence of the chronology of presentation at trial. Rather, the voices are cast in counterpoint
to one another. Further, in terms of evidentiary rules and legal relevance, it is interesting that
many of these witnesses were even allowed to testify since the issues at trial were extremely
limited and narrowed by the plaintiffs own legal theory (product liability and strict liability)
and the judges own charge: Kerr-McGee had to prove by a preponderance of the evidence (as
an affirmative defense) that Karen Silkwood intentionally removed the plutonium from the
Kerr-McGee plant that caused her contamination. Therefore, the legal issues pertained to the
events that occurred during the nine days Silkwood was contaminated and, most simply put,
how she was contaminated. Nevertheless, over the objection of counsel, the judge admitted
evidence pertaining to operations at the Kerr-McGee plant over a six-year period, although
Silkwood only worked at the plant for two years, and about events occurring in areas of the
plant where Silkwood never worked and did not have access to.39 It is almost as if expansive
principles of narrative logic and Spences narrative theme trumped the plaintiffs own theory
of the case and somehow compelled the trial court judge to afford Spence wide latitude in
introducing evidence to shape and frame his story on a grander stage than the rules of evidence
would seemingly allow.
Here, for example, is how Spence revisits the testimony and juxtaposes contrasting
depictions of the testimony of several witnesses. First, Mr. Utnage (outlaw villain), then
Young Apperson (community member):
Mr. Utnage

I want to talk about the design of that plant very quickly. It was designed by Mr. Utnage. He never designed
any kind of a plant. And I confronted him with scores of problemsyou remember those 574 reports of
contaminationsthey were that thick [indicating], in two volumes. I asked him about a leak detection
system. We do not need a leak detection system, he said. What do we need a leak detection system for?
We can see it. We can see it. Here is the man who told you that as long as you cant see it, youre safe. And
we know that the amount of plutonium, a half a gram of plutonium, will contaminate the whole state of
Oklahoma, and you cant see it. They let it flop down into the rooms, and Jim Smith said one time it was in
the room a foot thick on the floor. Do you remember the testimony? He said he designed a safe plant. And
he believed the company lie that plutonium does not cause cancer. He sat there on that stand under his oath
and looked at every one of you under his oath, and he said that plutonium has never been known to cause
cancer. Well, now, either he lied, or he bought the company lie and didnt know. But he was the man who
designed the plant. You wouldnt have to design a very good plant if you didnt think plutonium caused
cancer, it wouldnt bother you. You wouldnt work very hard. There wouldnt be much to worry about. Like
mayonnaise.40
Young Apperson
[D]o you remember young Apperson sitting there [indicating]? You remember his open faceI liked him a
lotan open, honest boyblond, curly hairyou remember him, two and a half months ago? He said,
Thirty percent of the pipes werent welded when I came, when the plant was opened. Thirty percent of the
pipes were welded after the plant was in operation, and I was there and I saw those old welds. And he
wasnt a certified welder himself, and he was teaching people in an hour or two to be welders themselves
not a certified welder on the job. There was things leaking everywhere, he said. You remember how he
was describing how he was there welding the pipe and they jerked the oxygen out, and he had to gasp for air
the contaminationto survive the moment? Jim Smith talked about the valves breaking up from the acid.
So much for the design of the plant.41

Each description of character and recitation of testimony is discrete, shaped in relationship to

the other pieces of testimony, elliptical pieces, part of a careful overall arrangement. These are
all parallel constructions. Each begins with a visualization or imagistic depiction of character,
then a summary of testimony, ending with Spences rhetorical flourish and an almost
unnoticeably ironic commentary as Spence moves outside the images and sits alongside the
jury observing the witness and providing a throwaway comment. For example, Spence
observes that Mr. Utnages indifference to and ignorance of the notion that loose plutonium
causes cancer is like mayonnaise. Or after recounting testimony by young Apperson, who
sees the things leaking everywhere, Spence observes ironically, [s]o much for the design of
the plant.
This elongated initial movement provides the setup for the confrontation between the
melodramatic hero (Silkwood) and the archetypal villain (Kerr-McGee and its evil minions) to
save the townspeople and the community from destruction. This slow initial movement frames
the clearly marked pattern of the classic heroic rescue narrative also presented in High Noon
and Jaws. Unlike the heroes in those films, however, Spences Silkwood will never do
successful combat in a final climactic battle; she will merely provide her warnings of the
future and die in the process of attempting to rescue the community. It is then for the jury to
intervene and complete the heros journey by writing the proper ending to the unfinished
story.
Finally, after proceeding through much additional testimony and evidence, Spence signals
his transition to the next stage of the plot (the dramatic confrontation). Again, Spence keeps
the pieces (the sequence of the plot) discrete, suggesting the relationship between narrative
sections not through a clear and explicit linear chronology, but as if by principles of cinematic
montage. For example, he reintroduces snippets of testimony from another witness,

Hammock, the highway patrolman (formerly a Kerr-McGee employee), to whom KerrMcGee allegedly shipped defective fuel rods that, in Hammocks words, had a bad weld, or
too large a weld sealing in the plutonium pellets.42 And then he jumps back into the jury box,
as if sitting next to the jurors. It just turns my guts, Spence observes, as if psychologically
he cannot refrain from doing so, [t]hey were shipping defective pins to a breeder reactor
knowing they were defective, to Washington where the peoplethe State of Washington
where the people are going to somehow be subjected to the first breeder reactor in this
country.43
Spence comments forcefully to the jurors in the first person, marking that this preliminary
piece of his argument is near completion and that he will finally be moving on to the next
stage in his story structure. He is now a moral commentator and guide for the jury upon what
he has presented so far:
I couldnt get over itI couldnt sleepI couldnt believe what I had heard. I dont know how it affected
you. Maybe you get so numb after a whileI guess people just stand and say, exposure, exposure,
exposure, exposure, exposurecancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer,
cancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer, until you dont hear it anymore. Maybe that
is what happens to us. I tell you, if it is throbbing in your breastif cancer is eating at your guts, or its
eating at your lungs, or its gnawing away at your gonads, and youre losing your life, and your manhood,
and your womanhood, and your child, or your children, it then has meaningthey are not just words. You
multiply it by hundreds of workers, and thousands of workers, that is why this case is the most important
case, maybe, in the history of man. That is why Im so glad youre on this jury, and that we are a part of this
thing together.44

G. The Arrival of the Prophet

Finally, the heroine Silkwood is cast back onstage. How does this all tie in with Karen
Silkwood? Spence asks.45 After yet another digression, or zigzag, back to his legal theory of
damages, if the lion gets away, they have to pay, Spence reintroduces the protagonist Karen
Silkwood, characterized as a moral and religious person, a union organizer, deeply concerned
about her fellow workers, who has been silenced and slandered by Kerr-McGee at trial. As
with his initial setup, Spence is extremely patient and deliberate in developing Silkwoods
character as a heroic protagonist, in opposition to the image of Silkwood presented by
defendants witnesses. Spence goes far back in time and begins his depiction of Silkwood as a
child:
Who is Karen Silkwood? Who was she? Well, its a fear that sometimes the whole truth doesnt get to you.
What would have happened in your mind about Karen Silkwood if all you ever heard was [Kerr-McGee
supervisor] Longaker, who was full of his own vindictiveness against her? You would have believed, by his
statements: Karen Silkwood was [an] uncouth, moody, unreliable, vindictive, sloppy woman, a miserable
hate monger, and tried to get even with the company by intentionally contaminating herselfthat is what she
was, she was an unmitigated moody bitch, to put it plainly. Is that who she really was? You know yourself,
and you know your friends, and you know me by where we come from. She was a happy child, a good
child, she was correctly reared by the church, and she had her life in the church, and she loved church, and
she was a scholarship student, and she was a chemistry major. She was bright, she could understand. But,
more than anything else, she cared. At that corporation plant there was somebody who cared, and it was
Karen Silkwood. Somebody who cared a lot about others.46

Here, Spence resurrects Karen Silkwood and brings her actual voice into the courtroom
through edited audiotape segmentsso that the jury can hear her and put an identity to answer
the question of who she was (whose version of Silkwood is to be believed). These excerpts are
parallel (almost identical) in length to the excerpts from the various witnesses testimony that
Spence previously quoted to the jury. Each is a parallel yet elliptical piece of an organized
ensemble or arrangement of voices of the community, with Silkwood now placed at the center.
At the end of each edited taped excerpt, Spence repeats her final phrase in her own voice for
emphasis, providing a final rhythmic beat before moving on. These pieces are carefully
arranged, akin to a tightly ordered sequence of building-block scenes in the storyboard
constructed for a movie.
[Spence] You know, I got this here so that you could hear her voice once more. This is the voice when she
was talking to [union representative] Steve Wodka. She never knew it would be played in a courtroom with
her bones rotting in the grave. But her voice is still quite alive. Now you judge for yourself who Karen was.
[Reporters note: The following portion of a cassette, Plaintiffs Exhibit 31, played in open court.]

Karen Silkwood [her voice]

And, Ive got one here that were still passing all welds no matter what the pictures look like. We either grind
down too farand Ive got a weld I would love for you to see just how far they ground it down till we lost
the weld trying to get rid of the voids and inclusions and the cracks. And, I kept it.
[Spence repeats] And I kept it.47

Spence similarly frames other taped excerpts:

[Spence] And I had Wally get this other part so that you could hear it. [Reporters note: The following
portion of a cassette, Plaintiffs Exhibit 31, played in open court.]

Karen Silkwood [her voice]

Ah, in the laboratory weve got eighteen- and nineteen-year-old boys, you know, twenty and twenty-one, I
mean, and they didnt have the schooling so they dont understand what radiation is. They dont understand,
Steve, they dont understand.
[Spence repeats] They dont understand, Steve, they dont understand.48

And then, Spence answers his own rhetorical question as to who he thinks Silkwood is,
identifying her as a prophet:
Who was she? I say she was a prophet, an ordinary woman who cared, and could understand, doesnt have
to be anything other than an ordinary woman who cared and understood in order to be a prophet. I dont
mean that shes anything, you know, biblicalI mean, she was an ordinary person who cared, and she
prophesied it this way: If there is something going onthis was an actual quoteIf there is something
going on, were going to be susceptible to cancer, and we are not going to know about it for years. She says
this to you, ladies and gentlemen: Something has to be done.49

H. The Confrontation: The Conflict Intensifies

From this point, Spence develops the melodramatic conflict and confrontation between
Silkwood and the forces of antagonism posed by Kerr-McGee. Spence contrasts the testimony
of Kerr-McGees witnesses against Silkwoods own voice. Spence begins to intimate what
really happened to Silkwood to counter the defendants story (pointing the long, white, bony
finger of blame)50 that Silkwood intentionally smuggled plutonium out of the plant,
poisoning herself to take revenge on the company, effectively committing suicide (although
there is scant evidence to back up this theory). Spences more likely counterstory implicates a
dark conspiracy by Kerr-McGee to rid themselves of the union organizer, Silkwood, who has
collected evidence of wrongdoing on the part of the corporation (including, perhaps, doctoring
images of fuel rods shipped to a breeder reactor in Hanford, Washington).
Spence paints his villainous characters with vivid brushstrokes, usually recalling witnesses
with a description of a single detail and then connecting this physicality to the next depiction
of villainy. Here, in a sequence, Spence emphasizes how the defendants evil minions
(including Morgan Moore, Silkwoods supervisor at Kerr-McGee and Kerr-McGees attorney,
Mr. Paul) point the bony finger of blame at Silkwood: What did [Kerr-McGee supervisor]
Morgan Moore do? How does he fit in the picture? He accused her from the beginning
pointed his finger, didnt have any evidence thenand five years later in this courtroom was
still willing to point his finger, his long, white, bony finger at her. It is easy to blame.51
Spence then connects this to how Mr. Paul, defendants attorney, attempted to put his fingers
in the pocket of his coat during his opening statement, intimating to the jury that Silkwood had
secreted the plutonium into her pocket, smuggled the plutonium out of the Kerr-McGee plant,
and spiked her own urine samples; her apparent motive was to take revenge on the
corporation:
Mr. Paul, you remember him walking up to you in the opening statement and telling you how he blamed
Karen Silkwood? He didnt have any more evidence then than he has now. He said first accessfirst access
you remember he said about her she had access to it, to her apartment. Who could get into her
apartment? Well, she could get into her apartment. The next point is an important oneIm sure no one
of you has wondered about itthe opportunity to remove small quantities of plutonium from the plant.
Then he did this business with his pocket, trying to get your mind ready to blame her and to join the
company line. [A]nd even you remember this business about how he really tried to explain to you that
she did it intentionally to herself.52

And then it is back to Morgan Moore, and his long, white, bony finger of blame that points
to the only defense they have the mud springs.53
Morgan Moore says: All I have is suspicions. I cant prove a thing. Now, I think it is shameful to point
the finger in accusation, and know, as Mr. McGee knew clear back in 1975: It is not likely that the source
of her contamination will ever be known. He knew that. The AEC had come in and never came to any such
conclusion. They investigated it. Morgan Moore said, All there are are suspicions.54
[I]t is the only defense they have, and they hope to drag you into the mud springs.55

While the defendant make[s] reckless accusations and destroy[s] and desecrate[s] the good
name of a decent, honorable, person,56 these are not actions that fit the character of a heroic
protagonist; her motivations were to protect the workers at the plant, not to poison herself and

endanger others by smuggling plutonium out of the plant:

Her mother said she was cryingshe was nervous, something was wrongshe knew something was wrong:
She wouldnt tell me what was wrong. She was afraid of something at the plant. She was contaminated
she said she thought she was going to die. She wanted to come home. She wanted to get away from it, but
there was something wrong.57

Likewise, Silkwoods sister recalls that not only is Silkwood profoundly upset about her
contamination but that she has knowledge about wrongdoings at the plant and must be careful:
Her sister said: There is something wrong. Karen wouldnt tell me over the phone. She wanted me to come
so I could talk to her. She was afraid to talk to me on the phone. There was something that she knew besides
the fact that she was contaminated.58
Well, the key question is: Did she know too much? Who contaminated her? Did she know too
much? How much did she know? She knew enough to bring this whole mess to an endthe whole KerrMcGee plant to an end.59

The transition to the final section of the argument is again marked by the use of rhetorical
questions. The answers are all the same: she knew enough to bring this whole mess to an
end. Spence does not provide the full answer here; he saves this for his rebuttal closing
argument. At that time, his conspiracy theory is unmistakable, providing the countermotive
for the villainous and evil Kerr-McGee, the devouring monster whose lust for profits cannot
be sated, to finally rise up from beneath the mud springs, causing Silkwoods death because
she knew too much. Spence makes this argument by intimation, walking a careful tightrope of
evidence, never explicitly accusing Kerr-McGee of authorizing, allowing, or encouraging
Silkwoods death; he leaves this for the jury to surmise in deliberations.
Although Spence doesnt pull the pieces together, he leaves the jury to ponder the questions
during the defendants closing argument. Perhaps he chooses this strategy to provide the big
ending and dramatic closure to his portion of the tale later. Perhaps his strategy is not to fully
play his narrative hand: the defendant will not have an opportunity to respond to Spences
rebuttal argument and cannot then accuse Spence of doing precisely the same thing as Spence
now accuses the defendantthat is, of Spence then placing the blame directly on Kerr-McGee
with speculation and innuendo.
Nevertheless, Spence systematically identifies the evidence from which the jury might
construct this counterstory: Silkwoods reports of doctored defective fuel rods; Kerr-McGees
desperation to obtain the reports that Silkwood planned to turn over to a reporter from The
New York Times; the search for the never-found documents; forty pounds of plutonium
missing from the plant and still unaccounted for; and Kerr-McGees taking everything in
Silkwoods residence down to the Durkees dressing60 and burying it. Spence does not
connect the narrative dots.
Still, Spence cant resist observing, [t]he cause of [Silkwoods] death isnt an issue, but
fifteen minutes after she left a nighttime union meeting for a meeting with the investigative
reporter from The New York Times, allegedly carrying evidence of Kerr-McGees nefarious
practices, she was dead.61 Although the direct cause of Silkwoods death in the car accident

is not an issue in the trial, it is potentially important to the narrative logic of Spences
counterstory. The narrative subtext is unmistakable: Kerr-McGee clearly had a motive to do
whatever was necessary to stop Silkwood. This certainly provides a stronger and more
satisfying story logic than Kerr-McGees defensive speculations that Silkwood poisoned
herself to discredit Kerr-McGee. (Did she know too much? She knew enough to bring this
whole mess to an end.)62

I. Rebuttal Argument: The Final Confrontation

I, during the recess, wondered about whether there is enough in all of us to do what we have to do. Im
afraidIm afraid of two things: Im afraid that you have been worn out, and that there may not be enough
left in you to hear, even if you try, and I know you will try, but I know you are exhausted; and Ive been
afraid there isnt enough left in me, that my mind isnt clear and sharp now, and that I cant say the things
that I need to say, and yet it has to be done, and it has to be done well. And it is the last time that anybody
will speak for Karen Silkwood. And when your verdict comes out, it will be the last time that anybody will
have the opportunity that you have, and so it is important that we have the strength and power to do what
we need to do.63

Spence begins his rebuttal with a rhetorical framework identical to the initial argument. First,
he reestablishes his dialogic relationship to the jury. Then he reaffirms the historical
singularity of the Silkwood case: You know, history has always at crucial times reached down
into the masses and picked ordinary people and gave ordinary people extraordinary power.64
There are retellings of the legal anecdotes (the lion gets awayplaintiffs theory of strict
liabilityand the mud springsdefendants theory of obfuscation and slander). This time,
Spence tactically adds an admonition: I dont want you jumping in mud springs. [I]t is
unnecessary for you to decide how plutonium escaped from the plant, how it entered her
apartment, or how it caused her contamination, since it is a stipulated fact that the plutonium
in Karen Silkwoods apartment was from the defendants plant.65 Although the defendant has
the burden of proving how the lion got away, and it is unnecessary for the jury to decide how
the plutonium escaped from the plant, Spence argues that he has a moral responsibility to
respond to the attacks and speculations by the defendants attorney, unsupported by the
evidence: Mr. Paul stood up here and pointed his finger toward Karen Silkwood Mr.
Paul doesnt have the right to come into a court and say: I think this happened. And: I think
that happened. And to take a whole series of unrelated events and put them together and
to mislead you.66 Spence is angry about that, that the corporation shouldnt hide behind
little people.67 But [i]f we want to play guess-umthat is, point the finger Im willing to
play that game. But, when I do it, I want you to know it isnt right, because I cant prove that
any more than they can prove it.68 Spence does not explain what that is; he leaves it to the
imagination and speculation of the jury: What was the motive for them to do that? She was a
troublemaker. She was doing union negotiations. She was on her wayshe was gathering
documentsevery day in that union, everybody in that company, everybody in management
knew that. Nobody would admit it, but they knew it.69 Spence contrasts the motive for
Silkwood contaminating herself suggested by the defendant ([S]he was furious. We found out

that she wasnt furious.)70 with the motive that Spence suggests for the evil Kerr-McGee:
Compare that motive with the motive of people to stop her. She knew too much.71 And
then Spence develops his counterstory: who most likely contaminated Silkwood and why.
First, Spence develops Kerr-McGees motive to stop Silkwood (What would she
[Silkwood] do had she gotten to The New York Times?).72 He then connects this with
Silkwoods discovery, and ability to prove, that Kerr-McGee was producing defective and
dangerous fuel rods, and her documentation of leaks, spills, and incidents. Silkwood
possessed proof that Kerr-McGee was doctoring the x-rays and shipping defective fuel rods.
Silkwood was properly fearful for her life because of her knowledge. Spences intimation is
clear: if the jury chooses to enter the mud springs of speculation and blame, it is far more
plausible that Kerr-McGee caused Silkwoods death to prevent her from revealing what she
knew to The New York Times reporter and bringing this whole mess to an end.
Spence intrudes on the narrative, making his point explicit: You tell me there isnt a hideup, a cover-up.73 His comments are overcome by emotion, the force of his own words deeply
affecting him emotionally, both as a speaker-narrator of the story and as a virtual member of
the jury; he is an observer as well as a participant, and a guide for the jurors on the last leg of
their own heroic journey, suggesting his answer to one of the three riddles: I think she was a
heroine. I think her name will be one of the names that go down in history, along with the
great names of women heroines. I think she will be the woman who speaks through you, and
may save this industry and this progress and may save, out of that industry, hundreds of
thousands of lives.74 Spence redelivers the call to the hero:
Now let me ask you this question: When we walk out of here I aint going to be able to say another word,
and youre going to have to make some decisions, and they are going to be made not just about Karen
Silkwood, and not just about those people at the plant, but people involved in this industry and the public
that is exposed to this industry. That is a frightening obligation. Can you do it? Do you have the power?
Are you afraid? If you are, I dont blame you, because Im afraid, too. Im afraid that I havent the power for
you to hear me. Im afraid that somehow I cant explain my knowledge and my feelings that are in my guts
to you. I wish I had the magic to put what I feel in my gut and stomach into the pit of every one of you.75

Initially, it is difficult to contemplate how Spence will move the narrative forward into the
final stage of the battle between good and evil; nor is it clear how he will connect the pasttense melodrama about Silkwood with the mythic present-tense story of the trial itself and the
heroic quest of the jury to preserve the value of justice itself. Spence solves this creative and
aesthetic problem by finally removing the covers from The Beast. Like the shark in the final
battle-to-the-death confrontation in Jaws, The Beast emerges visible from beneath the mud
springs (just as the identity of Karen Silkwood is revealed, and just as Spence has revealed his
own vulnerability and fearfulness). In his final revelation appears Kerr-McGee, the
antagonistic force, embodied, venal, devouring, and naked at last, dripping radioactive
plutonium from the bodies of young and innocent workers, future victims of death by cancer,
trapped in its grasp, victims of its insatiable appetite for profits.
In his transition to completing the second act or movement of the narrativehis portion of
the telling of the tale and the completion of the past-tense melodramaSpence identifies
Kerr-McGee as the cause of the immense tragedy in this case that most of us havent thought

about verbally.76 It is not just Silkwoods tragedy, but a tragedy for the workers still alive.
[T]hese young men may very well die. That is a horrid secret that nobody has told us.77 The
accidents have unleashed plutonium and cancer that will cause even more death if the jury
does not listen to Silkwoods prophetic warnings and stop Kerr-McGee.
In this representative excerpt, Spence intersects two discrete parts of the story (the pasttense melodrama about Silkwood and the present-tense story of the trial itself and the jurys
heroic quest for justice). The Beast arises from beneath the mud springs, just as Karen
Silkwood predicted prophetically:
And I can hear them [agents of Kerr-McGee] saying to you and to those boys and girls that there has never
been a cancer caused by plutonium, that we know of. Ive prosecuted murdererseight years I was a
prosecutorand I prosecuted murderers and thieves, and drunk and crazy people, and Ive sued careless
corporations in my life, and I want to tell you that I have never seen a company who misrepresented to the
workers that the workers were cheated out of their lives. These people that were in charge knew of
plutonium. They knew what alpha particles did. They hid the facts, and they confused the facts, and they
tried to confuse you, and they tried to cover it, and they tried to get you in the mud springs. You know and I
know what it was all about. It was about a lousy $3.50 an hour job. And if those people knew they were
going to die from cancer twenty or forty years later, would they have gone to work? The misrepresentations
stole their lives. Its sickening. Its willful, its callous.
Karen Silkwood, before she died, before this case was thought of, said that these young men dont
know. You heard her voice: These young men, eighteen, nineteen, twenty, twenty-one years old dont
understand.78

J. The Resolve by the Jury

Spence leaves it to the jury to do what Karen Silkwood could not do. He resounds her
prophetic warning: what will happen in the future if the jury does not stop Kerr-McGee. But he
is not quite done: Spence returns to his opening, offering his own dark vision of the Cimarron
Syndrome before the arrival of the prophet. Here, his nightmare foreshadows the future,
flash-forwarding twenty years to what will be if the jury does not stop Kerr-McGee here and
now:
Now I have a vision. It is not a dreamits 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 nowthe men are not old, some say
theyre just in their prime, theyre 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 dyingnot all of them but they
are dying like men die in a plague. Cancer they say, probably from the plutonium plant. He worked there as
a young man. They didnt 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.
Some read about plutonium and cancer in the paper for the first time during a trialthe trial called
The Silkwood Casebut it was too late for them. Karen Silkwood was dead, the company was trying to
convince an Oklahoma jury that she contaminated herself. They took two and a half months for trial. The
company had an excuse for everything. Blamed it all on the union. Blamed it all on everybody elseon
Karen Silkwood, on the workers, on sabotage, on the AEC. It was a sad time in the history of our country.79

Spence then looks into the future and sees the time of infamy as worse than the days of

slavery when the government held hands with these giants, and played footsie.80 He
describes it as a sad time, the era between 70 and 79they called it the Cimarron
Syndrome.81 By projecting forward into time, Spence visualizes the alternative resolution to
the story if Kerr-McGee is not stopped, and he now assumes Silkwoods prophetic role
himself. Then Spence suggests answers to riddles the jury must solve in its deliberations. The
first riddle: who was Karen Silkwood? Answer: she was a brave, ordinary woman who did
care. And she risked her life, and she lost it.82 Then he suggests an answer to the second part
of this riddle, of what she was trying to tell the world: And she had something to tell the
world, and she tried to tell the world. What was it that Karen Silkwood had to tell the
world?83 Answer:
I think she would say, Brothers and sisters. I dont think she would say ladies and gentlemen. I think she
would say, Brothers and sisters, they were just eighteen- and nineteen-year-olds. They didnt understand.
There wasnt any training. They kept the danger a secret. They covered it with word games and number
games. And she would say: Friends, it has to stop here today, here in Oklahoma City today.84

Spence intuitively understands that there is nothing more to say, no place left to go with his
story. His work is complete: Ive still got half an hour, and Im not going to use it.85 Spence
uses an oral formulary, a stock anecdote that empowers the jury to write the final ending to the
storypreferably a big Hollywood up endingand to impose a coda upon the tale; it is a
simple story, about a wise old manand a smart-aleck young boy who wanted to show up the
wise old man for a fool:86
The boys plan was this: he found a little bird in the forest and captured the little bird. And he had the idea he
would go to the wise old man with the bird in his hand and say, Wise old man, what have I got in my
hand? And the old man would say, Well you have a bird my son. And he would say, Wise old man, is
the bird alive, or is it dead? And the old man knew if he said, It is dead the little boy would open his hand
and the bird would fly away. Or if he said, It is alive, then the boy would take the bird in his hand and
crunch it and crunch it, and crunch the life out of it, and then open his hand and say, See, it is dead. And
so the boy went up to the wise old man and he said, Wise old man, what do I have in my hand? And the
old man said, Why it is a bird my son. He said, Wise old man, is it alive, or is it dead? And the wise old
man said, The bird is in your hands, my son.
Thank you very much. It has been my pleasure, my God-given pleasure, to be a part of your lives. I mean
that.
Thank you, Your Honor.87

III. Concluding Observations

A. Every Story Is Over Before It Begins
As observed initially, beginnings and endings are deeply interconnected; beginnings must be
carefully selected and developed in anticipation of the ending at the other end of the trajectory
of plot.88 The endingthe point of a storygives the plot closure and meaning. This is
especially so in law stories, like Spences Silkwood, where the plot drives forward toward an
implicit and unstated final ending. This ending must be all but inevitable to the jury, ever the

more so because the final resolution is left for the jury to impose on the case outside the
presence of the storytelleran ultimate thumbs up or thumbs down, declaring which
storyteller will emerge successfully from storytelling combat in the courtroom.
For example, in Spences heroic melodrama, the true ending that Spence proposes is not the
death of the protagonist Silkwood but rather her resurrection and redemption. The heroic jury
is compelled to compensate Silkwoods family, punish Kerr-McGee, save the community, and
subjugate the evil corporation by declaring that the heroic protagonist did not die in vain. It is
here, outside the courtroom, where the jury finally solves Spences three mythic riddles, slays
the evil beast of Kerr-McGee, and provides justice with a satisfying narrative outcome and
closure to the tale. Teachers of storytelling like John Gardner advise young writersand this
advice is affirmed by narrative theorists including Peter Brooksthat stories, especially
stories with the hard and predictable trajectories such as genre-based melodramas, are best
constructed backward, knowing exactly what the desired ending is and then developing the
story line by working backward from the ending.89 Thus, beginnings typically foreshadow all
that will occur afterward, often suggesting how the story will end, although the ending is not
explicit and may not be apparent in a jury trial until the moment when the jury provides the
ending and imposes a final coda of meaning on the tale.
The beginning is crucial for another reason; it typically provides a narrative hook that
engages and captures the imagination of the listener or reader, and it shapes and defines the
world of all that transpires afterward. This hook also compels the audience to ask the
storytellers the question what happens next? in initiating the trajectory of a plot.
Spences complex argument in Silkwood opens slowly. There are many false, yet
purposeful, starts before he arrives at the story. But Spence speaks to a captive audience that
has already listened to the testimony and the presentation of evidence at trial over many
weeks. He has been given four hours for his initial and rebuttal arguments. He can afford to be
patient, to take his time before he finally arrives at the beginning. Likewise, he can simply
reference evidence and fragments of testimony to evoke the fullness of imagery, characters,
and scenes, drawing implicitly on the jurys recollections of the materials presented during the
past eleven weeks of the trial. Thus, he can be economical in his re-presentation of the
narrative particulars; he does not have to revisit every detail, although it is crucial to sequence
the narrative events into a plot that takes into account all the evidence and defendants
counterstories. And Spence must, of course, be meticulous, truthful, and comprehensive. He
must beor appear to becompletely ethical and fair-minded to maintain credibility with the
jury, or he risks losing everything.
Initially, he reestablishes his interactive or dialogic relationship with the jury, building
his own credibility and his caring about and respect for the jurors and, also, reemphasizing the
singularity and profound importance of this case: Its the longest case in Oklahoma history,
they tell me. And this is probably the most important case, as well. [A]nd its the most
important case of my career. And, I have a sense that I have spent a lifetime, fifty years, to
be exact, preparing somehow for this moment with you.90 This is Spences hyperbolic
version of the standard lawyers warm-up, or proem, that Spence has incorporated into
numerous closing arguments. Yet it seems spontaneous and sincere; rhetorically, Spences
credibility is crucial. Likewise, he endeavors to engage the jury dialogically. Spence then

frames his story in terms of his legal theory of the case (the lion gets away and strict
liability) and characterizes the defendants theory and evidentiary counterstory (the analogy of
the mud springs). The law is transformed alchemically into narrative. Finally, Spence
delivers an initial narrative hook and develops the setup for the melodramatic
confrontation that follows. He begins a highly stylized and self-consciously literary
pronouncement, signaling the start of the story: It was a time of infamy, and a time of deceit,
corporate dishonesty. A time when men used men like disposable commoditieslike so much
expendable property.91
Here, in contrast to the idyllic depictions of the anterior steady state in Jaws and High
Noon, the trouble has already arrived onstage; it is already a dark and troubled time. The evil
corporation has already taken over Crescent, and the survival of the community is at risk. The
story is clearly not just about Silkwood and compensation for her injuries; far larger values are
at stake.
Structurally, the beginning defines the outer boundaries of the narrative frame within which
the ending must be achieved. The trajectory of the plot later returns specifically to this dark
and foreboding place (an anterior steady state) when Spence reveals his nightmare vision for
the future if the jury does not intervene on Silkwoods behalf. The initial foreboding
simultaneously suggests an alternative, preferable, and irresistible up ending for the
melodramaa transformed steady state where the community has been liberated from the
forces of antagonism and Silkwoods prophetic warning finally heeded; justice (literally the
value of justice) will prevail and law and order will be restored in the Wild West.
But where is Silkwood in these initial paragraphs? She is not cast onstage initially. Spence
first personifies the villain and the forces of antagonism of the dark, powerful, and sinister
corporate giant Kerr-McGee; he brings it alive, giving it powers of thought, intentionality, and
language: well, I guarantee that corporation does not speak South, it doesnt speak Okie, it
doesnt speak Western, it doesnt speak New York. It speaks one language universally.
It speaks the language of money.92
Finally, in the third portion of Spences initial setup, protagonist Karen Silkwood, the
prophet, is cast onstage to finally confront the evil villain, The Beast Kerr-McGee:
Who is Karen Silkwood? Who was she? I say she was a prophet, an ordinary woman who cared, and
could understand, doesnt have to be anything other than an ordinary woman who cared and understood in
order to be a prophet. [A]nd she prophesied it this way. She says this to you, ladies and gentlemen:
Something has to be done.93

This completes the beginning or setup. Now the action begins.

Lets compare Spences gradual setup with several more economical and compressed
beginnings or openings (two from literature and one from the movies) and observe how these
openings all achieve similar objectives in dissimilar ways. In Beginning, a chapter in a
primer for young writers, the novelist, critic, and teacher David Lodge identifies several
illustrations of strong literary openings: the first from Jane Austens Emma and the second
from Ford Madox Fords The Good Soldier:94

[From Emma]
Emma Woodhouse, handsome, clever, and rich, with a comfortable home and happy disposition, seemed to
unite some of the best blessings of existence; and had lived nearly twenty-one years in the world with very
little to distress or vex her.
She was the youngest of the two daughters of a most affectionate, indulgent father, and had, in
consequence of her sisters marriage, been mistress of his house from a very early period. Her mother had
died too long ago for her to have more than an indistinct remembrance of her caress, and her place had been
supplied by an excellent woman as governess, who had fallen little short of a mother in affection.
The real evils indeed of Emmas situation were the power of having rather too much her own way, and
a disposition to think a little too well of herself; these were the disadvantages which threatened [to] alloy her
many enjoyments. The danger, however, was at present so unperceived, that they did not by any means rank
as misfortunes with her.95

[From The Good Soldier]

This is the saddest story I have ever heard. We had known the Ashburnhams for nine seasons of the town of
Nauheim with an extreme intimacyor, rather, with an acquaintanceship as loose and easy and yet as close
as a good gloves with your hand. My wife and I knew Captain and Mrs. Ashburnham as well as it was
possible to know anybody, and yet, in another sense, we knew nothing at all about them. This is, I believe, a
state of things only possible with English people of whom, till today, when I sit down to puzzle out what I
know of this sad affair, I knew nothing whatever. Six months ago I had never been to England, and,
certainly, I had never sounded the depths of an English heart. I had known the shallows.96

Lodge describes the beginning of Emma as classical: lucid, measured, objective, with ironic
implication concealed beneath the elegant velvet glove of the style. How subtly the first
sentence sets up the heroine for a fall. This is to be the reverse of the Cinderella story, the
triumph of an undervalued heroine. Emma is a Princess who must be humbled before she
finds true happiness.97 The opening clues the reader in to the steady state of lazy luxury that
has existed for two decades (akin to the steady state of decay and corruption that exists in
Silkwood) and, also, that this steady state is due for a reversal (or why would it be
mentioned?). The opening is of a maturation or coming of age plot.98 Typically, in Hollywood
parlance, this is either an education plot (if the story ends well, with Emmas character
changing after learning from her experience) or a disillusionment plot (if the story ends badly,
with Emmas fall from grace).99 Lodge identifies the meticulous word choice and allusions
that, before the end of the first sentence, prefigure all that will take place thereafter:
Handsome (rather than conventionally pretty or beautifula hint of masculine will-to-power, perhaps in
that androgynous epithet), clever (an ambiguous term for intelligence, sometimes applied derogatively, as
in too clever for her own good) and rich, with all its biblical and proverbial associations of the moral
dangers of wealth: these three adjectives, so elegantly combined encapsulate the deceptiveness of
Emmas seeming contentment. Having lived nearly twenty-one years in the world with very little to
distress or vex her, she is due for a rude awakening.100

In contrast to Austens cool elegance, Lodge observes, Ford Madox Fords famous opening
sentence [in The Good Soldier] is a blatant ploy to secure the readers attention, virtually
dragging us over the threshold by the collar.101 Unlike Emma, this opening is somewhat
mysterious with a characteristically modern obscurity and indirection and an anxiety about
the possibility of discovering any truth that infect[s] the narrative.102 There is, as in Emma,
an emphasis on the disparity between appearance and reality in English middle-class

behaviour; so this beginning strikes a similar thematic note to Emmas; however, it is tragic
rather than comic in its premonitory undertones. The word sad is repeated towards the end of
the paragraph, and another keyword, heart (two of the characters have supposed heartconditions, all of them have disordered emotional lives), is dropped into the penultimate
sentence.103 Both Emma and The Good Soldier, as novels, focus more on the internal
consciousness of the protagonist than on external actions, as in melodrama, and anticipate
changes within the consciousness of various actors.
Citing an example perhaps more closely akin to Spences genre-based beginning, Anthony
Amsterdam identifies the cinema noir opening of the masterful film Double Indemnity.104
Walter Neff, insurance salesman (according to the sign on his office door), staggers into the
office with a gunshot wound in his upper chest, loads a spool into his dictating machine, and
dictates this:
[Walter Neff (dictating into machine)]
Office memorandum. Walter Neff to Barton Keyes, Claims manager. Los Angeles, July 16, 1938.

Dear Keyes. I suppose youll call this a confession when you hear it. Well, I dont like
the word confession. I just want to set you right about something you couldnt see
because it was smack up against your nose.
You think youre such a hot potato as a claims manager, such a wolf on a phony claim. Maybe you are,
but lets take a look at the Dietrichson claim. Accident and double indemnity.
You were pretty good in there for a while, Keyes. You said it wasnt an accident. Check.
You said it wasnt suicide. Check.
You said it was murder. Check.
You thought you had it cold, didnt you? All wrapped up in tissue paper with a pink ribbon around it. It
was perfect. Except it wasnt, because you made one mistake, just one little mistake. When it came to the
killer, you picked the wrong guy.
You want to know who killed Dietrichson? Hold tight to that cheap cigar of yours, Keyes. I killed
Dietrichson. Me, Walter Neff, insurance salesman. Thirty-five years old, unmarried, no visible scars
[glancing down at his chest]until a while ago, that is.
Yes. I killed him. I killed him for money. And for a woman.
And I didnt get the money, and I didnt get the woman. Pretty, isnt it?105

This opening is the most compressed and complete of all the examples. It has none of
Austens sly subtlety or Fords suggestive ambiguity. Yet it is extremely forceful and
straightforward, employing the clipped speech and hard-boiled style characteristic of
Raymond Chandler and similar detective fiction. Like Silkwood, it immediately and
unmistakably clues the viewer in to the genre of the story, providing a strong narrative
framing and a clear set of anticipatory expectations in the viewer. But it also resembles Emma
and The Good Soldier, as well as Silkwood, in several important and relevant aspects.
First, like the other beginnings, it develops an initial situation of instability; there is the
arrival of a trouble that cannot be easily resolved by the protagonist who is placed
strategically at the center of the situation. In both Double Indemnity and Silkwood, this trouble
is established external to the narrator. In The Good Soldier and Emma, similar to many
classical modern novels, the trouble is more complex and also internal, within the
consciousness of the protagonist who is or is not affected and transformed by the gradually

unfolding events. That is, the subject of the novel and the movement of the narrative take
place within the consciousness of the narrator and the true subject of the novel (unlike
Silkwood or Double Indemnity); they are consciousness itself.
The Russian folklorist and narrative theorist Vladimir Propp famously distinguishes two
alternative versions of the trouble by which the movement of a story is launchedVillainy
and Lack.106 The beginnings of the novels Emma and The Good Soldier signal stories that
are about a lack within the character of the protagonist, while the beginning of Silkwood is
clearly a story about villainy.
The point is that all these beginnings now demand narrative propulsion or movement and
change to push the plot forward through the progressive complications of the middle toward
resolution. In all these beginnings, the audience (whether a reader, a viewer, or a juror) is led
to ponder the precise directions that the movement will take. Enough is said about the
situation and characters so that certain lines of movement are foreclosed; the audience
speculates as to what specific trajectory the plot will take (what happens next). After the
story is over, it is apparent that the ending is clearly embedded and prefigured in the
beginning.
All these storytellers (Austen, Ford, Billy Wilder, Chandler, and, of course, Spence) are
adept, within the constraints of their various storytelling forms and the unstated expectations
of their diverse audiences, at teasing out and maintaining narrative tension in the pacing and
trajectory of the respective plots. They ultimately satisfy the expectations established by the
initial setup with aesthetically satisfying endings and compelling narrative payoffs. And the
final payoff to Spences story is literal; it must be translated into and spoken in the only
language the villain understands, the language of money.

