Trial itself involves lawyers introducing bits of evidence—something like hanging ornaments on a tree—that make their trial stories appear weightier and more attractive. (Or the reverse, when they’re challenging their oppositions’ evidence).

A trial never unfolds according to a script. Even if the lawyers are organized and well prepared, as an old trial lawyer once told one of my young colleagues, “another rabbit always jumps out of the hat.” I think Kathryn McNeilly and Paul Stapleton make a fair point in urging a comparison to musical improvisation, which—contrary to some misconceptions—is not without its own forms and generic constraints. As just as musician might say, “You’re playing something and listening with the intention of moving from A to B in the next moment, and then something happens in music, which you hear, and you realize, ‘OK, that would be a bad choice. I’ve got to do something else’,” trial lawyers must remain nimble—must improvise—in the face of the unexpected.

In the last installment, we looked at the rhetorical tactics (definitions, inferences, and validations) that converge in their relationship to the underlying story structure that is being developed at trial. An improvisation fits quite happily in this schematic to the extent that “it establishes some fit between a piece of evidence and the evolving story strategy in a case.” Definitions are effective when they fill in gaps in a story. Inferences are effective when they clarify and bind story elements. And validations are effective when they link evidence to confirming grounds elsewhere in the story. Bennett and Feldman posit that viewing trial through this lens reveals an order to seemingly disparate trial moves and suggests that the key variables in a trial are not the biases of jurors, predilections of judges, charisma of lawyers, or the personal characteristics of parties and witnesses, but rather how these things impact the construction, interpretation, and plausibility of stories.

At bottom, Bennett and Feldman’s perspective is that “a trial is a set of rules for reconstructing a disputed incident in a symbolic form that allows the actions of the participants to be judged in fairly uniform fashion by (in theory at least) any judge or jury who was not witness to the incident.” Without wholesale rejecting Bennett and Feldman’s account, Bernard Jackson nonetheless finds it incomplete because—in his view—they “simply assume that there is just one story being constructed (or rival versions of one story vying for supremacy), and that each one of these versions is built up atomistically by the evidence of these ‘multiple tellers.’” Instead, Jackson proposes “the possibility of a multi-layered discursive model, one which narrativises the pragmatics of the courtroom and the construction of truth within it, but independently of the narrative structure of the story being told.”

Jackson’s critique of and suggested supplements to Bennett and Feldman’s theory are robust and worth considering in depth, but I want to focus our attention on just one aspect. When Bennett and Feldman speak of a trial-story achieving a standard of “plausibility,” they are signally two interpretive operations. First, for an interpreter (like a juror) to find a story plausible, that story must square with the stock of social knowledge that the interpreter carries around in her head (also in narrative form). Second, the story must be well structured as a story. Bennett and Feldman hint at this second aspect when they mention Vladimir Propp’s analysis of Russian folktales, in which he “argues that grammar-like conventions in storytelling alert the listener to connections between actions and scenic elements.” To Jackson, this suggests an opportunity to pursue more deeply a structuralist avenue of inquiry, one that observes courtroom pragmatics (i.e., the context of what is said) as closely as testimonial semantics (i.e., the content of what is said).

Propp analyzed Russian folktales and concluded that they are built from 31 structural elements that he called “functions.” A significant selection of these functions almost always appears in the folktales, and the functions almost always do so in sequence: There’s an “absence,” an “interdiction,” a “violation,” and so on. Propp organizes the functions into “spheres of action,” from which he derives seven characters: the Villain, the Dispatcher, the Helper, the Princess (and her Father), the Donor, the Hero, and the False Hero. For our purposes, Propp’s theory is helpful insofar as it confirms our suspicion that convincing stories may share deep structures. But it’s too specific and linear fully to explain trial narratives—i.e., a trial is too disjointed for its elements to map onto Propp’s schematic. For a more felicitous model, we may look to A.J. Greimas’s reconceptualization of Propp’s prototype.

Greimas makes two moves with respect to Propp’s theory. First, he reduces Propp’s inventory from 31 to 20 but ultimately concludes that the new inventory “is no easier to handle than the first one.” He thus proposes a further reduction to three: contract (the making or breaking of contracts—the setting of goals), performance (the execution of tasks or struggling to overcome obstacles—in literature, the “plot”), and recognition (sometimes referred to as “sanction”—acknowledgment that the goal has been achieved (or not)). Second, he substitutes six general “actants” (actually four actants and two “circumstances”) for the set roles of Propp’s model: Subject, Object, Sender, Receiver, Helper, and Opponent. By abstracting from Propp’s model, Greimas has provided a much more flexible model for analyzing courtroom interactions, most conspicuously because it accounts for the fluidity that we see in courtroom roles.

