Storytelling for Lawyers (35 page)

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

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

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

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

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

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

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

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

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

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

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

Then he moves backward in time:

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

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

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

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

First of all let's talk about chronology here. With respect to Louie Failla, this case begins in about February of 1989. What do we know about Louis Failla at that point? Well, he's living in a rented … [a rented duplex] out in East Hartford. Hasn't been painted in 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 reader's anticipation and expectation are fulfilled later in the discourse time of the story.

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).