B. Making the Narrative Move: The Forces of Antagonism

Earlier I presented the concept of narrative movement or profluence in plotting, characterized
by a forward narrative momentum that is more than inertia. The concept of purposeful motion
is crucial in all storytelling: the narrative must be directed toward a culminationsome
ending or termination (either restorative or transformative) that the sequence of events
anticipates. But unlike the moviemaker or novelist, the legal storyteller faces constraints
(ethical and strategic) and must fulfill obligations. For example, the story is systematically
anchored in the theory of the case in addition to an aesthetically satisfying narrative theme.
These two must be fitted and complementary; the narrative must satisfy the legal elements
presented in the theory of the case.
Often, the legal storyteller will stop the narrative and step outside the story, purposefully
zigzagging from the story to the theory of the case to reveal specifically how a particular
sequence of the narrative events satisfies specific elements of legal theory of the case. Spence,
for example, is extremely adept at moving from his narrative to his theory of the case,
repeating a shorthand phrase or referencing how a piece of the story connects with or fulfills a
crucial component of his legal theory, and then returning to the story. He internalizes a
psychological awareness of his audiences imaginative attention and artfully maintains his

place in the progress of the plot, maintaining his listeners attention and avoiding gaps in the
narrative logic of the story. He walks tightropes of language and imagery and emotion;
nevertheless, it is the profluence of the plot of a well-shaped and carefully preestablished story
structure that ultimately determines the success of his closing argument.
Spences plot is shaped on a careful yet readily identifiable and predetermined trajectory.
This is especially so because the genre of the story is a familiar melodrama, and the plot of
such a story is, by its very nature, highly formulaic and predictable. In this sense, the ending
of a successful melodrama is clearly predeterminedthe black-caped villain must lose the
final and climactic battle to the death, the community must likewise be saved (in a heroic
rescue narrative), and the voice of the wise prophet finally heeded and her memory
redeemedshe must be vindicated and her sacrifice must not be in vain (perhaps Spences
three-word telegram about the theme might be prophets over profits).
How does Spence make the narrative move in a satisfying (yet predictable) way within a
complex framework of legal and aesthetic constraints? Lets look briefly at the development
of one of the characters, the villain, Kerr-McGee, within the plot and how it shapes the plot
and determines the success of the story.
Lets begin with an observation about the nature of character suggested by Michael
Roemer, the postmodernist notion that we no longer believe in character.107 Our recent
neurology and behavioral psychology may suggest that in real life actions are often largely
determined and shaped by external forces and environments rather than by the internal
attributes of the actors, and that the choices are compelled by circumstances and not made
exclusively by autonomous actors who must assume complete personal responsibility for their
actions. This is a type of narrative framing that some attorneys may occasionally employ to
persuade judges and juries. For example, in death penalty mitigation arguments, attorneys
often employ stories explaining how a convicted defendant was a victim himself of
environmental causes or human ecology (e.g., a backstory of horrific childhood
psychological abuse, a distressing and inescapable personal situation, etc.) that helps explain,
but never justifies, the acts committed by the convicted defendant. Consequently, the audience
is urged to have some sympathy for the convicted at sentencing; the punishment should be
mitigated and the defendant spared the death penalty. This story is connected to specific
elements of the applicable legal rules, typically statutorily identified mitigating factors or
circumstances.
Melodrama, however, provides a different type of framing story: characters are cast into
the roles of autonomous actors and held personally accountable for their actions and choices.
The trajectory of the plot then centers on the battle between the monolithic forces of good and
evil embodied in clearly presented heroes and villains who are held personally responsible for
the consequences of their actions. This is why torts attorneys, like Spence, typically employ
the hard trajectory of the plot of a melodrama; in doing so, they attribute actions to the free
will of powerful and antagonistic actors. The story eventually turns on the outcome of the
battle between the hero and the villain; the conflict is between good and evil, and, in the wellframed torts law story, the value at stake in the battle to the death is typically justice itself.
In effective melodrama, the villain and the villainy are crucial to fashioning the trajectory
of an effective plot. Thus, Spence patiently and purposefully transforms the corporation into

the unitary and readily recognizable villain long before Silkwood is brought onstage.
Systematically, the corporation is personified and given free will. Kerr-McGee is also given
the power of language and, implicitly, with it comes the power of thought and intentionality
(and with it the jury is charged with speaking the only language Kerr-McGee understands, the
language of money). This is all in accordance with the demands of melodrama, and Spence
confines his telling to the genre conventions of this highly circumscribed form.
But there is more to it than this. For the story to work fully, there must be narrative
movement within the story itself, and this calls for a carefully structured but symbiotic
relationship between hero and villain. As Ernest Hemingway observes about characterization
in well-constructed plots, Everything changes as it moves.108 In courtroom melodrama, this
motion requires typically that the villainy becomes ever more sinister as the plot progresses
and the sum of the forces opposing the will of the heroic protagonist become more powerful so
that it is imperative and urgent that the villainy be ended. Thus Spence implores his jury at the
end of his closing argument (as he does in many of his cases): Friends, it has to stop here
today, here in Oklahoma City today.109 Of course, this villainy must be built exclusively on a
true depiction of the evidence and plausible inferences from that evidence.
As the screenwriting guru Robert McKee observes, in melodrama especially, the conflict
must provide progressively building pressures that force characters into more and more
difficult risk-taking choices and actions, gradually revealing their true natures.110 McKee
identifies the specific steps in the trajectory of the plot of a compelling melodrama.
According to McKee, for the story to be compelling, the conflict must be about more than
merely a battle between good and evil; there must be the battle over a specific and readily
identifiable value that is at stake in the story.111 The protagonist represents the positive charge
of this value, and the forces of antagonism (the sum of all the forces opposing the will of the
protagonist, including, but not limited to, a specific antagonist or victim) represent the
negative charge of this value.112 In Silkwood, Spence specifically identifies the value at stake:
it is justice itself. McKee observes accurately that the stock narrative progression in the plot
of a melodrama about justice moves from the positive identification of this value (the
steady state of justice) through an intermediary depiction of the corruption of this value
(unfairness) toward the contrary valuethe direct opposite of the positive value (injustice).113
Finally, the story heads toward the end of the line where there is a force of antagonism
thats doubly negative at the limit of the dark powers of human nature.114 Specifically, the
negation of the negation for the value of justice, according to both McKee and to Spence, is
a vision of tyranny.115
This template provides a suggestive framework that accurately anticipates how Spence
propels the story forward by developing Karen Silkwoods progressive conflict against the
forces of antagonism aligned against her. Initially, there is Kerr-McGees unfairness
(negligence) toward the workers at the plant. This negligent inattention allows dangerous
plutonium to escape from the plant, contaminating the workers with carcinogenic plutonium;
Kerr-McGee does not take precautions to protect the workers and turns a blind eye to the
problems, more concerned about profits than the fate of the workers. This disturbance of the
anterior steady state and the depiction of the initial trouble manifest the contrary value of
unfairness. Then Spences storytelling moves further down an ordered progression, from

unfairness toward a contradictory value of illegality and injustice. Here, protagonist Karen
Silkwood is cast onstage to fight against the corporation with her efforts at unionization, with
her prophetic warnings, and with her revelations about nefarious and intentional misconduct
authorized by Kerr-McGee covering up defects in the crystallography of the fuel rods shipped
to a breeder reactor in Hanford, Washington, which she plans to turn over to a reporter from
The New York Times at a final meeting. Kerr-McGee responds to her efforts by attempting to
discredit and then silence her. (What was the motive for them to do that? [T]he motive of
people [was] to stop her. She knew too much.)116 The illegality and injustice of KerrMcGees conduct spills over into the courtroom, where Kerr-McGees attorneys and witnesses
go beyond merely attempting to drag the jury down into the mud springs, when defendant
points the long, white, bony finger at [Silkwood]. It is easy to blame.117 There is no
evidence to support these allegationsNot one person said she contaminated herself as a
motive to get even, or to help the union. Not one from that witness stand it was only Mr.
Paul [defendants attorney]. They are all his theories.118 They accused her then, and they
accuse her now, and they continue to accuse her.119
Finally, in the last movements of the plot, the full articulation of the value of justice at
stake in the story reaches the end of the linetyrannyas The Beast finally emerges visible
from beneath the surface of the mud springs and Spence proposes his vision of the future in
the Cimarron Syndrome, where workers are dying like men in a plague to satisfy the
ravenous appetites of greedy and profiteering Beast Kerr-McGee.120 It is a time where
Silkwoods warnings have gone unheeded, a time of infamy, worse than the days of
slavery when government held hands with these giants, and played footsie.121 This appears
to complete the progression, but it is a false ending, a premature closure; it is a negative
ending that, in fact, suggests that it is not too late for the possibility of a big upbeat ending
that only the jury can provide.
The point here is not that Spence employed McKees formula intentionally as a structured
model or form on which to construct his story structure and create profluence in the narrative.
Rather, it is that the conflict develops along a continuum shaped by the genre conventions of
melodrama, and this trajectory is all but inevitable as soon as Spence chooses the genre for his
storytelling. That is, narrative conventions shape his storytelling in this closing argument
every bit as much as do legal rules and theories, the rules of evidence, or even the evidence
itself that was introduced at trial. Consequently, in retelling his story in his closing argument,
Spence cannot begin easily by initially articulating the most extreme version of the value at
staketyrannyand then working backward in his story to discuss the lesser values. As
McKee explains, A story must not retreat to actions of lesser quality or magnitude, but must
move progressively forward to a final action beyond which the audience cannot imagine
another.122 Spences story is also shaped, of course, by the constraints of his legal theory of
the case, the judges instructions, and the requirement that he tell a story that comprehensively
and fairly represents and references the evidence presented at trial. Otherwise, he risks
destroying his credibility and losing his case in the battle of competing storytelling at trial.
As a final note, let me add that the fact that both legal and popular storytelling practices are
genre-bound does not diminish the power or gravity of these forms. Popular melodramas,
whether in cinema or the courtroom, are also attempts to approach an understanding of

important cultural values. As Peter Brooks observes about melodrama (in art and, perhaps, in
life as well):
We do not live in a world completely drained of transcendence and significance. Melodrama daily makes the
abyss yield some of its content, makes us feel we inhabit amid (larger) forces, and they amidst us. A form for
secularized times, it offers the nearest approach to sacred and cosmic values in a world where they no longer
appear to have any certain ontology or epistemology.123

Likewise, we employ courtroom storytelling practices, melodramas, and myths to find the
truth, to do justice, and to answer profound questions about ourselves in the process. The fact
that the stories told in the courtroom are often repeated, often formulaic, and often developed
through conventional forms does not diminish their power or significance. Nevertheless, it is
curious that to find the truth, to do justice, and to discover meaning in complex courtroom
cases such as Silkwood we rely on myth and melodrama to answer riddles about a
protagonists identity, to visualize a Beast emerging from beneath the surface of rural western
mud springs, and to track the development of the forces of antagonism through a progression
that often seems borrowed from a commercial Hollywood entertainment film.

4
Character Lessons
CHARACTER, CHARACTER DEVELOPMENT, AND CHARACTERIZATION

The Western conception of the person as a bounded, unique,

more or less integrated motivational and cognitive universe,
a dynamic center of awareness, emotion, judgment,
and action organized into a distinctive whole and set contrastively
against a social and natural background is, however
incorrigible it may seem to us, a rather peculiar idea
within the worlds cultures.
CLIFFORD GEERTZ, THE NATURE OF
ANTHROPOLOGICAL UNDERSTANDING

I. Introduction: Why Emphasize Movie Characters in Legal Storytelling?

Character has been called arguably the most important single decision made by practitioners
of many modern storytelling forms, especially the novel.1 The novel elevates and dramatizes
the art of psychological characterization, of character development, and of motivation; as a
form, it squarely places the art of characterization at the forefront of storytelling practice.
Indeed, theorists have observed that the primary subject of the modern novel is consciousness
and that [t]he center of all great literature is character.2 In the somewhat reductionist
vocabulary of more recent practitioners of visual cinematic storytelling and screenwriting,
modern realist novels are typically character driven. Movies, however, are not; movies are
typically plot based. The focus, especially in commercial entertainment films, is on
developing a compelling plot; the characters are shaped and developed in character arcs
constructed in relationship to, and in service of, the core narrative structure of the plot.
Characters are subservient to the demands of plot. Some of the reasons for this are pragmatic:
there simply isnt the room or the time available in a commercial two-hour plot to flesh out
fully developed characters and characterization. And there isnt the need since the actors are
already visible on the screen and can be seen and interpreted by the audience. The audience for
a film, absorbing the story in a single viewing, typically does not have the inclination to sift
through a gradual novelistic unfolding of character, especially when much of this material
may be irrelevant or superfluous to the demands of a carefully circumscribed narrative
plot structure.

Additionally, there are no apparent structural mechanisms or visual techniques typically

available in film that allow the story to go within or extensively explore the consciousness
of the various characters, to radically shift perspectives from character to character, or to
provide extended internal or descriptive ruminations on the character or internal psychology
of the various players in a story; these are the strengths of the novel. In contrast to the novel,
there is a certain reductionist and pragmatic approach to character development typical in
popular film. It is also why novelists, including those who have also written superb
screenplays, often denigrate cinematic storytelling practices. As the novelist E. L. Doctorow
puts it:
Fiction goes everywhere, inside, outside, it stops, it goes, its action can be mental. Nor is it time-driven. Film
is time-driven, it never ruminates, it shows the outside of life, it shows behavior. It tends to the simplest
moral reasoning. Films out of Hollywood are linear. The narrative simplification of complex morally
consequential reality is always the drift of a film inspired by a book. Novels can do anything in the dark
horrors of consciousness. Films can do close-ups, car drive-ups, places, chases and explosions.3

Now here is the curious rub about legal storytelling practices: storytelling in the law is equally
reductionist and plot driven, strongly akin to conventions of commercial entertainment
storytelling practices. Indeed, often characters in law stories seem borrowed from a repository
of stock film characters.
This relationship between character in popular film and legal storytelling practice is not
coincidental: as in commercial Hollywood films, characters in legal stories are developed in
close relationship to plot. There is simply insufficient room, and typically few literary
techniques available, for developing fully formed characters (at least, fully formed within the
tradition of the realist novel). Indeed, characters in law stories are subservient in their actions
to the demands of the plot. Typically, characters presented in law stories simply lack the
psychological complexity and the interior life of characters depicted in the novel. The primary
concern in legal storytelling is how the story will end, often embodied in the decision or
verdict of a jury at trial, or announced in the words it is so ordered in an appellate opinion.
Consequently, the focus is not on creating interesting characters who will compel the
imaginative attention of the audience; rather the emphasis is on characters and
characterization as means to a particular plot outcome. Does this mean that character
development in legal storytelling practice does not matter? Of course not. As we explore in
this chapter, especially in a close reading of a carefully constructed closing argument in a
criminal case, the effective creation, depiction, and casting of characters is profoundly
important and often outcome determinative.

II. What Is Character, and Why Is It Important to Legal Storytellers?

In the movie The Maltese Falcon, Sydney Greenstreet observes to the detective-protagonist
portrayed by Humphrey Bogart, My word, you certainly are a character, arent you?4 The
audience knows intuitively that he is referring to some intrinsic quality within the detective
that makes him compelling and provides a core psychological identity to him as a player in the

drama. But what exactly is character? Is it a composition or cluster of various characteristic

psychological traits and attributes? Is it the shell of appearance or physical description? Is it
some controlling myth that dominates us, inhabits our soul, and compels us mysteriously in
our conduct and our behavior? Or is it somehow the distillation and transposition of real life
onto the page or screen or into the courtroom? Perhaps character is primarily a function of
storytelling practice itself. Let me begin by observing that character has multiple, disparate
and, often, conflicting meanings. Heraclitus observed that [c]haracter is fate for a man.5 At
that time, the gods were thought to be in control of the fates and, consequently, of character.
Any individuality was stolen at the expense of the gods. Sophisticated and literary notions of
complex psychological characterization, motivation, and individuated personality were simply
not an order available on the narrative menu of the day.
Character is no longer controlled by the gods. In modern storytelling forms, complex
psychological notions of character became most pronounced in the modern novel. As Edith
Wharton famously pronounced, character has been the main concern of the novel for the
past two centuries; the test of the novel is that its people should be alive, and [n]o subject
in itself, however fruitful, appears to be able to keep a novel alive; only the characters in it
can.6 According to David Lodge (and the illustrations are endless) the high-water mark for
character was the European novel of the seventeenth through nineteenth centuries:
nothing can equal the great tradition of the European novel in richness, variety and
psychological depth of its portrayal of human nature.7 In more recent days, and in more
recent storytelling practices, including the literary novel in the twentieth century, character
was often streamlined, as if in anticipation of the form of the movie, compelling F. Scott
Fitzgerald to observe that [a]ction is character.8 Most recently, in many popular storytelling
practices, including in literary fiction, the importance and relevance of character and
characterization is in decline. Characters are often reduced in complexity or presented in
shorthand forms. It may be that there is no longer a shared cultural belief in the power of the
individual to shape or control narrative outcomes. As Bob Dylan celebrated ironically in song,
Take what you have gathered from coincidence.9 That is, implicitly, character and the
actions that appear to reflect a persons character are more a function of circumstance and
environment. As the filmmaker and postmodern literary theorist Michael Roemer claims,
WE NO LONGER BELIEVE IN CHARACTER.10 Put another way, our characters no longer
control their own fate or destiny. Here is how Jerome Bruner states the proposition in
expository form:
I want to begin by proposing boldly that there is no such thing as an intuitively obvious and essential self
to know, one that just sits there ready to be portrayed in words. Rather, we constantly construct and
reconstruct our selves to meet the needs of the situations we encounter, and we do so with the guidance of
our memories of the past and our hopes and fears for the future. Telling oneself about oneself is like making
up a story about who and what we are, whats happened, and why were doing what were doing.11

For many recent storytellers, character is constantly in flux and seldom static or fixed. But
others have gone even further, in their belief that fate is shaped by forces far beyond our
comprehension or control, that our character has little to do in determining the outcome of our
stories. As the novelist Irwin Shaw observed:

Its no accident that Kafka has become so popular. Hes enjoying the popularity of a prophet whose
prophecies have come true. He prophesied the emergence of the Victim as the archetype of modern man
the Victim who is slowly teased and tortured and destroyed by forces that are implacable and pitiless and that
cannot be understood.12

However, in our legal storytelling practices, character still matters; it matters profoundly. In
legal storytelling WE STILL BELIEVE IN CHARACTER, especially in the economical and
persuasive depiction of sympathetic and compelling characters, clearly defined and
recognizable, with coherent psychological motivation, fulfilling their purposes within a highly
structured and composed plot. In this sense, creation and effective depiction of characters
(characterization) is a vital tool of narrative persuasion, especially in legal storytelling. In
legal storytelling practice, plots do not open outward on a postmodern confusion, nor do
environments outside the intentionality of the various players in the story typically dictate the
unfolding of events. We emphasize free will in legal stories; causation results from the
deliberate and purposeful choices and actions of the various players in the story. Legal stories
are tightly wound, compressed, and plot-based realist narratives; we invite our readers and
listeners to judge actions, make inferences about causation, and assign legal responsibility all
based on their understandings of a characters character.
Here is a brief sampling from an inventory of reasons why a characters character is
especially important in most legal storytelling practice:
1. It is a pervasive habit of thought in society to regard peoples behavior as determined by
their innate character traits and propensities rather than by their situations or circumstances.
When trying to understand eventswho took what actions and whywe look for
explanations in the character of the actor, that is, in the actors personal disposition.13
Social psychologists call this tendency fundamental attribution error14 or
correspondence bias.15 A story may depict the character of its central player or players in
a subtly nuanced way, as we will see in Jeremiah Donovans depiction of defendant Louie
Failla, or in a gross, stereotypical way. Regardless, what human being X will do is seen as a
product of what human being X is like. Therefore, to make the plot action of stories
persuasive, it is crucial to create characters whom the audience will expect to act in
particular ways.
2. Judges and juries in criminal cases are particularly given to seeking explanations for
behavior in character. For example, judges who impose severe criminal sentences take
comfort in the belief that convicted defendants are the type of people who deserve these
sentences. Some judges, perhaps, become jaded and lose interest in the many-faceted,
complex circumstances of individual cases and find it easier to think about individual
defendants as repeat performances of stereotypical perpetrators. Judges are accustomed to
administering legal rules that assign great importance to mental states in the grading and
punishment of crimesparticularly serious crimesand it is easy for them to think about
particular mental states as attributes of particular types of minds.
3. In criminal trials, just as in popular stories, motivation is simultaneously a mainspring of
action and a reflection of character. David Lodge puts it this way in discussing motivation

and character in the novel:

Motivation in a [classic realist] novel is a code of causality. It aims to convince us that the characters act as
they do not simply because it suits the interests of the plot but because a combination of factors, some
internal, some external, plausibly cause them to do so. Motivation in the realist novel tends to be, in Freudian
language, overdetermined, that is to say, any given action is the product of several different drives or
conflicts derived from more than one level of the personality.16

In this regard, literary and popular storytelling conventions are based on the same premise as
legal theorythe model of the unique, autonomous individual responsible for his or her own
acts.17 According to this model, motivation serves as a two-way bridge between character
and action: it enables the reader-viewer-fact finder to infer what a character will do from what
kind of person the character is and vice versa. Consequently, it is typically necessary to create
coherent, intelligible characters to persuade our judges and juries that our plot makes sense
and produces a satisfactory ending to the story of the case.
4. Finally, judges and juries, akin to movie audiences, will root for the characters in a story
whom they come to like. Therefore, it often behooves legal storytellers to create
sympathetic protagonists with whom the audience can at least identify. On the other hand,
the audience will typically long to witness the downfall of characters whom they come to
dislike, whether or not these characters are clearly identified antagonists and often
regardless of whether the legal rules governing the legal issues make the personalities or
mental states of these characters relevant.

III. Flat and Round Characters and Static and Changing CharactersHigh
Noon Revisited
A. Flat and Round Characters, Static and Changing Characters
E. M. Forster famously postulated in his classic dictum in Aspects of the Novel that there are
both flat and round characters.18 A dictionary of narratology defines a flat character as [a]
character endowed with one or very few traits and highly predictable in behavior.19 As
Forster puts it, a flat character is constructed [a]round a single idea or quality.20 He or she
can be expressed in one sentence and has no existence outside it, none of the private
lusts and aches that must complicate [even] the most consistent human lives.21 Simply put,
flat characters are monochromatic or one-dimensional, often cast onstage to express a single
idea or to serve a specific plot functionkeeping the plot on track or causing an important
twist or turn in the plot. Alternatively, this character may keep alignment within the story
structure, cast onstage to push the narrative inexorably forward.
The townspeople in High Noon are all clearly flat characters, each expressing one idea
reducible to a single sentence. They push the protagonist Will Kane ever forward in his failed
quest for allies so that he must, ultimately, face the villain Frank Miller and the Miller gang
alone. Take, for example, the hotel clerk; his single line might be: The town was better off

when Frank Miller was in charge, before Will Kane sent him to prison; I cant wait until he
returns and finishes off Kane, and we get back to business once again. Another flat character
is Kanes young former deputy sheriff, Harvey. Harvey is cast onstage repeatedly to serve plot
functions, reveal crucial backstory, and keep the plot moving forward. His more complex
sentence, depicting the source of all his motivations and actions, might read: Im as good a
man as Kane; either Im given or I take what was his (and what is now rightfully mine)both
his mistress and his jobor I am out of here.
Flat characters may have some aspect or trait that makes (and keeps) them interesting or
compelling, but what they lack, typically, is psychological complexity or the ability to change;
they are fixed entities and typically do not develop or change in the course of the plot. Flat
characters display no distracting internal conflicts; their actions embody and manifest the
single-sentence idea that makes them come alive and gives them purpose. Often, the character
is brought onstage, especially in film, to advance a crucial sequence of the narrative design.
Afterward, this flat character may simply disappear. This does not mean that flat characters
are intrinsically uninteresting as characters. Indeed, just the opposite may be the case; there
may be some compelling aspect to a flat character that makes him come alive momentarily, or
allows the image and identity of the character to linger in the mind of the audience long after
the character fulfills her purpose and departs from the story. Further, flat characters often have
great utility within the story; the books of some classical novelists (e.g., Charles Dickens) and
that of many effective legal storytellers are populated with vivid flat characters cast into
crucial secondary roles within the story.
Forster observed subtly about flat characters in the novel:
One great advantage of flat characters is that they are easily recognized whenever they come inrecognized
by the readers emotional eye, not by the visual eye, which merely notes the recurrence of a proper name.
It is a convenience for an author when he can strike with his full force at once, and flat characters are very
useful to him [in doing this], since they never need reintroducing and provide their own atmosphere.
A second advantage is that they are easily remembered by the reader afterwards. They remain in his mind
as unalterable. We all want books to endure, to be refuges, and their inhabitants to be always the same,
and flat characters tend to justify themselves on this account.22

These observations are, in large measure, also applicable to flat characters in legal storytelling
practices, making the use of well-formed flat characters invaluable.
Forster also speaks of round characters.23 Typically, round characters are located at the
core of the story; they are more fully developed than flat characters and reveal different
aspects or facets as the story develops. The narrative logic and the constellation of secondary
flat characters circulate around these core round or complex characters. The story is, in large
measure, oftenbut not necessarilytheir story. A round character is [a] complex,
multidimensional, unpredictable character.24 Forster observes that [t]he test of a round
character is whether it is capable of surprising in a convincing way.25 To create convincing
round characters and to make them come alive, it is necessary to provide sufficient
information about the characters internal tensions, contradictions, and complications so that
the audience will understand the characters actions as the product of several different drives
or conflicts derived from more than one level of the personality.26

There is a second important aspect about understanding and depicting round characters. In
addition to their psychological complexity, these characters are typically not static within the
structure of the plot; they tend to move or evolve or change internally just as the plot
develops. As Hemingway observed, when asked about characters and characterization in his
novels, Everything changes as it moves. Sometimes the movement is so slow it does not
seem to be moving. But there is always change and always movement.27 The change in
characters in most legal storytelling, akin to the trajectory of character arcs of many round
characters in films, is more scripted and predictable than in the classic novels that are more
about character development than plot.
Nevertheless, complex characters may change during the course of a legal story or even the
typical commercial popular entertainment film. They mature or degenerate, they have an
epiphany or at least an attitudinal shift, or they gain control or lose control of their actions.
Regardless, their actions and choices affect their worlds causally and, more important,
determine the movement of the plot and the outcome of the story. This is especially so in law
stories that, like the popular entertainment film, employ the model of the unique,
autonomous individual responsible for his or her own acts.28
The transformation or character shift in law stories typically occurs on a clearly identified
and circumscribed trajectory, in Hollywood screenwriting terminology a character arc.29
This shift or clear and apparent movement signifies more than the fact that the audience
simply knows more about who the character is at the end of the story than at the beginning.
Rather, the plot works internally on the character, compelling the character to make crucial
choices or take actions that, in turn, shape the plot and the outcome of the story. In doing so,
the story compels important internal changes or personal transformation within the characters
psychology so that the character is not the same person at the end of the story as at the
beginning, as is apparent, for example, in the transformation of the complex characters of
Helen Ramirez and Amy Kane in High Noon. The story inevitably works upon the characters
character, and the audience observes and perceives the reverberations30 of the plot within
the story.
Other characters are static. They remain frozen in the same mold from start to finish. There
is some apparent relationship between the flat-characterround-character taxonomy and the
static-characterevolving-character taxonomy. Flat characters must also be static. Round
characters can be either static or evolving. And especially in legal stories, the character arc of
a round character, especially the protagonist, is often left intentionally incomplete.
The next section, as an illustration of this terminology, offers one suggested analysis of
how some of the important characters from High Noon fit into this typology.

B. The Heroic ProtagonistWill Kane

The protagonist is typically at the center of a Hollywood movie (akin to a law story told about
a plaintiff in a tort case or a criminal defendant). The story is typically his or her story; the
plot is protagonist driven, and the movie is primarily about the protagonist. The film is
usually shot (told) from the point of view (perspective) of the protagonist, and, although

there may be some scenes or sequences of scenes without the protagonist in them (e.g., the
perspective may temporarily shift away from the protagonist), the protagonists experiences
are usually at the center of the film. Even when there are scenes, or sequences of scenes, where
the protagonist is not present, these are typically about the protagonist and fill in important
pieces of the protagonists story (or backstory). The protagonist is, invariably, the subject of
these scenes. Other characters develop through their relationships with the protagonist;
characters diminish in significance in the plot as they orbit farther away from their
interactions with the protagonist, who remains at the center of the constellation of characters.
Will Kane is the protagonist in High Noon; the story is his story. He is a somewhat
complex character. The plot is about his internal development (his character arc) as he moves
from honoring his pledge to Amy and leaving town to desperately attempting to enlist the
assistance of the townspeople, to finally doing what the hero must dostanding up alone
against the evil Frank Miller and the villainous Miller gang. Most of the film is not about the
final confrontation and showdown; it is about what happens (or fails to happen) as Kane awaits
the arrival of Frank Miller and the Miller gang.
Will Kane, and Gary Coopers portrayal of Kane, is clearly not a flat or static
character. He has some depth and complexity; it is apparent that he is not a two-dimensional
or stereotypical Western melodrama hero. But is he a fully realized, complex characterin
Forsters literary sense in that his actions in response to the progressive complications of the
plot are unpredictable in a way that is both convincing and sometimes surprising? In the end,
Kane must respond to his plight and fulfill his heroic narrative destiny; Kane must resolve his
internal conflicts and rise to meet the challenges of the melodramatic plot and the
expectations of the audience. Kane is an archetypal hero and must do what heroes always do;
he is not free to choose to do otherwise. Here, the novelist Edith Whartons observations about
heroes are relevant: the protagonist-hero tend[s] to be the least real of characters because
the protagonist is a survivor of the old hero and heroine whose business it was not to
be real but to be sublime and also because the story being about them, forces them into
the shape which its events impose.31
Kanes actions are constrained by his role in the story; Kane must fulfill his narrative
destiny and the logic of the plot. As a Western melodramatic hero, he must act to save the
community, and he must do what a hero must do. Likewise, his internal life and his
psychological characteristicsthat is, his character arcare ultimately shaped by his role and
by the expectations of the audience. Michael Roemer reflects thoughtfully on how actions
inform the character of the Western hero:
The Western hero often saves an entire community. He guides wagon trains through Indian territory, knows
how to ford raging rivers, and protects women, children, and the infirm. But while he is the leader, he
remains a common, democratic man, and his actions, unlike those of King Lear or Julien Sorel, meet with
the approval of the audience. If he opposes his fellow townsmen to prevent the lynching of an innocent
prisoner, the community will eventually see the light. Conflicts and problems are invariably solved by
courage and reason, and there is no need for suffering or self-division.32

Superficially, Kane presents the psychological and physical characteristics of the stereotypical
Western hero; he is handsome, strong-willed, fair-minded, and willing to sacrifice himself in

service of the community. But Will Kane also possesses certain psychological and physical
characteristics atypical for the traditional Hollywood Western hero; Gary Cooper plays Kane
against type. Will Kane is a much older man than the audience is used to seeing Cooper
portray. He is also a more complex character, capable of betraying the women he loves, Helen
and Amy, and capable of contemplating self-betrayal as well. Kane is initially fearfulhe
races out of town upon hearing of Frank Millers anticipated arrivaland then must overcome
his fear to act heroically at the end of the movie, regardless of the consequences. He is
certainly a much less commanding figure, and not a pure heroic archetype, as the more
comfortable and predictable heroes Cooper frequently portrayed in earlier films.33

C. Amy Kane and Helen Ramirez: Complex Round Characters

There are other vivid, fluid, and complex characters in High Noon. As Edith Wharton
observes, these subordinate characters are often freer than the protagonist to mov[e] at ease,
changing and developing within the interstices of the tale, and free to go about their business
in the illogical human fashion.34 Amy Kane and Helen Ramirez are such complex characters,
although their movements are not so free and never so illogical as in Whartons
estimate of the movements of complex characters in the novels of an earlier time. In popular
movies, akin to legal storytelling practices, all characters, including complex characters like
Amy and Helen, exist on much tighter narrative tethers, constrained in their movements by
character arcs established in service of, and subservient to, the plot. Like Kane, Amy and
Helen are both compelling characters. They represent oppositional archetypes: the blonde,
patrician, and initially dependent Amy; and the darker, street-smart, mercurial Mexican
businesswoman Ramirez. Both women are betrayed by Kane. These betrayals, and the
womens responses to them, are at the core of their characters character and the form of
their respective developmental arcs.
Both Amy Kane and Helen Ramirez have complex inner psychologies revealed through
their dialogue and, more important in film, through their choices in action. Both are fluid
rather than static characters who develop and change through the course of the movie.
However, this development is shaped in a clear progression of a purposeful and carefully
composed character arc typical of the conventions of cinematicand of legalstorytelling
practices. As Margaret Mehring explains about characterization in the popular movies:
Character traits have to be compressed and condensed. All non-essential character traits must
be eliminated and [the essential ones] then compactedlayeredinto a denser form.35 This
is also typical of legal storytelling practice: the depiction of character is streamlined; there is
simply no narrative time allotted for psychological digression. Character arcs are
economically developed in law stories; character is visible and apparent.
So, for example, Amy begins the film as a Quaker who does not believe in violence. She
has her good reasons for her deeply held pacifist beliefs; her motivations are sketched in
through the backstory provided in dialogue in just a few simple lines: both her father and her
brother were killed in gunfights. She has married Kane, the marshal, but her marriage vow is
conditioned on Kanes promise to hang up his guns after the ceremony, give up violence, and

leave Hadleyville to become a shopkeeper in another town. Initially, Will Kane honors his
promise, and literally hangs up his guns; the two newlyweds leave town in their buckboard
before Frank Millers arrival. But they dont get far before Kane turns his rig around and
heads back to Hadleyville ready to resume his job as marshal. He declares to Amy: Ive got
to go back. Theyre making me run. Ive never run from anything before.36 Amy is thus
betrayed. Amy leaves Kane, and plans to leave Hadleyville. But when she is already on the
train and preparing to depart (it is the same train that brings Frank Miller to town), she
undergoes an apparent character reversal: at the sound of the gunfire she rushes off the train to
assist her man. Although Amy is a pacifist, she picks up a gun and shoots the outlaw Corey in
the back to protect Kane. And when Frank Miller takes her hostage, Amy defends herself. She
claws at Millers facefreeing herself physically and perhaps also liberating herself from the
constraints of her pacifist beliefsso that Kane has a clear shot at Miller and can kill him in
the final shoot-out. She makes a choice that redefines her character. At the end of the movie,
Amy leaves town with Kane, completing her character arc. She has moved from dependency
and passivity to strength and action, her internal beliefs and convictions modified and
tempered by the knowledge that she has gained from experience. This enables her to overcome
her past, change her beliefs, and reconcile with her beloved.

D. Frank Miller (Antagonist/Villain): A Flat and Static Character

The villain in High Noon is Frank Miller, the leader of the Miller gang. He is the primary
oppositional force, the force of antagonism, that creates the conflict and compels the other
round characters to act and to change. He is the crucial character; the plot of the film could not
develop without him. Yet as is typical of villains, Frank Miller is a flat and static character.
Millers obsessive single sentence, his uniform motivational mantra throughout this movie,
might be stated: Im gonna get Will Kane for sending me to prison and take back the town,
my mistress, and all that was once mine. His strength, like the sharks obsession for human
flesh in Jaws, is in his evil nature and in his ability to impose his will upon the story: his
single-mindedness of purpose. Peter Brooks puts it nicely: Melodramatic good and evil are
highly personalized: they are assigned to, they inhabit persons who indeed have no
psychological complexity but who are strongly characterized. Most notably, evil is villainy; it
is a swarthy, cape-enveloped man with a deep voice.37 The aesthetic question is how to keep
the audience interested in a true villain for the course of the entire plot. In Jaws the answer is
to have the shark become ever more evil and brazen in its rapacious attacks on vulnerable
townspeople, and even to focus meticulously on the details of these attacks, allowing the
audience to become voyeuristically engrossed, participating in the attacks often viewed from
the underwater perspective of the shark. In the Silkwood closing argument the structure builds,
shifting the identity of various underlings until the identity of the true culprit is revealed; the
devouring corporation rises up from beneath the mud springs.
In High Noon the aesthetic solution sustaining the compelling power of the villain is just
the opposite: the villain is kept offstage until just before the ending, building the villains
power and strength by employing the reactions of the community to his memory and to the
prospect of his return. His identity and character are established consistently by what others

say about him, by his reputation, and by the townspeoples (and Kanes) fear of him. Visual
imagery (ticking clocks, railroad tracks pointed toward town, black smoke, and meetings of
the outlaw gang) foreshadow and set the stage for Millers arrival, and the ultimate showdown
and final confrontation between good and evil that is at the core of melodrama.
The final movement of the plot (the third act or the climax and resolution) takes place
when Miller steps down from the train and moves out of the shadows and into the sunlight. His
power and villainy is anticipated by the audience; we are confident that Miller will prove a
worthy adversary for Will Kane. Although Frank Miller is a flat and static character, he
maintains a compelling interest for the length of the movie; he serves his purpose in wrapping
up the plot of a Hollywood Western melodrama. In legal storytelling the effective use of
compelling flat and round characters is equally important to moving the audience forward in
resolving the storys plot.

IV. Techniques of Character Development and Characterization: Excerpts from

Tobias Wolffs This Boys Life
Closely related to the subject of types of characters is the subject of how to develop vivid and
compelling characters, that is, the use of techniques for effective characterization. We can
identify three primary techniques for character development. These techniques are common to
all forms of popular storytelling, regardless of whether the storyteller is writing a brief, short
story, or novel, employing an oral storytelling form as in the depiction of character to a judge
or jury at trial, engaging in visual storytelling as in a movie, or, ever more often these days, a
mixture or blend of various forms. These three basic storytelling techniques for creating and
developing effective and compelling characters are: (1) selective use of physical detail and
physical description, (2) employing dialogue to reveal character, and, most especially, (3) use
of action to reveal character.
1. Description. Vivid characters are often initially presented through economical use of
selected details. Depiction of character through description need not be comprehensive in
design. Indeed, just the oppositean overload of psychological or physical description,
employing the baggage of too many descriptive details, too many adjectives, and too much
motivational backstory detracts from effective characterization, especially in plot-driven legal
and popular stories. That is, the explanation of a characters character is usually ineffective
because this strategy slows the propulsion of the plot; and because it slows the plot, the story
is made suspect and distrusted by the audience.
Nevertheless, effective characterization captures appropriate traits, often in arresting
imagery or in vivid detail that calls forth character. Carefully selected details can imply, or
even reveal, the character whole cloth. Often, the audience assembles for itself the accretion of
pieces into the composition of the characters character. What is left out of the composition is
often as important as what is included. Characterization flows from the story itself, as if the
narrative or argument compels the relevant details. Effective depiction of character through
description is a composition of meticulous and intentional choices that compel the attention

and interest of the audience and simultaneously, allow the audience to complete the
composition.
2. Dialogue. The critic and essayist James Wood comments that [w]e can tell a great deal
from a character by how he talks and whom he talks tohow he bumps up against the
world.38 That is, we bump up against the world through our verbal communications and
interactions with others, in dialogue. Likewise, we read an individuals character into what
that individual says and how he or she says it. As Anthony Amsterdam tells his students,
especially when the students are young legal practitioners preparing appellate and
postconviction briefs, dialogue is frequently the legal storytellers single most effective
instrument for creating believable characters. Some students, especially in attempting to
understand the art of brief writing and creative advocacy, respond that you cant submit a
brief in written dialogue, to which Amsterdam, in turn, replies, Sure you can.39 He follows
up: That is what quotation and paraphrase [which narratologists call indirect discourse40]
are all about.41 Further, records and transcripts are always chock full of quotable testimony,
colloquies, motions, and rulings that, in Amsterdams words, can be used to create a rogues
gallery of characters damned near equal to Shakespeares.42 I dont know whether Id go
quite this far. Nevertheless, as we will see in Donovans closing argument on behalf of Louis
Failla, dialogue is a powerful tool to convey character economically and compellingly, and
there is often plenty of material available in virtually all forms of legal storytelling (from trial
arguments to appellate briefs) to employ dialogue creatively and imaginatively in service of
character.
3. Action. As previously observed, character is not fixed or static; characters change.
Complex characters develop as a story progresses, with the characters motivations and
actions driving the plot forward. Thus there is an interplay between character development and
plot. The characters and the conflicts between various characters compel events, and the
actions in the plot are, in turn, affected by the plot. Likewise, the fuller dimensions of
character are revealed in response to, or in the aftermath of, the events of the story; these are
what the novelist and short-story writer Katherine Anne Porter called the reverberations of
the story,43 on both the audience and the various characters within it.
Character can and does imply conduct, such conduct not only attributing motivation and
explanation for what has already happened in the story, but foreshadowing what will happen
next. That is, the audience intuitively draws on notions of character and the characters role
within the story to look forward in anticipation of what will happen next, in addition to
looking back into the past to fully understand what has happened so far. As Porter watches her
characters heading toward their fates, she observes:
Every once in a while when I see a character of mine just going towards perdition, I think, Stop, stop, you
can always stop and choose, you know. But no, being what he was, he already has chosen, and he cant go
back on it now. I suppose the first idea that man had was the idea of fate, of the servile will, of a deity who
destroyed as he would, without regard for the creature. But I think the idea of free will was the second
idea.44

It is only through the way a character acts that the audience can come to understand the
underlying character traits that brought about those particular actions. This greater
understanding of his character then informs how the audience expects him to act in the future.