I think Jackson is right when he foregrounds the “story of the trial” as a multitude of pragmatic interactions that can be examined in Greimasian terms. Take, for example, a civil trial. There, a witness called by one party—because its lawyers have determined that he has favorable evidence to give—is a “subject” that has made a “contract” to testify truthfully. The “sender”―the lawyer conducting the direct examination―is a “helper,” there to aid the witness’s “performance.” Everyone else in the courtroom―judge, juror, other witnesses, counsel, opposing counsel (though they pretend not to acknowledge what adverse witnesses are saying!), et al.―are there to “recognize” whether the “goal” has been achieved. Along the way, though, the cross-examining, “opponent” lawyer seeks to disrupt the witness’s developing narrative by asking leading questions and questions that aren’t really questions at all. And all of this takes place in the context of a space that itself conveys meaning and in the face of various audiences that are implicitly (and sometimes explicitly) sending affirming or contradicting messages to what is taking place on the witness stand.

I’m not proposing this brief exposition of Greimasian narrative “grammar” as a complete explanation for the narrative dynamics within a trial. Rather, I hope I’ve shown that trial has narrative complexities that are not captured by Bennett and Feldman’s theory. But I also think Jackson, by emphasizing the “story of the trial,” overly discounts the competing narratives that the litigants intend to sponsor before the trial even begins. That is, well-prepared lawyers have located the central action, developed a theme around it, and spun out an ideal narrative that will favorably explain it. This pre-trial narrative remains in something of an outline form (and it may very well require revision as the trial progresses), but it’s implicit in examination outlines, somewhat more explicitly laid out in pre-trial briefing, expressed in opening statements, and—in courts allowing extensive juror questioning—previewed in voir dire.

As an example, a few years ago, I received a jury summons for a civil trial and was called to the venire for a personal injury trial. In Texas state court, most judges allow the lawyers to conduct elaborate voir dire and make statements that feel very much like opening statements. In the case I was called for, the dispute involved a claim that the plaintiff (a lawyer) had been injured by a fall in a hotel’s bathtub. In voir dire, the hotel’s young lawyer stood up in front of us and asked, “Any of y’all ever slip in a bathtub?” Most of us raised our hands. “Any of you blame the bathtub?” Laughter erupted; no hands went up. I was excused after voir dire (nobody wants a lawyer on a jury!), but I was pretty sure the plaintiff lost the case on the defendant’s first question. I ran into the judge a few weeks later, and he confirmed my suspicion—the plaintiff received an unfavorable jury verdict and a take-nothing judgment.

Trial itself involves lawyers introducing bits of evidence—something like hanging ornaments on a tree—that make their trial stories appear weightier and more attractive. (Or the reverse, when they’re challenging their oppositions’ evidence). But Bennett and Feldman are right that all this story-building converges in two conflicting stories: the closing arguments. Now this, too, is not as simple as it might seem. For the fact-finder doesn’t have to—though it may—pick one story over the other; rather, it has to decide who wins and who loses (setting aside a hung jury). And it can do so based on a different story that it believes stands for “what really happened.” Or it can believe both stories: “Yes, the Defendant did what Plaintiff said he did, but Defendant made out a defense, showed that what he did doesn’t represent an instance of the legal claim alleged, or didn’t cause Plaintiff cognizable damages.” In reality, the jury is like a legislature, with individual members voting one way or the other for any number of reasons (i.e., justificatory narratives). All we know for certain is the final vote on the verdict form—that the individual jurors intended and chose to vote in a certain way at the end of the trial.

Next time, we’ll track how they got there.

Randy D. Gordon is the Office Managing Partner of the Dallas office of Duane Morris LLP. He is executive professor of law and history at Texas A&M University. His new book project, “The Performance of Law: Everyday Lawyering at the Intersection of Advocacy and Imagination,” from which this series is partially excerpted, will soon be published by Routledge.

Reprinted with permission from © ALM Media Properties LLC. All rights reserved.