I left off last time with the suggestion that, in considering closing arguments, “inevitability” is key to their effectiveness. In recent times, very few (especially civil) cases get to trial. The ones that do—i.e., those that aren’t resolved by plea agreement, settlement, or pre-trial motion—do so because the facts are in dispute, the facts may or may not constitute a violation, or the appropriate remedy is in doubt. For example, defendants accused of violating the Sherman Act may dispute that they agreed to fix prices, or they might argue that no matter what they did, they didn’t cause the plaintiff’s injuries, or the parties may have wildly different views on what constitutes a reasonable amount for damages. By nature, then, assuming rational litigants and lawyers, a case going to trial has no inevitable conclusion. Making the theory of a case appear inevitable is the best we can hope for.
Narrative inevitability is of course a construction because narrative itself is a construction—the enchainment of particulars selected from a host of particulars. And in the context of closing argument, the selection of particulars is an exercise in both authorship and advocacy that results in what Peter Brooks and Carlo Ginzburg more generally call a “retrospective prophecy”—”a construction of the story of the past by way of its outcome, what it was leading to.” This retrospective prophecy, this story of a past event, will have persuasive force if the lawyer—in the role of detective—performs a retracing of some party’s steps to an end that has been in sight since the beginning (e.g., the dead body). A gifted lawyer is able to perform this task because he is Holmes and Watson (Doyle, actually)—that is, he locates particulars and then enchains them into a story that, he hopes, will offer the most plausible account of what happened (how the victim died, why the plaintiff’s business failed, or why a class member’s stock price dropped precipitously, etc.).
The ultimate decisionmaker at trial—be it judge or jury—must evaluate the testimony and other evidence introduced for its assessment and inevitably do so in light of the closing arguments. This is not to say that a jury picks one summation or the other (or, as I have mentioned before, that individual jurors agree about everything, even if they agree on a verdict), but a well-constructed and well-delivered summation surely offers guidance and draws attention to particular bits of information that have been tracked throughout trial, including information that is not legally, yet is narratively, relevant. For example, as we’ve noted before, motive is not an element of a crime or tort, but it is an element of well-told story. So, everything else being equal, a closing argument that explains why a party acted one way or another is likely to be more persuasive than one that doesn’t.
In a previous installment, we looked at Gerry Spence’s use of a stock exemplary narrative in summation to explain the concept of strict liability to the jury in the case of Silkwood v. Kerr-McGee. But we also noted in passing that, although the facts were not directly relevant to the claims in the case, Karen Silkwood died in a mysterious, one-car crash while on her way to deliver documents to a union official and a New York Times reporter demonstrating that Kerr-McGee had falsified critical nuclear safety records. Spence sets up the yet-to-come rebuttal piece of his closing with a series of technically off-point rhetorical questions:
“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 end—the whole Kerr-McGee Plant to an end. What would the New York Times information have done to the world had it been published?
Here, as Lisa Kern Griffin observes of narratives in general, “readers necessarily become participants in the story. And the story model likewise posits jurors speculating about facts external to the trial in order to complete the picture.” In thus advancing what Philip Myer calls a “conspiracy theory,” Spence invites the jury members—casts them in the role of detectives, really—to follow the trail of clues he lays down in the rebuttal itself and conclude that Kerr-McGee killed Silkwood “because she knew too much.”
Again, how Karen Silkwood died was not the factual basis of a claim in the case. She and her apartment had been contaminated with plutonium, and unless Silkwood herself was responsible for the contamination, Kerr-McGee would be strictly liable. In a clever rhetorical move, Spence summoned the conspiracy theory—i.e., if Kerr-McGee was bold enough to kill her, surely it was bold enough to contaminate her. To strengthen the move, Spence speculates as to a motive:
I can give you motive. What was the motive for them to do that? “She was a troublemaker. She was doing union negotiations. She was on her way—she was gathering documents—every day in that union, everybody in that company, everybody in management knew that.” Nobody would admit it, but they knew it … These people, if you want to talk about motives, had a motive to stop her, and she was stopped.
In this way, Spence draws the jurors into his performance as participants. He sets them on the clues that he scatters (incidents, motives, and so forth), which the jurors follow to a conclusion, to an end of the story. But it’s a conclusion that they—though led right up to it—must construct. And this conclusion does double duty. That is, we don’t know exactly what each juror thought “really happened”—namely, the historical story of Karen Silkwood’s life and work at Kerr-McGee. Indirectly, of course, we know that the jurors must have concluded that Silkwood didn’t contaminate herself. What we know for certain is that the jury’s verdict holding Kerr-McGee liable concludes the story of the trial—namely, what happened in an Oklahoma City courtroom in 1979.
In orchestrating these dual conclusions, Spence’s performance satisfies the narrative expectations of two audiences: the jury, which needs to make sense of the trial’s disjointed discourse, and the out-there audience, which expects legal proceedings to conclude.
Reprinted with permission from © ALM Media Properties LLC. All rights reserved.