A. Excerpts from This Boys Life

The use of the techniques of description, dialogue, and action to create, sustain, and develop
vivid and compelling stories is apparent in literature, popular storytelling, and legal
storytelling practice (including briefs, arguments, and, indeed, even judicial opinions). Several
excerpts from Tobias Wolffs masterful memoir This Boys Life illustrate this pattern. There
are two characters in the following illustrative sequence of scenes. There is the complex
protagonist-hero and narrator, Toby. And then there is the character of the vivid antagonist,
Tobys soon-to-be stepfather, Dwight. Unlike the villains in High Noon and Jaws, Dwight is
not a flat or static character; he is a more complex literary character caught in an everdeepening tangle of darkening motives, resentment, and rage. Likewise, Toby has an equally
complex and changing character.
The sequence of scenes excerpted illustrate the use of: (1) description, (2) dialogue, and (3)
action as tools or techniques of characterization, character development, and character change
driving this well-paced and highly charged plot forward.
In the first sequence of scenes, the reader is introduced to the character Dwight as a
minor and flat character. Dwight is vividly described; he is one of the many suitors of Tobys
beloved and vivacious mother, Marian. In the next sequences Dwight is further developed.
Dwight evolves from a flat and minor character into a central figure in the storyDwight, the
distant suitor, will soon become Tobys stepfather. Toby is being driven from his mothers
home in Seattle to his new home with Dwight and Marian in rural Washington. On the way,
the dialogue reveals darker aspects of Dwights character: the physical details of the
humorous, offhanded earlier depiction of Dwight open, like cracks or fissures, upon the
darkness of his character. Finally, his antagonism to Toby translates into action and the
confrontation between Dwight and Toby intensifies. This confrontation escalates through the
remainder of the book as Toby attempts to escape the fate that awaits him with Dwight and to
rescue Marian from her fate as well.
From an initial depiction (a physical description) of Dwight
Dwight was a short man with curly brown hair and sad, restless brown eyes. He smelled of
gasoline. His legs were small for his thick-chested body, but what they lacked in length they
made up for in spring; he had an abrupt, surprising way of springing to his feet. He dressed
like no one Id ever met beforetwo-tone shoes, hand-painted tie, monogrammed blazer with
a monogrammed handkerchief in the breast pocket. Dwight kept coming back, which made
him chief among the suitors. My mother said he was a good dancerhe could really make
those shoes of his get up and go. Also, he was very nice, very considerate.
I didnt worry about him. He was too short. He was a mechanic. His clothes were wrong. I
didnt know why they were wrong, but they were. We hadnt come all the way out here to end

up with him. He didnt even live in Seattle; he lived in a place called Chinook, a tiny village
three hours north of Seattle, up in the Cascade Mountains. Besides, hed already been married.
He had three kids of his own living with him, all teenagers. I knew my mother would never let
herself get tangled up in a mess like that.45
Dwight drives Toby to his new home (action and some dialogue)
Dwight drove in a sullen reverie. When I spoke he answered curtly or not at all. Now and
then his expression changed, and he grunted as if to claim some point of argument. He kept a
Camel burning on his lower lip. Just the other side of Concrete he pulled the car hard to the
left and hit a beaver that was crossing the road. Dwight said he had swerved to miss the
beaver, but that wasnt true. He had gone out of his way to run over it. He stopped the car on
the shoulder of the road and backed up to where the beaver lay.
We got out and looked at it. I saw no blood. The beaver was on its back with its eyes open
and its curved yellow teeth bared. Dwight prodded it with his foot. Dead, he said.
It was dead all right.
Pick it up, Dwight told me. He opened the trunk of the car and said, Pick it up. Well
skin the sucker out when we get home.
I wanted to do what Dwight expected me to do, but I couldnt. I stood where I was and
stared at the beaver.
Dwight came up beside me. That pelts worth fifty dollars, bare minimum. He added,
Dont tell me youre afraid of the damned thing.
No sir.
Then pick it up. He watched me. Its dead, for Christs sake. Its just meat. Are you
afraid of hamburger? Look. He bent down and gripped the tail in one hand and lifted the
beaver off the ground. He tried to make this appear effortless but I could see he was surprised
and strained by the beavers weight. A stream of blood ran out of its nose, then stopped. A few
drops fell on Dwights shoes before he jerked the body away. Holding the beaver in front of
him with both hands, Dwight carried it to the open trunk and let go. It landed hard. There, he
said, and wiped his hands on his pant leg.
We drove farther into the mountains. It was late afternoon. Pale cold light. The river
flashed green through the trees beside the road, then turned gray as pewter when the sun
dropped. The mountains darkened. Night came on.46
Later in the journey (dialogue and some action)
I played the radio softly, thinking Id use less power that way. Dwight came out of the
tavern a long time after he went in, at least as long a time as wed spent getting there from
Seattle, and gunned the car out of the lot. He drove fast, but I didnt worry until we hit a long
series of curves and the car began to fishtail. This stretch of the road ran alongside a steep
gorge; to our right the slope fell almost sheer to the river. Dwight sawed the wheel back and
forth, seeming not to hear the scream of the tires. When I reached out for the dashboard he
glanced at me and asked what I was afraid of now.

I said I was a little sick to my stomach.

Sick to your stomach? A hotshot like you?
The headlights slid off the road into the darkness, then back again. Im not a hotshot, I
said.
Thats what I hear. I hear youre a real hotshot. Come and go where you please, when you
please. Isnt that right?
I shook my head.
Thats what I hear, he said, Regular man about town. Performer, too. That right? You a
performer?
No sir.
Thats a goddamned lie. Dwight kept looking back and forth between me and the road.
Dwight, please slow down, I said.
If theres one thing I cant stomach, Dwight said, its a liar.
I pushed myself against the seat. Im not a liar.
Sure you are. You or Marian. Is Marian a liar?
I didnt answer.
She says youre quite the little performer. Is that a lie? You tell me thats a lie and well
drive back to Seattle so you can call her a liar to her face. You want me to do that?
I said no, I didnt.
Then you must be the one thats the liar. Right?
I nodded.
Marian says youre quite the little performer. Is that true?
I guess, I said.
You guess. You guess. Well, lets see your act. Go on. Lets see your act. When I didnt
do anything, he said, Im waiting.
I cant.
Sure you can.
No sir.
Sure you can. Do me. I hear you do me.
I shook my head.
Do me, I hear youre good at doing me. Do me with the lighter. Here. Do me with the
lighter. He held out the Zippo in its velvet case. Go on.
I sat where I was, both hands on the dashboard. We were all over the road.
Take it!
I didnt move.
He put the lighter back into his pocket. Hotshot, he said. You pull that hotshot stuff
around me and Ill snatch you baldheaded, you understand?
Yes sir.
Youre in for a change, mister. You got that? Youre in for a whole nother ball game.

I braced myself for the next curve.47

The three techniques of character construction and development are illustrated nicely in this
sequence. Initially, there is a depiction based on the physical description of a flat yet vivid
secondary character, Dwight, who is cast onto the stage briefly. Wolff observes Dwights
physical traits: A short man with curly brown hair and sad, restless brown eyes[,] placed
next to the short and seemingly incongruous sentence He smelled of gasoline. Dwight is a
character captured in fragments and disjunctions, and the pieces of him dont fit together: His
legs were small for his thick-chested body[.] But what they lacked in length they made up
for in spring; he had an abrupt, surprising way of springing to his feet. Toby then describes
Dwights dress: He dressed like no one Id ever met beforetwo-tone shoes, hand-painted
tie, monogrammed blazer with a monogrammed handkerchief in the breast pocket.
At the end of this description is the brief intimation of why Toby initially discounts
Dwights importance in the story and explains why he will never be a successful suitor for his
mother: I didnt worry about him. He was too short. He was a mechanic. His clothes were
wrong. I didnt know why they were wrong, but they were. We hadnt come all the way out
here to end up with him. And then there is the wonderful line, and Tobys misguided
observation: I knew my mother would never let herself get tangled up in a mess like that.
The reader is left with a flat but vivid image of Dwights character based on Tobys
description of him.
Subsequently, this secondary and flat character assumes a more important role in the story.
Dwight bumps up against the protagonist Toby; incident and action explore the increasing
conflict that develops between the two competing characters. There are the actions that occur
on the trip to Tobys new home; Dwight intentionally runs over the beaver (a vivid secondary
flat character in its own right), and then Dwight attempts to compel young Toby into helping
out with the roadkill. Pick it up. Well skin this sucker out when we get home. This incident,
and the subsequent events, reveal the cruelty in Dwights character as the conflict deepens
between Toby and Dwight, captured in dialogue: Dont tell me youre afraid of the damned
thing. No sir. Then pick it up. He watched me. Its dead, for Christs sake. Its just meat.
Are you afraid of hamburger? It doesnt take us long to understand that Toby is, in the terms
borrowed from the Amsterdam-Bruner definition of the progressions of a plot, deep in the
trouble.48 Action and dialogue are used to add depth to Dwights character and the reader
begins to question the assumptions made about Dwight based on Tobys initial description.
In the final excerpt from this sequence of scenes, Dwight makes a pit stop at a tavern at the
last settlement,49 and the conflict progresses in the reverberations to the action, again
captured primarily in dialogue. Dwight, in an action that complements and reemphasizes the
dialogue, swerves side to side on a stretch of the road [that] ran alongside a steep gorge; to
our right the slope fell almost sheer to the river. This is a description of physical setting that
provides a literal edge to the dialogue. The dialogue here foreshadows Tobys future under
Dwights authority and the conflict unfolding between them. Youre in for a change, mister.
You got that? Youre in for a whole nother ball game[,] Dwight says. To which Toby
responds presciently (and metaphorically): I braced myself for the next curve. Dwights true
character is revealed through further action and dialogue, and he has completed the shift from

a flat secondary character to the storys main antagonist.

5
Characters, Character Development, and Characterization in a
Closing Argument to a Jury in a Complex Criminal Case
I. The Backstory
In 1991, Louis Louie Failla, a reputed Mafia soldier in the Connecticut faction of a New
England crime family, was one of eight defendants charged with racketeering.1 The thirteencount indictment included charges that Failla supervised and operated illegal gaming
businesses and engaged in wire fraud in connection with schemes to defraud the customers of
these gaming operations. The most serious alleged racketeering act, however, was that Failla
conspired with two mob informers to murder Tito Morales, his grandsons father. The
prosecutors case was strong; in fact, the evidence seemed insurmountable. The two
informants who testified against Failla had been granted immunity and had reasons for lying
to avoid prosecution for other charges and to receive lenient sentences. Faillas words,
however, had been captured on tape. Faillas Cadillac had been bugged and his selfincriminating conversations recorded. These tapes and the transcriptions of what one reporter
called Faillas greatest hits2 formed the centerpiece of the governments case against Failla
and his codefendants. In these tapes, Failla implicated himself in the conspiracy to murder
Morales and bragged about his multiple roles in the illegal business enterprises that were at
the heart of other charges in the indictment against him.
The evidence was stacked against Failla, and he had not testified. While Jeremiah Donovan,
Faillas gifted defense attorney, had successfully impeached the credibility of the two mob
informants on cross-examination, Failla had not produced evidence to rebut the incriminating
testimony on the tapes. The prosecutor, in a five-hour closing argument, a serious deadpan
harangue, had meticulously used these tapes to historically reconstruct Faillas criminality and
the criminal activities of the seven other codefendants. In contrast, Donovans closing
argument deemphasized the specifics of the historically reconstructed plot created by the
testimony and tapes that had been central to the governments case and closing argument.
Donovans story attempted to humanize Failla and to depict him as a sympathetic character.
The material for Donovans closing argument was provided, primarily, by using the same
incriminating tapes that had been played at trial and served as the centerpiece of the
governments case against Failla and the other codefendants. But Donovans approach to this
material was different. He imaginatively respliced these tapes and retrofitted the pieces into a
newly redefined version of the story.
Donovan depicted Failla as a comic character. The concept of Donovans Failla character
could have been pitched in Hollywood. Failla the Fool, the bumbling mobster wannabe, is a
character who could have stepped from the pages of Damon Runyon.3 Louie Failla, clown
and exaggerator, engaged in minor criminal activity. Although he was a made Mafia soldier,
he was an outsider, not really a part of the mob, operating beyond the control and authority of

the evil capo of the Connecticut branch of the Patriarca crime family, Billy The Wild Guy
Grasso. Failla was shunned by the Patriarca crime family, and he struggled to make a living.
His activities, although illegal under state law, were technically not violations of the federal
conspiracy statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), because
they were not Patriarca family mob activities.
The most serious charge against Failla alleged that he conspired and plotted the murder of
Tito Morales, his daughters ex-boyfriend and the father of his grandson. The prosecutor
meticulously detailed Faillas involvement in this murder conspiracy. Failla was, the
prosecutor asserted, exactly what he appeared to be in the tapes. His words unequivocally
revealed his intent to murder Morales and manifested his thought processes. The government
portrayed Failla as a flat character: a sinister, two-dimensional villain who plotted with
other members of the Patriarca crime family to execute Morales. The prosecutions bottom
line was equally clear: Failla clearly intended and conspired to murder Morales; but for
Faillas ineptitude, the murder of the capo Billy Grasso, and the timely intervention of the
police arresting Morales, Morales would certainly be dead.
Donovans version of the story provided a far more nuanced and complex depiction of
Failla. Although Donovan could not completely reverse the polarity of the story and transform
Failla into a true protagonist-hero, Failla became the protagonist of a different story, a story
about a character trapped between two families, his real biological family on one side and
his adopted mob family on the other. Rather than being merely a member of a gang of bad
guys plotting the death of Morales, Donovans Failla is an outsider, a complex character of
shifting emotions and loyalties who develops and changes during the course of the argument.
He is seemingly transformed at the end of Donovans argument, although his character arc,
like the story itself, is left incompleteit remains for the jury (and the judge if Failla is found
guilty and sentenced under RICO) to decipher Faillas motivations, discover the identity of
Louie Failla, and write the ending to the tale.
The villain of Donovans version of the tale is clearly not Failla; it is the murdered mob
capo Billy The Wild Guy Grasso, who orders Failla, the mob underling, to murder his
grandsons father. This also serves the purposes of the other mob defendants accused of
murdering Grasso by depicting him as the true villain who meets an all-but-inevitable fate in
another subplot of the trial.
In Donovans version of Faillas story, the engine of action [is] in the characters rather
than in the plot.4 Donovan redefines Faillas character. Character is not a bundle of
autonomous traits but an organized conception constructed from scraps and clues.5 In the
prosecutions simple linear version of the story, Louie Failla is a flat character, his intentions
clearly captured on the federal surveillance tapes as he plots Moraless murder. But in
Donovans version of the story, there is a deeper subtext beneath the words. It is as if the
action takes place in a Hollywood movie where screenwriters are admonished never to write a
scene on the nose. That is, the dialogue of spoken words must typically cover a deeper and
transformative story: in Donovans version, the dialogue in the respliced tapes contains
scraps and clues through which the jury searches for Faillas true identity. In the final act
of his closing argument, Donovan presents a sequence of primitive hand-drawn cartoons
depicting Failla supplemented with cartoon bubbles that reveal his more complex thought

processes supplementing the text of spoken words. This enables the jury to visualize and
reconceptualize the story,6 to look within Louies mind and into his thought processes, and to
see him not as a flat character condemned by his own words, but rather as a round character
with complex motivations.
In Donovans closing argument, Failla stalls the mob and prevents Billy The Wild Guy
Grasso from taking the murder into his own hands by merely pretending to plot Moraless
murder. In doing so, he places his own life in jeopardy, buys Morales the time he needs to save
himself, and perhaps even makes a crucial choice (takes an action) that implicitly redefines
his character in a far more compelling way than the words he speaks on the surveillance tapes.
In Donovans version of the story, Failla is transformed and implicitly redeemed, discovering
integrity and saving himself as well as Tito Moralesjust as a character in the movies would
do.

II. Annotated Excerpts from Jeremiah Donovans Closing Argument on Behalf

of Louis Failla
A. The Hook: Where the Character Louis Louie Failla Is Cast Onstage
Although Failla has never spoken or testified at trial, the jury has watched and studied him
throughout the thirteen weeks of the trial, especially as the incriminating surveillance tapes
have been played, clearly implicating him in the plot to murder Tito Morales. But now, as if
for the first time, the character of Failla is brought to life and embodied in the theatrical and
dramatic presentation of his seemingly exhausted attorney as he approaches the jury. A
reporter describes the scene:
Louis Failla, a bewildered-looking Mafia soldier from East Hartford, has been at the heart of the federal
racketeering trial of eight reputed members and associates of the Patriarca crime family.
Prosecutors hammered him while presenting their case, playing dozens of secretly made tape recordings
on which Failla, in a voice evocative of Ed Norton on The Honeymooners television series, implicated
nearly all his co-defendants in a variety of offenses.
Tuesday, it was the defenses turn in U.S. District Court in Hartford. They took aim at him during closing
arguments to the jury.
Failla, they said, rambles, is given to flights of fantasy, is prone to hyperbole and is disconnected from
reality. He cannot be believed, they said, particularly while ferrying around in his Cadillac.
Finally, it was time for Jeremiah Donovan, Faillas attorney, to present his summation to the jury.
Donovan wore a look of defeat as he approached the jury box, his head bowed, his voice exhausted. He
allowed that he is not sure who has beaten his client worse, the government or the defense. Then, he began
the most spellbinding harangue delivered since the trial began.7

Donovan does not begin his closing argument with the customary proem or introduction
characteristic of closing arguments. He simply tells a story, beginning with the identification
of his protagonist, the character Louie Failla, the defendant who sits in the courtroom.
Donovan speaks to the jurors, setting the stage for the action that will follow:
I have sat here this morning and listened to Louis Failla accused of being an exaggerator. If you recall,

someone who indulges in wild speculation, in fantasy. I havent said a word yet, but now I want to come
forward and plead guilty to those charges. Louis Failla, with all due respect to you, Louis, is an exaggerator.
You heard it throughout the trial in tape after tape after tape.8

In his opening, Donovan signals to the jury that, although this is a murder trial and Failla is
accused of participating in a murder conspiracy, the jury should be aware that this closing
argument will be surprisingly light-heartedindeed the genre for the telling of this story is
that of a comedy, albeit a tragicomedy:
[T]his is a case that lends itself to superlatives. [T]his is the first case in which an induction ceremony has
been played for a jury. This is a case involving the murder of what may be the nastiest man ever to walk the
shores of Connecticut, and it is a case in which the charge, in which the legal principals, are probably as
complicated as in any case thats ever been brought in America.9

Donovan then refers briefly to the judges charge. Unlike Spences recurring mantra about
strict liability in the Silkwood closing argument, Donovans references to the law are playful
and ironic. It is as if Donovan implies that the jury should set aside the legal particulars and
the law that may stand in the way of enjoying the compelling story; indeed, this story is the
jurys reward for paying close attention to the evidence during the thirteen preceding weeks of
trial. Perhaps Donovan intimates that strict application of the law would be misguided since it
would ignore the subtleties of the motivations and actions of the various characters within the
plot:
The Judges charge will probably last forawhole day, and the Judge will be as hoarse by the time hes
finished than I was when I finished questioning Jack Johns [the mob informant who testified against Failla],
who was happy that my voice had disappeared. But that charge is going to be really crucial, because its in
the charge in the principles of law, its there that lie [sic] Louie Faillas defense.10

Donovan acknowledges that Failla has committed some crimes.11 For example, he ran a
gambling den in New York in violation of [state] law, but these were not crimes committed
in furtherance of a mob conspiracy under RICO.12 Then he repeats, So its in the charge and
the elements of the offense that our defense lies. Ill get to that in a little while.13

B. Who Is Louis Failla? A Story within a Story Depicting Faillas Character

Then Donovan breaks from his story. It is as if he is tired from the beating he and his client
have taken at trial up to now. Like his client, he needs the relief of a joke, for his own sake as
well as the jurors. This storytelling appears spontaneous, as if he is merely stumbling upon
this story within a story as he goes along. But he is methodically articulating and crystallizing
a theme that serves as the spine of the narrative structure; it is embedded in his presentation of
an archetypal comedic character who, the jury will soon see, will be transformed into
Donovans version of the character of defendant Louie Failla. Donovan begins with a welldelivered version of a classic Irish barroom story, apparently borrowed from a repertoire of

such stock stories that can be readily inserted into closing arguments as appropriate: As I
make this defense I feel a little bit like the legendary OToole.14 Donovan now assumes an
Irish brogue and begins as if he is in the pub himself; his voice breaks the tension, and the
juror-audience relaxes:
[Y]ou all know, whowell, in a bar in Dublin in walked a fellow who was about as tall as Ted, the judges
clerk, broad as Jackie Johns [the Mafia informant who testified against Failla]. He had that glimmer in his
eyes of craziness that I think you may have seen in Phil Leonetti. He walked into the bar and said, Alright,
wheres OToole?
All the patrons from the bar kind of looked in their drinks. They didnt want to be mistaken as OToole,
except one little guy, seventy years old, five foot two, in the back, Im OToole. What is it to you?
Well, the big guy picked up OToole, ran him down the length of the bar knocking off the glasses all the
way and threw him through the plate glass window, walked outside, picked him up, threw him through
another plate glass window and left him for dead. All the patrons looked at the poor old boy in the bloody
mess on the floor. Guy looked up and said, I sure pulled a fast one on that big fellow. Im not OToole at
all.
Now I feel like OToole, because in tape after tape after tape Louie Failla says, I am OToole. Im the
guy youre looking for. Im the new capo for Connecticut. And Im getting up and saying hes not
OToole at all. Hes not. Hes not guilty of the RICO offenses with which hes charged.15

Donovans opening hook takes ten transcript pages (approximately ten minutes or one page
per minute). According to a standard Hollywood formula for successful screenwriting:
Youve got to hook your reader immediately. You have approximately ten pages to let the
reader know WHO your MAIN CHARACTER is, WHAT the premise of your story is, and
WHAT the situation is.16 As the audience determines how it reacts to the story within the
first ten pages of a script, a reader likewise knows whether your story is working or not;
whether its been set up or not.17 Donovans opening fulfills the aesthetic commands of the
screenwriting manual. He establishes a sympathetic character and creates the point of view
from which the story unfolds: Faillas perspective. He also foreshadows the dramatic
situation: the bumbling everyman, the low-level Mafioso struggling to make a living, trapped
by the orders and commands coming down from the Connecticut capo above him.

C. Excerpts from the The Setup and The Confrontation: Trouble Breaks
the Steady State and the Villain Is Cast Onstage
In the next stage after this initial set piece, Donovan creates the dramatic situation and
establishes the conflict between Louie Failla (the complex protagonist) and the flat yet
compellingly sinister villain, Billy The Wild Guy Grasso, and the power of the Patriarca
crime family (the forces of antagonism compelling Louie to display his loyalty to the mob by
plotting to murder Tito Morales). Initially, Donovan reintroduces Failla through the technique
of description. Louie Failla, the Mafia outsider and small-time operator, struggles, often
ineptly, to make a living. He is a tenderhearted man, filled with pretense and false bravado,
and his actions always fall short of his words. He is deathly afraid of Billy Grasso, his Mafia
capo. Nevertheless, he engages in unauthorized minor criminal activity, always fearful that his
small scams will be discovered by Grasso and the leadership of the Patriarca crime family

(who are not receiving any tribute or profits from these activities).
Through the conflict between Failla and Grasso, Donovan contextualizes the dramatic
tension as he, simultaneously, establishes his defenses to the various lesser RICO charges that
have been brought against Failla for these activities. Each of these racketeering acts serves as
an inciting incident (building the tension between Failla and Grasso as Failla moves ever
farther outside the mob to conduct his various nefarious crime-related activities), setting up
the ultimate confrontation or showdown between Failla and the mob in the final act. This final
act is akin to Kanes showdown with Frank Miller and the Miller gang in High Noon or the
heroic confrontation with the ravenous man-eating shark in Jaws.
For example, one of the charges in the indictment against Failla is that he ran an illegal
gaming operation in New York for the Patriarca crime family. Donovans defense is simple:
Failla ran the gambling operation in New York; and there is no denying this, as Failla brags
about the scam. Although illegal gambling is a violation of New York State criminal law,
Failla is not charged under state law. Further, this game, like Faillas other criminal activities,
is not a part of the Patriarca family mob-controlled criminal enterprises as alleged in the
indictment. It is unrelated to the crime organizations activities; indeed, Failla would be
severely sanctioned and punished if his various scams were discovered by the Patriarca
family.
After marking the jurys laughter at his opening hook, Donovan tells the next part of his
story, depicting the character of Failla and the villain Billy Grasso through the technique of
description, employing vivid and carefully selected details from the tapes presented at trial:
First of all lets 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, hes living in [a] rented duplex out in
East Hartford. Hasnt been painted for eighteen years. He is living essentially in poverty.
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, and William Grasso has essentially shunned Louie Failla.
They keep him out of all activities. Grasso has done that. [He] wouldnt let Louie be involved in
anything.18

Donovan also speaks anecdotally, describing the antagonist and villain, Billy Grasso, with
vivid details taken from evidentiary surveillance tape transcriptions. Grasso, the nastiest
[man] whos ever walked the shores of Connecticut, tells one of his henchmen that, after
he assassinates a person, he will bury him with his hand up out of the ground, so I can kick it
every day as I walk by.19 Donovan continues, walking through a McDonalds with one of
his men, and enraged, [he] picks up a kids hat and throws it down.20
Louie Failla is petrified by Billy Grasso. To depict Faillas fear, Donovan assumes Faillas
voice and borrows edited sequences of Faillas monologue from the dialogue captured on the
surveillance tapes. The use of dialogue, of course, is the second technique employed in a
planned and carefully constructed sequence of scenes used to establish Louie Faillas
character. Faillas words are made more compelling as Donovan assumes the Italian Mafia
voice of a movie actor in a typical mob picture, to situate the story comfortably with the
audience, just as Gerry Spence employed the deep and resonant voice of a Shakespearean actor
in an effort to elevate and defamiliarize the circumstances of his version of Silkwoods

character. Donovans voice is akin to Faillas voice on the surveillance tapes. And, as
observed by the press covering the case, it is also strongly evocative of Ed Norton on The
Honeymooners television series:21
I didnt have no money. Couldnt do nothing. And I was never called in to defend myself. I used to go home
at nights worried that hed [Grasso] say the next day, I got a fucking hole dug for you already. Go get
my fucking money. I was living in fucking fear. Nobody to turn to. Not a fucking soul except Louie Failla.
If I was going to get banged, I would get banged alone. I was afraid to take my wife in the car, the baby in
the car. Couldnt take my grandson anywhere. I looked in his [Grassos] face and I saw a fucking totally
insane man. I saw a totally insane man.22

The next scenes are based on the characters actions. These are comedic episodes typical of
Hollywood buddy pictures taken, again, from the transcripts of the surveillance tapes and
spliced together into the careful structure of a purposeful plot. Donovan then casts onstage two
flat yet vivid secondary characters, drawn from a vast assortment of potential supporting
characters depicted in the repository of FBI surveillance tapes: Jack Farrell and Patty Auletta,
who are depicted as if they are all outlaws from an updated suburban mob version of Butch
Cassidy and the Sundance Kid.23
And he had his friend Jack Farrell. Jack Farrell is a master mechanic in the sense that this guy had all the
natural moves to be a card shark and a dice shark. Jack Farrell and his pretty girlfriend Patty Auletta, defraud
you just by being so quiet you would never think that he had a shoe there where she could feel the next card
coming up was a high one or a low one.24

Jack Farrell is described with just a few well-chosen phrases as a master mechanic with all
the natural moves. And, likewise, Donovan depicts his pretty girlfriend who could defraud
you just by being so quiet. Neither has testified at trial. Yet it is doubtful a novelist could
have reduced their essentials to a description any better or more concise. The initial function
of these two charactersthe old Irish card shark and his pretty girlfriendspins the plot
forward into action. This enables the audience to better visualize Donovans version of Louis
Failla in action.
Simply put, we derive a deeper understanding of who Louie Failla is from the way he
conducts his business. Here, Donovan not only admits Louies participation in the New York
gambling operation but, since these activities are outside of Patriarca family activities and not
covered under RICO, he lovingly embraces and revisits the details of the scam. These
activities are depicted in a much different way than the prosecutions rendering of criminal
activities. In contrast to the flat tonality of the prosecutors narrative about a monolithic mob,
Donovans description is colloquial and playful, encouraging listeners to establish a
sympathetic relationship with these characters: [I]t was a sting. [T]hey tried to get these
extremely rich, high rolling gamblers, real high rollers, guys with a lot of money to burn, to
come and play blackjack and to play dice, craps, and they would try to play. The problem
was that when Louie Failla got involved, it didnt work very well.25 Only at the end of this
sequence, or the other sequences of scenes about Faillas various criminal escapades, does
Donovan tie his story back into legal defenses. At the end of the New York gambling caper
Donovan depicts a real cartoon-like picture of the statute admitting that the game is in

violation of New York laws.26 It is not, however, in violation of RICO, the RacketeeringInfluenced and Corrupt Organization statute:
Heres what I mean. You not only have to have a participant in a RICO organization commit a crime. It has
to be a crime that furthers the enterprise.
The crimes have to be related to the organization. They have to further the policies of the organization.
They have to bring money into the organization. They have to be done with respect to the persons role in
the organization.27

The organization is, like the villain Billy Grasso, antagonistic to Faillas enterprise. Indeed,
the serpentine Patriarca crime family and the local capo are the forces of antagonism that
oppose the will of the protagonist. Donovan argues that the New York gambling game, and
Faillas other well-documented criminal activities and schemes that serve as the basis of the
multiple counts in the RICO indictment, are outside organization activities: This New York
gambling game put money in Louie Faillas pocket, put money in Jackie Farrells pocket
money in various peoples pockets, but didnt put any money in Billy Grassos pocket and
didnt put any money in the pockets of the alleged Patriarca crime family.28
Donovan works back and forth, from description to sequences of scenes and action and then
to dialogue and back again, employing excerpts from the tapes to make the story come alive.
For example, Donovan moves from incident and action back to dialogue in Faillas taped
conversations with Jack Farrell, once again assuming a version of Faillas gravelly mob voice
from the surveillance tapes.
Here, for example, Donovan illustrates Faillas fear of the risk of what would happen
should Grasso and the Patriarca family ever discover the New York gambling operation:
Were all fucking done as far as Im concerned.29 To emphasize and make explicit the
meaning of Faillas observation, Donovan adds an ironic and understated editorial aside that,
as far as Louie Failla went, boy, that would be an offense that would be a harsh one, harsh.30

D. Excerpts from the Climax and Resolution: Where Faillas Loyalty Is

Tested and He Is Compelled to Make a Crucial Decision Redefining His
Character
Just as in the movies (High Noon or Jaws) and strongly akin to the illustration provided by
This Boys Life, the plot progresses forward based on the unfolding conflict between Louie
Failla, the rogue outsider, on one side and Billy The Wild Guy Grasso, the villain and capo
of the Connecticut faction of the Patriarca crime family, on the other, as the action heads
toward the final confrontation. Here, Donovan constructs his defenses to the various lesser
RICO conspiracy counts as Failla moves farther outside the sphere and control of the Patriarca
crime family in conducting his various criminal enterprises. But there is more complexity to
the plot than this: the forces of antagonism are aligned against Failla achieving his goal of
becoming a major mobster in Connecticut. There are now the demands of Faillas adopted
Patriarca crime family and Billy Grasso calling on Failla to prove his loyalty by executing his

grandsons father; there are also the competing demands of his real family, his affection for
Tito Morales, and his love for his grandson. These countertensions create a compelling
dramatic conflict that puts Faillas character under intense pressure, seemingly compelling
him to make a definitive choice. Regardless of which choice he makes, it will have devastating
consequences.
Thus, this is the final act that leads toward the final crisis, resolution, and climax. But akin
to Gerry Spences legal story in the Silkwood closing argument, and unlike the films High
Noon or Jaws, Donovan does not complete his story, and does not provide closure to the tale.
It will be up to the jurors in their deliberations and, perhaps, the judge at sentencing (if the
defendant is convicted) to finish the story and inscribe a final coda of meaning on the tale.
Donovan takes special care not to complete the arc of Faillas character.
This final or third act of a movie-like plot structure provides Faillas defense to the murder
conspiracy charge, which is the most serious charge against him. Its success turns upon the
jury visualizing the scenes (aided by cartoons) and interpreting the subtext of what Failla does
not say. It provides a fuller understanding of Faillas complex character, or, at least,
Donovans reinterpretation of who Louie Failla is, and how he responds to the conflicting
loyalties and the forces of antagonism aligned against him.
Donovan marks the beginning of the third actas he has in each of the prior movements of
the plotwith another anecdotal story within a story. This is the most complex of his stories
within stories (and far more complex than the simple and abbreviated analogies employed
powerfully by Gerry Spence in Silkwood). This final story foreshadows strategically the
meaning of Faillas words and provides an unstated subtext for understanding Faillas
motivations in his willingness to go along with and, indeed, take the lead in plotting Moraless
murder (in the various dialogues captured in the surveillance tapes). Donovan maintains the
same comedic tonality in his delivery, as if all this material is part of a single overall
narrative:
And this brings us finally to the murder of Tito Morales, and this, ladies and gentlemen, is the most serious
crime that faces Mr. Failla. Before I start, Ill get my breath back.
Ill tell a story about Frankie Roosevelt, who was apparently an absolutely brilliant fellow at making
different sides believe that he was leaning toward their position. There was a coal strike during the
depression in West Virginia, and it had turned violent. The President decided that he would attempt to
mediate the dispute in order to end the violence, and he got the workers back into compliance. It was a cause
that Mrs. Roosevelt, Eleanor Roosevelt, was very much interested in, so what she decided she would do
would be to hide behind a curtain and listen to the meetings that the President had.
So first the owners of the mine come in and they explain that, Look, its the depression. Were not
getting much money for our coal. We admit the conditions are bad. Were doing the best we can to improve
them. The wages are low, but we cant possibly pay more. Well go out of business. The violence in the
strike is over.
President Roosevelt listened and said, You know, youre absolutely right. Youre absolutely right. They
left.
John L. Lewis, the head of United Mine Workers, came in, and he said, These workers are not making a
living wage. Children are being used in the mines. The conditions are absolutely horrible. Theyve brought
in strike breakers. The strike breakers are causing the violence.
The President said, You know, John, youre absolutely right. Youre absolutely right. He left.
Eleanor Roosevelt was enraged. She came out from behind the curtain. She said, Franklin, you told the
miners [mine owners] that they were absolutely right, and you told John L. Lewis that he was absolutely
right. What are [you] doing?

Roosevelt looked at her and said, Eleanor, youre absolutely right. Youre absolutely right. Youre
absolutely right.
Louie Failla does this all the time. He doesnt just exaggerate. He is a verbal chameleon. He adopts the
coloration of whoever is with him. We see it all over. When I said that, you [Donovan directly addresses
the jury] were supposed to say, Youre absolutely right, Jeremiah. Youre absolutely right.31

In telling this story, Donovan acts the different characters. Several reporters describe how he
interacts physically with the jury. Edmund Mahony observes the theatricality and physicality
of the performance: Donovan sometimes strode and other times tip toed in front of the jurors.
He shouted, then whispered and waved wildly with his arms. U.S. District Court Judge Alan H.
Nevas hid his face to cover a smile and the audience guffawed out loud.32 This story
embodies Donovans conceptualization of Louies character at this point in the story: Louie
will use deceits of language to avoid confrontation and violence; he is a people pleaser,
determined to give his audience what they want through story. This anecdote also foreshadows
Faillas role as mediator between the violent mob impulses.

E. Character in Dialogue and Action

Donovan now transitions back into his story:
The most significant example of Louies being a verbal [chameleon] has to do with Tito Morales. With
respect to Tito Morales Im going to argue to you that except for Louie Failla, Tito Morales would be dead. I
feel really off trying to argue to you that he didnt conspire to murder somebody when, in fact, in our view
its Louies action, I should say, more precisely, his inaction, that has permitted Tito Morales to be alive and
happy in prison, however happy he might be.33

In this final act, the conflict peaks. Failla confronts Billy Grasso and the Patriarca mob,
specifically, Grassos two violent henchmen, the father-son mob informants who testified
against Failla in exchange for a plea bargain, Sonny Castagna and Jackie Johns. These are also
flat and monochromatic characters, evil antagonists, akin to the various members of the
Miller gang, who are plotting to execute Tito Morales.
After arguing that except for Louie Failla, Tito Morales would be dead,34 Donovan tries
briefly to explain the legal basis of his theory that Failla did not participate in the conspiracy
to murder Morales. He does not lecture the jury; he merely invites their participation in
understanding the law. To provide a legal framework for this portion of the story, Donovan
briefly recites a legal theory of conspiracy that anticipates the judges charge, connecting
these to the motivations of Sonny Castagna and Jackie Johns to execute Morales on the
command of Billy Grasso:
In order to determine whether Louie is guilty of a conspiracy to murder Tito Morales, youre going to have
to make a decision about whether the conspiracy existed and what Louies intent was. Now in a conspiracy
its seldom true that one act taken by itself can be detected as tending to prove the unlawful agreement. What
I mean by this, I mean there was an agreement. There was an agreement between Sonny Castagna and Jackie
Johns. Sure, they wanted Tito Morales dead, but Louie did not.35

Donovan then moves to another action sequence: nine months prior to the conversations in the
car, the two mob enforcers close to Billy Grasso are talking about killing Morales. Why was
it going on? Donovan asks the jury.36 What was the motive to kill Tito Morales?37
Donovan employs sequences of scenes depicting the characters through their actions to
answer his own rhetorical question. First, a sequence of scenes displays the bad blood between
Morales and the mob henchmen. In one scene Morales, who had once been a partner with
young Jackie Johns in various Hartford crime activities, was arrested. In another scene, the
dialogue between Castagna and Johns reveals their belief that Morales thought that they had
turned him in to the police. In another scene, again reenacting transcripts from recorded
surveillance tapes, Johns and Castagna tell Failla that Morales can implicate them both in the
murder of a young boxer named Eric Miller (who was assassinated by Johns and Castagna
under Billy Grassos order, because Miller had foolishly gotten into a fight with Billy Grasso
in the parking lot of a Hartford restaurant). Donovan details Castagnas and Johnss
motivations to get rid of Morales through edited dialogue. Donovan concludes with
characteristic understatement and irony: Tito Morales, who knows about what happened with
the other kid [Eric Miller], can get Sonny and Jackie into some pretty serious trouble.38
Finally, Donovan caps off this sequence of scenes by describing, from Castagnas and
Johnss point of view, the visual shot of Morales seen going into the federal building.39
Donovan underscores the meaning of the scene described: Tito [Morales] was seen going into
the federal building, and very shortly thereafter theres a real rough call to Jackie Johns
[from Sonny Castagna] to get over here fast.40 Donovan shifts tonality from the comedy
of Louie Faillas scenes; there is a serpentine quality to the depiction of the actions now
defining the characters of Johns, Castagna, and especially Billy Grasso:
What are [these guys] worried about? Theyre worried Tito Morales is going to go in and spill the beans that
these were the guys who murdered Eric Miller [on the order of Billy Grasso]. Theyre scared that hes going
to go in and tell them all about Jackie Johnss counterfeiting and drug activity. And besides, Jackie
Johns doesnt like [Tito] too much, anyway, because [Tito] put the moves on his girlfriend.41

Donovan cuts to the next sequence of scenes. Initially, there is more dialogue between Failla
and his friend Jack Farrell while riding in Faillas Cadillac: [t]heyre reminiscing back to the
days when Billy Grasso controlled everything.42 Donovan reenacts the scene captured on the
tape of when Failla tells Farrell about how he once made an excuse to Grasso, presumably
about temporarily refusing to carry out the order to execute Morales:
Failla says, I didnt do what he said. Thats why I walked away from the table once [h]e came flying
right back, You motherfucker.
I said, Look, you dont see the eyes around. Ive got people watching me. I know when to fucking
move and [when] not to. Youre not supposed to tell me when to move.
You do what I tell you, you yellow motherfucker.
Grassos furious at him that hes a yellow motherfucker. What hes doing is hes saying, Eyes all
around me. I cant do it. He is making an excuse.43

But why did Louie Failla not carry out this order of Grasso? Donovan asks the jury.44

Because he and Morales were close.45 Donovans answer to his own rhetorical question
provides the transition into another scene and more dialogue in the car between Failla and
Morales, dialogue in a scene that starkly contrasts the characters of Failla and Morales with
the characters of the father and son mobster henchmen, the murderous team of federal
informants, Johns and Castagna. This is evidence that Donovan painstakingly introduced
during the defendants case at trial. In these surveillance tapes, Failla and Morales reveal
aspects of a far more complex relationship in their dialogue. For example, while driving in
Faillas Cadillac, soon after he has been ordered to murder Morales, Failla tells Morales, All
right, you take care of yourself, kiddo. I love you. You know that, dont you?46 Donovan then
steps outside of the scene and observes, I dont know. Its not often, I think, that grown men
tell each other they love each other.47 Donovan cuts to the next scene in the sequence:
The great one is, I think, on August 28th, and theyre talking about Jason [Moraless son, Louies grandson].
[Donovan assumes Faillas gravelly mobster voice.] You should see their fucking tape. They took him to
Lake Compounce yesterday, and they made a videotape of him, and he gets up and he starts playing fucking
good times, singing and dancing. That was, [the] whole fucking thing. You should see this fucking tape. He
should send it to Hollywood. That was, this kid did everything. He looked at the audience and people and
give him a fucking scowl like this [Donovan imitates Failla imitating his grandsons scowl] with his face.
Morales laughed. I got to show you.48

Donovan briefly frames the scenes and marks the end of the sequence describing the
relationship between Failla and Morales: Theres a tenderness between them. I said
tenderness is too strong. Theres a mutual respect and affection between them. Louie has been
placed in a terribly, terribly difficult position. His life is in danger if he does not carry out the
order, and hes the father of his grandchild.49 This sequence leads to a turning point and the
climax of the third act of Donovans three-part narrative structure. First, Donovan observes
Louies paralysis and inaction:
So what does Louie do? Louie does nothing. Nothing happens. [N]othing happened in April, nothing
happened in May, nothing happened in June, July, August, or September. Nothing at all happened
[b]ecause Louie Failla didnt do what Billy Grasso said.
Tito Morales is alive and happy in prison because of Louis Failla [who] disobeyed an order from
Grasso at peril to his own life. You yellow motherfucker. Because of the affection that he had for Tito
Morales.50

Finally, Donovan ties the story into the legal issue of intentwhat did Louie Failla intend to
do; what did he mean to do? Donovan instructs the jury that to figure out his [Faillas] intent,
you got to think what he was thinking you got to see this.51
Donovan playfully uncovers a larger-than-life cartoon depicting an image of Louie Failla,
one of many sequential cartoons in a thick pad of exhibits. Theres Louie, Donovan speaks
to the picture and then confides intimately to the jury, I tell you, you got to convict a guy on a
look, Louie would spend the rest of his life in jail.52 Donovan looks at the exhibit, with the
real Louie Failla carefully positioned behind the pad in the unobstructed sight line of the
jury. The jury and spectators chortle. Donovan continues, Two things you got to do. What did
Louie say, or what was Louie thinking when he said it.53

Donovan sets up the tension, filling in the spaces between what Louie says and what Louie
intendsthe distance between the explicit text of his spoken words and the unspoken and
interpretive subtext of the scene, that is, what happens below the surface of a scene;
thoughts, feelings, judgmentswhat is unsaid rather than said.54 Donovans technique
enables him to go within the mind and thoughts of the complex character of Louie Failla.
Although Failla has never taken the stand to testify at trial, Donovan effectively testifies on
Louies behalf and articulates his thought processes and motives in an easy-to-visualize linear
text encapsulated into cartoon thought bubbles. Donovans storytelling strategy is so
engaging and seamless that it is not broken by the prosecutions objection that there is no
evidence to substantiate Donovans assertions about Faillas thought processes.
Donovan proceeds through the many seemingly incriminating conversations recorded on
the FBI surveillance tapes. Employing his theatrical version of Louie Faillas mob voice,
Donovan speaks Faillas words and then articulates and clarifies Faillas purported thought
processes. As he speaks the words he provides the larger-than-life illustration of Louie Failla
facing right in profile with a hard solid-line cartoon bubble of Faillas recorded words
emerging from Faillas mouth. Then Donovan provides the subtext of Faillas purported
thoughts, a counterstory, atop a chain of smaller thought bubbles emerging as if from inside
Faillas head from a parallel left-facing side profile. The bubbles of testimony capturing
Louies thoughts establish the subtext underlying the meaning of his spoken words and reveal
Faillas true motivationsto stall the mobsters and save Tito Moraless life. This newly
redefined version of the story eclipses the prosecutions literal interpretation of Faillas
words, which implicate him in the murder conspiracy.55 These same words now suggest that
Faillas own complicity in the murder conspiracy were efforts to stall the mobsters by inaction
and vindicate him of the most serious charge against him.

