PRINT PAGEFinal Argument: Finding the Stories

Written by Roy Black

“…the secret of the Great Stories is that they have no secrets. The Great Stories are the ones you have heard and want to hear again. The ones you can enter anywhere and inhabit comfortably. They don’t deceive you with thrills and trick endings. They don’t surprise you with the unforeseen. They are as familiar as the house you live in. Or the smell of your lover’s skin. You know how they end, yet you listen as though you don’t. In the way that although you know that one day you will die, you live as though you won’t. In the Great Stories you know who lives, who dies, who finds love, who doesn’t. And yet you want to know again. That is their mystery and their magic.”― Arundhati Roy, The God of Small Things

“These stories were very old, as old as people, and they had survived because they were very powerful indeed. They were the tales that echoed in the head long after the books that contained them were cast aside.”– John Connolly, The Book of Lost Things

This has been a busy summer with a lot traveling on out-of-town cases so I stayed in hotel rooms with Pay-Per-View my only entertainment. One film I enjoyed was The Secret Life of Walter Mitty. While it was beautifully photographed, all I could think about was the power of this story. The visuals are new but the story isn’t. Walter is the brain-child of James Thurber fleshed out in only 2,000 words in the March 18, 1939 New Yorker Magazine.

Never Stop DreamingThurber’s little story resonates so deeply that it has spawned two major films and it’s own metaphor – mittyesque. It works because it fits into our world view. Men seek to escape their ordinary lives and daydream about being heroes. On Sunday afternoon, who doesn’t want to throw the game-winning pass?

We have a long tradition of storytelling stretching for thousands of years, from Homer to Aesop to Spielberg. Accuse someone of sour grapes and people instantly remember Aesop’s moral fable of The Fox and the Grapes. The Homeric storytellers celebrated the great heroes and passed on society’s histories, beliefs, values, myths, legends, and folktales.

Most of these stories are moral tales which deliver a message. The story sells the message. Every culture has them. They are told and retold, creating and reinforcing themes everyone accepts.

The master trial lawyers go to school on this. They seek to captivate the juror’s attention and get their vote. On the other hand, novices take the easy way out and merely repeat the facts that the jurors have heard ad nauseam. Advocacy makes vivid arguments and seeks to persuade. The oral tools are analogies, metaphors, memorable phrases and short stories. They take the presentation from boring to brilliant.

It is easy to see why. The analogy, metaphor, or story takes a highly contested, complex set of facts and issues and simplifies them into a readily understandable situation in which your viewpoint is the right one.

We need to find the story within the story. We already have a narrative based on the case facts but we also need those shorter anecdotes and stories to illustrate our points. To infuse color into the narrative. Something with a punch line, a moral. I think of them as set pieces. Already committed to memory and ready for the occasion. You can relax when telling the story. You know it. And your audience relaxes with you. It is a welcome respite from the pressure and seriousness. There is nothing more encouraging when the jurors recognize the story and it brings a smile to their lips.

Two great examples of this were used by masters of the genre, Jeremiah Donovan and Gerry Spence. Donovan was defending an almost impossible mob case where his client was extensively taped talking about major crimes he committed. He needed a story to illustrate his defense that his client Failla was bragging about imaginary crimes to make himself something he wasn’t. Donovan explained that if they believed everything Louis Failla said on tape, they would convict him on all counts. But if he had been bragging, if he’s “desperate for love,” then perhaps he had a chance. Being Irish Donovan had a collection of great Irish drinking stories to select from. Here is Donovan’s “story:”

“He is a bragger who exaggerates. Think of a working class bar in Dublin. Everybody’s sitting and having a good time. All of a sudden this big, huge fellow—I mean enormous—walks in and says, “Alright, where’s O’Toole?” Everybody looks down into their beer because they don’t want to be mistaken for O’Toole. Finally, way in the back, a little old guy, about seventy-five-years-old, weighing maybe 110 pounds, gets up and says, “I’m O’Toole. What’s it to ya’?” The big guy picks up O’Toole, puts him on the bar, runs him down the bar, bottles hitting him on the head, throws him on the ground, kicks him twice, picks him up, throws him through a plate glass window, walks out the door, picks him up again, throws him back through the other plate glass window and walks off. All the patrons look at this bloody mess on the ground, worried that the man is dead. All of a sudden, the little guy lifts up his head and says, “I sure pulled a fast one on that big fella’—I’m not O’Toole at all!”

Gerry Spence is one of the great persuaders. He devised the perfect story/metaphor in the Karen Silkwood case. He was suing a nuclear plant for poisoning his client with plutonium. He framed the issue using an old common law case – “If the lion got away, Kerr-McGee has to pay.”

Here is an excerpt from his rebuttal close:

“Well, we talked about ‘strict liability’ at the outset, and you’ll hear the court tell you about ‘strict liability,’ and it simply means: ‘If the lion got away, Kerr-McGee has to pay.’ It’s that simple–that’s 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 cage–and lions are dangerous–and through no negligence of his own–through no fault of his own, the lion got away. Nobody knew how–like in this case, ‘nobody knew how.’ And, the lion went out and he ate up some people–and 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 power–I had a good cage–had a lock on the door–I did everything that I could–I had security–I had trained people watching the lion–and it isn’t my fault that he got away.’

“Why should we punish him? They said: ‘We have to punish him–we have to punish you–you have to pay.’ You have to pay because it was your lion–unless the person who was hurt let the lion out himself. That’s 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. It’s already admitted. It’s admitted in the evidence. They admit it was their plutonium. They admit it’s in Karen Silkwood’s apartment. It got away. And, we have to prove that Karen Silkwood was damaged. That’s all we have to prove. Our case has been proved long ago, and I’m not going to labor you with the facts that prove that. It’s almost an admitted fact, that it got away, and that she was damaged.”

Spence took a complex legal theory and made it simple for the jury to grasp. If the lion got away then Kerr-McGee had to pay. This is a master storyteller at work. And the jury made them pay to the tune of $10.5 million. But after extensive appeals, the Silkwood estate finally had to settle for $1.38 million.

Here are some useful sources for using stories in argument:

Lawyers as Storytellers & Storytellers as Lawyers: An Interdisciplinary Symposium Exploring the Use of Storytelling in the Practice of Law, 18 Vermont L. Rev. 567 (1994)

Symposium: Picturing Justice: Images of Law and Lawyers in the Visual Media, 30 U.S.F. L. Rev. 891 (1996)

“Desperate for Love”: Cinematic Influences Upon a Defendant’s Closing Argument to a Jury, 18 Vermont L. Rev. 721 (1994)

“Desperate for Love II”: Further Reflections on the Interpenetration of Legal and Popular Storytelling in Closing Arguments to a Jury in a Complex Criminal Case, 30 U.S.F. L. Rev. 931 (1996)

“Desperate for Love III”: Rethinking Closing Arguments as Stories, 50 South Carolina L. Rev. 715 (1999)

Some Off-the-Cuff Remarks About Lawyers as Storytellers, 18 Vermont L. Rev. 751 (1994)

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