There is a good lesson detailed by Janet Maslin in her review of “Bed” by David Whitehouse. In the New York Times, Maslin, one of our more perceptive book reviewers, skewers Whitehouse for his inability to write convincing narrative. The book is about an extremely obese man from his younger brother’s point of view. Maslin points out that Whitehorse has a great talent for dazzling description, but almost none for storytelling, and thus the book is largely unsuccessful.
The younger brother has grown to hate his older brother, Mal, because he gets all the attention and just lays on his bed like a huge white slug. So the book is full of brilliant witticisms about how gross his brother is:
“I dreamt sometimes of standing on him, my feet disappearing up to ankle height in his flab, schloop schloop schloop as I stepped, like in quicksand.”
Mal’s epidermis: “the enormous blistered coffin that trapped my brother inside it.”
Mal’s navel: “By now stretched to the proportions of a medium-sized oven dish.”
Mal’s mother, who has martyred herself to the point where she does nothing but take care of him: “The latter years of her life were effectively spent basting an enormous turkey in the oven, lifting it, turning it and coating its flesh without the reward of a hearty meal.”
Mal’s mother’s dutiful hygienic care of her humongous son: “She slides a hand under his left breast that hangs flaglike and slowly lifts it as though it is a rock in the garden and spiders might dash out. It wouldn’t surprise me if they did.”
And a supermarket where fresh baguettes reach out like “monkeys’ arms at a hot zoo.”
He has a morbid curiosity about Mal’s morbid obesity. “I wonder, if you cut him open, what color his fat is,” he writes. “I decide on withered mushroom.”
While the book is full of visual ideas, it never really explains why Mal has become so obese. An idiotic newsman suggests that Mal is conducting some kind of protest, but “Bed” shows no signs of a better idea. There is no real plot, no satisfying story to hold all his brilliant observations together.
It reminds me of some final arguments, which end up just words in search of a story. We must at times be storytellers, and like an author, we must struggle with the evidence to create a coherent and compelling story. It should come as no surprise that storytelling is an inherent part of advocacy.
But we are trained in making persuasive rhetorical arguments, not telling stories. When do we use rhetorical arguments and when should we use a narrative? We need both. Research shows that biased jurors are not as persuaded by argument, but are by a compelling story.
Some jurors think all defendants are guilty and all businessmen greedy. For example, there is a presumption if a corporation collapses, there must be criminal conduct involved. Think Enron or Worldcom. Almost impossible cases to defend. But business failure in and of itself is not a crime. Bankruptcy is not a crime. According to the research, these jurors can be reached only through a narrative. They quickly tune out our reasoned legal arguments.
My favorite example of using a story to overcome juror bias comes from the book and film “A Time To Kill.” The white jurors were biased against the black defendant, but the final argument asking them to change places was effective:
“What in us seeks truth? Our minds… …or is it our hearts? I tried to prove blacks could get a fair trial in the South… …that we are all equal in the eyes of the law. That’s not the truth. The eyes of the law are human eyes… …yours and mine, and until we can see each other as equals… …justice is never going to be evenhanded. It will only be a reflection of our own prejudices. So until that day… …we have a duty under God to seek the truth… …not with our minds… …where fear and hate turn commonality into prejudice… …but with our hearts… …but we don’t know better. I want to tell you a story. Please close your eyes… …while I tell it. I want you to listen to me. I want you to listen to yourselves. Go ahead. Close your eyes, please. This is a story about a little girl… …walking home from the grocery store one sunny afternoon. I want you to picture this girl. Suddenly a truck races up. Two men grab her. They drag her into a nearby field… …and they tie her up… …then rip off her clothes. They climb on. First one, then the other… …raping her… …shattering everything innocent and pure… …with a vicious thrust… …in a fog of drunken breath and sweat. And when they’re done… …after they’ve… …killed her tiny womb… …murdered any chance for her to bear children… …to have life… …beyond her own… …they use her for target practice. So they start throwing full beer cans at her. They throw them so hard… …that it tears the flesh all the way to her bones. Then they urinate on her. Now comes the hanging. They have a rope. They tie a noose. Imagine the noose coiling tight around her neck… …and a sudden blinding jerk. She’s pulled into the air and her feet go kicking…. They don’t find the ground. The hanging branch… …isn’t strong enough. It snaps and she falls… …back to earth. So they pick her up… …throw her in the back… …drive to Foggy Creek Bridge… …pitch her over. And she drops some feet… …down to the creek bottom. Can you see her? Her raped… …beaten… …broken body… …soaked in their urine… …soaked in their semen… …soaked in her blood… …left to die. Can you see her? I want you to picture… …that little girl…. Now, imagine she’s white. The defense rests.”
This final burst of imagery as a story demonstrates that the defendant would not have been charged had the victim, the little girl, been white. The father’s motive in shooting the rapists would have been seen as justified. So if the jury is willing to spare the life of a white man for a vengeful murder like Carl Lee Haley’s, then they must be able to do the same for a black man.
The problem is we are trained to make arguments not stories. We argue every time we are in court. We use reasoned arguments depending on truth, evidence, logic and objectivity. But when it gets to a trial, we need to think of narrative because narrative allows jurors to grasp our point of view. No one wants to be argued at rather than reasoned with. The usual battle we have in front of a judge doesn’t work with everyday people.
The story is only as good as the lawyer telling it. I love to listen to master storytellers like Garrison Keillor who spins epic masterpieces on NPR. He creates wonderful images through his simple stories. We need to keep listening to the masters like him, and on my wish list, I also want James Earl Jones’ voice.
I read of one writer who called jurors “critical consumers of communication.” I wish I had written that. It sums it all up. We must know our audience and use the best method of speaking to them.