5.1 What did Louie Say? What Did Louie Think? Illustration a courtroom exhibit.
N.p. in transcript.
FIGURE

F. Faillas Character Arc Is Not Completed

The cartoon bubbles, together with Donovans reenactments of Failla responding to the
murderous mobsters time and again, provide the denouement to the carefully scripted twohour performance. Donovan has redefined crucial elements of the plot of evil mobsters (flat
monochromatic characters) whose words mean precisely what they say, conspiring to execute
Morales in a plot that fortuitously never reaches resolution. While in the prosecutions version
of the story the characters of the various mobsters are psychologically undifferentiated in their
dark motivations, Donovans story provides an alternative rendering of these characters,
especially Louie Failla.
At the end, Donovan does not take the final step and resolve the drama by providing closure
to the character arc of Louie Failla, completing the plot and inscribing a meaningful coda on
the tale. Instead, Donovan leaves it for the jury and judge to resolve the issue of Faillas
identity: in a final visual cartoon the two divided halves of Louie Faillas profile are posed in
opposition while, just behind the exhibit stand, the real Louie Failla sits at the defense table
studied by the judge and jury in a carefully crafted visual montage of the simulation set atop
courtroom reality.

FIGURE

5.2 What Did Louie Do? Illustration a courtroom exhibit. Quotation, transcript, 75

76.
In a voice-over, Donovan concludes his portion of the storytelling dramatically:
What did Louie do? Nothing. No evidence of going out and buying a gun. No evidence of a real plan that
would bring Tito out at this time to this place. No evidence of any of the kind of actions that one would
expect that Louie should have been engaging in if he had really conspired to kill Tito Morales. He talked,
and by talking he saved Tito Moraless life. By making Johns and Castagna think that he was going along
with the plan, he got Tito Morales that one more month he needed.56

Donovan refers only briefly to the legal implications of his story, leaving it largely to the
jurys charge.57 Likewise, Donovan only briefly emphasizes the standard of reasonable
doubt.58 It is up to the jury first to determine who Louie Failla is at the end of the story and
then to provide narrative closure by formulating their own ending to the Louie Failla story.

III. Concluding Observations

A. Louie Faillas Character and the Movies
Cinematic characters seldom display the depth of literary characters. They are reduced in
psychological complexity, exaggerated, and shot out across hard plot lines. The protagonists,
especially in contemporary plot-driven Hollywood films, are possessed by simple univocal
forces that respond to external pressure through action. This tension, between the internal
force that motivates the protagonist and an external oppositional force, generates the simple
conflict that shapes the formulaic narrative structure at the heart of popular film. These
internal forces, like the characters, are readily identified. The resulting narrative exploits are
compressed and carefully configured to fit and surprise (yet never defy) the audiences
expectations as the protagonist struggles to resolve external conflict. The storytellers point of
view is almost always that of the protagonist with whom the audience is implored to identify.
For example, in High Noon the story is told primarily from the perspective of Will Kane,
although there are some shifts to scenes between Amy and Helen where Kane is not present on
the screen. Likewise, in Jaws the perspective of the film is that of the heroic human
protagonists attempting to stop the shark, although the film shifts to the underwater
perspective of the shark where the audience vicariously and guiltlessly enjoys the sharks
attacks on the nave and innocent bathers in the world above.
The dominant and almost exclusive perspective in Donovans closing argument (in contrast
to the prosecutions story) is that of Louie Failla. The jurors observe and then inhabit Faillas
thoughts and character, although Donovan effortlessly slides out into several important
sequences of scenes shot from the perspective of mob henchmen Jackie Johns and Sonny
Castagna. (For example, the two mobsters consult with Billy Grasso and then watch Tito
Morales going into the federal building fearing that he is about to roll over on them,
establishing their motivation to execute Morales.)
The formulaic conventions for defining character and establishing motivation in popular
films provide a template for better understanding the dynamics of Donovans Louie Failla and,

more generally, the dynamics of character construction in legal storytelling. Donovan employs
a familiar and viewer-friendly compositional structure in his depiction and representation of
Louies character. Although Louie Failla is a simple man, he is a complex character.
Nevertheless, he is a readily recognizable archetype already familiar to this audience from the
movies.
His character is initially presented and then refined in the progressive stories within stories
that serve as place markers for each of the three discrete and purposeful acts of Donovans
story. Faillas motivations are, likewise, carefully scripted, and internally consistent: he is a
comic protagonist, an exaggerator, a fabulist. His stories are big Mafia dreams, filled with
chronic self-distortion and self-deception. When Louie attempts to execute a scheme,
however, his actions seldom achieve the consequences that he anticipates. He is not a brutal
man or an effective Mafia tough guy. He is an inept and comic character, easily differentiated
from the villainous flat characters, the henchmen Jackie Johns and Sonny Castagna and,
especially, the evil and powerful Patriarca mob capo, Billy The Wild Guy Grasso. Unlike
Grasso, Failla is a conflicted character; he is ineffective because he is neither venal nor cruel.
Louie drives around in his big Cadillac, telling big stories, while engaging in small scams to
survive, keeping out of the way of Billy Grasso and operating outside of, and ostracized from,
the power of the Patriarca crime family.
During the third actthe climax and resolutionof Donovans clearly marked three-part
narrative structure, Louie Failla appears initially as a two-dimensional visual cartoon,
supplemented by Donovan theatrically delivering his lines edited from the FBI surveillance
tape transcripts in a gravelly and stereotypical mob voice. Here, another strand of Faillas
character emerges in the subtext from beneath Faillas words; Donovan makes Faillas
thoughts explicit in the cartoon bubbles that emerge from Louies mind in contrast to the
words that come from his mouth. Akin to Will Kane in High Noon, Faillas character
undergoes a subtle reversal at the moment of crisis; he must make a choice that redefines his
character.
The multiple and discrete audiences (e.g., the jury, the judge, Faillas real family and his
adopted mob family, and the other codefendants at the trial who are accused of murdering
Billy Grasso) are left to interpret and fully understand his motivations and actions as a
component of a carefully constructed and dramatic story. At the moment of deepest crisis and
climax, it is apparent that Donovans Failla makes the crucial choice to save Moraless life.
He engages in doing so by not doing anything beyond pretending to go along with the order.
As Donovan proceeds through the extensive surveillance tapes, he contrasts Louies thoughts
with his words; he emphasizes Louies strategic failure to follow through with the plan to
execute Morales, despite the pressure from the mob. In doing so, Failla saves Moraless life
just as he intends to do. In the end, Donovans version of Failla transcends the cartoon and
becomes almost heroic, choosing to protect the life of his grandsons father by stalling the
mobsters (Johns, Castagna, and Grasso) by using his storytelling skills and abilities. Just as in
the movies, Donovans Failla chooses his real family over the orders of the villainous faction
of his mob family led by Billy Grasso. It is at this moment that the audience sees who the
real Louie Failla is.
Of course, Donovans version of Failla is not a real person. He is an artistic creation

existing in a narrated dream state framed by popular cinematic representations of Mafia

archetypes and the codefendants in the trial. Screenwriting texts and Hollywood practices
provide a theoretical framework for better understanding Donovans work. In popular films
that adhere to the Hollywood formula, characters, including complex protagonists like Louie,
must be centered, and their motivations must be apparent and consistent. The plot must be
kept on track by the protagonists pursuit of the object of his univocal narrative desire.
Screenwriting manuals suggest that this outer goalthe plot goalmust be clarified by an
internal goalthe personal goal.59 That is, [a] good [effective] character has compelling
personal goals. These personal goals spring from very deep emotional needs, deprivations, and
scars. The need for self-respect; for self-actualization. The need to be loved; to be
respected.60
In The Screenplay, Margaret Mehring analyzes the Hollywood formula for constructing
character and effective characterization, describing the personal goals that drive the
characters to reach their plot goals.61 These goals are the voices within the character that
yearn for fulfillment, that must be satisfied. Theyre the needs that create the energy to
overcome obstacles.62 These forces, like the characters themselves, are exaggerated and
distilled, and they provide apparent motivation for the protagonist.
Hollywood screenwriters also speak of the protagonists inner contradiction that
accompanies the internal personal goal.63 This is the conflict within the protagonist that,
according to Hollywood folk wisdom, makes the protagonists character compelling. Usually,
like the personal goal, there is one primary and identifiable inner contradiction that
determines the protagonists identity and shapes the characters cinematic destiny or fate.
Faillas personal goal is partly material and partly psychological: Failla struggles for those
Hollywood staples of fortune and fame as well as for professional recognition, respect, and
self-esteem. The inner contradiction in Faillas character, however, is more subtle. Donovans
not-so-tough guy Louie Failla tells big stories to capture and please his audience. He does so
because he lacks something within himself and needs something that he is missing
desperately. This psychological need interferes time and again with the achievement of his
personal goal and, perhaps, contributes to his self-destructive confessions in a car that he
could have and should have anticipated was bugged. This missing element cannot be fully
deciphered, however, until Donovan intimates it at the end of his closing argument by reading
the complex progressions of cartoons and suggesting the true nature of Faillas character.
The inner contradiction within Faillas character is between Louie Failla, the purported
Patriarca mafioso, with his tough guy exterior, his Runyonesque bravado, and the softer,
compassionate, empathetic, and even loving aspects of his personality. This tension is
revealed in Faillas confessional dialogue with Jack Farrell, and especially, in his
conversations with Tito Morales about his grandson. This contradiction is most apparent in the
final act or movement of the story when the audience sees Faillas character depicted as the
two contradictory and conflicting halves of a personality.
When the screenwriter is constructing the dynamics of a protagonists character, according
to the Hollywood template, the audience sees the character in action in the struggle toward a
clearly defined outer plot goal. Plot goals, like personal goals, are specific and apparent. They
include [t]hings like becoming a famous pilot, being married to a wealthy woman, capturing

a notorious criminal, or earning a higher education degree.64 Initially, the plot goal may
appear simply as an external and visible representation of the personal goal. Tension between
the protagonists personal goal and the plot goal results in the darkest moment or the final
crisis and ultimately moves the protagonist to the climax when the protagonist must make a
decision that will reflect a substantial change within him or her and will create a substantial
change in the situation. The moment the change manifests itself the moment when the
theme of the story becomes clear.65
Failla seeks a specific external plot goal. Failla wants to become a capo of Connecticut
organized crime activities. Failla, like the legendary OToole in Donovans story, pretends to
be who and what he is not. In the final act, he has the opportunity to achieve this external plot
goal; he can ingratiate himself with and prove his loyalty to the leadership of the Patriarca
crime family by completing the conspiracy to murder Tito Morales. In Donovans version of
the story, however, he does not do so, and it is at this moment that the narrative theme
becomes clear.

B. Character and Theme

The theme of a popular movie or an effective law story is often deeply connected to the
development of the central character, typically cast as the protagonist of the story (especially
in a criminal law or torts story). This is especially so in a sophisticated law story akin to
Donovans narrative on behalf of Failla. This is a story that ultimately turns on the audiences
perception and understanding of Louie Faillas character: at the start of the story, Louie is a
narrative trickster, who tells his stories for effect (akin to OToole in the barroom anecdote),
as compared to who he becomes at the end of the story, a character (akin to Roosevelt) who
uses storytelling skills to save Moraless life and maintain his own integrity. That is, the
theme of Faillas story concerns Faillas motives and contradictory impulses and how this
internal psychological conflict is translated into action (more specifically, in Faillas case,
into inaction).
It is Faillas 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. Faillas 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, Faillas 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 Donovans 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-ofsemester 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
students confidence, ability to create a professional persona, and perception of self-worth.
Increasingly, first-year law school grades have profound practical significance as well: firstyear 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 issuespicking them up like
Easter eggs on an elaborate Easter egg huntarticulating 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 substancewhether 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 Kings 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 narratives 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 Spences closing argument in Silkwood is captured by the
power and confidence of Spences literal voice; there is deliberateness, pacing, and confidence
in his rhythmic yet theatrical delivery. It is through Spences 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 Beasts hunger for profits). Spence employs his
voice and presentation, reshaping the material into a story with almost biblical dimensions.
Spences 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. Spences voice and his presentational style are
intentionally magisterial, signaling carefully that this is an important story capturing a crucial
historical moment.
Spences story, like most torts stories, is fundamentally a simple melodrama. And Spences
Silkwood character is a simple hero without the depth of character of, for example, a complex
tragic hero. Indeed, attempting to transform Silkwoods story into the genre of tragedy by
adding another dimension to Karen Silkwood as protagonist would diminish the storys
persuasive power. There are, nevertheless, clearly tragic victims in Spences story: the young
workers who, Spence argues, will suffer horrible struggles with cancer if the jury does not
intervene heroically to give Silkwoods 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. Spences 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 Silkwoods 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 Ellroys
autobiography My Dark Places,1 Norman Mailers Executioners Song,2 Truman Capotes In
Cold Blood,3 and Frank McCourts Angelas 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 Ellroys and
McCourts 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
Ellroys 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 Ellroys mother was
murdered, and the murderer was never apprehended. Many years later, Ellroy, the narratordetective, 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. Ellroys story operates on a second level
crucial to the memoir (akin to Tobias Wolffs story in chapter 4): the purpose of Ellroys
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, Ellroys 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 Ellroys 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 Ellroys 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 talismanso 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 readers 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 waysto keep them from looking too close.
Kendall Nungesser ran across Tyler and spotted a pay phone by the dairy stand.
He called the Temple City Sheriffs Office and told the desk sergeant hed discovered a body. It was right
there on that road beside the playing field at Arroyo High School. The sergeant said stay there and dont
touch anything.
The radio call went out: 10:10 a.m., Sunday 6/22/58. Dead body at Kings Row and Tyler Avenue, El
Monte.
A Sheriffs prowl car made it in under five minutes. An El Monte PD unit arrived a few seconds later.
Deputy Vic Cavallero huddled up the coaches and the kids. Officer Dave Wire checked out the body.
It was a female Caucasian. She was fair-skinned and red-headed. She was approximately 40 years of age.
She was lying flat on her backin an ivy patch a few inches from the Kings Row curb line.
Her right arm was bent upward. Her right hand was resting a few inches above her head. Her left arm was
bent at the elbow and draped across her midriff. Her left hand was clenched. Her legs were outstretched.
She was wearing a scoop-front, sleeveless, light and dark blue dress. A dark blue overcoat with a
matching lining was spread over her lower body.
Her feet and ankles were visible. Her right foot was bare. A nylon stocking was bunched up around her
left ankle.
Her dress was disheveled. Insect bites covered her arms. Her face was bruised and her tongue was
protruding. Her brassiere was unfastened and hiked above her breasts. A nylon stocking and a cotton cord
were lashed around her neck. Both ligatures were tightly knotted.
David Ware radioed the El Monte PD dispatcher. Vic Cavallero called the Temple office. The body-dump
alert went out:
Get the L.A. County Coroner. Get the Sherriffs Crime Lab and the photo car. Call the Sherriffs Homicide
Bureau and tell them to send a team out.
Her face had gone slightly purple. She looked like a classic late-night body dump.13

Ellroys opening stays compulsively on the surface of the details. Although his voice is now
cast in the third person and an omniscient perspective, Ellroy avoids descending into the
consciousness of his characters and providing their thoughts other than his brief observation
that a little telepathic jolt went around when the boys discovered the body. The freestanding
details have sufficient power to hold the reader; any emotion of Ellroy for his mother is
compressed into hard visible objects and a matching hard-edged voice. Ellroy employs short
concussive sentences, equally short and arresting paragraphs, and the rhythms of the prose are
derived from the colloquial street language characteristic of a contemporary detective
mystery. The surface of language is foregrounded by the absence of any commentary by Ellroy
on the images he depicts and splices together almost cinematically. This stylistic form of
presentation encourages the reader to function as a detective-investigator. Images are clues to
be sifted through by the reader and not ascribed specific meanings by their author. These
images are tethered back to the initial image of Ellroys dead mother, who serves as the focal
point and emotional pivot of the story. Ellroy looks down from outside the experiences and
images with a detached and hardened clarity, whether he is engaged in revisiting and
investigating the circumstances of his mothers death or in investigating the equally harrowing

circumstances of his own life as it takes shapein an almost predetermined mannerafter

her murder.
In his chapter Staying on the Surface in The Art of Fiction14 David Lodge observes that
this is a form of story elaboration where the narrative discourse impassively tracks the
characters as they move from moment to moment towards an unknown future.15 The texts
refusal to comment, to give unambiguous guidance as to how the characters should be
evaluated, may be disturbing but may also be a source of power and fascination.16 The
qualities and techniques that are compelling in Ellroys prose, drawing the reader into the
story and activating the imagination of the reader to resolve a complex puzzle of meaning,
often serve the legal practitioner as well, especially in effective appellate and postconviction
relief briefs.
For example, here is how some of these same techniques are employed in a postconviction
defense brief in Riggins v. Nevada.17 The story in the Statement of the Case begins with the
visual depiction of the defendant, heavily drugged and unable to participate effectively in his
own defense at trial. The legal issue turns on whether the defendant was denied due process
when he was placed on trial only after being forced to ingest high dosages of the
antipsychotic drug Mellaril18 over the objections of his attorney. The images and concrete
details are embodied in a strong and hard-boiled detective voice, akin to Ellroys, that stays
primarily on the surface of events. Although it is hard-edged and coldly objective, the voice
conveys a strong sense of emotional involvement with the material, so that the reader
perceives and responds with a shared yet unstated moral outrage about the injustice of the
defendants legal predicament. How does the defendants brief accomplish its purpose? The
stylistic voice matches the narrative and circles repetitively back to a crucial core image (The
Zombie in the petitioners brief is akin to The Redhead) that is the emotional pivot of the
story.
The evocative Statement of the Case begins:
Petitioner David E. Riggins is presently under sentence of death after he was so heavily drugged by the State
of Nevada that he appeared like a zombie throughout his trial. Despite Riggins objection while competent to
receiving medication during his trial, and despite substantial evidence that Riggins would have been
competent to stand trial without medication, the State of Nevada forced Riggins to ingest extremely high
dosages of the antipsychotic drug Mellaril each day of his trial. The medication sedated Riggins; it made him
appear apathetic, uncaring, and without remorse. Riggins was therefore prevented from presenting the best
evidence he hadhis unmedicated demeanorto support his only defensethat he was legally insane at the
time of his crime.19

After compressing the legal particulars of the case, and providing the backstory of Rigginss
illness with a vivid and straightforward explanation of the psychiatric diagnosis, the writer
presents an equally brief and clear description of the effects of the antipsychotic drug Mellaril.
The writer then returns to the image of The Zombie; the repetition of the image does not
appear calculated and the voice does not call attention to itself, or explicitly reveal the writers
beliefs. Instead the voice stays on the surface of events, emphasizing repetitively the images
of Riggins after he had been force-fed Mellaril, and the voice presents the responses of various
actors in a style similar to the hardboiled voice of a Raymond Chandler novel:

Accordingly, Riggins was forced to ingest 800 milligrams of Mellaril each day of his trial, a dosage every
psychiatrist considered excessive. Dr. Jurasky described this dosage as enough to tranquilize an
elephant. It was no surprise, therefore, that Riggins was seen closing his eyes during his hearing on a
motion to terminate the medication and had a zombie-like appearance throughout his trial.
Riggins sole defense was insanity, and he took the stand to prove this. [The writer then presents a vivid
selection of Rigginss delusions from his testimony that allegedly provided the reasons why he was
compelled to kill the victim.] The state exploited Riggins drug-induced demeanor during his trial, and in
doing so directly contradicted its pre-trial representations to the court.20

The writer explains how the states expert witnesses and closing argument focused on
Rigginss demeanor at trial, a condition the state had authorized, although it had promised not
to do so, by quoting from the prosecutors closing argument: Does Riggins express sorrow,
no. Does he express remorse, no.21 And then the brief returns to the image of the zombie,
observing how Rigginss Mellaril-induced demeanor undermined mitigation arguments based
on extreme emotional disturbance and remorse at sentencing. Although the voice stays on
the surface of images, it dips momentarily, effectively, and almost unnoticeably into the
consciousness of Riggins to observe that he wanted to express grief and sorrow, but was
prevented by the drug from doing so:
Rather than looking like the emotionally disturbed individual that he is, the heavily sedated Riggins sat
calmly and impassively through the sentencing hearing. Although he wanted to express the grief and sorrow
he felt for killing Wade [the victim], the medication prevented him from doing so, and, in fact, prevented
him from reading a statement he had prepared expressing these sentiments.22

The brief initially describes the various ways the state may permissibly advance a compelling
interest to restrict a defendants fundamental right to testify by the least restrictive
[alternative] available, including the least acceptable alternative, binding and gagging the
witness.23 And then, in the body of the argument, the brief compares the zombie-like Riggins
to the witness bound and shackled by the forced ingestion of Mellaril and made to
effectively present evidence against himself by compelling him to appear unremorseful,
apathetic and sane.24 Stylistically, this story is translated into a legal argument that is equally
hard-boiled, flat, and coldly objective.
Is this the only voice available or employed in criminal defense brief writing? Of course
not. It is but one of a wide range of possible styles available to legal storytellers; but it is
certainly one that fits well with the subject matter and with the legal argument.

IV. The Use of Scene and Summary: Showing and Telling

Stories, whether in law or creative nonfiction, are constructed through a rhythmic alternation
and carefully structured interplay between scenes and summaries. Just as in commercial
films, scenes are constructed by employing visual details (images), dialogue (quotations), and
depiction of events (action).25 Indeed, the fundamental building block in film is the scene;
scenes are constructed from shots that then, in turn, are built into compositions or sequences
of scenes and then into acts. There is, obviously, little if any authorial summary in a movie. In

this way, film is a pure form of showing.

Summary, however, is different; language summarizes and encapsulates events,
compressing images. Consequently, events are typically compressed as well, and specific
scenes are not called forth readily in the mind of the listener or reader.
Another way of distinguishing between scenes and summaries is in terms of narrative time
(a separate chapter in this book). In a scene the discourse time is roughly equivalent to story
timewhether the scene is presented in dialogue or as a straightforward account of momentto-moment visual action. In contrast, in a summary, the story time significantly exceeds the
discourse time; that is, the pacing of events is compressed, and images and individual events
are seldom evoked with particularity.26 In a scene, events are typically clearly displayed,
formed into visual images. In summary, however, particularity is lost or blurred as the events
are sped up over time.
Thus, for example, in his closing argument on behalf of Louis Failla, Jeremiah Donovan
often speeds up narrative time in summaries that gloss over many months of time, while at
other points he meticulously reconstructs specific conversations between Failla and various
mobsters while plotting the murder of Tito Morales. These conversations between Failla and
Morales fit into carefully constructed sequences of scenes that focus the listeners attention on
crucial evidence presented in the trial, providing an alternative interpretation of the meaning
of Louies spoken words in the context of a cinematic and visual narrative landscape.
There is also a third type of movement in written and oral storytelling that narrative
theorists call stretch. Here, the storytelling is typically slowed down so that the discourse time
significantly exceeds story time. The meticulous showing or the extended telling
accompanying this movement exaggerates the importance of this piece of the story; the pace
of the telling clues the reader into the relative importance of specific sections of the story. The
slow motion of a stretch is not frequently employed in legal storytelling, except on occasion to
revisit a crucial event and dissect and elaborate on the moments within it. One famous and
illustrative use of stretch within a legal story was the slow-motion replay of the videotape in
the Rodney King trial,27 supported with explanation and commentary on the individual frames
of the sequence. Another illustration of the use of stretch is, of course, Jeremiah Donovans
extended revisitation of portions from the transcripts of Louie Faillas audiotaped
conversations plotting the murder of Tito Morales; Donovan carefully supplements the
dialogue with strategic first-person commentary, revealing Louies internal thought processes.
All stories, including legal stories, establish rhythmic interplay or pacing by alternating
scene and summary. Legal briefs and written legal stories typically emphasize summaries over
scenes. This is because there is often a great deal of information to convey to the reader and,
although much of this information is important, it is not sufficiently important to warrant an
entire scene. Also, of course, there are limitations on space, time, and the willingness of the
audience to engage with the story. Nevertheless, scenes are extremely significant in all legal
storytelling practices, just as they are crucial in fiction and creative nonfiction: we are drawn
into the story not through flat, abstract summaries but rather through the detailed depiction of
events. Thus, David Lodge admonishes young writers that overuse of authorial summary is not
only deadening, it may also be unreadable.28 Nevertheless, summary is important
structurally because it can, for instance, accelerate the tempo of a narrative, hurrying us

through events which would be uninteresting, or too interestingtherefore distracting, if

lingered over.29
As a teacher of legal writing and a clinical supervisor, I have observed that many legal
briefs (written both by students and experienced practitioners) are often unreadable because
the writer simply does not know how to construct or employ appropriate and strategic scenes
to supplement summaries; that is, the legal writer does not know when it is appropriate to use
showing instead of telling. It is as if the legal storyteller is often afraid of constructing
scenes or of crossing over intentionally into purely narrative territory. Of course, summary has
its uses, and it is important structurally; no brief or even a statement of a case is ever
exclusively a composition of scenes, akin to a movie. Typically, because of page constraints
and the average attention span of a judicial reader, the balance in written legal storytelling tips
toward using more summary and less construction of scenes.
Norman Mailer is masterful in striking a balance between showing and telling; he knows
how to develop a scene, where to begin it and how to end it while working within a carefully
structured narrative framework. In Mailers Executioners Song we find a brief, understated,
and self-contained scene describing the murder of Max Jensen by Gary Gilmore.30
Gary walked around the corner from where the truck was parked and went into a Sinclair service station. It
was now deserted. There was only one man present, the attendant. He was a pleasant-looking serious young
man with broad jaws and broad shoulders. He had a clean straight part in his hair. His jawbones were slightly
farther apart than his ears. On the chest of his overalls was pinned a name-plate, MAX JENSEN. He asked,
Can I help you?
Gilmore brought out the .22 Browning Automatic and told Jensen to empty his pockets. So soon as
Gilmore had pocketed the cash, he picked up the coin changer in his free hand and said, Go to the
bathroom. Right after they passed through the bathroom door, Gilmore said, Get down. The floor was
clean. Jensen must have cleaned it in the last fifteen minutes. He was trying to smile as he lay down on the
floor. Gilmore said, Put your arms under your body. Jensen got into position with his hands under his
stomach. He was still trying to smile.
It was a bathroom with green tiles that came to the height of your chest, and tan-painted walls. The floor,
six feet by eight feet, was laid in dull gray tiles. A rack for paper towels on the wall had Towl Saver printed
on it. The toilet had a split seat. An overhead light was in the wall.
Gilmore brought the automatic to Jensens head. This one is for me, he said, and fired.
This one is for Nicole, he said, and fired again. The body reacted each time.
He stood up. There was a lot of blood. It spread across the floor at a surprising rate. Some of it got onto
the bottom of his pants.
He walked out of the rest room with the bills in his pocket, and the coin changer in his hand, walked by
the big Coke machine and the phone on the wall, walked out of this real clean gas station.31

Mailer takes great pains to show the murder rather than tell about it; likewise, he avoids
fancy language that would diminish the impact of the images and the understated scene on
the reader. He allows his readers to form their own judgments. But there are apparent narrative
strategies in Mailers use of a minimalist description that captures the action as if through the
coldly objective eye of a camera.
In the first paragraph Mailer sets the stage for his movie-like scene: Gary Gilmore comes
on stage and meets the attendant who is described initially with neutral adjectives as an
everyman (as a pleasant-looking serious young man). Then the somewhat blurry description
emphasizes selected particularized physical details of the attendants appearance (e.g., the

clean straight part in his hair, the jawbones slightly farther apart than his ears, even his
nameplateMAX JENSEN). Max Jensen innocently offers to assist Gilmore. Abruptly, the
robbery begins; Gilmore orders Jensen into the bathroom. Mailer emphasizes the cleanliness
and order of the bathroom. This description, in turn, provides the setup for the ending of the
scene, and Jensen is ordered to get down on the floor; all the while Jensen is trying to
smile.
Then Mailer takes a paragraph to provide a detailed description of the bathroom, slowing
the pace of the telling momentarily. Immediately thereafter, without pause, Mailer details
Jensens violent execution, supplemented with Gilmores remorseless non sequiturs, naming
each bullet fired into Jensens head with particularity: this one is for me and this one is for
Nicole (Gilmores girlfriend). And then he adds the disconcerting final detail of Gilmore
noticing that some of Jensens blood has apparently stained the bottom of Gilmores pants.
The scene concludes with Gilmore walk[ing] out of this real clean gas station,
reemphasizing ironically the image presented several paragraphs earlier in a careful sequence.
This structure is shaped to provide a seemingly objective but, nevertheless, prosecutorial
condemnation of Gilmore, without ever becoming overtly judgmental. Mailers sympathy, in
this scene, is clearly with the innocent victim Max Jensen; he is akin to an innocent member
of the community attacked by the shark in Jaws or a worker afflicted with cancer by the
Beasts (Kerr-McGees) plutonium in Silkwood. After this scene, however, Mailer has many
pages to allow the remarkably self-reflective Gilmore to reach toward the possibility of
understanding his own actions and toward a desire to atone for his sins through his own
execution, as a partial payment back to society for actions that are inexcusable.
The imagery appears taken from a documentary film shot from the objective perspective of
an unseen narrator who, only in the most delicate way, dips into the mind of Jensen, the
victim, to observe that just before Jensen was shot [h]e was still trying to smile. This
arrangement of description, action, and character is a carefully structured composition,
however, designed to achieve a precise effect on the reader: it is similar to the effect that a
skillful prosecutor would desire to achieve detailing the circumstances of a crime.

V. Telling in Different Voices

Often, the strongest and most persuasive legal narrativesespecially compelling scenes
incorporated into and alongside authorial summariesare not the product of the voice of the
legal storyteller. The advocate assembles and transforms collages of quotations into closely
edited structural compositions. For example, Jeremiah Donovan develops scenes from reedited
versions of the federal surveillance tapes. Likewise, Gerry Spence in his closing argument in
Silkwood makes the prophet Silkwood come alive by replaying crucial and carefully edited
segments from tapes introduced into evidence. In brief writing, the pieces of the brief are
often reconfigured from transcripts and records andin appellate and postconviction practice
from previous tellings and retellings in judicial opinions. The voices that speak in legal
briefs are typically taken directly from other sources. The work of the legal storyteller is thus
a practice of bricolage or assembly, as the author arranges which voices come to the forefront
of the argument to do their work on the reader or listener. This artistry creates a sense of

complete transparency and candor rather than intentional narrative strategy. But this is
seldom, if ever, actually so in legal storytelling or in any creative storytelling practice. The art
in narrative practice and persuasion is to affirm the appearance of artlessness and of objective
transparency in the telling of the tale.
In Cold Blood provides an illustration of meticulous investigation and purposeful assembly
of voices in a classic work of creative nonfiction. Capotes voice is that of an objective
investigative journalist who relies primarily on direct quotations, transcripts of conversations,
and excerpts from journals. In one sequence of scenes, for example, Capote reveals the
discovery of a murder scene by employing a purportedly unedited verbatim transcript of an
eyewitness who accompanies the sheriff to investigate the possibility of a crime at the Clutter
family farm.32 The witness, Larry Hendricks, is a schoolteacher who had taught one of the
murdered Clutter children.33 Before beginning his dark journey, Hendricks decided Id better
keep my eyes open. Make note of every detail. In case I was ever called on to testify in
court.34 Hendrickss story within a story begins at his own house, with a scene depicting a
steady state of domestic tranquility:
Well, the TV was on and the kids were kind of lively, but even so I could hear voices. From downstairs.
Down at Mrs. Kidwells. But I didnt figure it was my concern, since I was new hereonly came to
Holcomb when school began. But then Shirleyshed been out hanging up some clothesmy wife, Shirley,
rushed in and said, Honey, you better go downstairs. Theyre all hysterical. The two girls [Hendrickss
children]now they really were hysterical. Susan never has got over it. Never will, ask me. Even Mr.
Ewalt [a middle-aged farmer], he was about as worked up as a man like that ever gets. He had the sheriffs
office on the phonethe Garden City sheriffand he was telling him that there was something radically
wrong over at the Clutter place. The sheriff promised to come straight out, and Mr. Ewalt said fine, hed
meet him on the highway..
[Hendricks accompanies Ewalt to meet the sheriff on the highway.]
The sheriff arrived; it was nine thirty-fiveI looked down at my watch. Mr. Ewalt waved at him to follow
our car, and we drove out to the Clutters. Id never been there before, only seen it from a distance. Of
course, I knew the family. Kenyon [the Clutters son] was in my sophomore English class, and Id directed
Nancy [the Clutterss daughter] in the Tom Sawyer play. But they were such exceptional, unassuming kids
you wouldnt have known they were rich or lived in such a big houseand the trees, the lawn, everything
so tended and cared for. After we got there [the sheriff] radioed his office and told them to send
reinforcements, and an ambulance. Said, Theres been some kind of accident. Then we went in the house,
the three of us. Went through the kitchen and saw a ladys purse lying on the floor, and the phone where the
wires had been cut. The sheriff was wearing a hip pistol and when we started up the stairs, going to Nancys
room, I noticed he kept his hand on it, ready to draw.
Well, it was pretty bad. That wonderful girlbut you would never have known her. Shed been shot in
the back of the head with a shotgun held maybe two inches away. She was lying on her side, facing the wall,
and the wall was covered with blood. The bedcovers were drawn up to her shoulders. Sheriff Robinson, he
pulled them back, and we saw that she was wearing a bathrobe, pajamas, socks, and slipperslike,
whenever it happened, she hadnt gone to bed yet. Her hands were tied behind her, and her ankles were
roped together with the kind of cord you see on Venetian blinds. Sheriff said, Is this Nancy Clutter?hed
never seen the child before. And I said, Yes. Yes, thats Nancy.35

Notice how Hendrickss composition (and, perhaps, how Capote shapes this testimonial
evidence) is intuitively artful, with respect to each of the stylistic topics presented in this
chapter. First, there are the concussive rhythms of the short sentences that convey emotion by
slowing the reader down so he is encouraged to feel the emotions experienced by Hendricks. It
is as if the reader is accompanying Hendricks and is simultaneously discovering the crime

scene shortly after the murder. Second, these rhythms are complemented and matched by
meticulous selection of descriptive details. Outside, the trees, the lawn, everything so
cared for. Inside the house, however, there is a ladys purse lying on the floor, and the phone
where the wires have been cut. It is a detail that foreshadows what Hendricks and the sheriff
will discover in the next scene in the sequence. As the sheriff goes up the stairs he kept his
hand on it [a hip pistol], ready to draw as if in anticipation of what he (and the reader) will
discover next. And then the description and the scene slow down into a stretch, with
murdered Nancy Clutter first described, the bedcovers drawn up to her shoulders. Then, as if
in slow motion, the sheriff pulls the bedcovers back, and we saw [what] she was wearing,
including the telling details (e.g., her ankles were roped together with the kind of cord you
see on Venetian blinds). The brutality of the scene is tempered by a pitchperfect and
understated compassion (e.g., the sheriff says hes never seen the child before).
Hendricks then describes the discoveries of the victims in the next rooms, Mrs. Clutter,
Hendrickss former student Kenyon, and then Mr. Clutter. The same stylistic techniques are
employed intuitively (the rhythms, the details, the use of scene and stretch). Hendricks seems
to relive the discoveries, as he describes each room filled with a horror more vivid and more
frightening than the one before it. The reader experiences the horror with him; it is akin to a
narrative told by a victim of posttraumatic stress who rediscovers an immutable past that he
cannot let go of. And the reader is taken along with him both visually and psychologically.
The sequence of images and scenes concludes with the arrival of other witnesses. Hendricks
completes the story within a story by leaving the house and the images behind him, walking
home and along the way seeing Kenyon Clutters collie with its tail between its legs, didnt
bark or move. This image jolts him out of the dazed shock that has prevented himup until
that momentfrom comprehending the full horror of the situation on an emotional level, but
being too dazed, too numb, to feel the full viciousness of it.36 This paragraph provides
closure to Hendrickss testimony and this piece of the story:
After a bit, the house began to fill up. Ambulances arrived, and the coroner, and the Methodist minister, a
police photographer, state troopers, fellows from the radio and the newspaper. Oh, a bunch. Most of them
had been called out of church, and acted as though they were still there. Very quiet. Whispery. It was like
nobody could believe it. A state trooper asked me did I have any official business there, and said if not, then
Id better leave. I started walking home, and on the way, about half way down the lane, I saw Kenyons
old collie and that dog was scared. Stood there with its tail between its legs, didnt bark or move. And seeing
the dogsomehow that made me feel again. Id been too dazed, too numb, to feel the viciousness of it. The
suffering. The horror. They were dead. A whole family. Gentle, kindly people, people I knewmurdered.
You had to believe it, because it was really true.37

Capote steps out of the way and allows other voices to speak; he frames this testimony,
assembling the pieces. This composition is a meticulous assembly of edited scenes and images
connected with understated authorial summary, and presented in a rhythm that captures and
holds the attention of the reader. Capote is masterful as interviewer and investigator,
extracting the material and unearthing images and scenes and emotion from his subjects; his is
a telling presented in large measure through unmediated voices edited into story.
Proper use of these skills can be very powerful in legal storytelling. Effective advocates, in
building their arguments, use different voices to tell strategic narratives, and they do so at all

stages from trial to appeal to postconviction relief. Here, for example, is a scene created by
composition of transcripts and testimony from a well-crafted, effective, and successful death
penalty brief.
The legal issue presented in Atkins v. Virginia38 is whether executing a mentally retarded
adult violates the Eight Amendments prohibition of cruel and unusual punishment. The core
of the theoretical argument is simple: a mentally retarded defendant is inherently
disadvantaged in litigation, and his condition makes it inherently difficult to participate
effectively in his own defense. Especially when there are multiple codefendants, it is more
likely that the mentally retarded defendant will be convicted of a capital offense and sentenced
to death, because he is the least able to protect his own interests and will likely become the
fall guy in the litigation, regardless of his actual role in the killing. The defendants condition
makes it difficult for him to effectively tell his story. This allows another version of events to
be privileged over his less-coherent story. Moreover, his mental retardation prevents him from
possessing the requisite culpability to be sentenced to death and it is therefore cruel and
unusual punishment to sentence him to die.
This legal argument is built on an effective story: Daryl Atkins clearly participated in the
crime that resulted in the killing of an innocent victim. The question is about Atkinss role in
the killing. A second codefendant, the clever and more capable twenty-six-year-old William
Jones, escaped the death penalty by testifying against the eighteen-year-old and mentally
retarded Atkins, who was convicted of capital murder and sentenced to death.
The brief presents testimonial excerpts as dialogue to illustrate how the mentally retarded
defendant is disadvantaged in litigation. The defense attorney presents the story like a radio
play, carefully editing testimonial excerpts and arranging them dialogically39 to reenact
selected portions of the trial proceedings.
The first section of the Statement of the Case, subtitled The Evidence Concerning the
Crime, locates the crime itself in the backstorythe narrative time before the presentation of
evidence. The first paragraph only briefly references the robbery and murder of the victim,
Eric Nesbitt, in a summary: He was robbed of the money in his wallet, driven in his own truck
to an ATM and required to withdraw more money, then driven eighteen miles to York County,
where he was shot eight times and killed with a semi-automatic handgun.40 Although the
brief does not minimize the horrific circumstances of the crime, it does not indicate who does
the shooting or depict the precise circumstances of the killing. After the body is discovered, a
videotape from the ATM transactions reveals Nesbitt sitting between two African American
men, later identified as William Jones and Daryl Atkins.
The scene then shifts to the investigation and trial, and it is here that the story begins. It is
told primarily through the competing first-person voices of Atkins and Jones. The reader is
presented with selected excerpts from their testimony, and is invited to weigh the testimony
and assess Atkinss ability to assist in his capital defense, despite his apparent mental
retardation. The shrewder Jones seems far more capable of directing the outcome of the
proceedings by casting blame and responsibility on codefendant Atkins.
The initial paragraphs provide more summary of the investigation and proceedings prior to
Atkinss trial: Atkins gives a statement the day of his arrest identifying Jones as the
triggerman.41 Jones, however, does not give a statement, playing his legal cards more

carefully.42 Both are indicted for capital murder, but in Virginia, only the triggerman could
be convicted.43 A year later Jones tells the authorities that he took part in the robbery and
abduction but blame(s) Atkins for the shooting.44 Jones pleads guilty to first degree murder,
a plea that made him ineligible for the death penaltywith a requirement that he testify
against Atkins.45 The scene then shifts to the guilt phase of Atkinss trial. The scene is
initially presented from Joness point of view: Jones and Atkins spend the day drinking,
smoking marijuana, and watching television.46 They go to a convenience store for beer and
then to a liquor store; running low on money, Atkins panhandles.
Here, the two stories of Jones and Atkins diverge. Their voices are transposed into a
purposeful sequence, which enables the reader to assess these two characters in relationship to
one another. For example, first Jones asserts that Atkins had a gun in his belt.47 Then Atkins
speaks and the reader is immediately struck by Atkinss voice; he sounds like Lenny in John
Steinbecks Of Mice and Men: Me and William Jones was on the side of the 7-Eleven and we
planning to rob somebody. And William Jones had the gun.48
On the other hand, Joness sentences are clear, his grammar is correct, but there seems to
be a self-serving calculation and rehearsed manipulation to his responses. In Joness version
of the story, Atkins is the dominant actor and initiator, while Jones is subservient and
submissive. For example, when Jones is close enough to hear what is occurring, the robbery is
already well under way; and as Jones gets into the car, he realizes at that point that he is
involved in a robbery.49
In contrast to Jones, Atkinss syntax is convoluted and ungrammatical. His speech draws
attention to itself and he confuses the events of the story. It seems apparent that he is unable to
present the events in a straight, linear, and self-serving way. Nevertheless, Atkinss version is
filled with vivid details, sharp imagistic fragments that seem authentic and arrest the readers
attention. Atkinss voice foregrounds the mental retardation that limits his abilities and,
implicitly, proscribes his culpability.
The Statement of the Case walks a careful tightrope of language. The writer is careful not
to appear; there is minimal authorial intrusion on the dialogue, and no judgments are made
about what is being said. Strategically, the brief cannot present the competing stories in such a
way that the reader speculates about why Atkinss version wasnt believed at trial. The reader
should not feel manipulated or made suspicious or critical by the form of the presentation. Nor
should the reader be invited to challenge implicit assertions about Atkinss character and
abilities (e.g., whether Atkins is, indeed, so mentally retarded that his condition prevents him
from forming the mental state required for the conviction of capital murder).
Like Capote in In Cold Blood, the author gets out of the way and lets the characters speak in
their own words. The author carefully selects and places the quotes, building scenes into
purposeful sequences. There is no commentary on these testimonial excerpts, no shifts of
perspective or movements inside the consciousness or thoughts of the speaker (as there were,
for example, in both Donovans and Spences closing arguments).
The Statement of the Case presents two competing versions of the initial armed robbery
and the drive to the bank where the murder victim Eric Nesbitt is forced to withdraw another
$200 from an ATM. The roles of Jones and Atkins are reversed in the two tellings, as to who is

the dominant initiator and who is the passive accomplice.50 The two versions of the murder
itself are presented dialogically, alternating the perspectives of Jones and Atkins.
The author presents Joness version of the killing in an active voice with short,
grammatically correct sentences that are readily understood by the reader: Mr. Atkins got
out. He directed Mr. Nesbitt out. Atkins still had the gun. As soon as Mr. Nesbitt stepped out
of the vehicle and probably took two steps, the shooting started.51 In Joness version, Jones
even visualizes himself as Nesbitts protector: Jones goes around the back of the truck,
aiming to get the gun away from Mr. Atkins, to stop him from killing Mr. Nesbitt.52
Joness telling seems rehearsed, pat. Jones avoids assuming any major role in the killing,
depicting himself as an unwitting accomplice.
Atkinss ungrammatical and less coherent version seems more authentic and persuasive.
Here, for example, is an illustrative paragraph from the petitioners brief, presenting Atkinss
version of the same events:
Atkins version was that Jones stopped the truck and told me to get out, me and Eric Nesbitt to switch
places. He never said why. So I handhe told me to hand him the gun. I hand him the gun. I got out first.
Eric Nesbitt got out behind me. I got back in. Eric Nesbitt got back in. William Jones still had the gun. He
put it in a holster that he had on his belt, a black nylon holster. Then he drove up the street a little more. And
then I noticed it was like a fork in the road. So then he stopped and backed up, and then he backed up,
parked the car, and he opened up the door. He told Eric Nesbitt to get out. Eric Nesbitt got out. Atkins
was in the truck, in the middle. As Eric Nesbitt was getting out William Jones got out, too. So by the time
Eric Nesbitt got out the vehicle, William Jones was there. He had come around the back of the truck. He
Eric Nesbitt bend [sic] over and William Jones told him to get up. And he didnt get up. And then the
shooting started. Jones did the shooting. Atkins was still in the truck. There were a lot of shots. After they
started, Atkins leg was hurting, so I reached down to look at my leg. Then I didnt hear no more shots.
And then William Jones got inside the drivershe came back around, got inside the drivers and took off.
Atkins asked Jones why Jones had shot him, and Jones tried to figure out how he shot Atkins. Atkins asked
Jones to take him to the hospital [b]ecause my leg was hurting. Atkins also asked [Jones] where did he
shoot him [Nesbitt] at. He said he shot him in the body.53

From this excerpt of the brief, it appears that Atkins is speaking for himself exclusively, with
unmediated language and quotations from the transcripts. But this presentation is a composite
of edited testimony, of paraphrase, and of alteration between scene and summary: it shifts
perspectives, creates a rhythm, and builds scenes into a purposeful sequence. When depicting
the murder itself, the writer slows the pace of the telling into a stretch, reconstructing the
murder by splicing together and editing transcript into montage. Although the jury apparently
disbelieved the veracity of Atkinss testimony, and convicted him of capital murder, the
reader is invited to revisit the story, assessing Atkinss abilities to participate effectively in
his own defense. The telling is a composition designed to make Atkins appear confused but
truthful; it is perhaps as artful, although less dramatic and more understated, than the excerpts
from Capotes In Cold Blood. This is a clear example of how skillful use of scenes, rhythm,
stretches, and detail can subtly lead the reader to view the events and characters in a way that
supports the writers intended result.

