When we left off last time, we had just walked through Gerry Spence’s masterful closing argument in the famous Silkwood v. Kerr-McGee case and observed how he had drawn the jurors into his performance as full participants. He did this by providing each of them with the building blocks to construct narratives that would justify (again, to each of them) beliefs as to what “really happened” to Karen Silkwood and, moreover, who was responsible. To understand how he did this, let’s consider how narratives are constructed and how they lead us to conclusions.

In “The Sense of an Ending,” Frank Kermode takes the ticking of a clock as a rudimentary, yet pregnant, narrative form:

“We ask what it says: and we agree that it says tick-tock. By this fiction we humanize it, make it talk our language. Of course it is we who provide the fictional difference between the two sounds; tick is our word for physical beginning, tock our word for an end. We say they differ. What enables them to be different is a special kind of middle. We can perceive a duration only when it is organized.

“Tick-tock thus models a simple plot, with tick being a ‘humble genesis,’ tock a ‘feeble apocalypse,’ and the interval between ‘disorganized time.’ And it is tock—the ending—that bestows meaning on the otherwise chaotic middle.”

Now let’s take a more complex literary example, one drawn from a work we’ve discussed tangentially in this series. Although relatively few readers have completed Proust’s “In Search of Lost Time,” many are familiar in some rough way with the “episode of the madeleine.” This episode, told by the narrator, Marcel, takes place early in the novel:

“Many years had elapsed during which nothing of Combray … had any existence for me, when one day in winter, on my return home, my mother, seeing that I was cold, offered me some tea, a thing I did not ordinarily take. … She sent for one of those squat, plump little cakes called ‘petites madeleines,’ which look like they had been molded in the fluted valve of a scallop shell. And soon, mechanically, … I raised to my lips a spoonful of the tea in which I had soaked a morsel of the cake. No sooner had the warm liquid mixed with the crumbs touched my palate than a shiver ran through me and I stopped, intent on the extraordinary thing that was happening to me.”

Marcel is at first disoriented, unsure what the extraordinary sensation portends. But he focuses his attention and soon understands that a memory is percolating beneath the surface of his consciousness:

“And suddenly the memory reveals itself. The taste was that of the little piece of madeleine which on Sunday mornings at Combray (because on those mornings I did not go out before mass), when I went to say good morning to her in her bedroom, my aunt Léonie used to give me, dipping it first in her own cup of tea or tisane. … As soon as I had recognized the taste of the piece of madeleine soaked in her decoction of lime-blossom which my aunt used to give me (although I did not yet know and must long postpone the discovery of why this memory made me so happy) immediately the old grey house upon the street, where her room was, rose up like a stage set.”

In place of the fragment available through his voluntary recollection, the madeleine sparked a burst of involuntary memory, which—like Japanese kirigami paper that blooms when placed in water—summons the whole of the village, its people and its surroundings before Marcel’s mind’s eye.

Marcel grasps an uncertain significance in the madeleine episode, but the meaning of the discovery remains elusive. What remains is something to explain, contextualize and give retrospective meaning to the madeleine and like powerful impressions. A million or so words later, Marcel feels himself “ready to undertake” a “work of art,” the raw material of which must surely consist of images he had tried to decipher and the bursts of involuntary memory:

“In fact, both in the one case and the other, whether I was concerned with impressions like the one which I had received from the sight of the steeples of Martinville or with reminiscences like … the taste of the madeleine, the task was to interpret the given sensations as signs of so many laws and ideas, by trying to think—that is to say draw forth from the shadow—what I had merely felt, by trying to convert it into its spiritual equivalent. And this method, which seemed to me the sole method, what was it but the creation of a work of art?”

In the end, Marcel is a literary detective retracing his own steps. As Kermode observes, “Marcel, when he considers those happenings which give him the clue to his experience, and restored, as he says, his faith in literature,” it’s because “the portents of his climactic day make sense for him by a benefaction of meaning; the end makes a concord with what had preceded it.” In other words, the tock fits with and resolves the interpretive impasses that have left Marcel intellectually adrift in a sea of sensations and thereby isolated from his true vocation.

Although Marcel is in some sense his own audience (he’s guiding himself toward his role as narrator), Spence, too, is out to make a “concord with what had preceded” in his summation. That is, because jurors can’t possibly know the significance of each piece of evidence as it comes in, the lawyer’s role in closing argument is to shape a “tock” that explains the evidence in a narratively coherent and plausible way. Philip Meyer, quite rightly, I think, suggests that Spence completes his task with resort to the generic forms of melodrama. As he builds his plot, the villainy of Kerr-McGee grows in opposition to the heroic Silkwood to a degree mandating an end to the villainy. He puts the conclusion in Silkwood’s mouth: “And, she would say: ‘Friends, it has to stop here today, here in Oklahoma City.’” In so doing, Spence serves up a ready-made conclusion and invites the jury to add an exclamation point.

I now sense an ending of my own, perhaps to the relief of readers who have followed along the whole spine of the discussion. Victor Turner reminds us that social life is full of social dramas, that humans are “programmed for cooperation, but prepared for conflict.” Both theater and trial—as performative genres—serve both ends, though to different ends and through related means. The related means arise because “performance behavior is known and/or practiced behavior or ‘twice-behaved behavior,’ ‘restored behavior’—either rehearsed, previously known, learned by osmosis since early childhood, revealed during the performance by masters, guides, gurus, elders or rules that govern the outcomes in an improvisatory theatre or sports.” The difference arises because theater comments on social conflict, while trial aims to resolve it. We’ll conclude next time with a discussion—in the context of another famous case—of how this difference generates trial outcomes, not always in ways that seem just.

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