VI. Perspective or Point of View

A final important topic closely related to understanding voice and the specific qualities of
various voices is perspective or point of view. The novelist and writing teacher John Gardner
observes that, in contemporary writing one may do anything one pleases with point of view,
as long as it works.54 But what, exactly, is perspective or point of view? And how does it
work? How do perspectives affect legal storytelling and argumentation?
Perhaps the simplest and clearest understanding of perspective or point of view may be
derived from watching movies. Perspective may be conceptualized and understood simply as:
(1) where the cameras and microphones are placed to record the action, (2) who the story
centers on (typically, most films track the movements of the protagonist), and (3) the stance of
the moviemaker in relationship to the subject matter and theme of the story and the characters
within it.
These concerns are equally important to legal storytellers. For example, in the closing
arguments of Spence and Donovan, it is the perspective or point of view that determines the
appropriate voice for the speaker. Gerry Spence assumes an omniscient third-person
perspective sympathetic to the protagonist Karen Silkwood; he stands outside the events and
follows her actions, commenting in a godlike and often judgmental way on her activities. He
observes from a distance Silkwoods heroic and melodramatic battle against the troublethe
assembled forces of antagonism aligned in opposition to her, as she attempts to protect the
innocents in the community. Silkwood is in an epic battle against The Beast, Kerr-McGee, and
its many evil minions.
In Donovans tragicomic Failla storytelling, Donovan assumes a different and more
intimate voice embodied within a closer and more limited perspective. Donovans voice and
perspective is cast in a limited third person, more tightly and subjectively aligned with the
movements and thoughts of his defendant-protagonist, Louis Failla. From this perspective,
Donovan repeatedly slips directly into the mind of Louie Failla, revealing Faillas thought
processes, assuming a first-person perspective.
It is helpful to identify alternative perspectives or points of view that are typically
employed by both legal and nonlegal storytellers, including: (1) the first-person, (2) the thirdperson subjective, (3) the third-person objective, (4) the authorial omniscient, and (5) the
essayist omniscient.55
The first-person perspective provides, perhaps, the most natural voice, in that it enables the
writer to write as she actually thinks or talks, and to write simply and directly about how she
perceives the world. It provides the most direct form of connection between speaker and
reader; it allows for direct expression of the speakers thoughts. Examples of first-person
narrators in the modern novel include, of course, the strong voices and unique interior
perspectives of Huckleberry Finn or Holden Caulfield. The perspective of the narrative is
fixed within the speaker; the reader perceives what the narrator perceives, and the story moves
with the narrators movements; the cameras lens and the recording microphones are located
within the narrator. As we have already observed in the storytelling of Jeremiah Donovan in
the Failla closing argument (employing edited transcripts) and in the excerpts from the
audiotapes employing the recorded voice of Karen Silkwood (returned from the dead) in
Spences closing argument, the careful use of the first-person voice is an especially powerful
tool in legal argumentation. In many effective briefs, including in the Statement of the Case

of Atkins, selective use and incorporation of first-person voices and first-person stories within
stories is a powerful tool of narrative persuasion.
The second often-adopted narrative perspective is the third-person subjective, a point of
view in which all the Is are changed to hes or shes and emphasis is placed on the
characters thoughts.56 The objective here is to indirectly embody or convey the
consciousness of a clearly identified actor, often the protagonist in the story: this point of
view (style in a sense) goes for deep consciousness, in the hope that the thoughts and feelings
of the character will become the immediate (unmediated) thoughts and feelings of the
reader.57 Gardner notes, however, that this perspective also has severe limitations. For
example, it locks the reader inside the characters mind, however limited that mind might be,
so that when the characters judgments are mistaken or inadequate, the readers more correct
judgments must come from a cool withdrawal.58
This perspective clearly has utility in different types of legal arguments, and lawyers
selectively employ it to explain and capture the consciousness of a central character. For
example, Spence shifts strategically from an omniscient third-person narration into a more
limited and subjective third-person voice to convey Silkwoods motivations and show how she
overcame her own fears and self-interest through courageous action on behalf of the innocent
workers at the plant. Likewise, Donovans narrative shift into a sly, darkly comical, and ironic
third-person perspective reveals intimately the complex psychological intentionality that
undergirds Louie Faillas inaction, and his seeming complicity in the plot to murder Tito
Morales. Louie attempts to preserve the appearance of his loyalty to the Patriarca family and,
simultaneously, his loyalty to his real family as well; he cleverly deceives the Patriarca
family, deceives his real family, and, perhaps, deceives himself too. Only at the end of his
two-hour performance does Donovan shift from a limited third-person into a first-person
narration, directly voicing Faillas unexpressed thoughts by translating them into a
clearheaded, internal, first-person monologue.
The third perspective that Gardner identifies is the third-person objective, which is
identical to the third-person subjective except that the narrator not only never comments
himself but also refrains from entering any characters mind. The result is an ice-cold
cameras eye recording. We see events, hear dialogue, observe the setting, and make guesses
about what the characters are thinking.59 An example of this limited third-person perspective
is in the portions of the Riggins brief cited previously in this chapter, where the reader sits as
if a spectator in the jury box observing the image of the zombie-like defendant Riggins. The
reader never enters the mind and thoughts of the defendant, who has been incapacitated by the
forced ingestion of the drug Mellaril. Likewise, in the initial excerpt from Ellroys My Dark
Places, the voice shifts from a first-person perspective (and a rarely employed and
compellingly intimate second-person voice that speaks directly to his dead mother) to a cold
cameras eye third-person objective recording of the events, including the discovery of the
corpse of his mother. This shift of perspective from the intimacy of the first-person voice to a
cold and limited third-person objective detectives voice is striking and initially disconcerting.
It is a dramatic movement emphasized with the framing devices of headings and subheadings
structurally akin to a technique that skilled writers of legal briefs also employ. In all of these
illustrations, the aesthetic relationship between voice and perspective is apparent and

functionally correct for effective storytelling. The choice of perspective implicates the voice
and, in turn, the voice controls and suggests the appropriate perspective. Although perspective
and voice are fused into one, these are two discrete and complementary stylistic components
of the story.

VII. Several Functions of Perspective: How Does Perspective (Point of View)

Work, and What Work Does It Do?
David Lodge observes that the choice of the point(s) of view from which the story is told is
arguably the most important single decision that the [storyteller] has to make, for it
fundamentally affects the way readers will respond, emotionally and morally to the story.60
Is this so? How does perspective shape or control the narrative? What are the functions and
limitations of various perspectives or points of view?

A. Perspective Controls the Flow of Information

The choice of perspective shapes and predetermines the narrative logic of the story. It is akin
to the way the rules of evidence in a courtroom regulate storytelling practice, by
predetermining what information comes in and how it may be presented in relationship to and
connected with other evidence presented at trial. That is, perspective affects the narrative logic
of the story.
For example, an omniscient third-person narrator can reveal information that no person in
the story possibly knowsevents that occur outside the presence of any individual who might
serve as a first-person narrator or beyond the scope of the third-person limited observer. Thus,
an omniscient narrator in the excerpt from Norman Mailers Executioners Song dips into Max
Jensens consciousness and delicately reveals the meaning of the gas station attendants smile.
This is so because an omniscient narrator can describe the thoughts and feelings of everyone
in the tale, and can provide insights about an individuals character that the individual may
lack the capacity to express. An omniscient narrator can also generalize about the meaning and
implications of various events and connect these events to other events or to theory. For
example, in the legal argument section of the petitioners brief in Atkins, the voice shifts from
a limited to an omniscient third-person perspective, revisiting the story told initially in the
Statement of the Case; this enables the narrator to generalize about the abilities of mentally
retarded individuals to participate effectively in their own defense. The argument describes
several cases where an innocent defendants mental retardation resulted in his wrongful
conviction.61 Likewise, an omniscient Gerry Spence looks into the future and previsions the
cancer that will befall the young workingmen continuing at Kerr-McGee, fulfilling the dark
prophecy of Karen Silkwood. His omniscient perspective enables him to articulate the
historical significance of this trial and to call on the jurys heroism to prevent the Cimarron
Syndrome, stopping the Beast Kerr-McGee and its voracious appetite for profits and prophets.
Spence even previsions that the jurists can change the course of history through their heroic
intervention.

The strength of the omniscient perspective is not only to expand upon and explain; it can
equally summarize, compact, edit, reconfigure, and reorganize information in a purposeful
way that a first-person or third-person limited narrator can seldom do. For example, it can
convey the most content in the fewest words. An omniscient narrator can move in a godlike
way that ranges freely across time. For example, Spence moves over time and across space,
from the origins of the law of strict liability in England to the popular culture events of the
present day in a greedy and corrupt post-Watergate America, and on into a cinematic dreamlike vision prefiguring a dark future that will emerge unless the jury can heroically intervene.
Neither a first-person nor a limited third-person narrator could make these leaps in time, for
the rules of perspective wed these types of narrators to events in a way that compels a
different type of systematic unfolding.
On the other hand, the use of a first-person narrator or a third-person limited narrator
allows the writer to withhold information or delay its disclosure strategically. This allows for
creating the suspense or tension crucial to the construction and propulsion of detective
mysteries (which are typically told from first-person or third-person limited perspectives).

B. Perspectives Can Suggest Outcome and Endow the Reader with

Responsibility for Determining Meanings
Different perspectives endow the reader with different levels of responsibility for making
sense of the events of the story andperhaps of more importance in legal storytellingfor
deriving the point of the story; the audience becomes responsible for determining what the
outcome of the story should and will be. Especially since law stories are unfinished stories,
with an active decision maker charged with writing the ending of the tale, the choice of
perspective implicitly entails different roles or responsibilities for the listener or reader in
determining the ending of the story and for imposing meaning upon it.
Specifically, an omniscient narrator who speaks with the authority of God can be quite
explicit in telling the reader or listener what happened and what to make of the events that
occurred and in specifying the desired outcome or judgment. At other times, an omniscient
narrator can strongly direct the readers moral response to a scene and the characters within it
by selecting and depicting details and ordering the presentation of information. For example,
Mailer observes Gilmores angry asides as he pulls the trigger of the automatic leveled against
Jensens head. This ones for me, Gilmore says, and then again, this ones for Nicole.
Likewise, instead of generalizing about the helpless and vulnerable attendant, Mailer observes
that the attendant is still trying to smile as Gilmore orders him to the floor. That is, Mailer
carefully selects and tightly arranges details from an omniscient perspective in such a way as
to evoke a specific emotional response in the reader, one that creates no sympathy for
Gilmore. Mailers depiction of the crime is similar to the narrative strategy of many
prosecutors; it is designed to viscerally and powerfully reenact the horror of the crime and to
point the reader toward a particular ending: one in which Gilmore deservingly faces
conviction and the death penalty.
A possible disadvantage of employing an omniscient voice is that it is often too strongly

directive. It may disempower listeners-readers and deprive the audience of the excitement and
stimulus necessary to figure out what is going on, determine how to interpret events, and, in
legal stories, decide how to write the ending that provides closure to the tale. Employing an
omniscient perspective may also unintentionally evoke reader or listener skepticism or create
unintended effects. Consequently, for example, in his closing argument on behalf of Karen
Silkwood, Gerry Spence seems intuitively conscious of the potential for being perceived as
overly directive and manipulative. Thus, he shifts from his omniscient perspective,
emphasizing that his vision of the future is his own personal dream of what the future will
look like if the heroic jury fails to intervene on behalf of Silkwood.
In contrast, first-person and third-person limited narrators typically appear to provide the
empirical data from which readers or listeners can determine for themselves the meaning of
events and conclude whether X is true or Y is the point. For example, in a story told by a thirdperson limited narrator (e.g., in portions of Ellroys My Dark Places or in defendant Rigginss
brief) the reader is compelled to make sense of and construct the story from the limited and
restricted viewpoint (perspective) of the narrator.
The first-person perspective also typically allows the teller to introduce additional evidence
and personal information that might otherwise appear extraneous. The reader or listener is
thus encouraged to develop a closer personal relationship with the storyteller and is
empowered to sort through this information as a collaborator with the narrator. This allows the
reader to better understand why the information is included in the story.
Here, for example, is the opening narrative hook from Frank McCourts memoir, Angelas
Ashes.62 An intimate voice speaks from the narrators point of view directly to the reader. The
prose has an immediacy; the richness of evocative details fits the style and resonates with
readers; there is a deep emotional attachment between the writer and his material, as pervasive
in the prose as the Irish sadness that soaks the images like seawater. McCourt begins:
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 allwe were wet.63

McCourts 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 Louies dilemma.
Also similar is Truman Capotes 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 arent 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, isnt the characteristic response of law professors, Who cares what you believe
Mr./Ms.? Isnt 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 petitioners
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 petitioners brief in [Terry] Williams v. Taylor64 argues that
defendants trial counsel provided ineffective assistance in failing to investigate and present
evidence of defendants childhood environment. As a result of the failure to introduce relevant
mitigation evidence at sentencing, defendant Terry Williams was sentenced to death. Initially,
the petitioners brief speaks of this omitted evidence abstractly, of Williamss 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 Williamss 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 defendants family home many years earlier, and who was charged with protecting
the children on behalf of the state. The social workers report of the conditions of Williamss
family home is framed in a double-indented block quotation. The social workers testimonial
account vividly captures the quality of Terry Williamss 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 workers 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 petitioners 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 defendants counsel was ineffective because he failed to introduce mitigation
evidence based on defendants 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 Readers or Listeners 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 Mailers 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
Gilmores actions harshly, and reach the determination that Gilmore has acted brutally and
coldheartedly.
Gary Gilmore in Executioners Song appears gradually as a more deeply layered and
nuanced character as Mailer incorporates directly Gilmores first-person letters and
observations, and shifts perspectives. For example, Gilmore introspectively seeks to
understand the horror of his actions, acknowledging both societys 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 Utahs death row:
Recently, it has begun to make a little sense. I owe a debt, from a long time ago. Im on the verge of
knowing something very personal, something about myself. Something that somehow wasnt completed and
made me different. Something I owe. I guess. Wish I knew.

Once you asked me if I was the devil, remember? Im 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 cant
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 thats 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 aint corny, but Id like to stand in the sight of God. To know that Im just and right and
clean.70

Likewise, Donovan brings jurors directly inside Faillas thoughts through a first-person
perspective supplemented with an extended commentary on Faillas words. In this stretch,
Donovan employs Louies first-person voice and slows down the action to incorporate
additional narration from a limited third-person perspective. Donovan makes jurors feel
Louies predicament, as if they exist inside Louies skin. Similarly, the use of a close thirdperson 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 Rigginss 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 narrators experience of the world in the narrators own terms, giving
readers a sense that they understand the narrators 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 characters 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 prosecutors 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, its 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 judges 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 theyre burying bodies in a garage. It spills out when people put guns to the back of peoples 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 Donovans compelling narrative closing argument employing firstperson 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 Donovans storytelling and,
specifically, Donovans use of the first-person perspective to step inside Faillas 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. Donovans 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 thats [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.
Thats 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 thats not the evidence, and you
know thats not the evidence. Thats 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 Mailers artistic depiction of the murder of Max
Jensen by Gary Gilmore. Likewise, there is none of the prosecutors 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 admonished that there is no
choice but to share the prosecutors 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 prosecutors 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 Leventhals 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.
With agitated, outstretched hands, Leventhal asked the jury: Why? Why should this defendant lie in wait
for an unsuspecting and innocent victim? A man, I will prove to you, he didnt even personally know. Why
would he lie in wait with evil in his heart?
Leventhal answered the question:
Because he was hired to do it. He was paid to do it. Hes an assassin. A paid assassin. An executioner. A hit
man. For who? Who would hire this man, this defendant to murder in cold blood an innocent victim in the
presence of his own daughter? Who could have such strong feelings towards Daniel Malakov that they
would hire an assassin to end his life? Who?
Leventhal walked toward the defense table and again lifted his arm and pointedthis time at Borokhova
[the codefendant]. Her, Leventhal said, his voice rising to its highest pitch. The defendant Mazoltuv
Borokhova, Daniel Malakovs estranged wife. The woman with whom he had been engaged in an ongoing
and heated, contentious, acrimonious divorce for years.78

It is the prosecutors use of an omniscient perspective that dictates the way in which the jury
will respond emotionally and morally to the characters. The listeners moral outrage at the
actions of the defendant is a result of the prosecutors use of perspective.

D. Perspective Directly Affects the Readers or Listeners Perception of

Events, Determining Whether the Reader or Listener Believes the
Storytellers Depiction of What Truly Happened

The prosecutor in a contest of competing stories (in trial, on appeal, or in a postconviction

brief) strategically employs an omniscient perspective affirming an apparent and undisputable
objective truth. Often the story is told in an unembellished just the facts, maam, no
nonsense rhythm and style: the narrator employs short and straightforward declarative
sentences. This clarity is to be equated with candor and absence of narrative manipulation.
Prosecutors typically tell their stories in straightforward and linear past-tense constructions.
Often the details and specifics are muted, as if the voice does not need to prove itself to the
reader or call attention to itself, and the details are distractions that might be misread.
This strategy often works best in legal storytellingjust as it does in nonlegal storytelling
when the omniscient narrator comes across as well informed, unbiased, and trustworthy;
this alone will tend to make his version of the story believable. A measured tone, together with
the absence of any discrepancy between the narrators version of events and whatever
information is available from independent sources about those events, will invest the story
with believability. Conversely, if an omniscient narrator comes across as unreliable at all, it
completely destabilizes the entire reality of the telling. The reader or listener is left not
knowing what to believe. Especially in the context of litigation, if the omniscient narrator is
unreliable the reader or listener will usually believe the converse of what the narrator says. In
legal storytelling, the use of an omniscient narrator implies the storyteller can always be
trusted to tell an absolute truth. Furthermore, the use of an omniscient narrator in legal
storytelling also implies that there is a single and absolute objective truth that can be readily
captured and depicted in the narrative; it need not be unpacked and discovered by the listener
or reader.
If a first-person or a third-person limited narrator comes across as reliable, however, the
story gains the type of truth that comes from an eyewitness account. The world is perceived in
subjective pieces and then assembled from these pieces. If, on the other hand, a first-person
narrator or a third-person limited narrator appears unreliable, there are two possible effects.
First, the reader or listener may believe that all the events are misrepresented and the truth is
best ascertained by detecting the distortions that result from the narrators deceitful
motivations or judgmental impairments. Thus, for example, in the Atkins brief, once the reader
determines that the prosecutions witness Jones is an unreliable narrator who has cast the
blame on Atkins to avoid the possibility of a death penalty, the reader reinterprets the seeming
coherence of Joness version of the story and Atkinss role within it.
Second, the reader or listener may believe that the same motivations or judgmental
impairments affect the behavior of the first-person narrator (or third-person limited narrator)
as an actor within the story. Thus, for example, the unreliability of Jones as narrator not only
affects his credibility but also transforms him into a villain within the story and causes the
reader to reinterpret the events of the story with Atkins recast as the victim of Joness villainy.

VIII. Concluding Observations

I began this chapter with an anecdote about grading law school examinations, explaining how
style and voice are profoundly important in determining outcomes on these examinations.
Specifically, like most law professors, I look for writing that is clearheaded, grammatically

precise, and aggressively purposeful. The A students voice is careful, meticulous, and
constrained. Beneath it there is an understated confidence and authority, indeed, often a
borderline arrogance and analytical certainty, mimetic of the judicial voices excerpted in the
law school casebooks. The successful law student internalizes certain repetitive and
preconfigured analytical forms to display doctrinal knowledge. The student learns how to
analyze, synthesize, and analogize cases, and is able to apply doctrinal analysis to the facts
within these tightly prescribed and highly organized analytical structures. The successful law
student does not immerse herself in the facts to tell a persuasive story; instead, she employs
facts as floating factoids to display doctrinal knowledge. Stories are subservient to legal
analysis, colonized by analytical structure. This mode of presentation, important to law school
success, rightfully becomes part of the successful practitioners tool kit.
Unfortunately, to create problems that permit law students to develop this structured
analytical precision and lawyers voice, something important is typically sacrificed: the
factsthe multidimensional, complex, ambiguous, and particularistic stories at the heart of
legal problems. The practitioners factually indeterminate world is tipped upside down in law
school, so that the facts do not subsume doctrinal and legal analysis. Similarly, in heavily
edited law school casebooks, complex and ambiguous stories are reduced and transformed into
narratologies that seldom breathe, often have little inner life to them, and are typically merely
excuses for exploring fine gradations and distinctions in doctrinal law.
In law practice, however, outcomes turn on storytelling skills and qualities of different
storytelling voices. Lawyers intuitively develop new stylistic techniques crucial to their roles
as legal storytellers. In this chapter I presented a limited selection from a large menu of
relevant stylistic concerns and techniques that suggest a more expansive tool kit relevant to
legal storytelling practice. I have used examples to illustrate how these techniques are applied
and are relevant in effective legal and literary storytelling. The particular form of legal
storytelling, whether a closing argument at trial or an appellate or postconviction brief, will
present the storyteller with a large number of stylistic choices. These choices are nearly
always determinative of the success of the legal argument and are an important tool of legal
persuasion. In short, it is clear from a look at any effective storytelling that style matters.

7
A Sense of Place
SETTINGS, DESCRIPTIONS, AND ENVIRONMENTS

Beyond the lines of printed words in my books are the settings

in which the books were imagined and without which
the books could not exist. I am a writer absolutely mesmerized
by places; and the settings my characters inhabit
are as crucial as the characters themselves.
JOYCE CAROL OATES, TO INVIGORATE LITERARY
MIND, START MOVING LITERARY FEET

Setting is a powerful vehicle of thematic concerns; in

fact, its one of the most powerful.
JOHN GARDNER, INTERVIEW IN PARIS REVIEW

Description is never just description.

DAVID LODGE, THE ART OF FICTION

I. Introduction
This chapter explores the significance of settings, descriptions, and the creation of complete
environments in storytelling practice. These are closely related aspects of all stories,
instigating the events of the story, compelling the shape of the world in which the events can
happen, and in some circumstances even determining the outcome of the narrative itself.
The events of stories must fit in the worlds (the settings, the descriptions, and the complete
narrative environments) shaped around them and, in turn, these environments are developed
only in tandem with the telling of the tale itself. As we will explore, the settings, descriptions,
and environments that work well in one story (whether legal or nonlegal) will clearly not fit in
another. Indeed, the failure to develop an effective setting and environment can diminish or
destroy the persuasive power of the story.
In many stories the settings, descriptions, and environments are crucial to the theme and
the plot; the setting allows the events of the story to happen. For example, Spielbergs Jaws

could obviously only take place in a summer beachfront community on the ocean where
innocent summer bathers are naively enjoying the water unaware of the shark lurking beneath.
Likewise, Foremans allegorical High Noon fits the Western frontier town where order has yet
to be imposed upon anarchy and justice is still meted out in a violent story-ending gun battle
between the clearly marked forces of good and evil. The story fits the place or setting and the
settings, in turn, suggest or create a complete narrative environment where the story can
unfold.
But it is more complex than this: the settings, descriptions, or narrative environments are
not merely containers shaped to fit the plots of the stories told within them. Settings and
environments are developed and are often strategically affirmed or shaped throughout the
story in tandem with the development of the narrative. Think, for example, of the images of
the train tracks coming out of the distance that signal the arrival of Frank Miller in High Noon,
or of the ticking of the clocks as Millers arrival looms more immediate, or of the desperate
marshal pacing relentlessly from place to place in his chaotic search for assistance from the
townspeople who refuse to aid him in the battle to preserve their community. This imagery,
these places and settings, embody the themes of the story and alert the viewer subtly to the
complex and allegorical nature of the plot. In contrast, think of Jaws. The settings and shots
are technically more elaborate and meticulously constructed, providing complex scenery for
the shark attacks on the swimmers and the ultimate and prolonged final battle sequence
between the three nautical heroes and the shark. The settings in Jaws are stages on which the
action takes place, conveying to the viewer that all that matters is what is depicted on the
screen; the viewer does not have to go any deeper to comprehend the meaning of this story.
The viewer is thus encouraged to enjoy the movie. The settings and environment in Jaws
provide a simple cartoon realism that integrates with and affirms the theme of this movie. The
ending in Jaws is an appropriately shallow restorative ending; the town returns to exactly what
it once was: a place where innocent swimmers guiltlessly enjoy the pleasures of a summer day
in the waters off the Amity Island beach.
Thus setting or environment is developed and operates in tandem with the other narrative
components of the story; the setting is aligned with the way in which this particular world
works. The same is true in legal storytelling practices; the settings, descriptions, and
environments are constructed to fit the story and, simultaneously, to suggest or create the type
of world in which the events of this particular story can take place. Further, the type of world
that fits one type of story will not typically fit another type of story.
This chapter analyzes discrete settings and environments depicted in creative nonfiction
and fiction. The literary examples are provided by: (1) one paragraph from a Joan Didion
essay about the Manson murders and Los Angeles in the summer of 1969; (2) a section from a
travel story by the writer W. G. Sebald in which the narrator travels from Europe to America
retracing the path of the journey taken by members of his family; and (3) an excerpt from a
real-life crime story told by Kathryn Harrison about a boy who murders his mother, father, and
younger sister. The legal examples include the depiction of settings and environments in a
judicial opinion, two briefs from coerced confession cases, and the brief from a death penalty
case. The chapter illustrates how some of the same techniques and concepts relevant to the
development of settings in literature are applicable to effective brief writing and legal
storytelling practice.

The various techniques employed in these illustrations and in practice are so numerous and
diverse and so susceptible to invention that I will not attempt to describe or catalog them all.
Briefly, they include strategic choices of: (1) whether to include or omit particular categories
and groupings of things (physical objects, states of mind) and specific items in each category;
(2) the level of detail and the kind of detailing selected; (3) the description of settings and
what perspective to use in descriptions; (4) vocabulary, sentence structure, and paragraph
structure; and (5) what information will be conveyed in direct statements versus through
implication or presupposition. This is merely a general inventory of techniques that are best
presented and understood in context of specific illustrations from nonlegal and legal
storytelling practice.

II. Dangerous Territory: Contrasting Settings Evoking Danger and Instability in

Joan Didions The White Album and the Judicial Opinion in a Rape Case
We put Lay Lady Lay on the record player, and
Suzanne. We went down to Melrose Avenue to see the
Flying Burritos. There was a jasmine vine grown over the
verandah of the big house on Franklin Avenue, and in the
evenings the smell of jasmine came in through all the open
doors and windows. I made bouillabaisse for people who
did not eat meat. I imagined that my own life was simple
and sweet, and sometimes it was, but there were odd
things going on around town. There were rumors. There
were stories. Everything was unmentionable but nothing
was unimaginable. This mystical flirtation with the idea
of sinthis sense that it was possible to go too far, and
that many people were doing itwas very much with us
in Los Angeles in 1968 and 1969. A demented and seductive
vortical tension was building in the community. The
jitters were setting in. I recall a time when the dogs barked
every night and the moon was always full. On August 9,
1969, I was sitting in the shallow end of my sister-in-laws
swimming pool in Beverly Hills when she received a phone
call from a friend who had just heard about the murders
at Sharon Tate Polanskis house on Cielo Drive. The phone
rang many times during the next hour. These early reports
were garbled and contradictory. One caller would say
hoods, the next would say chains. There were twenty dead,
no, twelve, ten, eighteen. Black masses were imagined, and
bad trips blamed. I remember all of the days misinformation
very clearly, and I also remember this, and wish I did
not. I remember that no one was surprised.1

Joan Didions essay The White Album, in her collection of essays with the same title, is
partially a retelling of the story of the aftermath of the Manson cult murders in Los Angeles in
the summer of 1969. It is also a story about the times in which these killings occurred,
depicting a strange and unfamiliar environment, a setting in which these horrific and random
acts were somehow predictable even if not logically understandable. To make her story work
and to enable the reader to better understand the tabloid-like and horrific murders committed
by the Manson cult gang, Didion must evoke, if not re-create, this unstable and dangerous
world and draw the reader into it. Didion must make the familiar strange, bringing the
physical environment or setting to life to embody qualities that somehow almost invite the
characters horrific actions. That is, the setting calls forth the plot.
The paragraph excerpted above is written in a highly subjective first-person voice that may,
initially, seem far removed from the style of the legal storytellers, but there are many lessons
that legal storytellers might learn from it. In the paragraph, Didion begins to construct the
cultural environment in which the Manson murders take place. The initial sentences select
details to convey the crucial sense of time and place. These are not visual details or a
composition built on a meticulous and complete description; rather they are a quick
composition of sensate fragments lyrically or poetically presented: sounds, tastes, and smells.
In contrast to the eye (a more critical and judgmental faculty), hearing and smell are less
critical and more associative functions.
The specific references are to popular music of the day; this music is crucial to the theme
of the story. The Manson story is about a multiple murder based upon Mansons delusional
misinterpretation of prophecy contained in the lyrics of the Beatles song Helter Skelter on
The White Album.2 Didion selects her representative musical selections carefully; Bob Dylans
Lay Lady Lay3 and Leonard Cohens Suzanne4 are disconcerting because they are
romantic and intimate songs, distinct from the horrific nature of the multiple cold-blooded
murders at the heart of the story. Likewise, Didion identifies the smell of jasmine that enters
through all the open doors and windows, conveying a mixture of sensuality and openness.
Didion locates herself as a character who imagines that her own life is both simple and
sweet. The counterpoint to this simplicity is an interior setting of psychic dislocation and
disjunctions. There are rumors and stories. And there is a mystical flirtation with the
idea of sinthis sense that it was possible to go too far, and that many people were doing
it. The personal tone manifests aspects of a darker collective psyche: A demented and
seductive vortical dimension was building in the community. The jitters were setting in. The
interior observations color the exterior landscape as if in anticipation of what is coming: The
dogs barked every night and the moon was always full.
Here, midparagraph, Didion shifts from describing the surfaces to intimations of dark
future events that will occur; these are echoes or reverberations from events that have already
taken place elsewhere in the city. These events bounce off of, or resonate from, the settings
depicted earlier in the paragraph, setting up the story that will follow. First, Didion watches
herself sitting passively, vulnerable, in the shallow end of my sister-in-laws swimming pool
in Beverly Hills when the phone call comes in about the murders at Sharon Tate Polanskis
house on Cielo Drive. More dark fragments surface in the descriptions and leak out into the
world. One caller says, hoods, the next chains. One says, twenty dead, no, twelve, ten,

eighteen. There are speculations on motives: [b]lack masses were imagined, and bad trips
blamed. There is, however, one psychological constant about the violent events that have
taken place on this strangely configured and unfamiliar landscapethat no one was
surprised.
What is it that lawyers may learn from reading a description or depiction of setting so
personal and idiosyncratic as Didions? Didions poetic techniques seem far removed from the
functional descriptions of settings that lawyers tend to employ. That is, rather than building up
the world slowly and completely, Didion lights up the scene by lightning flashes.5
Didion depicts her narrative landscape or environment through a composite of sometimes
abrupt and unexpected sensate fragments from her personal recollections. This technique
draws her reader onto a shared stage, an internal landscape or setting where the reader can
more fully experience, rather than comprehend intellectually, the events taking place. This
isnt a strategy that is typically attempted by lawyers in legal storytelling. Or is it?
Lets contrast Didions first-person composite of sensate fragments evoking a dangerous
landscape with the depiction of dangerous settings in legal storytelling practice. The judicial
opinions excerpted in the casebook in my criminal law course provide a laboratory filled with
these places, though these settings and environments are seldom intentionally foregrounded or
depicted with Didions artistic flare.
In Rusk v. State,6 defendant Edward Salvatore Rusk successfully appealed from his trial
court conviction for rape to the Maryland Court of Special Appeals. The court determined that
there was insufficient evidence in the trial record to uphold Rusks conviction for rape. The
majority opinion turns on the legal issue of whether Rusks words or actions created in the
mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that
faced with such resistance, he would have used force to overcome it.7 The majoritys version
of the story emphasizes ambiguous evidence about whether Rusk used force or threat of force
sufficient to compel the victim to have sex with him.8
The dissenting opinion critiques the majoritys story and presents a retelling of its own,
reframing events against a different background. In this second telling, a sequence of
dangerous places directly influences the plots unfolding. Here is an excerpt from the
dissenting opinion:
Upon this basis, the evidence against appellant must be considered. Judge Thompson recounts most, but not
quite all, of the victims story. The victim Ill call her Pat attended a high school reunion. She had arranged
to meet her girlfriend Terry there. The reunion was over at 9:00, and Terry asked Pat to accompany her to
Fells Point. Pat had gone to Fells Point with Terry on a few prior occasions, explaining in court: Ive never
met anybody (there) Ive gone out with. I met people in general, talking in conversation, most of the time
people that Terry knew, not that I have gone down there, and met people as dates. She agreed to go, but
first called her mother, who was babysitting with Pats two-year old son, to tell her that she was going with
Terry to Fells Point, and that she would not be home late. It was just after 9:00 when Pat and Terry, in their
separate cars, left for Fells Point, alone.
They went to a place called Helens and had one drink. They stayed an hour or so and then walked down
to another place (where they had another drink), stayed about a half hour there, and went to a third place. Up
to this point, Pat conversed only with Terry, and did not strike up any other acquaintanceships. Pat and Terry
were standing against a wall when appellant came over and said hello to Terry, who was conversing with
someone else at the time. Appellant then began to talk with Pat. They were both separated, they both had
young children; and they spoke about those things. Pat said that she had been ready to leave when appellant
came on the scene, and that she only talked with him for five or ten minutes. It was then about midnight. Pat

had to get up with her baby in the morning and did not want to stay out late.
Terry wasnt ready to leave. As Pat was preparing to go, appellant asked if she would drop him off on her
way home. She agreed because she thought he was a friend of Terrys. She told him, however, as they
walked to her car, Im just giving a ride home, you know, as a friend, not anything to be, you know,
thought of other than a ride. He agreed to that condition.

Pat was completely unfamiliar with appellants neighborhood. She had no idea where she
was. When she pulled up to where appellant said he lived, she put the car in park, but left the
engine running. She said to appellant, Well, here, you know, you are home. Appellant then
asked Pat to come up with him and she refused. He persisted in his request, as did she in her
refusal. She told him that even if she wanted to come up, she dared not do so. She was
separated and it might cause marital problems for her. Finally, he reached over, turned off the
ignition, took her keys, got out of the car, came around to her side, opened the door, and said
to her, Now, will you come up?
It was at this point that Pat followed appellant to his apartment, and it is at this point that
the majority of this Court begins to substitute its judgment for that of the trial court and jury.
We know nothing about Pat and appellant. We dont know how big they are, what they look
like, what their life experiences have been. We dont know if appellant is larger or smaller
than she, stronger or weaker. We dont know what the inflection was in his voice as he dangled
her car keys in front of her. We cant tell whether this was in a jocular vein or a truly
threatening one. We have no idea what his mannerisms were. The trial judge and the jury
could discern some of these things, of course, because they could observe the two people in
court and could listen to what they said and how they said it. But all we know is that, between
midnight and 1:00 a. m., in a neighborhood that was strange to Pat, appellant took her car
keys, demanded that she accompany him, and most assuredly implied that unless she did so, at
the very least, she might be stranded.
Now, let us interrupt the tale for a minute and consider the situation. Pat did not honk the
horn; she did not scream; she did not try to run away. Why, she was asked. I was scared. I
didnt think at the time what to do. Later, on cross-examination:
At that point, because I was scared, because he had my car keys. I didnt know what to do. I was someplace
I didnt even know where I was. It was in the city. I didnt know whether to run. I really didnt think, at that
point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million
things I could have done. I was scared, at that point, and I didnt do any of them.

What, counsel asked, was she afraid of? Him, she replied. What was she scared that he
was going to do? Rape me, but I didnt say that. It was the way he looked at me, and said,
Come on up, come on up; and when he took the keys, I knew that was wrong. I just didnt
say, are you going to rape me.
So Pat accompanied appellant to his apartment. As Judge Thompson points out, appellant
left her in his apartment for a few minutes. Although there was evidence of a telephone in the
room, Pat said that, at the time, she didnt notice one. When appellant returned, he turned off
the light and sat on the bed. Pat was in a chair. She testified: I asked him if I could leave, that
I wanted to go home, and I didnt want to come up. I said, Now, I came up. Can I go?
Appellant, who, of course, still had her keys, said that he wanted her to stay. He told her to get

on the bed with him, and, in fact, took her arms and pulled her on to the bed. He then started to
undress her; he removed her blouse and bra and unzipped her pants. At his direction, she
removed his clothes. She then said:
I was still begging him to please let, you know, let me leave. I said, you can get a lot of other girls down
there, for what you want, and he just kept saying, no; and then I was really scared, because I cant
describe, you know, what was said. It was more the look in his eyes; and I said, at that point I didnt know
what to say; and I said, If I do what you want, will you let me go without killing me? Because I didnt
know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my
throat, and started lightly to choke me; and I said, If I do what you want, will you let me go? And he said,
yes, and at that time, I proceeded to do what he wanted me to.

He made me perform oral sex, and then sexual intercourse. Following that:
I asked him if I could leave now, and he said, Yes; and I got up and got dressed; and he got up and got
dressed; and he walked me to my car, and asked if he could see me again; and I said, Yes; and he asked
me for my telephone number; and I said, No, Ill see you down Fells Point sometime, just so I could
leave.9

If the settings and the environment are so important in this sequence of scenes (first, at the
bar; second, in the parked car outside Rusks apartment; third, inside the apartment), why
doesnt the dissent further emphasize the victims vulnerability and fear by foregrounding the
scene with vivid, descriptive details, akin to Didions narrative strategy? These details are
available in the trial record of the victims testimony and, indeed, this testimony is cited in
footnotes annotating the story. There are reasons for the selective use and frequent
underinclusion of descriptive detail in depicting settings and environments in many legal
stories, especially the stories told by appellate judges.
First, the conventions of judicial storytelling practice impose constraints on how appellate
judges tell stories: judges seldom employ language (akin to Didions) that intentionally directs
the readers attention to the artistic and narrative dimensions of their craft. Appellate judges
typically profess that their decisions are limited to review of the legalnot factualclaims.
Second, legal decision making assigns causal significance and responsibility to the free will
of individual actors; characters shape events into plots. Many law stories discount the
significance of settings and environments external to the various actors, especially judicial
stories about the guilt or innocence of actors and the punishments visited upon them.
Nevertheless, in a nicely understated way, the dissents critique of the majoritys story
suggests how the victim, Pat, was affected by her surroundings (the setting or environment)
and how defendant Rusk took advantage of these circumstances to compel Pats submission.
In the selection and ordering of scenes, the dissent conveys a shadowy environment. It begins
in the appropriately named Fells Point, a falling-off point where Pat meets Rusk in the bar.
The dissents narrative then cuts to the dark and unfamiliar neighborhood where Rusk pulls
the keys from the ignition of Pats car. Finally, the narrative turns to the bedroom of Rusks
apartment. The bare-bones setting matches the intentional gaps in the physical and
psychological depictions of Rusk and Pat. The powerful rhetorical message of the dissents
narrative is centered not on what the majority opinion said but rather what it omitted from its

retelling of events; these gaps in the narrative cannot be filled in accurately from the cold
record of the trialonly the jury, who evaluated the credibility of the witnesses, weighed the
evidence, and pieced together the fragments of the narrative, could begin to find and put into
place the missing elements of the story.

III. More Dangerous Places Where Bad Things Happen: Use of Physical
Descriptions and Factual Details to Create Complex Environments in W. G.
Sebalds The Emigrants and the Petitioners Briefs in Two Coerced Confession
Cases
W. G. Sebald writes stories grounded in places and settings; his environments predominate
and shape events, narrative outcomes, and the fates of characters within. Sebald travels in his
books, vividly evoking places and settings. He supplements his descriptions with visual
evidence, including photographs and sketches, pictures of family and relevant historical
figures, and depictions of artifacts that document the authenticity and legitimacy of his
observations and of his stories. He makes the images, settings, and the characters who inhabit
these places come vividly alive in the mind of the reader. The foregrounding of setting and
place invites digressions into personal memory and collective history. Setting is always the
starting point and ending place for the story; Sebalds art is a meditation on place.
In The Emigrants, for example, Sebald retraces the paths of four emigrants, whose stories
are embedded in the landscapes or settings mapped by their journeys. Sebald reconstructs
these characters stories through presentation of place; these environments are as alive as the
characters who inhabit them.
For example, in one of the four narratives, Sebald retraces the picaresque journey of
Sebalds great-uncle Ambrose, a manservant, whose emigrant journey terminates in a
sanatorium in upstate New York where Ambrose is treated for depression with a regimen of
electroshock therapy.
Initially, this setting is depicted through the perceptions of a character named Dr.
Abramsky, now retired. Many years earlier, Abramsky treated Uncle Ambrose as an assistant
to a Dr. Fahnstock, who was the previous director of the sanatorium. Fahnstock, like Uncle
Ambrose, is now long dead and the sanatorium is no longer operating. Ambrose had entered
the sanatorium voluntarily and submitted to electroshock therapy to treat his depression. There
are two interlocking descriptions of this setting and the practices of electroshock therapy
within this institution. In the first, the practices at the sanatorium are described somewhat
abstractly by the old doctor, Abramsky.
It was also remarkable how readily Ambrose submitted to shock treatment which, in the early Fifties, as I
understood only later, really came close to torture and martyrdom. Other patients often had to be
frogmarched to the treatment room, said Dr. Abramsky, but Ambrose would always be sitting on the stool
outside the door at the appointed hour, leaning his head against the wall, eyes closed, waiting for what was
in store for him.
In response to my request, Dr. Abramsky described shock treatment in greater detail. At the start of my
career in psychiatry, he said, I was of the opinion that electrotherapy was a humane and effective form of
treatment. As students we had been taughtand Fahnstock, in his stories about clinical practice, had

repeatedly described in graphic termshow in the old days, when pseudo-epileptic fits were induced by
insulin, patients would be convulsed for minutes, seemingly on the point of death, their faces contorted and
blue. Compared with this approach, the introduction of electro-shock treatment, which could be dispensed
with greater precision and stopped immediately if the patients reaction was extreme, constituted a
considerable step forward. In our view it seemed completely legitimate once sedatives and muscle relaxants
began to be used in the early Fifties, to avoid the worst of the incidental injuries, such as dislocated shoulders
or jaws, broken teeth, or other fractures. Given these broad improvements in shock therapy, Fahnstock,
dismissing my (alas) none too forceful objections with his characteristic lordliness, adopted what was known
as the block method, a course of treatment advocated by the German psychiatrist Braunmhl, which not
infrequently involved more than a hundred electric shocks at intervals of only a very few days. This would
have been about six months before Ambrose joined us. Needless to say, when treatment was so frequent,
there could be no question of proper documentation or assessment of the therapy; and that was what
happened with your great-uncle too. Besides, said Dr. Abramsky, all of the material on filethe case
histories and the medical records Dr. Fahnstock kept on a regular basis, albeit in a distinctly cursory fashion
have probably long since been eaten by the mice. They took over the madhouse when it was closed and
have been multiplying without cease ever since; at all events, on nights when there is no wind blowing I can
hear a constant scurrying and rustling in the dried-out shell of the building, and at times, when a full moon
rises beyond the trees, I imagine I can hear the pathetic song of a thousand tiny upraised throats. Nowadays I
place all my hope in the mice, and in the woodworm and deathwatch beetles. The sanatorium is creaking,
and in places already caving in, and sooner or later they will bring about its collapse.10

What is there for the legal storyteller to see in Sebalds initial description of shock treatments
and depiction of the setting of the sanatorium in upstate New York? These two paragraphs
introduce the reader to the use of electroshock at the sanatorium. Abramskys description is
presented as a clinical abstraction. There is little physical detail in the initial description of the
room, the practice itself, or the machinery employed in electroshock therapy.
Sebald uses the description as a set piece; it is not a complete scene or sequence of scenes
in which the characters are actors in control of the actions on a stage. For example, there is
only a single sentence about an individual character or identified actor: Abramsky recalls
Uncle Ambrose as distinct from the other patients who had to be frogmarched into the room.
Unlike other patients, Uncle Ambrose would always be sitting on the stool outside the door at
the appointed hour, leaning his head against the wall, eyes closed, waiting for what was in
store for him. After this vivid evocation of Ambrose, Sebald, through Abramskys point of
view, describes the practice itself.
Despite the level of generality, the description is very powerful because of the selection and
arrangement of a few observational details. Sebald, through Abramsky, contrasts what he then
considered the humane practice of electroshock with still more primitive practices. In the
various offhand observations by Abramsky the reader understands that the practice that Uncle
Ambrose was subjected to was anything but humane. Abramsky further observes that,
especially where the shock treatments were so frequent, there was the necessity of proper
documentation and assessment. He reconnects the observations about past practices to the
disrepair of the building and its current occupants: the case histories and medical records have
probably long since been eaten by the mice. Finally, there is a powerful evocation of the
dried-out shell of the building that is creaking, and in places already caving in, overrun by
the scurrying mice that will eventually bring about its collapse. And on nights when a full
moon rises beyond the trees, Abramsky imagines hearing the pathetic song of a thousand
tiny upraised throats. These voices may belong to the mice who have overrun the building or
are, perhaps, echoes of the desperate cries from the throats of the long-ago patients, including

Uncle Ambrose.
Sebalds initial description of the setting and environment is compelling in part because of
the details omitted. What is left outand therefore left to the imagination of the readeris
more important than what is put in. This is not simply a parade of horribles. There is
purposeful yet subtle use of indirection and ambiguity in the description.
Two pages later, Sebald revisits the same place with Abramsky. This time Abramsky
describes Uncle Ambrose as a more fully developed character in the scene. Abramsky recalls
Uncle Ambrose receiving shock treatment from the villainous Fahnstock on the day that Uncle
Ambrose died:
It was almost evening. Dr. Abramsky led me back through the arboretum to the drive. He was holding the
white goose wing, and from time to time pointed the way ahead with it. Towards the end, he said as we
walked, your great-uncle suffered progressive paralysis of the joints and limbs, probably caused by the
shock therapy. After a while he had the greatest difficulty with everyday tasks. He took almost the whole day
to get dressed. Simply to fasten his cufflinks and his bow tie took him hours. And he was hardly finished
dressing but it was time to undress again. What was more, he was having constant trouble with his eyesight,
and suffered from bad headaches, and so he often wore a green eyeshadelike someone who works in a
gambling saloon. When I went to see him in his room on the last day of his life, because he had failed to
appear for treatment for the first time, he was standing at the window, wearing the eyeshade, gazing out at
the marshlands beyond the park. Oddly, he had put on armlets made of some satin-like material, such as he
might have worn when he used to polish the silver. When I asked why he had not appeared at the appointed
time, he replied (I remember his words exactly): It must have slipped my mind whilst I was waiting for the
butterfly man. After he had made this enigmatic remark, Ambrose accompanied me without delay, down to
the treatment room where Fahnstock was waiting, and submitted to all the preparations without the least
resistance, as he always did. I see him lying before me, said Dr. Abramsky, the electrodes on his temples, the
rubber bit between his teeth, buckled into the canvas wraps that were riveted to the treatment table like a man
shrouded for burial at sea. The session proceeded without incident. Fahnstocks prognosis was distinctly
optimistic. But I could see from Ambroses face that he was now destroyed, all but a vestige of him. When
he came round from the anesthetic, his eyes, which were now strangely glassy and fixed, clouded over, and
a sigh that I can hear to this day rose from his breast. An orderly took him back to his room, and when I
went there early the following morning, troubled by my conscience, I found him lying on his bed, in patentleather boots, wearing full uniform, so to speak. Dr. Abramsky walked the rest of the way beside me in
silence. Nor did he say a word in farewell, but described a gentle arc with the goose wing in the darkening
air.11

What might the legal storyteller make of this paragraph? Let us walk through the paragraph,
focus on the settings and descriptions in this scene, and observe how this paragraph fits with
the previous excerpt depicting this place. First, observe that Abramsky is holding a white
goose wing: a prop that Sebald employs to signal to the reader the beginning and ending of the
brief scene, and to direct the readers attention. Next, as Abramsky recalls the shock treatment
practices at the sanatorium, he revives Uncle Ambrose vividly with description and brings him
onstage. Again, the scene does not focus on describing the practice of electroshock therapy
directly; instead, the reader, from Abramskys perspective, watches the sympathetic and
dignified Ambrose dressing after receiving shock therapy. The description becomes visually
specific here, as if a cinematic camera lens stops to focus in a close-up on a description of
Ambrose: He took almost the whole day to get dressed. Simply to fasten his cufflinks and his
bow tie took him hours. Observations about Ambroses physical symptoms from the shock
therapy, including bad headaches and deteriorating eyesight, are translated from abstractions
into vivid visual images that interact with Ambroses old world meticulous nature. The reader

witnesses Uncle Ambrose, the displaced emigrant, a former manservant to European royalty,
standing at the window, wearing a green eyeshade, gazing out across the marshland. It is
difficult for the reader not to empathize with the character displaced in this setting and grasp
his longing, his nostalgia for an eternal return; the setting matches the theme of the book itself
the emigrant severed from his past and adrift in a new world.
Ambrose then makes his enigmatic remark about waiting for the butterfly man and the
scene shifts as Ambrose accompanies Abramsky to the treatment room. Fanhnstock, who is
not described, but presented merely as a name, awaits Ambroses arrival. The preparations for
the electroshock are then described in clinical terms but also with a poetical description at the
end of the sentence, from Abramskys perspective or point of view: the electrodes on his
temples, the rubber bit between his teeth, buckled into the canvas wraps that were riveted to
the treatment table like a man shrouded for burial at sea.
The procedure itself is not described. Here too, the emotional power of the scene, and the
readers response to the brutality of the regimen of electroshock therapy, are captured by the
description of Ambrose after the events are over. What is left out of the description is as
important as what is put in it. And then the scene cuts to the next day, when Abramsky goes to
the room and describes Ambrose. The aftereffects of the electroshock practice, its
reverberations, are captured in the way Abramsky is affected by having to recall and describe
Ambroses last days, even so many years later. Sebald closes off the scene employing the prop
introduced at its start, describing Abramsky defining a gentle arc with the goose wing in the
darkening air.
Akin to Sebalds depiction of place and the practice of elctroshock therapy at a sanitarium
in upstate New York, petitioners briefs in coerced confession cases often focus on the places
where bad things happen and the practices that occur within them. Like the story about Uncle
Ambrose, these cases are generally set in dark environments where nefarious practices
occurred long ago, often followed by complex official cover stories. It is up to the legal
storyteller to piece together what actually occurred or, in some cases, to determine that what
happened can never be known.
In some briefs, the environment is reconstructed through the accretion of descriptive detail.
For example, in the petitioners brief in Reck v. Ragen,12 the depiction of the circumstances of
the petitioners forced confession in the Statement of Facts stretches over thirty pages, and
the time frame extends long before and after the actual custodial interrogation. Here are
several pages from this not atypical coerced confession story:
By Friday evening, the four boys had become the focus of a major police effort. A big show-up was
underway. A big crowd of people (a hundred or more) congregated in the [North Avenue Police]
Station. Reck [the defendant] was being exhibited on the second floor. Shortly after 7:00 P.M. Reck fainted.
Unidentified persons assisted Reck to a bench. Reck was placed on a stretcher on the second floor and
carried downstairs. By 7:20 P. M. Reck was on his way to the Cook County Hospital in the customary
district patrol wagon.
At 7:45 P.M. Reck was brought into the receiving room of County Hospital in a wheel chair. The police
officers who delivered Reck told the interne on duty that Reck had experienced an attack and felt kind of
dizzy and had suffered one or two fainting spells. The interne examined Reck and found no marks or
bruises on his body. He then concluded that Reck was not fit for the hospital and rejected him.
Reck was taken directly back to the North Avenue Police Station arriving there at 8:15 P.M. He was
placed on exhibition in a show-up. Quite a number of police officers were in the room, together with the

latest batch of civilian viewers.

After a short period, Reck became sick and Officer Reilly took him out of the show-up room and into an
unfurnished handball court in the rear of the Stations second floor.
Reilly said that he did not want to have [Reck] annoyed and thus Reilly did not care to show him up to
anybody because he was feeling careful of [Recks] feelings. Therefore, Reilly saw to it that the
civilians were kept out of the room. Reilly said he wanted Reck to rest.
But Emil Reck got no rest. Almost immediately, Sergeant Andrew Aitken, assigned to the Peacock murder
investigation, entered the handball court. With him were Sergeant Patrick McShane and Patrolman Timothy
Donovan. Besides Reck and the three police officers, no one else was in the room, nor did anyone else enter
for some minutes.
Aitken and the other officers stayed with Reck rather uninterruptedly, almost constantly for the next
half-hour. After 15 minutes, Reck was standing near a bench which had been placed in an otherwise bare
handball court for the purpose of letting Reck rest on it. According to Sergeant Aitken, he then asked Reck
the following question: Emil, have you seen any motion pictures or read any magazines relative to
ballistics? That is the reason why you disposed of your revolver for fear it may be traced back to the Doctor
Peacock murder? Aitkens version of what happened then is as follows:
With that he sat down and slumped on the bench and became very pale. And I said, Are you sick? A
few moments later he answered, I am sick. I says, What is wrong? He says, I got some blood sickness
while in the C. C. Camp.
When Reck slumped to the bench, he doubled up forward from the waist.
A Dr. Abraham was called into the handball court. When Dr. Abraham entered the handball court, Reck
was extremely nervous. Reck was also exposed. His pants were undone. His shirt was unbuttoned and
hanging outside of his pants. He was rubbing his abdomen. Dr. Abraham didnt know why Reck was
exposed, and no one told him. Reck told the doctor that he had a pain, pointing to his abdomen. Dr.
Abraham examined Reck for 30 to 60 seconds.
After Dr. Abrahams 60-second check-up, Reck lay down on the bench. But the police who were present
throughout did not allow Reck to rest. When still more people entered the room to question Reck, he was
told to get on his feet, and the color went away from him again. After a while, civilians were brought into
the handball court to identify Reck. He was told to get up from the bench when anyone walked in.
By 9:15 P.M. civilians were again being excluded from the handball court. Although there were about
fifty other people who were anxious to see Reck at this time, Reilly was keeping all of them out of the
room. One such person got the impression that he was being given a run around when, after he pushed
through the crowd, the police told him that Reck was injured. They told me he was hurt. Between 9:30
and 9:45 P.M. Reck became ill for the fourth time in three hours. He bent over and said he felt sick to his
stomach and vomited on the floor. He was bleeding from the mouth, in short gushes of blood. The
blood seemed to come out of the corner of his mouth. He bled for two or three minutes. Officer Youhn
was present. Officer Larke was also present but was never called to testify despite Recks testimony of being
beaten at this time. Aitken was or was not present, depending upon whether one believes his testimony at the
trial or his testimony at the post-conviction hearing.
Dr. Abraham was called to examine Reck again. When Dr. Abraham entered the handball court, he saw
Reck lying on a stretcher. Nearby was a pool of Recks blood on the floor. The blood was a bright red. It
covered an area a foot square. But Dr. Abraham did not even give Reck a 60-second examination this
time.
Minutes later, at about 9:45 P.M., Reck was carried on a stretcher from the handball court to a waiting
patrol wagon. Captain OConnell gave orders to return Reck to the hospital as fast as possible. At this time,
according to the official Police Department History of Sick or Injured Person, Emil Reck had been sick for
three hours and was unable to walk without aid. He had been in police custody for 59 hours.13

The petitioners brief in Reck tells a story that can only occur in a particular type of world.
Like Sebald, the petitioner merely purports to describe, depicting an environment fitting the
actions taking place within it and the characters inhabiting it. Unlike Sebald, and perhaps more
akin to the dissenting judge in Rusk, the petitioner depicts a flat and bare world. In accord with
the conventions of legal storytelling, the settings are not fully developed, implicitly
discounting the importance of environmental factors in determining outcomes. Furthermore,

the story of Recks journey is not freestanding; it serves as a complement to the legal
argument. Nevertheless, the petitioners functional and not atypical brief reflects
compositional choices about constructing his environment in re-creating his dark journey
(based on the record). Lets briefly revisit some of these choices:
1. Sentences and Settings. Recks story turns on the narrative inevitability of his confession.
Consequently, there is logic and linearity in Recks world. Reck is transported down an
approximately thirty-page conveyor belt; it is an exhausting journey for Reck and, perhaps, for
the reader as well. Unlike Sebald, who revisits Ambroses treatments in a sequence of
interlocking descriptive pieces, the petitioner provides a single elongated and chronological
re-creation of his journey.
Recks story is told in short sentences, mostly employing simple subject-verb-object
structure, avoiding complex subordinate clauses. Reck is a passive characteran automaton
or object without a clear physical description. Whenever Reck is acted upon, passive words are
used. (For example: Reck was being exhibited, Reck was placed on a stretcher, [Reck]
was placed on exhibition in a show-up). Whenever possible, sentences knit together direct
quotations from the trial record. The paragraphs are equally short and compressed. The
sentences and paragraphs are stacked neatly, one atop the next, depicting a linear and strictly
chronological sequence of events. The structure and sequence of language match the setting;
they are rigid and confining.
2. Description and Detailing. Like Sebald, the petitioner captures the readers attention and
establishes Recks world with carefully chosen descriptive details. These details are arranged
to emphasize Recks dislocation, passivity, and deteriorating physical condition. Unlike
Sebalds description, the adjectives and adverbs convey exclusively visual impressions, rather
than other sensory impressions (smell, taste, or sounds). And there is the intentional selection
of particularly disconcerting and tough-sounding words that further distance the reader from
Recks travails.
For example, the excerpt begins with the big show-up under way and a big crowd at the
police station where Reck is being exhibited like an animal at the circus. Reck is in constant
motion, transported from place to place; at the center of the excerpt is the recurring image of
the bare bench that offers Reck the possibility of rest. There are the vivid images of Recks
deteriorating physical condition (e.g., bleeding from the mouth, in short gushes of blood; the
blood was a bright red and covering an area a foot square). These descriptive images
stand out against the bleak and surreal setting.
3. Perspective. Sebald subtly shifts the perspective in shaping Uncle Ambroses
environment: he shifts from the perspective of the narrator to that of Dr. Abramsky to a
vantage point embracing the perspective of Uncle Ambrose himself; he then backs away. The
perspective in the petitioners brief in Reck, however, is fixed; it is a close or limited thirdperson perspective that tracks Recks journey.
The environment in Recks story is well tailored to fit the theme; it is not, primarily, about
the brutality of villainous police actors. Instead, it focuses on how Emil Reck got no rest on
his long journey. The crucial prop in the setting is the bare wooden bench that suggests an
invitation or a promise of rest. But despite his progressively deteriorating condition, Reck is

not permitted to rest. This not so subtle psychological coercion has as much to do with the
narrative outcome as does the implied suspicion of physical abuse by the three police officers
on the handball court. When Reck is finally permitted to rest, it is on a stretcher, as he is being
rushed from the handball court back to the hospital. At this time, the brief observes, he has
been in police custody for fifty-nine hours.
Contrast the thirty-page description of Recks journey with the brief in another forced
confession case, the famous U.S. Supreme Court case Miranda v. Arizona.14 The Statement
of the Case in petitioner Ernesto Mirandas successful brief initially presents a story that is
bland and generic: Miranda, accused of rape and robbery, is taken into custody where he is
identified in a lineup. The arresting officers do not inform him that anything he says will be
used against him, nor do they tell him of his right to consult an attorney.
Then the brief makes an interesting strategic move; it does not attempt to describe
Mirandas environment. The description of what happened to Miranda is omitted altogether.
Miranda simply disappears into a place repeatedly referred to in the brief as Interrogation
Room 2. When Miranda emerges, the police have his written confession in hand. The
confession is admitted into evidence over Mirandas objection and he is convicted of the
charges against him. The gap in the factswhat happens to Miranda when he disappears
becomes the focus of the legal argument that follows.
Here is the opening paragraph of Mirandas argument:
When Miranda walked out of Interrogation Room Number 2 on March 13, 1963, his life for all practical
purposes was over. Whatever happened later was inevitable; the die had been cast in that room at the time.
There was no duress, no brutality. Yet when Miranda finished his conversation with Officers Cooley and
Young, only the ceremonies of the law remained; in any realistic sense, his case was done. We have here the
clearest possible example of Justice Douglas observation, what takes place in the secret confines of the
police station may be more critical than what takes place at the trial.15

What is going on here? The brief calls the readers attention to what is not there rather than
what is. Akin, in some ways, to Didions attempt to suggest an ineffable quality of Los
Angeles in the time of Manson, the Miranda brief is equally poetical in its language, inviting
the reader to fill in what is left undescribed. The reader is compelled to speculate on what
occurred in Interrogation Room 2. The legal argument is not just about precedent and stare
decisis; it evokes more literary themes. It shows that what goes unseen may have devastating
and far-reaching consequences that can never be erased, controlled, altered, or corrected. It is
about the power of the forces of fate, chance, and secrecy. In the language of the petitioners
brief, once the die had been cast, whatever happened later was inevitable; when Miranda
walked out of Interrogation Room Number 2 his life for all practical purposes was over.
In both literary and legal storytelling, the setting itself dictates how the audience interprets
the story. Whether the place is left shrouded in mystery, as in Mirandas brief, or is developed
through the accretion of carefully selected physical details, as in Recks brief, the strategic
choice of place as depicted implicates or determines the outcome of the story.

IV. Settings and Environment as Villains and Villainy in the Mitigation Stories

of Kathryn Harrisons While They Slept and the Petitioners Brief in Eddings
v. Oklahoma
In some stories, the forces of opposition aligned against the protagonist are part of an
environment that shapes the behavior of the characters. The setting matches the story, suggests
crucial themes, and develops as the story progresses. For example, in Gerry Spences Silkwood
argument the depictions of rural and innocent townspeople and the invading big city corporate
outlaws are set on the mythic and bucolic western landscape. There are intimations of
plutonium from the Kerr-McGee plants fuel rods escaping into the environment and
poisoning it; the greedy big city interlopers despoil the land and contaminate the rural and
innocent young workers with cancer. In Donovans argument on behalf of Louie Failla there is
a different type of environment. Mobsters compete over valuable suburban Connecticut turf in
the 1990s, when new laws legalizing gambling made the land invaluable to competing factions
of the Patriarca crime family. But what makes the environment of the story immediately
recognizable to the jury, and Donovans narrative persuasive, is not its literal landscape. It is
how Donovan locates the telling within the context of popular and familiar mob stories. Some
of these are old school mob stories about tenderhearted tough guys, about mob dolls and
outlaws willing to sacrifice themselves to preserve their families.16 These environments are
wedded to more contemporary narrative environments, filled with double-talking wise guys
and popular cultural references of the day that could have been borrowed from David Mamet17
and Quentin Tarantino.18
In some legal stories, the setting or environment also shapes the narrative. In other stories,
the setting and environment is itself the force of antagonism or villainy that initiates the plot
and ultimately determines the narrative outcome. In postconviction relief practice and death
penalty work, we find mitigation stories, where the defendants claim is based on his
childhood environment or some later traumatic events in his life story.
Here are several illustrations of stories told primarily about place; the theme of the story is
typically about the power of the environment and how it overwhelms or directs the will of the
protagonist. The first is taken from Kathryn Harrisons real-life crime story While They
Slept.19 In this story, Billy Frank Gilley murdered his two sleeping parents. When he was
surprised by his younger sister, he murdered her too. In the book, Harrison acts as a crime
investigator, retelling the mitigation story, focusing on the physical and psychological abuse
suffered by Billy and his surviving sister Jody at the hands of their parents. The evil of the
environment depicted by Harrison is pervasive, and envelops the young Billy so that
seemingly there is no way out for him, other than retreating into fantasy and then striking back
at his parents violently. How does Harrison tell this story to evoke sympathy for Billy and
transform environment into a villain? She moves from place to place. The first stop on Billys
dark journey is the barn of the house on Ross Lane in Medford, Oregon. In these paragraphs,
the violence escalates as Billy is abused physically by his father, Bill, and psychologically by
his mother, Linda:
Whether or not Bill drank surreptitiously in the barn, the structures relative privacy and its distance from the
house made it an ideal place for him to beat his son. The house on Dyer Road [where the family lived
previously] was small, sometimes claustrophobic, but on Ross Lane Linda could make her decision that a

punishment was required from inside the house while Bill carried it out remotely, allowing Linda to blind
herself to the viciousness of what Bill could claim she demanded. This wasnt an original means of enabling
cruelty, of course. Few despots bear witness to the tortures by which they maintain control, and even though
what Jody would later call atrocities were those of a single troubled family rather than a corrupt social
order, it was a college course on literature of the Holocaust that gave Jody the language she needed to speak
about what her parents had done to her and her brother, abuse that went beyond corporal punishment and
that she believes was meant to break their spirits and cripple them emotionally so that they would never be
able to escape.
In contrast to the incidental cuffs and slaps across the face that both Linda and Bill applied reflexively
whenever their children talked back or annoyed them in some way, a real whipping was, Jody says,
threatened, then announced, and only after a period of intensifying dread, administered. But first came
hours and hours of lecturing, marathon harangues during which Billy rarely spoke. Only once does Jody
remember her brother breaking his silence, by putting his hands over his ears and emitting a long, awful, and
unnerving squeal, like a trapped animal that had abruptly arrived at consciousness to find itself facing
immediate slaughter, a noise that perhaps surprised Billy as much as it did the rest of the family. As Billy
knew, nothing he could say would prevent or lessen what was to come; defending himself might even
provoke an extra lick or two. In the barn, whippings evolved from what they had been inside the house
fifteen to thirty lashes with a leather belt on bared skinto a more formal procedure, for which flogging
seems the more accurate term.
My father whipped me at least once a month, Billy says in his affidavit. I would get a whipping for not
cleaning my room, or for doing my chores wrong, or getting in trouble at school, running in the house, or
forgetting to feed the chickens. He almost always tied my wrists to a wall pole or a tractor tire to keep me
from moving around.
It hadnt taken many beatings for Billy to figure out that a glancing blow did less damage than a direct
one. Earlier punishments, back on Dyer Road, had taught him that if he flinched or writhed inadvertently, the
belt didnt make solid contact when it hit his moving legs or buttocks and hurt him less. With the benefit of
this experience, Billy no longer remained in place, bent over his bed with his pants off. Instead, he tells me,
hed drop to the ground and roll around the way youre supposed to do if your clothes are on fire.
Predictably, this further enraged his father and made him that much more vindictive. When the whippings
were removed to the barn, Bill welcomed this new privacy as an opportunity to tie his son, standing, to a
stationary object, so that he could be sure his target stayed put.
How did he do that? I ask Billy, remembering a conversation with Jody in which she wondered aloud if
her brother submitted to their father meekly, if he offered his wrists to be tied. But Billy misconstrues my
meaning.
With a tree line, he says. You know, the nylon ropes we used for climbing.
No, I mean, did you I leave the question unfinished, feeling that to insist on an answer would be to
participate in a past punishment by reawakening the humiliation of it. Besides, if Billy walked out to the barn
where his father was waiting for him, why wouldnt he stand still when tied? Jodys question, I decide, isnt
literal so much as a mark of her inability to imagine offering her body up for abuse. Her essence remained
unbroken and defended, hidden deep within herself, one of the coping mechanisms that would allow her to
navigate the night of the murders.20

The sense of place Harrison artfully constructs is a place of no escape, just as Recks handball
court is a place of no rest and Mirandas Interrogation Room 2 is a place where the forces of
mystery, chance, and fate intersect dangerously.
First, there is an ominous recognition of one specific place and the focus on what occurs
there. That is, this set piece does not begin with the practices of the villainous and brutal
father but rather focuses on the barn in the Gilleys new house on Ross Lane. The privacy
and distance from the house make it an ideal place for him [Billys father] to beat his son.
There is the meticulous use of selected detail, rather than the layering and accretion of factual
physical detail.
The themes in a mitigation story are typically the inevitability of the events, and the
progression of terror that unfolds in the dark place depicted in the story. Here, the theme is

about constraint on movement and the impossibility of escape (just as we find in the
defendants briefs typically submitted in battered women syndrome, spousal abuse, and selfdefense cases). Harrison moves from the events themselves (and the description of the setting)
to comment on the events, articulating the theme that undergirds and interconnects the pieces
of her story. Just as Miranda uses Justice Douglass comments to shed light on his
predicament, Harrison employs the comments and the perspective of a third person, the
surviving sister Jody, to attempt to understand what is happening to her brother.
As in the depiction of Recks coerced confession or Uncle Ambroses electroshock
treatments, there is a sense of a journey from place to place, rather than merely depictions of a
sequence of brutal beatings. The second paragraph begins with description of the cuffs and
slaps across the face that both Linda and Bill apply reflexively whenever their children talk
back or annoy them. But this is merely prelude; there is the unfolding terror of a real
whipping that awaits. Here, narrative movement slows down. First, Jody observes
abstractedly that, a real whipping is threatened, then announced, and only after a period of
intensifying dread, administered. Harrison provides a vivid image, from Jodys testimony, of
Billy with his hands over his ears squealing like a trapped animal at what is about to occur.
Jody then observes the escalation of the beatings, from fifteen to thirty lashes with a leather
belt inside the house to a more formal procedure, for which flogging seems the more accurate
term.
And then it is time to move inside the barn and to shift perspectives, from Jody back to
Billy, the victim of the beatings. Billy, although less articulate than Jody, describes the
beatings and adds details that makes the descriptions vivid and reconnects to the theme of
constraint on movement and the impossibility of escape. But it is Harrison who is in control of
what happens in this place: she edits the testimony, and shapes the environment to suit her
narrative purposes. Compelling details and images come from Billys own words, but it is
Harrison who chooses to include them where they affirm her narrative theme; they are the
product of Harrisons editing and aesthetic judgment describing Billys experiences.
This detailing serves as a segue, several pages later, to a description of violence in another
place. The narrative strategy is similar to the previous set piece: this segment is constructed
by Harrison with quotes from an affidavit taken by Billys appellate attorney from a tree
surgeon named Henry Linebaugh, who worked with Bill and Billy. The segment is
supplemented with Billys own commentary on Linebaughs observations:
The affidavit describes summer days so hot, Linebaugh said, you couldnt even breathe up on the trees,
with Billy left literally out on a limb, without water, for hours. Linebaughs memory was that he found the
teenage Billy alone and injured on a number of occasions, bleeding enough to require bandaging, with no
first aid kit on the site, no other worker to administer it.
If my dad actually saw whatever it was, Billy says when I ask about his getting hurt, hed sorta sneer
and ask, You dont need a Band-Aid, do you? in this real sarcastic way. Billy leans forward over the table
between us to show me a scar on his wrist. Its from a chain saw, he explains, and he tells me he got it
when working alongside an untrained hire who cut a branch improperly so that it broke and hit the stillrunning saw, which in turn hit Billys wrist. It was bleeding enough to, you know, spurt a little, and the guy,
he says I should maybe go to the hospital for stitches, but my dad takes a look, and, you know, its the same
thing, You dont need to go to the hospital, do you? So I say no. Billy shrugs. I took a break, kept the
hand up over my head for ten minutes, and tied a rag around my wrist. Then it was back to work.
Hot weather was bad enough; winter posed worse dangers. A bully, to use Linebaughs word, Bill
forced his son to climb high into the dense, cold, freezing fog, on limbs that Billy says were iced over, so

I couldnt get even one cleat into it, couldnt get any purchase at all. One very cold day, Linebaugh found
Billy stuck forty feet up in a tree without any protective equipment not even a hard hat his rope
snagged fifteen feet below him, in what was an egregious violation of OSHA guidelines. Linebaugh said
that the sixteen-year-old Billy was terrified in the tree with his knees knocking in the freezing fog where his
hands were blue. He freed the rope and allowed Billy to descend. The rope was badly worn, exhibiting
signs of being cut by chainsaws.
Linebaugh asked Billy where his father was, but Billy, he said, was so cold that he couldnt talk because
his teeth were chattering so fast. When he warmed up enough to say something, he told Linebaugh his dad
had been gone for two or three hours.
Where was he? I ask Billy.
I dunno. Sometimes hed of been inside, having a cup of coffee, gabbing with the client. Or if he was
hungover he might of been parked somewhere, sleeping in the cab of his truck.
Bill seemed to resent and despise his son, Linebaugh said. Bill constantly put down his son as slowwitted and stupid. I remember when Bill would call to Billy and Billy didnt respond [because he hadnt
heard his father over the noise of the chipper], Bill would punch his son in the head and yell, Hey Stupid!
to get his attention. The force in [sic] which Bill hit Billy seemed hard enough to knock him unconscious,
but Billy acted like it was just a normal part of his job. It appeared to me that in his fathers mind it was.
I kept expecting to hear one day that Billy got killed while working for his father, Linebaugh concluded
his affidavit. When I heard that Billy had killed his father, it didnt surprise me at all. I remember thinking it
was self-defense.21

Billy is trapped in another dangerous place. Again, the underlying theme is that Billy cannot
escape the cruelty of his environment; the outcome is all but inevitable. The reader
understands that in this irrational and terrifying environment, Billys own violence is a way
out. The outcome for Billy if he does not act seems as inevitable as what befalls Uncle
Ambrose in The Emigrants after therapy or as what happens to Ernesto Miranda after he leaves
Interrogation Room 2. Although Bill is clearly a villainous character, this is not a simple
melodrama. Billys enemy is an environment that consumes him, terrorizes him; we
understand that he perceives that his only possibility for escape from the terror is parricide.
An environment does not come into existence on its own; it is constructed through a
composition of quotations and descriptions of selected details in an overall composition of
scenes pointing toward a seemingly inevitable narrative outcome. Here is an excerpt from the
petitioners brief in Eddings v. Oklahoma.22 In many ways this is a legal version of the
mitigation story told by Kathryn Harrison about Billy Gilley in While They Slept. In Eddings,
the Oklahoma courts refused to consider Monty Eddingss childhood history in mitigation of
his murder sentence for the shooting death of a police officer who had approached the car in
which the sixteen-year-old Eddings and his fourteen-year-old sister were running away from
home. The narrative strategy in the petitioners brief is akin to Harrisons; Eddings commits
murder while trying to escape from his abusive environment with his sister, whom he is
attempting to protect. Further, the murder committed by Eddings is, in part, a product of his
dark childhood history that the court has refused to consider: a history that may suggest
Eddingss punishment should be mitigated, and he should avoid a death sentence. The excerpt
is from the Statement of the Case in the petitioners brief, presenting a portion of Monty
Eddingss story about his childhood history that the court has refused to consider at
sentencing:
In mitigation, Eddings produced the testimony of four expert witnesses. Stephen Dorn, petitioners Missouri
probation officer, testified that he had met Monty Eddings when Eddings was fourteen and was referred to

the juvenile authorities for four break-ins and for tampering with a motor vehicle. In investigating Eddings
past, Officer Dorn learned that, when Eddings was five years old, his natural parents were divorced. From
the time he was five until he was fourteen, Eddings remained with his mother, Mary Kinney, in Jasper
County, Missouri. During this period, Ms. Kinney used alcohol excessively, and, according to Jasper County
authorities, may have been involved in prostitution. The report which Probation Officer Dorn received from
the Jasper County Juvenile Court was that Monty could pretty muchin their own languagedo his
own thing. He could come and go when he wanted to starting at the age of five. Observing that a
childhood without rules or discipline often leads [to] a chaotic adolescence, Officer Dorn testified that
when Monty Eddings turned fourteen, Ms. Kinney sent him to his natural father, Ronald Eddings, because
she couldnt control the child.
Ronald Eddings proved a marked contrast to Ms. Kinney in his child-rearing methods. Officer Dorn
described him as quite an authoritarian, noting that Monty was always fearful of his father, because his
father tended to overreact; or rather than discuss things with him, would take it out in more physical means
[b]eatings, slapped, that sort. According to Officer Dorn, Eddingss step mother was unable to cope
with the problems of a fourteen year old male child with serious emotional behaviorindeed, her reports
to juvenile authorities on Monty Eddings indicated some sort of schism of thought. In Officer Dorns view,
Monty was very scared, I think, of his home situation with his father. He was very hostile. Monty didnt have
anyone he could turn to and discuss his problems; and I think Monty was holding a lot of these things within
him, and what happened was just a combination of Monty holding everything in and just releasing it all at
one time. Towards the end, he became very hostile and bitter.
Officer Dorn summarized that Monty Eddingss actions derived from a mother who didnt have time for
him in Jasper County a stormy history of divorce; a step-mother up in Camdenton who he finally goes
to live with who has no idea how to raise a child, and who, herself, had problems with children; a father who
didnt have time for anything but doing his job.
Eddingss final witness in mitigation was Dr. Anthony C. Gagliano, a licensed psychiatrist in private
practice in Tulsa, Oklahoma. Dr. Gagliano interviewed Eddings in the Sapula County Jail. He indicated that
Eddings was very upset about [his parents] divorce when he was five, [a]nd he had always maintained
the fantasy that they would remarry. His natural mother instead remarried a policeman from Joplin,
Missouri, when Eddings was seven, and Eddings responded with anger, hatred, rebellion, rejection, loss.
Dr. Gagliano told of one incident when Eddings
wanted to impress his mother or father. I dont know why he did it, but he washed down the walls, and he
thought it would be nice if the walls were clean. And his [step-]father walked in, and I think removed his
shoe and hit him quite severely with his shoe for dirtying the walls.
Dr. Gagliano stated that the incident engendered Anger. Hatred.
Dr. Gagliano diagnosed Eddings as suffering from an antisocial or a dissocial disorder, characterized by
an arrested emotional development at age seven and an inability to display his emotions. He stated that at
the time Officer Crabtree was shot, Eddings acted as a seven year old seeking revenge [against] the
original cause of his anger the Policeman who married his mother, and who stole his mother away.
Eddings disorder could be treated, Dr. Gagliano thought, though the treatment might take many years
fifteen or twenty years of real intensive therapy.23

When we compare this mitigation story and the environments depicted within it with the two
excerpts from While They Slept we find they both employ quotations, witness testimony, and
affidavits. Both provide generalizations about the impact of the environment on the defendant
to crystallize these abstractions. Both shift perspectives strategically, enabling the reader to
understand various aspects of the story.
In Eddingss brief, however, the detailing is not nearly as vivid and there is none of the
movement characteristic of Billy Gilleys dark journey. Stylistically, the simple declarative
sentences depict slices from Monty Eddingss past spliced together with the testimony of
various expert witnesses. There are some assertions about how Eddingss childhood history
affects his conduct, but the incidents supporting these assertions (whether the precise
circumstances of Monty Eddingss childhood or incidents such as when the stepfather hits

Eddings with his shoe) are not as compelling or as dramatic as the accounts of abuse in
Harrisons storytelling.
The differences in Eddingss brief and Harrisons Billy Gilley story can be accounted for in
various ways: they may arise from the material available in the record, the abilities of the
storyteller, different aesthetic conventions of drafting a Statement of the Case in a brief to
the U. S. Supreme Court, or the creation of an environment that is appropriate to the purposes
of the argument, rather than constructing the most powerful and compelling mitigation story
possible.
In Eddings, the narrative is left undercooked or undeveloped. The particular quality of the
environment depicted in Eddings is both intentional and purposeful. The straightforward
presentational style of Eddingss brief, likewise, chooses not to overdramatize the facts.
Eddingss environment is appropriate to this brief and fits the legal purposes of the argument.
Unlike Harrisons narrative, the story is not designed to depict evil or terror. Instead, it takes
slices of Eddingss past from the perspective of two of these witnesses (a policeman and a
psychiatrist). The story is simply designed to meet a lower threshold and to demonstrate that
the evidence of Eddingss past and social history were legitimate mitigating factors that
should have been taken into account in determining Eddingss punishment. The legal
argument in this brief is left to do the heavy lifting and the narrative is made subservient to it,
whereas Harrisons depiction of Billy Gilleys past was designed to persuade the reader that
parricide was all but inevitable and that Billy Gilley took the only possible escape route that
he believed was available to him.

V. Concluding Observations
All stories require a place for the events of the story to unfold. The skillful writer can
determine the way in which the reader or listener interprets and understands the events of the
story through strategic choices about how the setting is developed and described. Some stories
will require the setting to be described in poetically presented sensate fragments, pulling the
reader into the setting. Others will require that the place be only minimally described or not
described at all, purposefully requiring the reader to supplement the setting with his own
imagination or leaving the place a mystery. As we have seen from the legal and nonlegal
examples, setting, place, detail, and environment can be implemented in countless ways. What
is clear is that the legal writer who thinks strategically about how to describe the setting, how
to set the stage, can evoke the power of environments to strongly affect the reader and
possibly determine the storys ending.

8
Narrative Time
A BRIEF EXPLORATION

Listen:
Billy Pilgrim has come unstuck in time.
Billy has gone to sleep a senile widower and awakened
on his wedding day. He has walked through that door in
1955 and come out another one in 1941. He has gone back
through that door to find himself in 1963. He has seen his
birth and death many times, he says, and pays random visits
to all the events in between.
He says.
Billy is spastic in time, he has no control over where he is
going next, and the trips arent necessarily fun. He is in
a constant state of stage fright, he says, because he never
knows what part of his life he is going to have to act next.

KURT VONNEGUT JR., SLAUGHTERHOUSE FIVE

OR THE CHILDRENS CRUSADE: A DUTY-DANCE
WITH DEATH

I. Introduction
In legal writing and clinical skills courses, young lawyers and law students are typically
instructed to organize their presentation of facts simply and chronologically. They are told
to keep the presentation straightforward and candid, and to be wary of overly shaping the facts
of the story. But this instruction is, at best, nave, and, more accurately, deceptive and selfdeluding. First, chronology is not an all-encompassing or a preferential strategy for organizing
events in narrative time but merely one modality (perhaps the default mode) for ordering
events into story. In chronology, story time appears to mimic how time unfolds in real life
and seems to order events onto a shared one-size-fits-all narrative spine. Many stories are
unlike the events that occur in our daily lives, which are measured against the clock. In
complex stories there is seldom a strict or pure linear chronology available. Language, almost
by its nature, does not allow it; we seemingly move back and forth effortlessly in story time,
and do so in extremely subtle and complex ways. Intuitively, we make selective choices from

events as we shape them into stories, and we bend malleable story time to fit the demands of
narrative. The depiction of time in all but the simplest of stories is, on close inspection,
extremely complex, far more complex than a strict and literal chronology contemplates or
allows.
Understanding this complexity is at the core of this chapter: it is embodied in the principle
that there are at least two sequential progressions of time inherent in the telling of any story.
The events depicted in the story follow one another in a temporal sequence, which we can call
story time. But there is a second order of narrative time; that is, the recounting itself typically
proceeds differently. This second temporal sequence, a separate discourse time, may or may
not parallel the first sequence. The two sequences must be purposefully constructed and
coordinated.
Fortunately, we are all intuitively gifted and well-practiced storytellers. We have been
telling stories all our liveswhether we are aware of our practice or not. Further, it is our
professional work as lawyers. Consequently, we are adept at coordinating these components of
narrative time; although we seldom separate analytically discrete dimensions of narrative
time. Nevertheless, it is extremely helpful for all professional storytellers, including legal
storytellers, to develop a conceptual understanding of this important distinction. Although
legal storytellers are not narratologists and do not need to have, at their fingertips, the esoteric
vocabulary and definitions of aspects of narrative time, it is helpful to move beyond
chronology and understand the other techniques that enable us to move about in time within
a story.
It is also important to explore the malleability of the narrative time frame of any story,
including legal stories. All stories are artificially constructed structures set in a narrative time
meant to appear to convey real time. But there are innumerable possibilities for how to
construct the temporal framework of a story. These choices about the time framing are crucial
to all that transpires within the plot of the story, and how events unfold within it. That is, the
subject of narrative time is not just about ordering events within a story; it is also about the
architecture of the story itself. Crucial points in time include when (and where) to begin the
story and when (and where) to end it; these choices compel the unfolding of the events of the
story itself. Furthermore, legal stories, especially those litigation stories presented by
advocates to judges or juries, are typically unfinished stories. Although an implicit right
ending is proposed or suggested, it is typically left to the decision maker to provide the
ending, completing the story and inscribing final meaning on the tale. It is, consequently,
especially important for legal storytellers to choose the beginnings of their stories carefully,
because that choice implicitly signals the ending of the story.
In this chapter, we look at several features of this complex and compelling subject. In
addition to revisiting examples from this book, and providing terminology from narratology, it
is helpful to draw further guidance from the masterful novelist and writing teacher Kurt
Vonnegut, including paragraphs from Vonneguts famous time-travel novel Slaughterhouse
Five. In addition to providing an absorbing and still highly relevant reading experience,
Vonneguts novel is a memorable meditation on the subjects of temporality and narrative
time, rich in its comic-yet-profound observations. Perhaps because of his mocking
playfulness, Vonneguts depiction of Billy Pilgrims journey across time provides a bridge

between the difficult concepts of formal narratology and the more pragmatic work of all
storytellers, especially legal storytellers. Like Vonneguts protagonist Billy Pilgrim, legal
storytellers move about purposefully in time, bending and shaping time within their stories to
accommodate their purposes.

II. The Ordering of Discourse Time

A. The Sequence of the Telling: Billy Pilgrim Watches the Movie Backward
Billy looked at the clock on the gas stove. He had an hour to
kill before the saucer came. He went into the living room,
swinging the bottle like a dinner bell, turned on the television.
He came slightly unstuck in time, saw the late movie
backwards, then forwards again. It was a movie about
American bombers in the Second World War and the gallant
men who flew them. Seen backwards by Billy, the story
went like this:
American planes, full of holes and wounded men and
corpses took off backwards from an airfield in England.
Over France, a few German fighter planes flew at them
backwards, sucked bullets and shell fragments from some of
the planes and the crewmen. They did the same for wrecked
American bombers on the ground, and those planes flew up
backwards to join the formation.
The formation flew backwards over a German city that
was in flames. The bombers opened their bomb bay doors,
exerted a miraculous magnetism which shrunk the fires,
gathered them into cylindrical steel containers, and lifted
the containers into the bellies of the planes. The containers
were stored neatly in racks. The Germans below had
miraculous devices of their own, which were long steel tubes.
They used them to suck more fragments from the crewmen
and planes. But there were still a few wounded Americans,
though, and some of the bombers were in bad repair. Over
France, though, the German fighters came up again, made
everything and everybody as good as new.
When the bombers got back to their base, the steel cylinders
were taken from the racks and shipped back to the United
States of America, where factories were operating night and
day, dismantling the cylinders, separating the dangerous
contents into minerals. Touchingly, it was mainly women

who did this work. The minerals were then shipped to specialists
in remote areas. It was their business to put them
into the ground, to hide them cleverly, so they would never
hurt anybody ever again.
The American fliers turned in their uniforms, became high
school kids. And Hitler turned into a baby, and all humanity,
without exception, conspired biologically to produce
two perfect people named Adam and Eve, he supposed.
Billy saw the movie backwards then forwardsand then it
was time to go out and meet the flying saucer.1

B. Chronology
Chronology describes the dominant principle purportedly employed by legal storytellers to
organize the telling of their stories in time. But what, exactly, is chronology? A dictionary of
narratology defines chronological order as [t]he arrangement of situations and events in the
order of their occurrence. Harry washed, then he slept observes a chronological order,
whereas, Harry slept after he worked does not. Chronological order is very much privileged
by positivist historiography.2 Likewise, chronology is privileged in positivist legal
storytelling and, in many ways, serves as the default mode for organizing events in time. By
using chronology, legal storytellers attempt to signal to listeners and readers that they are not
attempting to manipulate the events of a story, and are subordinating narrative to legal
argumentation and principles. There are other reasons to employ chronology as a primary
mode of organizing and presenting events in story time. As David Lodge observes, The
simplest way to tell a story, equally favored by tribal bards and parents at bedtime, is to begin
at the beginning, and go on until you reach the end, or your audience falls asleep.3
Chronology, in some form and to some degree, is apparent in the telling of all the legal
stories I have analyzed thus far in this book. Sometimes, employing a strict and linear
chronology is a purposeful choice. But more often, an effective legal story is designed to
appear as if it is being presented in a strict and linear chronology, controlled by the events
unfolding in time rather than by the imagination of the storyteller. But upon closer inspection
and analysis, this is seldom the case; narrative presentation of a story in discourse time is
typically far more complex.
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, Marys 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 Vonneguts 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 couldnt 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 youre
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 isnt 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. Princes 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

Lets 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 Emmas 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 characters past that reveals crucial backstory explaining pieces of the plot or some crucial
aspect of a particular characters motivations. Other complex characters may reveal pieces of
their crucial backstories presented in summary as the action slows down, momentarily making
room for dialogue. For example, in High Noon we learn of the death of Amys 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 Ramirezs 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 petitioners brief in Eddings responds to the Oklahoma courts refusal to
consider Eddingss childhood history in mitigation of his murder sentence. The brief relies
extensively on flashbacks to incidents from Eddingss childhood that were not considered at
sentencing.
Another legal example employing strategic disjunctions in narrative time is Jeremiah
Donovans 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 Faillas voice on the surveillance tapes that was the crucial linchpin in the prosecutors
case against them for the murder of Billy Grasso. He begins with references to the trial and to
the complexity of the judges charge. Then Donovan sets these present-tense events aside as if
he can go no farther and tells his story of the legendary OToole presented in an Irish
barroom brogue. This initial story sets the comedic tone of the narrative that follows and
establishes his baseline depiction of Faillas 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 hasnt 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] wouldnt let
Louie be involved in anything.10
Donovan, in other important places, doesnt 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.
Donovans argument on behalf of Failla, like the examples from literature and movies, and
like the petitioners 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 Spences 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
Silkwoods death:
Now I have a vision. It is not a dreamits 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 nowthe men are not old, some say

theyre just in their prime, theyre 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 dyingnot 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 didnt 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 lets 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, hes living in a rented [a rented duplex]
out in East Hartford. Hasnt been painted in eighteen 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 readers anticipation and expectation are fulfilled
later in the discourse time of the story.

G. Pacing and Rhythm

As previously observed, discourse time seldom, if ever, moves ineluctably forward matching
the movements of the hands of the clock. There are constant variations on chronology within
the architecture of time in any narrative. This is so even in the formal legal storytelling in
written briefs, where it is conventional and often the best narrative strategy to appear to make
the discourse time look like it is presenting a simple and straightforward linear chronology,
attempting to avoid the appearance that the author is manipulating the events within his
presentation. But narrative time in any story is a fabrication, inevitably reshaping and
transforming the events depicted within it. This manipulation or creative reconstruction is
apparent when analyzing the pacing or rhythm of a story.
Simply put, unlike the ticking of the clock, discourse time does not move at a constant pace
with events given the same amount of time and narrative importance measured exclusively by
their duration. There are, of course, rare exceptions, especially in film, where it is possible to
match the discourse time to story time, as is attempted in presenting the story in High Noon.
But this is a rare exception. It is the storyteller who determines the emphasis to place on
particular events, what to include and what to omit (ellipsis), and how to position events in the

story (by employing ellipsis, flashbacks, flash-forwards).

One factor that establishes the pacing of the plot is whether a particular passage is
employing terminology presented in chapter 6, on stylepresented as scene or summary or
even, occasionally, in a stretch. In a scene the discourse time is roughly equivalent to story
time. The style chapter presents illustrations of scenes from nonfiction and legal stories. For
example, Norman Mailers depiction of Gary Gilmores murder of Max Jensen is a scene.
Likewise, Jeremiah Donovans recounting of the dialogue between Louie Failla and Tito
Morales in Faillas car is another. In the Petitioners brief in Atkins the pacing deliberatively
slows down as Atkins attempts to visualize images and recounts in twisted dialogue the voices
of the various participants in a murder.
In summary, however, the passage of time is compressed; story time significantly exceeds
discourse time and events are often glossed over. That is, summary unfolds quickly,
diminishing the importance of events within the narrative. For example, the initial paragraphs
of the Statement of the Case in the petitioners brief in Atkins provides a summary of the
robbery of and murder of Eric Nesbitt by Atkins and Jones: He was robbed of the money in
his wallet, driven in his own truck to an ATM and required to withdraw more money, then
driven eighteen miles to York County, where he was shot eight times and killed with a semiautomatic handgun. The particularities of the events in time are swallowed in a quick gulp of
time, although the story later returns to alternative versions of these events revisited in scenes.
Likewise, in Donovans closing argument on behalf of Louie Failla, Donovan speeds up
narrative time in summaries that gloss over many months of time, while at other points he
slows down time to meticulously reconstruct specific dialogue between Failla and various
mobsters plotting the murder of Tito Morales in fully developed scenes.
Finally, in stretch the storytelling is slowed down in time further so that discourse time
significantly exceeds story time. Again, Donovan makes good use of stretch when depicting
crucial conversations between Failla and the mobsters plotting the murder of Tito Morales. He
employs visual cartoons to detail the dialogue and then provides a second set of cartoons that
reveal and explore Faillas internal thought processes and complex unspoken motivations;
translating Faillas thoughts, and the subtext of the scenes, into supplementary dialogue.
Often the line between stretch, scene, and summary is not entirely clear. For example, in
the excerpt from Capotes In Cold Blood, Hendricks, the schoolteacher-witness, slows down
his recounting of scenes so that he, and the reader, can begin to more fully experience the
emotional complexity of his own reactions to the images that are uncovered as he moves room
to room in his memory. Thus the pacing of interconnected scenes is gradually slowed from
summary to scene and into stretch as Hendricks moves through the rooms of the Clutter farm,
and discovers the victims in this Gothic horror story. The important point here is to understand
that there is a clear distinction between scene, summary, and stretch, and establishing a
purposeful rhythm between these three discrete modes is a concern of narrative time, just as it
is a concern of style.
A closely related concept from narratology is rhythm. The concept, according to Bal, is as
striking as it is elusive. There can be stylistic rhythms created in the construction of sentences
in writing, or in the use of recurring patterns in speech. Likewise, there can be more
encompassing structural rhythms suggested by intentional patterns in the construction and

placement of scenes, summaries, and ellipses in narrative time. Filmmakers, for example,
often refer to rhythm or tempo, analyzing the cinematic beats of images, which are built into
scenes, and then into sequences of scenes. Rhythm is equally relevant for creating underlying
patterns in written and spoken stories. Prince defines rhythm as [a] recurrent pattern in
narrative speed and, more generally, any pattern, of repetition with variations. The most
common rhythm in classical narrative results from the alteration of scene and summary. In
legal storytelling, the classical rhythm is also between the alteration of scene and summary;
unlike literary storytelling the emphasis typically is not on the presentation of scenes, but
rather on the use of summaries. This does not diminish the importance of scenes employed.
Indeed, as we have explored in my analysis of legal examples in previous chapters, the reverse
is typically true: because there are fewer scenes employed in legal storytelling practices, they
are often of crucial importance.

H. Establishing the Time FrameBeginnings and Implied Endings to

Unfinished Stories
People arent supposed to look back. Im certainly not going
to do it anymore.
Ive finished my war book now. The next one I write is going
to be fun.
This one is a failure, and had to be, since it was written by
a pillar of salt. It begins like this:
Listen:
Billy Pilgrim has come unstuck in time.
It ends like this:
Poo-tee-wee?20
The first chapter on plotting identified two crucial points set in time establishing the
narrative framework of the storythe beginning and the ending. Beginnings and endings are
interconnected. The choice of the opening typically anticipates the ending of the story. So
much so that the novelist and writing teacher John Gardner, as noted there, advises aspiring
novelists and creative writers to construct their stories backward from their endings to
determine what their beginnings should be. Likewise, the clinicians admonition to the legal
storyteller is to always know where the narrative is headed before the journey of the story
begins, always keeping in mind the point and purpose of the story in addition to the narrative
destination that is desired as the outcome of the tale. This goal, however, is difficult for many
legal storytellers to achieve because the story is typically incomplete. While the creative
writer or popular storyteller is in control of the story, and writes her ending, the legal
storyteller typically does not. It is up to another, a jury or a judge in litigation, to write the
ending of the tale. Nevertheless, legal storytellers, such as Jeremiah Donovan or Gerry Spence,
or the authors of the various briefs identified in this book, all tell their stories in ways that

strongly anticipate, even when not explicitly providing, proposed endings. Further, these
endings are implicit from the beginning.
For example, in Donovans closing argument on behalf of Louie Failla, the proposed
resolution is a return to the anterior steady state where Faillas motives are finally understood
and he is reunited with his real family (his wife, daughter, grandchild, and even Tito Morales,
who now awaits Louie in prison) and, perhaps, with his adopted mob family as well (who now
understand the reason for his storytelling, to avoid the commands of the mob boss Billy
Grasso). Spences closing argument in Silkwood anticipates a transformed steady statethe
ending foresees a moment when the jury punishes the Beast Kerr-McGee and compels it to
rectify its corporate behavior and heed the warning of the prophet Karen Silkwood. By
imposing this ending onto the tale the jury prevents an impending environmental disaster that
looms ahead.

III. Concluding Observations

Simply put, in legal storytelling just as in literary and popular storytelling, it is important to
find a way to tell stories in an order that will make the story most persuasive and effective. As
Anthony Amsterdam observes when teaching capital defenders the art of narrative persuasion,
the story must develop narrative clout often without regard to chronology of the events
depicted within the story. But unlike Vonneguts Billy Pilgrim in Slaughterhouse Five, the
story and the storyteller cannot draw attention to these intentional departures from
chronology. Recall that Billy Pilgrim was institutionalized for calling direct attention to what
he was doing in his departures from chronology and travels in time. Likewise, in legal
storytelling, there are grave dangers in obvious manipulations of time as it is twisted into
story. Artfulness and effectiveness is typically in understatement, in employing time-travel
devices that conceal, rather than reveal, the underlying movements made within time, the
intentionality of the storyteller, and the purpose of the narrative. All decision makers,
especially skeptical judges, may well perceive any obvious departures from the supposed
realism implicit in a pure linear chronology as subterfuge, as covering holes in the plot of the
story, or as simply the gimmicks of a narrative trickster who cannot be trusted.
Nevertheless, it is also true that all stories depart from chronology, and reshape narrative
time in service of the plot regardless of whether the storyteller is aware of these
maneuverings. Occasionally movies, such as High Noon, may attempt to employ real time as
an explicit time framework for narrative. This is, of course, the exception to the rule. And,
even here, there are backstories, and ministories, and artful time shifts embedded in the
narrative. Legal stories, whether written or oral, can never match against, or be truly set in,
real time. The stories that lawyers tell are told within the artifice of story time. And so it is
vital to propel intentional narrative time travel, although such flights may often seem
dangerous and unconventional. Why do effective legal storytellers so often risk the departure
from linearity and simple and rigid chronology? Here is a partial preflight checklist of
strategic reasons for time travel in legal storytelling practice:21
to create the kind of world in which your plot action will seem plausible, before you relate

any pieces of the plot action that may be received skeptically;

to depict features of that world that will drive your plot action or mold one of your
characters, before you show their effects;
to provide whatever framing your story needs before it gets going;
to provide whatever foreshadowing your story needs, at appropriate junctures;
to create and maintain suspense;
to implement the basic narrative structure underlying your story;
to effectuate the particular sequence that your plot requires;
to provide information about your players that will build up a portrait of their characters,
before they act in ways that you want interpreted in light of their character;
to reinforce your plot or your players characters or the ordering principles of the world of
your story with ministories at appropriate junctures;
to keep any ministories or subparts of the story properly subordinated to the larger story; and
to serve any other function that your particular story may require.
In this chapter, I have identified several of the narrative techniques and devices artful
advocates employ to move about purposefully in time within a story, and provided
illustrations of the theory in action from legal and literary examples presented in earlier
chapters of this book. These brief illustrations provide merely the starting places for deeper
explorations of narrative time travel in legal storytelling practice.

9
Final Observations
BEGINNINGS AND ENDINGS

To avoid all display of art itself requires consummate art.

QUINTILIAN, INSTTTUTIO ORATIO

The F.B.I. intercepted a mob initiation ceremony. It was

responsorial, much like the old Latin mass, io voglio io
voglio entrare entrare in questo orginazione in
questo orginazione. It sounded like a Latin prayer. When
they burned the picture of the saint you could hear the
crackling of the fire on tape. I mean, this ceremony had been
handed down from sixteenth century Sicily so you expect it
to be dramatic. However, what was equally dramatic was
all the activity surrounding it. Afterwards, after all the
cleaning up and goodbyes, you hear the steps of the final
participant going to the door, the door squeaks open, and
then, to the empty room, you hear someone say, No one
will ever know what went on here todayexcept for us and
the fucking Holy Ghost.
JEREMIAH P. DONOVAN, REMARKS ABOUT LAWYERS AS STORYTELLERS,

this book at the beginning: more than twenty years ago, I accepted an invitation
from Anthony G. Amsterdam, my former boss and then the clinical director at New York
University School of Law, to attend and participate in the recently convened Lawyering
Theory Colloquium. The colloquium was composed of upper-level students, clinical
practitioners, lawyering skills teachers, and visiting academics. We met weekly to explore
narrative theory, metaphor, language theory, and rhetoric, and to better understand how these
often highly theoretical academic concerns might contribute to teaching the work that lawyers
do. Indeed, there was a shared belief that these interdisciplinary academic subjects might
enliven and transform law school pedagogy. The colloquium was presided over by Tony
Amsterdam, Jerome Bruner, and Peggy Cooper Davis. Amsterdam is an inspirational teacher,
the father of clinical legal education, a recipient of a MacArthur Foundation genius grant, and
LET ME END

the almost-mythical attorney who argued Furman successfully before the U.S. Supreme Court.
Bruner is the pioneering educational psychologist and a towering intellectual figure of the
twentieth century in several disciplines, including educational psychology and narrative
studies. Recently, the School of Education at Oxford University was named in his honor. And
Peggy Cooper Davis is a highly regarded clinician, a former judge, a nationally recognized
legal historian, and a first-rate narrative theorist. Of course, their respective intellectual
contributions and stature cannot be reduced to a few simple sentences.
More important than their street cred and academic celebrity is the fact that each is a
remarkable teacher, and a compelling and charismatic character: Amsterdam emits a constant
white-hot intellectual intensity and analytical clarity and believes, wrongly, that everyone is as
smart as he is and can be transformed and enlightened through education. Bruner is a
sophisticated intellectual raconteur with a seemingly endless interdisciplinary range. Bruner
also possesses an endearing and, at times, almost positively gleeful intellectual playfulness
that is a perfect counterpoint to Amsterdams intensity. Peggy Cooper Davis manifests great
kindness, compassion, and a deep and pragmatic wisdom. Together they are like the
embodiment of the parts of Burkes narrative Pentad, or at least Bruners version of Burkes
Pentad: parts working together seamlessly and interactively, each in service of the other.
Once a week I took the train into New York to attend the colloquium. There was an
electrical buzz in the air at those sessions, especially when the topics and discussions focused
on legal storytelling and narrative theory.
Some years later, Amsterdam and Bruner published their influential synthesis of their
colloquium work in Minding the Law.1 In alternating chapters, they set forth their
interdisciplinary theories and then applied the theory to analysis of U.S. Supreme Court
opinions in civil rights cases. The books argument confirms what every litigator knows
intuitivelyeffective storytelling is crucial in legal argumentation; it is often outcome
determinative. Beneath the purportedly objective analytical texts and legalistic arguments are
the subtexts of the stories told. We tell these stories to understand and gain control of a world
constructed by and, employing Bruners terminology, bathed and swaddled in stories.
In the colloquium, there was a shared understanding that effective storytelling skills are
crucial in all areas of practice, and especially in litigation. Of course, there are many
constraints on legal storytelling, and the stories told must be factually meticulous and truthful.
Legal storytellers are, at least by training, highly ethical storytellers. But there was a sense
that this crucial subject, and the skills of storytelling, is largely ignored in law school
pedagogy and curriculum. Perhaps narrative and storytelling are systematically or
intentionally devalued to emphasize the primacy of analytical positivism and Langdellian
formalism that makes stories subservient to legal doctrine. In a traditional legal education,
students typically study fragments of stories only insofar as the facts inform doctrinal
analysis. Perhaps storytelling skills are discounted because most academics have spent careers
in insular and analytical environments, observing stories primarily through top-down readings
employing an often opaque lens cap of theory. Or perhaps it is because, as all storytellers have
long known, the storyteller never explicitly foregrounds or makes the audience aware of the
narrative principles that shape the various components of the story toldincluding the
specific subject matters of this booksuch as plot, character, style, setting, and time. The

storyteller must construct a seamless world that sings with the verisimilitude of life. The
dangers for the legal storyteller are obvious when the machinery of the story becomes
apparent, and this is especially so where an already skeptical audience is suspicious of the
truthfulness of the story and wary of manipulation.
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-weeklong storytelling spectacular. In the years following the trial, I wrote four law review articles
revisiting portions of the trialespecially the closing argumentsas narrativethat 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 convictionsthey stood accused of murder, conspiracy to commit murder, and a
plethora of lesser racketeering offenseswere 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 Attorneys 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 Louies 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. Donovans 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 storiesGerry Spences
closing argument on behalf of Karen Silkwood and Jeremiah Donovans 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: Spences 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, Spences 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 storyplot, character, setting, style, and timeall fit together in a compelling and wellbalanced arrangement that Kenneth Burke and Jerome Bruner would surely appreciate. At its
core it is a legal melodrama, Spences 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 Silkwoods 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 Donovans 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 grandsons father. It is a story set within the context of a thirteenweek 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
prosecutions much larger melodramatic mob tale of unrepentant and evil gangsters chased by
heroic cops protecting the public. Donovans 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 grandsons
father and ingratiates himself with his mob family. Employing a complex sequence of visual
cartoons, Donovans version looks beyond Faillas words and inside Faillas thoughts.
Donovans story explores Faillas consciousness in a way that is characteristic of literary and
modernist stories, constructing a more complex yet unified version of Faillas character than
the evidence seems to allow. Although Failla is convicted, Donovans 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
Donovans story redeems and explains Faillas 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 storiestheir 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., 32021, 268 N.E.2d at 86061.

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), 1112.

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), 11314.

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, 11314.

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), 28081.

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), 8385; Amsterdam and Bruner, Minding the Law, 2053.

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 audienceessentially,
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, andlike 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),
12757.

2. Silkwood, directed by Mike Nichols (1983).

3. This backstory in this section compresses and simplifies the explanation presented in
Lief, Caldwell, and Bycels Ladies and Gentlemen of the Jury, 11922. Quotations from
Spences closing argument are taken from the text of the argument as presented by Lief,
Caldwell, and Bycel, 12757.

4. Ibid., 12728.

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 PrevailEvery Place,
Every Time (New York: St. Martins Griffin, 2005), 22425.

8. See Peter C. Lagarias, Effective Closing Argument (Newark, NJ: Lexis, 1999), 362.

9. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 129.

10. Ibid., 144.

11. Ibid., 130.

12. Gerry Spence, How to Argue and Win Every Time (New York: St. Martins Press, 1995),
126.

13. Syd Field, Four Screenplays: Studies in the American Screenplay (New York: St.
Martins Press, 1995), 126.

14. Ibid., 24041.

15. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 140.

16. Ibid., 156.

17. Gerry Spence, remarks, NACDL Conference on Lawyering on the Edge (Chicago,
November 36, 1999). See also Gerry L. Spence, How to Make a Complex Case Come
Alive for a Jury, ABA Journal, April 1986, 65.

18. Spence, Lawyer on the Edge.

19. Amsterdam and Hertz, Analysis of Closing Arguments, 6475.

20. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 130.

21. Ibid., 131.

22. Spence, Lawyering on the Edge.

23. John H. Blume, Sheri L. Johnson, and Emily C. Paavola, Every Juror Wants a Story:
Narrative Relevance, Third Party Guilt and the Right to Present a Defense, American
Criminal Law Review 44 (2007), 1090.

24. Jemme Bruner, Beyond the Information Given: Studies in the Psychology of Knowing
(New York: Norton, 1973).

25. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 130.

26. Ibid., 131.

27. Ibid., 138.

28. Ibid., 156.

29. Ibid.

30. Ibid., 142.

31. Ibid.

32. Truffaut, Hitchcock, 141.

33. Spence, How to Argue, 269.

34. Ibid.

35. Ibid., 271.

36. Michael Roemer, Telling Stories: Postmodernism and the Invalidation of Traditional
Narrative (Lanham, MD: Rowman & Littlefield, 1995), 28283.

37. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 131.

38. Ibid., 137.

39. Letter of defense counsel William Paul to Peter Langarias in Langarias, Effective Closing
Argument, 466.

40. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 13132 (bracketed term in original).

41. Ibid., 13233 (bracketed term in original).

42. Ibid., 133, 135.

43. Ibid., 135.

44. Ibid., 13536.

45. Ibid., 137.

46. Ibid., 13839 (bracketed terms in original).

47. Ibid., 139.

48. Ibid., 13940.

49. Ibid., 140.

50. Ibid.

51. Ibid. (bracketed term in original).

52. Ibid., 14041.

53. Ibid.

54. Ibid., 141.

55. Ibid.

56. Ibid.,

57. Ibid., 14142.

58. Ibid., 142.

59. Ibid.

60. Ibid., 143.

61. Ibid.

62. Ibid., 142.

63. Ibid., 143.

64. Ibid., 144.

65. Ibid.

66. Ibid., 145 (emphasis added).

67. Ibid. (emphasis added).

68. Ibid. (emphasis added).

69. Ibid. (emphasis added).

70. Ibid., 14546.

71. Ibid., 146.

72. Ibid.

73. Ibid., 149.

74. Ibid., 150.

75. Ibid., 15253.

76. Ibid., 153.

77. Ibid.

78. Ibid., 154.

79. Ibid., 15455.

80. Ibid., 156.

81. Ibid.

82. Ibid.

83. Ibid.

84. Ibid.

85. Ibid.

86. Ibid.

87. Ibid., 15657.

88. Quotation in section head from Roemer, Telling Stories, 3.

89. See Peter Brooks and Paul Gewirtz, Laws Stories: Narrative and Rhetoric in the Law
(New Haven, CT: Yale University Press, 1996), 103; see also John Gardner, The Art of
Fiction: Notes on Craft for Young Writers (New York: Vintage Books, 1985), 165.

90. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 128.

91. Ibid., 156.

92. Ibid., 131.

93. Ibid., 138, 140.

94. David Lodge, The Art of Fiction: Illustrated from Classic and Modern Texts (New York:
Penguin Books, 1992), 34. An immaterial portion of Lodges quote from Austen is
omitted.

95. Jane Austen, Emma, quoted in Lodge, Art of Fiction, 34.

96. Ford Madox Ford, The Good Soldier, quoted in Lodge, Art of Fiction, 5.

97. Lodge, Art of Fiction, 5.

98. See Ronald B. Tobias, 20 Master Plots and How to Build Them (Cincinnati: F&W
Publications, 2003), 161.

99. Robert McKee, Story: Substance, Structure, Style, and the Principles of Screenwriting
(New York: Harper Collins, 1997), 81.

100. Lodge, Art of Fiction, 5.

101. Ibid.

102. Ibid.

103. Ibid.

104. Anthony G. Amsterdam and Philip N. Meyer, Making Our Clients Stories Heard: A
Guide to Narrative Strategies for Appellate and Postconviction Lawyers (Administrative
Office, U.S. Courts, 2008), 3.71.

105. Double Indemnity, directed by Billy Wilder (1944).

106. Vladimir Propp, Morphology of the Folktale (Austin: University of Texas Press, 2005),
3036.

107. Roemer, Telling Stories, 16.

108. Matthew Joseph Bruccoli, ed., Conversations with Ernest Hemingway (Jackson:
University Press of Mississippi, 1986), 123.

109. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 156.

110. McKee, Story, 105.

111. Ibid., 31718.

112. Ibid., 319.

113. Ibid.

114. Ibid.

115. Ibid.

116. Lief, Caldwell, and Bycel, Ladies and Gentlemen, 14546.

117. Ibid., 140.

118. Ibid., 149.

119. Ibid., 151.

120. Ibid., 15455.

121. Ibid., 156.

122. McKee, Story, 209.

123. Peter Brooks, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the
Mode of Excess (New Haven, CT: Yale University Press, 1976), 86.

CHAPTER 4

1. David Lodge, The Art of Fiction: Illustrated from Classic and Modern Texts (New York:
Penguin Books, 1992), 26.

2. John Gardner, The Art of Fiction: Notes on Craft for Young Writers (New York: Vintage
Books, 1985), 6.

3. E. L. Doctorow, City of God (New York: Random House, 2000), quoted in A. O. Scott, A
Thinking Mans Miracle, Book Review Desk, New York Times, March 5, 2000, sec. 7.

4. The Maltese Falcon, directed by John Huston (1941).

5. Heraclitus, Heraclitus, in The Pre-Socratic Philosophers, by Geoffrey Stephen Kirk, John

Earle Raven, and Malcolm Schofield (Cambridge: Cambridge University Press, 1983),
21011.

6. Edith Wharton, The Writing of Fiction (New York: Simon & Schuster, 1997), 3637.

7. Lodge, Art of Fiction, 67.

8. F. Scott Fitzgerald, The Last Tycoon (New York: Scribners, 1970), 163.

9. Bob Dylan, Its All Over Now, Baby Blue, Bringing It All Back Home, Columbia
Records, 1965.

10. Michael Roemer, Telling Stories: Postmodernism and the Invalidation of Traditional
Narrative (Lanham, MD: Rowman & Littlefield, 1995), 1617.

11. Jerome Bruner, Making Stories: Law, Literature and Life (New York: Farrar, Straus,
Giroux, 2002), 64.

12. Irwin Shaw, interview, Paris Review, no. 4, Winter 1953, available at
http://www.theparisreview.org/interviews/5157/the-art-of-fiction-no-4-irwin-shaw.

13. See Richard E. Nisbett and Lee Ross, Human Inference: Strategies and Shortcomings of
Social Judgment (Englewood Cliffs, NJ: Prentice-Hall, 1980), 31.

14. See Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions in the
Attribution Process, in Advances in Experimental Social Psychology, vol. 10, ed.
Leonard Berkowitz (New York: Academic Press, 1977), 173.

15. See Daniel T. Gilbert and Patrick S. Malone, The Correspondence Bias, Psychological
Bulletin 117, no. 1 (1995), 21.

16. Lodge, Art of Fiction, 183.

17. Ibid.

18. E. M. Forster, Aspects of the Novel (New York: Harcourt, Brace, 1954), 67.

19. Gerald Prince, A Dictionary of Narratology: rev. ed. (Lincoln: University of Nebraska
Press, 2003), 31.

20. Forster, Aspects of the Novel, 6768.

21. Ibid.

22. Ibid., 6870.

23. Ibid., 67.

24. Prince, Dictionary of Narratology, 85.

25. Forster, Aspects of the Novel, 78.

26. Lodge, Art of Fiction, 183.

27. Ernest Hemingway, quoted in Writers at Work: The Paris Review Interviews, ed. George
Plimpton (New York: Viking Press, 1963), 233.

28. Lodge, Art of Fiction, 183.

29. See Robert McKee, Story: Substance, Structure, Style, and the Principles of
Screenwriting (New York: Regan Books, 1997), 104 (The finest [screen]writing not only
reveals true character, but arcs or changes [of] that [characters] inner nature, for better
or worse, over the course of the telling).

30. Katherine Anne Porter, quoted in Plimpton, Writers at Work, 151.

31. Wharton, The Writing of Fiction, 9495 (emphasis in original).

32. Roemer, Telling Stories, 275.

33. See Sergeant York, directed by Howard Hawks (1941); Meet John Doe, directed by Frank
Capra (1941); The Pride of the Yankees, directed by Sam Wood (1942). For a discussion
of Coopers acting career, see Advameg, Inc., Gary CooperActors and Actresses
Films as Actor, Publications, Film Reference, http://www.film-reference.com/Actorsand-Actresses-Co-Da/Cooper-Gary.html.

34. Wharton, The Writing of Fiction, 9495.

35. Margaret Mehring, The Screenplay: A Blend of Film, Form and Content (Boston: Focal
Press, 1990), 187.

36. High Noon, directed by Fred Zinnemann (1952).

37. Peter Brooks, The Melodramatic Imagination (New Haven, CT: Yale University Press,
1976), 1617.

38. James Wood, How Fiction Works (New York: Farrar, Straus & Giroux, 2009), 62.

39. Anthony G. Amsterdam and Philip N. Meyer, Making Our Clients Stories Heard: A
Guide to Narrative Strategies for Appellate and Postconviction Lawyers (Administrative
Office, U.S. Courts, 2008), 7.34.

40. Mieke Bal, Narratology: Introduction to the Theory of Narrative (Toronto: University of
Toronto Press, 1997), 4366; Michael J. Toolan, Narrative: A Critical Linguistic
Introduction (New York: Routledge, 1994), 11937.

41. Amsterdam and Meyer, Making Our Clients Stories Heard, 7.34.

42. Ibid., 7.35.

43. Porter, quoted in Plimpton, Writers at Work, 151.

44. Ibid., 152.

45. Tobias Wolff, This Boys Life: A Memoir (New York: Harper and Row, 1989), 63.

46. Ibid., 8788.

47. Ibid., 8991.

48. Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard
University Press, 2002), 11314.

49. Wolff, This Boys Life, 88.

CHAPTER 5

1. Nick Ravo, Mafia Trial in Hartford Opens with Guilty Plea, New York Times, May 4,
1991.

2. Edmund Mahony, Defendant Takes Hits from Both Sides, Hartford Courant, July 17,
1991.

3. Alix Biel, To Wit, Hartford Courant, May 16, 1993.

4. Jerome Bruner, Actual Minds, Possible Worlds (Cambridge, MA: Harvard University
Press, 1986), 37.

5. Ibid., 38.

6. The strategy of redefining the story elements in the prosecutions case is one of three
primary defense strategies. According to W. Lance Bennett and Martha Feldman, the
defense may alter the interpretation of a storys central action through challenge,
redefinition, or reconstruction of the story itself. W. Lance Bennett and Martha
Feldman, Reconstructing Reality in the Courtroom: Justice and Judgment in American
Culture (Piscataway, NJ: Rutgers University Press, 1989), 98.

7. Mahony, Defendant Takes Hits.

8. Transcript of Closing Argument at 6, United States v. Bianco, No. H-90-18 (AHN) (D.
Conn. July 16, 1991) [hereinafter Transcript] (transcript of closing argument of Jeremiah
Donovan on behalf of Louis Failla), affd, 998 F.2d 1112, 1128 (2d Cir. 1993).

9. Ibid., 78.

10. Ibid., 8.

11. Ibid.

12. Ibid., 89.

13. Ibid., 9.

14. Ibid.

15. Ibid., 910.

16. Syd Field, Screenplay: The Foundations of Screenwriting (New York: Dellacorte Press,
1982), 9.

17. Ibid., 66.

18. Transcript, 1011.

19. Ibid., 11.

20. Ibid.

21. Mahony, Defendant Takes Hits.

22. Transcript, 12.

23. Butch Cassidy and the Sundance Kid, directed by George Roy Hill (1969).

24. Transcript, 13.

25. Ibid., 14.

26. Ibid., 1920.

27. Ibid., 2223.

28. Ibid., 2425.

29. Ibid., 25.

30. Ibid., 26.

31. Ibid., 4143.

32. Mahony, Defendant Takes Hits.

33. Transcript, 47.

34. Ibid.

35. Ibid., 4748.

36. Ibid., 49.

37. Ibid.

38. Ibid., 55.

39. Ibid., 56.

40. Ibid.

41. Ibid.

42. Ibid., 57.

43. Ibid., 5758.

44. Ibid., 59.

45. Ibid.

46. Ibid.

47. Ibid.

48. Ibid., 6061.

49. Ibid., 61.

50. Ibid., 6162.

51. Ibid., 64.

52. Ibid., 6465.

53. Ibid.

54. Syd Field, The Screenwriters Workbook (New York: Dell, 1984), 86.

55. As pointed out earlier, according to Bennett and Feldman, the defense may alter the
interpretation of a storys central action through challenge, redefinition, or reconstruction
of the story itself. Bennett and Feldman, Reconstructing Reality, 98. The success of this
strategy depends on the defenses ability to find a story element that is ambiguous
enough to support another definition and, at the same time, central enough to the story to
effect the meaning of the central action. Ibid., 102. Here, the defense attempted to
provide a counterstory with an internally consistent interpretation of the defendants
motives. Ibid., 103.

56. Transcript, 7576.

57. Ibid., 7475. Donovan tells the jury:

You have a tougher job. In trying to determine intention, the persons intention is necessarily very largely a
matter of inference. No witness, you know, can be expected to come in here and testify that he looked into
another persons mind and saw therein a certain purpose or intention. I tried to do it with cartoons. I cant do
it. No FBI agent or expert can come in and testify what Louies intention was. Now how do we do it? One
way in which a jury can determine what a persons purpose and intention was at any given time is by
determining what that persons conduct was and what the circumstances were surrounding that conduct, and
from these, from the conduct, to infer what his purpose or intention was. To draw such inferences is not only
the privilege, but its the duty of the jury, provided, of course, the inference you draw is a reasonable one.
Ibid.

58. Ibid., 76. Donovan says, we dont send people to jail, we dont take people away from
their wives, their children, their grandchildren, unless we are persuaded that he has done
what the Government said and persuaded beyond a reasonable doubt. Ibid.

59. Margaret Mehring, The Screenplay: A Blend of Film, Form and Content (Boston: Focal
Press, 1990), 195.

60. Ibid.

61. Ibid., 54.

62. Ibid.

63. Robert McKee, lecture, Story Structure Workshop, March 1112, (New York, 1990)
(notes on file with the author).

64. Mehring, The Screenplay, 54.

65. Ibid., 55 (emphasis added).

CHAPTER 6

1. James Ellroy, My Dark Places (New York: Vintage Books, 1997).

2. Norman Mailer, The Executioners Song (New York: Vintage, 1998), 22324.

3. Truman Capote, In Cold Blood (New York: Vintage, 1994), 5860, 6265.

4. Frank McCourt, Angelas Ashes (New York: Simon & Schuster, Touchstone, 1996).

5. David Lodge, The Art of Fiction: Illustrated from Classic and Modern Texts (New York:
Penguin Books, 1992): 11719.

6. Ibid., 118.

7. Ibid., 119.

8. Anthony G. Amsterdam and Philip N. Meyer, Making Our Clients Stories Heard: A
Guide to Narrative Strategies for Appellate and Postconviction Lawyers (Administrative
Office, U.S. Courts, 2008).

9. Jemme Bruner, Beyond the Information Given: Studies in the Psychology of Knowing
(London: Allen and Unwin, 1974).

10. Ellroy, My Dark Places, 1.

11. Ibid., 2

12. Ibid.

13. Ibid., 36.

14. Lodge, The Art of Fiction, 117.

15. Ibid., 119.

16. Ibid.

17. Brief for Petitioner, Riggins v. Nevada, 504 U.S. 127 (1992).

18. Ibid., 2.

19. Ibid.

20. Ibid., 67.

21. Ibid., 8.

22. Ibid.

23. Ibid.

24. Ibid., 21.

25. David Lodge observes that the purest form of showing is quoted speech of characters
in which language exactly mirrors the event. Lodge, The Art of Fiction, 121.

26. Lodge observes that the purest form of telling is authorial summary, in which the
conciseness and abstraction of the narrators language effaces the particularity of the
characters and their actions. Ibid., 122.

27. Ty Alper, Anthony G. Amsterdam, Todd E. Edelman, Randy Hertz, Rachel Shapiro
Janger, Sonya Rudenstine, and Robin Walker-Sterling, Stories Told and Untold:
Lawyering Theory Analyses of the First Rodney King Assault Trial, Clinical Law
Review 12 (2005), 1.

28. Lodge, The Art of Fiction, 122.

29. Ibid.

30. Mailer, The Executioners Song, 22324.

31. Ibid.

32. Capote, In Cold Blood, 16.

33. Ibid., 60, 62.

34. Ibid., 6162.

35. Ibid., 6162.

36. Ibid., 6466.

37. Ibid., 6566.

38. Atkins v. Virginia, 536 U.S. 304 (2002), 2001 WL 1663817.

39. Gerald Prince, A Dictionary of Narratology, rev. ed. (Lincoln: University of Nebraska
Press, 2003), 19. Prince defines dialogic narrative as characterized by the interaction
of several voices, consciousnesses, or world views, none of which unifies or is superior to
(has more authority than) the others. In dialogic as opposed to monologic narrative, the
narrators views, judgments, and even knowledge do not constitute the ultimate authority
with respect to the world represented but only one contribution among severala
contribution that is in dialogue with, and frequently less significant and perceptive than
that of (some of), the characters.

40. Brief for Petitioner at 1, Atkins v. Virginia, 536 U.S. 304 (2002), 2001 WL 1663817.

41. Ibid., 2.

42. Ibid.

43. Ibid.

44. Ibid.

45. Ibid.

46. Ibid., 3.

47. Ibid.

48. Ibid.

49. Ibid., 4.

50. Ibid., 45.

51. Ibid., 6.

52. Ibid. (citations omitted).

53. Ibid., 67 (citations omitted).

54. John Gardner, The Art of Fiction (New York: Vintage Books, 1985), 155.

55. Ibid., 15559.

56. Ibid., 155.

57. Ibid., 156.

58. Ibid., 157.

59. Ibid.

60. Lodge, The Art of Fiction, 26.

61. Brief for Petitioner at 3839, Atkins v. Virginia, 536 U.S. 304 (2002), 2001 WL 1663817.

62. McCourt, Angelas Ashes, 11.

63. Ibid.

64. Williams v. Taylor, 529 U.S. 362 (2000), 1999 WL 459574.

65. Ibid., 3.

66. Ibid.

67. Ibid.

68. Ibid., 34

69. Ibid., 45.

70. Mailer, The Executioners Song, 3056, cited in Joshua Dressler, Cases and Materials on
Criminal Law (St. Paul, MN: West, 2009), 46.

71. Wayne Booth, The Rhetoric of Fiction, 2d ed. (Chicago: University of Chicago Press,
1983), 27481.

72. Transcript of the Morning Session of Closing Argument of Robert F. Devlin, Assistant
United States Attorney, at 12, United States v. Bianco, No. H-90-18 (AHN) (D. Conn.
Argued July 15, 1991) (D. Conn. 1990, affirmed 998 F.2d 1112 (2d Cir. 1993).

73. Ibid. at 22.

74. Transcript of Governments Rebuttal Closing Argument by John Durham, Assistant

United States Attorney, at 5051, United States v. Bianco, No. H-90-18 (AHN) (D. Conn.
Argued July 18, 1991) (emphasis added).

75. Janet Malcolm, Iphigenia in Forest Hills: Anatomy of a Murder Trial, New Yorker,
May 3, 2010, 36.

76. Ibid., 36.

77. Ibid.

78. Ibid.

CHAPTER 7

1. Joan Didion, The White Album (New York: Farrar, Straus, Giroux, 1979), 42.

2. According to former Family member Brooks Poston, Manson told the group on New
Years Eve 1968: Are you hep to what the Beatles are saying? Helter Skelter is coming
down. The Beatles are telling it like it is. The Influence of The Beatles on Charles
Manson, last accessed March 25, 2012, at
http://law2.umkc.edu/faculty/projects/ftrials/manson/mansonbeatles.html.

3. Bob Dylan, Nashville Skyline, Columbia Records, 1969.

4. Leonard Cohen, Songs of Leonard Cohen, Columbia Records, 1967.

5. John Gardner, The Art of Fiction (New York: Vintage Books, 1985), 45.

6. Rusk v. State, 43 Md. App. 476, 406 A. 2d 624 (1979). The Maryland Supreme Court
reversed the decision of the Court of Special Appeals in State v. Rusk, 289 Md. 230, 424
A.2d 720 (1981).

7. Rusk v. State, 43 Md. App. at 484, 406 A.2d at 628.

8. Ibid.

9. Ibid., 488492, 406 A.2d at 63132.

10. W.G. Sebald. The Emigrants (Frankfurt: Eichborn; London: Harvill Press, 1996), 112.

11. Ibid., 11516.

12. Brief for Petitioner, Reck v. Ragen [decided sub nom. Reck v. Pate], 1961 WL 101763.

13. Ibid., 1421 (footnotes containing transcript references and additional detail omitted).
This is only a portion of a much longer narrative of Recks interrogation. The full
narrative runs from page 10 through page 40. For another example of this kind of detailed
narration of police interrogation in intimidating settings, see Brief for the Petitioner,
Clewis v. Texas, 1966 WL 100419, at 1225.

14. Miranda v. Arizona, 384 U.S. 436 (1966).

15. Brief for Petitioner, Miranda v. Arizona, 384 U.S. 436 (1966) (transcript references and
footnotes omitted), at 10.

16. Donovans notes, for example, call one of Faillas friends a character right out of
Damon Runyon, noting that Runyon was a journalist, author, and film writer and
producer whose slick and racy Broadway characters provided the inspiration for Frank
Loessers musical Guys and Dolls. Jeremiah Donovan, Some Off-the-Cuff Remarks
about Lawyers as Storytellers, Vermont Law Review 18 (1994), 751, 752, citing
Encyclopedia Americana (international ed., 1986), 870.

17. House of Games, written and directed by David Mamet (1987); Heist, written and
directed by David Mamet (2001).

18. Pulp Fiction, cowritten and directed by Quentin Tarantino (1994).

19. Kathryn Harrison, While They Slept: An Inquiry into the Murder of a Family (New York:
Random House, 2008).

20. Ibid., 12830.

21. Ibid., 13436.

22. Brief for Petitioner, Eddings v. Oklahoma, 455 U.S. 104 (1982), 1981 WL 389845.

23. Ibid., 1214 (transcript references and footnotes omitted).

CHAPTER 8

1. Kurt Vonnegut Jr., Slaughterhouse Five or The Childrens Crusade: A Duty-Dance with
Death (New York: Delacorte Press/Seymour Lawrence, 1994), 7072.

2. Gerald Prince, A Dictionary of Narratology, rev. ed. (Lincoln: University of Nebraska

Press, 2003), 13.

3. David Lodge, The Art of Fiction: Illustrated from Classic and Modern Texts (New York:
Penguin Books, 1992), 74

4. Prince, A Dictionary of Narratology, 76.

5. Vonnegut, Slaughterhouse Five, 84.

6. Prince, A Dictionary of Narratology, 5.

7. Ibid., 82.

8. Ibid., 5.

9. Transcript of Closing Argument at 1011, United States v. Bianco, No. H-90-18 (AHN)
(D. Conn. July 16, 1991) [hereinafter Transcript] (transcript of closing argument of
Jeremiah Donovan on behalf of Louis Failla), affd, 998 F.2d 1112, 1128 (2d Cir. 1993).

10. Ibid.

11. Prince, A Dictionary of Narratology, 78.

12. Completing prolepses fill in later gaps from ellipses in the narrative. Repeating
prolepses, or advance notices, recount ahead of time events that will be recounted again.
Ibid., 77.

13. Michael S. Lief, H. Mitchell Caldwell, and Ben Bycel, Ladies and Gentlemen of the Jury:
Greatest Closing Arguments in Modern Law (New York: Simon & Schuster, 1998), 154
55.

14. Ibid.

15. Prince, A Dictionary of Narratology, 77.

16. Ibid., 25.

17. Ibid.

18. Transcript, at 1011.

19. Ibid.

20. Vonnegut, Slaughterhouse Five, 2021.

21. Anthony G. Amsterdam and Philip N. Meyer, Making Our Clients Stories Heard: A
Guide to Narrative Strategies for Appellate and Postconviction Lawyers (Administrative
Office, U.S. Courts, 2008) 10.1310.15.

CHAPTER 9

1. Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard
University Press, 2000).

2. Narrative and story are, most simply put and for our immediate purposes, synonymous.
Narrative is the more highbrow and academic term, more sophisticated perhaps; while
story is more down-to-earth and commonplace. Some academics make fine high cultural
distinctions between these two words. See, for example, Gerald Princes definitions of
and distinctions between narrative and story in A Dictionary of Narratology, rev. ed.
(Lincoln: University of Nebraska Press, 2003).

3. Robert Cover, Violence and the Word, Yale Law Journal 95 (1986), 1601.

Index
actions
of characters, 8485, 95, 99, 1037
Donovan and, 1037
Failla and, 99, 1037
Actual Minds, Possible Worlds (Bruner), 1
advocacy, 187
characters and, 8384
plot and, 11, 28
AEC. See Atomic Energy Commission
Aesop, morals by, 13
Amsterdam, Anthony G., 13, 202, 203
on characters, 8384
on rhythm, 11920
anachrony, 19192
analepsis, 19294
analogies
in The Estate of Karen Silkwood v. Kerr-McGee, 29
of mud springs, 3435, 52
anecdotes, in The Estate of Karen Silkwood v. Kerr-McGee, 33, 5657
Angelas Ashes (McCourt), 119
hook from, 14344
antagonist. See also villain
in The Estate of Karen Silkwood v. Kerr-McGee, 35, 59, 6468
hero and, 36
in melodrama, 20
progressive complications of, 24
villain as, 19
aphorisms
by Cochran, 35
in The Estate of Karen Silkwood v. Kerr-McGee, 29
arguments. See also closing argument
facts for, 23
perspective in, 13940
into story, 40
The Art of Fiction (Lodge), 12324
Aspects of the Novel (Forster), 75

Atkins v. Virginia
death penalty mitigation in, 153
first-person perspective in, 139
pacing in, 19798
summary for, 13437
Atomic Energy Commission (AEC), 30
audience. See also jury
in death penalty mitigation, 65
in The Estate of Karen Silkwood v. Kerr-McGee, 3233
expectations of, 18
Failla and, 11112
good and evil and, 2324
of High Noon, 22
identification of, 29, 7475
plot and, 12
theme for, 16
voice and, 117
audio evidence, 6
Auletta, Patty, 99
Austen, Jane, 6063, 192
backstory
in The Estate of Karen Silkwood v. Kerr-McGee, 3031
grading law school examinations, 11517
in High Noon, 75, 78
in Jaws, 21
Back to the Future (movie), 196
Bal, Mieke, 196, 198
The Beatles, 159
beginning, 2029. See also opening
by Donovan, 93100
ending and, 5764
Failla and, 93100
framing story at, 9
infinite number of, 38
Lodge on, 6063
narrative profluence and, 11
narrative time and, 199200
trouble in, 63

betrayal
Cochran and, 18
in High Noon, 22, 26, 79
in melodrama, 26
Bogart, Humphrey, 71
briefs
characters and, 8384
in coerced confession cases, 16475
for Eddings v. Oklahoma, 17584
flash-forward in, 195
for Miranda v. Arizona, 17475
for Reck v. Ragen, 172
for Riggins v. Nevada, 12426
summary and, 127, 128
voice in, 130
Brooks, Peter, 89
on ending, 58
on good and evil, 8182
on melodrama, 68
on plot, 12
Bruner, Jerome, 1, 13, 2035, 207
on jury, 40
buddy pictures, 99
burden of proof, in The Estate of Karen Silkwood v. Kerr-McGee, 33
Burke, Kenneth, 4, 207
Butch Cassidy and the Sundance Kid, 99
Capote, Truman, 119, 13033
pacing by, 198
cartoons, of Failla, 107, 108f, 109f
Castagna, Sonny, 104, 110, 111
Caulfield, Holden (fictional character), 139
causality
motivation and, 74
in plot, 1112
reverse, 190
Chandler, Raymond, 63
changing characters, 7778

character arc, 77
of Failla, 1089
character development
in closing argument, 90114
in High Noon, 22
in This Boys Life, 8289
characterization
in closing argument, 90114
of Failla, 90114
in movies, 80
in This Boys Life, 8289
characters, 69114. See also specific characters
actions of, 8485, 95, 99, 1037
advocacy and, 8384
briefs and, 8384
changing, 7778
in closing argument, 45, 90114
description of, 83, 85
dialogue of, 8384, 85, 1037
flat, 7576, 8182, 92
in High Noon, 7582
irony of, 72
judges and, 74
jury and, 74
Lodge on, 72
Mehring on, 112
motivation of, 74
in movies, 7071
in novels, 72
plot and, 70
as protagonists, 7475
Roemer on, 65, 72
round, 7677, 8081, 92
static, 7778, 8182
theme and, 11314
transformation of, 77
voice and, 118
child neglect, 14547

The China Syndrome (movie), 37, 207

chronology. See also sequence of events
ellipsis, 19597
flashback, 19294
flash-forward, 19495
narrative time and, 18892
pacing and, 19799
rhythm and, 19799
Cimarron Syndrome, 37, 38, 55, 56, 141, 207
cinema noir, 62
climax
Donovan and, 1013
Failla and, 1013, 111
in The Hand, 1516
in High Noon, 22, 2627, 82
in Jaws, 26
closing argument
character development in, 90114
characterization in, 90114
characters in, 45, 90114
in criminal case, 90114
by Donovan, 90114
in The Estate of Karen Silkwood v. Kerr-McGee, 2868
movies and, 57
by Spence, 2868
in torts, 2868
Clutter family. See In Cold Blood
Coblyn v. Kennedy, 9
Cochran, Johnnie
aphorisms by, 35
betrayal and, 18
theory of the case of, 18
coda, 13, 16
in The Estate of Karen Silkwood v. Kerr-McGee, 5657
in High Noon, 27
of meaning, 2, 209
coerced confession cases, briefs in, 16475
Cohen, Leonard, 159

complications. See progressive complications

computer simulations, 6
confrontation
by Donovan, 93100
in The Estate of Karen Silkwood v. Kerr-McGee, 45, 4952
Failla and, 93100
between good and evil, 24
in High Noon, 78
in Jaws, 54
conspiracy theory, 51
Donovan and, 104
constraints
in The Estate of Karen Silkwood v. Kerr-McGee, 29
on plot trajectory, 1213
content, form and, 3
Cooper, Gary, 78, 7980
corporations, depictions of, 4143
criminal case. See Donovan, Jeremiah; Failla, Louis Louie
danger
description and, 16475
environment and, 16475
settings and, 15864
Davis, Peggy Cooper, 203
death penalty mitigation
in Atkins v. Virginia, 153
audience in, 65
mental retardation and, 134
story in, 65
description, 15584
of characters, 83, 85
danger and, 16475
for events, 156
Lodge, 155
for plot, 156
for theme, 156
detachment, 123
with omniscient perspective, 148

dialogic relationship, with jury, 52, 5859

dialogue
of characters, 8384, 85, 1037
Donovan and, 1037
Failla and, 1037
Didion, Joan, 157, 15864
directors, 6
for High Noon, 21
discourse time
in High Noon, 197
narrative time and, 187200
ordering of, 187200
disillusionment plot, 61
Doctorow, E.L., 70
Donovan, Jeremiah P., 45, 6, 20, 7374, 84, 202, 206, 207, 208
actions and, 1037
beginning by, 93100
character actions and, 95
climax and, 1013
closing argument by, 90114
confrontation by, 93100
conspiracy theory and, 104
dialogue and, 1037
ending by, 200
first-person perspective by, 139
flashback by, 19394
hook by, 9395
irony by, 104
judges and, 103
jury and, 9598, 103
motivation and, 95
opening by, 94
pacing by, 197, 198
perspective by, 138, 148, 14950
plot and, 91, 1013
progressive complications by, 92, 111
rhetorical questions by, 104
steady state and, 96100

stretch by, 127

strict liability and, 9495
summary by, 127
trouble and, 96100
Double Indemnity (movie), 6263
Dreyfuss, Richard, 24
Dwight (fictional character), in This Boys Life, 8589
Dylan, Bob, 72, 159
Eddings, Monty, 17584
Eddings v. Oklahoma
brief for, 17584
flashback in, 193
efforts
in The Hand, 15
in plot, 13
Eighth Amendment, 134
ellipsis, 19597
Ellroy, James, 119, 12023, 121f, 140, 143
The Emigrants (Sebald), 16475
Emma (Austen), 6063
flashback in, 192
empathy, perspective and, 14752
ending, 2029. See also coda
beginning and, 5764
Brooks on, 58
of The Estate of Karen Silkwood v. Kerr-McGee, 5764
Gardner on, 58
of The Hand, 14
hero in, 64
in High Noon, 2627
of melodrama, 64
narrative time and, 199200
plot and, 1213
purposeful motion toward, 64
sequence of events in, 13, 64
villain in, 64
environment, 15584

danger and, 16475

for events, 156
for Jaws, 15657
for plot, 156
for theme, 156
as villain, 17584
The Estate of Karen Silkwood v. Kerr-McGee, 11819, 207
anecdotes in, 33, 5657
antagonist in, 35, 59, 6468
audience in, 3233
backstory in, 3031
burden of proof in, 33
closing argument in, 2868
coda for, 5657
confrontation in, 45, 4952
constraints in, 29
corporations in, 4142
ending of, 5764
Failla and, 101
genre of, 3738
good and evil in, 3738, 42, 54
hero in, 36, 3841, 4648
High Noon and, 45
hooks in, 59
Jaws and, 4142, 45
jury in, 3233, 51, 5559
melodrama of, 2868
ministory in, 3335
movies and, 2930
myth in, 68
past-tense story in, 54
perspective in, 141
plot in, 64
present-tense voice in, 29, 3839, 52
proem in, 5859
progressive complications in, 4143
punitive damages in, 31, 35
rebuttal in, 38, 40, 5255

sequence of events in, 46

steady state in, 3738, 59
strict liability in, 3334
theme for, 3336, 64
theory of the case for, 3336
trouble in, 3738, 67
villain in, 35, 4146, 4950
voice in, 11819
zigzagging in, 46
events. See also sequence of events
description for, 156
environment for, 156
perspective and, 15253
in plot, 11, 12, 13
settings for, 156
evidence, into story, 20
evil. See good and evil
Executioners Song (Mailer), 119, 12830, 141
perspective in, 14748
expectations
of audience, 18
genre and, 18
of jury, 6, 38
facts, for arguments, 23
Failla, Louis Louie, 45, 6, 7374, 84, 207, 208
actions and, 99, 1037
audience and, 11112
beginning and, 93100
cartoons of, 107, 108f 109f
character actions and, 95
character arc of, 1089
characterization of, 90114
climax and, 1013, 111
closing argument in, 90114
confrontation and, 93100
dialogue and, 1037
flashback and, 19394

hook and, 9395

inner contradiction of, 113
motivation of, 95, 107
movies and, 11014
opening and, 94
pacing and, 197, 198
perspective and, 138, 148, 150
plot and, 1013
as protagonist, 92, 9697
sentences and, 90
steady state and, 96100
strict liability and, 9495
summary for, 127
trouble and, 96100
false imprisonment, 910
Farrell, Jack, 99, 105, 113
Field, Syd, 8
on hero, 36
Finn, Huckleberry (fictional character), 139
first-person perspective, 13839
Fitzgerald, F. Scott, 72
Five Key Terms of Dramatism, 45
flashback, 19294
flash-forward, 19495
flat characters, 7576
Failla as, 92
in High Noon, 8182
Ford, Ford Madox, 6063
Foreman, Carl, 21
form, content and, 3
Forster, E.M., 75
The Foundations of Screenwriting (Field), 8
framing story
at beginning, 9
for The Hand, 14
in melodrama, 6566
narrative time and, 201
free will, 73

Freud, Sigmund, 74
Frye, Northrop, 19
Gagliano, Anthony C., 18283
Gardner, John, 12
on ending, 58
on perspective, 138, 139
on setting, 155
on theme, 16, 17
Geertz, Clifford, 69
genre. See also melodrama
of The Estate of Karen Silkwood v. Kerr-McGee, 3738
expectations in, 18
of High Noon, 21
in Jaws, 2021
theme and, 17
Gilley, Billy Frank, 17684
Gilmore, Gary, 12830, 14243
pacing and, 197
perspective of, 14748
good and evil
audience and, 2324
Brooks on, 8182
confrontation between, 24
in The Estate of Karen Silkwood v. Kerr-McGee, 3738, 42, 54
in High Noon, 8182
in Jaws, 21, 8182
in melodrama, 19
Roemer on, 42
struggle between, 24
in torts case, 65
The Good Soldier (Ford), 6063
grading law school examinations, 11517
Grasso, Billy The Wild Guy, 91, 93, 1046, 111, 114
flashback and, 193
subplots and, 92
as villain, 92, 97100
Greenstreet, Sydney, 71

The Hand (Michaels)

framing story for, 14
plot of, 1416
Harrison, Kathryn, 157, 17584
Helter Skelter (The Beatles), 159
Hendricks, Larry, 13133
pacing and, 198
Heraclitus, 71
hero
antagonist and, 36
character of, 36
in ending, 64
in The Estate of Karen Silkwood v. Kerr-McGee, 36, 3841, 4648
in Jaws, 20, 21, 2425
jury as, 3841
Kane, Will, as, 7880
in melodrama, 19
protagonist as, 7880
rebuttal and, 40
Roemer on, 79
Silkwood as, 36
theme of, 20
villain and, 66
Wharton on, 79
High Noon (movie)
backstory in, 75, 78
betrayal in, 22, 26, 79
character development in, 22
characters in, 7582
climax in, 22, 2627, 82
coda in, 27
confrontation in, 78
discourse time in, 197
ending in, 2627
The Estate of Karen Silkwood v. Kerr-McGee and, 29, 45
Failla and, 97, 101, 110
flashback in, 19293

flat characters in, 8182

genre of, 21
good and evil in, 8182
Kane, Amy, in, 21, 77, 8081
Kane, Will, in, 7879, 110
loyalty in, 22
Miller, Frank, in, 23, 2526, 7982
plot in, 2027
progressive complications in, 2526
Ramirez in, 77
round characters in, 8081
setting for, 156
static characters in, 8182
steady state in, 23, 25
subplots in, 2526
theme of, 22
townspeople in, 2122, 26, 37, 41, 4346, 75
transformation in, 2627
trouble in, 23
villain in, 20
Hitchcock, Alfred, 19, 24
The Honeymooners (TV program), 93, 98
hook
in Angelas Ashes, 14344
by Donovan, 9395
in The Estate of Karen Silkwood v. Kerr-McGee, 59
Failla and, 9395
human agency, 14
identification, of audience, 29, 7475
illocutionary act, 30
In Cold Blood (Capote), 119, 13033
pacing in, 198
inner contradiction
of Failla, 113
of protagonists, 112
irony
of characters, 72

by Donovan, 104
in Jaws, 27
Jaws (movie)
backstory in, 21
climax in, 26
confrontation in, 54
environment for, 15657
The Estate of Karen Silkwood v. Kerr-McGee and, 29, 4142, 45
Failla and, 97, 101, 110
genre in, 2021
good and evil in, 21, 8182
hero in, 20, 21, 2425
irony in, 27
melodrama in, 20
Moby Dick and, 21
motivation in, 41
plot in, 2027
Roemer on, 21
sequence of events in, 24
setting for, 15657
steady state in, 23
theme in, 2021
trouble in, 23
villain in, 2425
Jensen, Max, 12830, 141
pacing and, 197
Johns, Jackie, 104, 110, 111
Jones, William, 13437
judges
characters and, 74
Donovan and, 103
sentences by, 74
jury
Bruner on, 40
characters and, 74
confusion of, 3839
dialogic relationship with, 52, 5859
Donovan and, 9598, 103

in The Estate of Karen Silkwood v. Kerr-McGee, 3233, 51, 5559

expectations of, 6, 38
as hero, 3841
story and, 6
Kane, Amy (fictional character), in High Noon, 21, 77, 8081
Kane, Will (fictional character), in High Noon
Failla and, 110
as hero, 7880
Kerr-McGee. See The Estate of Karen Silkwood v. Kerr-McGee
King, Rodney, 127
language of money, 63, 66
law school examinations, grading, 11517
Lawyering Theory Colloquium, 2024
Lay Lady Lay (Dylan), 159
legal rules, theme and, 17
Lenny (fictional character), in Of Mice and Men, 135
Leventhal, Brad, 15053
Lewis, John L., 102
liability. See strict liability
lifelikeness. See verisimilitude
Lodge, David, 13, 1416
The Art of Fiction by, 12324
on beginning, 6063
on characters, 72
on description, 155
on perspective, 140
on rhythm, 119
on summary, 127
logic. See narrative logic
loyalty, in High Noon, 22
Mafia. See Failla, Louis Louie
Mahony, Edmund, 103
Mailer, Norman, 119, 141, 14243, 14748
pacing by, 197
on scene, 12830
Malcolm, Janet, 15052

The Maltese Falcon (movie), 71

Mamet, David, 8, 176
Manson murders, 157, 15869
markers, for steady state, 38
Marvel Comics, 20
McCourt, Frank, 119, 14344
McKee, Robert, 66
meaning
coda of, 2, 209
in High Noon, 22
of ministory, 146
narrative logic with, 14
perspective and, 14247
in plot, 13
Mehring, Margaret, 80
on characters, 112
Mellaril, 12426
melodrama, 1819
antagonism in, 20
betrayal in, 26
Brooks on, 68
ending of, 64
in The Estate of Karen Silkwood v. Kerr-McGee, 2868
framing story in, 6566
good and evil in, 19
in Jaws, 20
past-tense story of, 54
plot trajectory in, 65, 66
premature ending in, 24
Roemer on, 19
in torts, 19, 118
villain in, 36, 6566
mental retardation, 134
Michaels, Leonard, 1416
Miller, Frank (fictional character), in High Noon, 23, 2526, 7982
setting for, 156
Miller, Henry, 1, 3, 117
Minding the Law (Amsterdam and Bruner), 203

ministory
in The Estate of Karen Silkwood v. Kerr-McGee, 3335
meaning of, 146
Miranda, Ernesto, 17475
Miranda v. Arizona, 17475
Moby Dick, 21
money, language of, 63, 66
Morales, Tito, 91, 93, 102, 103, 1046, 113, 150
pacing and, 197, 198
morals, by Aesop, 13
motivation
causality and, 74
of characters, 74
Donovan and, 95
of Failla, 95, 107
in Jaws, 41
in movies, 112
in novels, 74
movie directors, 6
for High Noon, 21
movies. See also specific movies
buddy pictures, 99
characterization in, 80
characters in, 7071
closing arguments and, 57
The Estate of Karen Silkwood v. Kerr-McGee and, 2930
Failla and, 11014
motivation in, 112
perspective in, 138
plot in, 70
rhythm in, 19899
sequence in, 12
theme in, 17, 11314
mud springs, analogies of, 3435, 52
My Dark Places (Ellroy), 119, 12023, 121f, 143
third-person objective perspective in, 140
myth, in The Estate of Karen Silkwood v. Kerr-McGee, 2930, 68

narrative logic, 44, 64

with meaning, 14
perspective for, 14142
of plot, 1213, 18
sequence of events and, 194
of story, 141
narrative profluence
beginning and, 11
in plot, 1112, 64
narrative theme. See theme
narrative time, 185201
beginning and, 199200
chronology and, 18892
discourse time and, 187200
ending and, 199200
framing story and, 201
sequence of events and, 186
Narrative Time (Ricoeur), 8
The Nature of Anthropological Understanding (Geertz), 69
Nesbitt, Eric, 13437, 198
Nevas, Alan H., 103, 206
Norton, Ed (fictional character), 93, 98
novels
characters in, 72
motivation in, 74
plot trajectory of, 8
Oates, Joyce Carol, 155
Of Mice and Men (Steinbeck), 135
omniscient perspective, 14243
believability of, 152
detachment with, 148
by Leventhal, 15051
On Directing Film (Mamet), 8
opening
by Donovan, 94
Failla and, 94
by Leventhal, 15051

plot trajectory and, 8

pacing
chronology and, 19799
of plot, 19799
paratexts, 6
past-tense story, 6
in The Estate of Karen Silkwood v. Kerr-McGee, 29, 54
of melodrama, 54
Pentad, 4
perlocutionary act, 30
personal disposition, 73
perspective, 5
in arguments, 13940
to control flow of information, 14142
empathy and, 14752
events and, 15253
first-person, 13839
Gardner on, 138, 139
Lodge on, 140
meaning and, 14247
in movies, 138
for narrative logic, 14142
Sebald and, 17375
style and, 13853
to suggest outcome, 14247
third-person objective, 140
third-person subjective, 139
Pilgrim, Billy (fictional character), in Slaughterhouse Five, 187200
plot, 45, 827
advocacy and, 11, 28
audience and, 12
austere definition of, 1316
Brooks on, 12
causality in, 1112
characters and, 70
in closing argument in torts case, 2868
definition of, 11

description for, 156

disillusionment, 61
Donovan and, 91, 1013
ending and, 1213
environment for, 156
in The Estate of Karen Silkwood v. Kerr-McGee, 29, 64
events in, 11, 12, 13
Failla and, 1013
of The Hand, 1416
in High Noon, 2027
in Jaws, 2027
in movies, 70
narrative logic of, 1213, 18
narrative profluence in, 1112, 64
pacing of, 19799
sequence of, 11, 12, 13
setting for, 156
themes and, 16
voice and, 118
plot goals, 11213
struggle toward, 113
plot trajectory
constraints on, 1213
in melodrama, 65, 66
of novels, 8
opening and, 8
point of view. See perspective
Poo-tee-wee, 199
popular culture, 6
Porter, Katherine Anne, 84
post hoc ergo propter hoc fallacy, 18990
premature ending, in melodrama, 24
present-tense voice, 6
in The Estate of Karen Silkwood v. Kerr-McGee, 29, 3839, 52
Prince, Gerald, 18990, 195, 19899
proem, 32
in The Estate of Karen Silkwood v. Kerr-McGee, 5859
profluence. See narrative profluence

progressive complications
of antagonist, 24
by Donovan, 92, 111
in The Estate of Karen Silkwood v. Kerr-McGee, 4143
in High Noon, 2526
prolepsis, 19495
Propp, Vladimir, 63
protagonist. See also hero
characters as, 7475
Failla as, 92, 9697
as hero, 7880
inner contradiction of, 112
scene and, 78
screenwriters on, 112, 113
steady state and, 24
punitive damages, 19
in The Estate of Karen Silkwood v. Kerr-McGee, 31, 35
purposeful motion, toward ending, 64
Quintilian, 202
Racketeer Influenced and Corrupt Organizations Act (RICO), 91, 95, 97, 100, 208
Ramirez, Helen (fictional character), in High Noon, 77, 8081
rape, 16064
rebuttal
in The Estate of Karen Silkwood v. Kerr-McGee, 29, 38, 40, 5255
hero and, 40
steady state and, 38
Reck, Emil, 17075
Reck v. Ragen, 17075
Reich, Charles, 4142 Remarks About Lawyers as Storytellers (Donovan), 202
reverse causality, 190
rhetorical questions, 51
by Donovan, 104
rhythm
chronology and, 19799
Lodge on, 119
in movies, 19899

voice and, 11926

rhythms of language, 5
RICO. See Racketeer Influenced and Corrupt Organizations Act
Ricoeur, Paul, 8
Riggins, David E., 12426, 140
Riggins v. Nevada
briefs for, 12426
third-person objective perspective in, 140
Roemer, Michael, 9
on characters, 65, 72
on good and evil, 42
on hero, 79
on Jaws, 21
on melodrama, 19
Roosevelt, Eleanor, 102
Roosevelt, Franklin, 102
round characters, 7677
Failla as, 92
in High Noon, 8081
Rusk, Edward Salvatore, 16064
Rusk v. State, 16064
scene, 5
Mailer on, 12830
pacing and, 197
protagonist and, 78
stretch and, 198
style and, 12630
summary and, 12630
Scheider, Roy, 25
The Screenplay (Mehring), 112
screenwriters
for High Noon, 21
for movies, 6
on protagonists, 112, 113
Sebald, W.G., 157, 16475
sentences. See also death penalty mitigation
Failla and, 90

by judges, 74
settings and, 17273
sequence of events
in ending, 64
in The Estate of Karen Silkwood v. Kerr-McGee, 46
in Jaws, 24
in movies, 12
narrative logic and, 194
narrative time and, 186
of plot, 11, 12, 13
theme and, 1617
setting, 15584
danger and, 15864
for events, 156
Gardner on, 155
for Jaws, 15657
for plot, 156
sentences and, 17273
for theme, 156
villain as, 17584
setup. See beginning
Shaw, Irwin, 73
Shaw, Robert, 25
side participants, 29
Silkwood, Karen, 4, 6, 2868. See also The Estate of Karen Silkwood v. Kerr-McGee
as hero, 36
transformation of, 36
Simpson, O.J., 18
Slaughterhouse Five (Vonnegut), 185, 187200
Spence, Gerry, 4, 6, 20, 207
closing argument by, 2868
ending by, 200
first-person perspective by, 139
flash-forward by, 19495
omniscient perspective and, 143
perspective by, 138, 141
on story, 40
voice by, 11819

zigzagging by, 29
Spielberg, Steven. See Jaws
stage, 5
static characters, 7778
in High Noon, 8182
steady state
Donovan and, 96100
in The Estate of Karen Silkwood v. Kerr-McGee, 3738, 59
Failla and, 96100
in The Hand, 14
in High Noon, 23, 25
in Jaws, 23
markers for, 38
in plot, 13
protagonist and, 24
rebuttal and, 38
restoration of, 13
trouble and, 24
Steinbeck, John, 135
story. See also backstory; framing story; ministory
arguments into, 40
in death penalty mitigation, 65
evidence into, 20
jury and, 6
narrative logic of, 141
parts of, 45
Spence on, 40
stretch, 127
scene and, 198
summary and, 198
strict liability
Donovan and, 9495
in The Estate of Karen Silkwood v. Kerr-McGee, 3334
Failla and, 9495
struggle
between good and evil, 24
toward plot goals, 113
transformation and, 24

trouble and, 2324

style
perspective and, 13853
scenes and, 12630
summary and, 12630
voice and, 11719
subplots, 205
Grasso and, 92
in High Noon, 2526
summary, 5
for Atkins v. Virginia, 13437
briefs and, 127, 128
by Donovan, 127
for Failla, 127
Lodge on, 127
pacing and, 197
scenes and, 12630
stretch and, 198
style and, 12630
Suzanne (Cohen), 159
Tarantino, Quentin, 176
theme
characters and, 11314
definition of, 1617
description for, 156
environment for, 156
for The Estate of Karen Silkwood v. Kerr-McGee, 3336, 64
Gardner on, 16, 17
of hero, 20
of High Noon, 22
in Jaws, 2021
of movies, 11314
plots and, 16
setting for, 156
theory of the case and, 1718, 64
zigzagging and, 3839
theory of the case

Cochran and, 18
for The Estate of Karen Silkwood v. Kerr-McGee, 3336
theme and, 1718, 64
zigzagging and, 3839
third-person objective perspective, 140
third-person subjective perspective, 139
This Boys Life (Wolff)
character development in, 8289
characterization in, 8289
Dwight in, 8589
excerpts from, 8589
Failla and, 101
Toby in, 8589
Three Mile Island, 37
time. See narrative time
Toby (fictional character), in This Boys Life, 8589
To Invigorate Literary Mind, Start Moving Literary Feet (Oates), 155
torts, 910
closing argument in, 2868
good and evil in, 65
melodrama in, 19, 118
townspeople, in High Noon, 2122, 26, 37, 41, 4346, 75
transformation
of characters, 77
in High Noon, 2627
in plot, 13
of Silkwood, 36
struggle and, 24
transformed steady state, in The Hand, 1516
trouble
in beginning, 63
Donovan and, 96100
in The Estate of Karen Silkwood v. Kerr-McGee, 3738, 67
Failla and, 96100
in High Noon, 23
in Jaws, 23
in plot, 13
steady state and, 24

struggle and, 2324

Uncle Ambrose, 16569, 173, 181
verisimilitude (lifelikeness), 3
video evidence, 6
villain
as antagonist, 19
in ending, 64
environments as, 17584
in The Estate of Karen Silkwood v. Kerr-McGee, 35, 36, 4146, 4950
Grasso as, 92, 97100
hero and, 66
in High Noon, 20
in Jaws, 2425
in melodrama, 19, 36, 6566
settings as, 17584
visual aids, 6
voice, 5.
See also present-tense voice
in briefs, 130
in In Cold Blood, 13033
in The Estate of Karen Silkwood v. Kerr-McGee, 11819
rhythm and, 11926
in Riggins v. Nevada, 12526
by Spence, 11819
style and, 11719
using several, 13037
Vonnegut, Kurt, Jr., 185, 187200
Wharton, Edith, 72
on hero, 79
While They Slept (Harrison), 17584
The White Album (Didion), 15864
White Album (The Beatles), 159
Williams, Terry, 14547
Williams v. Taylor, 14547
Wisdom of the Heart (Miller), 1
Wolff, Tobias, 8289

Wood, James, 83
zigzagging
in The Estate of Karen Silkwood v. Kerr-McGee, 46
by Spence, 29
between theme and theory of the case, 3839, 64
Zinnemann, Fred, 21